<<Would Henry Pemberton have to be at least 18 or maybe 21 before he could be a witness? >>  had a family emergency preventing me from answering sooner. Belated answer:

Common Law did allow minors to witness documents. It is difficult to give a source for a common law, since by its nature, common law is unwritten law. It is custom. You can’t look up a code governing the age of majority, since the law isn’t written down and there was no *one*  age of majority. The age of majority was different for each action. Generally, under common law, anyone under 14 was considered "of tender years", and anyone 14 years old had reached "the age of discretion".

The age of majority for witnessing documents, including wills and bonds, was 14. A child of 14 could choose his own guardian. A man could own land, through inheritance, at 14. A 14 year old could distribute personality through a will, but had to be 21 to distribute land by a will. A fourteen year old could administer an estate, until this was changed to 16. Only one executor was needed to transfer property of the estate, but "the one" could not be a minor. In order to transfer land, the minor had to have another person over the age of 21 sign with him, but there is usually no notice that one of the executors was a minor. Some wills state that the minor will be an executor when the minor "comes of age". The testator is actually making an exception to the rule, which is why it is clearly stated.

Some attorneys joke that Virginians cared more about their land than they did their first born child. Owning land was the main exception to ages of majority. To buy or sell property alone, a man had to be 21. [but watch out for the deeds where there is more than one person named as one party. One of them could be a minor.] After 1767, a man had to be 21 and own land, in order to vote.

There was no such thing as "they can't be held accountable", because they were "underage". Virginia has always had a legal presumption that all men are honest when they give their oath. Therefore we don’t sequester juries. There was also a presumption that children were as honest as their parents, and could therefore sign as witnesses on legal documents. Also, under common law, parents could not be held responsible for their children’s actions.

A girl could marry at age 12. If you doubt this happened, see Helen Leary’s, North Carolina Research", pg 153, in which she quotes North Carolina Justice, a summary of law from 1839, stating that if a girl is married before the age of 12, she had a right to void the marriage when she reached the age of 12. This certainly wouldn’t have been the rule if it never happened.

Men could marry at 14. At 16, a man could enter the militia and be taxed by the government, although it is well known that sometimes a child, even a 12 year old, was allowed to participate in militia.

The term "infant" means a minor, under the age of 21, but is used in a different sense. Parents had the obligation to support children until the age of 21, [until changed to 18] but lost all rights to the child at 21. They could not prevent or force a marriage or sale of a minor’s property, once the child reached majority. So if a man states that his wife is "an infant under coveture" , it simply means that the "child" is married and under the protection of a husband, not the parents. Her parents have no rights, and the husband can act "in the right of the wife".

The "age of majority" means the minimum age at which rights attach to the individual. "Infant" implies the maximum age, 21, at which parents hold any form of responsibility. But coveture trumps minority. If the woman was under 21, the husband’s rights prevailed over her parents. When men married at 14, they were considered emancipated from parents. When women married, the husband became responsible for the wife, and "ownership", of sorts, transferred to the husband. The wife was chattel, which under common law, is synonymous with "slave", so the current "ownership" is clearly defined in some documents.

Langdon Hagen-Long

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See:

Minor, John B., Institutes of Common and Statute Law. vol. I. (Richmond: priv. publ., 1882). A text for law students, sold by University of Virginia.

John Fauchereaud Grimkéé, The Duty of Executors and Administrators. (New York: J. Swords, 1797)

John Fauchereaud Grimkéé, The Public Laws of the State of South-Carolina. (Philadelphia: R. Aitken & son, 1790).

See also: Michie’s Jurisprudence, Common Law, 3: 494. Available in most Virginia law libraries.


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