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

LAW INTELLIGENCE.—Jan. 21.

TICE-CHANCELLOR'S COURTS.
(Before Sir Richard Kindersley.)
RACE V. RACE.

This was a motion for the appointment of a fit and
proper person, other than the defendant Race, as a
guardian of the plaintiff, an infant, and for an injunction
restraining the defendant from interfering with the infant
plaintiff's education, or for from further proceeding ,
under the writ of habeas corpus which had been granted
by the Court of Queen's Bench, or from acting upon
any order which had been or might be made in the mat-
ter by that Court. The motion was now made by
special leave, which bad been obtained. The facts were
these :—The plaintiff's father was a serjeant. and was
killed, in September, 1854, in a skirmish at Petropan-
lovski. His two children, the female plaintiff and her
brother,. survived him. It appeared that the father,
Serrant Race, of the Marines, was a Protestant, in
which faith the plaintiff was baptised and brought up.
She attended a Protestant school. The defendant, Mrs.
Race, his widow, continued this education agreeably to
her husband's wishes. The commissioners of the
.Pa-
triotic Fund approved of the other child, the boy, being
placed at a Protestant school in Hants. The plaintiff,
his sister, was sent to the Sailors' Orphans' School in
July last year. The son was subsequently taken away
from the Hants school, he being willing. to be removed.
The defendant applied to remove the girl last October,
wishing to educate her as a Roman Catholic.
Mr. Ellis was for the present motion, which was
opposed by Mr. Fleming ; Mr. Haddon appeared for
some of the parties.
The defendant's counsel applied for time to answer the
affidavits, the defendant and her solicitor undertaking
that the infant should not be withdrawn from the jutii-
diction, but should be forthcoming whenever required,
and undertaking to abide by any order which the Court
might think proper to make.
His Honour granted the application for further time,
but reminded the parties that a violation of the under-
taking would be treated as strictly as a breach of an
injunction. The motion must stand over, but it seemed
to ask much more than was likely to be granted.

COURT OF QUEEN'S BENCH.

