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Report No. 83

III. The Middle Age-judicature Act

Crown as feudal overlord.- The position in England may now be dealt with. In the Middle Ages the Crown as feudal overlord exercised a guardianship over the person and estate of its infant tenants-in-chief.1 Thus guardianship, which was exceedingly profitable to the guardian, was enforced in the Court of Wards, but on the abolition of that court and of the system of military tenures, at the Restoration, the feudal aspect of this jurisdiction vanished.

The Crown, however, did not abandon the infant when it ceased to be able to make a profit out of him. On the contrary, it came to claim, as "purees partriae" protective jurisdiction over all infants in the kingdom, and this jurisdiction was entrusted to the Court of Chancery.

It would be impossible to go into the details of the jurisdiction here, but we may notice that the court could appoint guardians of the infant whenever, through the death or misconduct of the parents this course was necessary; and even though no guardian was appointed, it was possible by taking the appropriate steps to constitute the infant a ward of the court, with the result that no important step in connection with his upbringing could be taken without the court's sanction.

This jurisdiction in cases of infancy still exists, and was exercised by the Chancery Division of the High Court2 till recently. It has now been transferred to the new Family Division.

View of Pollock and Maitland.- Pollock and Maitland make this observation3 as to the state of the law in earlier times:-

"This part of our law will seem strange to those who know anything of its next of kin. Here in England old family arrangements have been shattered by seignorical claims, and the King's Court has felt itself so strong that it has had no need to reconstruct a comprehensive law of wardship. That the King should protect all who have no other protector, that he is the guardian above all guardians, is an idea which has become exceptionally prominent in this much governed country The King's Justices see no great reason why every infant should have a permanent guardian because they believe they can do full justice to infants."

Father's right after end of feudal system.-When the feudal system came to an end, the position changed. Where the Court did not appoint a guardian, the father's right to control and custody of his children was, except as limited by statute (e.g. section 4, Custody of Children Act, 1891), absolute even against the mother.

1. Radcliffe and Cross The English Legal System, (1971), p. 144.

2. Cf. G. Cross Wards of Court, (1967) 83 LQR 200-14.

3. Pollock & Maitland History of English Law, Vol. 2, p. 312.



The Guardians and Wards Act, 1890 and Certain Provisions of the Hindu Minority and Guardianship Act, 1956 Back




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