OUARDIAX. 



OUELPHS AND GHIBELLlM.s 



they were also assigned to idioU, lunatic*, women, and sometimes 

 prodigal*. The laws of England indeed provide for the protection of 



idiots and lunatic*, but the rules relating to them will be more - 



vcniently considered under those heads, and therefore we ahall here 

 confine uur reuiarki to guardians of infants. The guardian under th.- 

 civil law wa either a tut..r or a curator. [CURATOB.] Guardian* 

 w.re appointed either by the will of the father, by the disposition , i 

 the law, or by the magistrate ; and accordingly, with reference to its 

 origin, the guardianship was styled Itttamtiilaria, ityittma, or 

 The nature of guanlianahip under the civil law in fully explained in the 

 ' System dea Pandekten-Rechts ' of Thibaut, i., p. 377. 



The usual division of guardians, according to the English law, and 

 therefore the most convenient order in which to explain their office, 

 is : 1. Guardians by the common law. 2. Guardians by custom. 

 8. Guardians by statute. 



1. (iiiardianii 'l >y the common law were of four kinds : guardians in 

 chivalry, in soeagt-, )>y nature, and fur nurture. 



Guardianship in ehi valry IB now abolished by the statute of 1 2 Car. 1 1., 

 c. 24. which extinguished the onerous portions of the feudal system. 

 This guardianxhip anna wholly out of the principles of tenure, and it 

 could only take place where the estate vested in the infant by descent. 

 All tenants by knights' service, being males under 21, or females under 

 14, at the ancestor's death, were liable to it ; and it continued over 

 males till 21, over females till Hi or marriage. It extended over the 

 estate as well as the person of the infant, and entitled the lord to make 

 Bale of the marriage of the infant under the restriction of not making 

 it a marriage of disparagement, and to levy forfeitures if the infant 

 refused the marriage, or married, after tender of an alliance by the 

 lord, against his consent. The lord was bound to maintain the infant, 

 but subject to this obligation he was entitled to the profits of the 

 estate for his own benefit. This guardianship, being considered more 

 an interest in the guardian, than a trust for the ward, was saleable ; 

 nnd if not disposed of, passed at the lord's death to his personal 

 representatives. 



iittarJiau in .S'ocnflr. This also, like the former, is a consequence 

 of tenure, and takes place only where lands of socage-tenure descend 

 n|M>n an infant under the age of 14. Upon attaining that :>-<, tin: 

 guardianship in socoge ends, and the infant may appoint his own 

 guardian. The title to this guardianship is in such of the infant's next 

 of blood as cannot have the estate by descent in respect of which the 

 guardianship arises, lest, it is said, the lamb should be delivered to the 

 wolf to be devoured. This precaution springs perhaps from too great 

 ft mistrust of human nature, and it seems that in the early period of 

 the Roman republic no such distinction was made. No provision upon 

 the subject exists in the laws of the Twelve Tables the lawgiver did 

 not imagine that the life of the heir was in danger, though it was put 

 in the bands of the person who would reap a benefit by his death. 

 (Montesq., b.'19, c. 24.) And even at a subsequent period no such 

 rule was known to the civil law ; and indeed such a rule could have no 

 place in the Roman system of succession. By the laws of Solon, no 

 one could be a guardian who was to enjoy the estate of the word after 

 his death, and such it has been shown is the law of England with 

 regard to guardians in socage. The laws of Scotland and the old laws 

 of France prescribe a middle course : the estate is entrusted to the 

 next in succession, because he is most interested in preserving it from 

 waste, but he is excluded from the custody of the person of the ward. 

 This is the principle upon which the Court of Chancery proceeds in its 

 management of lunatics and their estates. [LUNACY.] The ' Code 

 Civil ' of Franco, b 1, tit. x., ch. 1, 2, 3, has many provisions relating 

 to guardianships, too numerous to mention here. The guardian in 

 socage is entitled not only to the custody of the person and socage 

 state* of the infant, but also to his hereditaments not lying in tenure, 

 and even his copyhold estates, where no custom to the contrary exists 

 in the manor of which they are held, and also his personal property. 

 The guardianship in socage is regarded as a trust wholly for the 

 infant's benefit, and is not saleable, or transmissible, but in the event 

 of the death of the guardian the. wardship devolves* on the person next 

 in degree of kindred to the infant, not being inheritable to him, 

 and the guardian is accountable to the infant for the profits of his 



Guardianship in socage is, however, superseded both as to the person 

 and estate of the infant, if the father appoints a guardian according to 

 the statute, at will shortly be mentioned. 



3. 'luon/taniy Nature. This species of guardianship has no con- 

 nection with the rules of tenure. It extends only to the CUM 



the infant's person, and lasts till he attains 21. Any ancestor of the 

 infant may be such a guardian, tho first right being in the father, the 

 next in thu mother, and if they be dead the ancestor to whom the 

 infant is heir has a right to the custody of hil person. Until 14, it 

 teem* the guardian in socage is entitled to the custody of the person, 

 and after that ago the guardian by nature. 



4. Guardian* fur nurture are the father nnd mother of the in fant; 

 in default of father or mother, thu Ordinary, it is said, may appoint 

 some person to take care of the infant's personal estate and to pr.Wi.i.- 

 for his maintenance and education, though this has been doubted. 

 This species of guardianship extends only to the age of 14, in males 

 and females. Both these last descriptions of guardianship are also 

 superseded by the appointment of a guardian by statute. 



