CHAPTER X
Project Gutenberg EPUB3 edition
Westermarck, Edward
Like the lower animals, human beings in their earliest childhood are incapable of forming notions of right and wrong, hence they are not responsible for any act of theirs. Responsibility commences with the dawn of a moral consciousness, and increases along with the evolution of the intellect. Only by slow degrees the capacity of recognising act as right or wrong develops in the child. It soon learns that certain acts are forbidden, but to know that an act is forbidden is not the same as to recognise it as wrong. Nor does the knowledge of a moral rule involve the ability to apply that rule in particular cases. Nor can the youthful intellect be expected to possess the same degree of foresight as the intellect of a grown-up man. Hence the total or partial irresponsibility of childhood and early youth.
This irresponsibility is admitted by the laws of civilised nations. In England,95 Scotland,96 and the United States,97 children under seven are absolutely exempt from punishment. In other modern countries criminal responsibility does not commence until the age of nine,98 ten,99 twelve,100 or fourteen.101 In some it is to be decided in each case whether a child is punishable or not.102 Thus the French Code Pénal provides that a person under eighteen years of age shall not be punished if it be decided that he has acted without discernment (sans discernement) whereas, if he has acted with discernment (avec discernement), his punishment is to be mitigated according to a fixed scale.103 Most laws set down an intermediate period between that of complete irresponsibility and that of complete responsibility. According to English law there is a presumption that children from seven to fourteen are not possessed of the degree of knowledge essential to criminality, though this presumption may be rebutted by proof to the contrary;104 and, according to the German Strafgesetzbuch, a person from twelve to eighteen may be acquitted if, when he committed the offence, he did not possess the intelligence requisite to know that it was criminal.105 Other laws, again, regard a certain age eo ipso as a ground of extenuation, its upper limit being fixed sometimes at sixteen,106 sometimes at eighteen,107 sometimes at twenty,108 sometimes at twenty-one.109
Roman law, as it seems, made out a præsumptio juris of general incapacity to commit a crime under puberty, rebuttable by evidence of capacity, at any rate in the age called “next to puberty,” the limits of which are not clearly settled.110 In the Irish Book of Aicill it is said that “the man who incites a fool is he who pays for his crime”; and to this the Commentary adds that a man is a fool till the end of seven years, and a fool of half sense till the end of fourteen111—a provision similar to that of Canon Law.112 According to Muhammedan law, the rule of talion is applicable only to persons of age.113 In China criminal responsibility is affected not only by youth, but by old age as well. “Offenders whose age is not more than seven nor less than ninety years, shall not suffer punishment in any case, except in that of treason or rebellion.” “Any offender whose age is not more than ten nor less than eighty years, … shall, when the crime is capital, but not amounting to treason, be recommended to the particular consideration and decision of His Imperial Majesty.” And “any offender whose age is not more than fifteen, nor less than seventy years … shall be allowed to redeem himself from any punishment less than capital, by the payment of the established fine, except in the case of persons condemned to banishment as accessories to the crimes of treason, rebellion, murder of three or more persons in one family, or homicide by magic or poisoning, upon all of which offenders the laws shall be strictly executed.”114
Source notes
78Lex Ripuariorum, lxx. 1.
79 Liebrccht, Zur Volkskund, p. 313.
80 Salvado, Mémoires historiques sur l’Australie, p. 260 sq.
81 Nansen, Eskimo Life, p. 213 sq.
82Cf. Dugald Stewart, Philosophy of the Active and Moral Powers of Man, i. 125; Hall, ‘Study of Anger,’ in American Journal of Psychology, x. 506 sq.
83 Im Thurn, op. cit. p. 354.
84 See Frazer, Golden Bough, i. 169 sqq.
85 Pausanias, i. 28. 11.
86 Pollock and Maitland, ii. 474.
87 Bracton, De Legibus et Consuetudinibus Angliæ, fol. 116, vol. ii. 236 sq.
88 Holmes, Common Law, p. 25.
89 Bracton, op. cit. fol. 122, vol. ii. 286 sq. Coke, op. cit. p. 58. Sir James Stephen supposes (op. cit. iii. 78) that “deodands were not in use at sea, because the local customs of England did not extend to the high seas.” But Coke expressly says (p. 58) that there can be no deodand of the ship even “in aqua salsa, being any arm of the sea, though it be in the body of the County.”
90 Coke, op. cit. p. 57. Hale, History of the Pleas of the Crown, i. 422. Stephen, op. cit. iii. 78.
91 Bracton, op. cit. fol. 136 b, vol. ii, 400 sq. Hale, op. cit. i. 420 sqq. Pollock and Maitland, op. cit. ii. 474, n. 4. Stephen, op. cit. iii. 77. Holmes, op. cit. p. 25 sq.
92 Britton, i. 2. 14, vol. i. 16.
93 Hale, op. cit. i. 422.
94 Holmes, op. cit. p. 29.
95 Stephen, op. cit. ii. 97 sq.
96 Erskine-Rankine, Principles of the Law of Scotland, p. 546.
97 Bishop, Commentaries on the Criminal Law, § 368, vol. i. 209.
98 Italian Codice Penale, art. 53. Spanish Código Penal reformado, art. 8, § 2.
99 Austrian (Finger, op. cit. i. 110), Dutch (van Hamel, in Législation pénale comparée, edited by von Liszt, p. 444), Portuguese (Tavares de Medeiros, ibid. p. 199), Russian (Foinitzki, ibid. p. 529) law.
100 German Strafgesetzbuch, art. 55.
101 Swedish (Uppström, in Législation pénale comparée, p. 483), Finnish (Forsman, ibid. p. 565) law.
102 French, Belgian, Ottoman law (Rivière, ibid. p. 7).
103Code Pénal, art. 66 sqq.
104 Stephen, op. cit. ii. 98. Kenny, Outlines of Criminal Law, p. 50.
105Strafgesetzbuch, art. 56.
106 Dutch law (van Hamel, loc. cit. p. 444).
107 Spanish (Código Penal reformado, art. 9, § 2), Swedish (Uppström, loc. cit. p. 484), Finnish (Forsman, loc. cit. p. 566) law.
108 Austrian law (Finger, op. cit. i. 112).
109 Italian (Codice Penale, art. 56), Russian (Foinitzki, loc. cit. p. 529), Portuguese (Tavares de Medeiros, loc. cit. p. 199), Brazilian (Codigo Penal dos Estados Unidos do Brazil, art. 42, § 11) law. According to the Ottoman Penal Code, art. 40, “a guilty person who has not arrived at the age of puberty may not be punished with the punishment enacted against the offence of which he has been found guilty.”
110 Clark, Analysis of Criminal Liability, p. 70. von Jhering, Das Schuldmoment im römischen Privatrecht, p. 42 sqq. Mommsen Römisches Strafrecht, p. 75 sq. In the Institutiones (i. 22) puberty is fixed at the completion of the fourteenth year for males, and of the twelfth for females. According to the Law of the Twelve Tables, children were punished for theft, though less severely than adults (Gellius, Noctes Atticæ, xi. 18. 8. Pliny, Historia naturalis, xviii. 3).
111Ancient Laws of Ireland, iii. 157.
112 Katz, Grundriss des kanonischen Strafrechts, p. 8.
113 Sachau, Muhammedanisches Recht, p. 762. Jaffur Shurreef says (Qanoon-e-Islam, p. 36) that, among the Muhammedans of India, previous to the period of puberty all the good and evil deeds of boys and girls are laid to the charge of their parents.
114Ta Tsing Leu Lee, sec. xxii. sq.