_ capacity to make _reasonable_ contracts
in each particular case. It of course requires more capacity to make a
reasonable contract in some cases than in others. It requires, for
example, more capacity to make a reasonable contract in the purchase of
a large estate, than in the purchase of a pair of shoes. But the mental
capacity to make a reasonable contract, in any particular case, is, in
reason, the only legal criterion of the legal competency to make a
binding contract in that case. The age, whether more or less than
twenty-one years, is of no legal consequence whatever, except that it is
entitled to some consideration as _evidence of capacity_.

It may be mentioned, in this connection, that the rules that prevail,
that every man is entitled to freedom from parental authority at
twenty-one years of age, and no one before that age, are of the same
class of absurdities with those that have been mentioned. The only
ground on which a parent is ever entitled to exercise authority over his
child, is that the child is incapable of taking reasonable care of
himself. The child would be entitled to his freedom from his birth, if
he were at that time capable of taking reasonable care of himself. Some
become capable of taking care of themselves at an earlier age than
others. And whenever any one becomes capable of taking reasonable care
of himself, and not until then, he is entitled to his freedom, be his
age more or less.

These principles would prevail under the true trial by jury, the jury
being the judges of the capacity of every individual whose capacity
should be called in question.]

[Footnote 104: In contrast to the doctrines of the text, it may be
proper to present more distinctly the doctrines that are maintained by
judges, and that prevail in courts of justice.

Of course, no judge, either of the present day, or perhaps within the
last five hundred years, has admitted the right of a jury to judge of
the _justice_ of a law, or to hold any law invalid for its injustice.
Every judge asserts the power of the government to punish for acts that
are intrinsically innocent, and which therefore involve or evince no
criminal intent. To accommodate the administration of law to this
principle, all judges, so far as I am aware, hold it to be unnecessary
that an indictment should charge, or that a jury should find, that an
act was done with a criminal intent, except in those cases where the act
is _malum in se_,--criminal in