Coke, an ample opportunity for triumph; they affirming, that to commit the custody of an infant to him that is next in succession is "quasi agnum committere lupo, ad devorandum "." These guardians in socage, like those for nurture, continue only till the minor is fourteen years of age; for then, in both cases, he is presumed to have discretion, so far as to choose his own guardian. This he may do unless one be appointed by the father, by virtue of the statute 12 Car. II. c.24. which, considering the imbecility of judgment in children of the age of fourteen, and the abolition of guardianship in chivalry (which lasted till the age of twenty-one, and of which we shall speak hereafter) enacts, that any father, under age or of full age, may by deed or will dispose of the custody of his child, either born or unborn, to any person, except a popish recusant, either in possession or reversion, till such child attains the age of one-and-twenty years. These are called guardians by statute, or testamentary guardians. There are also special guardians, by custom of London, and other places °; but they are particular exceptions, and do not fall under the neral law. (2)

m 1 Inst. 88.

"See Stat. Hibern. 14 Hen. III. This policy of our English law is warranted by the wise institutions of Solon, who provided that no one should be another's guardian, who was to enjoy the estate after his death. (Potter's Antiq. b. 1. c. 26.) And Charondas,

ge

another of the Grecian legislators, directed that the inheritance should go to the father's relations, but the cducation of the child to the mother's; that the guardianship and right of succession might always be kept distinct. (Petit. Legg. At. l. 6. t.7.) Co. Litt. 88.

(2) On the subject of guardians of different kinds, I refer the student to a series of notes by Mr. Hargrave on the passage of Co. Litt., so often referred to in the margin, p. 88. nn. 63, 64, 65, 66, 67, 68, 69, 70, and 71.; as well as to a note by Mr. Amos on Fortescue, c. 44.; and Fonblanque's Treat. of Equity, B. ii. P. 2. ch. 2. s. 2. The guardianship, to which it is practically the most important to attend, is that by testament, of which a sufficiently accurate outline is drawn in the text; I will mention only one or two circumstances that seem to have been omitted. In the first place, the statute empowers fathers only to make the appointment; this was probably an unintentional omission; but the consequence is, that where a mother is the surviving parent, the children, upon her death, will be left to find guardians according to the provisions of the common law. In this case, where none other can be found, the jurisdiction of the chancellor arises on the part of the crown to protect the infant subject, and he

will

THE power and reciprocal duty of a guardian and ward are the same, pro tempore, as that of a father and child; and therefore I shall not repeat them; but shall only add, that the guardian, when the ward comes of age, is bound to give him an account of all that he has transacted on his behalf, [463] and must answer for all losses by his wilful default and negligence. In order therefore to prevent disagreeable contests with young gentlemen, it has become a practice for many guardians, of large estates especially, to indemnify themselves by applying to the court of chancery, acting under it's direction, and accounting annually before the officers of that For the lord chancellor is, by right derived from the crown, the general and supreme guardian of all infants, as well as idiots and lunatics; that is, of all such persons as have not discretion enough to manage their own concerns. In case, therefore, any guardian abuses his trust, the court will check and punish him; nay sometimes will proceed to the removal of him, and appoint another in his stead P.

court.

2. LET us next consider the ward or person within age, for whose assistance and support these guardians are constituted by law; or who it is, that is said to be within age. The ages of male and female are different for different purposes. A male at twelve years old may take the oath of allegiance; at fourteen is at years of discretion, and therefore may consent or disagree to marriage, may choose his guardian, and, if his discretion be actually proved, may make his testament of his personal estate; at seventeen may be an executor; and at twenty-one is at his own disposal, and may aliene his lands, goods, and chattels. A female also at seven

P 1 Sid. 424. 1 P. Will. 703.

will delegate the care to some proper person. As to the origin of this jurisdiction, see Vol. III. p. 427. n. (1).

The effect of the appointment by testament is rather more extensive than the text implies, because the statute annexes to the office the custody and management of the infant's real and personal estate, and empowers the guardian to bring all such actions relating thereto as a guardian in socage might. On the other hand, this appointment, as stated in the text, does not so far supersede the general duty and power of the chancellor, as delegate of the crown, to protect infants, but that he may interfere in cases of gross misconduct, or legal incapacity, such as that of lunacy or bankruptcy, to controul or even to remove him.

