The origin and development of the moral ideasWestermarck, Edward
Philosophy
The origin and development of the moral ideas
Westermarck, Edward
Ethics; Ethics -- History; Prehistoric peoples
[Footnote 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).]
[Footnote 111: _Ancient Laws of Ireland_, iii. 157.]
[Footnote 112: Katz, _Grundriss des kanonischen Strafrechts_, p. 8.]
[Footnote 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.]
[Footnote 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
{268} 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
Public-domain text, read in full here on John Shaqi.
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