.P 448
The RIGHTS of PERSONS.
BOOK I.
Ch. 17.
CHAPTER THE SEVENTEENTH.
OF GUARDIAN AND WARD.
THE only general private relation, now remaining to be difcuffed, is that of guardian and ward ; which bears a very near refemblance to the laft, and is plainly derived out of it : the guardian being only a temporary parent ; that is, for fo long time as the ward is an infant, or under age. In examining this fpecies of relationfhip, I fhall firft confider the different kinds of guardians, how they are appointed, and their power and duty : next, the different ages of perfons, as defined by the law : and, laftly, the privileges and difabilities of an infant, or one under age and fubject to guardianfhip.
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 perfon, the curator the committee of the eftate. 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 diftinct.
.{FS}
a Ff. 26. 4. 1.
.{FE}
OF
.P 449
The RIGHTS of PERSONS.
BOOK I.
Ch. 17.
OF the feveral fpecies of guardians, the firft are guardians by nature : viz. the father and (in fome cafes) the mother of the child. For, if an eftate be left to an infant, the father is by common law the guardian, and muft account to his child for the profits b. And, with regard to daughters, it feems by conftruction of the ftatute 4 & 5 Ph. & Mar. c. 8. that the father might by deed or will affign a guardian to any woman-child under the age of fixteen, and if none be fo affigned, the mother fhall in this café be guardian c. There are alfo guardians for nurture d, which are, of courfe, the father or mother, till the infant attains the age of fourteen years e: and, in default of father or mother, the ordinary ufually affigns fome difcreet perfon to take care of the infant's perfonal eftate, and to provide for his maintenance and education f. Next are guardians in focage, (an appellation which will be fully explained in the fecond book of thefe commentaries) who are alfo called guardians by the common law. Thefe take place only when the minor is entitled to fome eftate in lands, and then by the common law the guardianfhip devolves upon his next of kin, to whom the inheritance cannot poffibly defcent ; as, where the eftate defcended from his father, in this café his uncle by the mother's fide cannot poffibly inherit this eftate, and therefore fhall be the guardian g. For the law judges it improper to truft the perfon of an infant in his hands, who may be poffibility become heir to him ; that there may be no temptation, nor even fufpicion of temptation, for him to abufe his truft h. The Roman laws proceed on a quite contrary principle, committing the care of the minor to him who is the next to fucceed to the inheritance, perfuming that the next heir would take the beft care of an eftate, to which he has a profpect of fucceeding : and this they boaft to be “fumma providential i.” But in the mean time
.{FS}
b Co. Litt. 88.
c 3 Rep. 39.
d Co. Litt. 88.
e Moor. 738. 3 Rep. 38.
f 2 Jones 90. 2. Lev. 163.
g Litt. §. 123.
h Nunquam cuftodia alicujus de jure alicui remanet, de quo babeatur fufpicio, quod poffit vel velit aliquod jus in ipfa hereditate clamare. Glanv. l. 7. c. 11.
I Ff. 26. 4. 1.
.{FE}
I ii
they
.P 450
The RIGHTS of PERSONS.
BOOK I.
Ch. 17.
they forget, how much it is the guardian's intereft to remove the incumbrance of his pupil's life from that eftate, for which he is fuppofed to have fo great a regard k. And this affords Fortefcue l, and fir Edward Coke m, an ample opportunity for triumph ; they affirming, that to commit the cuftody of an infant to him that is next in fucceffion, is “quafi agnum committere lupo, ad devoran- “dumn.” Thefe guardians in focage, like thofe for nurture, continue only till the minor is fourteen years of age ; for then, in both cafes, he is prefumed to have difcretion, fo far as to choofe his own guardian. This he may do, unlefs one be appointed by father, by virtue of the ftatute 12 Car. II. c. 24. which, confidering the imbecility of judgment in children of the age of fourteen, and the abolition of guardianfhip in chivalry (which lafted till the age of twenty one, and of which we fhall fpeak hereafter) enacts, that any father, under age or of full age, may be deed or will difpofe of he cuftody of his child, either born or unborn, to any perfon, except a popifh recufant, either in poffeffion or reverfion, till fuch child attains the age of one and twenty years. Thefe are called guardians by ftatute, or teftamentary guardians. There are alfo fpecial guardians by cuftom of London, and other places o; but they are particular exceptions, and do not fall under the general law.
