The weakness of infancy requires continual protection. Every thing must be done for the infant, which can do nothing for itself. The perfect development of its physical powers requires many years: the development of its intellectual faculties is more slow. At a certain age, it has already strength and passions, but it has not yet sufficient experience to regulate them. Too sensible of the present, and too little sensible of the future, it requires an authority more immediate than that of the laws; it requires to be governed by rewards and punishments, which do not act at long intervals, but continually, and which may be adapted to all the details of its conduct, during the progress of its education.
The choice of a situation in life, or of a profession for a child, also requires that he should be subject to a particular authority. This choice, founded upon personal circumstances, upon expectations, upon talents, or the inclinations of the young pupils; upon their facility of applying to one thing in preference to another---in a word, upon the probability of success; this choice is too complicated to be made by the public magistrate; each case requires particular consideration, and its decision such an acquaintance with particular details as a public magistrate cannot possess.
This power of protection and government, with respect to individuals considered incapable of protecting and governing themselves, constitutes Guardianship: a kind of domestic magistracy, founded upon the manifest wants of those who are subject to it, and which ought to comprehend all the powers necessary for attaining its end, without going beyond it.
The powers necessary for the education of a ward, are those of choosing his station, and fixing his habitation, together With the means of reprimanding and correcting him, without which authority would be inefficacious. These means may be the more easily reduced upon the side of severity, in proportion as their application is more certain, more immediate, and more easily varied, and because domestic government possesses an inexhaustible fund of rewards; since during the period in which every thing is received, there is no concession which may not be made to take the shape of reward.
With regard to the subsistence of the ward, it can only be derived from three sources; either his own property, or from gifts, or from his labour.
If the ward possess property, it is administered in his name and for his advantage by his guardian; and all that he does in this respect, according to prescribed forms, is ratified by the law.
If the ward have no property, he is supported either at the expense of the guardian, as is most commonly the case where the guardianship is exercised by the father or mother of the child; or at the expense of some charitable establishment; or, it maybe, by his own labour, as in the case where his services are engaged in an apprenticeship, in such manner that the period of his non-value is compensated for by the subsequent period.
Guardianship being an office purely burthensome, this service is made to fall upon those who have the greatest inclination and facility for discharging it. The father and mother are eminently in this situation. Natural affection generally more strongly disposes them to it than the law; still, however, the law which imposes it on them is not useless. It is because children have been abandoned by the immediate authors of their being, that this abandonment has been constituted a crime.
If the dying father have appointed a guardian to his children, it is presumed that no person has known better than he, who had the means and inclination to supply his place in this respect. Hence his choice should be confirmed, unless there be strong reasons to the contrary.
If the father have not provided a guardian, this obligation should fall upon a relation, attached by interest to the preservation of the family property, and by affection or honour to the welfare and education of the children. In default of a relation, some friend of the orphans should be chosen, who will voluntarily discharge this office: or some public officer should be appointed for this purpose.
It is proper to pay attention to the circumstances which may render guardianship unnecessary:---Advanced age, a numerous family, infirmities, or reasons of prudence and delicacy, for example, complication of interests, &c.
The particular precautions against the abuse of this power belong to the penal laws against offences:---an abuse of authority against the person of the ward, is referable to the class of personal injuries; illicit gains derived from his fortune, to that of fraudulent acquisitions, &c. The only thing to be considered is the peculiar circumstance of the offence, the violation of confidence. But though this renders the offence more odious, it is not always a reason for augmenting its punishment; on the contrary, we shall see elsewhere that it is often a reason for diminishing it: the position of the delinquent being more particular, the detection of the offence is more easy, reparation is more certain, and the alarm is less. In the case of seduction, the character of guardian is an aggravation of the offence.
As regards general precautions, guardianship has often been subject to division, by giving the administration of the property to the next of kin who is entitled to succeed to it, who, in character of heir, will have the greatest interest in increasing its value; and the care of the person to some other relation, more interested in the preservation of his existence.
Some legislators have taken other precautions, such as forbidding guardians to purchase the property of their wards, or of permitting to these to re-enter upon their property sold within a certain number of years after attaining their majority. Of these two methods, the first does not appear subject to great inconveniences; the second can only affect the interests of the ward, by diminishing the price of his lands, in as much as the value is diminished to the purchaser himself, in proportion as his possession is rendered precarious, and he is afraid to undertake improvements which might prove disadvantageous to him, by furnishing an additional motive for re-entry. Both these methods appear useless, if the sale of the property be only permitted to be made publicly, and under the inspection of the magistrate.
The most simple method is to allow any person to act in legal matters as the friend of the infant against his guardians, either in cases of malversation as to his property, or of negligence or violence. The law would thus put these feeble beings, who are unable to protect themselves, under the protection of every generous individual.
Pupillage being a state of dependence, is an evil which ought to cease as soon as it is possible, without occasioning a greater evil. But at what age ought this emancipation to take place? This question can only be decided by general presumptions. The English law, which has fixed the epoch at the age of twenty-one years, seems much more reasonable than the Roman law, which has been followed in almost every country in Europe, and which fixed it at twenty-five years. At twenty-five years old, the faculties of the man are developed; he is sensible of all his powers; he yields to advice what he refuses to authority, and will be not longer content to be restrained by the bonds of childhood. hence the prolongation of domestic authority often produces a state of animosity and irritation, equally hurtful to both the parties interested. But there are some individuals who never reach maturity, or who reach it much later than others. Provision may be made for these cases by interdiction, which is only a prolongation of guardianship during a prolonged childhood.
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