VI. Children in Trouble

Although eighteenth-century American society continued to rely upon family government to teach the public laws as well as domestic manners, increasing numbers of young people, mostly apprentices and indentured servants, escaped this authority by fleeing to the rapidly growing seaboard towns. There they mixed anonymously with their fellows and with newly-arrived immigrants. The Puritans had warned, "Early liberty hath or may be an occasion for many evils and inconveniences," and town officials, plagued by the misdeeds of these youthful vagrants, had no reason to doubt the truth of this maxim.

Many of the children in trouble had histories of personal unhappiness prior to their emigration, often forced, from England, Ireland, and Scotland. Young felons had been transported to the plantations of Virginia and Maryland as convict servants. Lesser offenders, youthful "rogues and vagabonds" who crowded Bridewell and local jails, had been persuaded or intimidated into signing indentures for service in the colonies. Other children, innocent of any crime save that of being poor, had been gathered from city and country parishes and transported to the colonies either separately or in groups. The harsh discipline and miserable working conditions which these unwilling immigrants sometimes encountered in America disposed them to unruly behavior.

In the eighteenth century no special facilities existed for the correction or reformation of young offenders. Indeed, the concept of juvenile delinquency hardly existed. Colonial authorities recognized the inadvisability of incarcerating youths with adult criminals but they could not even afford to maintain the children, much less to establish separate institutions for them. Instead of holding delinquents in jail, town officials bound them out—in effect, sold them for their keep. Jailers attempted to collect from masters the cost of supporting their servants or apprentices. Philadelphia levied a maintenance tax to discourage masters from abandoning their incarcerated servants.

In both England and America, common law and statutory law provided young children with the greatest protection from imprisonment. Sir William Blackstone was explicit on common law safeguards: "Under seven years of age indeed an infant cannot be guilty of felony; for then a felonious discretion is almost an impossibility in nature: but at eight years old he may be guilty of felony. Also, under fourteen, though an infant shall be prima facie adjudged to be doli incapax [incapable of mischief]; 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." [1a] Although the dictum maleta supplet aetatem [malice supplies the want of age] occasionally resulted in the conviction of young children, courts and juries more often exercised their discretionary power by refusing to prosecute children or by acquitting them after a nominal trial. Moreover, individual colonies statutorily exempted young children from certain punishments. In Pennsylvania, for example, only youths over sixteen could be sentenced to a public whipping for disobeying parents or masters. On the other hand, statutes and ordinances often dealt specifically with childish offenses such as sledding on the Sabbath or playing ball on public thoroughfares.

Common law and statutory safeguards and sympathetic judges and juries were only partially successful in preventing the imprisonment of juvenile offenders. Even after 1800 there were instances of children under fourteen years of age convicted of felonies and sentenced to penitentiaries. The Society for the Prevention of Pauperism in the City of New York, established in 1817, called attention to "those unfortunate children from 10 to 18 years of age, who from neglect of parents, from idleness and misfortune, have. . . contravened some penal statute without reflecting on the consequences, and for a hasty violation, been doomed to the penitentiary by the condemnation of the law." [1b] As in the colonial period, the continuous and chaotic growth of urban areas exacerbated this problem. By 1820, however, state or municipal plans for reforming delinquent children had yet to be formulated.

1a. Sir William Blackstone, Commentaries on the Laws of England, IV (London, 1795),23.

1b. Society for the Prevention of Pauperism in the City of New York, Second Annual Report, 1819 (New York, 1820), p. 32.

Runaway servants and apprentices in - or escaped from - jails

1. Convict servant lad, Philadelphia, 1752 Pennsylvania Gazette, Sept. 14,1752.

Made his escape from Patrick Hamilton, on Sunday night last Florence M'Carty, a convict servant lad, who was taken out of Trenton gaol, and belongs to John Flannigan, in Cecil county, Maryland, and was going home; he is of a middle size, pale complexion, wears a cap, and a lock of hair behind, has light grey eyes; has two green jackets on, one of good cloth, white trousers, thread stockings and pumps, with large carved pewter buckles. Any body that will secure him in any gaol, and give notice to James Whitehead, keeper of the work-house, in Philadelphia, so as he may be had again, shall have Three Pounds reward, and if brought to him, all charges, paid by

James Whitehead.

