[] Fortesc. c. 40. 5 Rep. 58.
[k] Cod. 6. 57. 5.
[l] 4 Inst. 36.
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 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.
[a] Ff. 26. 4. 1.
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[]. 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[]." 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.