« PreviousContinue »
mitted, to what extent might it not be carried! If the fences of domestic life were to be closed at all points, lest the judge should take cognizance of private misdeeds, half of the wrongs which are redressed, and of the crimes that are punished, would escape the light under this false principle of sanctuary. The duties and obligations arising from domestic ties are precisely the most important which connect together members of society; but this surely forms no reason for excluding the controlling arm of justice, when the most cardinal of them all is outraged, and where the law has the means of mitigating the mischievous results. Does the law show its respect for the relation of husband and wife-at least as sacred and private as that between parent and child—by closing its ears against all grievances of which one party may complain against the other? Does it refuse to redress the husband for the wrong inflicted by the adulterer, for fear of intruding on the sanctuary of married life? Does it shrink from protecting a deserted wife, by enjoining the husband to fulfil his marital duties? -or decline to hear her demands for a severance of the matrimonial tie, lest the proceeding should violate the privacy of domestic life? If the relation of husband and wife, and the duties arising out of it, are brought under the control of the judge, why is the relation between parents and children to be held too sacred for his approach? If the law protect the interests and rights of a wife against her husband, why is it to refuse its protection to the rights of an infant, when grossly outraged by its father?
Are such rights to be disregarded as too immaterial and too metaphysical for the cognizance of the law? The same reason would exclude from the courts all jurisdiction as to the rights of married persons; all respect to private fame; all protection of female virtue; all endeavours to compensate the mental griefs of an injured husband-to protect the purity of female honour, or redress the injuries worked by calumny. To admit such a principle would be to debase the legal code, by excluding from its remedial operation every object not measurable by sordid pelf, not immediately conducive to sensual enjoyment, or physical advantage. No right that is positive and substantially valuable in its results can be regarded as too fine or subtle for the protection of law; no injury can be considered as too vague or too refined for legal cognizance, if its consequences are a palpable moral mischief to any member of society. As little regard are we disposed to pay to the topic of which so much was heard at the bar of the House of Lords, the inconvenience and danger of investigating a father's general character, his conduct towards his children, his moral habits and religious principles,-particulars to be often collected from menial servants and cast off dependants. If it is a fit thing that a man, by profligacy of
morals or irreligious principles, should forfeit the right to educate his children, it is indispensable that the necessary evidence shall be adduced to satisfy the court that the father's character affords just ground for its interposition. The legislator, in deciding whether any wrong is of that nature which ought to be made the subject of legal redress or prevention, is to regard the amount of the mischief and the capacity of the law to afford practical relief; but he is not to be withdrawn from the attention of these, which are the true topics for his consideration, by an exaggerated picture of difficulties in the proof of the wrong, and of possible embarrassments in the proceeding. That the proof may be difficult, and the means often only to be obtained from perfidious disclosures and a painful investigation into domestic details, is only the same inconvenience that belongs to many other judicial proceedings, and which (if the object be salutary) is well and necessarily put up with for its attainment.
But then it is urged, that the judge and officers of a court can not possibly be fit persons to superintend the education of a large number of infants, each to be educated according to their station, and fortune, and prospects in life. That the judge cannot be so fit a person for the purpose as a good father, may be readily admitted; but that he is a far fitter person than an abandoned parent we have no hesitation in thinking. The guardianship of the judge is, at least, much the less of two evils. Certain it is that the judge will not train the ward in the ways of infidelity; that he will not introduce a daughter into the society of a harlot,—that he will not poison the sons' minds by immoral precepts and example, or by selecting his companions from the lowest and most vicious classes. With respect to a prudent adaptation of his education to his fortune and prospects, he will set no example of prodigal extravagance, and be, at least, as likely as the parent to exercise a prudent judgment. If not influenced by a parent's affections, he will be, at least, free from a parent's partialities and illusions. At all events he will be unaffected by any selfish notions in his conduct. He must necessarily intrust the more immediate superintendence of the child to the nearest relations or friends fit for the office, and with their assistance he is enabled to determine judiciously on the course of education to be pursued. A fit guardian and instructor are provided by the court, and if they do not strictly perform their duty, others are substituted. That the judge cannot stand in loco parentis for all purposes,-that he cannot extend to the child the inestimable advantage of a moral domestic home,that he cannot offer him the admonitions of virtue, sweetened and enforced by affection,-nor set before him a virtuous example, rendered irresistible by parental influence and filial love, cannot be denied; but to whom is the child indebted for privations so cruel,
so absolutely irreplaceable ?-to the father, who has abdicated his duties by disqualifying himself for their performance,—who has rendered his child an orphan in his own life, and who ought to thank the laws, which neither suffer his son to be rendered bankrupt by his prodigality, nor to be contaminated by his intercourse and example.
But the jurisdiction is said to be necessarily indefinite, and, therefore, pregnant with danger and grounds of apprehension. That it is, and must remain, uncircumscribed by any precise definition of the cases to which it shall extend, we admit, and we believe it to be absolutely necessary that it should be so. If it is admitted, that immoral conduct pursued, or irreligious principles put forth by a parent to that extent which may be reasonably considered as dangerous to the virtue and religion of his child, are to furnish grounds for excluding the parent from the guardianship, it is obvious that the modes in which such conduct and principles may show themselves, may be as various and as indefinable as the species of vice and depravity which degrade the conduct of men. But the difficulty of strictly defining any jurisdiction affords no valid reason whatever against the upholding it, if its main object is wise and salutary or necessary. Though this rule may refuse definition in the abstract, or at least only admit one vague in its terms, there is little difficulty in applying it in the concrete, when the facts of particular cases come to be considered; and if the jurisdiction is invested in an incorrupt and spotless tribunal, where is the danger arising from this unavoidable vagueness? If the tribunal is of a different description, what strictness of definition would render its power safe? These are not the days in which we are called upon by want of integrity in our tribunals, to deny to them any useful jurisdiction, though not strictly defined in its nature. In this case, in cases of libel, and in many others, if no law were to be administered by the courts but what could be reduced to strict terms of definition, we must leave chasms in our codes for some of the most important branches of authority which the courts most usefully exercise. While the judicial seats are filled by men of principle and honour, of high station, and competent emolument; while they are surrounded with the safeguard of publicity and open to the censure of free opinion, we need not adopt that narrowest of policies which would deny them a necessary or expedient or politic authority from a vague dread of its possible abuse.
