Part 3: How old did folks have to be

A reader asks a wonderful question: how old did folks have to be to do certain things? Part 3 of the answer looks at the common law rules.

Blog reader Howard Swain knows you can use the ages at which folks could legally do things to help calculate likely birth years. So, he asks, how old DID folks have to be to marry or pay taxes or serve in the militia anyway?

We’ve already seen that some colonial charters had specific age provisions. Whenever a fundamental document like a colonial charter specified an age, that would trump any other type of law on that subject. When the colonial charter or similar document didn’t have age provisions, the next place to look for the answer is the specific statutory laws in effect at that time and place since the statutes would trump any unwritten rule of law. But what if the statutes also didn’t say how old somebody had to be? Then what?

That’s when you turn to those vast unwritten rules of law collectively known as the common law. Black defines the common law as “the body of those principles and rules of action, relating to the government and security of persons and property, which derive their authority solely from usages and customs of of immemorial antiquity, or from the judgments and decrees of the courts recognizing, affirming, and enforcing such usages and customs; and, in this sense, particularly the ancient unwritten law of England.” And, he adds, it “designates that portion of the common law of England (including such acts of parliament as were applicable) which had been adopted and was in force here at the time of the Revolution.”1

Blackstone's Commentaries

So… let’s see here. Ancient. Unwritten. Terrific. How exactly do you look THAT up? Once again, we all lucked out thanks to yet another law geek. William Blackstone was the youngest son of a prosperous middle class London family who basically didn’t make good as a young lawyer. He went into academia, and decided to give a series of lectures on the law. Those lectures became the cornerstone of what became known as Blackstone’s Commentaries on the Laws of England, perhaps the most comprehensive review of the common law as it existed at the time.

There are four volumes (Of the Right of Persons; Of the Right of Things; Of Private Wrongs; and Of Public Wrongs)2 and to call them influential in the development of American law is to minimize their importance. Let’s put it this way: Blackstone’s Commentaries have been cited in 390 separate U.S. Supreme Court opinions, and that Court has described them this way: “the Commentaries on the Laws of England not only provided a definitive summary of the common law but was also a primary legal authority for 18th and 19th century American lawyers.”3

The Commentaries have been reprinted time and again, you can buy a reprint in paperback or get a Kindle version free from Amazon, and there are all sorts of free digital versions all over the Internet. Some are better than others; some are worse. I love Yale Law School’s Avalon Project, usually a wonderful source of legal documents, but can’t recommend its text version of the Commentaries. (It’s hard to take it seriously when every single solitary long s — the letter that looks so much like a lower case F in early manuscripts — is mistranscribed. I kid you not. It all reads like this quote: “IN difcuffing the realtion of mafter and fervant, I fhall, firft, confider the fevral forts of fervants…”4)

Among the best sources are complete digital image copies at Google Books and the Internet Archive. Even though the notes added by various editors for various publishers have clearly changed over the years, the text of Blackstone’s work has been largely preserved by them all, so it won’t make a lot of difference which one you use. And where the colonial charters and early statutes don’t speak about ages, Blackstone certainly does.

Here’s a sampler from an 1807 printing of volume I: Of the Rights of Persons, edited by Edward Christian, digital images available at Google Books:

Elected office: “In order to prevent the mischiefs that might arise, by placing this extensive authority in hands that are either incapable, or else improper, to manage it, it is provided by the custom and law of parliament, that no one shall sit or vote in either house, unless he be twenty-one years of age.”5

Voting: “no person under twenty-one years of age shall be capable of voting …”6

Oath of allegiance: “the oath of allegiance may be tendered to all persons above the age of twelve years…”7

Age to marry at all: “if a boy under fourteen, or a girl under twelve years of age, marries, this marriage is only inchoate and imperfect; and, when either of them comes to the age of consent aforesaid, they may disagree and declare the marriage void.”8

Marriage generally: “as the law now stands, we may upon the whole collect, that no marriage by the temporal law is ipso facto void, that is celebrated by a person in orders, in a parish church or public chapel (or elsewhere, by special dispensation)– in pursuance of banns or a license, — between single persons, — consenting,– of sound mind, — and of the age of twenty-one years; — or of the age of fourteen in males and twelve in females, with consent of parents or guardians, or without it, in case of widowhood.”9

Guardianship: Guardians for nurture (the parents) and for socage (common law guardians when land is inherited) “continue only till the minor is fourteen years of age; for then, in both cases, he is presumed to have discretion, so far as to choose his own guardian.”10 But there were also testamentary guardians (guardians named in a will) and they would usually serve until the ward was age 21.

