Children and the Criminal Law in Connecticut, 1635-1855

Changing Perceptions of Childhood

Nancy Hathaway Steenburg

• Publisher: Routledge
• Year: 2020
• ISBN:
  9781000143706
• Edition: 1
• Topic: Education
• Subtopic: Early Childhood Education

This book presents an intelligent overview into the driving forces that shaped American history in the Northeast. It draws on primary documents such as farmer's diaries, small rural papers of the 19th century, and the publications of state agricultural societies.

Chapter One Protecting Property, Correcting Children: Prosecuting Theft and Arson

If any person, whether children, servants or others, shall bee taken or known to robb any orchard or garden ... or any other goods left out in orchards, gardens, backsides, or other place ... or other goods from mens dores or yards, he shall forfeit treble damages to the owner thereof, and such severe punishment as the Court shall think meet.

—The Code of 1650

Law is the rule of human conduct in a state of society.

—Zephaniah Swift A System of the Laws of the State of Connecticut 1795

Inconsistency in Connecticut’s treatment of minors under its laws in the seventeenth and eighteenth centuries was perhaps most obvious in prosecutions of children charged with theft, burglary, and arson. The clear legal distinctions between children and adults in some statutes and the lack of similar differentiation in others reflected the colonists’ conflicting interests in protecting property and in providing any sort of special status for children who transgressed the laws. In most early cases laws that protected property did not provide special treatment for minors. For example, the first law in the Code of 1650 set forth the age of adulthood. “All persons of the age of twenty-one years, and of right understanding and memory” had the power to pass real estate by wills, enter into contracts, and act as plaintiffs in civil law suits. Those males who were twenty-one also could become freemen, vote, and serve on juries. Yet the directive that “no person under the government of parent, master or guardian” could make a valid contract complicated the question of the age of majority. Some young adults over the age of twenty-one were still clearly under at least the informal control of their fathers. Were they adults or not? When Zephaniah Swift examined the laws of Connecticut in 1795, he tried to clarify the definition of the age of adulthood by saying that “full age is twenty-one for males and females, when children are capable of acting for themselves and are liberated from the government of their parents.” Yet his definition still did not take into account the dependent status of some who were over the age of twenty-one.¹

Adding to the confusion over the age of majority was that over the first two hundred years Connecticut laws had differing definitions of the age of responsibility under different laws. Seventeenth-century Connecticut had one age as the age of responsibility in its tax policy, requiring payment of the full rate of two shillings sixpence per head on all males of sixteen years of age or older. Children who earned their own wages were responsible for their own taxes, a seemingly adult responsibility; for those who did not work, their parents had to pay the rates. By the late eighteenth century the age for full liability for personal taxes had changed; the rate due for boys from sixteen to twenty-one was nine pounds, half the rate assessed on those twenty-one and older, yet teens who worked were still responsible for making their own tax payments. In the 1850s, only white males over the age of twenty-one were responsible for such taxes.² Several other laws designated differing ages of responsibility for males in the colony. In the seventeenth century all males above the age of sixteen had to take an oath of fidelity to the colony and bear arms in the town militias. Surprisingly, by the 1740s the colony’s law not only directed that all males of sixteen years of age or older must serve in the militia, but it also mandated that “all who bear arms will have the liberty to vote in the choice of commission officers,” giving teens a limited right to vote. After the American Revolution, the state raised the age for military service to eighteen, perhaps to parallel the age requirement for service in the American army, yet still permitted all to vote for company officers. Differing ages led to differing demands for labor from minors. By the early eighteenth century, the colony directed that every male from fourteen years of age had to labor one day a year to clear underbrush on town commons, but only males of sixteen or older owed the towns an additional two days of work per year for mending and repairing highways. This reflected, perhaps, recognition of the differing physical abilities of teens of different ages. In another example of inconsistency, the law against lying recognized gradations in the capacities of children, directing one form of punishment for those over fourteen, “the age of discretion,” and a milder punishment for those under fourteen.³ Such laws revealed that those who wrote the laws had some understanding that children of differing ages had different capacities and responsibilities.

Another problem complicated the differentiation between childhood and adulthood. In Connecticut, people under twenty-one had few legal rights or protections, yet when the colony did recognize the need to protect them, the requisite age varied depending on the legal issue at stake. One early right specifically allotted to minors was the right to choose a guardian if a child had no living parent to manage his or her property or provide for his or her education. The colony originally set the age for selecting a guardian at fourteen. For younger children, the magistrate or selectmen could designate a guardian. By 1702, the General Assembly lowered the age for choosing a guardian to twelve for girls but kept it at fourteen for boys. Did girls have better “understanding” than boys of a similar age? Inheritance practice also differentiated between the age of adulthood for boys and girls. Most wills directed that sons would inherit when they reached twenty-one but that daughters would inherit at the age of eighteen. Another of the seventeenth-century laws supported a different definition of the age of maturity, identifying twenty as the age of adulthood for smoking. The law directed that persons under that age could not take tobacco without a certificate from a physician and a license from the court. A law to restrict drinking passed in 1703 clouded the issue because it prohibited licensed innkeepers from selling alcohol to “either men’s sons, apprentices, servants, or negroes” without a special order from the respective parent or guardian. With no specific age designated in the act, the law could easily apply to adult males who still lived at home with their fathers.⁴ Nevertheless, where it counted most, under the criminal law, lawmakers in Connecticut designated those twenty-one and older as adults and those under twenty-one as minors or infants, a term used to indicate the person was under the age of twenty-one.