2. An iron collar about his neck

Pennsylvania Journal, Dec. 26,1752, in William Nelson, ed., Documents Relating to the Colonial History of the State of New Jersey, XIX (Paterson, 1897), 229.

Run aways in Chester county gaol, Viz. Andrew Dun, born in Ireland, as he says; he was bought by one Joshua Roberts, in West New Jersey, and sold by the said Roberts to one William Walker, in Northampton township, Burlington province aforesaid. Thomas Wood, an English man, 19 years of age, a short set fellow, about 5 feet 5 inches high, swarthy complexion, pretends to be a sailor. Had on when committed, an iron collar, about his neck; brought with him a brown gelding, and says his master's name is John Smith, and lives in Maryland, within four miles of Patapsco. John Simmonds, born in England, in the city of Norwich, 20 years of age, of a sandy complexion, and says he runaway from John Boham, in Lancaster county, Brickmaker by trade. David Greenwood, about 60 years of age, born in England, and speaks broad English, a weaver by trade, a lusty, big-boned man, and says he has been in the country 11 years, but will not give any account where he lived, or from whence he came.

These are to desire the owners to come and pay the charges, otherwise they will be sold out for their keeping.

3. Run-a-way or disorderly apprentices maintained in jail at master's expense

"Rules, Orders and Regulations, for the Gaol, of the City and County of Philadelphia," in Caleb Lownes, An Account of the Alteration and Present State of the Penal Laws of Pennsylvania. . . (Boston, 1799), p. 32.

Runaway or disorderly apprentices and servants shall be separately fed, lodged, and employed, and the keeper shall give notice to their masters or mistresses, at the time of their commitment, of the charge that will accrue for their daily maintenance, who may at their option agree to pay the same, or provide the necessary food themselves.

A thirteen-year-old girl tried for murder, 1806

State v. Mary Doherty, 2 Overton's Tenn. Reports 80 (1806).

The grand jury having found a true bill for the murder of her father, lately resident in Hawkins county, -

On Saturday she was brought to the bar, and appeared to be between twelve and thirteen years of age. Upon being arraigned, she stood mute. The Court assigned attorneys Grey and Powel as her counsel, being poor, and without friends or relations to assist her.

After this assignment of counsel, she was remanded.

The Monday following she was again brought to the bar, and again stood mute. The Court directed a jury to be impanelled and sworn in the following manner: -

"You swear that you will well and truly inquire whether the person at the bar, Mary Doherty, stands mute through malice or the visitation of God."

Mr. Beaty, a witness, was called, who deposed that he had lived about a mile from the deceased Michael Doherty. Had known the girl about three years, and she always appeared to have common sense. Had heard her talk frequently as other people, was in the jail to see her last week, and spoke to her, and particularly respecting her brothers and sisters.

Several other persons then spoke to her, but she made no answer, and appeared to be senseless.

Her eyes appeared to be nearly closed, and, whilst speaking to her, saw no difference in her manner. M. Shiply lived close to where the deceased resided. The last time he saw the prisoner was when she was arrested and taken from home; she talked more that day than he ever heard her, for she usually did not talk much.

He always believed she could talk as well as others until lately. He was in the jail this day week, talked to her, but saw no sign of understanding nor alteration in her countenance. Mr. Patten, the jailer, heard her speak three or four times, soon after she came, but they were the monosyllables yes or no; had not heard her speak for eight weeks; she had been in jail about four months, three months of the time he had acted as jailer. When he first had the care of her, he endeavored to get her to eat for several days, but without effect; he left the victuals with her, after being afraid that she would perish.

The victuals left were gone, though he cannot say that she ate them, but supposes she did. She seems to have been insane ever since her being in jail, about four months.

He told her to change her clothes and to sweep the jail, and found it done afterwards, though he has once or twice known the jail swept without telling.

