[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.
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]