But, after all, there is abundance of exaggeration in the objections made to the indefinite nature of this jurisdiction. Its principle is well defined and settled-its objects are palpable and unambiguous. Any conduct of the parent which tends, according to Lord Thurlow's phrase, 'to work the ruin of the child' in his custody, is a ground for the Chancellor's protection. Does
this language, or do the instances brought under decision, point to any but extreme cases of extraordinary misconduct in the parent? To say that the vague nature of the jurisdiction affords legitimate ground for apprehension to parents of fair character and conduct, or even to those of considerable laxity of life and unsoundness of principle; that there is any one such man who can honestly assert that the decision in Mr. Wellesley's case gives him reason to fear for himself, is as groundless an exaggeration as was ever palmed upon the public by inconsiderate declaimers or half-informed reformers. It happens with this jurisdiction, as it necessarily does with others in these days of public scrutiny of judicial proceedings. The judge administering an undefined, and, to a certain degree, discretionary authority under the eye of the public, and under a sense of responsibility, at once satisfies his conscience and consults his security by never going to the extreme verge of his jurisdiction. Unless a case stands broadly and clearly within its limits, the judge naturally refuses to act. Feeling that his decision not only affects present interests, but is to stand as a landmark, and afford a rule to future judges, he demands a clear and palpable and specific ground on which to rest his authority, before he pronounces a judgment of such vital consequence. The character of the cases where the jurisdiction has been exercised clearly manifests the caution which has influenced the judges. A father outlawed in a foreign country, bankrupt in fortune, and vicious in character; another in Newgate for breach of the peace against his own wife; another an habitual drunkard and blasphemer; a fourth, an avowed atheist, having published a book denying a God, and decrying the institution of marriage, and acting up to his principles by deserting his wife and living in adultery; a fifth, ruined by a most incredible prodigality, bound hand and foot in an adulterous connexion with the wife of another, and perversely inculcating immoral lessons on his children-such are the slight, the shadowy, the dangerous, and doubtful cases to which the jurisdiction has hitherto been applied. Such are the instances which, we are told, are to throw respectable parents into agitation, lest, by reason of their authority and analogy, some lord chancellor should tear their children from their virtuous and affectionate control. Is it not absurd to sound an alarum on the impending dangers of a jurisdiction thus guardedly administered-thus applying in principle and practice only to cases marked by the broadest features of immorality and irreligion-administered in a public court, with full public discussion, and subject to the control of an appeal to the peers of the realm ?
To what but the conscientious caution, which naturally influences a judge to use more deliberation in proportion as his juris
diction is in any degree discretionary, can we ascribe Lord Eldon's protracted deliberation, his unwearied hearings, and assiduous ponderings on the overwhelming testimony in the Wellesley case? Could he, or could any man, after the first three days were at an end, entertain any moral doubt as to the character of the parent, or the perils of the children in that case? But Lord Eldon becomingly required the conduct of the father, his habits of life, and all the circumstances of his pernicious and perilous connexions to be established with legal certainty; and it was only when the measure of legal conviction was heaped to overflowing, that he pronounced his wise determination to save the infants from indisputable peril, by the protective authority of the Chancellor. Is there a father living who can say that this case fills him with apprehension, lest for some peccadillo in conduct, some doubtful expression of irreligious or immoral import, some casual irregularities of life, he should be pronounced by the Lord Chancellor unfit to educate his children? Is there any other than a profligate, confirmed in the habits of adultery, debauchery, and obscenity, that can fear the application of the precedent? The same observation applies to that judge's decision in the case of Mr. Bysshe Shelley. Was that a slight case, in which the facts proved left the mind in doubt as to the unfitness of the father? Were Mr. Shelley's opinions, as to religion and morals, ambiguous as to their tendency and extent, or resting on evidence of a doubtful character? Was the perniciousness of his principles mitigated by the correctness of his life? Far from it. It appeared, by sufficient legal testimony, that Mr. Bysshe Shelley had published a book denying the existence of a Creator, and vilifying the virtue of chastity and the institution of marriage-that he had deserted his wife, and was living in adultery with another woman, and that he designed to bring up his children in his own principles-these were the grounds on which Lord Eldon deprived him of the custody of his children. Is this a precedent to be regarded with apprehension by any except the professed atheist and the practical profligate united in the same parent? Neither the man of occasional laxity of conduct, nor the man of pure life, who holds or who publishes opinions of an irreligious nature, need entertain the slightest apprehension of the operation of a precedent, presenting a black combination of systematic infidelity, satanic wickedness of principle, and open profligacy of life. In Lyons v. Blenkin, where the child was a baptist and the father had turned unitarian, Lord Eldon rejected at once the idea of attaching any weight to any such difference of religious opinion. With the religious tenets of either party,' said his lordship, I have nothing to do, except so far as the law of the country calls