A Plea for the Adult Minor
“ He is of age; ... he shall speak for himself.” — JOHN ix, 21.
SHAKESPEARE, in opening his play of King Richard II, makes that monarch address the Duke of Lancaster as “ Old John of Gaunt, time-honored Lancaster.” The person thus described as venerable was fifty-eight years of age in 1398, when the words are supposed to have been spoken. The line is not one of the poet’s inaccuracies. People were then considered old at a time now regarded as merely the ripeness of middle age; and if, perchance, they survived to three-score, they were hailed as patriarchs.
Relying upon some early Oslerian theory, the ancient Romans held that the burden of years had so impaired the mentality of the average citizen at sixty as to make him unfit to vote, and after that age his elective franchise was withdrawn — at least, in the best days of the Republic. Hippocrates, the sage of Greece, set the end of youth at twenty-eight. Aristotle, a little later, put the beginning of old age at thirty-five.
These ancient and mediæval instances are useful as showing how the world’s subsequent progress has retarded the descent of human beings into old age, decay, and death. Men live much longer now than they lived then, and better; and without other evidence than mere age, we never decide them to be mentally incapacitated.
What, it is proper to ask, has the advance of enlightenment accomplished in the meanwhile toward the shortening of the time required for the average youth to arrive at full manhood, the golden moment when he is acknowledged by law to be competent to manage his own affairs and to participate in those of the state? An examination of the record will disclose surprisingly little gain, on the whole, in this important respect.
The phenomenon has not received the attention it deserves. There is perhaps nothing wherein political and legal development has exhibited more sluggishness than in fixing the point at which the citizen emerges from “ infancy ” into maturity. Attempts to explain the inconsistency by citing differences in climate, or varying degrees of enlightenment, fail under analysis. A sample effort of this sort is seen in Mrs. Elsie Clews Parsons’s remarkable book, The Family, in which the following theory is elaborated by going all the way into the monkey tribes for substantiation: —
“ Among mankind, as among the lower animals, the duration and nature of parental care, in general, more or less correspond to the period and degree of immaturity characteristic of the offspring, which, in turn, more or less correspond to the nature of the environment. Where the forms of food and shelter in use are supplied, for the most part, directly by nature, such as roots, seeds, berries, fruits, shell-fish, etc., and caves, trees, rude huts of bark or wood, children from seven to ten years old, or even younger, in some cases soon after they are weaned, may begin to provide for themselves. Where, on the other hand, the habits of satisfying physical wants are more or less elaborate, depending upon speed, strength, endurance, cunning, foresight, self-control, persistence, in hunting, fishing, cultivating the soil, handicraft, cattleraising, or trade, offspring may be economically dependent upon parents up to all ages from ten to twenty. With the growth of knowledge and of specialization, the production of certain social values, as in all the so-called learned professions of to-day, for example, requires ever-increasing degrees of intelligence and training. This class of producers may even have to depend on parental support or its substitutes until the age of twenty-six or twenty-eight.”
If we are to become unable to shift for ourselves until twenty-six or twenty-eight years of age, as knowledge and specialization advance, and if we must bow to Dr. Osler’s wisdom along with that of Mrs. Parsons, the theorists will soon reduce our average period of full-blown and unimpaired maturity to twelve or fourteen years! Of course, it is not certain that Mrs. Parsons would accept Dr. Osier’s theory, or that Dr. Osier would accept hers. The public can accept one about as easily as the other, or both about as easily as either.
It takes no longer to become self-supporting in the “learned professions” now than it ever did. There has never been any limit to the amount of preparation possible — though it is easy enough to overdo the preparation to such an extent that, like Mr. Casaubon in Middlemarch, a person is helpless when the moment comes to turn the preparation into accomplishment. Men who, enjoying ample means, remain in college perfecting their preparation until twenty-six or twentyeight years old, are not properly classed as unable to earn a living sooner. If possessed of common sense and thrown on their own resources before finishing their mapped-out schemes of study, they could sustain themselves, perhaps not in accordance with their cherished plans, but possibly with greater material success.
