birth1 (4); who till that time is an infant, and so styled in law. Among the ancient Greeks and Romans women were never of age, but subject to perpetual guardianship', [464] unless when married" nisi convenissent in manum

viri:" and, when that perpetual tutelage wore away in process of time, we find that, in females as well as males, full age was not till twenty-five years. Thus by the constitution of different kingdoms, this period, which is merely arbitrary, and juris positivi, is fixed at different times. Scotland agrees with England in this point; (both probably copying from the old Saxon constitutions on the continent, which extended the age of minority" ad annum vigesimum primum, et eo usque "juvenes sub tutelam reponunt t") but in Naples they are of full age at eighteen; in France, with regard to marriage, not till thirty: and in Holland at twenty-five.

3. INFANTS have various privileges, and various disabilities but their very disabilities are privileges; in order to secure them from hurting themselves by their own improvident acts. An infant cannot be sued but under the protection, and joining the name, of his guardian; for he is to defend him against all attacks as well by law as otherwise"; but he may sue either by his guardian, or prochein amy, his next friend who is not his guardian. This prochein amy may be

q Salk. 44. 625. Lord Raym. 480, 1096, Toder v. Sansam. Dom. Proc. 27 Feb. 1775. r Pott. Antiq. b. 4. c. 11. Cic. pro Muren. 12.

s Inst. 1. 23. 1.

t Stiernhook de jure Sueonum. 1. 2. c. 2. This is also the period when the king, as well as the subject, arrives at full age in modern Sweden. Mod. Un. Hist. xxxiii. 220. u Co. Litt. 135.

(4) If he is born on the 1st of January, he is of age to do any legal act on the morning of the last day of December, though he may not have lived twenty-one years by nearly forty-eight hours: the reason assigned is, that in law there is no fraction of a day; and if the birth were on the first second of one day, and the act on the last second of the other, then twenty-one years would be complete; and in the law it is the same whether a thing is done upon one moment of the day or on another.

any person who will undertake the infant's cause; and it frequently happens, that an infant, by his prochein amy, institutes a suit in equity against a fraudulent guardian. In criminal cases, an infant of the age of fourteen years may be capitally punished for any capital offence; but under the age of seven he cannot. The period between seven and fourteen is subject to much uncertainty: for the infant shall, generally speaking, be judged prima facie innocent; yet if he was doli capax, and could discern between good and evil at the time of the offence committed, he may be convicted and undergo judgment and execution of death, though he hath

not attained to years of puberty or discretion. And [465] sir Matthew Hale gives us two instances, one of a girl of thirteen, who was burned for killing her mistress; another of a boy still younger, that had killed his companion and hid himself, who was hanged; for it appeared by his hiding that he knew he had done wrong, and could discern between good and evil: and in such cases the maxim of law is, that malitia supplet aetatem (5). So also, in much more modern times, a boy of ten years old, who was guilty of a heinous murder, was held a proper subject for capital punishment, by the opinion of all the judgesy.

WITH regard to estates and civil property, an infant hath many privileges, which will be better understood when we come to treat more particularly of those matters; but this may be said in general, that an infant shall lose nothing by non-claim, or neglect of demanding his right; nor shall any other laches or negligence be imputed to an infant, except in some very particular cases.

w 1 Hal. P. C. 25.

x Ibid. 26.

y Foster. 72.

(5) In such cases, I conceive that justice tempered with mercy would inquire whether the malice is of such a hardened degree that a slighter punishment would not eradicate or correct it, and whether a milder sentence would not be sufficient to deter other boys of the same age from a repetition of the crime.

It is generally true, that an infant can neither aliene his lands, nor do any legal act, nor make a deed, nor indeed any manner of contract, that will bind him. But still to all these rules there are some exceptions: part of which were just now mentioned in reckoning up the different capacities which they assume at different ages: and there are others, a few of which it may not be improper to recite, as a general specimen of the whole. And, first, it is true, that infants cannot aliene their estates: but infant trustees, or mortgagees, are enabled to convey, under the direction of the court of chancery or exchequer, or other courts of equity, the estates they hold in trust or mortgage, to such person as the court shall appointz. Also it is generally true, that an infant can do no legal act : yet, an infant, who has an advowson, may present to the benefice when it becomes voida. For the law in this case dispenses with one rule, in order to maintain others of far greater consequence: it permits an infant to [466] present a clerk (who, if unfit, may be rejected by the bishop) rather than either suffer the church to be unserved till he comes of age, or permit the infant to be debarred of his right by lapse to the bishop. An infant may also purchase lands, but his purchase is incomplete: for, when he comes to age, he may either agree or disagree to it, as he thinks prudent or proper, without alleging any reason; and so may his heirs after him if he dies without having completed his agreement. It is, farther, generally true, that an infant, under twenty-one, can make no deed but what is afterwards voidable; yet in some cases he may bind himself apprentice by deed indented or indentures, for seven years; and he may by deed or will appoint a guardian to his children, if he has any. Lastly, it is generally true, that an infant can make no other contract that will bind him yet he may bind himself to pay for his necessary meat, drink, apparel, physic,

z Stat. 7 Ann. c. 19. 4 Geo. III. c. 16. a Co. Litt. 172,

b Ibid, 2.

e Stat. 5 Eliz. c. 4. 43 Eliz. c. 2. Cro, Car.

179.

d Stat. 12 Car. II. c. 24.

and such other necessaries (6); and likewise for his good teaching and instruction, whereby he may profit himself afterwards. And thus much, at present, for the privileges and disabilities of infants.

e Co. Litt. 172.

(6) It has been held, that an infant is not liable to repay money lent to him, although he should lay it out in necessaries. 1 Salk. 386. Nor is he bound to pay for goods bought to trade with. Bull. N. P. 154. But debts contracted during infancy are a good consideration to support a promise made to pay them, when a person is of full age. Infancy may be given in evidence upon the general issue, or it may be pleaded. Bull. 152.

And where the defendant pleads infancy, and the plaintiff replies that the defendant confirmed the promise or contract when he was of age; the plaintiff need only prove the promise, and the defendant must discharge himself by proof of the infancy. 1 T. R. 648.

CHAPTER THE EIGHTEENTH.

OF CORPORATIONS.

WE have hitherto considered persons in their natural capa

eities, and have treated of their rights and duties. But, as all personal rights die with the person`; and, as the necessary forms of investing a series of individuals, one after another, with the same identical rights, would be very inconvenient, if not impracticable; it has been found necessary, when it is for the advantage of the public to have any particular rights kept on foot and continued, to constitute artificial persons, who may maintain a perpetual succession, and enjoy a kind of legal immortality.

THESE artificial persons are called bodies politic, bodies corporate, (corpora corporata,) or corporations of which there is a great variety subsisting, for the advancement of religion, of learning, and of commerce: in order to preserve entire and for ever those rights and immunities, which, if they were granted only to those individuals of which the body corporate is composed, would upon their death be utterly lost and extinct. To shew the advantages of these incorporations, let us consider the case of a college in either of our universities, founded ad studendum et orandum, for the encouragement and support of religion and learning. If this were a mere voluntary assembly, the individuals which compose it might indeed read, pray, study, and perform scholastic exercises together, so long as they could agree to do so: but they could neither frame, nor receive any laws or rules of their

VOL. I.

81