Guardianship, in Civil Jurisprudence

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Guardianship is "the condition 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 another whose youth, inexperience, mental weakness or feebleness of will, disqualifies him from acting for himself 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. Warden 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 "guardianship, control or care of a minor" (The Century Dictionary, s.v.). This "control or care" conferred by law is a substitute for, or "an artificial extension of the parental power" (Taylor, "The Science of Jurisprudence", New York, 1908, 558).

The Roman law terms such "control or care" of a minor under the age of fourteen years, tutela, "an authority and power over a free person given and permitted 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, 1876), the civil law thus providing what the Institutes pronounce agreeable to natural law, naturali juri conveniens, ibid., L. I, t. xx, 6. 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 auctoritas" (ibid., Introduction, §43, note, and see p. 76, t. xiv, p. 120, p. 134). Only one who was free could have that right, a deficiency in which, according to this explanation 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 (pupillus, 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 tutela of a male ended with his fourteenth year, of a female with her twelfth. But a minor was not deemed perfectœ œtatis (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 a curator (ibid., L. I, tt. xix, xxii, xxiii). Tutela might be testamentaria, legitima, or dativa.

Tutela testamentaria arose from appointment in the last will of the parent (Instit., L. I, t. xiii, 3). Tutela legitima 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 tutores legitimi (ibid., t. xv.). "If any one had no tutor at all" one was assigned by certain magistrates and termed tutor dativus (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 inheriting 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 Angliæ, 2nd ed., 1741, xliv), "in deeds of arms which in virtue of his 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 perform the service. Fortescue wrote in the reign of King Henry VI (1422-61); this wardship, intended for instruction "in deeds of arms", was by Queen Elizabeth "used to secure the education of all Catholic minors in the Protestant faith" (Green, "History of the English People", New York, 1903, III, 1324), not being abolished until 1660. A minor might, however, inherit 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 service" (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 inheritance 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 resembled 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 (Pandectæ Justinianeæ, ed. Pothier, L. XXVI, t. ii, note), was conferred by an English statute of the year 1660, a statute which, by a prohibition 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 patriœ was deemed to be protector of the interests of all of his subjects who were minors, and the exercise of this universal guardianship devolved upon the Court of Chancery by what was assumed to be delegation of the royal authority. In such exercise of authority, the court followed "in many respects", remarks Mr. Justice Story, "the very dictates of the Roman Code" (Commentaries on Equity Jurisprudence, 13th ed., Boston, 1886, II, 682).

Throughout the United States the law of the various states which regulates guardianship and the conduct of guardians is, in many particulars, local and statutory. For guardianship is "a local and temporary status" (Taylor, op. cit., 559). But in all the states (except in Louisiana) 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 resemblance 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 Australia, by the "Commonwealth of Australia Constitution Act" of 1900, power has been conferred 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 just 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 superintending 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 chancellor, "has a right to the custody of the person of his wife; in general, also 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 Reports, 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 sequitur patrem [English Law Reports, Chancery Division, I (1902), 689]. "As regards religious education", 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. See also Irish Reports, 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 Clarke, 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 prætor when not fixed by a will (Instit., tr. Sanders, 152). Allowances for these purposes became an important branch of the supervisory guardianship of chancery, and in various states of the United 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 concerning a wife's property rendered this supervision especially salutary to female wards. For by the common law the property of a wife vested by her marriage in her husband. But Chancery 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 unsanctioned marriage rendered the husband guilty of contempt 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 statutes 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 tutela, when the ward reaches fourteen years of age. Guardianship in socage (which without the old rules as to its devolution 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 himself". 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 œtas of the Roman law, guardianship continues generally until the minor reaches that age. But by the law of some states females become of full age when eighteen years old, or on marrying, and according to a New York statute guardianship of a female ceases on her marriage as to her person, continuing, 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 appointment 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) — has, 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" (Commentaries, 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 in 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 person (ibid., 311). But 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 persons will allow (ibid., 305, and note 2).

"The guardian's trust" is "one of obligation and duty" (Kent, "Commentaries", II, 229). Of the property intrusted to his care, he is to take possession, suffering "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, by 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 ad litem.

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