The tiny street-Arab will master the complications of existence in an enlightened civilization as quickly as the little savage will master the simplicity of savage existence, and more quickly than the youth of the lower orders under feudalism mastered the intermediate difficulties of feudal existence. As a matter of fact, ancient and modern civilizations, broadly contrasted, support the postulate that the higher the plane of enlightenment, the lower the age at which intellectual competence is recognized, in whole or in part.
Compare the complex and brilliant Athenian civilization, which enfranchised the youth early, with the gloomy and fruitless Spartan civilization, which held the youth in bondage. Compare the laws encouraging the French youth of to-day with the laws hampering the Russian youth of the same age. Compare the ponderous civilization of China, where a man does not reach full legal stature until his thirtieth birthday, with the sprightly and efficient, civilization of Japan, where twenty is full legal age. And finally, to seek in our own recent history an example to controvert Mrs. Parsons, observe the fact that we have fixed the voting age of the Filipinos at twenty-three years, whereas our own voting age is two years less. If our statesmen had reasoned that the youth in the simpler civilization arrives at maturity of intelligence sooner, they would have put the voting age of the Filipino at less than twenty-one instead of more.
Major Charles R. Woodruff, of the medical corps of the United States Army, has received commendation from the majority of disinterested critics for sharply attacking the system by which young men are kept in subordinate positions in our military service. He advocates reducing the retiring age to fifty-five, and making promotion much more rapid than it is at present. Major Woodruff’s argument is that if a man follows too long, he deteriorates in self-reliance and initiative, both of which are essential in posts of military command. In substantiation of the claim, the major points to the fact that most of the improvements in the army are the ideas of young officers. If this is true in military life, why is it not likewise true in other kinds of life?
The civilizations of the world have all had about the same opinion as to the age at which government has the right to call on the citizen for military service, thus recognizing physical maturity and a certain amount of discretion; but the age at which governments have recognized the right of the citizen to claim the advantages of full mental maturity has tended to be earlier as civilization has developed. No modern Caucasian nation insists upon such a long period of preparation for full manhood as the ancient Hebrews and Spartans —thirty years; and the onlymodern power of the first rate that compels its citizens to wait until they are twenty-five years old to exercise the privilege of the ballot is Russia, the least enlightened of all the great powers. Russia is on a par with Turkey in this respect, except that Turkey is more liberal in protecting the property rights of women, and in permitting marriage without parental consent after the contracting parties have arrived at years of discretion. The Mohammedan marriage laws set forth that “ when a child has attained to puberty and discretion, the power of parents is at an end, and he is free to join himself to whomsoever he pleases.” In Russia, parental consent is always necessary.
As we go into the remote past, our information is less definite; but most of that which is available appears to be against Mrs. Parsons’s assumption. Taking the early Hebrew civilization, in which the machinery of life was very simple, we find Benjamin, the youngest son of Jacob, referred to as “ a little child ” when he was thirty years old (Genesis, xliv, 20). Johns, in Babylonian and Assyrian Laws, Contracts, and Letters, says, —
“ It is not easy to determine when children ceased to be under the paternal power. Betrothed daughters remained in their father’s house; so did married sons sometimes. Whether the birth of a child, making the young man himself a father, freed him as head of a family, or whether it was entering a house of his own, we cannot yet say.”
It is when we come to study the English and American record that the lack of progress in shortening legal and political infancy is most surprisingly revealed. In many other enlightened countries of to-day, the laws on this subject represent a distinct improvement upon the laws existing in the same countries on the same subject within the past few centuries or generations.
In France, as late as the middle of the eighteenth century, the full legal age of males for matrimony was not reached until thirty. France “ changed all that " with the Revolution. In most of the states composing the German Empire, the citizen had to be twenty-four to be of full age, until after the Franco-Prussian war; now the full age in the majority of these states is twenty-one, and twenty-four in the minority. Within the past generation, Spain has lowered the voting age of her citizens from twenty-five to twenty-one years. Citizens receive the franchise at twenty years of age in Japan, Hungary, and Switzerland, with corresponding civil rights. In Mexico, the United States of Colombia, Nicaragua, Uruguay, and Peru, the citizen can qualify to vote at eighteen. In Peru, it is curious to note, he votes at eighteen if married, and at twenty-one if unmarried; while in Uruguay he votes at eighteen if married, and at twenty if unmarried. This recalls the old Spartan practice of curtailing a man’s political privileges if he remained a bachelor after thirty-five.
