birth (4); who till that time is an infant, and fo ftiled in law. Among the antient Greeks and Romans women were never of age, but subject to perpetual guardianfhip', unless when [ 464 ] married" nifi conveniffent 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 conftitution of different kingdoms, this period, which is merely arbitrary, and juris pofitivi, is fixed at different times. Scotland agrees with England in this point; (both probably copying from the old Saxon conftitutions on the continent, which extended the age of minority" ad annum vigefimum primum, et eo ufque juvenes fub "tutelam reponunt") 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 difabilities but their very difabilities are privileges; in order to fecure them from hurting themselves by their own improvident acts. An infant cannot be fued 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 otherwife" but he may fue either by his guardian, or prochein amy, his next friend who is not his guardian. This prochein amy may be any person who will undertake the infant's caufe; and it

any

(4) If he is born on the 1ft of January, he is of age to do legal act on the morning of the laft day of December, though he may not have lived twenty-one years by near forty-eight hours: the reafon affigned 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 fecond of the other, then twenty-one years would be complete; and in the law it is the fame whether a thing is done upon one mo. ment of the day or on another.

frequently happens, that an infant, by his prochein amy, inftitutes a fuit in equity against a fraudulent guardian. In criminal cafes, 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 difcern 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 [465] or difcretion *. And fir Matthew Hale gives us two instances, one of a girl of thirteen, who was burned for killing her miftrefs; another of a boy ftill 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 difcern between good and evil: and in fuch cases the maxim of law is, that malitia fupplet aetatem (5). So alfo, in much more modern times, a boy of ten years old, who was guilty of a heinous murder, was held a proper fubject for capital punishment, by the opinion of all the judges .

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 thofe matters; but this may be faid in general, that an infant fhall lofe nothing by non-claim, or neglect of demanding his right; nor fhall any other laches or negligence be imputed to an infant, except in fome very particular cafes.

It is generally true, that an infant can neither aliene his lands, nor do any legal act, nor make a deed, nor indeed any

(5) In fuch cafes, I conceive that justice tempered with mercy would inquire whether the malice is of fuch a hardened degree that a flighter punishment would not eradicate or correct it, and whether a milder fentence would not be fufficient to deter other boys of the fame age from a repetition of the crime,

manner

manner of contract, that will bind him. But ftill to all these rules there are fome exceptions: part of which were juft now mentioned in reckoning up the different capacities which they affume 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 eftates: but infant trustees, or mortagees, are enabled to convey, under the direction of the court of chancery or exchequer, or other courts of equity, the eftates they hold in truft or mortgage, to fuch perfon as the court fhall appoint. Also it is generally true, that an infant can do no legat act: yet, an infant, who has an advowson, may present to the benefice when it becomes void. For the law in this cafe difpenfes with one rule, in order to maintain others of far greater confequence: it permits an infant to present a clerk [ 466 ] (who, if unfit, may be rejected by the bishop) rather than either fuffer the church to be unferved till he comes of age, or permit the infant to be debarred of his right by lapse to the bishop. An infant may alfo purchase lands, but his purchafe 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 reafon; and fo 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 fome cafes 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. Laftly, 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 neceffary meat, drink, apparel, phyfic, and fuch other neceffaries (6); and likewife for his good teaching and inftruction,

(6) It has been held, than an infant is not liable to repay money lent to him, although he should lay it out in neceffaries. 1 Salk.

whereby he may profit himself afterwards e. And thus much, at prefent, for the privileges and difabilities of infants.

Co. Litt. 172.

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 confideration to fupport a promife made to pay them, when a perfon is full of age. Infancy may be given in evidence upon the general iffue, 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 promife, and the defendant muft difcharge himfelf by proof of the infancy. 1 T. R. 648,

CHAPTER THE EIGHTEENTH.

OF CORPORATIONS.

W

E have hitherto confidered persons in their natural capacities, and haye treated of their rights and duties. But, as all perfonal rights die with the perfon; and, as the neceffary forms of investing a series of individuals, one after another, with the fame identical rights, would be very inconvenient, if not impracticable; it has been found neceffary, when it is for the advantage of the public to have any particular rights kept on foot and continued, to constitute artificial perfons, who may maintain a perpetual fucceffion, and enjoy a kind of legal immortality.

THESE artificial perfons are called bodies politic, bodies corporate, (corpora corporata,) or corporations: of which there is a great variety fubfifting, 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 thofe individuals of which the body corporate is compofed, would upon their death be utterly loft and extinct. To fhew the advantages of these incorporations, let us confider the cafe of a college in either of our universities, founded ad ftudendum et orandum, for the encouragement and fupport of religion and learning. If this were a mere voluntary assembly, the individuals which compose it might indeed read, pray, study and perform scholastic exercifes together, so long as they could agree to do so: but they

could