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).
103 Code Pénal, art. 66 sqq.
104 Stephen, op. cit. ii. 98. Kenny, Outlines of Criminal Law, p. 50.
105 Strafgesetzbuch, 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.”
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
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).
111 Ancient 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.
114 Ta Tsing Leu Lee, sec. xxii. sq.
According to early custom, children who have committed an injury are sometimes,115 but not always,116 subject to the rule of retaliation. Even in Homeric Greece, manslaughter committed in childhood seems to have been visited with banishment for life.117 In other cases parents are responsible for the deeds of their children.118 Among the West African Fjort, for instance, children are not themselves liable for their actions, but the injured party can claim compensation from the parents if he likes to do so.119 Among the Teutons, “like the master for the slave, the father answered for and made claims on behalf of the child. The ceremony of investing him with arms as a wehrhaft, or weapon-bearing member of the community, was the usual period for the assumption of rights and liabilities; and this customarily (not always) took place at the age of twelve.”120 According to ancient Swedish law, an injury was treated in the same way as if it had been accidental, in case the offender was under the age of fifteen;121 according to the Icelandic Grágás, in case he was under sixteen.122 However, as we have seen, accidental injuries had to be paid for. Where offences are dealt with according to the principle of compensation, it is impossible to decide how far parents’ liability for their children involves a recognition of the moral irresponsibility of the child, or is simply due to the fact that children, having no property, are themselves unable to compensate. That the latter point of view was largely adopted by early custom and law appears from the fact that, when compensation was succeeded by punishment, the period of irresponsibility was reduced. In England the age-limit of twelve