1911 Encyclopædia Britannica/Infant
INFANT (in early forms enfaunt, enfant, through the Fr. enfant, from Lat. infans, in, not, and fans, the present participle of fari, to speak), a child; in non-legal use, a very young child, a baby, or one of an age suitable to be taught in an “infant school”; in law, a person under full age, and therefore subject to disabilities not affecting persons who have attained full age.
This article deals with “infants” in the last sense; for the more general sense see Infancy and Child. The period of full age varies widely in different systems, as do also the disabilities attaching to nonage (non-age). In Roman law, the age of puberty, fixed at fourteen for males and twelve for females, was recognized as a dividing line. Under that age a child was under the guardianship of a tutor, but several degrees of infancy were recognized. The first was absolute infancy; after that, until the age of seven, a child was infantiae proximus; and from the eighth year to puberty he was pubertati proximus. An infant in the last stage could, with the assent of his tutor, act so as to bind himself by stipulations; in the earlier stages he could not, although binding stipulations could be made to him in the second stage. After puberty, until the age of twenty-five years, a modified infancy was recognized, during which the minor’s acts were not void altogether, but voidable, and a curator was appointed to manage his affairs. The difference between the tutor and the curator in Roman law was marked by the saying that the former was appointed for the care of the person, the latter for the estate of the pupil. These principles apply only to children who are sui juris. The patria potestas, so long as it lasts, gives to the father the complete control of the son’s actions. The right of the father to appoint tutors to his children by will (testamentarii) was recognized by the Twelve Tables, as was also the tutorship of the agnati (or legal as distinct from natural relations) in default of such an appointment. Tutors who held office in virtue of a general law were called legitimi. Besides and in default of these, tutors dativi were appointed by the magistrates. These terms are still used in much the same sense in modern systems founded on the Roman law, as may be seen in the case of Scotland, noticed below.
By the law of England full age is twenty-one, and all minors alike are subject to incapacities. The period of twenty-one years is regarded as complete at the beginning of the day before the birthday: for example, an infant born on the first day of January attains his majority at the first moment of the 31st of December. The incapacity of an infant is designed for his own protection, and its general effect is to prevent him from binding himself absolutely by obligations. Of the contracts of an infant which are binding ab initio, the most important are those relating to “necessaries.” By the Sale of Goods Act 1893, an infant liable on a contract for necessaries can be sued only for a reasonable price, not necessarily the price he agreed to pay. The same statute declares “necessaries” to mean “goods suitable to the condition in life of the infant, and to his actual requirements at the time of the sale and delivery.” In the case of goods having a market price, the market price is reasonable. In all other cases the question is one of fact for the jury. The protection of infants extends sometimes to transactions completed after full age; the relief of heirs who have been induced to barter away their expectations is an example. “Catching bargains,” as they are called, throw on the persons claiming the benefit of them the burden of proving their substantial righteousness.
At common law a bargain made by an infant might be ratified by him after full age, and would then become binding. Lord Tenterden’s act required the ratification to be in writing. But now, by the Infants’ Relief Act 1874, “all contracts entered into by infants for the repayment of money lent or to be lent, or for goods supplied or to be supplied (other than contracts for necessaries), and all accounts stated, shall be absolutely void,” and “no action shall be brought whereby to charge any person upon any promise made after full age to pay any debt contracted during infancy, or upon any ratification made after full age of any promise or contract made during infancy, whether there shall or shall not be any new consideration for such promise or ratification after full age.” For some years after the passage of this statute highly conflicting views were held as to the meaning of the part of section 2 whereby it was enacted that “no action shall be brought whereby to charge any person ... upon any ratification made after full age of any promise or contract made during infancy.” Some authorities were of opinion that the section only applied to the three classes of contract made void by the previous section, viz. for goods supplied, money lent and on account stated. Others thought the effect to be that no contract, except for necessaries, made during infancy could be enforced after the infant came to full age. After several conflicting decisions it has been settled that both these views were wrong. Of the infant’s contracts voidable at common law there were two kinds. The first kind became void at full age, unless expressly ratified. The second kind were valid, unless repudiated within a reasonable time after full age was attained by the infant. The Infants’ Relief Act (section 2) strikes only at the first class and leaves the second untouched. Thus a promise of marriage made during infancy cannot be ratified so as to become actionable: but an infant’s marriage settlement, being of the second class, is valid, unless it is repudiated within a reasonable time after the infant attains full age. What is a reasonable time depends on all the circumstances of the case. In a case decided in 1893 a settlement made by a female infant was allowed to be repudiated thirty years after she attained full age, but the circumstances were exceptional. A contract of marriage may be lawfully made by persons under age. Marriageable age is fourteen in males and twelve in females. So, generally, an infant may bind himself by contract of apprenticeship or service. Since the passing of the Wills Act, an infant, except he be a soldier in actual military service or a seaman at sea, is unable to make a will. Infancy is in general a disqualification for public offices and professions, e.g. to be a member of parliament or an elector, a mayor or burgess, a priest or deacon, a barrister or solicitor, &c.
Before 1886 the custody of an infant belonged in the first place, and against all other persons, to the father, who was said to be “the guardian of his children by nature and nurture”; and the father might by deed or will dispose of the custody or tuition of his children until the age of twenty-one.
