EARLY AND INCIDENTAL LEGISLATION The foregoing sections have dealt with conditions which demanded only unwritten law. Furthermore, nothing is observable, as a rule, which concerns itself with the special class now so well differentiated as to bear the name "juvenile delinquent." Such a class implies closely formulated laws and machinery for enforcing them, and something akin to modern urban life, with dense population, and life in many respects abnormal and loose. What early child life was and what forces controlled it were the real inquiries. Having ascertained some of the facts, we are ready to proceed to the study of some of the early and incidental legislation which is a sure index of the emergence of the class giving rise to our inquiries. The earliest recognition of the rights of children was evidently in regard to property. As a matter of policy the early Cæsars granted to soldiers the right to retain all properties acquired in war; it no longer belonged to their fathers. In 178 A. D. it was decreed that mother and son should stand in immediate line of succession, an evidence of the fast-growing feeling of the leading jurists. 1 In the Justinian code of 527 the laws of family, property and succession were so changed that we may say that legally the child had become a person. 2 But progress was exceedingly slow. "In the seventh century even the church was compelled to allow that in case of necessity an English father might sell into slavery a son who was not yet seven years old. An older boy could not be sold without his consent. 3 The same was true on the Continent among the Teutons even late in the Middle Ages, although the exercise of the right seems to have become obsolete. 4 In this general attitude towards the child in the law of domestic relations there was promise of emancipation. But there was still another obstacle. The delinquent child must come under the criminal law, and there were yet centuries to come before there could be clear distinction between child and adult on this basis. Punishment took little account of the person committing a forbidden act, or his motive; its prime consideration was the act, or the one injured, and its spirit that of vengeance. So long as this was true, a criminal was a criminal, irrespective of his age, and the only possible alleviation of the situation was, if the delinquent were a child, to neglect to bring him to trial at all, to ignore his delinquency, which was neither wise nor common. I Lee, "Historical Jurisprudence," pp. 266-7. 2 Ib. 306-7. 4 Hearn, “Aryan Household," 93. The early observation of the close bond between dependency and delinquency furnished another working direction. Children who were neglected or vagabond inevitably failed to observe laws. To prevent such from becoming delinquent was the aim of much of the early, incidental legislation. The Apprenticeship laws of the time of Henry the Eighth (1491-1547) provided that children between the ages of 5 and 14 who were found begging or unemployed were to be apprenticed to tradesmen. Under Elizabeth (15331603) they were sent to the workhouse. In 1756, a society was formed which furnished clothing for these unfortunates and sent them off to sea whenever possible. The Philanthropic Society in 1788 founded the Farm school at Redhill-the forerunner of many private institutions soon to follow. All this was preventive work, but often of a doubtful sort. SPECIAL LEGISLATION IN VARIOUS STATES 1. England. While the patria potestas had full force in Rome, the father was responsible for the acts of his children just as he was as owner responsible for the acts of his slaves and animals. 1 But when this was broken up and the child became legally a person, there went along with what rights he had certain responsibilities. In criminal law there grew up a feeling that the child under seven should be held responsible for nothing. Among the Germanic peoples usually the child did not assume rights and responsibilities until the age of twelve, when he was formally invested with the implements of war. Early English law hesitated between the two ages. In Anglo-Norman days the age of twelve was favored, "while a seven-year limit appears in later criminal law as the subject of a presumption against criminal intent," the influence being probably Roman. 2 At the same time there was a strong tendency in practice to consider the intent of the action immaterial. Thus, whenever there was manifested a disposition to exempt the infant from punishment because of his tender years, it was forbidden because age and intent theoretically had nothing to do with the case. Until the person became the centre of attention in criminal cases, the feelings of judge or lawyer had to be satisfied if at all under the guise of some device or irregularity. Early in the seventeenth century the infant was ranked with the lunatic as "liable civilly on the ground that the intent (i. e. bad intent, bad motive) was immaterial.” 3 This was a miserable compromise. Gradually the Roman influence grew until it became English common law that the child under 7 was exempt from punishment as incapable of entertaining criminal intent. A like presumption was allowed for those between 7 and 14, but it might be rebutted. After 14 one was presumed to have sufficient capacity and must affirmatively show the contrary. 4 It is not necessary to follow this development closely; the emergence of the child as a legal、 person is clear in the observation of typical cases here and there in legal history. There was no significant movement in England before the second quarter of the nineteenth century. The law of August 10, 1838, provided for the establishment of a juvenile prison at Parkhurst, and the treatment of the inmates was left largely to the discretion of the officials. The preamble to the law indicates that I O. W. Holmes, The Common Law, pp. 6 ff. 3 Ib. vii, 448. |