(Sittings in Banco, before Lord Campbell and other
Judges.)
TELE QUEEN V. MARIA CLARKE IN RE ALICIA RACE.
In this case a habeas corpus had issued to Maria Clarke,
the matron of the Sailors' Orphan Girls' School at Hatnp
stead, to bring up the body of Alicia Race with a -view
to her being delivered up to her mother, a Roman Catho-
lic, in order that she might be placed in a Roman Catholic
school. The motion was resisted on the ground that the
wishes of the child, who was unwilling to be removed,
ought to be consulted ; and, secondly, because, under the
circumstances, the mother's was not the proper custody,
inasmuch as the father of the child died a Protestant and
had always brought up his children as Protestants, and
when the mother placed the child at the school in ques-
tion she professed to be carrying out her decea,ed hus-
band's wishes in having the child educated in the Pro-
testant religion.
The case was argued at great length before Lord
Campbell, Mr. Justice Wightman, and Mr. Justice
Crompton on the 17th Inst., by Mr. Sergeant Shee and
Mr. Finlason on the part of the mother ; by Mr.
O'Malley, Q.C., and Mr. Lush, on the part of the
school ; and by Mr. Bovill, Q.C., on the part of the
Patriotic Fund Commissioners, at whose expense the
child was being educated.
The Court having taken time to consider,
Lard Campbell now delivered judgment as follows :
In this case we are to determine what direction ought
to be given by the Court respecting Alicia Race, an in-
fant of the age of 10 years and a few months, brought
up under a writ of habeas corpus granted at the instance
of her mother. On the one side it is contended that we
ought at once to order the child to be delivered to the
mother, and on the other that we should ask the child
to make her election whether to go home with her
mother, or to return to the school from which her
mother wishes to remove her. It is not disputed that,
the father having died without appointing a guardian,
the mother is now guardian for nurture, and it is laid
down (3 C. Rep., 38 b.) that the guardianship for nur-
ture continues till the child attains the age of 14. An
observation was made that the commissioners of the
school are in loco parentis ; but this was littie relied
upon, and it is wholly untenable. As a general rule, it
is admitted that if a child under seven years is so
brought up the Court ought at ogee to order the child
to be delivered to the guardian. But the contention is
that between the ages of 7 and 14 the Court ought to
examine the child and ascertain whether it has mental
capacity to be competent to make a choice, and, accord-
ing to the degree of mental capacity which it is found
to possess, to hand it over to the guardian or to liberate
it, and to desire it to go where it pleases. With re-
gard to the maintenance of the poor, a rule has been in-
troduced that while a child is under seven it shall not be
separated from the mother for the purpose of being
maintained by the parish in which it is settled. Again,
by Sergeant Talfourd's Act, 2d and 3d of Vict., c. 54,
P. 1, it is enacted that when infants under the age of
seven are in the sole custody or control of the father,
the Lord Chancellor or the Master of the Rolls
may make an order that such infants shall be
delivered to and remain in the custody of the
mother until they attain the age of seven years. Under
seven is sometimes called " the age of nurture," but
this is the peculiar nurture required by a child from its
mother, and is entirely different from guardianship for
nurture, which belongs to the father in hie lifetime, even
from the birth of the child. We can find no distinction
in the books as to the rights and incidents of this species
of guardianship from the time when it commences till the
time when it expires. One of these incidents is, that the
guardian should be entitled to the custody of the person
of the child ; without such right he could not possibly
perform the duties cast upon him as guardian. He is to
" nurture" the child ; the legal sense of this word is its
natural and common sense in the English language,
which Dr. Johnson says is "to educate, to train, to bring
up ;" accordingly, from the case to be found in the Year
Books (8 Ed. IV., 7 b) to the present time it has ever
been considered that the father, or whoever else on his
death may be the guardian for nurture, bas by law a
right to the custody of the child, and shall maintain an
action for trespass against a stranger who takes the
child. (See authorities Core. Dig., " Guardian D,) The
queteion then arises, whether a habeas corpus be the
proper remedy for the guardian to recover the custody of
the child of which he has been improperly deprived. Cer.
tainly, the great use of this writ, the boast of English
jurisprudence, is to set at liberty any of the Queen's
subjects unlawfully imprisoned ; and when an adult is
brought up under a habeas corpus and found to be unlaw-
fully imprisoned, he is to have his unfettered choice to
go where he pleases. But, with respect to the child
under guardianship for nurture, the child is supposed to
be unlawfully imprisoned when unlawfully detained from
the custody of the guardian, and when delivered to him
the child is supposed to be at liberty. " Rex v. Mande-
ville" (5 East., 220) clearly proves that such is the fit
mode of proceeding, if the child is under seven. Is
there any reason for following a different course be-
tween seven and 14 ? The intellectual faculties of tl e
child may be considerably developed in this interval,
and the child may now have a very strong inclination
to leave the home of the guardian, and, from religious
as well as frivolous motives, to be educated at a different
school from that which the guardian has selected. But
the consequences which would follow from allowing
such a choice are most alarming. We must lay down
a rule which will be generally beneficial, although it
may operate harshly in particular instances. If the
proposed choice were given to the child the relation of
guardian and ward would still subsist ; the guardian
might retake the child wherever he found it ; and he
might maintain an action against the person who, con-
trary to his wishes, takes or detains the child. Then,
how could " nurture" be carried on with such a d,c rine,
which, if eetabliehed, would apply to every father of a
family in the kingdom in respect of all his children,
male and female, above the age of seven years ? If a
father wishes to take his son, when ten years old, from
a private school where flogging is not practised and
send him to Eton, and the boy refuses to come home
and is brought up by habeas corpus, is be to be permitted
to say that, on consideration, he is of opinion that the
private school is preferable to any public school where
flogging is permitted, and therefore makes his election
to return to the private school, the master being willing
to receive him ? Or, suppose that a Protestant mother,
guardian for nurture of a daughter seven years of age,
sends her to a boarding school professing to be a Pro-
testant seminary; in a abort time she finds that attempts
have been successfully made by teachers there to convert
the girl to the Roman Catholic faith ; the girl refuses to
come home, saying, in analogy to the language used by
Alicia Race, " I will not go home to my own mother ;
I will stay here where I may pray to the mother of God ;"
else is in consequence brought up by habeas corpus. Are
we to examine her, arid finding her of speck parts, and
professing to be a •
faith, to tell her th'ianicere convert to t
0 Roman Catholic
she is at liberty to t in spite of tho wishes of her mother
been converted 1 ,itt•iturit to the school where she has
eistent with parental
tautherity, which
' a doctrine seemee wholly incon•
Revelation teach both reason and
of the human raeeresplct as
essential for the wel-
fareng the nrgunieet at the h
Indeed allusions were mails
venient grace, and the wordsarr ft° the workings of pre-
children and forbid them not toour Lord, " Suffer little
such is the kingdom of Heaven ,'
come Onto me ; for of
I
merely to say that the parental authots'inuet be enough
weakened by such sacral doctrines or ity is in no degree
impossible without irreverence to shorwirecepts, for it
irrelevant they are. This suggests the mecxtrreefullY how
venienco which would arise from the propowedn'eainc"-
tion of the child. It there is to he an examine:tit: Ina
ought to be conducted before all the judges who art; to
take part in the adjudication ; and, after testing her
mental acumen, we ought to a-certain whether upon due
investigation that she lias imbibed a preference for Pro-
testantism, and such an aversion from the Roman Ca
tholic faith. When we look into our law hooks, althougl.
we do not find the exact age defined within which the
Court, on a habeas corpus, will order the child to be de-
livered up to the parent or gnerdian without examine,
tion, we do find cases where, this course has been adopt-
ed, the child being above seven years of age, and we find
nothing to indicate that the rights of the guardians for
nurture are in any respett impaired durirg the period of
the guardianship. In " Rex. v. Johnson" (Str. 579.
2 Lord Raym., 1,333) a female child, nine years old,
was brought up by habeas corpus in the custody of her
nurse, having a testamentary guardian appointed by the
father. The court at fist doubted whether they should 50
any further than to see that the child was not under any
illegal restraint, but afterwards declared that, this being
the case of a youLg child who had no judgment of her
own, they ought to deliver her to her guardian, although
she was very unwilling to be taken from Mrs. Johnson,
her nurse, who was her sitar relation, and had cared for