GUARDIAN. 
or 
cage. 4. By Ratine. 5. By cuftom of London and 
other cities and boroughs. 6. By election of the in¬ 
fant. 7. By appointment of. the chancellor. 8. Ad 
litem. 9! By appointment of the eccleflaftical court. 
Guardians by Nature, are the father, and (in 
form? cafes-) the mother qf the child. JPor if an eftate' 
be left to an infant, the father is by common law the 
guardian, and mu ft account to his child for the profits. 
1 Injl. 88. But an executor may not pay to a father a 
legacy left to an infant. 1 P. Wins. 285. And with re¬ 
gard to daughters, it feems by conftruftion of ftat. 4 & 
5 P Sc M. c. 8, that the father might by deed or will af- 
fign a guardian to any woman child under the age of 
fixteen ; aqd if none be fo afligned,- the mother fliall in 
this cafe be guardian. 3 Rep. 39. The (aid flat. 4&5 
P. Sc M. provides^ under fcvere penalties, “That no¬ 
body (hall take away any maid or woman child unmar¬ 
ried, being within the age of fixteen years, out of or 
from tlve polfeilion, cuftody, or governance, and againft 
the will, of the father of fuch maid or woman child, or 
of fuch perfon or perfons to whom the father of fuch 
maid or woman child by his laft will and teftament, or 
by any other adt in his life-time, hath or fliall appoint,, 
aflign, bequeath, give, or grant, the order, keeping, 
education, and governance, of fuch maid> or woman 
child.” 
' Many books, both of ancient and modern date, are 
very indiftindt when they mention guardianfliip by na¬ 
ture. But it appears to be now fettled, that hot only 
the father, but alfo the mother, and every other ancef- 
tor, may be guardians by nature, though, with confide- 
rable .differences, fuch as denote the fup'eriority of the 
father’s claim. The father hath the firft title to guar¬ 
dianfliip by nature, the mother the fecoiid : as to other 
anceftors, if the fame infant happens to be heir-apparent 
to two, perhaps priority of the pofleflion of the perfon 
of the infant blight probably be allowed to decide, the 
queftion. While the tenure by knight’s fervice conti¬ 
nued, there was another difference, which more ftrongly 
marked the fuperiority of the father’s claim : for he 
was intitled to the cuftody of the infant’s perfon even 
againft the lord in chivalry; a preference not allowed 
to the mother or other relations ; and this diverfity ap¬ 
pears to reconcile the determinations in the old books, 
which apply only to cafes in which the right to the in¬ 
fant’s perfon was in conteft with the lord in chivalry. 
3 Co. 38 b. Ratclffe’s Ca. According to the ftridt lan¬ 
guage of our law', only an heir apparent can be' the fub- 
jedt of guardianfliip by nature; which reftridtion is fo 
true, that it hath even been doubted whether fuch 
guardianfliiji can be of a daughter, whofe heirftiip, 
though denominated apparent, yet beihg liable to be fu- 
perfeded by the birth of a fon, is in effedt rather of the 
prefumptive kind. 1 Injl. 84 a. Therefore, when the term 
of guardianfliip by nature is extended to children in ge¬ 
neral, or to any befides fuch as are heirs apparent, it is 
not conformable to its legal fenfe, but niuft be under- 
fto.od to have reference tofbme rule independent of the 
common law ; as the dictates of nature, and the princi¬ 
ples of general reafon. Yet ive mu-ft not conclude that 
parents-have not a right to the cuftody of their other 
children, for the law gives them this cuftody till the 
age of fourteen by the guardianfliip for nurture ; which 
though it differs from that by nature, not only in name, 
but alfo in duration, and fome other particulars, is 
founded on a like conformity to the order of nature. 
1 Injl. 88 b. This guardianfhip by nature continues till 
the infant attains the age of twenty-one ; it extends no 
farther than the cuftody of the infant’s perfon. It 
yields, as to the cuftody of the perfon, to guardianfliip 
in focage, where the title to both guardianfhips concur 
in the fame individuals. 1 Injl. 88 b. But guardianfliip 
in focage ending at fourteen, it feems that after that 
age the father, or other anceftor having a like title to 
both guardianlhips, becomes guardian by nature till the 
infant’s age of twenty-one. Carth. 3S4.. Laftly, the fa¬ 
ther may difappoirit the mother .and other anceftors of 
the guardianfliip by nature, by appointing a teftamen- 
tary guardian, under the (fats. 4.8c 5 P .,8c 'M. and 12 Car. 11. 