She lay on a bed of straw, and he always found her on her right side, covered with a blanket, in the hottest weather.

She did not discover any uneasiness from confinement. He always had to raise her up; she has not swept the jail for two or three weeks.

He often made efforts to get her to speak himself, and many others in his presence, but all without effect.

When he heard her speak, it was to a black girl of Mr. M'Allister. Had lately seen the negro girl try to get her to speak, but she did not. At another time he heard her speak; it was when Mr. Fane was in the jail. Mr. Fane told her he was to stay in jail with her, and asked her if she would give him her blanket; she answered no.

This morning her brother went into jail, and spoke to her, but saw no alteration in her countenance. Her eyes are, as you usually see them, nearly closed, and I do not recollect to have seen her wink them.

Mr. Fane heard her speak six or eight weeks before, once or twice; had been in the jail several times, but she did not speak.

Mr. Long, the former jailer, kept the jail about thirty days; during that time never heard her speak but once, and that was to the negro girl of Mr. M'Allister. He was in the jail once or twice every day, and at first she did not eat any thing without force. He thought she would perish with hunger. During his care of her, he never saw the least alteration in her looks; her eyes were always closed. When he went into jail he always found her lying. He tried frequently to get her to speak by persuasion and threats, but never could. Once he saw her smile when the black girl was dressing her.

After a short retirement, the jury returned, and found that the defendant was mute by the visitation of God; upon which the Court ordered the pleas of not guilty to be entered for her.

Being late in the evening, and it appearing to the Court that the defendant would neither eat nor drink when any person was near, they ordered her to be remanded, and brought out next day for trial.

On Tuesday she was brought to the bar, and put on trial on the plea of not guilty.

Mr. Beaty was sworn in chief. He did not know the age of the prisoner, but supposed she was about thirteen years of age, or perhaps more. Was told by a person that the deceased was missing four nights and four days; believed he was dead; with another man he went to his house, and all over the plantation, supposing that he was dead somewhere about it, as he was subject to intoxication. Inquired of the children, of whom the oldest was the defendant. He proposed to stay with the children all night, as they might be afraid. The defendant answered that she had stayed before, and was not afraid. The house the old man lived in was built of logs, and raised a small distance from the ground; when standing on the outside of the house with several others, he by chance descried something under the house. Upon raising a puncheon of the floor on the inside, the deceased was found under the floor dead. He then made the following observation to the prisoner, Mary Doherty. "Now you knew this." She answered, "Beaty, you lie." He went for the coroner, and was upon the inquest. He saw blood upon an axe that was found upon the bed and wall of the house, near the head of the bed, and on a wheelbarrow.

The axe appeared to have been washed, but there was some in the eye of it. The deceased had blood on his shirt and about his head. The bed appeared to have been washed, but the blood was still to be seen. The house floor had been washed, but there was the stain of blood plainly to be seen on it, between the bed and where the deceased was found, which was five or six feet.

The prisoner said the last time she saw her father was four days before that, and about 150 yards from the house; this was before he was found.

Knowing that the deceased usually wore a greatcoat, he asked the prisoner where it was; she answered, "You need not care." He told her that he wanted to see it; she then went to the bed where the deceased was supposed to have been murdered, and got it from thence, gave it to him, saying, "There, I suppose you are satisfied." The prisoner did not discover any concern when her father was found, nor when she was examined before the coroner, and looked and talked with a great deal of assurance.

The family of the deceased consisted of the prisoner, the little boy who had been offered as a witness in court, and two other younger children. He had lost his wife. Never saw the prisoner except once off the plantation, and never saw any of the family at a place of worship.

The deceased was found a few days before the 13th or 14th of April, when the coroner's inquest was held. He never saw the prisoner employed except once or twice, and then she was providing some victuals, nor did she ever go to school.

