[ 461 ] CHAPTER THE SEVENTEENTH. OF GUARDIAN AND WARD. THE only general private relation now remaining to be discussed, is that of guardian and ward: which bears a very near resemblance to the last, and is plainly derived out of it: the guardian being only a temporary parent, that is, for so long a time as the ward is an infant, or under age. In examining this species of relationship, I shall first consider the different kinds of guardians, how they are appointed, and their power and duty; next, the different ages of persons, as defined by the law; and lastly, the privileges and disabilities of an infant, or one under age and subject to guardianship. 1. THE guardian with us performs the office both of the tutor and curator of the Roman laws; the former of which had the charge of the maintenance and education of the minor, the latter the care of his fortune; or, according to the language of the court of chancery, the tutor was the committee of the person, the curator the committee of the estate. But this office was frequently united in the civil law a; as it is always in our law with regard to minors, though as to lunatics and idiots it is commonly kept distinct. Or the several species of guardians, the first are guardians by nature; viz. the father and (in some cases) the mother of the child. For, if an estate be left to an infant, the father is by common law the guardian, and must account to his child for the profits". And with regard to daughters, it seems by construction of the statute 4 & 5 Ph. & Mar. c. 8. that the father might by deed or will assign a guardian to any a Ff. 26. 4. 1. b Co. Litt. 88. woman-child under the age of sixteen; and, if none be so assigned, the mother shall in this case be guardian. There are also guardians for nurture which are, of course, the father or mother, till the infant attains the age of fourteen years and in default of father or mother, the ordinary usually assigns some discreet person to take care of the infant's personal estate, and to provide for his maintenance and education. (1) Next are guardians in socage (an appellation which will be fully explained in the second book of these Commentaries), who are also called guardians by the common law. These take place only when the minor is entitled to some estate in lands, and then by the common law the guardianship devolves upon his next of kin, to whom the inheritance cannot possibly descend: as, where the estate descended from his father, in this case his uncle by the mother's side cannot possibly inherit this estate, and therefore shall be the guardian . For the law judges it improper to trust the person of an infant in his hands, who may by possibility become ́ heir to him; that there may be no temptation, nor even suspicion of temptation, for him to abuse his trust. The Roman laws proceed on a quite contrary principle, committing the care of the minor to him who is the next to succeed to the inheritance, presuming that the next heir would take the best care of an estate to which he has a prospect of succeeding: and this they boast to be "summa providentia i." But in the mean time they seem to have forgotten, how much it is the guardian's interest to remove the incumbrance of his pu [462] pil's life from that estate for which he is supposed to have so great a regard. And this affords Fortescue', and sir Edward (1) This power of the ecclesiastical court to appoint guardians is ques tionable; lord Hardwicke expressly denied it, and lord Mansfield seems to have considered it as limited to the appointment of a guardian ad litem, where an infant was a party to a suit in the court. 3 Atkins, 631. 3 Burr: 1436. n Coke", an ample opportunity for triumph; they affirming, that to commit the custody of an infant to him that is next in succession is "quasi agnum committere lupo, ad devorandum "" These guardians in socage, like those for nurture, continue only till the minor is fourteen years of age; for then, in both cases, he is presumed to have discretion, so far as to choose. his own guardian. This he may do unless one be appointed by the father, by virtue of the statute 12 Car. II. c.24. which, considering the imbecility of judgment in children of the age of fourteen, and the abolition of guardianship in chivalry (which lasted till the age of twenty-one, and of which we shall speak hereafter) enacts, that any father, under age or of full age, may by deed or will dispose of the custody of his child, either born or unborn, to any person, except a popish recusant, either in possession or reversion, till such child attains the age of one-and-twenty years. These are called guardians by statute, or testamentary guardians. There are also special guardians, by custom of London, and other places °; but they are particular exceptions, and do not fall under the general law. (2) m 1 Inst. 88. "See Stat. Hibern. 