Guardians for. Nurture, are of courfe the fa¬ 
ther or mother till the infant attains the age of fourteen 
years. Moor, 738. 3 Rep. 38. In default of father or mo¬ 
ther, the ordinary ufually aftigns fome difcreet perfon 
to take care of the infant’s perfonal eftate, and to pro¬ 
vide for his maintenance and education, 2 Lev. 163. 
This guardianfliip by nurture, only occurs where the in¬ 
fant is without any other guardian ; and it has been 
faid that'none can have it except the father or mother. 
8 £. 4. 7 A. 3 Co. 38; It extends no further than the 
cuftody and government of the infant’s perfon; and de¬ 
termines at fourteen in the cafe both of males and fe¬ 
males. Comyns refers to Flefa, as if, according to that 
ancient book, grandfathers and great grandfathers niigljt 
be guardians by nurture. But the ftatute cited by him 
doth not point at this fpecies of guardian, it defcfibing' 
the patria potejlas in general, and being apparently bor¬ 
rowed from the text of the Roman law ; nor will it 
bear the leaft application to guardianfliip as our own 
law regulates it. 
Guardians in Socage, are alfo guardians by the' 
common law, Wardfliip is incident to tenure in focage, “ 
but of a nature very different from that which was for¬ 
merly incident to knight-fervice. For if the inheritance 
defcend to an infant under fourteen, the wardfliip of 
him does not, nor ever did, belong to the lord of 
the fee: becatife in this tenure no military or other 
perfonal fervice being required, there could be no pre¬ 
tence for the lord to take the profits in order to provide 
a fubftitute for his infant tenant. See the article Te-- 
nure. This fpecies of guardianfliip takes place only 
when the minor is entitled to fome eftate in lands; and 
then by the common law the guardianfliip.devolves 
upon his next-of-kin to whom the inheritance, cannot 
poflibly defcend ; as where the eftate defcended from 
his father, in this cafe his uncle by the mother’s fide 
cannot poflibly inherit this eftate, and therefore fliall be 
the guardian. Lilt. 123. For the law judges it impro¬ 
per to truft the perlon of an infant in his;hands, who 
may by poflibility become heir to him ; that there may 
be no temptation, nor even fufpiciorr of temptation, for 
him to abufe his truft. 1 Comm. c. 17. And though this 
provifion has been confidered as arifing from liarfli and 
barbarous principles, experience ftiews that it is found¬ 
ed in found policy and humanity. 
Guardianfliip in focage, like that in chivalry, fprings 
wholly out of tenure. It is for this reafon that the' 
title to it cannot arife, unlefs the infant is feifed of 
lands, or other hereditaments, lying in tenure, and 
holden by focage. 1 Injl. 87 A.- Like guardianfliip in 
chivalry, it is deeme^ to take place on a defcent only, 
though the contrary has been argued. 2 Mod. 176. The 
title to this guardianfliip is without any diftinction be¬ 
tween the whole and the half blood. If there are two 
or more difinterefted relations in equal degree, he who 
firft gains pofleflion of the heir fliall have the cuftody of 
him; except where they happen to be brothers or lif¬ 
ters, or to be the infant’s lineal anceftors, the law pre¬ 
ferring the eldeft in the former cafe, and the father or 
other male anceftor in the latter. But if the infant de-’ 
rives lands both by defcent ex parte paterna and ex parte 
materna, in which cafe it may be pollible not to find any 
next-of-kin incapable of inheriting to the infant, the 
next-of-kin on either fide firft feizing the infant is enti¬ 
tled to the cuftody of liis perfon ; and the cuftody of 
the lands coming ex parte paterna goes to the maternal 
heir, and fo vice verfa. Should, however, the infant de¬ 
rive lands by defcent in fuch a way as lets in both the 
paternal and maternal blood fucceflively to the inheri¬ 
tance, but with a preference of the former, it feems un- 
l'ettled who fliall have the- guardianfliip. If the perfon 
