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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
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
upon me to look on some religious opinions as dangerous to socicty.'
Do we find, then, in these cases, or in the decisions of Lord Thurlow and Lord Erskine, any attempt, any disposition, to stretch the principle, vague as it may be deemed, one iota beyond its wise and essential aim and object--that of shielding from ruin children in the hands of parents so grossly vicious, or irreligious, as necessarily to render the parental influence contaminating and perilous? It is manifest that it is a jurisdiction only meant for extreme cases, and that to extreme cases alone has it been applied. If the integrity of the judge, if the public vigilance, affords no security against abuse, surely some may be found in the absence of all sinister interest. Can any rational motive be pointed out which should induce the keeper of the great seal to add to the overwhelming amount of his duties, to accumulate fresh causes of anxiety, and labour, and embarrassment, upon himself, by unjustly drawing upon himself the personal superintendence of the education of infant suitors ? His interest,-if anything resembling interest can be said to exist we are satistied, is all the other way. All ordinary personal motives—if a judge could admit any such - would prompt him to leave the duty in the father's hands. Nothing but a deep and conscientious sense of duty, a courageous determination to ascertain the right line, and unshrinkingly to act up to it, can bear up a judge under the harassing investigation of such a case as that of Mr. Long Wellesley, or can inspire him with fortitude to brave obloquy, and to draw upon himself the load of responsibility which such a decision entails upon him. An unprincipled judge would, we suspect, be sorely tempted at once to truckle to popular clamour, and consult his own ease by consigning the infants to that care which, however pernicious, however ruinous, has still some popular prejudice on its side. In this, as in so many other instances, Lord Eldon exhibited a model of that lofty independence of mind the first of judicial qualities—which acts solely from internal motives ; regardless of popular clamour, and indifferent to vulgar eulogy.
• Intaminatis fulget honoribus,
Arbitrio popularis aure.' To desire to give up the present good to the infant, effected by such a decision, from a vague fear of a possible abuse of the jurisdiction, appears to us nothing less than to rank contingencies higher than realities--to be nervously sensitive to shadows, and splendidly unmindful of substances—to be willing to sacrifice a hundred infants to flagitious fathers, in order to avoid a bare possibility of one ever being the victim of a corrupt Chancellor. P 2
But the jurisdiction, it is alleged, may be made the instrument of private revenge and malicious annoyance; the enemy of a father may, forsooth, bestow on his child a fortune; may then make him a ward of the Court, by instituting a suit; and may apply to the Chancellor to appoint a guardian ; and may gratify his malice against the father by objecting, on the score of his character or conduct, to his filling that office—and, it is said, if he does not succeed in his object of excluding the father, he will, at least, suhject him to a scrutiny of all the acts of his private life before a public Court. When a jurisdiction is thus assailed by a statement of a possibility of abuse, founded on the assumption of a complication of contingencies just within possibility, it is at least obvious that rational objections are not abundant against it. Admitting that a good father may have a bitter enemy—that his malice may urge him, contrary to all common motives, to settle a fortune of some hundreds per annum on his foe's son --that out of mere malice he may incur the additional expense and trouble of procuring a chancery suit to be instituted to make the child a ward of court-granting all these highly probable contingencies to happen, still how is the enemy's malice to induce the Lord Chancellor and the House of Lords to deprive the father of the guardianship, unless he be indeed a person unfitted, in point of morals or religion, to fill that office? If he be such a person, it is desirable and proper that the jurisdiction should control his parental authority, even although (as occasionally happens with very salutary proceedings of justice) it may have been put in motion by unprincipled malignity. If the father be not such a person, the malicious plot proves abortive, and the defeated enemy has conferred a fortune on the child, without being able to wound or annoy the parent—a result admirably calculated, it must be admitted, to encourage the frequency of such attempts ! But at least, it is said, the malicious foe is enabled to harass the parent by the assault on his private character which the proceeding involves. But why should he incur the difficulty and heavy pecuniary sacrifice of attacking the father through the medium of the Chancery jurisdiction, when numberless modes, at once cheaper and easier, are open to malignity and falsehood ? Without perjury and suborned testimony, malice would find no means of annoyance in an attempt to deprive the father of his children. But with the aid of false testimony, and audacious conspiracy, there is no judicial proceeding which may not be wrested to the purpose of gratifying revenge, and overpowering innocence—and this without the pleasing preliminary of bestowing some thousands on a child. Proceedings on penal statutes are every day put in force from motives of malignity or lucre-indictments for perjury are common instruments for the oppression of individuals obnoxious
to the individual prosecuting. But are we to abolish at once such proceedings, because malice is occasionally their mover? It by no means follows, that because the motive of a legal proceeding is improper or even wicked, its result is unjust-far from it. Justice is, in many cases, necessarily attained through wicked instruments. But certainly, if any one proceeding is less likely than another to be abused to improper and malignant ends, we conceive it to be a proceeding, like the jurisdiction in question, fraught with difficulties, applying only to extreme cases, and not to be put in motion by a stranger, without first endowing the child with a considerable property. An objection more far-fetched, we conceive, could hardly be devised.
