BOOK 1, CHAPTER 17 Of Guardian And Ward

formado por un único campo de gules en que aparecen tres leones pasantes y

contorneados de oro, lampasados y armados o uñados de azur.

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 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 [teacher] and curator [guardian] 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;1 as it is always in our law with regard to minors, though as to lunatics and idiots it is commonly kept distinct.

OF 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.2 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 woman-child under the age of sixteen, and if none be so assigned, the mother shall in this case be guardian.3 There are also guardians for nurture,4 which are, of course, the father or mother, till the infant attains the age of fourteen years:5 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.6 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 descent; 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.7 For the law judges it improper to trust the person of an infant in his hands, who may be possibility become heir to him; that there may be no temptation, nor even suspicion of temptation, for him to abuse his trust.8 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” [the greatest prudence].9 But in the mean time they forget, how much it is the guardian’s interest to remove the incumbrance of his pupil’s life from that estate, for which he is supposed to have so great a regard.10 And this affords Fortescue,11 and Sir Edward Coke,12 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.”13 [“Like committing the lamb to the wolf to be devoured.”] 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 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 be deed or will dispose of he 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;14 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 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, and must answer for all losses by his willful default or 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 its direction, and accounting annually before the officers of that court. 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 proceed to the removal of him, and appoint another in his stead.15

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 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 [transfer] his lands, goods, and chattels. A female also at seven 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 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;16 who till that time is an infant, and so styled in law. Among the ancient Greeks and Romans women were never of age, but subject to perpetual guardianship,17 unless when married, “nisi convenissent in manum viri” [“unless under the care of a husband”]: 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.18 Thus, by the constitutions of different kingdoms, this period, which is merely arbitrary, and juris positivi [positive law], 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 sub tutelam reponunt“19 [to the twenty-first year; and they place their youths under guardianship until then]) 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 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:20 but he may sue either by his guardian, or prochein amy [next friend], his next friend who is not his guardian. This prochein amy may be any person who will undertake the infant’s cause; and it frequently happens, that an infant, by his prochein amy, institutes a suit in equity against a fraudulent guardian. In criminal cases, an infant of the age of fourteen years may be capitally punished for any capital offense:21 but under the age of seven he cannot. The period between seven and fourteen is subject to much uncertainty: for the infant shall, generally speaking, be judged prima facie [on its face] innocent; yet if he was doli capax [capable of deceit], and could discern between good and evil at the time of the offense committed, he may be convicted and undergo judgment and execution of death though he has not attained to years of puberty or discretion.22 And Sir Matthew Hale gives us two instances, one of a girl of thirteen, who was burned for killing her mistress; another of a boy still younger, that had himself, who was hanged; for it appeared by his hiding that he knew he had done wrong, and could discern between good and evil; and in such cases the maxim of law is, that malitia supplet aetatem [malice equivalent to age]. So also, in much more modern times, a boy of ten years old, who was guilty of a heinous murder, was held a proper subject for capital punishment, by the opinion of all the judges.23

WITH regard to estates and civil property, an infant has many privileges, which will be better understood when we come, to treat more particularly of those matters: but his may be said in general, that an infant shall lose nothing by non-claim, or neglect of demanding his right; nor shall any other laches or negligence be imputed to an infant, except in some very particular cases.

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 still to all these rules there are some exceptions; part of which were just now mentioned in reckoning up the different capacities which they assume at different ages: and there are others, a few of which it may not be improper to recite, as a general specimen of the whole. And, first, it is true, that infants cannot aliene their estates: but24 infant trustees, or mortgagees, are enabled to convey, under the direction of the court of chancery or exchequer, the estates they hold in trust or mortgage, to such person as the court shall appoint. Also it is generally true, that an infant can do no legal act: yet an infant who has an advowson, may present to the benefice when it becomes void.25 For the law in this case dispenses with one rule, in order to maintain others of far greater consequence: it permits an infant to present a clerk (who, if unfit, may be rejected by the bishop) rather than either suffer the church to be unserved till he comes of age, or permit the infant to be debarred of his right by lapse to the bishop. An infant may also purchase lands, but his purchase is incomplete: for, when he comes to age, he may either agree or disagree to it, as he thinks prudent or proper, without alleging any reason; and so may his heirs after him, if he dies without having completed his agreement.26 It is, farther, generally true, that an infant, under twenty-one, can make no deed that is of any force or effect: yet27 he may bind himself apprentice by deed indented, or indentures, for seven years; and28 he may be deed or will appoint a guardian to his children, if he has any. Lastly, it is generally true, that an infant can make no other contract that will bind him: yet he may bind himself to pay for his necessary meat, drink, apparel, physic, and such other necessaries; and likewise for his good teaching and instruction, whereby he may profit himself afterwards.29 And thus much, at present,

for the privileges and disabilities of infants.

NOTES

     1.    Ff. 26. 4. 1.

     2.    Co. Litt. 88.

     3.    3 Rep. 39.

     4.    Co. Litt. 88.

     5.    Moor. 738. 3 Rep. 38.

     6.    2 Jones 90. 2. Lev. 163.

     7.    Litt. §. 123.

     8.    Nunquam custodia alicujus de jure alicui remanet, de quo habeatur suspicio, quod possit vel velit aliquod jus in ipsa haereditate clamare. [The guardianship of no person shall of right continue in him, of whom a suspicion may be entertained that he can or will claim any right in the inheritance.] Glanv. l. 7. c. 11.

     9.    Ff. 26. 4. 1.

   10.    The Roman satirist was fully aware of this danger, when he puts this private prayer into the mouth of a selfish guardian: — pupillum O utinam, quem proximus haeres Impello, expungam. [O were my pupil fairly knocked of the head! I should possess the estate if he were dead.] Perf. 1. 12.

   11.    c. 44.

   12.    1 Inst. 88.

   13.    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 Antiqu. l. 1. c. 26.) And Charondas, another of the Grecian legislators, directed that the inheritance should go to the father’s relations, but the education of the child to the mother’s; that the guardianship and right of succession might always be kept distinct. (Petit. Leg. Att. l. 6. t. 7.)

   14.    Co. Litt. 88.

   15.    1 Sid. 424. 1 P. Will. 703.

   16.    Salk. 44. 625.

   17.    Pott. Antiq. l. 4. c. 11. Cic. pro Murez. 12.

   18.    Inst. 1. 23. 1.

   19.    Stiernhook de jure Suronum. l. 2. c. 2. This is also the period when the king, as well as the subject, arrives at full age in modern Sweden. Mod. Un. Hist. xxxiii. 220.

   20.    Co. Litt. 135.

   21.    1 Hal. P. C. 25.

   22.    1 Hal. P. C. 26.

   23.    Foster. 72.

   24.    Stat. 7 Ann. c. 19.

   25.    Co. Litt. 172.

   26.    Co. Litt. 2.

   27.    Stat. 5 Eliz. c. 4.

   28.    Stat. 12 Car. II. c. 24.

   29.    Co. Litt. 172.

Continuación