THE power and reciprocal duty of a guardian and ward are the fame, pro tempore, as that of a father and child ; and therefore I fhall not repeat them : but fhall only add, that the guardian, when the ward comes of age, is bound to give him an account
.{FS}
k The Roman fatyrift was fully aware of this danger, when he puts this private prayer into the mouth of a felfifh guardian : Pupillum utinam, quem proximus baeres Impello, expungam. Perf. 1. 12.
l c. 44.
m 1 Inft. 88.
n This policy of our Englifh law is warranted by the wife inftitutions of Solon, who provided that no one fhould be another's guardian, who was to enjoy the eftate after his death. (Potter's Antiqu. l. 1. c. 26.) And Charondas, another of the Grecian legiflators, directed that the inheritance fhould go to the father's relations, but the education of the child to the mother's; that the guardianfhip and right of fucceffion might always be kept diftinct. (Petit. Leg. Att. l. 6. t. 7.)
o Co. Litt. 88.
.{FE}
of
.P 451
The RIGHTS of PERSONS.
BOOK I.
Ch. 17.
of all that he has tranfacted on his behalf, and muft anfwer for all loffes by his willful default or negligence. In order therefore to prevent difagreeable contefts with young gentlemen, it has become a practice for many guardians, of large eftates efpecially, to indemnify themfelves by applying to the court of chancery, acting under it's direction, and accounting annually before the officers of that court. For the lord chancellor is, by right derived from the crown, the general and fupreme guardian of all infants, as well as idiots and lunatics ; that is, of all fuch perfons as have not difcretion enough to manage their own concerns. In café therefore any guardian abufes his truft, the court will check and punifh him ; nay fometimes proceed to the removal of him, and appoint another in his ftead p.
2. LET us next confider the ward, or perfon within age, for whofe affiftance and fupport thefe guardians are conftituted by law ; or who it is, that is faid to be within age. The ages of male and female are different for different purpofes. A male at twelve years old may take the oath of allegiance ; at fourteen is at years old may take the oath of allegiance ; at fourteen is at years of difcretion, and therefore may confent or difagree to marriage, may choofe his guardian, and, if his difcretion be actually proved, may make his teftament of his perfonal eftate ; at feventeen may be an executor ; and at twenty one is at his own difpofal, and may aliene his lands, goods, and chattels. A female alfo at feven years of age may be betrothed or given in marriage ; at nine is entitled to dower ; at twelve is at yeas of maturity, and therefore may confent or difagree to marriage, and, if proved to have fufficient difcretion, may bequeath her perfonal eftate ; at fourteen is at years of legal difcretion, and may choofe a guardian ; at feventeen may be executrix ; and at twenty one may difpofe of herfelf and her lands. So that full age in male or female, is twenty one years, which age is completed on the day preceding the anniverfary of a perfon's birth q; who till that time is an infant, and fo ftiled in law. Among the antient Greeks and Romans women
.{FS}
p 1 Sid. 424. 1 P. Will. 703.
q Salk. 44. 625.
I i i 2
were
.P 452
The RIGHTS of PERSONS.
BOOK I.
Ch. 17.