Countries in which men do not reach full legal age, civil and political, until a later time than in the United States and England, are Argentina, where the full age is twenty-two; Holland, where it is twenty-three; Austria, where it is twentyfour; Russia, Norway, Sweden, Italy, Portugal, Turkey, and Chile, in all of which it is twenty-five; and China, where it is thirty.
As in the United States and England, the political and civil maturity of the citizen is acknowledged at twenty-one by France, Spain, Belgium, Greece, Roumania, Brazil, Bolivia, Ecuador, Venezuela, Servia, and most of Germany; except that in Belgium, Bolivia, and Roumania, a man must be twenty-five years of age to marry against the parental will. An interesting feature of Brazilian law is that which gives persons the management of their own earnings from literature or military service after they have reached years of discretion (fourteen in Brazil).1
The civilization of England and the United States, in many ways the highest in the world, makes legal infancy as long now as it was in the remotest ancestral generations to which history can trace the stock. This almost rivals the performance of China in retaining thirty years as full legal age from the time of Confucius until the present.
We inherited our twenty-one-year qualification from England, and England — according to Blackstone — got it from the Saxon tribes that came over from the mainland of Europe. Our present age of full legal manhood, therefore, is one of the few features of our institutions which have been unchanged for over a thousand years. Perhaps it would not be too much to say that this is the only vital feature in our civilization, except monogamy, that has undergone no sweeping alteration during all those centuries.
Reflection upon the immense superiority of our own means of conveyance and communication to those existing in the ancient and mediæval world, and even in the modern world until the nineteenth century was nearly half over, together with the slightest appreciation of the modern systems of transportation and transmission, the development of printing, and the growth of newspaper, library, and school, should easily establish the claim that the inhabitants of enlightened nations, and of our own especially, become sophisticated now sooner than they did in the generations before man had worked out his “ many inventions ” of the present epoch. But, though the Athenian or the Roman youth was not invested with full legal manhood before twenty-five, he enjoyed partial legal manhood at a much earlier age than that which constitutes one of the great fetiches of modern American civilization, the sacred twenty-one, to which we cling with a fatuousness truly Chinese.
In Athens, at the apogee of her culture and glory, when she possessed perhaps the highest intellectual enlightenment in the history of the world, the young man was released from parental authority at nineteen, a year before he could be drafted for military service; whereas, our law makes the citizen liable to conscription as a soldier three years before the age of legal maturity in civil life. At nineteen the Athenian was allowed certain voting privileges, albeit he was not permitted to speak in public assemblies until some years later, and could not hold office until thirty. The American at nineteen may speak anywhere, though he may not vote; and we let him teach school before he can vote, whereas the Athenian was prohibited from being a schoolmaster before forty. In duller Sparta, the young man was accorded no political or personal independence until he had reached thirty. The kings had to be over thirty, and the senators over sixty. In Crete the full legal age was twenty-seven, applying equally to marriage, military service, and participation in politics.
Roman young men assumed the toga virilis at seventeen, when they were qualified for marriage, military service, and limited political functions, full legal rights being postponed till twenty-five. The Roman was never entirely freed from parental control except by parental demise, but in that event his proportionate civil rights were about as far in advance of those of the twentieth-century American male “ infant ” at a corresponding age, as are the rights of a “ minor ” in modern Scotland, where a youth from fourteen to twenty-one can legally make contracts for other things than necessities of life, conduct business on his own account, and be declared a bankrupt, precisely as if he were twenty-one.
The English or American minor is usually destitute of business rights, except that he may contract for “ necessities,” or contract in accordance with legal compulsion, or will a certain amount of personal property, after a certain age.
