Part 7

An infant is liable to a civil action for torts and wrongful acts committed by him. But, as it is possible so to shape the pleadings 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 committing 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 reduction 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 a contract in itself just and reasonable would not be lesion entitling to restitution. Deeds in nonage, other than those which are absolutely null _ab initio_, must be challenged within the _quadriennium utile_, or four years after majority.

The Guardianship of Infants Act 1886, the Custody of Children Act 1891 and the Children Act 1908, mentioned above, all apply to Scotland.

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.

INFANTE (Spanish and Portuguese form of Lat. _infans_, young child), a title of the sons of the sovereign of Spain and Portugal, the corresponding _infanta_ being given to the daughters. The title is not borne by the eldest son of the king of Spain, who is prince of Asturias, _Il principe de Asturias_. Until the severance of Brazil from the Portuguese monarchy, the eldest son was prince of Brazil. While a son or daughter of the sovereign of Spain is by right infante or infanta of Spain, the title, alone, is granted to other members of the blood royal by the sovereign.

INFANTICIDE, the killing of a newly-born child or of the matured foetus. When practised by civilized peoples the subject of infanticide concerns the criminologist and the jurist; but its importance in anthropology, as it involves a widespread practice among primitive or savage nations, requires more detailed attention. J. F. McLennan (_Studies in Ancient History_, pp. 75 et seq.) suggests that the practice of female infanticide was once universal, and that in it is to be found the origin of exogamy. Much evidence, however, has been adduced against this hypothesis by Herbert Spencer and Edward Westermarck. Infanticide, both of males and females, is far less widespread among savage races than McLennan supposed. It certainly is common in many lands, and more females are killed than males; but among many fierce and savage peoples it is almost unknown. Thus among the Tuski, Ahts, Western Eskimo and the Botocudos new-born children are killed now and then, if they are weak and deformed, or for some other reason (such as the superstition attaching to birth of twins) but without distinction of sex. Among the Dakota Indians and Crees female infanticide is rare. The Blackfoot Indians believe that a woman guilty of such an act will never reach "the Happy Mountain" after death, but will hover round the scene of her misdeed with branches of trees tied to her legs. The Aleutians hold that child-murder brings misfortune on the whole village. Among the Abipones it is common, but the boys are usually the victims, because it is customary to buy a wife for a son, whereas a grown daughter will always command a price. In Africa, where a warm climate and abundance of food simplify the problem of existence, the crime is not common. Herr Valdau relates that a Bakundu woman, accused of it, was condemned to death. In Samoa, in the Mitchell and Hervey Islands, and in parts of New Guinea, it was unheard of; while among the cannibals, the Solomon Islanders, it occurred rarely. A theory has been advanced by L. Fison (_Kamilaroi and Kurnai_, 1880) that female infanticide is far less common among the lower savages than among the more advanced tribes. Among some of the most degraded of human beings, such as the Yahgans of Tierra del Fuego, the crime was unknown, except when committed by the mother "from jealousy or hatred of her husband or because of desertion and wretchedness." It is said that certain Californian Indians were never guilty of child-murder before the arrival of the whites; while Wm. Ellis (_Polynesian Researches_, i. 249) thinks it most probable that the custom was less prevalent in earlier than later Polynesian history. The weight of evidence tends to support Darwin's theory that during the earliest period of human development man did not lose that strong instinct, the love of his young, and consequently did not practice infanticide; that, in short, the crime is not characteristic of primitive races.

Infanticide may be said to arise from four reasons. It may be (1) an act of callous brutality or to satisfy cannibalistic cravings. A Fuegian, Darwin relates, dashed his child's brains out for upsetting a basket of fish. An Australian, seeing his infant son ill, killed, roasted and ate him. In some parts of Africa the negroes bait lion-traps with their own children. Some South American Indians, such as the Moxos, abandon or kill them without reason; while African and Polynesian cannibals eat them without the excuse of the periodic famines which made the Tasmanians regard the birth of a child as a piece of good fortune.

