GUARDIANSHIP
51
GUARDIANSHIP
Guardianship, in civil jurisprudence, is "the con-
diticin or fact of being a guardian ; the office or position
of guardian" (Murray, New English Dictionary, s. v.) ;
"a person intrusted by law with the interests of an-
other whose youth, inexperience, mental weakness or
feebleness of will, disqualifies him from acting for him-
self in the ordinary affairs of life, and who is hence
known as the ward" (Schouler, " Law of the Domestic
Relations", Boston, 1905, 277). Etymologically, the
words guardian and ward are of like derivation. War-
den is an older term for guardian. The verb, to ward,
is derived from the Old French, warder, garder, guarder,
and one of the definitions of the noun, ward, is " guard-
ianship, control or care of a minor" (The C'entury Dic-
tionary, s. v.). This "control or care" conferred by
law is a sub.stitute for, or "an artificial extension of
tlie parental power" (Taylor, "The Science of Juris-
prudence", New York, 1908, 55S).
The Roman law terms such " control or care" of a minor under the age of fourteen years, tiitela, "an authority and power over a free person given and per- mitted by the civil law in order to protect one whose tender years prevent him defending himself" ("The Institutes of Justinian" tr. Sanders, L. I, t. xiii, 1, Chicago, 1S76), the civil law thus providing what the Institutes pronounce agreeable to natural law, natur- ali juri conveniens, ibid., L. I, t. xx, G. Tutors were so termed "as being protectors", tuitores (ibid., L. I, t. xiii, 2), protectors of a person in the exercise of his rights. A tutor did not confer rights on his ward ; the tutor's authority supplied the ward's deficiency for exercise of rights which he already had. "When one person increased (augebat) what another had, so as to fill up a deficiency, this was called au(?on'(i7s" (ibid.. In- troduction. 543, note, and see p. 76, t.xiv, p. 120, p. 134). Only one who was free could have that right, a defi- ciency in which, according to this e.xplanation of its meaning, authority could supply. A slave could not be regarded as deficient for exercising rights, because a slave (who in law was not even regarded as a person) having no capacity to acquire the rights themselves, there could arise no question of his capacity to exercise them. Thus, a free person only could have occasion for a tutor, or could be a ward (ptipillus, pupilla). On the other hand, no person not vested with the rights of citizenship was qualified to become a tutor. Being deemed a public office, tutela was compulsory upon those who were qualified and who could present no legal excuse (ibid., L. I, t. xxv).
The lutela of a male ended with his fourteenth year, of a female with her twelfth. But a minor was not deemed pcrjecta: aiatis (of full age) and fit to protect his or her own interests, while under the age of twenty- five years, and so, on the discharge of the tutor, there was appointed amrator (ibid., L. I, tt. xix,xxii, xxiii). Tutela might be testamentaria, legitima, or dativa.
Tutela testamentaria aro.se from appointment in the la.st will of the parent (Instit., L. I, t. xiii, 3). Tutela legitimn occurred in the instance of minors to whom by will no tutor had been appointed. For them the law prescribed the tutela of certain relations who were hence called tutorcs Icgitimi (ibid., t. xv.). "If any one had no tutor at all" one was assigned by certain magistrates and termed tutor datii'us (ibid., t. xx).
'The English common law recognized the father and, on his death, the mother as guardian by nature or " for nurture" of a child's person. But during feudal times the tenure by which land was held determined the right to the guardianship of its owner while under age. A male orphan under twenty-one years of age inherit- ing land held by tenure of knight-service was, with his land, committed to the guardianship of the lord of the fee, "to instruct him", explains Sir John Fortescue (De Laudibus legum Angliie, 2nd ed., 1741, xliv), " in deeds of arms which in virtue of Tiis tenure he's obliged to perform for the lord of the fee." Of a female orphan the lord's guardianship continued until she reached the
age of sixteen years, or until her marriage, if fourteen
years of age, when her husband was entitled to per-
form the service. Fortescue wrote in the reign of
King Henry VI (1422-01); this wardship, intended for
instruction "in deeds of arms", was by Queen Eliza-
beth " used to secure the education of all Catholic
minors in the Protestant faith" (Green, "History of the
English People", New York, 1903, III, 1324), notbeing
abolished until 1660. A minor might, however, in-
herit land held by what was known as socage tenure,
which according to Sir William Blackstone " seems to
denote a tenure by any certain and determinate ser-
vice" (Commentaries, Bk. II, vi, 79). Guardianship
of such an heir, both as to his person and his land, was
intrusted, if the inheritance had come from his father's
side, to a relation on the mother's side, and if the in-
heritance had come from the mother's side, to some
relation on the father's side. This practice Fortescue
extols for a reason which has been very appropriately
deemed to imply " melancholy consciousness of the
corruption of public morals" (Kent, "Commentaries",
II, 223). For Fortescue observes (loc. cit.) that "to
commit the care of a minor to him who is the next heir-
at-law is the same as delivering up a lamb to the care of
a wolf".
Each of the guardianships so far mentioned resem- bled the tutela legitima of the Roman law. A father's right to appoint a testamentary guardian for his son, which in Rome seems to have been more ancient than the law of the Twelve Tables (Pandect:E Just inianea>, ed. Pothier, L. XXVI, t. ii, note), was conferred byan Eng- lish statute of the year 1660, a statute which, by a pro- hibition now no longer in force, forbade the appointment of Roman Catholics. In England the lord chancellor, presiding in the Court of Chancery, was "paramount guardian to all the infants in the nation" (Reeve, "The Law of Husband and Wife", etc., 4th ed., Albany, New York, 1888, 392). The sovereign as parens patrice was deemed to be protector of the interests of all of his sub- jects who were minors, and the exercise of this imiversal guardianship devolveil upon the Court of Chancery by what was assumed to be delegation of the royal author- ity. In such exercise of authority, the court folio wed" in many respects", remarks Mr. Justice Story, "the very dictates of the Roman Code" (Commentaries on Equity Jurisprudence, ISth ed., Boston, 1886, II, 682).
Throughout the LTnited States the law of the various states which regulates guardianship and the conduct of guardians Ls, in many particulars, local and statu- tory. For guardianship is " a local and temporary status" (Taylor, op. cit., 5.59). But in aU the states (except in Loiusiana) the law is based to a great extent on the law as administered by the English Court of Chancery. The same general remarks apply to British possessions other than those acquired from France, Holland, and .Spain. Founded upon the civil law, the statutory law of Louisiana bears a resem- blance to the modern law of France, as well as to that of the Canadian Province of Quebec. The Anglo- Indian Code provides for guardianship by will, and this guardianship as well as the sovereign's supervisory powers are recognized by the existing native Hindu law. In .\ustralia, by the " Commonwealth of Austra- lia Constitution Act" of 1900, power has been con- ferred upon the Parliament of the commonwealth to make laws with respect to "guardianship of infants" in relation to "divorce and matrimonial causes" ("Constitution", I, P. V. 51, XXII; "The General Public Acts of the United Kingdom of Great Britain and Ireland", London, 1900, c. xii).
As in England the Lord Chancellor is "paramount guardian", so, within those jurisdictions where, as jiist mentioned, the law administered in the Court of the Chancellor is the basis of the law of guardianship, any Court possessing Chancery powers, which no local statute may have limited, "possesses", to quote from a New York case, "a controlling and superin-
