boys had ‘been driven to take up arms against society, meeting, from their earliest recollections, with nothing but an enemy in man’.14
To survive the enemy, boys honed their skills, attitudes and codes on the streets and in flash houses run by Fagin characters where magistrates reported children as young as eight being ‘initiated into the trade of picking pockets’15 and seeing their peers and other criminals ‘sitting and drinking together on terms of good fellowship, inculcating a view that they could continue to rob without fear of punishment’.16
For many boys, life on the streets was safer than their home life and more exciting and rewarding. One magistrate, William Miles, said, ‘these urchins are taught to look upon the world as a fisherman views the waters: all that can be obtained…depends upon the skill or luck, or in the terms of the common adage, ‘all is fish that comes to their nets’.17 Pickpocketing and thieving realised enough to eat and sleep under a roof, and garnered the badges of manhood such as alcohol, tobacco and female company. The London Metropolitan Conservative Journal described how the ‘abandoned of both sexes…after prowling for their prey, return to their lairs either moody from disappointment or flushed with gin and success’18 and magistrate Miles told the House of Lords boys cheerfully told him of spending their criminal gains on ‘every pleasure arising from a life of dishonesty’, and even those younger than twelve ‘revel in the fruits of their plunder and though extremely young, live with girls indulging in every form of debauchery’.19
One boy told Miles, ‘look ye here Sir, the charm of it is, it comes so easy and it goes just as light, it is better than hard work. It is no wonder boys never reform if they have been in the least successful’;20 for in this ‘lottery adventure in each day’s life’, as Miles described, such ‘excitements are attainable at so easy a rate is it strange that these children are fascinated and abandon themselves to crime?’21
The prevailing view was, as Miles told the House of Lords, ‘among the uneducated the human mind is more prone to evil than virtue’.22 Dickens had seen it too: ‘All people who have led hazardous and forbidden lives are, in a certain sense, imaginative and if their imaginations are not filled with good things they will choke themselves with bad ones.’23
The juvenile ‘delinquents’ were seen as ‘a race…different from the rest of Society, not only in thoughts, habits and manners, but even in appearance, possessing, moreover, a language exclusively…their own’,24 a generation living the reality of Fagin that ‘every man’s his own friend, my dear…he hasn’t as good a one as himself anywhere’,25 pitting their cunning and daring against the world and seeing punishment and vice as signs of manhood.
By the early 1800s young delinquents accounted for nearly thirty percent of Britain’s committals, but the law allowed no mercy or differentiation for children in the way in which they were charged, the form of trial and punishment, and how and where it was to be enforced. Even young children faced the scaffold: in 1814 five children under fourteen were hanged at the Old Bailey, the youngest just eight, more than 100 children under fourteen were sentenced to death for theft in the thirty-five years leading up to Oliver Twist, and the death sentence for those under sixteen would last until 1908.
Notwithstanding all the laws against ‘delinquency’, some struggled to grasp a long-standing legal principle of doli incapax where a child of seven and under was capable of ‘mischief’ but not criminally punishable because they were deemed too young to know right from wrong, incapable of being sorry and understanding. The 17th century jurist Sir Matthew Hale articulated that, ‘an infant of eight years of age, or above, may commit homicide, and shall be hanged for it…if it may appear that he had knowledge of good and evil, and of the peril and danger of that offence.’26 A century on Sir William Blackstone reinforced Hale but argued that, ‘the capability of doing ill…is not so much measured by years and days as by the strength of the delinquent’s understanding and judgment’.27
The British newspapers reaching Hobart Town reported some magistrates and judges refused to try young children, declaring them ‘an infant under the age of discretion’28 but others, like Sir Joseph Littledale, refused to accept ‘that a child of ten years is incapable of committing [a] felony’.29
Death sentences for children were mostly commuted, but Britain’s ruling classes had long had more taste for punishment than nurture, and what some called the ‘demon of obstinancy’ meant law-makers, judges and magistrates could not see that unjust laws unjustly enforced ‘subvert[ing] the very foundation they would establish’.30 As the chaplain of Coldbath Fields House of Correction lamented:
When a boy is taken into custody…he loses his character, and it is with the greatest difficulty he can ever come into society again; he then falls into crime as a matter of necessity; he becomes a continual criminal, and we do not lose sight of him until he either dies or commits some crime that will subject him to transportation.31
Reformist voices such as Quaker Elizabeth Fry had the same concern, arguing the ‘abandoned wickedness’ of incarceration meant prisoners were punished but gained ‘nothing…but confirmation in the habits of depravity, and afterwards turned out again upon the public, fitted by the punishment of one crime for the perpetration of others. Thus both parties are losers’.32
Calls to separate imprisoned juveniles had been advocated since the 1810s, but were not seriously or uniformly trialled. So it remained common in Newgate prison, alongside the Central Criminal Court, to see boys like John Walsby, just eight, among seasoned and often drunken men and women criminals while awaiting trial after ‘sneaking’ one shilling and one pence from a till so he could buy ‘bread, and cakes and fruit’. As The Times reported: ‘To look at this babe in the gaol of Newgate, under a warrant…which is authority for the detention of the most hardened ruffian, would make many people laugh but many more weep at such a mockery.’33 Even through to the 1850s, young children could still be found in Houses of Correction: the governor of Westminster Bridewell ‘had under his charge one boy not much over five years old and ten more under eight years’.34 When asked why they had stolen some boots, many an eight-year-old would to reply, ‘Cause I haven’t got none of my own.’35
But time in prison was a badge of honour to some. The Governor of Coldbath said:
The punishment of prison is no punishment to them; I do not mean that they would not rather be out of prison than in it, but they are so well able to bear the punishment, and the prison allowance of food is so good, and their spirits so buoyant, that the consequences are most deplorable.36
Some, like the Metropolitan journal in London, asked a deeper question:
Is not prevention better than remedy? Is it not the duty of a paternal government to put an end to the nursery of crime? By not interfering with this juvenile delinquency, they procure a continual supply of subjects for the hulks, the colonies and the gallows.37
But the prevailing answer was an Old Testament belief that ‘juvenile crime is a moral disease’38 and regardless of age or ignorance those who made the wrong moral choice deserved to be severely punished under God’s law and man’s law.
Some, like magistrate William Miles, gave the House of Lords another view, that the absence of fear of prison, and easy money and gratification, gave juvenile boys ‘the means to banish thought’,39 and so:
the listening victim is dazzled and allured on step by step from the path of virtue, until he reaches that fatal point where he loses sight for ever of all moral restraint upon his actions, and the broad and easy road of vice is full before him.40
Was it possible that some young boys might reach this ‘fatal point’ of blindness to all moral restraint? To tread a lifepath from playfully tossing skittles to fatally wielding a stone-hammer?
It