It is hardly to be gainsaid that the average citizen of the United States to-day is as far advanced intellectually at eighteen, in proportion to the general development of knowledge, as was the average citizen of twenty-one when the nation sprang into existence in the closing quarter of the eighteenth century. Some of the profoundest thinkers maintain that the general progress of mankind has been as great within the past one hundred years as it was during all history previous thereto. Those years have seen wonderful awakenings in the legal and political treatment of women. Our own country has gone to excess in giving full political and legal citizenship to millions of slaves without exacting the slightest preparation for the responsibilities which such full citizenship implies. Yet the young American male of Caucasian blood, the product of thirty or forty generations which enjoyed constantly-increasing advantages of acquisition and development, must wait as long in the twentieth century to become a legal man as did any of his ancestors, however remote, in the American or English line. He is still an “ infant ” until he is twenty-one years old; and an infant is regarded by American law as practically incompetent and irresponsible except for evil. In the legal text-books we find the chapter on “ Infants ” followed first by the chapter on “Idiots,” and then by the chapter on “ Lunatics.”
The young American woman has had the better of her brother in this respect; for in a number of states the full legal majority of women has been placed by statute at eighteen years. The absence of the very political equality for which the “ suffragettes ” clamor has been coincident with the extension of the civil rights of the American woman faster than those of the politically more potent male; though a few states have given women the privilege of voting in all elections, and many states have accorded it to them in some elections.
Most of the world’s sovereigns arrive at full age at eighteen, from three to seven years before any of their subjects are allowed to vote or manage their own business or earnings. Though nearly every monarchy, in line with ancient precedent, permits its rulers to assume all the royal powers and duties, however great, at an earlier age than that at which the citizens of this republic are suffered to transact business for themselves or to vote, there is a peculiar lack of harmony in the theories of nations, monarchical or republican, as to the proper age-qualification for offices of less than royal authority. In France* a man is not eligible to serve in a legislative body until he is forty years old, cannot act as a juror until he is thirty, must be from twenty-five to thirty-five (according to the importance of his jurisdiction) to be a judge, and must be twenty-five to be even a notary. England qualifies a citizen for Parliament, so far as age is concerned, at twenty-one, but insists upon a higher limit for priests and bishops of her established church. In the United States, no citizen may be a representative in Congress before twentyfive, or a senator before thirty; while the President must be thirty-five. It would appear that if Great Britain does not find it necessary to protect Parliament by a special age-limit, the United States might get along without one in Congress. Of what particular advantage is it to France that her national legislature excludes all aspirants who have not “come to forty year"’P Is her Chamber of Deputies calmer, or more efficient, than America’s House of Representatives or than Great Britain’s House of Commons ?
Looking deeper into this inconsistency in the reasoning of the nations with regard to age-qualification for public office, the investigator discovers that in Germany one cannot enter the Reichstag before twenty-five; that in Austria one cannot enter the Reichsrath before thirty; that in Belgium one cannot serve in the Chamber until twenty-five, or in the Senate until thirty; that in Italy and Roumania one must be twenty-five to be eligible to the Chamber, and forty to be eligible to the Senate; that one cannot serve in the Swedish legislature before thirty-five; that in Spain and Portugal one must be twenty-five to enter the Chamber, and thirty-five to enter the Senate; that one must be thirty to hold important public office in Holland, Denmark, Greece, Servia, or Turkey. Latin America reveals equally irreconcilable differences. For instance, the Venezuelan may hold office at twenty-one, the year he acquires the franchise; the Mexican acquires the franchise earlier than the Venezuelan, but cannot hold office until twenty-five and in some cases thirty; in Argentina the citizen votes at twentytwo, but cannot hold office until thirty; in Ecuador, Paraguay, Uruguay, and Peru he votes at the same age as in Venezuela or earlier, but cannot hold office mitil from four to seven years later.
