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 infauts, "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: "Nun: 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, 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 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 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. 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 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 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.

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 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, 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 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 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. 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 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 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.

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 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.)