Email concerning Age of Accountablity

Dear Esteemed and Illustrious Hosts:

I am always struck by the questions regarding the age of accountability and the wonder that people have when they learn that it is not found in Scripture. Many would be surprised to learn that it is an ancient legal doctrine developed to address the issue of children who commit crimes or civil torts. I reproduce here for the benefit of your listeners a Section II of Volume IV of the 17th Century Commentaries of WIlliam Blackstone on the common law of England which forms the basis for our American law system.

In part 1 here, Blackstone discusses the capacity of infants to commit crimes. He gives a good summary of the develpment of the legal doctrine over time and the questions with which the law wrestled. I have higlighted some of passages that inform the understanding of the age of accountability as used theologically.

1. FIRST, we will consider the case of infancy, or nonage ; which is a defect of the understanding. Infants, under the age of discretion, ought not to be punished by any criminal prosecution whatever a. What the age of discretion is, in various nations is matter of some variety. The civil law distinguished the age of minors, or those under twenty five years old, into three stages : infantia, from the birth till seven years of age ; pueritia, from seven to fourteen ; and pubertas from fourteen upwards. The period of pucritia, or childhood, was again subdivided into two equal parts ; from seven to ten and an half was aetas insantiae proxima ; from ten and an half to fourteen was aetas pubertati proxima. During the first stage of infancy, and the next half stage of childhood, insantiae proxima, they were not punishable soar any crime b. During the other half stage of childhood, approaching to puberty, from ten and an half to fourteen, they were indeed punishable, if found to be doli capaces, or capable of mischiefs ; but with many mitigations, and not with the utmost rigor of the law. During the last stage (at the age of puberty, and afterwards) minors were liable to be punished, as well capitally, as otherwise.

THE law of England does in some cases privilege an infant, under the age of twenty one, as to common misdemeanors; so as to escape fine, imprisonment, and the like: and particularly in cases of omission, as not repairing a bridge, or a highway, and other similar offences c: for, not having the command of his fortune till twenty one, he wants the capacity to do those things, which the law requires. But where there is any notorious breach of the peace, a riot, battery, or the like, (which infants, when full grown, are at least liable as others to commit) for there an infant, above the age of fourteen, is equally liable to suffer, as a person of the full age of twenty one.

WITH regard to capital crimes, the law is still more minute and circumspect; distinguishing with greater nicety the several degrees of age and discretion. By the ancient Saxon law, the age of twelve years was established for the age of possible discretion, when first the understanding might open d: and from thence till the offender was fourteen, it was aetas pubertati proxima, in which he might, or might not, be guilty of a crime, according to his natural capacity or incapacity. This was the dubious stage of discretion: but, under twelve, it was held that he could not be guilty in will, neither after fourteen could he be supposed innocent, of any capital crime which he in fact committed. But by the law, as it now stands, and has stood at least ever since the time of Edward the third, the capacity of doing ill, or contracting guilt, is not so much measured by years and days, as by the strength of the delinquent's understanding and judgment. For even a lad of eleven years old may have as much cunning as another of fourteen; and in these cases our maxim is, that “malitia supplet aetatem.” (Malice Supplies the Age). Under seven years of age indeed an infant cannot be guilty of felony e; for then a felonious discretion is almost an impossibility in nature: but at eight years old he may be guilty of felony f. Also, under fourteen, though an infant shall be prima facie adjudged to be doli incapax; yet if it appear to the court and jury, that he was doli capax, and could discern between good and evil, he may be convicted and suffer death. Thus a girl of thirteen has been burnt for killing her mistress: and one boy of ten, and another of nine years old, who had killed their companions, have been sentenced to death, and he of ten years actually hanged; because it appeared upon their trials, that the one hid himself, and the other hid the body he had killed; which hiding manifested a consciousness of guilt, and a discretion to discern between good and evil g. And there was an instance in the last century, where a boy of eight years old was tried at Abingdon for firing two barns ; and, it appearing that he had malice, revenge, and cunning, he was found guilty, condemned, and hanged accordingly h. Thus also, in very modern times, a boy of ten years old was convicted on own confession of murdering his bedfellow ; there appearing in his whole behaviour plain tokens of a mischievous discretion : and, as the sparing this boy merely on account of his tender years might be of dangerous consequence to the public, by propagating a notion that children might commit such atrocious crimes with impunity, it was unanimously agreed by all the judges that he was a proper subject of capital punishment i. But, in all such cases, the evidence of that malice, which is to supply age, ought to be strong and clear beyond all doubt or contradiction. William Blackstone, Commentaries on the Law of England, Book IV, Article II, http://avalon.law.yale.edu/18th_century/blackstone_bk4ch2.asp

So what does this mean? As Blackstone demonstrates, the age of accountability in law was a bit like pinning jello or the medieval equivalent to the wall. There is not a bright line rule that that we can point to that says that at at all times and in all places this is the age at which a child knows right from wrong and is treated like adult members of society. Instead, a sliding scale has developed in the civil law to deal with children, and we have agreed as a society to draw some lines.

Historically, the law presumes that a child under the age of seven is incapable of committing a crime or a civil wrong because a child under the age of seven lacks the capacity and understanding to distinguish between right and wrong. Between the ages of seven and fourteen, a child there is a rebuttable presumption that the child is incapable of committing a crime or civil wrong. In order to hold such a child accountable, there must be affirmative evidence brought forward to demonstrate that the child was of such maturity of mind and sufficient discretion that s/he was capable of distinguishing between right and wrong. A person 14 years and older is presumed by the law to be accountable for his actions and capable of committing crimes and civil wrongs.

This is the historical development of the law of the age of accountability and may not necessarily be the law in all states in our country given the advent of the juvenile justice system, the rise of insurance, parental responsibility laws, etc. These principles are still discussed in the law and inform lawyers' handling of civil claims. You can see also that these principles have influenced the church. In the LCMS it can be seen in the generally acceptable age for confirmation and first communion as being around the age of 14 with the rationale being not that children are at that age finally capable of discerning right from wrong, but that they are finally capable of self-examination at that point. In Baptist and other circles, these principles form the basis for a rejection of infant baptism, give rise to the rejection of original sin and the notion that we are born morally neutral and incapable of sinning (not all Baptists believe this), and allow for other teachings such as believer's only baptism, soul competency, and decision theology.

Andrew in Franklin, TN