GUARDIAN. 



one appointed to take care of a person 

 and his affairs, who, by legal imbecility 

 and want of understanding, is incapable of 

 acting for his own interest; and it seems 

 by our law, that his office originally was 

 to instruct the ward, under the feudal 

 tenures, in the arts of war, as well as 

 those of husbandry arid tillage, that, when 

 he came of age, he might be the better 

 able to perform those services to his lord, 

 whereby he held his own land. 



There are several kinds of guardians, 

 as, guardian by nature, guardian by the 

 common law, guardian by statute, guardian 

 by custom, guardian in chivalry, guardian 

 in socage, and guardian by appointment 

 of the Lord Chancellor. 



Guardian by nature, is the father or 

 mother ; and by the common law every 

 father hath a right of guardianship of the 

 body of his son and heir, until he attains 

 to the age of twenty-one years. This guar- 

 dianship extends no further than the cus- 

 tody of the infant's person. The father 

 may disappoint the mother, and other an- 

 cestors, of the guardianship by nature, by 

 appointing a testamentary guardian under 

 the statutes 4 and 5 Phil, and Mary, and 

 12 Char. II. A guardian by nature hath 

 only the care of the person and education 

 of the infant, and hath nothing to do with 

 his lands, merely in virtue of his office ; 

 for such gifardian may be, though the in- 

 fant have no lands at all, which a guardi- 

 an in socage cannot. 



GUARDIAN, by the common law, or 

 Guardian in Socage. If a tenant in socage 

 die, his heir being under fourteen, whe- 

 ther he be his issue or cousin, male or fe- 

 male, the next of blood to the heir, to 

 whom the inheritance cannot descend, 

 shall be guardian of his body and land till 

 fourteen ; and although the nature of so- 

 cage tenure is in some measure changed 

 from what it originally was, yet it is still 

 called socage tenure, and the guardian in 

 socage is still only where lands of that 

 kind, as most of the lands in England now 

 are, descend to the heir within age ; and 

 though the heir after fourteen may choose 

 his own guardian, who shall continue till 

 he is twenty-one, yet, as well the guardian 

 before fourteen, as he whom the infant 

 shall think fit to choose after fourteen, 

 are both of the same nature, and have the 

 same office, without any intervention or 

 direction of the infant himself; they are 

 to transact all affairs in their own name, 

 and not in the name of the infant, which 

 they would be obliged to do, if their au- 

 thority were derived from him. 



This guardianship is so little resorted 



to, although all lands are now of socage 

 tenure, thai it is needless to inquire fur- 

 ther into it here. 



GUARDIAN by statute, or Testamentary 

 Guardian. By the common law, no per- 

 son could appoint a guardian, because the 

 law had appointed one, whether the fa- 

 ther were tenant by knight service, or in 

 socage. 



The first statute that gave the father a 

 power of appointing was the 4 and 5 

 Philip and Mary, c. 8, which provides, 

 under severe penalties, such as fine and 

 imprisonment for years, against taking 

 any maid, or woman child unmarried, be- 

 ing within the age of sixteen years, out of 

 or from the possession, custody, or go- 

 vernance, and against the will of the fa- 

 ther of such maid or woman child, or of 

 such person or persons, to whom the fa- 

 ther of such maid or woman child, by 

 his last will and testament, or by any 

 other act in his life time, shall grant 

 the education and governance of such 

 child. 



But the principal guardianship is now 

 by the statute 12 Charles II. c. 24, by 

 which any father, under or of full age, 

 may, by deed or will, attested by two wit- 

 nesses, appoint, dispose of the custody of 

 his child, born or unborn, to any person, 

 except a popish recusant convict, either 

 in possession'or reversion, till such child 

 attain twenty'-one. This guardian super- 

 sedes the guardian in socage, and has all 

 actions which that guardian might have 

 had. Besides which he has the care of 

 the estate, real and personal. A father 

 cannot under this statute appoint one to 

 his natural child ; and a case has been 

 decided upon the marriage act, in which 

 a marriage with consent of a guardian 

 applied to a natural child was held void. 

 The chancellor, however, will upon ap- 

 plication appoint the same person guar- 

 dian. 



Guardians by custom, are appointed in 

 the City of London, in the county of Kent, 

 and, with respect to copyhold lands, in 

 some manors. 



Guardians by appointment of the eccle- 

 siastical court, were appointed to take 

 care of the infant's personal estate, till 

 fourteen in males, and twelve in females; 

 but their authority over the person is now 

 denied, and they are only confined to 

 guardianship for" the purpose of a suit in 

 an ecclesiastical court. 



GUARDIAN, in chivalry, is obsolete, but 

 extended to twenty-one years. 



GUARDIAN, by appointment of the Lord 

 Chancellor. It is not easy to state how 