But it is argued that the jurisdiction is, as it were, felo-de-sethat it is wrong on its own principles, since it only extends to infants possessed of some property which may be the subject of a suit to ground the court's jurisdiction; and it is contended that, if it be really wise, there can be no reason for restricting it to such a limited range of cases. That this might be a plausible argument for extending the jurisdiction (if possible) to every vicious parent, whether the child has property or not, we agree ; and we are sure that this ought to be the object of those putting forth an argument which in itself admits the utility of the authority; but that it affords any argument against the existing jurisdiction to show that it does
far enough—that, though it does good, it does not do all the good that is desirable~we confess ourselves at a loss to understand. The jurisdiction is limited as it is, not only because it has grown out of the duties and functions of the court respecting an infant's property, but also from the physical impossibility of any court exercising such a jurisdiction, without funds in its power to be applied for the support of the infant. To any legislative attempt to extend a principle in itself excellent, and to throw the chancellor's protection over the children of the poor as well as of the rich, in cases where their parents grossly violate their parental duties, we should have no other objection, than that we believe it would be found wholly impracticable. It is, however, to be observed, that the same degree of strong necessity does not exist in the two
The circumstances and situation of the parties are wholly different; and, though we are by no means disposed to draw distinctions, as to the obvious necessity for virtuous education, between the higher and the lower classes, we think there are many difficulties and some correctives to be found in the very poverty and narrow circumstances of the latter; and, at least, that the mischief of their immoral habits is confined to a less sphere than that influenced by the qualities and conduct of higher individuals. It cannot be denied that it is in the kind of cases in which the jurisdiction is commonly exercised, viz., in cases of infants of
some consideration and station in society, that the evil is the most crying and manifold, and that the judicial remedy is most peculiarly important. When we consider the multitude of individuals whose happiness and comfort are of necessity dependent on the disposition, and character, and habits of one individual of exalted station and large possessions ; how extensive both in public and in private life are his means of effecting widely-felt good or evil, it is impossible to provide too effectual means of securing to him an early education and example conducive to his virtue, benevolence, and utility. The interest of the public in the principles and character of such a youth are scarcely less considerable than that of himself and his family. And yet what virtues or good qualities of any kind are to be expected from any man, of which the seeds are not sown and the growth nourished in his tender years ? Independently, therefore, of the strong private claim, which every helpless subject may make for protection at the hands of the law against every species of wrong, moral or physical, practised upon him in his defenceless youth by any other, be he whom he may-independently of these considerations, we conceive that, on public grounds, a jurisdiction is expedient and indispensable, which, in cases of extreme necessity, interposes to prevent youths of family and high expectations from being mis-educated by parents in a manner calculated to render them disgraceful to their order, disqualified for their public functions, and mischievous to society in proportion to the means at their command. Is it desirable to perpetuate in an aristocracy an entail of indecorum and depravity, and carefully to abstain from preventing a father from transmitting by education all his vices to his sons? If an individual of one generation becomes a blot on his family, and on society, is the virus to be preserved for the deliberate inoculation of his successors ? Are peers of the realm to be educated in the morals of the brothel, and in the society of the gallies, because the being who begot them is, unhappily, lost to all virtue, and because the laws can acknowledge no control over the powers of a fagitious parent? In vain would the government—in vain would individuals labour to ameliorate cociety, by improving the education of all ranks—in vain would the ministers of religion inculcate the virtues and duties necessary for individual and social happiness if the head of an important family, invested with a power beyond all control, could place himself between his infants and their country, and their God, and claim, on the plea of paternal right and parental authority, to corrupt and debase the beings who must ultimately exercise an influence over their families, and over society at large.