really previously possess, with respect to the guardianship of infants in general. The Court of Wards had delegated to it, at least to a certain extent, a newly created jurisdiction over persons standing in the relation of wards to the Crown. We say, the jurisdiction was newly created to a certain, but only to a certain extent.

As to that part of the jurisdiction which was not newly created, it appears to have been transferred to the Court of Wards, not from the Court of Chancery, but from the Court of Exchequer ; and this latter Court, as it would seem, possessed this jurisdiction, the wardships of the Crown being so many fruitful sources of revenue. (4 Inst. 108. 193, 194.) But, if the erection of the Court of Wards did not withdraw from the Court of Chancery any power which the latter Court previously possessed, with respect to the guardianship of infants, it follows, no power could have reverted to the Court of Chancery on the dissolution of the Court of Wards; and the argument in support of the general jurisdiction to appoint guardians, founded on this supposition, therefore totally fails; and if the Chancery possessed this general jurisdiction over infants, previously to the erection of the Court of Wards, as it is contended, it would follow that such jurisdiction remained with it, notwithstanding the creation of that Court; and, consequently, it is for those who contend that it possessed such general jurisdiction, previously to the Court of Wards, not only to prove that fact, and adduce instances in which it was exercised, but to show that the jurisdiction did not go into desuetude during the continuance of that Court, and that there are instances of its being exercised during such continuance. If the advocates for the existence of the power shrink from the attempt of adducing proof of the exercise of it by the Court of Chancery, during the time the Court of Wards subsisted, because such a proof would be inconsistent with their own hypothesis, let them bring forward proof consistently with such hypothesis, and show, that the Court of Wards itself ever exercised any such general power of guardianship, where the King himself had no beneficial interest. They must do this, unless they mean to admit that the power itself was, as it were, in abeyance during the existence of the Court of Wards.

These are difficulties connected with the theory, which will not easily be removed.

The next ground on which it is attempted to support the general jurisdiction of the Court of Chancery, with respect to guardians, is, that this Court has cognisance of trusts, and that guardianship is a trust (Eyre v. Shaftesbury, 2 P. W. 104. 1 P. W. 704.); but this argument is also replied to by the learned author to whom reference has already been made. "Nor will it (says, Mr. Hargrave) answer the purpose to attempt including guardianship in

the idea of trusts, which are the peculiar objects of equitable jurisdiction, as it must be seen that this is an overstrained refinement: for though guardianship, in the common acceptation of the word trust, may be properly so denominated, yet it surely is not so in the technical sense in which our lawyers use the word, and Chancery exercises a jurisdiction over trusts; for, in this latter, trusts are invariably applied to property, especially real estate, and not to the person." (Harg. Co. Litt. 89 a.) This conclusion is, indeed, coincided in by a text writer of considerable character, (Tr. Eq. by Fonbl. Book 2. p. 2. c. 2. s. 1.) although he is in some measure disposed to qualify, rather than oppose Mr. Hargrave's general reasoning, who, in the result, when speaking of the legality of the jurisdiction exercised in Chancery over infants, states, that such jurisdiction is not, so far as yet appears, of ancient date; and that, at first, it seems to have been an usurpation.

Having referred to Mr. Fonblanque's work, we should not omit to notice the observations he makes, when speaking of the general superintendence of the Crown, as pater patriæ, over infants: “That in every civilised state, such a superintendence and protective power does somewhere exist, will scarcely be controverted; that, if not found to exist elsewhere, it may be presumed to rest in the Crown, will not, I think, be denied: assuming, therefore, that the general superintendence of infants did originally rest in the Crown, I shall conclude that, ea ratione, it is now exercised in the Court of Chancery as a branch of its general jurisdiction." (2 Fonbl. B. 2. c. 2. s. 1.) The reasoning of Mr. Fonblanque is always entitled to respect; although it had not received, as it has in this instance, the sanction of Lord Eldon (10 Ves. 63.); but we would observe, that to presume this power to have been vested originally in the Crown, is really to beg one of the questions; and that to assume that it must be in the Court of Chancery, because it was formerly in the Crown, would, it is feared, as reasoning, go to the destruction of the greater part of the jurisdiction of the superior courts of common law. The points to be proved by the advocates for the jurisdiction, rather than to be disproved by those who question it, are, 1st, that it was in the Crown; and, 2dly, that it was delegated to the Court of Chancery: for, if we once indulge ourselves in presuming this, and assuming that proposition, it may be difficult to say where we are to stop, and what we may not prove.

