fixed the age of twenty-one years it is probable that he had in view, not any analogy between teacher and parent, but the ages of those who might lawfully attend school. Only youth between the ages of five and twentyone years of age are, of right, entitled to attend the public schools. But if a child a few months younger than five years should, by misrepresenting his age, or by mere sufferance, be allowed to attend school and enjoy its privileges and advantages, would a teacher be liable to a prosecution for assault and battery, if he should inflict reasonable and moderate chastisement upon such pupil for conduct tending to destroy the order of the school and lessen the means of imparting instruction to others? Manifestly, it seems to us he would not. And if a person a few months more than twenty-one years of age should, by the like sufferance or misrepresentation, be allowed to become a pupil in a school, upon what principle could such person claim all the privileges and advantages which belong only to persons under the age of twenty-one years, and at the same time be granted immunity from the reasonable corporal inflictions which may legally be imposed upon a person under twenty-one years of age? A person over twenty-one years of age becomes a pupil of his own voluntary act. If he does so, and thus of his own will creates the relation of teacher and pupil, and claims privileges and advantages belonging only to those under age, he thereby waives any privilege which his age confers. These views are fully sustained by the case of Stevens v. Fassett.1 In this case, on page 287, the court say: "But it is insisted that, if such is the authority of the teacher over one who is, in legal contemplation, a scholar, the same can not apply to the case of one who has no right to attend the school as a pupil. It is not necessary to settle the question whether one living in the district and not being between the ages of four and twenty-one years, can, with propriety, require the instruction of town schools. If such does present himself as a pupil, is received and instructed by the master, he can not claim the privilege, and receive it, and at the same time be subject to none of the duties incident to a scholar. If disobedient, he is not exempt from the liability to punishment, so long as he is treated as having the character which he assumes. He can not plead his own voluntary act, and insist that it is illegal, as an excuse for creating disturbances, and escape consequences which would attach to him either as a refractory, incorrigible scholar, or as one who persists in interrupting the ordinary business of the school." The prosecuting witness in this case, although within fifteen days of being twenty-one years of age, told the defendant that she was twenty years of age. This could have been done for no other purpose but that 1 27 Me. 266. of deceiving the defendant as to her age, and securing privileges and advantages to which the law did not entitle her. She voluntarily assumed the position of pupil, claimed its rights, and took upon herself its duties, and she thereby conferred upon her teacher his correlative rights and duties. The court should have permitted the defendant to prove that the whipping was a reasonable chastisement of the prosecuting witness as his pupil, for misconduct in school, and should have left it to the jury to determine whether or not the whipping was, under all the circumstances, reasonable. In rejecting the testimony offered, and in giving the instructions complained of, the court erred. Reversed. NOTES. § 45. Child Under Seven can not Commit Crime. A child under seven years of age can not commit a crime.1 - -Be § 46. Child Under Fourteen, but Over Seven Presumed Incapable. tween the ages of seven and fourteen, a child is presumed incapable of committing a crime. "An infant above seven, but under fourteen years of age, is presumed not to have such knowledge and discretion as would make him accountable for a felony committed during that period." 3 "Out of tenderness to infants, the ease with which they may be misled, their want of foresight and their wayward disposition, * * * the evidence of malice, which is to supply age, should be strong and clear beyond all doubt and contradiction." § 47. Sketch of the History of the Law- Mr. Green's Note. — In a note to the first volume of his Criminal Reports Mr. Green has given an exhaustive. sketch of the history of this exception. He says: By the following extracts from the Anglo-Saxon laws it appears that criminal liability did not by the early English law commence at the age of seven years. By the laws of King Ina, of the West Saxons, it was enacted: "If any one steal so that his wife and children know it not let him pay sixty shillings as wite [fine]. But if he steal with the knowledge of all his household, let them all go into slavery. A boy of ten years may be privy to a theft."5 By the laws of King Canute, it was enacted, "And if a man bring a stolen thing home to his cot, and he be detected [by the owner]; it is just that he [the owner] have what he went after. And unless it has been brought under his wife's key lockers, let her be clear; for it is her duty to keep the keys of them; 1 Marsh v. Loader, 14 C. B. (N. 8.) 535 (1863); Willet v. Com., 13 Bush, 230 (1877); State v. Goin, 9 Humph. 