OUARINI
52
GUARINI
tending power over all guardians "(People v. Wilcox,
Barbour's N. Y. Supreme Court Reports, XXII, 189).
Parental power must yield to that of this " paramount
guardian". "A man", remarks a very learned chan-
cellor, " has a right to the custody of the person of his
wife; in general, al.so to that of his child" (Vesey,
Reports, X, 62). But this right "in general", being
dependent upon observance of a father's duties, any
father will forfeit whenever shown to be " an improper
person to have the sole control and education of his
children" (Wellesley vs. Wellesley, Bligh's New Re-
ports, II, 137, 144). The father may control his
child's religious education, and, in respect to it, the
expressed desires of a deceased father have been declared to be generally controlling. For it is said Religio
sequilur pairem [English Law Reports, Chancery Di-
vision, I_ (1902), 689]. "As regards religious educa-
tion", it is further said, "the wishes of the father must
be regarded by the court, and must be enforced, unless
there is some strong reason for disregarding them " [In
re McGrath, English Law Reports, Chancery Division, I
(1893), 148. SeealsoIrishReport,s, Equity, V, 118]. The
court has held that a promise before marriage, such as
the Church when permitting a mixed marriage requires
concerning the religious education of children of the
marriage, is not legally binding on the husband (In re
Cjarke, English Law Reports, Chancery Division,
XXI, 817). The amount to be expended out of their
property on maintenance and education of minor
wards was according to Roman law to be determined
by the pnetor when not fixed by a will (Instit., tr.
Sanders, 152). Allowances for these purpo.ses became
an important branch of the supervisory guardianship
of chancery, and in various states of the IJnited States
other courts have been by statute vested with a like
power.
Chancery guardianship included supervision of the marriage of its wards. The English common law con- cerning a wife's property rendered this supervision especially salutary to female wards. P^or by the com- nion law the property of a wife vested by her marriage in her husband. But C'hancery did not permit its guardianship of property to be thus terminated. The chancellor would only sanction the proposed marriage of a female ward on her property being secured by such a settlement as met his approval. An unsanc- tioned marriage rendered the husband guilty of con- tempt of court, and liable to imprisonment until he agreed to a proper settlement on his wife. For, " though by the ecclesiastical law a woman is of age to marry, yet by the temporal law she cannot dispose of her fortune" (Fonblanque, "A Treatise on Equity", Philadelphia, 1820, II, 227, note b). Modern stat- utes have in many jurisdictions rendered this curious branch of Chancery guardianship less necessary than it was in former times.
Contrary to the Roman law and to the modern law of France and other civil law countries, guardianship is not by English law a public office, and therefore no person is compelled by that law to assume its duties. Guardianship does not cease, as did tutcia, when the ward reaches fourteen years of age. Guardianship in socage (which without the old rules as to its devolu- tion is yet recognized in a New York statute), is said to cease when the ward reaches that age "so far as to entitle the infant to enter and take the land to him- self". But yet if no other guardian be appointed, the guardianship will continue (Byrne vs. Van Hoesen, Johnson's New York Supreme Court Reports, V, 66). And twenty-one years being the equivalent of the perfecta cetas of the Roman law, guardianship con- tinues generally until the minor reaches that age. But by the law of some states females become of fuU age when eighteen years old , or on marrying, and ac- cording to a New York statute guardianship of a female ceases on her marriage as to her person, con- tinuing, however, as to her property. In some states
the father has been deprived of his paramount right to
appoint a guardian. Various statutes authorize the a(5-
pointment of guardians, called usually "committees",
for persons of unsound mind. And (as in the Roman
law) guardianship of .spendthrifts — persons "who", to
quote a Scotch legal expression, "are in danger of
suffering by their profusion or facility of temper"
(Bell, Principles of the Law of Scotland, 10th ed.,
Edinburgh, 1899, 806)— ha,s, also, been provided by
the statutes of several states.
The guardian is called by Blackstone " a temporary parent", "the power and reciprocal duty of a guardian and ward" being declared by this authority to be " the same pro tempore as that of a father and child" (Com- mentaries, Book I, xvii). But although guardianship of a minor has been said to be " an artificial extension of the parental power" (Taylor, op. cit.), the power and duties in the artificial are similar to, but are not identical with, those m the natural relation. The duties of a guardian are, indeed, "those of protection, education and maintenance" (Schouler, op. cit., 315), with right generally to the custody of the ward's per- son (ibid., 311). 15ut while a parent is under the duty of supporting his child from his own means, and may claim the labour and services of the child in return, a guardian, as such, cannot sustain this claim, and he is required to support his ward so far only as the latter's property supplemented by the liberality of other per- sons will allow (ibid., 305, and note 2).
"The guardian's trust" is "one of obligation and duty" (Kent, "Commentaries", II, 229). Of the prop- erty intrusted to his care, he is to take possession, suifering " no waste or destruction of the ward's land" and investing legally any funds belonging to him. And whenever the guardianship may be terminated , whether by the ward attaining full age, or, at an earlier period, by marriage of the ward, b)- death of either ward or guardian, or by the latter's removal or resignation, a final accounting of the guardianship is to be made " for the personal estate and the issues and profits of the real estate" (Kent., loc. cit.). To a minor who is a party defendant to a suit in court there is assigned a protector known as a guardian <«/ litem.
EvERsLEY. The Law of the Domestic Relations (.'Jrti ed.. L«n- don, 1906), 618, 621. 624, 634, 635; Stephen, New Commen- taries on the Laws of England (14th ed., London, 1903), Bk. II, 308, 309, 340, 353: Burge, Commentaries on Colonial and For- eign Laws (London, 1S.3S). Ill, 931, 933, 937, 943, 944, 978 (also see edition of 1907. I. .s^ \V(.»EnNER, A Treatise on the American Law of Guardianship (Hosloii, 1,S97\ 7. 15, 16. 40, 58. ISO, 214, 327; Mackeldev, Compvndnim of Modern Civil Law, tr. Kauf- MANN (New York, 1845), 129; Laws of the State of New y'ork, 1896 ('.\Ibany, 1896), I. 223-225 (see also Code of Civil Proce- dure, §2821); Merhick, The Revised Civil Code of the Stale of Louisiana (New Orleans, 1900), AH. 246-388; BEAtfHAMP, The Civil Code of the Province of Quebec (Montreal, 1904 ), §S2I9, 290; La Grande Encyclopedic, .s. v. Tutelle: Stoke.s, The Anglo- Indian Codes (Oxford, 1887), 229, 3.56; Grady, A Manual of Hindu Law (London, 1871), 60, 61; Wes,sels, History of the Roman-Dutch Law ((jrahainstown, 190S), 422.
Charles W. Sloane.
Guarini, Battista, Italian poet, b. at Ferrara, 1538; d. at Venice, 7 Oct., 1612. His father, Fran- cesco Guarini, was a great-grandson of the famous humanist, Guarino da Verona, who had founded the fortunes of the family at Ferrara in the fifteenth cen- tury. Battista's early life, divided between Padua and his native city, was mainly academic, until, in 1.567, he entered the court of Alfonso II, the last Duke of Ferrara. He was employed as a diplomatist, nota- bly in the unsuccessful negotiations (1574 and 1575) for obtaining for Alfonso the crown of Poland. Ex- cepting for occasional intervals, during which he was employed by the Dukes of Savoy and Mantua, he spent most of his time in the service of the Duke of Ferrara, until the death of Alfon.so (1597) and the devolution of the duchy to the Holy See. Later, Guarini frequented the courts of the Grand Duke of Tuscany and the Duke of Urbino. His last years were mostly passed at Rome and Venice, where he was