Ages for males and females in general: “The ages of male and female are different for different purposes. A male at twelve years old may take the oath of allegiance; at fourteen is at years of discretion, and therefore may consent or disagree to marriage, may choose his guardian, and, if his discretion be actually proved, may make his testament of his personal estate; at seventeen may be an executor; and at twenty-one is at his own disposal, and may aliene his lands, goods, and chattels. A female also at seven years of age may be betrothed, or given in marriage; at nine is entitled to dower; at twelve is at years of maturity, and therefore may consent or disagree to marriage; and, if proved to have sufficient discretion, may bequeath her personal estate; at fourteen is at years of legal discretion, and may choose a guardian; at seventeen may be executrix; and at twenty-one may dispose of herself and her lands. So that full age in male or female is twenty-one years, which age is completed on the day preceding the anniversary of a person’s birth.”11 This “years of discretion” age would generally govern things like witnessing a deed or a will.

Crimes: “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,12 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.”13

As to the age for witnesses to crimes: “infants of any age are to be heard…” but a conviction “should not be grounded singly on the unsupported accusation of an infant under years of discretion.”14


SOURCES

  1. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 232, “common law.”
  2. Wikipedia (http://www.wikipedia.com), “William Blackstone,” rev. 5 Jan 2012. To be fair, Blackstone did become a successful lawyer and a judge later in life. Ibid.
  3. Washington v. Glucksberg, 521 U.S. 702, 712 (1997).
  4. William Blackstone, Commentaries on the Laws of England, Book the First: Of the Rights of Persons (Oxford : Clarendon Press, 1765), 411; html version, Yale Law School, Avalon Project (http://avalon.law.yale.edu/subject_menus/blackstone.asp : accessed 19 Jan 2012).
  5. Edward Christian, editor, Blackstone’s Commentaries on The Laws of England, Book I: Of the Rights of Persons (Portland : Thomas B. Wait & Co., 1807), 162; digital images, Google Books ( http://books.google.com/ebooks/reader?id=TZkkAAAAMAAJ&printsec=frontcover&output=reader : accessed 19 Jan 2012). Note that the pagination cited is drawn from the original.
  6. Ibid., 173.
  7. Ibid., 368.
  8. Ibid., 436.
  9. Ibid., 440.
  10. Ibid., 462.
  11. Ibid., 463.
  12. “Capable of malice or criminal intention; having sufficient discretion and intelligence to distinguish between right and wrong.” Black, A Dictionary of Law, 384, “doli capax.”
  13. Christian, ed., Blackstone’s Commentaries on The Laws of England, Book I: Of the Rights of Persons, 464.
  14. Blackstone, Commentaries on the Laws of England, Book IV: Of Public Wrongs, 5th edition (Dublin : p.p., 1793), 214.
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8 Responses to Part 3: How old did folks have to be

  1. Thank you, Judy! I’ve been reading your posts with great interest. They are a huge contribution to genealogy (and history).
    Doris

  2. Nancy Hurley says:

    Thanks Judy! Your posts are extremely helpful and well written. Enjoy your style. I just discovered your blog through Geneabloggers and subscribed to the RSS. I look forward to learning more from you.
    Nancy

  3. Yes, my 5th g-grandfather, Sgt Major William Kinnick, Rev War, as a youth of 14, in the County Court, in Maryland, was asked by the court (in the Maryland archives) which of two uncles he wished to have as his guardian. The court granted his choice (not the one where his father had placed him, at 2). Nice to see the ‘common law’ behind that court decision. Thanks, so much, for what you are doing for each of us who read your posts faithfully! ;-)

  4. Bobbie Taylor says:

    Interesting items! How often do you publish? I’m currently reading the colonial laws of new york. Question re Records of Colony of Rhode Island and Providence Plantation. Do you know if Volume 3 is complete as it stands? The volume I downloaded from archives.org goes only to abt pag 298, and the content stops before 1700, although the title states it includes up to 1706. There is also no index. I have the feeling that the material wasn’t available to the compilers, and the 1706 was added to show an attempt at continuity. Any comments?

    • Judy G. Russell says:

      Before I’d make any assumptions about the original compilers, I’d check with the library whose copy of that book was digitized to see if there was a glitch.

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