Despite this recognition of differing limitations and obligations of minors, the actual language of most of the criminal laws of the colony of Connecticut recognized little difference between adults who broke the laws and minors who broke the same laws. Especially in crimes dealing with the theft or the destruction of private property, the legal system was far more interested in protecting the rights of the property owners than in safeguarding the rights of the children accused. Only gradually did the laws provide procedural protections for children who committed crimes. Crimes against property comprised the majority of criminal charges involving children, though court cases involving known minors represented less than three percent of the cases tried in the county courts. Yet, in the statutes themselves and, more to the point, in the punishments imposed on children, the legal culture revealed a system that was not monolithic. The criminal code had similar, often paired goals for dealing with breaches of the law by both adults and children, directed at restitution when possible and retribution when necessary. Nevertheless, many criminal laws operated less stringently when applied to minors. This implied that adults recognized some differences in the capacity of children of different ages to understand the consequences of their acts.

Although the common law adopted from England maintained the presumption that a child under seven lacked the discretion necessary to commit a crime and that children between seven and fourteen generally lacked criminal capacities, most early Connecticut statutes concerning the criminal laws did not specifically differentiate between children and adults. As already mentioned, one notable exception was the law specifying fourteen as the age of discretion for lying. In its earliest form, this law directed that parents or masters of children under the age of fourteen convicted of lying had to correct the child for the crime in the presence of a colonial officer at the direction of the magistrate.⁵ In contrast for most other crimes, especially those against property, the early legal code initially did not officially recognize a diminished legal capacity for children. Despite that early limitation, between the 1600s and the mid-nineteenth century the laws did register an eventual recognition that children, not just those between the ages of seven and fourteen, at some times did have less capacity than adults to understand the consequences of their actions. Writing in his System of the Laws of the State of Connecticut in 1796, Zephaniah Swift addressed the issue of the general criminal responsibility of children as well as the issue of their liability for specific thefts. He reasserted the common law idea that children under the age of seven were incapable of committing a crime and said that for the period between seven and fourteen, the presumption was that children were in the “doubtful period.” The child’s capacity to tell the difference between good and evil would be the determining factor in holding him or her fully responsible for criminal actions. The key, according to Swift, was not the specific age of the child but the strength of that understanding. In the case of petty theft, such as stealing fruit from a tree, Swift claimed that by the 1790s in Connecticut the courts treated the crime as a trespass rather than theft and prohibited the jailing of those under twenty-one.⁶

THEFT AND BURGLARY

Despite Swift’s assertion that the authorities treated children convicted of theft with less severity, early prosecutions of children charged with crimes against property in Connecticut revealed colonists trying to reconcile their desire to protect their possessions with their changing view of the responsibility of minors for their actions. An important example of this transformation of the statutory treatment of children under Connecticut criminal law starting in the seventeenth century appeared in the various statutes against theft. In the colony’s initial law prohibiting theft, the statute directed that anyone who broke into a house and stole goods or who stole from any person “shall be branded on the forehead with the letter B.” For a second theft or burglary, the punishment included a second branding and a severe whipping; a third offense resulted in the death sentence. The law did not specifically exempt children of any age from the punishments. More to the point, for the prevention of pilfering and petty thefts, seventeenth-century Connecticut law directly named children as among those who might steal fruit or clothing from gardens or yards, or take wood or goods lying outside boatyards or houses. Perhaps because there was no threat to the lives or safety of the property owners in such minor thefts, valued at less than forty shillings, the punishment could be mild. The act directed that any person or child who committed this type of theft would have to pay triple damages to the owners of the pilfered goods. On the other hand the law did not order branding of the culprit. Nevertheless, the law allowed the magistrates to implement other punishments as they saw fit, such as sitting in the stocks, whipping, or even incarceration. This discretion could mitigate the punishment against a child who was merely mischievous or hungry or could increase the penalty against a child who stole property and then sold it. Nevertheless, as written, the law permitted and in fact potentially directed the incarceration of children as young as eight along with adult thieves from the community. That children did serve sentences in the houses of correction was clear from a 1737 amendment to the law against theft that specifically directed that when the earnings of a prisoner in the workhouse “will not pay the costs of his support or sickness in the house of correction” the prisoner’s parents, master, or town of origin were responsible to make up the difference.⁷

