19th century “juvenile” offenders and the problem of age-proof

2009 November 16

This is the first in an occasional series of posts that attempt to connect contemporary events with my historical research. I’ve provided basic citations, but not the detailed citations that accompany my print-format work. Scholarly readers should treat these footnotes as starting points and ask if you have more specific questions about how I work or what I’m reading.

The US Supreme Court’s latest cases, Sullivan v. Florida and Graham v. Florida, involve the legality of life imprisonment for crimes committed by juveniles. Catherine Rampell at the NY Times comments:

At the heart of the argument lies a vexing question: When should a person be treated as an adult?

The answer, generally, is 18 — the age when the United States, and the rest of the world, considers young people capable of accepting responsibility for their actions. But there are countless deviations from this benchmark, both around the world (the bar mitzvah, for instance), and within the United States. [...]

And if you think separating the men from the boys (or the women from the girls) is difficult today, tracing the history of America’s conception of childhood just complicates things further.

In the 19th century, teenagers were expected to raise their own children and work in the fields. This was true even though 19th-century teenagers were physically and intellectually less advanced than teenagers today. Thanks to better nutrition and more formal schooling, today’s children generally reach puberty earlier and are, at least in theory, more informed about the world around them.

In other words, the only thing that is consistent about our notions of when a child becomes an adult is our inconsistency, says Steven Mintz, a historian at Columbia University.

Most Americans these days take for granted that young criminal defendants can prove how old they are, but even that wasn’t so simple in the 19th century. Many cities and some states registered births, particularly after about 1845, but these records were woefully incomplete.

How did 19th-century Americans prove their ages in court (or not)?

They used privately-kept records, usually family Bibles, whenever they were called into court and needed proof of age…. at least if they were literate, and if the Bible hadn’t been destroyed in a house fire. Courts in some states would accept church records as legal proof of age or parentage, but other states wouldn’t.

Frederick Douglass stated that “I have no accurate knowledge of my age, never having seen any authentic record containing it… I do not remember to have ever met a slave who could tell of his birthday.“ When Douglass was a child, his master scolded him sharply for trying to find out about his own age. He held on for years to a small morsel of knowledge: that sometime during 1835, his master had said in his presence that Douglass was about 17 years old.1

Slaveowners kept records of their slaves’ ages because age was an important factor in the resale price of their human property.2 At the same time, many states made it a crime to teach slaves to read and write. Some African-Americans, like Frederick Douglass, learned the skills secretly, but African-American family Bible records were relatively uncommon until later in the 19th century.

Particularly in the South, privately-kept family records kept being used as legally-binding evidence well into the 20th century. If you didn’t have access to a family Bible or other written record, the lack of a record might cause real trouble.3

19th-century North Carolina courts ruled that criminal defendants had the burden of proving that they were under 14 if they wanted to argue that they were too young to be convicted for a felony. Combined with the family-Bible-record tradition, this precedent meant, in practice, that relatively few African-American felony defendants could use an age defense effectively. One of these was Onslow County resident George McNair, who was probably born about 1869-70 and, as a teenager, was convicted of rape and sentenced to death.4 When his lawyer appealed, saying that McNair had been under 14 when the alleged crime was committed, the state supreme court fell back on an 1851 precedent, State v. Elijah Arnold.5 Elijah Arnold, who was white, “appeared to be a small boy” at his trial for murder in October, 1850, though a census-taker recorded a few months earlier that he was 19.6 Arnold wasn’t able to prove he was under 14 either.

When did this change?

It wasn’t until the early 20th century, when reformers started to try to protect “childhood” as a legal status, that many American governments put a lot of work into generating documents that proved children’s ages. These documents, where they existed, could be useful in lots of situations: for juvenile defendants, for enforcing age-of-marital-consent laws, for keeping “children” in school and out of the paid labor market, for enforcing child-support obligations. Governments which behaved in strongly child-protective ways, like Minnesota, usually built those systems on top of an infrastructure of compulsory birth registration. (They required doctors and midwives to report births they attended, and they fined those who didn’t file birth certificates on time.)

Most states outside New England didn’t have very good birth registration until after World War I. In 1917-18, when the first federal child labor law operated briefly before it was struck down by the Supreme Court, fewer than 10 percent of work-permit applicants in 6 southern states had any written proof of their ages.7 The states of the Southeast and Southwest took much longer to develop effective systems for registering births, which meant that people born in those states before the mid-1930s had a tougher time proving their age, citizenship, parentage, and identity than did people born farther north. The problems of age-proof were worse for people of color than for whites, worse for rural people than for those born in a city, and worse for non-English-speaking communities than for English-speaking ones.8 The (un)willingness of states to build effective birth registration systems in the early 20th century had a range of unexpected consequences over time, both for people who were registered and for people who weren’t.

