The Sun.
London, England, 1857-01-22 00:00:00

her very tenderly and disinterestedly. It was afterwards
said in " Rex v, Smith " (Str. 982) that Lord Ray-
mond, who had been a party to this judgment, repented
of what he had done ; but in his own report of the case
he throws no discredit upon it, and Lerd Mansfield of er-
wards expressed strong approbation of the cue, and said
that it Lord Raymond had changed his mind his first
judgment was clearly the right one. (1 Sir W. 81. 413.)
It is unnecessary to travel through the cases seriatim, as
they are all reviewed in "Rex v. Greenhill" (4 Ad. and
Ell. 624), where the Court laid down the rule that where
a young person under 21 years of age is brought before
the Court by habeas corpus, if he be of an age to exer-
cise a choice, the Court leaves the infant to elect where
he will go ; but if he be not of that age, the Court must
make an order for his being placed in proper custody.
Lord Denman, Littledale, J„ Williams, J., and Cole-
ridge, J., all make age the criterion, and not mental ca-
pacity, to be a-certained by examination. They cer-
tainly do not expressly specify the age, but they cannot
refer to seven as the criterion, and theca is no interven-
ing age marking the rights or responsibility of an in-
fant till 14, when guardianship for nurture ceases, upon
the supposition that the infant has now reached the
years of discretion. When we attend to the authorities
cited by the counsel for the commissioners we find some
vague dicta, and even some decisions which at first eight
give a colour to the doctrine of examination and choice
under 14, but which admit of an explanation entirely
consistent with the claim of the guardian. In " Rex v.
Smith (Str. 982), " Rex v. Johnson" is said to have been
overruled because a boy who had not completed his 14th
year, being brought up by habeas corpus at the suit of
the father from the custody of an aunt, with whom he
wished to live, was set at liberty,instead of being delivered
up to his father, and was allowed to return to his aunt ;
but Lord Mareeld, in commenting upon this case, gives
the true ratio decidendi upon which, and upon which
alone, it can be supported—" That ease was determined
right ; for the Court was certainly right in refusing the
infant to the father, of whose design in applying for the
custody of his child they bad a bad opinion."—" Rex
v. Delaval" (3 Burr. 1,437). There ie an admitted qua-
lification of the right of the father or guardian—if he be
Ire ally immoral, or if he wishes to have the child for
any unlawful purpose. The counsel for the commis.
sionera relied much upon the case of " Ann Lloyd" (3
Manning and Grainger, 547), where the mother of an
illegitimate child, between 11 and 12 years of age,
having obtained a habeas corpus directed to the puta-
tive father to bring it up, the Court refused to order it
to be delivered to the mother, and declared that it
might use its own discretion ; and, the child baler; un-
willing to go with the mother, the Court would not allow
the mother to take it by force. But Maule, J., there
asked, " How does the mother of an illegitimate child
differ from a stranger !" And, although the relation of
the mother of an illegitimate child is recognised for
some purposes, it is clear that she has not over it all the
rights of guardian for nurture. From what was said by
Lord Ellenborough in " Rex v. Hopkins" (7 East, 573),
it would appear that it is only while an illegitimate
child is tinder seven (an age during which the law of
nature and the law of the land both say that the child,
whether legitimate or illegitimate, ought not to be sepa-
rated from the mother) that the Court will interfere to
protect the custody of the mother. In Ann Lloyd's
case the child was considerably above that age. The
only other decision much relied upon as to the right of
the parent or guardian, on a habeas corpus, was " Rex
v. Preston" (5 Dowling and .Lowedes), where a most
distinguished judge (Mr. Justice Patteson) refused to
grant a writ of habeas corpus to bring up a legitimate
child above the age of seven on the alleged application
of the mother, who had become guardian for nurture,
the father being dead. But the application was made
under a power of attorney, the mother remaining io
the East Indies —so that the child could not
have been delivered to her. The real opinion
of my brother Patteson upon this subject we have for-
tunately an opportunity of knowing from a note of Sir
E. Perry, late Chief Justice of Bombay, in a very in-
teresting collection of "Oriental Cases" decided and
published by him. A Parsee family having detained an
infant from its father, a Parsee, on the ground that the
father had embraced the Christian religion, on a habeas
corpus the Court had ordered the child to be given up to
the father. In another case, the Court, on habeas cor-
pus, had ordered a Hindoo boy of 12 years of age, who
professed to have embraced Christianity, to be delivered
up to his father, who adhered to the Hindoo religion,
and the judges refused to examine the boy as to his
capacity and knowledge of the Christian religion. In
similar cases, the Supreme Court at Calcutta has fol-
lowed a different course. There being no appeal in such
matters to a higher Court, Sir Erskine Perry, for his
subsequent guidance, very properly submitted the ques-
tion jto my brother Patteson, whose response was as
follows :—" I cannot doubt that you were quite right in
holding that the father was entitled to the custody of his
child, and enforcing it by writ of habeas corpus. The
general law is clearly so, and even after the age of 14,
whereas the boy was only 12. The right might, indeed,
be forfeited by misconduct of a very gross nature, but
nothing of that kind appears to have been brought for-
ward. It may have been an act of imprudence originally
in the father to place his boys with persons who were
likely to bring them up in religious opinions and faith
contrary to their father's. I suppose he made some
stipulations for avoiding this. But, whether he did or
not, I do not think that the law would be affected
thereby. Even if he had changed his mind on that
subject, as well as on the education of his boys in
other respects I know of no law which forbids him
to do so, or binds him to the arrangement which he
had at first made."—(" Oriental Cases, p. 109.")
