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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, 2020. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in ESO for personal use.date: 06 April 2020

The Treatment of Children in Scots Criminal Law Historically

The Treatment of Children in Scots Criminal Law Historically

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

Claire McDiarmid

Publisher:
Edinburgh University Press
DOI:10.3366/edinburgh/9781845860127.003.0005

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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