68 GUAR 
entitled to be guardian in focage is himfelf under cuf- 
tody of a guardian, the latter is entitled to the cuftody 
of both, to the former in his own right, and to the latter 
pur caufe de ward, that is, in right of his wardffiip of the 
former; a fpecies of guardianlhip diftindt from all others 
above ^numerated. And it feems that only guardian 
in chivalry and in focage could be guardian pur caufe de 
ward. 2 Ro. Ab. 35,40. Vaugk. 184. 
This guardianlhip extends not only to the perfon and 
focage-eftates of the infant, butalfo to his hereditaments 
not lying in tenure ; and even to his copyhold eftates, 
unlefs there is a l’pecial cuftom for the lord’s appointing 
a guardian 6f them. 1 Injl. 87 b. 2 Lutw. 1181. But whe¬ 
ther the guardian in focage is entitled to take into his 
cuftody the infant’s perfonal eftate, is not afcertained by 
any exprefs authority. It feems however that perfon- 
alty is included, except where by the cuftom of a parti¬ 
cular place it happens to be liable to a different cuftody: 
and this opinion is founded on the idea that the cuftody 
of an infant’s perfon drajvs after it the cuftody of every 
fpecies of property for which the law hath not other- 
wife provided : which receives fome countenance from 
the inftances of copyholds, and hereditaments not lying 
in tenure: for includingCwhich it will be.difficult to ac¬ 
count by any other reafon than that above given for in¬ 
cluding personally. - 
Guardianfhip in focage is fugerfeded both as to the 
.body and lands, if the father exercifes his power of 
appointing a teftamentary or other guardian according 
to flat. 12 Gar. II. c. 24. And regularly it ends, when 
the infant, whether male or female, attains fourteen : 
though fome fay that this muft be und€rftood only 
where another guardian, either by election of the infant 
or otherwife, is ready to fucceed ; and that the guar- 
dianfliip in focage continues in the mean time. Andr. 
313. At that age, however., it feems the heir may ouft 
the guardian in focage, and call Jiim to account for the 
rents and profits. Co. Litt. 89. It was in this particular 
of wardfhip, as alfo in that of marriage, and in the cer¬ 
tainty of the render or fervice, that the focage tenures 
had fo much the advantage of the military ones. But 
as the wardfhip ceafed at fourteen, this difad vantage at¬ 
tended it ; that young heirs, being left at fo tender an 
age to choofe their own guardians till twenty-one, might 
make an improvident choice. Therefore when almoft 
all the lands in the kingdom were turned into focage te¬ 
nures, by the ftat. iz'Car. II. c. 24, that ftatute gave 
the power o( appointing the teftamentary guardian next 
mentioned. If no fuch appointment be made, the court 
of chancery will frequently interpofe, and name a guar¬ 
dian, to prevent an infant heir from improvidently ex- 
pofing himfelf to ruin. 2 Comm. 88. c. 6. 
The ftatute 12 Car. II. c. 24, confidering the imbeci¬ 
lity of judgment in children of the age of fourteen, and 
the abolition of guardianfhip in chivalry, enacts, that 
any father, under age or of full age, may by deed or 
will, attdfted by two witneffes, difpofe of the cuftody 
of his child, either born or unborn, to any perfon, ex¬ 
cept a popiffi recufant, either in polfeffion or reverfion, 
till fuch child attains the age of twenty-one. Thefe are 
called guardians by Jlatute, or tejiamentary guardians. 
The fubftance of this parliamentary regulation is, that 
the father fhall have the power,, though under twenty- 
one; that he fhall have it as to all his children under 
twenty-one, and unmarried at his deceafe, or born after; 
that he may appoint any perfon except popiffi recufants; 
that the appointment may be either in pofleffion or re¬ 
mainder ; that he may appoint the guardianfhip to laft 
till twenty-one, or any lefs time ; that the appointment 
fhall be effectual againft all claiming as guardians in 
focage or otherwife ; that the guardian fo appointed (hall 
have raviffimentofward or trefpafs, and recover damages 
•for the ward’s benefit; that the guardian fhall have the 
.cuftody of the infant’s eftate both real and perfonal, 
D I A N. 
and have the fame adtions in relation to them as a guar¬ 
dian in focage. 
