GUARDIAN by statute, or Testamentary Guardian. By the common law, no per son could appoint a guardian, because the law had appointed one, whether the fa ther were tenant by knight service, or in socage.
The first statute that gave the father a power of appointing was the 4 and 5 Philip and Mary, c. 8, which provides, under severe penalties, such as fine and imprisonment for years, against taking any maid, or woman child unmarried, be ing within the age of sixteen years, out of or from the possession, custody, or go vernance, and against the will of the fa ther of such maid or woman child, or of such person or persons, to whom the fa ther of such maid or woman child, by his last will and testament, or by any other act in his life time, shall grant the education and governance of such child.
But the principal guardianship is now by the statute 12 Charles II. c. 24, by which any father, under or of full age, may, by deed or will, attested by two wit nesses, appoint, dispose of the custody of his child, born or unborn, to any person, except a popish recusant convict, either in possessiontor reversion, till such child attain twenty-one. This guardian super
sedes the guardian in socage, and has all actions which that guardian might have had. Besides which he has the care of the estate, real and personal. A father cannot under this statute appoint one to his natural child ; and a case has been decided upon the marriage act, in which a marriage with consent of a guardian applied to a natural child was held void. The chancellor, however, will upon ap plication appoint the same person guar dian.
Guardians by custom, are appointed in the City of London, in the county of Kent, and, with respect to copyhold lands, in some manors.
Guardians by appointment of the eccle siastical court, were appointed to take care of the infant's personal estate, till fourteen in males, and twelve in females; but their authority over the person is now denied, and they are only confined to guardianship for the purpose of a suit in an ecclesiastical court.