Infants under the law
In reviewing the ways to research Missouri laws yesterday, or indeed the laws of any jurisdiction we’re trying to review, The Legal Genealogist mentioned the need to be “fairly inventive … in using search terms” when trying to find the laws we want.1
Sometimes codified laws (those organized by topic rather than just by date2) are called codes and sometimes revised laws and sometimes revised statutes and…
You get the picture.
So reader Dennis Lee Burman weighed in with an additional warning: “Speaking of being ‘fairly inventive … in using search terms,’” he said, “the Revised Code of Washington many years ago indexed laws dealing with minors (anyone under 18, or it might have been under 21 way back then) under ‘Infants.’”
Oh, yeah.
That’s one of those words that really get 21st century genealogists into trouble.
Because we tend to think of an infant like the image you see here: the crying baby.
And that’s not at all what was meant by the law.
By definition, an infant under the common law was simply “one under the age of twenty-one years”3 or, more fully, “a person within age, not of age, or not of full age; a person under the age of twenty-one years; a minor.”4
Easy peasy, right?
Under the common law.
That law we inherited from England and brought over as colonists and — for the most part — incorporated into American law.5
But you know that’s not the only legal system around, right? There’s also the civil law, the law that originated in the 6th century with the Emperor Justinian6 and became the foundation for most legal systems around the world including France, Spain, The Netherlands (just to name a few of the European colonial powers) — and remains the law today in places like Quebec and Louisiana.
And things under the civil law can be just a little different.
You see, the civil code doesn’t refer to infants at all, but rather to minors and adults. Seems clear, right? Except that, under the 1825 Louisiana Code, for example, you get a bit of an anomaly:
Art. 40. — Males who have not attained the age of fourteen years complete, and females who are under twelve, are under the age of puberty ; and sons who have attained fourteen years complete, and daughters the age of twelve complete, are distinguished by the name of adults.
Art. 41. — Minors are those of both sexes, who have not yet attained the age of one-and-twenty years complete ; and they remain under the direction of tutors or curators till that age. When they have arrived at it, they then are said to be of full age.7
You read that correctly. Until age 21, folks were considered minors. But girls at 12 and boys at 14 were adults.
So from the age of puberty until age 21, they were minor adults.
You have to love the language of the law.
SOURCES
- Judy G. Russell, “Show Me Laws,” The Legal Genealogist, posted 9 June 2016 (https://www.legalgenealogist.com/blog : accessed 10 June 2016). ↩
- Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 216, “codification.” ↩
- John Bouvier, A Law Dictionary Adapted to the Constitution and Laws of the United States of America and of the Several States of the American Union, rev. 6th ed. (1856), 628, “infant” ↩
- Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 619, “infant.” ↩
- Ibid., 232, “common law.” ↩
- Ibid., 207, “civil law.” ↩
- Book I: Of Persons, Title I, Articles 40-41, in Civil Code of the State of Louisiana (n.p. : p.p., 1825), 66; digital images, Google Books (http://books.google.com : accessed 10 June 2016). ↩
Did Louisiana have statutes for emancipating those under 21?
Absolutely, and you’ll want to check the statutes of the time to see just how that was done. But you have to love Article 39 (Code of 1825): “Emancipation and the other ways which free the son or daughter of family from the father’s authority, regard only the effects which the civil law gives to the paternal power, but changes in no respect those that are derived from natural right.”
A class I took on Louisiana civil law and genealogy mentioned these ages changed several times over the history of Louisiana. It affects age of marriage and consent to marry.
Louisiana is a state where a succession is opened when a parent dies. The minors get a tutor or tutrix and the minor adults get a curator. Louisiana genealogy gives me such a headache I will go back to my New Sweden and Spanish West Florida research.