… no different than kids those days …
The reader’s tone was a little smug… and a little uncertain.
John T. had read about the six-year-old in Virginia in custody for shooting a teacher and sounded a typical “kids these days” note.
“At least our ancestors never had to worry about whether to charge a child with a crime,” he wrote, with just that bit of smugness. And then the uncertainty crept in: “They didn’t, did they? I mean, I’m not going to find a criminal record on a little kid in my family history — am I?”
The Legal Genealogist hastens to inform John, and anybody else still indulging in the fantasy that people (including children) in the past were somehow better behaved than people (including children) are now, yes, yes, indeed, our ancestors did worry about that, enough so that there were standard rules on criminal liability for kids.
And those same rules continue to inform our English-common-law-based jurisprudence even today.
When it comes to holding someone liable — punishable — for criminal acts, the law is and has long been that “Infants, under the age of discretion, ought not to be punished by any criminal prosecution whatever.”1 What makes it complicated is that, historically, as now, “What the age of discretion is, in various nations is matter of some variety. ….”2
Back in the days of the Saxons, the dividing line between kids too young to have discretion and those who were old enough to be charged was 12 years. From 12-14 years of age, the particular understanding of the individual child would be considered. And at age 14, all were considered to have the discretion to understand right from wrong.3
In Civil Law countries, with legal systems stemming from the sixth century code of the Byzantine Roman Emperor Justinian, the dividing line was at 10.5 years of age. Kids younger than that weren’t held criminally responsible. From 10.5-14 years of age, the individual understanding of the child was considered. And, as with the Saxons, at 14, kids in civil law countries were deemed responsible.4
Along comes the English common law, and the rule was that “Under seven years of age indeed an infant cannot be guilty of felony ; for then a felonious discretion is almost an impossibility in nature…”5 For most other crimes, an infant, above the age of fourteen, is equally liable to suffer, as a person of the full age of twenty one.6
But when it came to capital crimes, the common law rule was “still more minute and circumspect; distinguishing with greater nicety the several degrees of age and discretion.” And “since the time of Edward the third” — he ruled from 1327-1377 — “the capacity of doing ill, or contracting guilt, is not so much measured by years and days as by the strength of the delinquent’s understanding and judgment.”7
Now I have to admit, Judge Blackstone in his Commentaries on the Laws of England, seems almost to delight in his explanation of this concept:
For one lad of eleven years old may have as much cunning as another of fourteen … if it appear to the court and jury, that he … could discern between good and evil, he may be convicted and suffer death. Thus a girl of thirteen has been burnt for killing her mistress : and one boy of ten, and another of nine years old, who had killed their companions, have been sentenced to death, and he of ten years actually hanged ; because it appeared upon their trials, that the one hid himself, and the other hid the body he had killed ; which hiding manifested a consciousness of guilt, and a discretion to discern between good and evil. And there was an instance in the last century, where a boy of eight years old was tried at Abingdon for firing two barns ; and, it appearing that he had malice, revenge, and cunning, he was found guilty, condemned, and hanged accordingly. Thus also, in very modern times, a boy of ten years old was convicted on his own confession of murdering his bedfellow ; there appearing in his whole behaviour plain tokens of a mischievous discretion : and, as the sparing this boy merely on account of his tender years might be of dangerous consequence to the public, by propagating a notion that children might commit such atrocious crimes with impunity, it was unanimously agreed by all the judges that he was a proper subject of capital punishment.8
So… do we see this in our laws in the United States?
Yep. A couple of examples:
• Massachusetts: “An infant, under seven years of age, is incompetent to commit a crime, Between the ages of seven and fourteen years, competency to commit any alleged crime … is to be determined by the evidence and circumstances of the case…”9
• New York: “Under seven years of age an infant cannot be guilty of a crime. Between seven and fourteen, an infant is prima facie adjudged to be incapable of crime; but this presumption may be repelled by positive evidence of vicious intention ; since the power of contracting guilt is measured rather by the strength of the delinquent’s understanding than by days and years. Persons above fourteen years of age are liable for crimes in like manner as those of full age.”10
• Utah: All persons are capable of committing crimes, except those belonging to the following classes: First–Children under the age of seven years; Second–Children between the ages of seven and fourteen years in the absence of clear proof that at the time of committing the age charged against them they knew its wrongfulness.11
And this isn’t just a matter of history. According to the National Juvenile Justice Network, as of May 2022, 26 states had specific laws providing a minimum age for criminal responsibility by children.12 Florida’s law creates liability for the youngest, at the age at seven. In Washington State, the age by law was eight. Sixteen — Arkansas, Arizona, Colorado, Kansas, Louisiana, Minnesota, Mississippi, Nevada, North Carolina, North Dakota, Pennsylvania, South Dakota, Texas, Vermont, and Wisconsin — pegged the age at 10. Nebraska set it at 11. Five states — California, Delaware, Massachusetts, New York and Utah — now set it at 12. And two — Maryland and New Hampshire — set it at 13.13
So don’t be surprised to find that criminal record for that kid in your family history, John.
Kids these days are no different than kids those days.
And the law isn’t much different now than then, either.
Cite/link to this post: Judy G. Russell, “Kids these days…,” The Legal Genealogist (https://www.legalgenealogist.com/blog : posted 11 Jan 2023).
- William Blackstone, Commentaries on the Laws of England, Book the Fourth: Of Public Wrongs (Oxford, England: Clarendon Press, 1769), 22; digital images, Google Books (https://books.google.com/ : accessed 11 Jan 2023). ↩
- Ibid. ↩
- Ibid., at 23. ↩
- Ibid., at 22. ↩
- Ibid., at 23. ↩
- Ibid., at 22-23. ↩
- Ibid., at 23. ↩
- Ibid., at 23-24. ↩
- §§1-2, Chapter 4: Capacity and Responsibility for Crime, in Report of the Penal Code of Massachusetts (Boston: State Printer, 1844), 4: 1; digital images, Google Books (https://books.google.com/ : accessed 11 Jan 2023). ↩
- George C. Edwards, A Treatise on the Powers and Duties of Justices of the Peace … New York (Ithaca: Mack, Andrus, and Woodruff, 1840) 202; digital images, Google Books (https://books.google.com/ : accessed 11 Jan 2023). ↩
- Act of 18 February 1876, §1852 in Compiled Laws of the Territory of Utah (Salt Lake City: Deseret News, 1876), at 569; digital images, Google Books (https://books.google.com/ : accessed 11 Jan 2023). ↩
- Presumably the other jurisdictions continue to follow the common law’s minimum age of seven. ↩
- Raising the Minimum Age for Prosecuting Children, National Juvenile Justice Network (https://www.njjn.org/ : accessed 11 Jan 2023). ↩
We are currently having that societal conversation in Australia.
It is complicated by the possibility that in some areas there are racial implications: that maybe in some locations some crimes are more prevalent or more noticeable because the children are not white. Or that whatever the laws, the justice system tends to apply them unevenly. Some of this is class-based: people who can’t afford a lawyer and have to work all hours just to get by can’t be supervising children at the same time. Their children will tend to receive custodial or institutional treatment.
History shows that when children offended in 19C and all parties were white, solutions were found. So there is hope.