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bonded wheat was freely withdrawn at nearly 5s. per quarter higher. It is likewise to be observed, that under this preparatory measure (as it may be termed) the average price of wheat has fallen more than 5s. below what we were informed by Mr. Canning would be the utmost depression of price which would ever take place under the operation of the corn bill; and one half more than the whole extent of oscillation, in which he conceived that prices would fluctuate. If such a depression of price has occurred under so cautious an admission of foreign corn, most serious disadvantages would, in all probability, have arisen with less attention to the formation of duties; and particularly if the ingenious and excellent plan had not been adopted, of making duties rise, when prices fall; and fall, when they rise. It is, however, fair to admit, that as much capital was long locked up by the quantity of corn remaining in bond, the want of money might induce the holders of such corn to part with it at a much higher duty, and therefore lower price, than could be afforded in order to make the foreign trade in corn worth carrying on. Hence it is only an actual experience of importation which can be the proper test of the lowest price at which corn can be grown abroad, so as to be imported into this country with profit. But then, on the other hand, the accumulation which exists to a certain extent in foreign ports will, in addition to the usual amount of disposable annual production, create in the possessor a disposition to part with corn at a lower than ordinary rate, for the first year or two after our ports may be open, and thus create a temporary glut, against the operation of which it is necessary to provide.—If an opinion may be formed of what may be ultimately determined relative to the corn laws, from the occurrences of the last session of parliament, as well as from the notifications alread given by ministers in the present, it is exceedingly probable that importation, with a protecting duty, will be the measure finally adopted; and it will be a fortunate result of such measure, if it remove, in a material degree, that irritation, now fortunately subsiding, which has so long existed between the advocates for the agricultural, and for the commercial view of the corn laws. With regard to the quantum of protection necessary, it would appear, from the experience obtained since the 1st of July, that there cannot be the smallest ground for having the protecting duties put on a lower scale than was contemplated by Mr. Canning's bill. The evidence, indeed, as far as it goes, is in favor of a higher. There is one circumstance connected with the late parliamentary discussions on the corn bill which demands a portion of attention. An idea was entertained by some noble lords, in the upper house, that the corn bill, as a money bill, must be returned to
the Commons, with a simple assent or dissent, and without any alteration or amendment being made in it. In cases where the House of Lords has made any alterations in money bills, to which the Commons could not, with a due regard to their privileges assent, it has, I believe, been usual for the amended bill to be rejected, and a new one brought in, with the amendments (if they were not considered as objectionable by the Commons) making a part of it. A similar plan might therefore, it may be imagined, have been adopted in the case of the corn bill; for it is difficult to conceive that the upper house, in considering a measure which concerns every individual member so seriously, could feel itself withheld from introducing such amendments into it as might be deemed necessary for its improvement. The privilege of the House of Commons is to furnish the national supplies; and it is upon this ground, it is presumed, that the jealousy of any interference with the details of a money bill has originated. But the corn bill was not, like an ordinary bill to raise money for the exigencies of the state, brought in as a measure of mere finance. Its object was to lay open the trade in corn, as far as might be compatible with the safety of the British agriculturist. This consideration of its nature and objects might, indeed, seem to afford a more appropriate title for the bill than that by which it was designated, “An act for granting duties of customs on corn;” for it granted duties in an accessary way, and merely because there was no other method of securely effecting the prime object which the legislature had in view in entertaining it. I would submit, therefore, that it can scarcely be regarded as an improper interference with the privileges of the lower house, for the lords to make any amendments which they may deem advisable in such a bill; but, on the other hand, should be inclined to think that there is no measure in which the concurrent wisdom of both houses of parliament is more necessary for its
efficient and satisfactory arrangement.
February 10, 1827.
THE COURT OF CHANCERY
OF DEPRIVING A FATHER OF THE CUSTODY OF
HIS CHILDREN. BY JOHN BEAMES, BARRISTER-AT-LAW, F.A.S.
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 childreu.” 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. “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 astatem, 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 qua, sunt de feodo eorum, et quidam sub custodia parentum et prorimorum 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.” Nowhow can the infants be protected by the crown but by assigning them proper guardians where it is disputable?” Lord Coke says, in Bevertey'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, asserted 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 patriae, 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 patriae, 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 patria, seems, and that most probably from the difficulty of establishing the general 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. 802. De Manneville v. De Manneville, 10 Wes. 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 p.ofessed 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 Wes. 63), 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.