emselves as apprentices. When one finds such a record, it is a certainty that the minor was aged 14 or more. Further, if judged by the court to be of sufficient discretion, a child could make a will disposing of personal property (but not real property) at the age of 14 (age 12 for females). Children could also be witnesses in a court action. Children aged 14 or more could legally witness a deed, will, or contract. For a variety of practical reasons the parties to such acts might prefer to use adults (or at least older children) as witnesses. However, at one time it was common in England to select as a witness a young child who could be counted upon to outlive the parties to the transaction.
So strongly was this traditional common law imbedded in American society that the Virginia colonial legislature deviated from it in only one circumstance. In 1727, after the Virginia legislature enacted a statute declaring slaves to be subject to the same treatments and laws as real estate, it recognized that real estate could not be devised in the will of a minor, and amended its Act to permit a child aged 18 or more to bequeath slaves in a will. 2
Minors and Land
The particular case of land transactions deserves special attention. Minors could be landowners, since they could acquire land by gift or inheritance. Land was never without title, so a father’s will devising land to a minor resulted in the minor’s immediate ownership regardless of age. Likewise, the land of an intestate person fell immediately to a specific heir, even if a minor, under the law of succession.
However, it is relatively rare to find minors selling land. Nothing in the common law prevented a minor from selling land, but the contract was unenforceable if the minor later changed his mind. As Blackstone expressed it: “an infant can neither aliene his lands, nor do any legal act, nor make a deed, nor indeed any manner of contract… that is of any force or effect.” Since the minor could renege on the sale at any time, no prudent person would buy from a minor. The other party to the deed or contract was best served by either renting the land (to reduce his risk) or by contracting with the infant’s guardian, who had the right to dispose of the minor’s property or bind an infant’s estate to a contract. In cases where the infant himself sells land (quite a rare occurrence), we usually find contractual language requiring him to reaffirm the sale upon reaching majority and usually a subsequent deed upon reaching majority. Persons under 21 generally sold land through a guardian, a “next friend”, or a parent.
Likewise, nothing in the common law prevented an infant from buying land or other property. But, again, such an action could be later be repudiated by the minor. Therefore, for the same reasons, we generally find such purchases made on the infant’s behalf by an adult guardian or next friend. Blackstone points out that an infant could renege on any contract upon reaching majority: “an infant may also purchase lands, but his purchase is incomplete: for, when he comes to age, he may either agree or disagree to it, as he thinks prudent or proper, without alleging any reason…”
Virginia in 1642 made these questions moot by enacting a statute to eliminate the “bad effects of tradeing and trucking with orphants” by legislating that anyone who attempted to “barter, bargain, buy or sell with orphants under age shall lose all that he so bartereth” plus a penalty of twice the value.3 To assure enforcement, the law provided that the informer would receive half the penalty.
Minors and Lawsuits
In the same manner, children were protected from lawsuits. A child under 21 could not be sued except in the name of his guardian. Conversely, an infant could initiate a suit only in the name of his guardian or next friend. A minor could, however, be charged with any crime at the age of 14.
Females and males were treated identically in all but one minor circumstance. Modern gender differences regarding legal age, such as permitting females to marry without consent at an earlier age than males,