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with the doctrine of several of the subsequent cases, which totally overlooking all the legal and vatural claims of the parent to the custody of his child, and scarcely admitting that he has any concern in the proper education of his offspring, or any benefit from his services, or pleasure in his society, decide that nothing, but what by force of a petitio principii is assumed to be the interest of the infant, is to be consulted. We have said that Exparle Hopkins is the first case in print, which directly applies to this power of the Court over infants during the life of the father.

In the case of the Duke of Beaufort v. Bertie, 1 P. Wms. 702, the point did not arise ; and we only refer to it for the purpose of udverting, first, to an observation of the Chancellor; and, secondly, lo the argument of the Solicitor-General. The Chancellor says that “ the Court would, and had interposed, even in the case of a father, as where the child had an estate, and the father, who was insolvent, and of an ill character, would take the profils; there the Court bad appointed a receiver, as was done in the case of Kiffin v. Kiffin." There the Court had appointed a receiver," says the Chancellor; and very properly, because the father, who bad entered, as we should conceive, as guardian in socage, on his son's land, was, as to the profits, a mere trustee for the son, (Harg. Co. Litt. 88 b.) and the Court would secure such protits for the infant (Harg. No. 72. Co. Litt. 89 a.) against the acts of an insolvent trustee; and the more readily, as an action of account would not hold against the guardian, until his guardianship expires. (Co. Litt. 89 a.) In Kiffin v. Kiffin, the Court interfered to preserve the property; and the statement of the decision, as furnished by the Chancellor in the Duke of Beaufort v. Bertie, does not, therefore, bear out the representation made by the counsel in the 10th Ves. 55, that in Kiffin v. Kiffin, " this Court interfered, merely on account of the father's insolvency and character, depriving him of the custody of his child.This representation is wholly unwarranted by the report in Peere Williams. Nor is the other representation contained in the 'same page more correct.

We allude to that of Kiffin v. Kiffin, being followed by Lord Thurlow in Wilcox v. Drake, 2 Dick. 631, decided in 1783, since in Wilcox v. Drake, or rather Wilcox v. Darker, the order was made, referriug it to the master, to approve of a proper person to have the custody of the ufant, with the express.consent of the father himself, who, probably, the more readily acquiesced in the arrangement, iu order to relieve bimself from the burden of supporting bis child; as the father was a person not only in a low situation of life, and in insolvent circumslances, but was judebted to the infapt in a sum which he could not pay, and the infant himself was of the age of 19 years. (Jacob, Rep. 250, n.)

With respect to the argument of the Solicitor-General in the Duke of Beaufort v. Bertie, he stated," that there was a diversity between a natural parent and guardian; for that if the latter was for marrying a ward under his quality, it was most usual for the Court to interpose, but not so in case of a father's endeavoring to marry his infant child to one beneath him.” Now, this is rather a remarkable concession; and it is a representation of the law not quite consistent with the doctrine of some of the more recent cases, which, assuming that the Court had extensive powers over a testamentary guardian, have, by the strangest piece of illogical reasoning ever made use of, from hence inferred, the existence of equally extensive powers over the father, as if the father were the substitute of the guardian, and had a power devolved on him, instead of being the individual who conferred it. (See Butler v. Freeman, Amb. 302.)

From 1732, when Exparte Hopkins was heard, until 1756, no case is, we believe, to be found on the subject of the power of the Court of Chancery to deprive a father of the custody of his children, the question not arising in Hill v. Turner, 1 Atk. 516, the father of the infant being in that instance dead; but in the year 1756, two cases occurred before Lord Hardwicke. We allude to Blake v. Leigh, and Butler v. Freeman, reported in Ambler S06, 301. In Blake v. Leigh, the father was a Roman Catholic. The Chancellor, however, did not decide the case on that ground; but, in appointing a guardian, be came to the conclusion, that the father had waived his parental right, and had virtually consented to relinquish his power, which was the ground of the decision in Potts v. Norton, in note 2, P. W. 109, and in Lyons v. Blenkin, Jacob 245.