175 (1818); State v. Doherty, 1 Tenn. 80 (1806); State v. Learnard, 41 Vt. 585 (1869). 2 Willet v. Com., 13 Bush, 230 (1877); R. v. Owen, 4 C. & P. 236; Godfrey v. State, 31 Ala. 323 (1858); Wusnig v. State, 33 Tex. 651 3 Godfrey v. State, 31 Ala. 323 (1858). namely, her store-room, her chest, and her cupboard. If it be brought under any of these, then she is guilty. And no wife may forbid her husband that he may not put into his cot what he will. It was in this that the child, which lay in his cradle, though it had never tasted meat, was held by the covetous to be equally guilty as if it had discretion. But henceforth I most strenuously forbid it, and also very many things that are hateful to God."1 By the same laws: "And we will that every man above twelve years make oath that he will neither be a thief or cognizant of theft."2 The laws of King Ethelstan: "That no thief be spared who may be taken with the stolen goods upon him, above twelve years of age and above eight pence." By the ordinances of London it is enacted: "That no thief be spared, over twelve pence, and no person over twelve years, whom we learn according to folk-right (the customary law of the land), that he is guilty and can make no denial; that we slay him and take all he has," etc.5 And again, by the same ordinance it is declared: "That the King now again has ordained to his 'witan' at 'Witlanburh,' and has commanded it to be made known to the archbishop, by Bishop Theodred, that it seemed to him too cruel that so young a man should be killed, and besides for so little, as he has learned has somewhere been done. He then said that it seemed to him, and to those who counseled with him, that no younger person should be slain than sixteen years, except he should make resistance or flee, and would not surrender himself; that then he should be slain, as well for more as for less, whichever it might be. But if he be willing to surrender himself let him be put into prison, as it was ordained at Greatlanlea' and by the same let him be redeemed." * * Lord Hale says: 8 "Experience makes us know that every day murders, bloodsheds, burglaries, larcenies, burning of houses, rapes, clipping and counterfeiting of money, are committed by youths above fourteen and under twentyone; and if they should have impunity by the privileges of such their minority, no man's life or estate could be safe." He also says: "The laws of England * that always affect certainty, determined anciently the ætas pubertati proxima to be twelve years for both sexes; under that age none could be regularly guilty of a capital offense, and above the age and under fourteen years, he might or might not be guilty according to the circumstances of the fact that might induce the court and jury to judge him doli capax vel incapax.” Hale sees nothing unreasonable in the change of the age at which criminal responsibility may commence from twelve to seven years, for he adds: 10 "Now, let us come to the common law as it stood in after times; for in process of time, especially in and after the reign of King Edward III., the common law received a greater perfection, not by the change of the common law, as some have thought, for that could not be, but by the act of Parliament; but men grew to greater learning, judgment, and experience, and rectified the mistakes of former ages and judgments, and the law in relation to infants and their punishments for capital offenses was and to this day is as followeth: " And he then states the law substantially as it is quoted from Blackstone. The age of seven as the termination of the period of absolute non-responsibility and the age of fourteen as the commencement of full responsibility for crimes was adopted in the English from the Roman law and arose from a mistaken understanding of that law. The history of the matter, unlike many things in the English law, can be traced to its origin. In the early period of the Roman law all legal acts were performed by means of consecrated formulas- by sacramental words which the parties themselves must pronounce: no agency in the matter being permitted. One who could not pronounce the required words- either because of natural defect or because from his extreme youth he as yet had not acquired the power of articulation — could therefore perform no judicial act. An infant infans (qui fari non potest) was one who was thus incapacitated because he was too young to talk. The word had a strictly material sense. The period at which one ceased to be an infant, therefore varied in each case. When he could articulate then, with the authorization of his tutor, he could perform judicial acts. At the same period of the Roman law, one who had arrived at puberty, pubes, had the free disposition of his goods. This word also had the same material meaning. The age of puberty, if questioned in any given case, was determined according to the fact; it varied with the tardy development or the precocity of the individual. But though a child could talk he was not on that account alone considered to have understanding. Until he approached the age of puberty he was considered to be without understanding. It was an ancient opinion in philosophy, an opinion which still has supporters, that the human organization undergoes a fundamental change at stated periods of seven years. Influenced by this opinion some of the Roman lawyers wished to fix uniformly the age of puberty