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.
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.
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[b].
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[c]. There are also guardians for nurture[d], which are,
of course, the father or mother, till the infant attains the age of
fourteen years[e]: 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[f].
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[g]. 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[h]. 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 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[k]. And this affords Fortescue[l],
and sir Edward Coke[m], 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[n]."
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 imbecillity 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[o]; but they are particular exceptions, and do not fall under
the general law.
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 wilful 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 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 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[p].
2.
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 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[q]; who till that time is an infant, and
so stiled in law. Among the antient Greeks and Romans women
were never of age, but subject to perpetual guardianship[r], 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[s].
Thus, by the constitutions 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 sub 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.
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[u]: but he may sue either by his
guardian, or prochein amy, 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 offence[w]: but under the age of
seven he cannot. The period between seven and fourteen is subject
to much incertainty: for the infant shall, generally speaking,
be judged prima facie innocent; yet if he was doli capax, and
could discern 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
or discretion[x]. 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 killed his companion,
and hid 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.
many privileges, which will be better understood when we come
to treat more particularly of those matters: but this 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.
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:
but[y] 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[z]. 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 in-*
*fant 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[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 himself apprentice by deed indented, or
indentures, for seven years; and[c] he may by 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[d]. And thus much, at present, for the privileges
and disabilities of infants.
End of section 46
