The weekly democratic statesman. [volume] (Austin, Tex.) 1871-1883, 1873-06-19

cnu1nsr,
The Question 4i1tl ftteu sNt
She 1rin elug ~ ai.i earcatle1 q rlii..'t.A
BON u nierIiage 1csNeen ilpnln ts1
ollie and Protctnt one of peculiar IN
tari and in this country, where csci ~
foion has such vast numbers 81 followers
and where intemnarFiage Is more frequent
with every successive year. = is question
Of The greatest Importance.
Entbinkiug girls aud ardent Young men
look upon this rs a conflict 81 authority
which can mover nriso sarc ia the event 81 d
legal separation or n divorce, and that TO
lovers Is an impossible contingency. But
when either the husband OF the wife dies
leaving Young children, and the last ex-
pressed wishes of the deceased parent are
contrary to those Of the survivor, whose
authority is TO prevail Or in the lifetime
of both parents when their views are at
variance as to the education' OF instruction
Of any particular child, whose wish is to
governl This is liable TO occur in the
most happily constituted marriage, when
there is not the slightest danger Of separ-
alton. For these reasons, the decisions of
courts Of law on this subject should be
made known in order that those about 90
enter into a mixed marriage may clearly
understand the powers given to them or
the duties incumbent upon them under GER
tain circumstances.
The Lords Justices of Appeal rendered a
decision in the Court of Chancery in Lon
don on the 9th of May, in the case of An
drews against Salt, case which has ex-
cited interest in England for some time past
because it involved many of the most diff
cult points with regard to the custody of
children of mixed marriages. This decision
is one of the most important on this subject
in the English reports.
Thomas Andrews, the father of the in
FAINT plaintiff, Mary Ellen Andrews, girl
now about eleven years old, was a chemist
in Liverpool, and was always a Roman
Catholic. In March, 1854, he married Miss
Ellen Fleetcroft, who was a Protestant, and
resided in Chester. On the day the par
ties became engaged, in a conversation in
the presence of the lady's mother respecting
the difference of religion between, them, it
was formally agreed that if there should be
any family the girls should be brought up
as Protestants and the boys as Catholics. A
boy, Francis Xavier, was .afterward born,
and was brought up as a Roman Catholic.
In May, 1862, the daughter, Mary Ellen,
was born, and in the following June she
was baptized by clergyman of the Church
of England. in Chester. AT this time Mr..
Andrews was very i'll of consumption, and
together with his boy was supported by his
relations in Manchester. His wife and the
little girl were supported by her relations In
Chester. The testimony varied as to the
fathers having approved the baptism of
Mary Ellen as a Protestant; but it appears
that he did not take any active steps to
prevent the baptism, whatever his secret
wishes may have been.
On the fourteenth of February, 1868, two
days before his death, Mr.. Andrews made
will in which he directed that his children
should be baptized and brought up as mem
bers of the Roman Catholic Church. He
also appointed Joseph Andrews, his brother,
as their guardian to carry out the provisions
of the will. Mrs. Andrews arrived at Man
chester the day after her husbands death,
but was not informed that her husband had
by his win directed that her daughter should
be brought up as a Catholic Her husband
left no assets, and after his death the entire
expense of the boys education and mainte-
nance was sustained by the paternal rela-
tions, and principally by the boys uncle and
guardian.
Three years after the death of Mr.. An
drews his.widow married Mr.. Kelsey, and
went to live in Liverpool. The little girl,
Mary Ellen, who since her birth had been in
their household, continued to live with her
grandfather and grandmother, Mr.. and Mrs.
FleetcrOft, and was educated as a Protest
ant The uncle saw her occasionally, but
took no step to assert his authority as tes-
tamentary guardian until the end of March,
1871, when he demanded of Mrs. Fleet
croft that the child should be given up to
him to be educated as Catholic. This was
refused positively in letter written by Mrs.
Kelsey in January, 1872. In the following
February Joseph Andrews applied to the
Court of Queens Bench for writ of habeas
corpus. The case was argued, and the
Court held ''that Notwithstanding the late
ness of the application and the apparent
harshness of such proceeding toward the
grandmother of the child, we have no dis
cretion to refuse the writ, and we shonld be
b0nnd to hand over the child to the custody
of the guardian as the only custody legally
free from restraint" An application was
then made to Vice-Chancellor Malins for
an Injunction to restrain Joseph Andrews,
the uncle, from interfering with the custody
of the child. The Injunction was granted.
The uncle appealed from it, and the appeal
was argued before the Lords Justices at Lin
cola's Inn. The Rev. George Salt, Rector
of st. Bridget's, in Chester, was appointed
the chancery guardian of the infant, whence
his appearance in the cause.
Lord Justice Mellish delivered the judg-
ment of the Court, which is very full, elabo-
rate, and able. The witnesses on both sides
and the child herself were examined on the
appeal. Three questions were decided in
the judgment:
l. That an agreement made before mar
riage between a husband and wife of differ
ent religious persuasions that boys should
be educated in the religion of the father
and girls in the religion of the mother is not
binding as legal contract; that damages
cannot be recovered for its breach in a eourt
of law nor can specific performance be en-
forced in equity.
The father has the right to determine in
what religion the child shall be educated,
and that right cannot be surrendered by any
agreement which he may enter into. In this
case the ante nuptial agreement was of no
weight; it had no binding effect.
r. But the father may wave or abandon
bis right to have his child educated in his
own religion by acts which amount to a
waiver or an abandonment. Thomas An
drews, the husband, lost the right belong
ing to him as the girls father by his own
conduct; by not telling his wife when the
girl was born that he wished her to be bap-
,tised as a Catholic; by his not having
evinced displeasure when Mary Ellen was
baptised Protestant; by his not having
shown any intention that he desired her to
be educated in the Catholic faith; and by
having concealed from his wife the making
of his will.
Joseph Andrews, the guardian and un-
Gle, lost his right under the will by not as
sorting his authority for years, snd by his
not having objected to or opposed the Prot
estant trimming Of the infant until 1871
III. When the father has so waived or
abandoned his right the interests Of the
child are to be considered and to be fol-
lowed.
The learned Judges were Of opinion, from
their interview with Mary Ellen, that she
had not acquired the distinctive principles
Of the church Of England to such an extent
as to make It wrong or cruel that she should