The Massachusetts Bay Colony enacted the following law in 1646:
If a man have a stubborn or rebellious son of sufficient years and understanding (namely, at least sixteen years of age) which will not obey the voice of his Father, or the voice of his Mother, and that when they have chastened him will not harken unto them: then shall his Father and Mother being his natural parents, lay hold on him and bring him to the Magistrates assembled in Court and testify unto them, that their son is stubborn and rebellious and will not obey their voice and chastisement, but lives in sundry notorious crimes; such a son shall be put to death.
Connecticut adopted that same law in 1650. So did Rhode Island in 1668, and New Hampshire in 1679.
That law was known as the Stubborn Child Law. It remained on the statute books of Massachusetts for over three hundred years. The legislature eventually dropped the death penalty and broadened the law to include daughters. The law was not repealed until 1973.
Many hundreds of children, including many far younger than sixteen years of age, both boys and girls, were incarcerated in penal institutions. The Courts ordered those incarcerations because parents brought official complaints that their children would not accept parental authority and discipline. For example, three hundred young women were incarcerated under this law at the Framingham Women’s Reformatory between 1877 and 1971. Many of them were there simply because they were unmarried and pregnant.
What were our ancestors’ thinking when they adopted this harsh law? They were applying words from the bible, from the book of Deuteronomy. Chapter 21, verses 18 through 21, states:
If a man has a wayward and defiant son, who does not heed his father or mother and does not obey them even after they discipline him, his father and mother shall take hold of him and bring him out to the elders of his town at the public place of his community. They shall say to the elders of his town, "This son of ours is disloyal and defiant; he does not heed us. He is a glutton and a drunkard." Thereupon the men of his town shall stone him to death.
The men responsible for making the laws of New England in the seventeenth century enacted this very law from the Torah, using almost these exact words.
They seemed to think that they were doing the will of God by enacting this law. But they either did not know or did not care that Judaism had limited this law so drastically that the Talmud ultimately said this law could not be enforced and never had been enforced.
To understand this, we must understand the crucial difference between the Israelite religion and Judaism.
The Israelite religion is the religion of the Torah. It follows the laws set forth there.
The Israelite religion had its center in Jerusalem, with the rules about sacrifices at the Temple and all the harsh judgments like this law that we still read in the Torah.
But a new religion emerged when the Romans destroyed the Temple. That new religion was rabbinic Judaism, the religion of the Jews of today. That religion is based on the Torah, but relies also on the teachings and commentaries of the rabbis of the Talmud and later commentators. Rabbinic Judaism continued to develop during the six or seven centuries of the compilation of the Talmud and developed still further with all the recognized commentaries, right down to the present day.
The stubborn child law reminds us that modern Jews are not followers of the Israelite religion. For more than 2000 years, sages have interpreted the Torah. Their commentary defines and refines the Torah in ways that not only modify its laws but effectively repeal those laws.
Verse 18 begins, “Ki yi’hi’yeh l’ish ben sorer u’moreh.” “If a man has a wayward and defiant son.”
In Masechet Sanhedrin of the Talmud, the rabbis explore what the Torah means when it says “son." In the first place, it does not include daughters. Only sons.
Second, the Talmud concludes a “son” must be a child, not an adult. After all, a man is a man and a child is a child. Since it says “son,” it must be referring to a child, not to a man.
But then the Talmud wants to know what is the upper age limit on being a “child.” Surely that upper age must be age 13, the age when a boy becomes fully subject to all the commandments and is no longer considered a child. So that sets the upper limit.
The rabbis of the Talmud also want to know whether there is a lower age limit, below which a child is not subject to this law. They say there is, and set it at twelve years and nine months. Anyone younger than that is not capable of understanding the commandments and so is not subject to this law.
So the rabbis limited the application of this law to sons, not daughters, and further limited it to apply only to sons of an age from 12 years and nine months to 13 years, a period of just three months.
The rabbis also wondered about the Hebrew words in verse 20 that are commonly translated “does not heed us.” That translation misses a crucial point. The Hebrew says “eineinu shomea b’koleinu.” “Does not obey our voice.”
The rabbis notice the emphasis on the singular word “voice.” The text does not say “eineinu shomea b’koloteinu,” “does not obey our voices.” No. It says, “does not obey our voice.”
The rabbis conclude from this close reading of the text that the father and mother must be speaking with one voice. If the father says one thing and the mother contradicts him, then the child will be confused and so cannot be treated as stubborn and rebellious.
The rabbis found other limitations. In verse 21 the text says, "Thereupon the men of his town shall stone him to death." But the rabbis decided that this does not mean that the men of the town would immediately carry out the death penalty. Rather, the elders held a hearing to determine whether the son was truly guilty of not having followed the instruction of the parents, and whether the instruction was reasonable, and so on and so on.
There were so many limitations on this law that the rabbis concluded that the law was intended merely as a warning, not that it should be carried out. The text is here only in order to emphasize the importance of children obeying their parents. According to the rabbis, this law had never been imposed and never would be.
That’s not what happened in Massachusetts and the other New England states, however. Because the legislatures of those states relied only on the ancient text and not on the commentaries that so limited that text, they enacted a harsh law that caused great harm for centuries.
I personally learned about this statute when I was practicing law in Cambridge in 1969. My client was a young woman charged with being a stubborn child for disobeying her mother. She was convicted. We took an appeal. It was the first case I argued before the Supreme Judicial Court of Massachusetts. To read the decision, go to Joyner v. Commonwealth.
If the New Englanders who enacted much of Deuteronomy as part of the laws of the colonies had studied Talmud, they would have understood the ways in which Torah continued to be interpreted and effectively modified. And the suffering by children prosecuted under the stubborn child law would have been avoided.