2. Or infanticide may be the result of the struggle for existence. Thus in Polynesia, while the climate ensures food in plenty, the relative smallness of the islands imposed the custom on all families without distinction. In the Hawaiian Islands all children, after the third or fourth, were strangled or buried alive. At Tahiti fathers had the right (and used it) of killing their newly-born children by suffocation. The chiefs were obliged by custom to kill all their daughters. The society of the Areois, famous in the Society Islands, imposed infanticide upon the women members by oath. In other islands all girl-children were spared, but only two boys in each family were reared. The difficulties of suckling partly explain the custom of killing twins. For the same reason the Eskimo and Red Indians used to bury the infant with the mother who died in childbirth. Among warrior and hunter tribes, where women could not act as beasts of burden as in agricultural communities, and where a large number of girls were likely to attract the hostile attentions of neighbouring tribesmen, girl-babies were murdered. Arabs, in ancient times, buried alive the majority of female children. In many lands infanticide was regarded as a meritorious act on the part of a parent, done, as a precaution against famine, in the interests of the tribe. In other parts of the world, infanticide results from customs which impose heavy burdens on child-rearing. Of these artificial hardships the best example is afforded by India. There the practice, though forbidden by both the Vedas and the Koran, prevailed among the Rajputs and certain aboriginal tribes. Among the aristocratic Rajputs, it was thought dishonourable 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 most powerful with the highest castes, in which the disproportion of the sexes was painfully apparent. But, assuming marriage to be possible, it was ruinously expensive to the bride's father, the cost in the case of some rajahs having been known to exceed £100,000. To avoid all this, the Rajput killed a proportion of his daughters--sometimes in a very singular way. A pill of tobacco and bhang might be given to the new-born child; or it was drowned in milk;[1] or the mother's breast was smeared with opium or the juice of the poisonous _datura_. A common method 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 Khonds 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. Infanticide from motives of prudence was common among some American Indian tribes of the north-west, with whom the "potlatch" was an essential part of their daughter's marriage ceremonies.

3. Or infanticide may be in the nature of a religious observance. The gods must be appeased with blood, and it is believed that no sacrifice can be so pleasing to them as the child of the worshipper. Such were the motives impelling parents to the burning of children in the worship of Moloch. In India children were thrown into the sacred river Ganges, and adoration paid to the alligators who fed on them. Where the custom prevails as a sacrifice the male child is usually the victim.

4. Or, finally, infanticide may have a social or political reason. Thus at Sparta (and in other places in early Greek and Roman history) weakly or deformed children were killed by order of the state, a custom approved in the ideal systems of Aristotle and Plato, and still observed among the Eskimo and the Kamchadales.

AUTHORITIES.--Herbert Spencer, _Principles of Sociology_, i. 614-619; McLennan, _Studies in Ancient History_, pp. 75 et seq.; McLennan, "Exogamy and Endogamy" in the _Fortnightly Review_, xxi. 884 et seq.; Darwin, Descent of Man, ii. 400 et seq.; L. Fison, and A. W. Howitt, _Kamilaroi and Kurnai_ (1880); Westermarck, _History of Human Marriage_ (1894); Browne, _Infanticide: Its Origin, Progress and Suppression_ (London, 1857); Lord Avebury, _Prehistoric Times_ (1900), and _Origin of Civilization_ (1902).

_Law._--The crime of infanticide among civilized nations is still frequent. It is however due in most cases to abnormal causes, such as a sudden access of insanity, privation, unreasoning dislike to the child, &c. It is most closely connected with illegitimacy in the class of farm and domestic servants, the more common motive being the terror of the mother of incurring the disgrace with which society visits the more venial offence. Often, however, it is inspired by no better motive than the wish to escape the burden of the child's support. The granting of affiliation orders thus tends to save the lives of many children, though it provides a motive for the paramour sometimes to share in the crime. The laws of the 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 infanticide is murder or manslaughter according to the presence or absence of deliberation. The infant must 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." À 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. The older law of child murder under a statute of James I. consisted of cruel presumptions against the mother, and it was not till 1803 that trials for that offence were placed under the ordinary rules of evidence. The crown now takes upon itself the onus of proving in every case that the child has been alive. This is often a matter of difficulty, and hence a frequent alternative charge is that of concealment of birth (see BIRTH), or concealment of pregnancy in Scotland. It is the opinion of the most eminent of British medical jurists that this presumption has tended to increase infanticide. Apart from this, the technical definition of human life has excited a good deal of comment and some indignation. The definition allows many wicked acts to go unpunished. The experience of assizes in England shows that many children are killed when it is impossible to prove that they were wholly born. The distinction taken by the law was probably comprehended by the minds of the class to which most of the unhappy mothers belong. Partly to meet this complaint it was suggested to the Royal Commission of 1866 that killing during birth, or within seven days thereafter, should be an offence punishable with penal servitude. The second complaint is of an opposite character--partly that infanticide by mothers is not a fit subject for capital punishment, and

## partly that, whatever be the intrinsic character of the act, juries will

not convict or the executive will not carry out the sentence. Earl Russell gave expression to this feeling when he proposed that no capital sentence should be pronounced upon mothers for the killing of children within six months after birth. When there has been a verdict of murder, sentence of death must be passed, but the practice of the Home Office, as laid down in 1908, is invariably to commute the death sentence to penal servitude for life. The circumstances of the case and the disposition and general progress of the prisoners under discipline in a convict prison are then determining factors in the length of subsequent detention, which rarely exceeds three years. After release, the prisoner's further progress is carefully watched, and if it is seen to be to her advantage the conditions of her release are cancelled and she is restored to complete freedom.

