« AnteriorContinuar »
as the answers admitted all the matters stated in the bill, we infer it was purely an amicable suit. Indeed, it could not be a suit decisive of any thing adverse to the right of the father to the personal custody of his child, because he had been dead some years. We cannot, therefore, understand the judgment in Lyons v. Blenkin, when it speaks of “what was already settled in the case, &c. of the young lady whom Mr. George Selwyn provided for.” (Jacob 258.) Besides, if the plaintiff was born in 1771, and the decree made in 1787, she was sixteen years of age; and as her father was dead, it is presumed that she might have chosen her own guardian. At all events, that case may be laid on one side, when we consider the abstract doctrine. We have not adverted to the Westmeath Case (Jacob 251, note), where, notwithstanding the wife had the custody of the children under a deed, and she supported them, they were delivered over to the father ; nor have we alluded to the case of Fenmham v. Lennard, 4 Bro. P. C. 302, in the House of Lords, mentioned in Mr. Hargrave's note, where a child was taken from his mother, who was a Roman Catholic; because we think we are justified, by what fell from the Chancellor in Lyons v. Blenkin, in concluding, that the Court would not pronounce a similar decision in the present day. (See Jacob 264, in not.) Having thus reviewed the decisions, let us briefly advert to the state of the doctrine. And, to begin with the question of the general jurisdiction of the Court of Chancery in the superintendence of infants, that jurisdiction has been by its advocates placed either, first, on the analogous power over lunatics and idiots, for which there is no pretence; or, secondly, on the assumed fact, that the Crown had power over infants, of which there is no proof, and the assertion itself, indeed, is drawn from a questionable source : or, thirdly, that such power was delegated by the Crown to the Court of Chancery, and of which, likewise, there is not any proof; but, on the contrary, it is more than probable that the power was acquired by usurpation; or, fourthly, that it reverted to the Chancery on the dissolution of the Court of Wards, which is wholly groundless; or, fifthly, that the jurisdiction belongs to the Court, because guardianship is a trust, which position is founded on a confusion of terms, and is wholly untenable. But, if the general jurisdiction were established on the most satisfactory foundation, it may be contended that it is not a corollary deducible from it, that the Court has the power of depriving a father of the custody of his children. It not only directly destroys a natural and common law right, but the cases relating to it are contradictory, and involved in great confusion. In some of those cases, it is virtually declared that a person cannot deprive a parent of the custody of his child, by giving to that WOL. XXIX. Pam. NO. LVII,
child a fortune (Erparte Hopkins; Lyons v. Blenkin); but in others, the gift of the fortune is made the ground of the reasoning, and the parent's opposition is treated as wanton and capricious ; and, assuming the interest of the child to be in opposition to the wishes of such parent, which, by the by, is rather begging the question, the child is separated from that person to whom he owed his being. (Powell v. Cleaver; Courtois v. Vincent.) Again, in one of the cases, the father has been held to have waived his right by accepting a certain pecuniary and direct benefit; whilst, in another, we are told, that he might, if he acted in ignorance, have counteracted this effect by repaying the amount. In other instances, the very relief from the expenses of supporting the child, indirect as it may be considered to be, has been of itself treated as sufficient; whilst, on other occasions, such relief has been passed over, as if of no importance. (Blake v. Leigh; Potts v. Norton; Powell v. Cleaver; Lyons v. Blenkin.) In some cases the power of the Crown, as parens patria, has been spoken of as all-sufficient: yet, in those very cases, much anxiety has been evinced to rest the decision on other grounds. In some instances, the father's assent to the Court's assuming the guardianship, is treated as all in all; whilst in others his most decided resistance is considered of no weight, if the Court can fancy a benefit to the child, which would be disappointed if the father prevailed in his opposition. These are not the incongruities of different judges merely, but it is evident some of them may justly be ascribed to the same judge. Nor should it be forgotten, that one of the most able and acute lawyers this country ever produced, has characterised the general jurisdiction assumed by the Court over infants as being “an usurpation:” but whether he was, or not, right in that opinion, the power to take a child from his parent seems to be of very questionable policy, and, at all events, is of very recent origin, if it be the fact that it cannot be carried farther back than the year 1789. We are told, that there are other cases, besides those in print, which tend to establish this very extraordinary and fearful jurisdiction. If those cases were relied on, they ought to have been stated. There should be nothing like mystery on a subject which comes home to the heart of every father attached to his children. The law of England, on a point of such vital importance, should be free from the slightest shadow of doubt. But, as we know nothing of any cases relative to this subject but those which are in print, we would, in conclusion, humbly express an opinion, that the authorities do not satisfactorily establish the power of the Court of Chancery to deprive a father of the custody of the persons of his children.
TO THE EDITOR OF
In No. 72 of that Review,
. ON PLANTING WASTE LANDS, &c.
VICAR OF WHITWICK, LEICESTERSHIRE.
quæque ipse miserrima vidi.
