Wiki: parish law on infants

: From The present practice of a justice of the peace; and a complete library of parish law, vol 2, pp512-516, 1790.

	Infants.
Infant, who.	A PERSON, whether make or female, is in law an infant under the age of twenty-one years. 1 Inst.
What is deemed the age of discretion, and of crimes committed under that age.	It is said generally that those who cannot distinguish between good and evil, as infants under the age of fourteen years, which is called the age of discretion, are not punishable with any criminal prosecution whatsoever. But this must be understood with some allowance; for if it appear by the circumstances, that an infant under the age of discretion could distinguish between good and evil; as if one of the age of nine or ten years kill another, and hide the body, or make excuses, or hide himself, he may be convicted and condemned, and forfeit as much as if he were of age: but in such case the judges will in prudence respite the execution, in order to get a pardon; and it is said that if an infant, apparently wanting discretion, be indicted and found guilty of a felony, the justices themselves may dismiss him without a pardon. And in general it must be left to the discretion of the judge, upon the circumstances of the case, how far an infant, under that age, is capax doti, or has knowledge to discern betwixt good and evil. Hale's Pl. 43. 1 Haw. 2. 1 H. H. 18.
An infant of ten years of age convicted of murder, received sentence of death, and on the point of being executed.	The following is a remarkable instance of this kind. At Bury assizes, 1748, William York, a boy of ten years of age, was convicted before lord chief-justice Willes, for the murder of a girl of about five years of age, and received sentence of death; but the chief-justice, out of regard to the tender years of the prisoner, respited the execution till he should have an opportunity of taking the opinion of the rest of the judges, whether it was proper to execute him or not, upon the special circumstances of the case, which he reported to the judges. The boy, after much prevarication, had confessed the murder, and mentioned all the particulars, together with his having concealed the body in a dung-heap, where it was afterwards found: and he constantly told the same story in substance, frequently adding, that the devil put him upon committing the fact: upon this confession, and other corroborating circumstances, he was convicted. The judges unanimously agreed, that there were so many circumstances stated in the report, which were undoubted tokens of what lord chief-justice Hale called a mischievous discretion, that he was certainly a proper object for captial punishment, and ought to suffer; for it would be of very dangerous consequence to have it thought, that children may commit such atrocious crimes with impunity; and therefore, though taking away the life of a boy ten years old might savour of cruelty, yet, as the example of this boy's punishment might be the means of deterring other children from the like offences, and as the sparing of this boy, merely on account of his age, would probably have a contrary tendency, in justice to the public, the law ought to take its course, unless there remained any doubt touching his guilt. In this general principle all the judges concurrec. But two or three of them, from their great tenderness and caution, advised the chief-justice to send another reprieve for the prisoner. He was therefore reprieved from time to time, and was at the expiration of the last to have been executed: but before the expiration of that reprieve, execution was respited by warrant from one fo the secretaries of state: and at the summer assizes 1757, he had his majesty's pardon, on condition of entering immediately into the sea-service. Fost. 70.
Under seven years of age.	But within seven years of age, there can be no guilt whatsoever of any capital offence: the infant may be chastised by his parents or tutors, but cannot be capitally punished, because he cannot be guilty; and if he be indicted for an offence which is in its nature capital, he must be acquitted.
Committing a rape.	An infant under fourteen, is presumed by law unable to commit a rape, and therefore it seems cannot be guilty of it; and though in other felonies malitia supplet oetatem in some cases, yet it seems, as to this fact, the law presumes him impotent, as well as wanting discretion. 1 H. H. 630.
A witness cannot give evidence but upon oath.	An infant cannot, under any circumstances, be admitted to give evidence, except under oath. As in Poweli's case: This was an indictment for a rape, tried before Mr. justice Gould at the assizes for York in 1775. The prosecutrix was an infant between six and seven years of age; and, upon the presumption of the law that a child under the age of seven years is incapable of understanding the nature of an oath, and is therefore incompetent to take it, she was admitted to give her evidence against the prisoner without being sworn, and the prisoner was convicted upon her testimony. But the judge, conceiving that by the laws of England every prisoner must be convicted upon legal evidence; and that, especially in criminal cases, no evidence can be legal unless it is given upon oath, he reserved the case for the opinion of the twelve judges. The question was under consideration, and the prisoner was pardoned, but no express opinion was given on the point. Leach's Cas. in Cr. Law, 114. See title EVIDENCE. And lord Raymond, upon an indictment for a rape at Kingston assizes, refused the evidence of a child without oath. 1 Atk. 21. But lord Hale says, That if an infant appear unfit to be sworn, the court ought to hear her information without oath; though he admits that such evidence is not of itself sufficient testimony to convict, because it is not upon oath. 1 H. H. 634.