Where an infant is without a guardian the Court of Chancery has 

 power to appoint one, and this jurisdiction seems to have vested in the 

 king, in Inn < 'out t of Chancery, as Parent Palritr,u\in the al>oh f 

 the Court of W.uds. [CHAKCELI.OH.J And where a proper case exists 

 for the jurisdiction of this court, it will, treating all guardians as 

 trustees for their wards, interfere not only with the pr<'| 

 infant, but also with the custody of his person, and will, in caw 

 misbehaviour, remove a guardian, however he may have been app 

 or constituted, and will appoint a proper guardian to the infant in his 

 mom. Of this jurisdiction on instance is afforded by the case of the 

 Duke of Beaufort . Wellesley where, the father being alive. 

 Eldon upon moral grounds deprived him of the custody of his . -hildien 

 --and this power of the Court of Chancery is now firmly ostal>i 

 Ami though the infant may have elected and appointed a guardian, 

 this will not exclude the jurisdiction of the Court of Chancery, but 

 upon the case being brought before the court it will order an 

 inquiry as to the fitness of the guardian appointed. All 

 also have power to appoint a guardian ad litcm, that is, to defend a 

 prosecution or suit instituted by or against an infant. (' CM 

 88 b, Hargr. note.) 



II. (iiiantiant by Custom. By the custom of the city of London the 

 guardianship of orphans under age and unmarried belongs to tl> 



and in many manors particular customs exist relating to the guardian- 

 ship of infante ; but in the absence of any such, the like rules prevail 

 as before mentioned of guardians in socage. 



III. Guardiant by Statute. At common lawno person could appoint 

 a guardian, because the law appointed one in every case. The f 



4 and 6 Phil, and Mary, c. 8, seems to have given some powers to the 

 fathers of infants to appoint guardians ; but guardians by statute are 

 now appointed by virtue of 12 Ch. II., c. '24. Under this statute 

 fathers, whether under age or of full age, may, by deed or will attested 

 by two witnesses, appoint any person or persons (except Popish 

 recusants) guardians of their unmarried children until they attain 

 21, or for any less period. A guardian appointed under this' 

 supersedes all other^ruardians, except those by the custom of L< 

 or any city or corporate town in favour of which on exception i.-. 

 and is entitled to the custody of the infant's person, and his estate, real 

 and personal. If two or more persons are appointed guardian.- 

 the provisions of this statute, the guardianship remains to the survivor. 

 By the wording of the statute it father alone is empowered to appoint a 

 guardian, and consequently, though the omission was probably unin- 

 tentional, it has been decided that neither a mother, nor grandfatlu r, 

 nor any other relation, con make such an appointment. Neither can a 

 father appoint a guardian to his natural child : but in all these cases 

 the Court of Chancery will appoint the persons named to be gu.i 

 if they appear to be fit persons to exercise the trust reposed in 

 them. 



Guardians are rarely now appointed by infants themselves, the 

 jurisdiction of the Court of Chancery providing far safer and more 

 effectual means for the management and control of their property ; and 

 since in many coses the Court will interfere by petition without the 

 institution of a suit, a cheap and speedy mode of procuring its inter- 

 ference is afforded. The guardian is considered as a trustee for his 

 ward, and is accountable for the due management of the infant's 

 property, and is answerable not only for fraud, but for negligence or 

 omission. 



ituniflitiH nf the 8jilritalilie is the person to whom the spiritual 

 jurisdiction of any diocese is committed during the vacancy of 

 the see. 



lliinnlian of the Temporalitiei is he to whom the temporal jurisdiction 

 and the profits of the see ore committed during the like period. 



The words guardian and warden are of the same signification : indeed, 

 they were formerly used indifferently. Thus the warden of the Cinque 

 Ports was styled guardian, or in the old French, gardeyn, and church- 

 wardens, gardeyns del Eglise. The Welsh won! qward is the same as 

 the English guard. 



GUELPHSand GHIBKLLIKKS, the names of two great political 

 parties which divided Italy and Germany during the middle ages, 

 became first known as the watchwords of their respective adherents at 

 the battle of Winsberg, in Suabia, between two rivals for the Imperial 

 throne, Conrad, duke of Franconia, and Henry the Lion, duke of 

 Saxony, of the house of Guelph, Welf, or Wiilf. Welf, who was 

 young Henry's uncle, fought on behalf of his tu-phew, and his name 

 was the war-cry of hix followers ; whilst those of Conrad took for their 

 rallying word the immeof Waiblingen, a town of \V\irtemberg, anil the 

 ni:il Kent of the Hohenataufen family, to which Conrad be- 

 longed. [CONRAD III. in Bioo. l)iv.] In course of time the m-.< 

 Quelphs WOK given to all who were disaffected to the Emperor, and that 

 of (ili: liich the Italian!) had formed from the German 



\Vaihlingen) t.i tho supporters of the Imperial authority; and as the 

 popes, reviviii',' their old rivalry with th" empire, anoouraged nnd 

 support'-d the di*an"ce.ted Guclphs, they became at last the leaders of 

 that party, and the Italian cities were'divid.-d I pet ween the adherents 

 of the PO'IK-H and those of the emperors. The name- of (luelphsand 

 i ihiMlinrs were not however generally adopted in Italy till the reign 



i-ic II., when Italy was divided, as it were, into two H 

 some cities, such as Florence, Milan, Bologna, ranging themsei 

 the Guelph side, while Pisa, Arezzo, Verona, and others, remained 



