ON

THE POWER

EXERCISED BY

THE COURT OF CHANCERY

OF

DEPRIVING A FATHER OF THE CUSTODY OF HIS CHILDREN.

BY JOHN BEAMES, BARRISTER-AT-LAW, F.A.S.

LONDON:-1828.

THE decision pronounced in a recent and memorable case is, that the court of chancery has the power of depriving a father of the custody of his children." This decision was pronounced by a judge of great experience and distinguished learning, and he professes to rest his judgment on the admitted doctrine of the court, and disclaims the exercise of any but a power sanctioned by previous determinations.

The decision itself, when its consequences on society are contemplated, is one of the most important ever pronounced. This will scarcely be disputed, and, if admitted, it justifies an examination into the authorities on which the decision itself is supposed

to rest.

But we cannot proceed to examine the authorities without adverting to a question, which, if not strictly speaking preliminary, has been generally mixed up with the discussion: we allude to the question, whether the court of chancery has the general superintendence of infants. Assuming such jurisdiction as the basis of their argument, the advocates for the power which was exercised in the case to which we have adverted, do not hesitate in coming to the conclusion that the chancellor has authority to deprive a father of the custody of his children.

With respect to the general power of the chancellor to appoint guardians to infants, Mr. Hargrave might very justly say, that it is not very easy to state how this jurisdiction was acquired by the chancellor. (Co. Litt. Not. to 89 a.)

It has, however, been attempted to be supported by various arguments.

In the first place, the power over infants has been compared to

that over idiots and lunatics; and assuming the chancellor's authority over the latter, it has been rather hastily concluded that it established his power over infants.

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"The king has a right to take care of infants, lunatics, and idiots, that cannot take care of themselves, and this cannot be exercised otherwise than by appointing them proper curators or committees." So Fleta, cap. 9, fol. 4, de Tutelis, speaking of infants, "Quidam sub custodia parentum et proximorum consanguineorum; et illis dantur custodes de jure gentium." So Bracton, treating of this matter, lib. 2, cap. 38, fol. 86: "Nunc autem dicendum est de illis qui minores sunt, et infra ætatem, et quos oportet esse sub tutela et cura aliorum, eo quod se ipsos regere non norunt: et quorum quidam debent esse sub custodia dominorum, cum terris et tenementis quæ sunt de feodo eorum, et quidam sub custodia parentum et proximorum consanguineorum, ut predictum est, et quibus dantur custodes aliquando, de jure de antiquo feoffamento, et aliquando curatores, ab homine," &c. Thus Stamford, in page 37: The king has the protection of all his subjects, and of all their goods, lands, and tenements; and so of such as cannot govern themselves, nor order their lands and tenements, his Grace as a father must take on him to provide for them, that they themselves and their things may be preserved :" and he quotes Fitzherbert, 232: "That the king is bound of right to defend his subjects, their goods and chattels, lands and tenements, and that every one is in the protection of the king who has not forfeited it by some offence." Now how can the infants be protected by the crown but by assigning them proper guardians where it is disputable?" Lord Coke says, in Beverley's case, 4 Rep. 126," That the king shall have the protection of their goods and chattels, as well as of their lands; and compares it to the case of an infant." (Shaftesbury case, Gilb. Eq. Rep. 172.) This passage is extracted verbatim, because it is the particular passage referred to by Mr. Hargrave in his note, when, speaking of the chancellor's jurisdiction over infants, he observes, "the usual manner of accounting for it appears to us quite unsatisfactory." See Gilb. Eq. Rep. 172: "Saying that this jurisdiction over idiots and lunatics is undoubted, furnishes an argument against his having any over infants; for he derives the former from a separate commission under the sign manual; but there is not any such to warrant the latter. The writs of ravishment of ward, and de recto custodia, prove as little; for were not these returnable in the courts of common law, or, though they had not been so, how doth a jurisdiction to decide between contending competitors for the right of guardianship prove a power of appointing a guardian where it happens that one is wanting? The writs de custode admittendo in the register only relate to guardians ad litem. Reg. Br. Orig. 198, a." (Co. Litt. Not. to 89 a.)

Another mode of accounting for the general power of the chancellor to appoint guardians to infants is; 1st, that such power was originally in the crown; 2dly, that it was delegated by the crown to the chancellor, in whom the power existed previously to the erection of the court of wards, by the 32 Hen. 8; and, 3dly, that it reverted to the chancellor on the dissolution of the court of wards.

With respect to this power having originally existed in the crown, it seems to have been, although quite extrajudicially, as serted for the first time by the chancellor in Carey v. Bertie, 2 Vern. 342, decided in 1697: "In this court (he observed) there are several things that belonged to the king, as pater patriæ, and fell under the jurisdiction of this court, as charities, infants, idiots, &c.; afterwards such of them as were of profit and advantage to the king, were removed to the court of wards by the statute; but, on the dissolution of that court, came back again to the chancery." We shall presently endeavor to show that the latter part of this doctrine is, to speak most guardedly, more than questionable; and this must materially affect the credit due to the proposition respecting the power of the king, as pater patriæ, even if it had occurred in a book of authority, instead of making its appearance, for the first time, in a work of no credit or estimation; for such the second volume of Vernon's Reports must be admitted to be. Though derived from such a questionable source, the doctrine of the power of the king, as pater patriæ, seems, and that most probably from the difficulty of establishing the gene ral jurisdiction on any thing like a satisfactory basis, to have been repeated on several subsequent occasions. (See the Shaftesbury case, 2 P. W. 118. Gilb. Eq. Rep. 172. Butler v. Freeman, Amb. 302. De Manneville v. De Manneville, 10 Ves. 61. Lyons v. Blenkin, Jacob, 245.)

