Page:Encyclopædia Britannica, Ninth Edition, v. 13.djvu/13

I N F I N F 3 the infant to some other person on proper cause being shown (see TRUSTEE). An infant is liable to a civil action for torts and wrongful acts committed by him. But, as it is possible sometimes so to shape the pleadings in an action 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 commit ting 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 reduc tion 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 u contract in itself just and reasonable would not be lesion entitling to restitution. Deeds in nonage, other than those whi^h are absolutely null ab initio, must bo challenged within the quad- ricnnium utile, or four years after majority. 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. (E. R. ) INFANTICIDE. The history of infanticide as an archaic institution has already been referred to in the article FOUNDLING HOSPITALS (vol. ix. p. 481). Children of both sexes were sacrificed as religious offerings. Indeed, in some cases, e.g., in expiations for sacrilege, the boy, as being the nobler child, was preferred. But what may be called the normal infanticide of early society was probably confined to girls. The custom is in certain places and for certain periods explained by the system of exogamy ; but much more generally, as in China at the present day, it is simply an illustration of what Malthus would call a ."positive check," the reckless propagation of children far outrunning the means of subsistence which the energy of the parents can provide. Infanticide still survives among many savage races ; and, where the necessity for strong warriors is felt, a selection is sometimes made of the weaker children for destruction. But this political element seldom enters into the custom. It is because girls cannot provide for themselves that they are killed. More complex were the leading forms of infanticide in India, now suppressed by the wise action of the British Government. The practice, though forbidden by both the Vedas and the Koran, prevailed among the Rajputs and certain of the aboriginal tribes. Among the aristocra tic Rajputs, for example, it was thought dishonour able that a girl should remain unmarried. Moreover, a girl may not marry below her caste ; she ought to marry her superior, or at least her equal. This reasoning was obviously most powerful with the highest castes, in which, accordingly, the disproportion of the sexes was painfully apparent. But, assuming marriage to be possible, it is ruinously expensive to the bride s father. He has to make gifts of money, clothes, jewels, and sweetmeats to the bride groom s relatives ; and when the marriage ceremony comes, he has, chiefly owing to the exactions of the Brahmans and Bhats or minstrels, to face a lavish expenditure on feasts which in the case of some rajas has been known to reach more than 100,000. To avoid all this, the Rajput killed a certain proportion of his daughters, sometimes in a very singular way. A pill of tobacco and bhang might be given to^the newborn child to swallow; or it was drowned in milk ; or the mother s breast was smeared with opium or the juice of the poisonous Datum. A common form was to cover the child s mouth with a plaster of cow-dung before it drew breath. Infanticide was also practised to a small extent by some sects of the aboriginal Kaudhs, and by the poorer hill tribes of the Himalayas. Where infanticide occurs in India, though it really rests on the economic facts stated, there is usually some poetical tradition of its origin. The measures against the practice were begun towards the end of the 18th century by Jonathan Duncan and Major Walker. They were continued by a series of able and earnest officers during the present century. One of its chief events, representing many minor events, was the Umritsur durbar of 1853, which was arranged by the late Lord Lawrence. At that great meeting the chiefs residing in the Punjab and the trans-Sutlej states signed an agreement engaging to expel from casto every one who committed infanticide, to adopt fixed and moderate rates of marriage expenses, and to exclude from these ceremonies the minstrels and beggars who had so greatly swollen the expense. According to the present law, if the female children fall below a certain percentage in any tract or among any tribe in northern India where infanticide formerly prevailed, the suspected village is placed under police supervision, the cost being charged to the locality. By these measures, together with a strictly enforced system of reporting births and deaths, infanticide has been almost trampled out ; although some of the Rajput clans keep their female offspring suspiciously close to the lowest average which secures them from surveillance. The modern crime of infanticide shows no symptom of diminution in the leading nations of Europe. In all of them it is closely connected with illegitimacy in the class of farm and domestic servants. The crime is generally committed by the mother for the purpose of completing the concealment of her shame, and in other cases, where shame has not survived, in order to escape the burden of her child s support. The paramour sometimes aids in the crime, which is not confined to unmarried mothers. The ease with which affiliation orders are obtained in Great Britain must save the lives of many children. In France, where the inquiry into paternity is forbidden, a controversy still goes on as to the influence of hospitals for " assisted children," which are said to save life at the expense of morality. It seems certain that the great administrative change involved in closing the " tour " at these hospitals has not perceptibly affected infanticide in France. The laws of tho European states differ widely on this subject, some of them treating infanticide as a special crime, others regarding it merely as a case of murder of unusually difficult proof. In the law of England, the inexcusable killing of infants is theoretically murder. Tho infant must of course be a human being in the legal sense ; and " a child becomes a human being when it has completely proceeded in a living state from the body of its mother, whether it has breathed or not, and whether it has an independent circulation or not, and whether the navel string is severed or not ; and the killing of such a child is homicide when it dies after birth in consequence of injuries received before, during, or after birth. A child in the womb, or in the act of birth, though it may have breathed, is therefore not a human being, the killing of which amounts to homicide.