[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 fourteen[111]—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.