Page:EB1911 - Volume 14.djvu/544

Rh 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 ).

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.

 INFANTE (Spanish and Portuguese form of Lat. infans, young child), a title of the sons of the sovereign of Spain and Portugal, the corresponding infanta being given to the daughters. The title is not borne by the eldest son of the king of Spain, who is prince of Asturias, Il principe de Asturias. Until the severance of Brazil from the Portuguese monarchy, the eldest son was prince of Brazil. While a son or daughter of the sovereign of Spain is by right infante or infanta of Spain, the title, alone, is granted to other members of the blood royal by the sovereign. 