at fourteen years in all cases, and to fix the age of seven years as the age at which a child arrives at understanding. The Emperor Theodosius fixed the age of infancy for one purpose at seven years. The formal parts of the old Roman law having at this time lost much of their force and the old meaning of the term infant having lost much of the significance, from this time it acquired the meaning of a child under seven years of age "Infanti, id est minorem septem annis." Justinian fixed the age of puberty for a man at fourteen years. But in the Roman law not only infants but those who were nearer in infancy than puberty, were incapable of committing crime. Till ten and a half if a male, till nine and a half years of age if a female, the child was considered proximus infantiæ and incapable of committing crime, non doli capax. From that age till the age of puberty (twelve or fourteen years according to the sex), there was a presumption of incapacity, subject to be rebutted by contrary proof according to the maxim malitia supplet ætatem, and the child could be punished "si proximus pubertati sit et ob id se delinquere." But in such case a less punishment must be inflicted. Pupillus mitius punitur. This doctrine, even to the point of holding that one under the legal age of puberty is physically incapable of committing rape, has been transplanted into the English law, with the exception that a mistake was made in overlooking the fact that an infant was not a child in arms, but one under seven years of age, and that therefore one nearer in infancy than puberty (proximus infantia) was not a child under seven years of age, but was a child under ten and a half. Other nations have understood the spirit of the Roman law more correctly. By the old French law one under the age of puberty was incapable of committing crime. By the common law of Germany there could be no guilt before the age of fourteen. By the Austrian code a responsibility commences at the age of ten, but an offense committed by one under the age of fourteen is punished only like an infraction of a police regulation. By the penal code of Bavaria the period of irresponsibility ceases at the age of eight years, but offenses committed by children between the ages of eight and twelve can only be punished by corporal chastisement or by imprisonment from two days to six months. Between the ages of twelve and sixteen the punishment is mitigated. By the penal code of Spain a child is irresponsible till he is nine years old; the punishment is mitigated till eighteen. By the code of Piedmont a child is held to be irresponsible till he is fourteen years old; from fourteen years of age till twenty-one the punishment that can be inflicted is less than that that can be inflicted upon an adult. By the laws of Parma, Naples, Piedmont, and Spain no person under eighteen years of age can be condemned to death. In the State of Arkansas criminal liability does not commence till the age of twelve; in Colorado, Georgia, Illinois, and Nebraska till ten; in Texas till nine; and in the latter State no person under seventeen years of age can be punished capitally. By Livingston's Criminal Code for the State of Louisiana, it is provided: -"Art. 29. No person shall be convicted of any offense committed when under nine years of age; nor of any offense when between nine and fifteen years of age, unless it shall appear by proof to the jury that he has sufficient understanding to know the nature and illegality of the act which constituted the offense." "Art. 30. If a minor shall commit an offense by command or persuasion of any relation in the ascending line; of his tutor or curator, or any person acting as such; or of his master, if he be an apprentice or servant, then the minor shall be punished for such offense by simple imprisonment, during one-half of the time to which he would have been sentenced had he been of full age. Provided such minor have attained the age of fifteen years at the time of the commission of the offense; if under that age the command or persuasion of either of the persons, standing in either of the relations to him which are above enumerated, shall excuse him from punishment, if the offense committed be a misdemeanor only; but if the offense be a crime, such minor under fifteen years of age shall be committed to the school of reform, for the purpose of being instructed in some trade, in the manner particularly provided for in the Code of Reform and Prison Discipline. And in all cases of crimes committed by minors, under the age of eighteen years, except those punished by imprisonment for life, the court may direct that the offender be, either in lieu of or in addition to, the punishment generally provided for the offense be so committed to the school of reform." According to Blackstone, "the capacity of contracting guilt" is measured "by the strength of the delinquent's understanding and judgment." How much understanding and judgment, and understanding of what, and judgment exercised upon or about what, must an infant have to be a proper subject of punishment? Blackstone speaks of "cunning," of the maxim "malitia supplet ætatem," of "felonious discretion," of "doli capax," of "ability to discern between good and evil,” of “a consciousness of guilt " of "a discretion to discern between good and evil," of "malice, revenge, and cunning," and of |