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Childhood and Crime$
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Claire McDiarmid

Print publication date: 2007

Print ISBN-13: 9781845860127

Published to Edinburgh Scholarship Online: May 2015

DOI: 10.3366/edinburgh/9781845860127.001.0001

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PRINTED FROM EDINBURGH SCHOLARSHIP ONLINE (www.edinburgh.universitypressscholarship.com). (c) Copyright Edinburgh University Press, 2022. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in ESO for personal use.date: 07 July 2022

The Treatment of Children in Scots Criminal Law Historically

The Treatment of Children in Scots Criminal Law Historically

(p.102) (p.103) Chapter 5 The Treatment of Children in Scots Criminal Law Historically
Childhood and Crime

Claire McDiarmid

Edinburgh University Press

This chapter examines the approach taken to children who offend by three of the most influential jurists in Scots legal history – Sir George MacKenzie of Rosehaugh; Baron David Hume and Sir Archibald Alison. They are selected for the quality and depth of their work on the relationship between the child’s criminal capacity and his/her criminal responsibility. The chapter explores the age-related distinctions which each drew in determining children’s liability to punishment for crime. It examines, particularly in its application to children, the concept of “dole” – the early form of the mental element in crime in Scotland – best defined as a pervasive wickedness of character, and the shift to a recognisable modern concept of mens rea. Finally it touches upon the child-saving philosophy of the 19th century in examining the paucity of law in Scotland on the child’s criminal capacity into the 20th century and beyond.

Keywords:   Legal history, Criminal law, Dole, Mens rea, Mental element, Criminal capacity, Children, Hume, Child-saving

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