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great judges should have rested their judgments on the supposed acquiescence of the parents. A broader principle lay before them: the interest of the child was, consistently with what is stated to be the principle of Powell v. Cleaver, in each instance alone to be considered ; and the power of the Court might have been exerted to compel the parent to a submission. But there is, as we would again remark, one observation, which may be made on most, if not all the cases when they speak of the power devolved by the Crown, as parens patria, on the Court; namely, that though this power is virtually represented to be all in all sufficient to support each particular decision, yet there is a most singular, not to say inconsistent, inclination evinced, by recurring to other distinct grounds of jurisdiction, to establish the propriety of each particular decision, op reasoning, chiefly, if noi altogether, drawn from other sources. Supposing, however, Lord Thurlow to have arrived at the above conclusion in Powell v. Cleaver, it was not probable that he would feel much hesitation in disposing of the next case wbich came before him, we allude to Cruse v. Hunter, Mr. Belt's nole, 2 Bro. 499. 2 Cor, 242. 1 P. W.704. Jacob 250. In that case,
which was decided in the year 1790, a petition bad been presented to prevent the father who resided abroad, and was an outlaw aud insolvent, from taking his son away, or improperly interfering with his education. It seems that affidavits were filed on both sides, imputing gross charges to the father and to the mother, the latter of whom had the custody of the child. Lord Thurlow pronounced an order conformably with the prayer of the petition, saying, “ that he would not allow the color of parental authority to work the ruin of the child” (Mr. Belt's note); and, admitting that the jurisdiction was questioned (as, indeed, it well might be), he added," he was of opinion that this Court had arms long enough to reach such a case, and to prevent a parent from prejudicing the health or future prospects of his child, and that whenever a case was brought before him he would act on this opinion. If the House of Lords thought differently they might control his judgment; but be certainly would not allow the child to be sacrificed to the view of his father.” (Same nole.). There was a peculiarity in that case. We allude to the father being out of the jurisdiction, and which, according to a more recent decision, would, of itself, have been sufficient to have supported the judgment (Lyons v. Blenkin, Jac.); and it is unnecessary, therefore, to rest that case on the application of the power, as parens patria, said to be devolved on the Court, though ihat case is represented in De Manneville v. De Munneville to have been disposed of by an application of such power as we have already remarked. In a subsequent case (see Anon. Ca. Jacob 264.) the Court did not prevent the father from
taking his children abroad, although it imposed terms on him which implied its power to prevent biin.
We proceed to notice the case already mentioned, of Exparte Warner, or Skinner v. Warner, 4 Bro. C. C. 101.2 Dick, 779, which did not, as erroneously supposed, (10 Ves. 63.) come before Lord Thurlow, but was decided in 1792 by the Lords Commission
In that case the infants presented a petition for a guardian, and to restrain the father from removing them from school. The father had become a bankrupt; had treated the children's mother with cruelty, and had been arrested, and was in Newgate on articles to keep the peace exhibited by the mother. He had no domicile, and was wholly unable to provide for the infants, who were supported by their mother and relations. An order was pronounced conformably to the prayer of the petition; but there is nothing to show that the father opposed the petition, or even appeared on it; and it is, therefore, most probable that the matter passed without any notice on his part. We should also notice, that during the time Lord Erskine was Chancellor, he made an order, appointing a guardian to infants, on a case of gross ill-treatment, coupled with cruelty, on the part of the father, who had been prosecuted and imprisoned; but the order does not appear to have been opposed by the father. (Whitfield v. Hales, 12 Ves. 492.) As to the subsequent decisions, the anonymous case, 10 Ves. 61, proceeded arowedly on an application of the power of the King, as parens patria, to deprive a father, in constant habits of drunkenness and blasphemy, of the custody of bis child. De Manneville v. De Manneville, 10 Ves. 52, also proceeded on an application of the same power to prevent a father, an alien friend, from renova ing his child out of the jurisdiction. But Lyons v. Blenkin, Jacob 945, seems rather to have gone on the father's acquiescence in a fund being applied by another person to the maintenance and education of his children, and allowing them to be brought up with expectations founded on a species of support which he himself could not give, and being thereby precluded from depriving his children of the benefits they would obtain. But this evidently partakes much of a simple, equitable principle, rendering it unnecessary to call into its aid the power of the King as pater patriæ, and was considered by Lord Hardwicke as sufficient of itself in the case of Blake v. Leigh, where no mention is made of the power of the Crown. There is, indeed, a remarkable passage in the judgment of Lyons v. Blenkin, which seems, resembling in that respect the passage we have extracted from Exparte Hopkins, to be at variance with the absolute power exercised in the right of the King as parens patria. “ Nobody can doubt (says Lord Eldon) that if I give a provision to your child, it does not give me, or any
5001. a year.