We have no difficulty in assenting to the principle volenti non fit injuria ; but, it is obvious, that this mode of disposing of the matter virtually admits, and that in the strongest manner, the natural and common law right of the father to the custody of his children, which is, however, to say the least of it, if not quite inconsistent,

fficult to reconcile with the doctrine of the Court of Chancery. Nor is the difficulty obviated by the distinction often adverted to, that the existence of a conmon law right is consistent with the controlling power of a Court of Equity. The power here exercised is not that of controlling, but of destroying ; since the restraint of the right is, in this particular instance, of a nature totally inconsistent with its existence.

To return to the decision of Butler v. Freeman. The father in that case stood in no adverse position to the power of the Court, which was not asserting its authority to destroy his paternal rights; but the question was, whether it was a contempt to marry a ward

yet rather

of the Court, although the father of that ward were living. The very terms of the question strongly recognised the paternal power. Lord Hardwicke seems to be perplexed in selecting the grounds of the general jurisdiction of the Court in the case of infants, and he is, as we bave already remarked, rather at variance with himself in the years 1737 and 1756. In the year 1737 he observed, “ this Court has the care and ordering of infants; and though, by Act of Parliament, the Court of Wards had a particular power over them and lunatics, yet, in every other respect, the law as to infants continued as before, and as the Statute of 12 Car. 2. c. 24. has dissolved the Court of Wards and Liveries, the power of this Court over infants is resulted back to them again.” (Hill v. Turner, Atk. 516.) Let us see how this accords with Lord Hardwicke's doctrine in 1756. He states, that an objection had been made to the interference of the Court on the ground, that “the plaintiff's father is alive, and nobody can have the guardianship of him by reason of the patria potentia ; consequently this Court has not, and if so, the Court cannot interfere. But (he adds) this Court does not act on the foot of guardianship, or wardship: the latter is totally taken away by the Statute Car. 2; and without claiming the former, and disclaiming the latler, the Court has a general right delegated by the Crown, as pater patriæ, to interpose in particular cases for the benefit of such as are incapable to protect themselves: and, it is no objection, that the father of such persons be living, for infants in the life of their father sue by prochein amy, and defend by guardian.

This Court will protect the estate of the infant against the father, and prevent its coming into the father's hands. It is adınitted, the Court has interfered where there has been a testamentary guardian. I see vo difference between the cases. A testamentary guardian by the statute has all the remedies at law which a father has. But, I own, there must be a ground to bring the matter before the Court; and therefore, if the father be living and no suit instituted here, the Court cannot, in this summary way, inflict punishment." Though much of this reasoning be open to very considerable observation, we merely introduce it for the purpose, once for all, of making a remark which is quite as applicable to several of the subsequent cases, when they speak of the patria potestas, or pater patriæ power; namely, that there is an extraordiDary anxiety evinced by Lord Hardwicke, although he talk in large terms of that particular power, to find out some other foundation on which by possibility bis judgment could rest, independently of such dangerous and questionable ground. It assuredly is not too much to say, that this implies a very considerable distrust on the part of that great judge in the parens patria power, as a legitimaie ground of the jurisdiction : for, if he had felt that the power of the Crown, as parens patria, existing in the Court, was unquestionable, the very terms in which it is stated are quite extensive enough to supersede the necessity of recurring to any other ground on which to rest the jurisdiction. To proceed-whether in Butler v. Freeman there was, or not, a right application of the supposed power of the Court, we must observe, it was not an application of it adversely to the father, and for the purpose of depriving him of the custody of the child. It unfortunately happens that we are left wholly without the opinion of Lord Hurdwicke on the question, whether, assuming the doctrine with respect to the original existence of the power of the King as pater patriæ, and its being devolved on the Court of Chancery as indisputable, it could from thence be deduced, that the Court had the power of depriving a father of the custody of his child. Lord Hardwicke, in Butler v. Freeman, was not called on to consider this question, and he merely decided that it was a contempt to marry a ward of the Court, although the father of such ward were living; and as he was obliged to resort to the doctrine of the King's power as pater patria, and likewise to other reasoning, (the father being the natural guardian of the infant,) to support his jurisdiction, this affords a strong argument in favor of the paternal right. The abstract question, of the power of the Court of Chancery to deprive a father of the custody of his child, seems, in some measure, to have come before Lord Thurlow in Powell v. Cleaver, 2 Bro. C. C. 500, which was decided in the year 1789. The question, in that case, involved the right of a stranger to appoint a guardian to an infant, whilst the father was alive.