The house of the deceased was not much resorted to; they lived to themselves principally; did not know whether the prisoner was accustomed to converse with other children in the neighborhood or not. As to any difference in the understanding of the boy and the prisoner he had not observed. The other children were present when the body was found, and none of them appeared to be alarmed in the smallest degree. When found, the deceased looked as if he had been dead several days; the side of his head looked black, as if it had been bruised, but did not know whether his skull was broken or not. He had seen the deceased a few days before his death, going, by his house, home.

There was not any thing remarkable in the character of the deceased, nor did he know any thing of the conduct of the deceased to his family. He never saw him intoxicated at his own house; and always thought the prisoner possessed as much understanding as common. Of this he judged from her answers to questions he had asked her; but when he was there, which was frequently the case, she did not appear to be employed as girls of her age usually are. At the inquest, she did not say any thing from which he could collect an idea that she was sensible of the atrocity of the crime committed.

John Miller was sworn. He was one of the inquest. Beside the several things stated by Mr. Beaty, he observed that when the deceased was taken from under the floor the right side of his head was cut, and on the other side his skull was broken, from which blood flowed; saw the blood on the chairs, on the floor, on his clothes, and against the wall at the head of the bed, where he supposed it to have sprinkled.

At the inquest, the prisoner was tied with some tow strings, and appeared to be hurt.

There was a parcel of old women pushing her about, and sometimes reviling her; he loosed her, took her to a branch, and told her to wash herself, as she was extremely dirty. He then talked to her familiarly, upon which she began to shed tears.

As she had been beaten and hauled about by several who were there, he pitied her, and told her she must not run away, to stay with him, and no person should injure her, nor should she be served in the manner she had been any more.

Having thus used persuasion with her, he told her she must tell him. The counsel for the prisoner objected, that no confession obtained from the prisoner by hope or fear should be given in evidence against her, and it was manifest that whatever she did tell this witness must have been extorted from her by an irresistible impulse, arising from the hope of better treatment.

The witness being asked if he did not believe this to be the case, he acknowledged he did.

John Sheflet, a witness for the State, deposed to many of the facts stated by Mr. Miller. He believed the deceased to have been murdered, heard a number of persons examine the defendant, but she constantly denied knowing any thing about the death of her father.

There appeared to be a difference in her countenance when her father was found. She appeared to be scared; had been acquainted with the family about three years, and lived a near neighbor. He never saw her at work nor ever abroad.

She appeared to be of an obstinate disposition.

He stayed all night at the house after the body was found. She did not discover any disposition to make her escape, though she might have done so.

The deceased was at his house, and was telling him that this girl and two of his children had run away, and then stated the ages of his children; but did not recollect them.

The prisoner was tied early in the morning, and remained so until the inquest.

White, J., stated to the jury the circum- stances that were necessary to constitute murder. Their inquiry was, whether the prisoner was the person who took the life of the deceased, and, if they were of that opinion, to inquire whether it were done with malice aforethought.

From the circumstances appearing, there seemed to be no doubt as to malice, except what had been attempted on the ground of the tender years of the prisoner. Neither argument nor authority had been introduced on this point. He stated what he conceived to be the law on this point, and, if incorrect, should be glad to be corrected from any quarter.

If a person of fourteen years of age does an act, such as stated in this indictment, the presumption of the law is that the person is doli capax. If under fourteen and not less than seven, the presumption of law is that the person cannot discern between right and wrong. But this presumption is removed, if from the circumstances it appears that the person discovered a consciousness of wrong. The jury retired, and, after being absent a few hours, returned a verdict not guilty. [2a]

2a. Overton reported (pp. 88-89) that one day after the trial Mary Doherty was observed sitting on the courthouse steps. "Her eyes were open, clear, animated, and emitted striking sensations of complacency."

1. The case of Little Tom, 1812

State Prison Record Book, John Stanford Papers, New York Historical Society, New York City.

John Stanford (1754-1834) was the first chaplain to visit regularly the public charitable and penal institutions of New York City.