14 Hen. III. This policy of our English law is warranted by the wise institutions of Solon, who provided that no one should be another's guardian, who was to enjoy the estate after his death. (Potter's Antiq. b. 1. c. 26.) And Charondas, another of the Grecian legislators, di- (2) On the subject of guardians of different kinds, I refer the student to a series of notes by Mr. Hargrave on the passage of Co. Litt., so often referred to in the margin, p.88. nn. 63, 64, 65, 66, 67, 68, 69, 70, and 71.; as well as to a note by Mr. Amos on Fortescue, c. 44.; and Fonblanque's Treat. of Equity, B. ii. P. 2. ch. 2. s. 2. The guardianship, to which it is practically the most important to attend, is that by testament, of which a sufficiently accurate outline is drawn in the text; I will mention only one or two circumstances that seem to have been omitted. In the first place, the statute empowers fathers only to make the appointment; this was probably an unintentional omission; but the consequence is, that where a mother is the surviving parent, the children, upon her death, will be left to find guardians according to the provisions of the common law. In this case, where none other can be found, the jurisdiction of the chancellor arises on the part of the crown to protect the infant subject, and he will THE power and reciprocal duty of a guardian and ward are the same, pro tempore, as that of a father and child; and therefore I shall not repeat them; but shall only add, that the guardian, when the ward comes of age, is bound to give him an account of all that he has transacted on his behalf, [463] and must answer for all losses by his wilful default and negligence. In order therefore to prevent disagreeable contests with young gentlemen, it has become a practice for many guardians, of large estates especially, to indemnify themselves by applying to the court of chancery, acting under it's direction, and accounting annually before the officers of that For the lord chancellor is, by right derived from the crown, the general and supreme guardian of all infants, as well as idiots and lunatics; that is, of all such persons as have not discretion enough to manage their own concerns. In case, therefore, any guardian abuses his trust, the court will check and punish him; nay sometimes will proceed to the removal of him, and appoint another in his stead P. court. 2. LET us next consider the ward or person within age, for whose assistance and support these guardians are constituted by law; or who it is, that is said to be within age. The ages of male and female are different for different purposes. A male at twelve years old may take the oath of allegiance; at fourteen is at years of discretion, and therefore may consent or disagree to marriage, may choose his guardian, and, if his discretion be actually proved, may make his testament of his personal estate; at seventeen may be an executor; and at twenty-one is at his own disposal, and may aliene his lands, goods, and chattels. A female also at seven P 1 Sid. 424. 1 P. Will. 703. will delegate the care to some proper person. As to the origin of this jurisdiction, see Vol. III. p. 427. n.(1). The effect of the appointment by testament is rather more extensive than the text implies, because the statute annexes to the office the custody and management of the infant's real and personal estate, and empowers the guardian to bring all such actions relating thereto as a guardian in socage might. On the other hand, this appointment, as stated in the text, does not so far supersede the general duty and power of the chancellor, as delegate of the crown, to protect infants, but that he may interfere in cases of gross misconduct, or legal incapacity, such as that of lunacy or bankruptcy, to controul or even to remove him. years of age may be betrothed, or given in marriage; at nine is entitled to dower; at twelve is at years of maturity, and therefore may consent or disagree to marriage; and, if proved to have sufficient discretion, may bequeath her personal estate at fourteen is at years of legal discretion, and may choose a guardian; at seventeen may be executrix; and at twenty-one may dispose of herself and her lands. So that full age in male or female is twenty-one years, which age is completed on the day preceding the anniversary of a person's birth; who till that time is an infant, and so styled in law. Among the antient Greeks and Romans women were never [464] of age, but subject to perpetual guardianship', unless when married, "nisi convenissent in manum viri:" and, when that perpetual tutelage wore away in process of time, we find that, in females as well as males, full age was not, till twenty-five years. Thus, by the constitution of different kingdoms, this period, which is merely arbitrary, and juris positivi, is fixed at different times. Scotland agrees with England in this point; (both probably copying from the old Saxon constitutions on the continent, which extended the age of minority" ad annum vigesimum primum, et eo usque juvenes subtutelam reponunt;") but in Naples they are of full age at eighteen; in France, with regard to marriage, not till thirty : and in Holland at twenty-five. (3) 3. INFANTS have various privileges, and various disabilities but their very disabilities are privileges; in order to secure them from hurting themselves by their own improvident acts. An infant cannot be sued but under the protection, and joining the name, of his guardian; for he is to defend him against all attacks as well by law as otherwise " (4): but (3) See ante, p. 437. n. (4). (4) This is incorrectly expressed; 1st. The infant is sued in his own name alone as any other person, but he appears to defend his cause by guardian, being supposed, without discretion, to appoint an attorney for that |