Perhaps because most of the laws themselves rarely differentiated between the criminal capacity of adults and children, the actual cases involving theft in the seventeenth-century records reveal a society whose legal procedure initially dealt with children as though they were adults. At the same time magistrates apparently had considerable discretion in imposing sentences beyond the fines and could potentially shield children from the consequences of their actions and thus from the full power of the law. This potential protection was notable because in seventeenth-century Connecticut no colonial law specifically mandated legal representation for minors facing criminal prosecutions. Many of the criminal cases involving thefts by minors appeared at the hearings by local justices of the peace who certainly should have known the ages and identities of children in their communities. Yet rarely did the surviving court documents from the seventeenth century record the justice of the peace notifying a responsible adult of the proceedings or calling a parent or master into court to protect the child’s interests. In an early example, in 1642 the Particular Court of the colony ordered the arrest of James Hallett of Windsor for theft and sentenced him to a coarse diet, hard work, and “sharp correction” as punishment for his crimes. After Hallet had spent a month in the house of correction, the Court then ordered the magistrate to release the youth to his master Bartlet. As further punishment, Hallet had to pay four times the value for the goods he had stolen, rather than the three mandated by the law. Yet perhaps in recognition that the thief was underage, the Court ordered that the branding for the theft be on Hallet’s hand rather than on his forehead. Nothing in the court record indicated if the master Bartlet represented the youth in court or assumed responsibility for payment of the fine even though the law permitted extension of the term of apprenticeship to cover those costs. Similarly, when Joane Sipperance stole some lace in 1649, no adult represented her before the Court, but the justice imposed less than the maximum fine, only double the value of the stolen goods, and no physical punishment. This reduced punishment might have been in recognition that Joane was under twenty-one.⁸

By the 1660s, some cases reflected recognition that minors were not capable of appearing in Court without adult guidance, but the protection was not uniform. Noting in 1660 that Mary Holdridge had been sentenced to be whipped for her crime, the Particular Court granted the Governor the right to remit her sentence if her mother came into Court, although there was no specific court order directing the mother to appear before the magistrates. In contrast, when Thomas Dunke accused his apprentice, Thomas Johnson, of stealing from him, the Court did not mitigate the sentence or order either the master or the youth’s parents to appear in Court to represent him. Though the sentence was only for restitution to the master, with no corporal punishment, this failure to ensure that an adult would assist the boy during his trial was notable because under Connecticut’s civil law at this period, no one could directly sue a minor for a tort such as slander, trespass, or trouver and conversion (a form of theft). To bring a civil lawsuit against a minor, the plaintiff had to sue through the child’s parent, master, or guardian.⁹

THE BEGINNINGS OF LEGAL REPRESENTATION FOR MINORS

Through the eighteenth century, cases of theft by persons under the age of twenty-one appeared both as criminal and civil matters. In some instances the colony or state brought the charges against individual children, often without specific notice to the child’s parents. In others, the victim of the theft sued the thief for trespass and theft, usually giving careful notice of the litigation to the child’s parent, guardian, or master. Cases handled in the criminal courts continued to result in fines, brandings, and at times incarceration. Those dealt with as civil matters usually resulted in orders for restitution, fines, and court costs. What was apparent was that failure to follow correct legal procedure when prosecuting theft under the civil law could at times result in dismissal of the case. In 1737 Samuel Ely of Lyme brought a suit of trespass against Joseph and Richard Ely, whom he identified as the minor sons of Captain Richard Ely, also of Lyme. Samuel Ely claimed the two boys had cut down and stolen over two-dozen trees on his land in Lyme, and he sought damages of thirteen pounds. At the trial the two defendants appeared by their father and pleaded that the writ should abate. The argument was that the writ did correctly identify Joseph and Richard as minors but it did not include the boys’ father in the lawsuit, “which by the law ought to be done.” The Superior Court at New London County agreed with the defendants and dismissed the case.¹⁰

Another Lyme case revealed the proper way to make a minor responsible for his actions. In 1741 Richard Smith of Lyme accused nineteen-year-old George Dorr of Lyme with the theft of hay worth 20 shillings from land along the Bridebrook River owned by Smith. However, Smith made sure that Edmund Dorr, George’s father, received a summons on the charge, and at the hearing the New London County Court formally named Edmund as guardian to George. Though George claimed he had not stolen the hay because the land actually belonged to Mary Dorr, the wife of Edmund, the Court found in favor of the plaintiff and assessed damages against young George.¹¹

A case of the theft of over seventy-eight pounds of gold and coin resulted in one of the ear...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Contents
• Acknowledgments
• Introduction
• Chapter One Protecting Property, Correcting Children: Prosecuting Theft and Arson
• Chapter Two Murderous Minors: The Treatment of Assault and Murder
• Chapter Three Public Order and Private Rights: Keeping Children in Line
• Chapter Four Legal Standards, Community Justice: The Problem of Child Abuse
• Chapter Five The Emergent Problem of the Sexual Abuse of Children
• Chapter Six From Retribution to Rehabilitation: Children and the Criminal Law in the 19th Century
• Notes
• Bibliography
• Index