The Case of T—s C—d: This unfortunate youth sad to relate is said to have been nursed upon the lap of vice, by his own parent and eventually committed that offence which brought him to the State Prison, when he was only twelve years of age. He was entirely unacquainted with the first rudiments of learning; but through the benevolence of the head keeper the unfortunate youth being favoured with an evening school, little Tom, for so they called him, was indulged with this privilege, and made a very rapid progress. His application to the trade assigned him was such that he was able to turn out more work than his companions. His conduct was so discreet that he gained the attention of the head keeper as that of his fellow prisoners.

In the month of June 1812 Tom was seized with a sore throat, and an affection of the lungs. In this state I found him, in the prison hospital; with tenderness & faithfulness I conversed with him, on the great necessity of pardon and peace with God. He could scarce speak, but said, "Yes, Sir, I know it." When I visited him again, though I gave him my best advice, he was unable to speak; but the tears which flowed from his eyes spoke the impression of his heart. Every effort was used; all were interested to recover little Tom. Mr. K. being convinced that the boy could not long survive, in a, tender manner intimated his approaching end. Tom said he was willing to die; he then asked him if he wished to see his mother. At first he declined, but afterwards consented. The next day, his mother, if such may be called, with his little sister came. The mother indifferently asked him how he did, and immediately turned aside to some of the men prisoners indulging [in] improper language. Returning again to Tom's bed, to bid him good bye, the little girl got upon his bed to kiss her brother. The hypocritical mother condescended to embrace him also. Tom said to her, "Mother can you not get me away from here, perhaps I may then get well." The monster of a woman half intoxicated immediately replied, "No Tom, you will not get out till you are carried out in the cold meat box." This it was supposed by the bye standers to mean his coffin. This was told me by those who heard her.

The next day, Sunday morning when I entered the Chapel to perform service, the prisoner who took the lead in singing stopped me at the foot of the pulpit stairs, and said, "Sir, little Tom is dead. Please to remember the occurence in your prayer; it may produce some impression upon the people." I did so. In the interval of worship Mr. R. expressed his regret on the loss of the boy, as there was a great prospect of his becoming a useful member of society. I said had I known this event I would have provided a suitable discourse for the afternoon. Mr. R. suggested that I might yet accomplish it. I therefore went aside; and formed a Sermon on Eccls. 12.4, which with much emotion of heart I delivered; [I] gave a short narrative of poor Tom, and made suitable addresses, particularly of the young prisoners.

2. Suspended sentence for a young girl, 1816

Daniel Rogers, camp., The New York City-Hall Recorder for the Year 1816 (New York, 1817), p. 6.

The prisoner, a young female, was indicted for Grand Larceny, in stealing a pocket-book containing 140 dollars, the property of Nathaniel Hopping. It appeared, that a few days before the trial, Hopping, who is a married man, came from New-Jersey about 8 o'clock in the evening, and with another countryman, went to the house of Mrs. Daniel, at the corner of Cherry and Walnut-streets. The prisoner, with others, was dancing; and on the appearance of Hopping, she manifested much fondness towards him, and (as he expressed it) hung round him. He joined in the dance, and in the course of the evening, called for some gin and treated the prisoner. She absented herself; and Hopping went out of the door and saw her, when she fled from him. In a short time after, he missed his pocket-book, which he carried in the Side-pocket of his coat. He could not find her that night. The next day he called on her, with a friend, when she begged of them not to carry her to Bridewell, and she would restore the money. She paid back twenty-eight dollars, and said she had lost the pocket-book.

It appeared that she paid several debts the same evening that she was with Hopping; the principal one of which was a debt of thirty-one dollars due Mrs. Daniel.

Price contended, that there was not sufficient evidence of an actual felonious taking in this case to constitute the offence. No doubt she found the pocket-book on the floor: the prosecuter, perhaps, in hopping about right merrily at the sound of the viol, with these Cyprian damsels, dropped it inadvertently. The circumstance of paying her debts rather operated in her favour. She did no more than what every honest girl ought to do.

Hamilton contra.

The Jurors immediately pronounced her Guilty, but recommended her to mercy, by reason of her youth.

Her sentence was suspended until the next Term.

3. Seven-year-old boy acquitted, 1820

Daniel Rogers, comp., The New York City-Hall Recorder for the Year 1820 (New York, 1821), pp. 137-138.