The Guardianship of Infants Act 1886 placed the mother almost on the same footing as the father as to guardianship of infants. On the death of the father the mother becomes guardian under the statute, either alone when no guardian has been appointed by the father, or jointly with any guardian appointed by him under 12 Chas. II. c. 24. A change of the law even more important is that whereby the mother may by deed or will appoint a guardian or guardians of her infant children to act after her death. If the father survives the mother, the mother’s guardian can only act if it be shown to the satisfaction of the court that the father is unfitted to be the sole guardian. On the death of the father, the guardian so appointed by the mother acts jointly with any guardian appointed by the father. The Guardianship of Infants Act 1886 also gives power to the high court and to county courts to make orders, upon the application of the mother, regarding the custody of an infant, and the right of access thereto of either parent. The court must take into consideration “the welfare of the infant, and ... the conduct of the parents, and ... the wishes as well of the mother as of the father.” The same statute also empowers the high court of justice, “on being satisfied that it is for the welfare of the infant,” to “remove from his office any testamentary guardian or any guardian appointed or acting by virtue of this act,” and also to appoint another in place of the guardian so removed.
The same statute gives power to a court sitting in divorce practically to take away from a parent guilty of a matrimonial offence all rights of guardianship. When a decree for judicial separation or divorce is pronounced, the court pronouncing it may at the same time declare the parent found guilty of misconduct to be unfit to have the custody of the children of the marriage. “In such case the parent so declared to be unfit shall not, upon the death of the other parent, be entitled as of right to the custody or guardianship of such children.” The court exercises this power very sparingly. When the declaration of unfitness is made, the practical effect is to give to the innocent parent the sole guardianship, as well as power to appoint a testamentary guardian to the exclusion of the guilty parent.
Another radical change has been made in the rights of parents as to guardianship of their children. In consequence of several cases where, after children had been rescued by philanthropic persons from squalid homes and improper surroundings, the courts had felt bound by law to redeliver them to their parents, the Custody of Children Act 1891 was passed. It provides that when the parent of a child applies to the court for a writ or order for the production of the child, and the court is of opinion that the parent has abandoned or deserted the child, or that he has otherwise so conducted himself that the court should refuse to enforce his right to the custody of the child, the court may, in its discretion, decline to issue the writ or make the order. If the child, in respect of whom the application is made, is being brought up by another person (“person” includes “school or institution”), or is being boarded out by poor-law guardians, the court may, if it orders the child to be given up to the parent, further order the parent to pay all or part of the cost incurred by such person or guardians in bringing up the child.
A parent who has abandoned or deserted his child is, prima facie, unfit to have the custody of the child. And before the court can make an order giving him the custody, the onus lies on him to prove that he is fit. The same rule applies where the child has been allowed by the parent “to be brought up by another person at that person’s expense, or by the guardians of a poor-law union, for such a length of time and under such circumstances as to satisfy the court that the parent was unmindful of his parental duties.”
The 4th section of the Custody of Children Act 1891 preserves the right of the parent to control the religious training of the infant. The father, however unfit he may be to have the custody of his child, has the legal right to require the child to be brought up in his own religion. If the father is dead, and has left no directions on the point, the mother may assert a similar right. But the court may consult the wishes of the child; and when an infant has been allowed by the father to grow up in a faith different from his own, the court will not, as a rule, order any change in the character of religious instruction. This is especially the case where the infant appears to be settled in his convictions.
In the same direction as the Custody of Children Act 1891 is the Children Act 1908, whereby considerable powers have been conferred on courts of summary jurisdiction (see Children, Law Relating to).
There is not at common law any corresponding obligation on the part of either parent to maintain or educate the children. The legal duties of parents in this respect are only those created by the poor laws, the Education Acts and the Children Act 1908.
An infant is liable to a civil action for torts and wrongful acts committed by him. But, as it is possible so to shape the pleadings as to make what is in substance a right arising out of contract take the form of a right arising from civil injury, care is taken that an infant in such a case shall not be held liable. With respect to crime, mere infancy is not a defence, but a child under seven years of age is presumed to be incapable of committing a crime, and between seven and fourteen his capacity requires to be affirmatively proved. After fourteen an infant is doli capax.
The law of Scotland follows the leading principles of the Roman law. The period of minority (which ends at twenty-one) is divided into two stages, that of absolute incapacity (until the age of fourteen in males, and twelve in females), during which the minor is in pupilarity, and that of partial incapacity (between fourteen and twenty-one), during which he is under curators. The guardians (or tutors) of the pupil are either tutors-nominate (appointed by the father in his will); tutors-at-law (being the next male agnate of twenty-five years of age), in default of tutors-nominate; or tutors-dative, appointed by royal warrant in default of the other two. No act done by the pupil, or action raised in his name, has any effect without the interposition of a guardian. After fourteen, all acts done by a minor having curators are void without their concurrence. Every deed in nonage, whether during pupilarity or minority, and whether authorized or not by tutors or curators, is liable to reduction on proof of “lesion,” i.e. of material injury, due to the fact of nonage, either through the weakness of the minor himself or the imprudence or negligence of his curators. Damage in fact arising on a contract in itself just and reasonable would not be lesion entitling to restitution. Deeds in nonage, other than those which are absolutely null ab initio, must be challenged within the quadriennium utile, or four years after majority.
The Guardianship of Infants Act 1886, the Custody of Children Act 1891 and the Children Act 1908, mentioned above, all apply to Scotland.
In the United States, the principles of the English common law as to infancy prevail, generally the most conspicuous variations being those affecting the age at which women attain majority. In many states this is fixed at eighteen. There is some diversity of practice as to the age at which a person can make a will of real or personal estate.