ART. IV.--WARDS IN CHANCERY.

IN commencing our inquiry into the jurisdiction of the Court of Chancery over the wards of the court, we encounter a subject, upon which great doubts have been entertained,-the origin of the jurisdiction. It is a subject to which all the text writers who have treated of this branch of law have successively alluded; yet none of them appear to be completely satisfied with the results of their investigation. The judges, who have mentioned it in their judgments, have generally referred to the existing difficulties, and have then contented themselves with resting the authority which they exercise upon established usages. We propose in the first instance to lay before our readers the different opinions which have been suggested; and we have no more satisfactory means of doing so than by quoting the statement of them which has been made by Mr. Justice Story:

"And1 in the first place, as to the jurisdiction over the person and property of infants. The origin of this jurisdiction in Chancery (for to that court it is practically confined, as the court of Exchequer as a court of equity does not seem entitled to exercise it,) is very obscure, and has been a matter of much juridical discussion. The common manner of accounting for it has been thought by a learned writer to be quite unsatisfactory. It is that the king is bound by the law of common right to defend his subjects, their goods, chattels, lands and tenements; and therefore in the law every loyal subject is taken into the king's protection. For which reason an idiot or lunatic, who cannot defend or govern himself, or order his lands, tenements, goods or chattels, the king, of right, as parens patriæ, ought to have in his custody, and rule him and them. And for the same reason the king as parens patriæ ought to have the care of the persons and property of infants, where they have no other guardian of either.

"The objection urged against this reasoning is, that it does not sufficiently account for the existing state of the jurisdiction; for there is a marked distinction between the jurisdiction in cases of infancy and that in cases of lunacy and idiotcy. The former is exercised by the chancellor in the Court of

1 Story, Eq. Jurisp. 2. 516.

Chancery, as a part of the general delegation of the authority of the crown, virtute officii, without any special warrant; whereas the latter is exercised by him by a separate commission under the sign manual of the king, and not otherwise. It is not safe, or correct therefore, to reason from one to the other, either as to the nature of the jurisdiction or as to the practice under it.

“An attempt has also been made to assign a different origin to the jurisdiction, and to sustain it by considering guardianship as in the nature of a trust, and that therefore the jurisdiction has a broad and general foundation, since trusts are the peculiar objects of equity jurisdiction. But this has been thought to be an overstrained refinement, for although guardianship may properly be denominated a trust in the common acceptation of the term; yet it is not so in the technical sense in which the term is used by lawyers, or in the Court of Chancery. In the latter, trusts are invariably applied to property (and especially to real property), and not to persons. It may be added, that guardianship, considered as a trust, would equally be within the jurisdiction of all the courts of equity; whereas in England it is limited to the chancellor sitting in chancery.

"An attempt as also been made to derive the jurisdiction from the writ of Ravishment of Ward and the writ De Recto de Custodia at the common law, but with as little success. For independently of the consideration that these writs were returnable into a court of common law, it is not easy to see how a jurisdiction to decide between contending competitors for the right of guardianship can establish a general authority in the Court of Chancery to appoint a guardian in all cases when one happens to be wanting.

"It has been further suggested that the appointment of guardians, in cases where the infants had none, belonged to the chancellor in the Court of Chancery before the erection of the Court of Wards, and that upon the abolition of that court it resulted to the king in his Court of Chancery, as the general protector of all the infants in the kingdom. But this (it has been objected) is rather an assertion than a proof of the jurisdiction; for it is difficult to trace it back to any such ancient period. The earliest instance which has been found of the

actual exercise of the jurisdiction by the chancellor to appoint a guardian upon petition without bill, is said to be that of Hampden in the year 1696. Since that period indeed it has been constantly exercised without its once being called in question. Mr. Hargrave has not hesitated to say that although the jurisdiction is now unquestionable, yet it seems to have been an usurpation, for which the best excuse was that the case was not otherwise sufficiently provided for. He has added, that although the care of infants as well as and lunatics should be admitted to belong to the crown, yet that something further is necessary to prove that the Chancellor is the person constitutionally delegated to act for the King."

of idiots

Such is the general statement of the theories upon this perplexed question. We are well aware that the solution of it which we offer for the consideration of our readers, will be received with a reasonable suspicion, that we shall not succeed in our attempt to remove the doubts, which have prevailed in the minds of many eminent lawyers.

There appear to be three subjects involved in the question, first, the title to the guardianship of the person; secondly, the title to the guardianship of the property; and thirdly, the general protection of the infant both as between him and his guardian, and also as between him and all the rest of the world. We cannot help thinking that the reason why our legal and historical authorities have found difficulty in accounting for the origin of the jurisdiction, is that they have not drawn a line sufficiently distinct between these three several subjects.

