This was the trial of an eleven year old boy – William Horton – who was indicted for stealing various articles of linen and clothing to a total value of 13 shillings.
The first witness called by the prosecution was John Birdsey. He testified that he was a watchman and that on the 10th June at 2 am the prisoner and two more passed him and wished him good morning. At 3 am they passed him again and he saw they were loaded with something beneath their clothes. He pursued them and they dropped the bundle and ran away. He managed to catch Horton.
Acting for the boy, Garrow cross-examined the witness.
Garrow: How far were you from any other watchman? – A quarter of a mile.
Had not you a rattle? – Yes, but it is a great chance if it is heard.
But the purpose of it is to be heard? – Yes
This poor boy was not loaded at all? – No.
Isaac Barney was then sworn. He gave evidence that he never saw the boy until the watchman brought him in with a bundle of linen and things tied up in a handkerchief. The boy fell crying and said there had been two men with him. He was to watch out for the patrols and the watchmen while they got into the house.
Garrow: You had frightened this poor child out of his senses?
Barney: I do not think he was afraid at all.
Garrow: Do you know what reward there is for the conviction of this poor infant?
Barney: Upon my oath I do not know.
Garrow: Do you mean to say that you, a patrol, do not know?
Barney: I am sure it is a thing I never had.
Garrow: You shall not slip through my fingers so.
Barney: Upon my word and honour I do not know.
Garrow: Upon your oath, Sir? – I do not.
Garrow: Did you never hear there was a reward of forty pounds upon the conviction of that child?
Barney: I never knew such thing.
Garrow: But you have heard it? – I never heard any such thing.
Garrow: Come, come Sir, it is a fair question, and the jury see you and hear you. Upon your oath did you never hear that you should be entitled to forty pounds as the price of that poor infant’s blood?
Barney: Your honour, I cannot say.
Garrow; But you shall say before you leave that place.
Barney: I have heard other people talking about such things.
Garrow: So I thought, and with that answer I leave your testimony with the jury.
Mrs Ball, who owned the stolen goods, gave evidence that some of them were marked and she recognised them.
The Judge then summed up to the jury. This was a boy of tender years, he said, but if you believe he stayed outside the house to watch while the two men got in and plundered it, he was actually guilty with them. The law fixed no particular time for the age of criminality and in some circumstances the courts had gone very far in judging children of very tender years, even eight years in some cases, to be capable of committing even capital offences.
The question was: did he have sufficient knowledge to understand he was doing a criminal act. Whatever the feelings of courts and juries, it would be highly detrimental to the public, said the Judge, if any age was exempt because people of full years would employ children to commit crimes of almost every description. Therefore, if you believe that this child was conscious he was breaking the law and doing a criminal act, you will find him guilty. If you doubt the proof of the property or the truth of the case, you will acquit him.
Garrow’s emphasis on the young age of the child and his attack on Barney as a thief-taker may well have influenced the jury who, in a fine example of using their discretion, found the boy not guilty.
Full details of this trial: Old Bailey Proceedings Online (www.oldbaileyonline.org 25 February 2010) 7 July 1784, Trial of William Horton. (Ref: t17840707-77