Inasmuch as it is not apparent that an advanced age for holding office, as required in most of the countries of the Old World and the New, gives them any better public service than that of England, whose sons are permitted to hold office as soon as they can get it after reaching twenty-one, it naturally follows that England might lower the age of full legal manhood without threatening the safety of the franchise, or impairing the stability of business and property.
Few persons ever have any sense or character if they do not develop both by the time they are eighteen. This is a strong assertion, but it will bear the test, allowing for the marvelous advance in educational facilities and for the broad fact that the rule, not the exception, must be the basis of enlightened law. Not many who are unfit to vote or to manage their personal affairs at eighteen are intelligent enough to do so at twenty-one; certainly the difference, such as it is, does not warrant the law in holding back the entire population three years. Yet our law still defines an infant as “a person under twenty-one years of age.”
Barring occasional instances in which banks have obtained by charter the right to honor an infant’s check, we have the anomaly that a financial institution cannot legally suffer any person under twenty-one to withdraw funds deposited by such a person, even if there is not the scintilla of a doubt that the depositor personally earned the money. If a state can feel that it is proper to authorize some banks to honor infants’ checks, why should not the state expand the special privilege into a general one, and decree that all minors above, say, seventeen shall have the same power as persons over twenty-one to withdraw funds which they have themselves deposited in a bank? The very fact that financial institutions are in some cases being empowered, when they urgently ask the privilege, to cash infants’ checks against infants’ deposits, is conclusive demonstration that state legislators are beginning to recognize the injustice of the present iron-bound common-law definition of infancy, and to admit that the mature minor is entitled to relief.
Further recognition of the wrong wrought by the common law as to infancy appears in statutes, in some of our states, requiring courts to deliver small bequests directly to minors if the latter have come to years of discretion and seem to possess it. Under the common law, a man or a woman twenty years old cannot inherit fifty dollars without the appointment of a legal guardian to handle the money. The necessary court fees and the guardian’s legal percentage, or the fees alone in the event of the guardian’s serving without compensation, amount to an almost confiscatory tax on small bequests to minors. Cases have been known in which the fees and costs left nothing whatever for the unfortunate infant to inherit. And this legalized piracy has been excused under the hoary pretense of protecting those who are theoretically incompetent to protect themselves! Because there is a presumption that the minor might suffer loss by investing the money injudiciously, the money has been benevolently assimilated into the public treasury and the private pockets of clerks and guardians.
Most foreign nations are more liberal than this in permitting the emancipation of minors. Under the common law of England and the United States there is no complete emancipation until a person is twenty-one, except by statutes which have been passed in some states. France makes emancipation automatically complete in the event of marriage, and permits emancipation by special process at the age of fifteen. Italy, Belgium, and Roumania allow it at the same age as France, while in Greece it is allowed still earlier. Servia authorizes emancipation at seventeen; Switzerland, Norway, Hungary, Mexico, Russia, and a number of other countries, authorize it at eighteen; Canada, at nineteen; Austria, Holland, San Salvador, and some others, at twenty.
As the case stands to-day, in this country, not even the emancipation of an adult infant, by the parents can give validity to the infant’s contracts which would not otherwise be valid; nor does the marriage of a man under twenty-one, though the marriage itself be entirely legal, emancipate the husband. In a few states such a husband is partially emancipated by marriage, but in none is such emancipation complete. Under the common law, and in most of the states, we have the phenomenon of infant husbands bound by the debts legally contracted by their wives before marriage! A woman in some states, as has been said, is not an infant after she is eighteen, and we may discover an infant husband with a wife of no greater age who possesses full legal rights. Suppose a man of twenty, in any of these states, to have a wife of nineteen: the husband, at an age when Solomon was absolute ruler over Israel at the height of its glory, is an infant in law; and the wife, though younger, is of full legal age. She can manage her own property to suit herself ; he must let his property be managed by parent or guardian. An infant above seventeen in the United States may be executor of an adult’s will, yet cannot make a legally-binding contract unless for necessities or to carry out obligations already put upon him by law, as in the case of accomplished marriage or a bond given to cover a fine. The infant is regarded as irresponsible and helpless in business and politics, but above the age of seven he may be, and above the age of fourteen he often is, punished for crime by any penalty to which a criminal of full legal age is liable. If the infant is apparently aware of the gravity and consequence of his criminal act, he is subject to the same law as a person over twentyone. A man of eighteen committing murder is no less liable to the death sentence than a man of forty. Why not accord to the minor who realizes and fulfills his responsibility in honorable and wholesome endeavor, the rights and privileges of a person of twenty-one ? Why should the rule work only one way ?
