[§ 4. Guardian and Ward.]

We come now to consider the particular state of families. When a father dies leaving his children young, it is necessary that they should be taken care of. Even in the times of exposition, when an infant was some time kept, it was thought cruel to put him to death: the child was Edition: current; Page: [105] destitute, there were then no hospitals or places of charity: it must therefore be put into the custody of some person. The nearest relation by the father’s side was he whom the law fixed upon. In an early age the maintenance of the child was all that was to be taken care of, for there were no estates to manage, and the mother went back to her father’s family. This guardianship terminated when the child was about thirteen or fourteen years of age, at which time it was capable in that age to shift for itself. But when men came to be possessed of estates, though he might be supposed capable of shifting for himself about that age, yet he could not be capable of managing an estate. Now it became necessary to retain him in pupillarity more than fourteen years. By praetorian law, at that age he was allowed to choose his guardians or curators. A curator can do nothing without the consent of the pupil; a guardian can act without his consent, but is accountable to his pupil for whatever he does during his minority. At first lunatics and idiots were almost the only persons who had guardians; and, on account of its being disgraceful to have one, it was generally declined. Afterwards the law made invalid all acts of the pupil, till he was twenty-one, without the consent of his curators. As the nearest relation by the father’s side is often next heir, it was reckoned improper to trust the person of the son with him. The English law carried this so far that if an estate was left to the son in [his] father’s lifetime he was not trusted with him. By our law the care of an estate is entrusted to the next heir, as he will probably take best care of it; and the heir to a more remote relation, who will take best care of him, as he cannot be benefited by his death.