[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 years, which prevailed in Anglo-Norman days, was afterwards disregarded in criminal cases.[123] We read in the Northumberland Assize Roll, A.D. 1279, “Reginald … aged four, by misadventure slew Robert … aged two; the justice granted that he might have his life and members because of his tender age.”[124] A little later we hear that a child under the age of seven shall not suffer judgment in a case of homicide.[125] In 1457, an infant of four was held liable in trespass, though the language of the court shows a disposition to exempt the infant.[126] From the eighteenth century instances are recorded of a girl of thirteen who was burnt for killing her mistress, and of a boy of eight who was hanged for arson.[127] In 1748, a boy of ten, being convicted for the murder of a girl of five, was sentenced to death, and all the judges to whom this case was reported agreed that, “in justice to the publick,” the law ought to take its course. The execution, however, was respited, and the boy at last had the benefit of His Majesty’s pardon.[128] It appears from these facts, and from others of a similar character referring to continental countries,[129] that there has been a tendency to raise the age at which full legal responsibility commences. And we have reason to hope that legislation has not yet said its last word on the subject.
[115] Senfft, in Steinmetz, Rechtsverhältnisse, p. 449 (Marshall Islanders). Miklosich, ‘Blutrache bei den Slaven,’ in Denkschriften d. kaiserl. Akadamie d. Wissensch. Philos.-hist. Classe, Vienna, xxxvi. 131 (Turks of Daghestan). See also supra, [p. 217] sq.
[116] Lang, in Steinmetz, Rechtsverhältnisse, p. 257 (Washambala).
[117] Iliad, xxiii. 85 sqq. Cf. Müller, Dissertations on the Eumenides, p. 95.
[118] Nicole, in Steinmetz, Rechtsverhältnisse p. 132 (Diakité-Sarrakolese). Marx, ibid. p. 357 (Amahlubi).
[119] Dennett, in Jour. African Society, i. 276.
[120] Wigmore, ‘Responsibility for Tortious Acts,’ in Harvard Law Review, vii. 447.
[121] Wilda, Strafrecht der Germanen, p. 642 sq. Nordström, Bidrag till den svenska samhälls-författningens historia, ii. 73. Cf. von Amira, Nordgermanisches Obligationenrecht, i. 375 sq.
[122] Grágás, Vigsloþi, 32, vol. ii. 63.