We have been hitherto speaking with respect to the general power of the Court of Chancery to appoint a guardian; a power, that, in ordinary cases, can only be resorted to when the father is no more. From what has been said, it must be evident, how difficult it is to account for the foundation of this general jurisdiction. We may, therefore, assent to the accuracy of Mr. Har

grave's conclusion, that the jurisdiction is comparatively of recent date, and, at the best, but a mere usurpation. The unsatisfactory grounds on which it is placed by different judges and different writers; the bold and unwarranted assumptions that have been made in support of it; the contradictions of the same judge, and that judge no less a man than Lord Hardwicke, when speaking on the subject, are so many unanswerable arguments, that no clear and satisfactory proof can be adduced of the origin of the jurisdiction, as it is exercised by the Court of Chancery. If, indeed, any further argument in support of this conclusion be required, it presents itself in the emphatic silence of Lord Coke, who, professing to enumerate the different kinds of guardians, makes no mention whatever of a guardian appointed by the Court of Chancery: from which it may be inferred, that no such species of guardian was known, at the period when the valuable Commentary on Littleton was written. Assuming, however, the general power of the Court of Chancery to interfere, in deciding between contending competitors for the right of guardianship, which, at first, could have been the whole jurisdiction exercised, we may ask, with Mr. Hargrave, "how does this prove a power of appointing a guardian, where it happens that one is wanting?" It may be asked further, how the general jurisdiction to decide on the right to guardianship, or the power to appoint a guardian, when a guardian is wanting, necessarily sanctions the extraordinary and fearful power of depriving a parent of the custody of his children? This power, as exercised, makes no distinction amongst the children, and it equally applies to the eldest son. But even the feudal system, in all the haughtiness of her despotism, laid aside the terrors of her power, when the custody of the eldest son was in question, and yielded to the more mild and just law of nature in favor of the father. We again ask, how does the general jurisdiction necessarily lead to establish the doctrine, that the Court has the power to deprive a father of the custody of his children? Yet the general jurisdiction is continually referred to, in order to adduce, as a corollary, that the Court has the power to deprive a father of the custody of his children. As if the power of deciding who was entitled to a living when vacant, necessarily led to a right to expel that incumbent, whom the law acknowleged to be legally possessed of the living! A power to supply that which is vacant, assuredly cannot be reasoned on, as giving a power to dispossess a person whose right the law acknowleges.

And yet this is one of the fallacies which runs through many of the cases; and this it is that has compelled us to travel at such length into the discussion of the question, as to the general jurisdiction. But, once for all, we protest against the soundness of

here a

that species of reasoning which, assuming the Co. of Chancery to possess the power of appointing a guardian, in a guardian is wanting, or to settle disputes between persons ens ending for a guardianship, would infer a right to deprive a father of the custody of his children. The feudal lord (we speak of a lord where the estate was held in capite), when estates became hereditary, had the guardianship of the land, and, if the father were dead, of the person of the heir. The lord had this right conferred on him, with the twofold object, after providing for the maintenance of his ward, of benefiting himself, and securing a proper tenant. (Sulv. Lect. 124. Litt. Sect. 114.) But, if the father were alive, and the infant were his heir-apparent, the lord's right to the custody of the person gave way to the paternal right. "None (says Lord Coke) shall be in ward of his body to any lord, living his father" (Co. Litt. 84 a. 88 b.); and the father was entitled to the custody of the person of the infant heir, even against the lord in chivalry. (Co. Litt. 88 b.) Nor were the rules of the common law less regardful of the father's paramount and exclusive right to the custody of the person of his infant. The father, as guardian by nature, had a title paramount to all others, and by virtue of it he retained the custody of the infant's person, even, as we have just remarked, against the lord in chivalry, when the infant was the eldest son. (Co. Litt. 88 b. Harg. n.) The father, likewise, was guardian in socage, and he was guardian by nurture. These were so many additional rights, if any additional were necessary, to the custody of the infant's person. Nor has the legislature hesitated to enlarge the father's powers.