Infant may bring an appeal.	And infant may bring an appeal, though it takes from the defendant the benefit of waging battle; but he must prosecute such appeal by a guardian. 2 Haw. 161, 162. And an appeal may be brought against an infant. 2 Haw. 168.
An infant cannot be an approver.	An infant under the age of discretion, cannot be an approver; because he cannot take the oaths requisite in that case. 2 Haw. 205.
Forcible entry.	In infant may be guilty of forcible entry, in respect of personal actual violence. 1 Haw. 147. And the justices may fine, but it will be discretion in them to forbear the imprisonment of such an infant. Dalt. c. 126.
Liable to damages for a trespass.	But if one who wants discretion shall commit a trespass against the parson or possession of another, he shall nevertheless be compelled in a civil action to give satisfaciton for the damage. 1 Haw. 2. 1 H. H. 15, 16. An infant under twenty-one years of age shall not be sworn in an inquest. 7 W. c. 32. s. 4.
Binding by deed.	At the age of twenty-one, and not before, persons may bind themselves by any deed, and alien lands, goods, and chattels. 1 Inst. 171.
Recognizance.	Therefore infants may not enter into recognizance to keep the peace, or to be of the good behaviour, but their surities only.
Female infant.	A woman of nine years of age may have dower; at twelve she may consent to marraige; at fourteen she is at the age of discretion, and may choose a guardian. 1 Inst. 78.
Male infant.	A man is of age at twelve years to take the oath of allegiance in the torn or leet; at fourteen he is of age of discretion, and may consent to marriage, and choose his guardian. Id.
Infant may contract for necessaries.	An infant may bind himself to pay for his necessary meat, drink, and apparel, physic, and the like; and likewise for his good teaching and instruction, which may be for his future advantage; but if he binds himself in obligation or other writing, with the penalty for the payment of any of these, that obligation shall not bind him. 1 Inst. 172. An infant can buy on credit necessaries, but cannot borrow money to buy them; for he may misapply the money, and therefore the law will not trust him but at the peril of the lender, who must lay it out for him, or see it laid out. Earl's Case, 1 Salk. 387.
But for necessaries only,	But is shall be only for necessaries, and not for matters of luxery and extravagance; and if, after he comes of age, he is induced by surprize, persuasion, or other undue means, to give security; a court of equity, on consideration of circumstances, will relieve.
Infant's wife.	E. 5 G. Turner v. Trisbly. Pratt, chief-justice: Necessaries for an infant's wife are necessaries for him: but if provided for the marriage, he is not chargeable, though she uses them. Str. 168.
An infant may purchase.	An infant has, without the consent of any other, capacity to purchase, for it is intended for his benefir; and at his full age, he may either agree thereto, and perfect it; or, without alledging any cause, waive or disagree to the purchase. And so may his heirs after him, if he agree no thereto after his full age. 1 Inst. 2. But though the infant has this privilege, the party with whom he contracts has not; he is bound at all events.
Infant's promise of marriage voidable.	Where mutal promises of marriage have been given, between an infant and one of full age, the contract is not void, but voidable at the election of the infant; but it absolutely binds the person of full age: and in the case of Holt v. Ward, T. 5 G. 2. Str. 937.
Of making a will.	It does not appear that the common law has determined previsely at what age a person may make a testament of personal estate. It is generally allowed that it may be made at the age of eighteen, and some say under; for the common law will not prohibit the Spiritual Court in such cases. 1 Inst. 89. 1 H. H. 17.
May be an executor at seventeen.	A person may be an executor at seventeen: and an administration of any one, during the minority of an infant, ceases when the infant arrives at that age. 5 Co. Pigot's Cas. I H. H. 17.
May sue by next friend.	An infant can answer only by guardian, but he can sue either by his next friend [prochein ami] or by guardian. 3 Salk. 195. Servants above the age of eighteen embezzling their master's goods to the value of 40 s. shall be punished as felons. 21 H. 8. c. 7.
Cannot be a juror.	An infant cannot be a juror. Hob. 425.
Nor a member of parliament.	An infant, or one under the age of twenty-one years, cannot be elected a member of the house of commons; nor can any lord of parliament sit in parliament till he be of the full age of 21 years. 2 Inst. 47. An infant has been adjudged of age the day before his birth-day, for the law will not make a fraction of a day; therefore where a person was born the third of September, andthe second of September almost twenty one years after he made his will, it was held good, and that he was then of age to divise his lands. L. Ravm. 480. For further particulars concerning infants, see the titles APPRENTICE and CHIMNEY-SWEEPER.

parish law on infants

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