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FIrst, we are to know what the age of discretion is for Man or Wo∣man? What full age? The age of dis∣cretion for a woman in judgement of our Law is 12. for a man 14. full age
is 21. and under that age they are said to be Infants in Law, and un∣der that age they have not power to dispose of their Estates, not are they liable to pay their own debts; It is true, that for necessaries, as Cloaths, Dyet, Schooling, & the like, they are liable, but for those neither they can∣not give a penal bond, a Bill they may, and it shall bind them. In ge∣neral, an Infant may better his condi∣tion, he can not make it worse; this I confess to be Law, yet it seems very hard to me, that an Infant should not be liable to pay such debts, as he shall ow for any thing had, or received af∣ter the age of discretion; especially, when I consider what the Law is in other cases of Infancy.
By custom, he may make a lease at his age of 15. and it shall bind him. Cook upon Littleton fol. 45. b. Nay further, by custom he may make a
Feoffement at 15. years, 5. H. 7. 41. 11. H. 4. 33. Now no custom is Law∣full, that is not reasonable.
And yet further, an Infant of the age of discretion, nay under, may suf∣fer death for Murder, or Theft, no∣thing more common. 3. H. 7. 12. an Infant betwixt 10. and 12. gave a man several wounds till he died, and then he drew the body into the Corn; forwhich he was convicted? but it is true, that judgement in that case was respited for his tender age, but many Justices that he was wor∣thy of death.
Note, an Infant of 9. years killed another, and it was adjudged, that he should be hanged, quia malitia sup∣plet aetatem. But execution was re∣spited to have pardon; see the Assises.
A Woman Infant within age kil∣led her Mistris, and was burnt for it, see likewise the Assises.
Again, an Infant shall not avoid a marriage at the age of discretion, made, and contracted by him. Cook upon Litt. fol. 79.
Now I argue thus; if an Infant may do the greater, why is it not reason that he should do the less? If he may be chargeable for things of a much higher nature, why not for those that are of a lower? By custom he may sell his Estate; By Law, he may suf∣fer death for Felony: and may con∣tract Matrimonie; things of much greater consequence to himself: why then in reason should he not be liable to the payment of his debts? my Lord Gook saith, that argumentum a majori ad minus, an argument from the greater to the less, is a good ar∣gument in Law.
Besides, he is as much obliged in reason and conscience, to pay his debts, as a man of full age, why then
the Law should not tie him to it, I know no reason: I mean for debts contracted after the age of di∣scretion: and if the Law then judges him to be discreet, why should it not make him just & honest. Men of themselves naturally are too prone to injustice and unrighteous dealing one with another, therefore very un∣fit that they should receive the least incouragement to it.
How frequent a thing is it for men in such case, to take the advan∣tage of infancy; and most unjustly to cousen their creditors of their just debts, which in conscience they are bound to satisfie.
But here it will be objected, that it is the creditours fault to trust such a one who is under age, and there∣fore if he suffer, he may thank him∣self.
To this I answer, that though the
ignorance of Law will not excuse a man, the ignorance of fact will, and how a man should know such a one to be an Infant, since many, nay most men may, and do deceive their Judges by their looks; I cannot think or imagine. And he that shall in∣quire his customers age, may sit still in his shop and blow his fingers, for any thing else that he shall have to do. I shall say no more but this, that certainly, that Law is most just, that gives the least Liberty or ad∣vantage of fraud or deceit to men. The next thing I shall speak of, and in that I shall be very short, is, Cler∣gy, and in that I shall propound this short question.