were never of age, but fubject to perpetual guardianfhip r, unlefs when married, “nifi conveniffent in manum viri:” and, when that perpetual tutelage wore away in procefs of time, we find that, in females as well as males, full age was not till twenty five years s. Thus, by the conftitutions of different kingdoms, this period, which is merely arbitrary, and juris pofitivi, is fixed at different times. Scotland agrees with England in this point ; (both probably copying from the old Saxon conftitutions on the continent, which extended the age of minority “ad annum vigefimum primum, “et eo ufque juvenes fub tutelam reponunt t”) 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. INFANTS have various privileges, and various difabilities : but their very difabilities are privileges ; in order to fecure them from hurting themfelves by their own improvident acts. An infant cannot be fued but under the protection, and joining the name, of his guardian ; for he is to defend him againft all attacks as well by law as otherwife u: but he may fue either by his guardian, or prochein amy, his next friend who is not his guardian. This prochein amy may be any perfon who will undertake the infant's caufe ; and it frequently happens, that an infant, by his prochein amy, inftitutes a fuit in equity againft a fraudulent guardian. In criminal cafes, an infant of the age of fourteen years may be capitally punifhed for any capital offence w: but under the age of feven he cannot. The period between feven and fourteen is fubject to much incertainty : for the infant fhall, generally fpeaking, be judged prima facie innocent ; yet if he was doli capax, and could difcern between good and evil at the time of the offence committed, he may be convicted and undergo judgment and execution of death though he hath not attained to years of puberty
.{FS}
r Pott. Antiq. l. 4. c. 11. Cic. pro Murez. 12.
s Inft. 1. 23. 1.
t Stiernhook de jure Suronum. l. 2. c. 2. This is alfo the period when the king, as well as the fubject, arrives at full age in modern Sweden. Mod. Un. Hift. xxxiii. 220.
u Co. Litt. 135.
w 1 Hal. P. C. 25.
.{FE}
or
.P 453
The RIGHTS of PERSONS.
BOOK I.
Ch. 17.
or difcretion x. And fir Matthew Hale gives us two inftances, one one of a girl of thirteen, who was burned for killing her miftrefs ; another of a boy ftill younger, that had himfelf, who was hanged ; for it appeared by his hiding that he knew he had done wrong, and could difcern between good and evil ; and in fuch cafes the maxim of law is, that malitia fupplet aetatem.
WITH regard to eftates and civil property, an infant hath many privileges, which will be better underftood when we come, to treat more particularly of thofe matters : but his may be faid in general, that an infant fhall lofe nothing by non-claim, or neglect of demanding his right ; nor fhall any other laches or negligence be imputed to an infant, except in fome very particular cafes.
IT is generally true, that an infant can neither aliene his lands, nor do any legal act, nor make a deed, nor indeed any manner of contract, that will bind him. But ftill to all thefe rules there are fome exceptions ; part of which were juft now mentioned in reckoning up the different capacities which they affume at different ages : and there are others, a few of which it may not be improper to recite, as a general fpecimen of the whole. And, firft, it is true, that infants cannot aliene their eftates : but y infant truftees, or mortgagees, are enabled to convey, under the direction of the court of chancery or exchequer, the eftates they hold in truft or mortgage, to fuch perfon as the court fhall appoint. Alfo it is generally true, that an infant can do no legal act : yet an infant who has an advowfon, may prefent to the benefice when it becomes void z. For the law in this café difpenfes with one rule, in order to maintain others of far greater confequence : it permits an infant to prefent a clerk (who, if unfit, may be rejected by the bifhop) rather than either fuffer the church to be unferved till he comes of age, or permit the in-
.{FS}
x 1 Hal. P. C. 26.
y Stat. 7 Ann. c. 19.
z Co. Litt. 172.
.{FE}
fant
.P 454
The RIGHTS of PERSONS.
BOOK I.
Ch. 17.
fant to be debarred of his right by lapfe to the bifhop. An infant may alfo purchafe lands, but his purchafe is incomplete : for, when he comes to age, he may either agree or difagree to it, as he thinks prudent or proper, without alleging any reafon ; and fo may his heirs after him, if he dies without having completed his agreement a. It is, farther, generally true, that an infant, under twenty one, can make no deed that is of any force or effect : yet b he may bind himfelf apprentice by deed indented, or indentures, for feven years ; and c he may be deed or will appoint a guardian to his children, if he has any. Laftly, it is generally true, that an infant can make no other contract that will bind him : yet he may bind himfelf to pay for his neceffary meat, drink, apparel, phyfic, and fuch other neceffaries ; and likewife for his good teaching and inftruction, whereby he may profit himfelf afterwards d. And thus much, at prefent, for the privileges and difabilities of infants.
.{FS}
a Co. Litt. 2.
b Stat. 5 Eliz. c. 4.
c Stat. 12 Car. II. c. 24.
d>
.{FE}