one else, a right to control your care of her—not at all; but, on the other hand, if, when she is young, I was to give her a considerable maintenance during her infancy, which you could not have supplied, and a large fortune afterwards, and you, the father, permit her to take the advantage of that education, which could not have been afforded but through my gift, could you afterwards stop short, and say that she should no longer have that advantage? Under such circumstances, the Court would inquire what was most for her benefit.” What is the inference from these passages? Is it not, that if the father refused to allow the child to have the education so offered, the father has a right so to do, and retain the custody of his child?
But, then, how is this consistent with Powell v. Cleaver, as represented in De Manneville v. De Manneville? Would not the Court interpose its power, as representing the King, as parens patrie ? Let us suppose a case. A stranger gives an estate of 20,0001. a year to an infant, the eldest son of a inan, who has only
Would not the Court, acting on its power as parens patria, and despite of every resistance the father could make, take that child from him, and give such child an education consistently with his large expectations ? Suppose the father was an advocate for a domestic education, and averse from public schools and universities. Would the Court suffer him to keep the infant at home! Would it not take him from the father, and send bim first to one of the great public schools, and afterwards to Oxford or Cambridge? Could it, consistently with its own modern decisions, suffer the wishes of the father to have any influence whatever? Would it nol say to the father, You shall not capriciously and wantonly make use of your power, as a parent, to deprive your child of an education suitable to his expectations ? What then becomes of the father's refusal, or what is the value of a consent which he cannot withhold? If, on the other hand, he for a time tacitly assent, he is afterwards precluded from disturbing the arrangement; but, if he resist, he is compelled into submission. Are these, or noi, inconsistencies? And is it, or not, the fact, that the Court knows not on what basis to rest its rules in this particular case? And what is worse, is it, or not, true, that the public know not on what this terrific power is really founded ? Is it, or not, true, that there is infinite confusion, let the eye rest on what part it will of the doctrine, and the reasonings by which it is attempted to be supported that judges cannot be reconciled to each other, nor the same judge always made to accord with himself!--that the general power of the Court, with respect to appointing guardians, has been placed by different judges on very different grounds? --that many of those grounds are wholly ontenable, and none of them, perhaps, perfectly satisfactory ? - and lastly, that the particular power of the Court to deprive a father of the custody of his children, if it be not obscured by the antiquity of the doctrine, is involved in difficulty far beyond that of any other rule of equity, which has sprung up within the same very limited period ? Before we dismiss the case of Lyons v. Blenkin, we should also notice the passage of the judgment, in which the Court, speaking of the father, appears to glance at two distinct grounds, as if either in itself were sufficient, for applying the doctrine of the power derived from the King, as puter patriæ. “There must be some ground (says Lord Eldon) of imputation on him, or of interest in them, to warrant the Court in interfering.” The case of Creuse v. Hunter would, we presume, be adduced as an instance of the former, and Powell v. Clearer, of the latter kind. The concluding passages of the judgment are also too important to be passed over without notice. “I find (observed Lord Eldon) that the anthorities have gone further than I thought they had. I speak not of cases that bave been cited, but of others not usually mentioned. There were, I believe, some cases in Lord Northington's time, in which he considered that the Court would reserve power over a father, not only if be accepts a bounty given to himself, but if he avails himself of a bounty given for the maintenance of his children which he must otherwise have provided at his own expense." Now the cases of Creuse v. Hunter, Skinner v. Warner, and Wilcor v. Drake, had been cited, and