The prisoner, a boy, was indicted with another named Byrnes, for petit larceny, in stealing ten pounds of copper bolts, the property of Robert M'Queen and Alexander M. Muir, on the 8th of October.

It appeared, that the prisoner carried the goods to the grocery of George M'Pherson, to whom he sold it.

The mother of the boy, being sworn in his favour, testified, that he was but a few weeks more than seven years of age; and that, in consequence of falling on his head, his senses were impaired.

No evidence was offered on the part of the prosecutor to show the boy's capacity.

Wilson submitted to the Court, that as a child of seven was held incapable of crime, and between that age and fourteen it was necessary to show his capacity; and that, in proportion as he approached to seven, the inference in his favour was the greater, and as he approached to fourteen the less, that there was not sufficient evidence in this case to support the prosecution, especially as strong evidence of incapacity had been produced on his part.

Upon this principle, the Mayor charged the Jury, who immediately acquitted the prisoner.

4. Children between seven and fourteen convicted and sentenced to state prison, 1820

Rogers, comp., New York City-Hall Recorder for 1820, pp. 177-178.

The prisoners were all infants, between seven and fourteen years of age. The one first named was indicted for a grand larceny, in stealing a lady's dressing box, containing several pair of pearl ear-rings, a necklace, a breast-pin, and other valuable articles of jewelry, of the value of $150, the property of George Hearsey, on the 25th.of November last; and the other prisoners were indicted for petit larceny, in stealing a bearskin, the property of Charles Dickinson, on the 31st of December last.

On the traverse of the first mentioned indictment, it appeared from the testimony of Eliza Hearsey, the lady of George Hearsey, that on the day laid in the indictment, she saw the prisoner going out of the entry of the house with the box, which was taken from her bedchamber, under his arm, endeavouring to escape out of the back door; and, when she seized him, for the purpose of getting away the box, he tried to bite her, and retain it by force. He cried, and alleged that another boy had told him to take it away. He told the lady that he was eight years old.

There was no other evidence of capacity offered; and, after the remarks of the respective counsel, the Mayor charged the Jury, that with regard to an infant, between the age of seven and fourteen, the Jury should be satisfied that he had a capacity of knowing good from evil. And proof of this may be given either by extrinsic testimony, or it may arise from the circumstances of the case. In this case, the fact of concealment, and of an attempt to escape, appear; and it will rest with the Jury to determine, whether this boy did not know, at the time he stole this property, that he was doing wrong.

He was convicted, and sentenced to the state prison three years.

On the traverse of the other indictment, it appeared by the testimony of Charles Dickinson, that the bearskin was stolen out of his stable, and concealed in an oven in an adjoining yard. He did not see the property in possession of the prisoners; but, in a short time after it was stolen, the prisoners were brought to his house, and, on his threatening that if they did not confess the fact, he would send them to Bridewell, they acknowledged that they stole it, and concealed it in the oven where it was found. One of the boys accused the others of inducing him to commit the theft, and they were all detained in the prosecutor's yard, until Azel Conklin was sent for, to whom they made a similar confession; and, on being carried into the police-office the next morning, made an ample confession before one of the magistrates.

David Graham addressed the Jury on behalf of the prisoners, and insisted, that the confession made to Mr. Dickinson, being made under the influence of threats, influenced those made subsequently; and, therefore, the whole ought to be rejected.

Van Wyck, contra.

The Mayor charged the Jury, that if they believed that the confession made in the police was influenced by that previously made to the prosecutor, it ought to be rejected; but the Mayor thought that this confession ought to be considered as standing on a different ground from the confessions made to the prosecutor, and afterwards to the officer. The confession made in the police was on the next day, and no threats are ever used there to extort a confession. But, in this case, there is fact independent of any confession.

The property was found concealed in an oven, where the prisoners acknowledged it to be. This is good evidence.

KeIlet, on being arraigned, pleaded guilty; and the others were convicted by the Jury, and the whole sentenced to the penitentiary three years.