Lord Thurlow says, “ It is no where laid down, that the dianship of a child can be wantonly disposed of by a bird person. The wisdom would be, not to raise points on such a question, as the Court will take care that the child shall be educated properly for his expectations." The father, in that case, had received a benefit from the testator. Speaking of Powell v. Clearer, Lord Eldon, who was counsel in it, says, “ It was contended that the bounty given to the father had put him to bis election, and he could not, after receiving that legacy, withhold compliance with the condition for the education of his children. That argument could not sustain the jurisdiction. The father, not knowing that he was making that election, was at full liberty to pay back the money. But Lord Thurlow's opinion went on this, that the law imposed a duty on parents, and in general gives them credit for ability and inclination to execute it. But that presumption, like all others, would fail in particular instances; and if an instance occurred in which the father was unable or unwilling to execute that duty, and, farther, was actually proceeding against it, of necessity the State

guarmust place somewhere a superintending power over those who cannot take care of themselves, and have not the benefit of that care which is presumed to be generally effectual. In these cases (referring to Powell v. Cleaver, Cruse v. Hunter, and Exparte Warner,) there was a struggle between the feelings of the father, and a due attention to the interests of the child, on the condition that his education should be conducted in the manner prescribed, which was the course of maintenance and education the best calculated to promote his happiness in the state, in which that fortune would place him. But Lord Thurlow took on him the jurisdiction on ihis ground, that he would not suffer the feelings of the parents to have effect against that duty, which, on a tender, just, and legitimate deliberation, the parent owed to the true interests of the child, and his lordship separated the person of the child from the father." (10 Ves. 63.)

If the State must place somewhere a superintending power over those who cannot take care of themselves, which, by the by, is in some measure Mr. Fonblanque's argument, as already noticed, it is by no means an indisputable consequence that the State has placed that power in the hands of the Court of Chancery. But, if the foregoing explanation of the judgment in Powell v. Cleaver be correct, it is very important, because it serves to show that Powell v. Cleaver is the first case in print, lo which the doctrine had been applied, that the Court of Chancery, representing the King as pater patria, bad the right to deprive a father of the custody of his child, and in that case nothing morally wrong was imputed to the father. The expression that Lurd Thurlow" took on him the jurisdiction," is, we believe, perfectly correct in point of fact. He literally seems to be the author or founder of it; and the first judge who embodied, as it were, the shadowy lines of an obscure theory. If Powell v. Cleaver be the first case, the application of the doctrine to this specific object can only be carried back to the year 1789, a period of thirty-nine years from the present time. How it has happened that such a jurisdiction, if it ever did really exist, should have slept through ceoturies, and should, for the first time, have been called forth and armed with all its terrors to the destruction not only of the natural, but of the common law right of the parent, at a period no more remote than thirty-nine years from the present time, it is not easy to state consistently with all that is so confidently assumed respecting the antiquity and the extent of such jurisdiction. If Lord Hardwicke, when he decided Blake v. Leigh, had been aware of the existence of any such principle, as is represented to have prevailed in the determination of Powell v. Cleaver, or Lord Eldon had distinctly recollected that principle, when be disposed of Lyons v. Blenkin, it is not easy to discover why those

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