The venerated name of Lord Somers, who presided in the court of chancery when Carey v. Bertie was decided, may have had not a little to do in casting a lustre over the doctrine, though it is by no means improbable that it was doctrine he never pronounced. To this very questionable source, however, the doctrine may be traced. We have not traced it to any earlier source; but, whatever may be its origin, it seems very clear that no judge has pro fessed to act on it as the foundation of his jurisdiction in depriving a father of the custody of his children, previously to the case mentioned in De Manneville v. De Manneville: and although Lord Eldon tells us (10 Ves. 68), that it was clearly the principle of Lord Thurlow, in Powell v. Cleaver, Cruse v. Hunter, and Exparte Warner, all of which we shall afterwards have occasion to mention, such can scarcely be collected to be the fact from the printed reports of those cases.

With regard to the assertions, that the king's power as pater patria was delegated by the crown to the chancellor, and that, on the dissolution of the court of wards it reverted to the court of chancery, we apprehend these assertions first occur in the case of Carey v. Bertie, to which we have just alluded. These assertions are repeated, indeed, not only in the Shaftesbury case, but even by Lord Hardwicke himself in Hill v. Turner, 1 Atk. 516. But to this it may be answered, that in the subsequent case of Butler v. Freeman, Amb. 302, which was decided by Lord Hardwicke, when nineteen years of judicial experience had been added to his life, he expressly disclaims resting his power of interfering with respect to infants on "the foot of guardianship or wardship;" thereby, in so many words, disavowing the principle he had assumed, when Hill v. Turner was before him, and overruling virtu- ' ally the general doctrine asserted in the case of Carey v. Bertie, and Shaftesbury v. Shaftesbury. It will be difficult to find any thing to countenance this doctrine of the king's power, as paler patriæ, during the period when the feodal tenures prevailed.

It is more than probable that wardship, in other words, the right to guardianship, and the power of disposing of, and regulating it, did not exist under the Saxon dynasty; but, as a valuable fruit of knight's service, was introduced subsequently to Harold's defeat. (See Sulliv. Lect. 261. 4 Inst. 192.) "All tenure by knight's service (says Lord Coke) since the Conquest draweth ward." (4 Inst. 191.) " You have heard before (Lord Coke adds) de regali servicio, before the Conquest, but that regale servicium (which was knight's service) drew unto it relief; but neither wardship of the body, or of the land, as hath been said. It is true, that the Conqueror, in respect of that royal service, as a badge of the Conquest, took the wardship of the land, and the marriage of the heirs within age of such tenants; but this extended not to tenures of the subject by knight's service." (4 Inst. 192.) Glanville, though he gives the custody of the heir to the king when the heir held lands of him in capite, expressly lays it down that, in burgage tenure the crown had no preference, and that in socage tenure the nearest kindred was entitled to the guardianship. (L. 7. c. 10, 11); and the passage contained in Gilbert's Report of the Shaftesbury case, as extracted from Bracton, is, as far as it goes, confirmatory of that doctrine; which, indeed, is further confirmed by the same chapter of that author. But our own impression on the subject is much corroborated by the important remarks of the learned editor of Coke on Littleton. "The assertion, (Mr. Hargrave continues,) that the appointment of guardians belonged to the chancellor before the erection of the court of wards, remains to be proved: or, at least, we, after a diligent search, do not find any

authority in print. The passages referred to in Fleta, and the doctrine in Beverley's Case, 4 Co., by no means warrant the use made of them; for in neither is any notice taken of infants. Though the care of infants, as well as of idiots and lunatics, should be admitted to belong to the Crown, yet something further is necessary to prove that the Chancellor is the person constitutionally delegated to act for the King. It is no wonder, therefore, that Lord C. Hardwicke took occasion to disapprove of comparing the Court's jurisdiction over infants with that over idiots." 2 Atk. 315. "As to the writs relative to the appointment and removal of guardians in the register, they merely relate to suits, which is of very different consideration from general guardians. See Index to Reg. Brev. Orig. tit. Custodes." (Co. Litt. n. 89 a.)

If it be difficult to show, first, that the Crown, antecedently to Hen. 8, had the power as pater patriæ already alluded to; and, secondly, that the Chancellor was constitutionally delegated to ex-` ercise the general power of appointing guardians, it will not be easy to prove that this jurisdiction did, as asserted, on the abolition of the Court of Wards, revert to the Court of Chancery. But, from the mode of putting the argument, it seems as if it were intended to infer, that the jurisdiction which it is assumed the Court of Chancery previously possessed over the guardianship of infants, was transferred to the Court of Wards, on the erection of that Court. That this is untenable, will be evident by recurring to the act which created the Court of Wards.

The 32d Hen. 8. c. 46. by which "the Court of the King's Wards" was erected, speaks only of wards which " the King now is," or hereafter shall be, entitled to, with their manors, &c. for the time the same shall be in the King's possession." This evidently confined it to those wardships from which the King derived a revenue or profit, and to which he was beneficially entitled, and not to wardships, the right of which belonged to other individuals. The statute erected a new court, which could not, according to a well-known rule of law, have any other jurisdiction than that expressly given to it. If authority were wanted for this position, we have that of Lord Coke himself, when speaking of the Court of Wards: "The Court can have no other jurisdiction than is expressed in the erection, for this new Court cannot prescribe." (4 Inst. 200.) And as nothing can be found in the statute of Hen. 8, which applies to the guardianship of infants in general, or to a decision between litigating parties, not being tenants of the Crown, with respect to their rights of guardianship, the inference is, that the erection of "the Court of King's Wards" did not withdraw from the Court of Chancery any vower which the latter Court did VOL. XXIX. Pam. NO. LVII.