years of age may be betrothed, or given in marriage; at nine is entitled to dower; at twelve is at years of maturity, and therefore may consent or disagree to marriage; and, if proved to have sufficient discretion, may bequeath her personal estate at fourteen is at years of legal discretion, and may choose a guardian; at seventeen may be executrix; and at twenty-one may dispose of herself and her lands. So that full age in male or female is twenty-one years, which age is completed on the day preceding the anniversary of a person's birth; who till that time is an infant, and so styled in law. Among the antient Greeks and Romans women were never [464] of age, but subject to perpetual guardianship', unless when married, “nisi convenissent in manum viri :” and, when that perpetual tutelage wore away in process of time, we find that, in females as well as males, full age was not till twenty-five years. Thus, by the constitution of different kingdoms, this period, which is merely arbitrary, and juris positivi, is fixed at different times. Scotland agrees with England in this point; (both probably copying from the old Saxon constitutions on the continent, which extended the age of minority" ad annum vigesimum primum, et eo usque juvenes sub tutelam reponunt;") but in Naples they are of full age at eighteen; in France, with regard to marriage, not till thirty: and in Holland at twenty-five. (3)

3. INFANTS have various privileges, and various disabilities but their very disabilities are privileges; in order to secure them from hurting themselves by their own improvident acts. An infant cannot be sued but under the protection, and joining the name, of his guardian; for he is to defend him against all attacks as well by law as otherwise " (4): but

(4 This is incorrectly expressed; 1st. The infant is sued in his own name alone as any other person, but he appears to defend his cause by guardian, being supposed, without discretion, to appoint an attorney for

that

In

he may sue either by his guardian, or prochein amy, his next friend who is not his guardian. This prochein amy may be any person who will undertake the infant's cause; and it frequently happens, that an infant, by his prochein amy, institutes a suit in equity against a fraudulent guardian criminal cases, an infant of the age of fourteen years may be capitally punished for any capital offence "; but under the age of seven he cannot. The period between seven and fourteen is subject to much uncertainty: for the infant shall, generally speaking, be judged prima facie innocent: yet if he was doli capax, and could discern between good and evil at the time of the offence committed, he may be convicted, and undergo judgment and execution of death, though he hath not attained to years of puberty or discretion. And sir [ 465] Matthew Hale gives us two instances, one of a girl of thirteen, who was burned for killing her mistress; another of a boy still younger, that had killed his companion and hid himself, who was hanged; for it appeared by his hiding that he knew he had done wrong, and could discern between good and evil and in such cases the maxim of law is, that malitia supplet aetatem. So also, in much more modern times, a boy of ten years old, who was guilty of a heinous murder, was held a proper subject for capital punishment, by the opinion of all the judges . (5)

WITH regard to estates and civil property, an infant hath many privileges, which will be better understood when we come to treat more particularly of those matters; but this may be said in general, that an infant shall lose nothing by non-claim or neglect of demanding his right; nor shall any other laches or negligence be imputed to an infant, except in some very particular cases.

w 1 Hal. P. C. 25.
* Ibid. 26.

y Foster, 72.

that purpose. 2d., He does not necessarily appear by his regular guardian as the text implies, but by any person whom the court shall appoint guardian ad litem to defend that particular suit. It is within the province of every court to appoint a guardian ad litem, where a party in a suit is an infant. See Vol. III. p. 427.

it

Ir is generally true, that an infant can neither aliene his lands, nor do any legal act, nor make a deed, nor indeed any manner of contract, that will bind him. But still to all these rules there are some exceptions: part of which were just now mentioned in reckoning up the different capacities which they assume at different ages: and there are others, a few of which may not be improper to recite, as a general specimen of the whole. And, first, it is true, that infants cannot aliene their estates but infant trustees, or mortgagees, are enabled to convey, under the direction of the court of chancery or exchequer, or other courts of equity, the estates they hold in trust or mortgage, to such person as the court shall appoint2. Also it is generally true, that an infant can do no legal act: yet an infant, who has an advowson, may present to the benefice when it becomes void a. For the law in this case dispenses with one rule, in order to maintain others of far [466] greater consequence: it permits an infant to present a clerk (who, if unfit, may be rejected by the bishop) rather than either suffer the church to be unserved till he comes of age, or permit the infant to be debarred of his right by lapse to the bishop. An infant may also purchase lands, but his purchase is incomplete: for when he comes to age, he may either agree or disagree to it, as he thinks prudent or proper, without alleging any reason; and so may his heirs after him, if he dies without having completed his agreement. It is, farther, generally true, that an infant, under twenty-one, can make no deed but what is afterwards voidable; yet in some cases c he may bind himself apprentice by deed indented or indentures for seven years; and he may by deed or will appoint a guardian to his children, if he has any. Lastly, it is generally true, that an infant can make no other contract that will bind him yet he may bind himself to pay for his necessary meat, drink, apparel, physic, and such other necessaries; and likewise for his good teaching and instruction, whereby he may profit himself afterwards. And thus much, at present for the privileges and disabilities of infants.

d

z Stat. 7 Ann. c. 19. 4 Geo. III. c. 16.

a Co. Litt. 172.

b Ibid. 2.

< Stat. 5 Eliz. c. 4. 43 Eliz. c. 2. Cro. Car. 179.

d Stat. 12 Car. II. c. 24.

e Co. Litt. 172.