We allude to the Statutes of 4 and 5 P. & M. c. 8. and 12 Car. 2. c. 24; and the latter of those acts authorises the father, though himself an infant (thereby getting rid of an almost universal legal incapacity to give effect to the paternal right), to appoint, by deed or will, the persons to be the guardians of his children after his decease, (see Harg. Co. Litt. n. 89 a. 2 Fonbl. Eq. p. 241. et seq. Ed. 3.) and thus to exercise a power over their persons, and virtually to extend his guardianship, after he had ceased to be personally able to do so. But, against these, which are so many solemn declarations of the feudal law, the common law, the law of nature, and the statute law, in favor of the right of the father to the custody of the person of his child, the Court of Chancery, it seems, has a rule which renders the law of nature, the common law, and the statute law, equally inoperative.

The father may be guardian by nature. He may likewise be guardian by socage, and, as such, entitled by the law of the land to the custody of the person of his son, and certainly by the law of the land he is so entitled, and would, if feudal tenures had not been abolished, as far as applies to the eldest son, have been so entitled,

even against the lord in chivalry. He may again have another claim, recognised by the law of the land, to the custody of his child, if under the age of fourteen, as guardian by nurture. (Harg. Co. Litt. 88 b.) These rights in themselves as sacred as any we possess, whether we refer to Magna Charta or the Bill of Rights, have been gradually lessened, if not undermined, by the rules of the Court of Chancery. At first, it may excite some surprise, that there should have been comparatively so slight a struggle against the assumption of such a power. But, it should be recollected, that in some of the few instances the father has been poor and needy, and he has neither had the means or the inclination to dispute the power of the Court. In some of the few other instances, he has shrunk from that trial of character which might almost frighten the most moral man, unless his nerves were strong; a trial which, sweeping in its compass over the greatest part of a man's life, might drag from the recesses where it had long very properly laid, every forgotten scandal which malice had ever imputed to him. Is it to be wondered at that men should shrink from such a contest, and men, too, speaking of some of them, on whom the character of father had hung but very loosely?

From these, or some such causes, it has happened, that some of the cases in the books have not been much discussed; that others have not been discussed at all; and that the question has never, by appeal, been carried to the House of Lords.

Let us now proceed to consider the cases connected with the subject of the particular jurisdiction, to deprive a father of the custody of his children. The earliest case in print, in which the direct question arose as to the power of the Court of Chancery over the persons of infants during the life of the father, seems to be that of Exparte Hopkins, 3 P. Wms. 152, decided in the year 1732. It appears that the testator, who was the uncle of the children, had been permitted by their father to have the custody of them, and the testator had been at the expense of bringing them up under his own roof, and of educating them, He left them considerable fortunes by his will. The father petitioned the Court to have the children delivered over to him by the executors; but the Court refused to determine the point on a petition, and without a bill, and the Chancellor said, "the father was entitled to the custody of the children during their infancy, not only as guardian by nurture, but by nature; and it cannot be conceived (he added) that because another thinks fit to give a legacy to my daughters (though ever so great a legacy), therefore, I am by that means deprived of a right which naturally belongs to me, that of being their guardian.' Here is an express recognition of the natural and common law right of the father, and the intimation of a strong opinion in favor of the father's privilege, but little in unison