In India 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 19th century. One of its chief events, representing many minor occurrences, was the Amritsar durbar of 1853, which was arranged by Lord Lawrence. At that meeting the chiefs residing in the Punjab and the trans-Sutlej states signed an agreement engaging to expel from caste 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.

It is difficult to say to what extent infanticide prevails in the United Kingdom. At one time a large number of children were murdered in England for the purpose of obtaining the burial money from a benefit club,[2] but protection against this risk has been provided for by the Friendly Societies Act 1896, and the Collecting Societies Act 1896. The neglect or killing of nurse-children is treated under BABY-FARMING, and CHILDREN, LAW RELATING TO.

In the United States, the elements of this offence are practically the same as in England. The wilful killing of an unborn child is not manslaughter unless made so by statute. To constitute manslaughter under Laws N.Y. 1869, ch. 631, by attempts to produce miscarriage, the "quickening" of the child must be averred and proved (_Evans_ v. _People_, 49 New York Rep. 86; see also _Wallace_ v. _State_, 7 Texas app. 570).

FOOTNOTES:

[1] In Baluchistan, where children are often drowned in milk, there is a euphemistic proverb: "The lady's daughter died drinking milk."

[2] See _Report on the Sanitary Condition of the Labouring Classes_, "Supplementary Report on Interment in Towns," by Edwin Chadwick (_Parl. Papers_, 1843, xii. 395); and _The Social Condition and Education of the People_, by Joseph Kay (1850).

INFANTRY, the collective name of soldiers who march and fight on foot and are armed with hand-weapons. The word is derived ultimately from Lat. _infans_, infant, but it is not clear how the word came to be used to mean soldiers. The suggestion that it comes from a guard or regiment of a Spanish infanta about the end of the 15th century cannot be maintained in view of the fact that Spanish foot-soldiers of the time were called _soldados_ and contrasted with French _fantassins_ and Italian _fanteria_. The _New English Dictionary_ suggests that a foot-soldier, being in feudal and early modern times the varlet or follower of a mounted noble, was called a boy (cf. _Knabe_, _garçon_, footman, &c., and see VALET).

HISTORICAL SKETCH

The importance of the infantry arm, both in history and at the present time, cannot be summed up better and more concisely than in the phrase used by a brilliant general of the Napoleonic era, General Morand--"_L'infanterie, c'est l'armée_."

It may be confidently asserted that the original fighting man was a foot-soldier. But infantry was differentiated as an "arm" considerably later than cavalry; for when a new means of fighting (a chariot or a horse) presented itself, it was assimilated by relatively picked men, chiefs and noted warriors, who _ipso facto_ separated themselves from the mass or reservoir of men. How this mass itself ceased to be a mere residue and developed special characteristics; how, instead of the cavalry being recruited from the best infantry, cavalry and infantry came to form two distinct services; and how the arm thus constituted organized itself, technically and tactically, for its own work--these are the main questions that constitute the historical side of the subject. It is obvious that as the "residue" was far the greatest part of the army, the history of the foot-soldier is practically identical with the history of soldiering.

It was only when a group of human beings became too large to be surprised and assassinated by a few lurking enemies, that proper fighting became the normal method of settling a quarrel or a rivalry. Two groups, neither of which had been able to surprise the other, had to meet face to face, and the instinct of self-preservation had to be reconciled with the necessity of victory. From this it was an easy step to the differentiation of the champion, the proved excellent fighting man, and to providing this man, on whom everything depended, with all assistance that better arms, armour, horse or chariot could give him. But suppose our champion slain, how are we to make head against the opposing champion? For long ages, we may suppose, the latter, as in the _Iliad_, slaughtered the sheep who had lost their shepherd, but in the end the "residue" began to organize itself, and to oppose a united front to the enemy's champions--in which term we include all selected men, whether horsemen, charioteers or merely specially powerful axemen and swordsmen. But once the individual had lost his commanding position, the problem presented itself in a new form--how to ensure that every member of the group did his duty by the others--and the solution of this problem for the conditions of the ancient hand-to-hand struggle marks the historical beginning of infantry tactics.

The phalanx and the legion.

Gallic warriors bound themselves together with chains. The Greeks organized the city state, which gave each small army solidarity and the sense of duty to an ideal, and the phalanx, in which the file-leaders were in a sense champions yet were made so chiefly by the unity of the mass. But the Romans went farther. Besides developing solidarity and a sense of duty, they improved on this conception of the battle to such a degree that as a nation they may be called the best tacticians who ever existed. Giving up the attempt to make all men fight equally well, they dislocated the mass of combatants into three bodies, of which the first, formed of the youngest and most impressionable men, was engaged at the outset, the rest, more experienced men, being kept out of the turmoil. This is the very opposite of the "champion" system. Those who would have fled after the fall of the champions are engaged and "fought out" before the champions enter the area of the contest, while the champions, who possess in themselves the greatest power of resisting and mastering the instinct of self-preservation, are kept back for the moment when ordinary men would lose heart.