LONDON :- 1828.
articles in The lightene Number, en Biblioth matu first article in France, , both as
I have read with the utmost interest and satisfaction all the articles in your last No. (72) of a religious, statistical, and forensic nature. The lighter ones I have not touched. On the ability of the first article in the Number in particular respecting the modern republication in France of the Bibliotheque Chretienne, in one hundred volumes, I could, both as a Clergyman and a Protestant, enlarge with great sincerity and pleasure : but it would be foreign from my present purpose. The articles which have mainly engrossed my attention, so as to occasion the following remarks, are those on agriculture and rent, savings' banks, and planting wastę lands. These, but especially the two first, have so fastened on my reflection, and mingled themselves with impressions I have derived from local circumstances which remain to be stated, that I could hardly satisfy my own mind without at least recording my thoughts. As an author, I have already been taught, that profit is not to be expected ; and as a country clergyman, I have no right to expect that my reflections on such subjects as the present will be of much interest to the public. Still they are connected with such important topics, that I am willing to cast them on the arena of public opinion. If they are not found wanting, they may be useful. The bare possibility of their being so warrants to my ovn mind the experiment.
With respect to the article that stands first in your Number of the three I have named ; viz. that on agriculture and rent; I could
not help regretting the total omission in it of a subject so closely allied to the matter there treated; and that it had not been more or less touched on in this particular connexion: I mean, the state of the poor laws, and the poor system. I grant that in other places you have discussed this subject with as much fulness as ability and enlarged policy ; and I am fully aware that the article in question had objects in view distinct from this particular subject. But in a practical point of view, the compulsory maintenance of the poor has so vast, if I should not rather say so overwhelming an influence on the state of agriculture, especially in any question of relation between it and manufactures and commerce, that I scruple not to say, no practical truth can be elicited from any view of subjects of this kind that omits all consideration of the poor . in England. This appears to me to be a defect in your third article. The main benefit therefore, if any, that I propose to the public in this attempt, is that of founding on the admirable, and as far as I am capable of judging, indisputable positions you have laid down, an examination of the operations they should have on our poor and poor laws. You have proved, as I think to demonstration, that the agricultural interest, on every principle of necessity, justice, expediency, and policy, must be the first protected ; although, as you justly state, the manufacturing and commercial interests are only second to it. To be convinced of this, it is only necessary to go back to first principles. The soil unquestionably is that, which first created wealth for originating and stimulating manufacturing and commercial exertions. To failure in the soil also must failure in these two last sources of wealth be attributed. If the case can be for a moment supposed of the farmers being in a body obliged to throw up their farms; of the landlords, either from inexperience, disinclination, or other causes, being deterred from farming their lands themselves; and thus laborers thrown out of employ, and the land producing no fruit; it is obvious that all stimulus to manufacturing invention, all commercial enterprise, must at once be annihilated. It needs no great stretch of discernment to discover this. The only wonder is, that a principle so simple in itself should be actually almost crushed by the blindness of sup: posed (for after all it is but supposed) competition and rivalry of conflicting interest in its application. I do not feel at all equal to the nice points of prices of grain, privilege of importing corn, protecting duties, &c. My arguments will be simple, and those of common sense only. The community may, for aught I know, be properly j through its representatives, in taking care that the owners and tillers of the soil do not carry off too large a share of the nation's wealth. But whatever remedies of this kind may be needful, one thing must be clear The land, as the law indeed itself already says, ought not wholly or even mainly to maintain the poor. The land has not created the burden; the land ought not to be left alone, or all but alone, to sustain it. Look into the state of agricultural parishes. Is there any one who will say, that in any of these the soil is not ready to maintain all that till it The farmer does not ask any other class to maintain his laborers for him; or if he does, it is in a proportion not worth mentioning. Look again into the state of other large commercial towns, or manufacturing districts. In either or both these, who support the parochially relieved poor? Unquestionably, very many (and that to a burdensome amount), who receive no benefit whatever from their labor; excepting indirectly, as all the community at large do in their turns from ever thing; whether corn, manufactures, or commerce; that is, throug their being the instruments of obtaining certain articles, for which full price is paid, and a fair profit annexed. Now, is not this a flagrant inequality and injustice P. In parishes partly agricultural and partly commercial, the soil chiefly supports those in necessity who labor for the profit of others, not of them. In parishes partly agricultural and partly manufacturing, agriculture is taxed in a tenfold measure to supply the wants of needy artisans and handicraftsmen, both in agriculture and manufacture. Lastly, In agricultural parishes only, the shopkeeper's payment to the poor being as a drop in the ocean, the farmer and (because through him, therefore with him) the landlord' pay all. Is not this monstrous in a well-regulated country P Let any unequal and disproportionate profits either of the landlord or farmer, or both, if they can be shown to be such, be checked by becoming restrictions on these profits. But let not the burdens produced by others be laid on their shoulders. Let this unfairness at least be removed. Let not those who sit by to witness their neighbor's gain be compelled to have this very gain made an occasion of almost exclusive taxation and impost on themselves. The practical difficulty is, how can this be remedied ? I answer, I think it is possible, and that on fair and equal grounds. First, Let all manufacturing edifices and all commercial buildings,”
* When the landlord and farmer are mentioned together, though for the sake of brevity I omit the tithebolder, every argument I make use of appiles with precisely the same force to this third party as to the other two : the stake in the land being precisely of the same nature.
* I see no reason why funded property should be taxed for the relief of the poor. The national creditor's income is not so created, as to increase pauperism: neither do the learned professions, or the army and navy, swell the list of paupers, but the contrary.