Upon the logical assumption that the ballot ought to be given to a man of seventeen or eighteen who can meet the franchise tests in the various states with the exception of that which requires him to be twenty-one, we arrive at the conclusion that to lower the age-limit several years would release in our political life a powerful new force whose influence would be mightily revivifying. This argument is not to be indifferently brushed aside. The tonic effect of increasing in large measure the voting strength of that part of the electorate to which the ballot is a treasured novelty, a cause of pride, and a mark of manhood like the Roman’s toga virilis, would be felt in all the arteries of the nation’s political system. Better and brighter and cleaner political blood would course through the country’s veins. Political independence and initiative would receive new impetus, because youth is usually less subservient to prejudice, and more susceptible to exalted motives, than the later ages of men.
President Woodrow Wilson of Princeton University has declared that the greatest need of our national life is warmer encouragement of idealism. There is danger in getting too matter-of-fact. Money kings like the late Marshall Field know what they are about when they withhold full inheritance until their heirs shall have left youth and early manhood behind. These shrewd founders of financial dynasties count on the likelihood that life will then have lost its romance and fire, and that the traits of acquisitiveness and retentiveness will have developed to their utmost. The policy is successful in further swelling fortunes already inflated beyond reason; therefore, the policy is harmful to the body politic. It would be infinitely better for the country to have these mighty accumulations reduced by impulsive youth than to have them augmented by cynical middle age or multiplied by emotionless senility. The states may soon have to outlaw the dangerous device of treating heirs of full age and sanity as if they were infants or imbeciles, whose money must be held in trust to protect them from their own weak minds.
The national Constitution offers no obstacle to the shortening of political infancy. The voting age is fixed by the states; the only reference to it in the Federal fundamental law is in the amendment which prescribes reduced congressional representation as a penalty for denial of the ballot to male citizens above the age of twenty-one.
Desirable as we might consider such an increase in the political vitality of state and nation as would follow reduction of the period of political infancy, the argument for removing the business disabilities of the discreet minor, or “ adult infant,” is still stronger. Speaking broadly, it may be called unanswerable. The legal incapacitation of millions of citizens of character, education, and intelligence in the United States of America, in the twentieth century, for no other reason than that these citizens happen to be one, two, or three years under an age fixed at a guess by wild Saxon tribes a thousand years ago, is an anomaly and an anachronism. There is no excuse for the absurd condition which makes such citizens in this country the inferiors, legally, of citizens of equal age in Scotland.
To recognize in law the qualifications which exist in fact, the rights which are acknowledged by reason, would be to perform a simple act of justice already amazingly delayed, and would both steady and stimulate our youth at an impressionable period by giving them that sense of responsibility which is the most potent developer of true manhood and citizenship. The step would be in line with the progressive spirit of the age, and it is urgently suggested by the broadening horizon of modern enlightenment.
The regular legislatures can do much for the relief of the minor by giving him business and property emancipation. Constitutional conventions can give him political justice — and hardly a year passes without a constitutional convention in some part of the land. The American state whose lawmakers will set the example of reducing the years of adult infancy will contribute much to the increase of its own dynamic force, and will do the country a service of inestimable value. It is in the power of the lawmaker to accomplish, at the one point, results almost as important as the scientist has accomplished at the other. The scientist has prolonged human life both physically and mentally. He has made its capable years begin sooner and end later. Now let the legislator adjust his statutes to meet this vital fact.
- The remark is pertinent that no one of the standard encyclopædias in the English language contains an adequate discussion of the subject of full legal age, or gives definite data with regard to that age in the various nations of the modern world↩