Long ago1 Lord Macclesfield drew the distinction between the guardianship and the care of the infant. That the care of the infant, in the meaning in which Lord Macclesfield used the term, must have always belonged to the crown will probably be conceded. We shall see that under the circumstances in which infants have been placed at different periods of our history, the appointment of a guardian has necessarily become part of the system, by which this general care and superintendence has been carried into effect.

The duty of the sovereign to protect his liege subjects is of

"The court has the care not the guardianship of the infant." Eyre v. Shaftesbury, 2 P. W. 117.

the most extensive character. It is part of his office as the general dispenser of public justice. Those who are accounted competent to manage their own affairs themselves claim from their sovereign in his courts of justice the enforcement of their rights. Those who from age or from defective understanding are precluded from advancing claims on their own behalf still have their rights, not merely such as legal guardians will enforce against other members of the community, but also such as are necessary between themselves and their guardians for their own welfare and preservation. The principles of our constitution require that the protection of the sovereign, due as it is to every member of the state according to his peculiar circumstances, should be extended with scrupulous attention over those who in the eye of the law are incapable persons. "That1 in every civilized state such a superintendence and protection does somewhere exist will scarcely be controverted." That it exists by our constitution in the sovereign is the inference from a well known maxim, "Protectio trahit subjectionem, et subjectio protectionem."

Persons who think that this jurisdiction is not to be traced to the authority of parens patriæ have endeavoured to derive an argument from the circumstance, that the authority of the crown over lunatics and idiots is derived from statute.3 Although the argument comes from that eminent lawyer Mr. Hargrave, we cannot help thinking that in reality it is inapplicable to the question. That statute, so far as it relates to the care as distinguished from the guardianship of lunatics and idiots, is only declaratory of the common law. So far as it relates to the guardianship, it determines a matter not of jurisdiction, but of administration. Had the statute never been passed, there is no reason why the court might not in certain cases have been compelled to appoint a guardian for the mere discharge of its duty in taking care of the lunatic.

The distinction between administration and jurisdiction is marked by the different modes in which the chancellor's authority is conferred in the two cases. In the one he acts as judge in the Court of Chancery, exercising the common judicial authority delegated to that court by the sovereign. He

1 Chit. de Jud. p. 12.

2 Fonb. Eq. 2, 229.

3 17 Ed. 2, c. 9, c. 10.

acts as the representative of the sovereign in a matter in which the sovereign has no interest. In the other he is a commissioner of the crown, acting under a sign manual, the usual form in which the sovereign commits to a subject the management of a matter in which the sovereign has an interest.1

The reasoning of Mr. Hargrave amounts to this, that in tracing this jurisdiction to the authority of parens patriæ we prove too much, because, if it had arisen from that authority, it would have been exercised in a manner precisely similar over idiots and lunatics, whereas we know that over these persons it is exercised by a separate commission. We reply by again adverting to the distinct characters in which these different kinds of interference take place. As to idiots and lunatics the king is himself guardian by law; as to infants it is incumbent upon him to afford all proper protection, and as incident to the performance of that duty, to appoint a guardian; but he is not himself the guardian. It is very natural that the modes in which these two different duties are delegated to the chancellor should be distinct from each other. If the 17 Edw. II. had never been passed, the distinction between infants on the one hand and idiots and lunatics on the other would never have existed; and it appears to us that in that case the abolition of tenures, which would have deprived the idiot and lunatic of the guardianship of the lord of the fee, would have thrown upon the crown the duty of providing persons to fill that office. In that case the proceedings in respect of those incapable persons would have been precisely the same as the proceedings in respect of infants.

The distinction between care and guardianship may be illustrated by reference to some of the numerous cases in which the crown fills two different characters, having an interest, that is a right to be administered, as well as an au

1 Fonb. Eq. 2, 230. Lord Loughborough says, "the course upon the statute (i. e. 17 Ed. 2, c. 10,) has been that the crown has committed to a certain great officer of the crown, not of necessity the person who has the custody of the great seal, though it generally attends him, by warrant from the crown, which confers no jurisdiction, but only a power of administration. If that power is abused, if anything wrong is done or error committed, the appeal is immediately to the king, and not in the ordinary course attending the established jurisdictions of the kingdom. The orders that are made by the persons charged with the custody of lunatics are appcalable to the king in council," Oxenden v. Compton, 2 V. 71 a.