Lord Eldon himself bad mentioned Powell v. Cleaver, and Fagniuni v. Selwyn. If any cases had gone beyond these, it was very desirable that they should have been mentioned, because the subject is of vital interest to every father in the kingdom. · As to the cases besore Lord Northinglon, they seem to have differed but little from Powell v. Cleaver, and Lyons v. Blenkin, in the particular circumstance alluded to. If they were decided on the ground, that the father, having, by being relieved from the burden of educating and supporting his children, received a benefit under the will, was therefore precluded from disputing that disposition of his children which virtually deprived him of their guardianship, and devolved it on another: this is a principle wholly independent of the power, as parens patria, and in fact is nothing but an application of the rule of equity, which will not suffer a person to dispute the propriety of that disposition, which a testator has made of that person's property, when he has taken from the testator an equivalent; a species of case quite familiar to those who practice in courts of equity, and in which they would say he had made his election. We proceed now to notice some of the cases not previously in print, which are subjoined to Lyons v. Blenkin. In Colston v. Morris (Jacob 257, note) a considerable legacy was given to the infant, with a direction that her education should be
committed to trustees; and a legacy was left to her father on condition of his not interfering in it. This condition was enforced by the present Master of the Rolls, who required the father's undertaking not to interfere in the education. No objection, it is obvious, arises to this proceeding, as the legacy was a purchase of the father's consent to part with his legal right, and the order of the Court tacitly admits it. This brings us to the case of Shelley v. Westbrooke, (Jacob 266.) which was heard by Lord Eldon in the year 1817. The petition of the infants themselves represented, that their father avowed himself an atheist; and bad published a work deriding the Christian religion, and denying the existence of a God, as a creator of the universe, and that he intended, if he could get the children, to educate them as he thought proper. Lord Eldon, in his written judgment, speaking of the jurisdiction, and alluding evidently to something he had previously said, but which unfortunately is not preserved, observes: "after the example of Lord Thurlow in Orby Hunter's Case (Creuse v. Hunter), I shall act on the notion that this Court has such jurisdiction, until the House of Lords shall decide that my predecessors bave been unwarranted in the exercise of it.” The order restrained the father and his agents from taking possession of the infants, or intermeddling with them. In Courtois v. Vincent, (Jacob 266.) the infants were natural daughters of the testator, who had bequeathed tbem considerable fortunes. Notwithstanding the mother insisted that they should reside with her, the Chancellor appointed another person guardian, but directed the Master to consider what intercourse could be reasonably allowed, consistently with the plan of their education, under their guardian. We presume this case was decided by reference to the principle, in some measure extended, of Powell v. Cleaver, it being considered by the Court, that the gift of a considerable fortune necessarily implied that the individual to whom that fortune was given should be suitably educated. This we collect from the following passages in the judgment: “ The Court had there said, that it would not permit the father, wantonly and capriciously, to deprise the child of that benefit. As in Powell v. Cleaver, , where benefits were given to a child, on condition that he should be educated in a particular manner; the father was not allowed to defeat the gift." (Jacob 265.) This brings us to Fagnani v. Selwyn, (Jacob 268.) the case of a settlement on a female infant, whose father was dead and her mother abroad, on condition of such infant being under the care of the person making the settlement. It was referred to the Master to consider, whether that person should be appointed guardian, taking the settlement into consideration ? The mother was not, as far as we can collect, a party in the cause; the infant alone seenis to have been the plaintiff, and the person making the settlement and the trustees were the defendants; and,