For these reasons, and on these authorities, we are
of *pinion in the present case that prima facie the
mother is entitled as guardian for nurture to have her
child delivered over to her. Still, she may have forfeited
her right by prior immoral conduct ; or by proof that
she does not make the application bona fide ; or by har-
ing some illegal act in view when she has obtained pos-
session of the child According to "Rex v. Greenhill,"
the immorality to extinguish the right of the parent or
guardian to the custody of the child must be of a gross
nature, so that the child would be in serious danger of
eontamination by living with her, Bat here no immo-
rality is imputed to Mrs. Race, and she seems to have
been a virtuous woman, well deserving the ardent affec-
tion which her husband felt for her. An attempt is
made to show that in applying to this court she is a
mere tool in the hands of others. But, on carefully
looking through the affidavits, we do not see that this
charge is substantiated, and we think that we are bound
to give credit to what :she swears as to the purity and
sincerity of her motives. In wishing to take her two
children from these Protestant schools she may act con-
scientiously, although not prudently ; and when the boy
wag allowed to go, 'being above 14 (12), she might not
unnaturally desire to Lave the girl also, that they might
be educated together. The answer to this application (if
there be any) we think must rest upon the ground that
the mother was under a legal obligation to educate her
children in the Prot'estant faith, and that she now seeks
to get possession of the daughter with the intention of
following a course with her which the law forbids. Had
she been a testamentary guardian, and the will had
directed that the children should be educated Protes-
tants, we should not have ordered the girl to be de-
livered up to the guardian, she intending to send the
girl to a Roman Catholic seminary. But she is guar-
dian for nurture, with all the rights belonging to a
mother as surviving parent. The husband certainly
was a Protestant ; his children had been baptised in
the Anglican Church, and he probably expected that
they would be brought up as Protestants. But his will
is entirely silent upon this subject ; and in his most
beautiful and affecting letter of the 25th of August,
185.1 (showing him to have been a model of a Christian
soldier), he appears to have had unbounded confidence
in her, and to have left the education of the children
entirely in her discretion. Indeed, by marrying a Roman
Catholic, and by permitting the children in his lifetime to
join in Roman Catholic prayers, he does not seem to have
had the horror of Popery felt by many pious Protestants.
Still, if the proposition laid down can be supported, that
it was her duty as guardian for nurture, from the simple
fact of the father having been a Protestant, to educate the
children as Protestants, she would be contemplating what
the law forbids by wishing to remove the children from a
Protestant to a Roman Catholic school ; but no sufficient
auth,,rity has been cited in support of this proposition ;
and the mother becoming guardian by nature on the death
of the father, no provision to the contrary being made by
him, she appears to us to have in all respects the same pa-
rental authority which might have been exercised by the
father had he survived the mother. As the law stands,
since the repeal of the statute for prosecuting Papists,
the question must be the same under the actual circum-
stances of this case as if the father had died a Roman
Catholic and the mother surviving been a Protestant.
Would it in that case have been unlawful for the mother
to have bri,ught up the children as Protestants I The
cases of " Villareal v. Mellish" (2 Swanston, 536) and
" Talbot v. the Earl of Shrewsbury" (4 Mylne
and Craig,
672) show that in such matters the Courts know of no dis-
tinction between different religions, and will not interfere
with the discretion of guardians as to the faith in which
they educate their wards. The authority relied upon
to
show that the ward must invariably be educated in the re-
ligion of the father is "In re Arabella Francis North,"
before Vice-Chancellor Knight Bruce (11 Jurist, 7). That
case arising jointly on a return to a habeas corpus, and
on a petition for the appointment of a guardian to chil-
dren as wards of the Court of Chancery, it is difficult to
distinguish what was done or said by the Vice-Chancellor
as a common law and as an equity judge, He cannot be
alleged to have decided anything upon this point, and he
bad only to consider it with a view of determining
whether the children should for a few days, till a
guardian was appointed, be in the custody of a Roman
Catholic or a Paste-taut nurse, He certainly does draw
au inference of fact that the father died a Protestant, al-
though for some time before his death he had conformed
to the worship of the Roman Catholic Church, and when
dying would not permit the ministration of a Protestant
clsrgyman ; and his Honour does express an opinion that
although the wife bad been formally admitted into the
Roman Catholic Church, the children must be educated
founded, will old
ity, the Protestant faith, the father having given no direc-
tions upon the subject will. But this doctrine, if well
Court of Chancery, apply ' to the
large discretion, and as
representing Y education of wards of the
Queenthetespeeting whom an equity judge,
parens pat
scope of the duties of away patrece, has a very
give discretions beyond the
corneae/1 law. Therefore,
guardian for nurture under the
the dictum of so
eminenrtel withouti venturing to question
altogether to accord with judge (although it seems not
Chan-
cellor Cottenham in "Talbot vat thewas said by Lord ,
Earl of Shrewsbury),
we do not think it enough to she that the mother of
intendingt at she can be
the infant, as guardian for nurture,
educate the children as Pro',estanetsi,Weag legally bound to
issioners
charged with an illegal purpose when
to send
them to a Roman Catholic school. The commissioners
; buet ntnis doubt
in detaining the girl from her mother, Z.,
acted from the most laudable motives
wrong in point of law in supposing that the inoti‘leYr, areb
csmreitting the child to their care, has lost all right Oveyr