The right of eledting a guardian by an infant, arifes 
only when from a defedt in the law, (or rather in the 
execution of it,) the infant finds himfelf wholly unpro¬ 
vided with a guardian. This may happen either before 
fourteen, when the.infant has no fuch property asaltradts 
a guardianfhip by tenure, and the father is dead without 
having executed his poweffof appointment, and there is 
no mother; or after fourteen, when the cuftody of the 
guardian in focage terminates, and there i-s no appoint¬ 
ment by the father under the ftat. 12 Car. II. Lord Coke 
only takes notice of fuch election where the infant is 
under fourteen; and as to this omits to ftate how, and 
before whom, it fliould be made; fee 1 Injl. 87 b) nor 
does this defedt feem fupplied by any. prior or cotempo¬ 
rary writer. As to a guardian.after fourteen, it appears 
from the ending of guardianfhip in focage, at that age, 
as if the common law deemed a guardian afterwards un- 
neceffkry. However, fince the flat. 12 Car. II. c. 24, it 
has been ufual, in defedt of an appointment under the 
ftatute, to allow the infant to eledt one for himfelf. The 
late lord Baltimore, when he was turned of eighteen, 
having no teftamentary guardian, and being under the 
neceffity of having one forfome fpecial purpofes relative 
to his proprietary government of Maryland, named a 
guardian by deed; a mode adopted by the advice of 
counfel. It feems in fadt as if there was no prefcribed 
form of an infant’s eledting a guardian after fourteen, 
any more than there is before, and therefore eledtion by 
parol, though, unfolentn, might be legally fufficient. 
The deficiency in precedents on this occaiion is eafily 
accounted for; this kind of guardianlhip being of very 
late origin, unnoticed as it feems by any writer before 
Coke except Swinburn; (7 'ejlam. edit. 1590. 97 b ■,) and 
there being yet no cafes in print to explain the powers, 
incident to it, or whether the infant may change a guar¬ 
dian fo conftituted by himfelf. Coke, though profeiling 
to enumerate the different forts of guardianlhip, omits 
this in one place; whence perhaps it may be conjec¬ 
tured that in his time it was in ftridtnefs fcarcely recog- 
nifed as legal. 1 Injl. 88 b. 
As to guardian by appointment of the lord-chancellor, 
it is not eafy to ftate how this jurifdidtion was acquired; 
it is certainly of no very ancient date, though now indif- 
putable. The firll inftance of fuch a guardian, appointed 
on petition without bill, was in the year 1696, in the 
cafe of Hampden. But lince that time the court of chan¬ 
cery has exercifed tills power, without its being once 
called in queftion ; therefore, in the cafe of lady Teyn- 
hamv. Leonard, in Dom. Proc. An. 1724, the counfel for 
the refpondent ftated it v as a thing fixed, that the lord- 
chancellor was entrufted with that/part of the crown’s^ 
prerogative, which concerned the guardianlhip of in¬ 
fants. Under the fame idea too, the marriage-adt, ftat. 
26 Geo. II. c. 33, refers to the chancellor for the appoint¬ 
ment of a guardian, to confent to marriage, where the in¬ 
fant is without a guardian, and the mother is not living. 
The court never appoints a guardian to a woman after 
marriage. 1 Vcz. 157. 
All courts of juftice have a power to affigna guardian 
to an infant to fue, or defend adtions, if the infant comes 
into court and defires it : or a judge at his chambers, at 
the defire of the infant, may affign a perfon named by 
him to be his guardian; but this laft is no record until 
entered and filed by the clerk of the rules. 1 Lift. 88 b.n. 
2 Leon. 238. This is called a guardian ad litem. 
Guardian by appointment of the eccleliaftical court 
feems now perfectly infignificant, and merely on a par 
with other guatdians ad litem. The right of appoint¬ 
ment is however claimed by that court, as to perfonal 
eftate; and, if there is no other guardian by tenure or 
otherwife, for the perfon alfo. But lord Hardwicke re¬ 
probated it as a prefumption in the ecclefiaftical court 
to 
