La malitia dell’innocente: il minore delinquente nella prima età moderna

The essay deals with the answers of early modern legal scholars to the questions relating to minors charged with crimes and involved in criminal trials. Starting from a Roman law-oriented idea of underage, they focused on different topics of both substantive and procedural law: the juvenile delinquent’s criminal liability; the punishment to be inflicted on him/her; his/her capability to stand trial; the assessment of his/her confession by the judge; the possibility to even torture him/her. In their works, legal scholars tried to adapt a system actually conceived for ‘adults’ to the minors’ peculiarities and discussed the practice of criminal pro-cedure. Thus, on the one hand they claimed mildness for those delinquents due to their young age; but on the other hand they also witnessed how that principle could be neglected above all by high courts thanks to their unobjectionable discretionary judgment (arbitrium), on the strenght of both minors’ innate inclination to evil and the seriousness of the crime at issue.