Birth registration: benefits and drawbacks

In the early 20th century US, one of the benefits of living in a state with an expanding, Progressive-minded government was that you might be able to prove your own age with something other than a family Bible record or a life insurance policy. At the same time, having a government birth record also put people under newly effective kinds of surveillance by their government. In 1924, Virginia’s legislature passed the Act to Preserve Racial Integrity, which historians usually think of as a racial marriage-restriction law, but it wasn’t just that. Here’s an excerpt:

[T]he State Registrar of Vital Statistics may as soon as practicable after the taking effect of this act, prepare a form whereon the racial composition of any individual … may be certified by such individual, which form shall be known as a registration certificate. … One of said certificates for each person thus registering in every district shall be forwarded to the State Registrar for his files; the other shall be kept on file by the local registrar.

Every local registrar may, as soon as practicable, have such registration certificate made by or for each person in his district who so desires, born before {June 14, 1912, when Virginia’s modern birth registration law went into effect}, for whom he has not on file a registration certificate, or a birth certificate. [In other words: Virginians born before 1912 who need a government-issued birth certificate must file information about their racial ancestry in order to get one.]

It shall be a felony for any person wilfully or knowingly to make a registration certificate false as to color or race. The wilful making of a false registration or birth certificate shall be punished by confinement in the penitentiary for one year.

Modern birth registration systems came with benefits like being able to prove one’s age indisputably, but they could also be sharply coercive. In my larger project, I write about how they worked and how American law changed once Americans started to assume that everyone has—or ought to have— a birth certificate.

  1. Frederick Douglass, Narrative of the Life of Frederick Douglass, an American Slave, Written By Himself (Boston: Published at the Anti-Slavery Office, 1845), 2. My thanks to John Huffman and Walter Johnson for bringing this to my attention.
  2. In Virginia, slaveowners could not uphold claims of a slave’s market value without a record of his or her age; Dabney v. Green, 1809 Va LEXIS 31 (1809), 13. On other aspects of age in slave sales, see Walter Johnson, Soul By Soul: Life Inside the Antebellum Slave Market (Cambridge: Harvard University Press, 1999), 28-29, 138. My research shows that slaveowners’ records of slaves’ ages followed many of the same forms used in family Bible records. Some slaveowners kept family records and slave records on different pages in the same account books; given the sexual violence common to slavery, they may have been keeping records of parallel sets of their own offspring.
  3. If you have access to Lexis-Nexis or another database that contains 19th-century court cases, search for the phrase “family Bible” to find some of these. Robb v. Halsey (19 Miss. 140; 1848 Miss. LEXIS 163; 11 S. & M. 140) is a good example; the fact pattern for the case includes a very long delay while one litigant tried to locate a Bible record to prove that he had been a minor on a given date.
  4. That McNair was tried in a courtroom, rather than being lynched, was remarkable enough. His alleged victim’s last name was Edins; she does not appear by name in the 1880 federal census, but all the Edins and Edens I’ve been able to find in Onslow County, NC, during that time period were recorded as white. McNair is recorded as black.
  5. 1851 N.C. LEXIS 141 (1851).
  6. At that same census, Arnold shared a residence with a 28-year-old “convict,” William C. Jacobs, and no one else. The alleged murder took place after Arnold and his neighbor Simon Dyson “got to cross questions, the latter alleging several charges against {Arnold} about his way of life, some of which {Arnold} denied, but admitted others.” Did Dyson end up dead because he asked about a sexual relationship between Arnold and Jacobs? The evidence is unclear, but I’m intrigued by the possibility.
  7. On the Keating-Owen Act, see Kriste Lindenmeyer, A Right to Childhood, 120-26; Jacquelyn Dowd Hall et al., Like a Family: The Making of a Southern Cotton Mill World (Chapel Hill: University of North Carolina Press, 1987), 57-60. The act was declared unconstitutional in Hammer v. Dagenhart, 247 U.S. 251 (1918). On southern birth registration systems, see “Virginia’s Roll of Life and Death,” Virginia Health Bulletin 5, no. 11 (November 1913), 178-180; Acts and Resolutions of the State of Georgia, January Session 1875, 32-36.
  8. Texas, the last state to meet the federal government’s first standard for birth registration— recording 90% of each year’s births— didn’t achieve that level of effectiveness until 1933.
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