The Rules of the Court of

Chancery are applicable indifferently in favour of all denominations.

Practical remarks as to

the Court of Chancery.

12. The rules of the Court of Chancery as to the religious education of children are applicable indifferently without preference of one religion to another; and there have been instances in which the Court has directed the continuance of a Catholic education which (according to its rules) had been improperly begun, as well as instances where children improperly impressed with Protestant notions, have in consequence been ordered to be educated as Protestants.

13. The Court of Chancery will interfere (according to its the action of rules as above stated) with regard to the religious education of children, as well as on all other points affecting their welfare, alike whether the application is made by or against the testamentary guardian, or the mother, or any other person, and even on the application of the Godfather, or Godmother, or of an entire stranger. It will order the expense of any application which it finds proper, or for the benefit of a child, to be paid out of the child's fortune, and in ordinary cases allows an application to be made to it summarily and at trifling expense. An application which led to a child being educated in the religion prescribed by the rules of the Court would be

appeal, the Lord Chancellor varied the order by inserting a declaration that, having regard to the facts that the father was a Catholic at his marriage and down to his death, and that the child was baptized into the Roman Catholic Church, the child ought to be brought up and educated, when capable of receiving religious education, as a member of that Church, but that having regard to its age and state of health, the Court deemed it requisite that it should continue under the care of the mother and of persons associated with her, and the Court therefore appointed the three persons already appointed to be guardians until the child attained, the age of seven years, but directed that when the child attained that age, application should be made to the Court respecting the guardianship and the religious education of the child, but with liberty to any party interested to apply in the meantime.

considered by the Court as having been for the benefit of the child.

Limits within which its

is exercised.

14. The powers of the Court of Chancery are directly exercisable only within its jurisdiction, which does not include jurisdiction Ireland or Scotland; and a case has recently (in January, 1862,) occurred where a Catholic father had by his Will appointed Catholic guardians, and directed a Catholic education, but his wishes, and an order of the Court to the same effect, were baffled by the mother, a Protestant, suddenly withdrawing with the children to Scotland and remaining there. This case suggests to Catholic guardians the duty of vigilance, and of the promptest interference when necessary; and they should bear in mind, first, that every child who is made a party to any suit or other proceeding before the Court becomes, from the instant of the proceeding being commenced, a ward of the Court; and, secondly, that any attempt, by any person, to withdraw a ward from the jurisdiction of the Court, or otherwise to interfere with the Court's control over, or orders with regard to a ward, is a criminal contempt of the Court, punishable by imprisonment and sequestration of property, on the application, at any moment, of even a stranger.

and God

15. Godfathers and Godmothers have thus far been scarcely Godfathers mentioned, and except in cases of children under the Poor mothers. Laws (as to which see S. 17) they have, it would seem, no legal power or position. The selection of a Catholic Godfather and Godmother for a child, would, however, be considered by the Court of Chancery, as a strong indication of the father's intention to have the child educated a Catholic, and the Court of Chancery would be inclined to judge more favourably of an application as to the religion of a child, if made by a Godfather or Godmother, than if made by an entire stranger; though even a stranger would not be disregarded.

Relations.

Children in
Workhouses.

16. The rights of relations in Courts of Common Law have not been ascertained with sufficient certainty to be here stated, but the Court of Chancery is in the habit of paying, according to circumstances, much attention to their representations, and regards interference by them more favourably than interference by an entire stranger.

17. The Poor Law (see 4 & 5 Wm. IV. c. 76) makes special provision for the religious education of children in Workhouses, giving a power of objecting to the education of such children in any particular religion to the parent or surviving parents, or if there be none, to the Godfather or Godmother; but all cases of children under the operation of the Poor Laws must be regarded as beyond the scope of these remarks.

Note to Section 1.

Practical directions and

No particular form of words is necessary for the appointsuggestions as ment of a testamentary guardian, nor is any legal assistance to appointing necessary. The following would be sufficient: "I, A. B., Testamentary

Guardians.

66

“ C. D., of

of , &c., by this my Will (or Codicil) appoint , &c., [and E. F., of

&c.,] to be the Guardian [or Guardians] of my children "after my decease, and I direct that my children shall be "brought up in the Roman Catholic Faith which I profess. "Dated, &c."

A Testamentary Guardian may be appointed by any Will or Codicil, whether containing any disposition of property or not, and whether the father has any property to leave or not. It must, like any other Will, be signed (or marked in lieu of a signature) and acknowledged as a Will (or Codicil) by the father in the presence of two witnesses, who must sign their

names as attesting witnesses* in the presence of the father and of each other. A Will or Codicil appointing guardians, can be revoked at any time by being destroyed by the father with that intent, or by his executing a subsequent Will or Codicil. It need not be proved after his decease, unless it also disposes of personal property, or appoints Executors; and even if it ought to be proved, it is effectual, and can be acted on, as regards the guardianship, although it has not been proved. The guardians may be of either sex, and one will be sufficient, though it will be better to name more, to provide against death or refusal to act. The Guardians need not be also appointed Executors or Trustees, and need not have any control over the infant's property given to them.† Persons residing, or who are likely to reside out of England and Wales, (or out of Ireland, if that is the residence of the children) should, if possible, not be appointed. Married women may be appointed guardians, but in considering of the propriety of appointing married women, or women likely to marry, it must be borne in mind that the powers of guardianship given to them will mainly be dependent on their husbands. The Court of Chancery (in cases where it interferes as above explained) will consider that on a female guardian marrying, her powers as a guardian come to an end, and it will consider whether,

* See the Form of attesting a Will, Signed, &c., p. 74.

† It would, however, to prevent risk of conflict, be well to give the guardians of the persons of children control over their income, or a sufficient part of it. If a conflict should arise, the only remedy would be a resort to the Court of Chancery, which would settle a scheme for the residence and education of the child, having regard to the age, fortune, and other circumstances of the child, to its own rules, and to the views of the guardian of the child's person; and having settled such scheme, would order the person having the control over the child's fortune to supply thereout the funds necessary to carry the scheme into effect.

taking into account the character and position of her husband, it will be beneficial for the children to reappoint her.

Note by Mr. Bagshawe.

I have considered the above suggestions, and, in my opinion, they are an accurate statement of the English Law on the subject to which they relate.

Short Form of Will for the use of the Clergy in bequeathing

their Property.

IN THE NAME OF GOD. AMEN. I, A. B., of Declare this to be my last Will, and I revoke all former Wills. I give and bequeath all my property whatsoever and wheresoever unto C. D., of

and free from any trust, and I appoint the said C. D. and E. F., Executors of this my Will. Witness my hand this

SIGNED by the Testator A. B., as and for his last Will and Testament, in the presence of us, present at the same time, who at his request, in his presence, and in the presence of each other, have subscribed our names as Witnesses.

G. H.*
J. K.

* Add the address and profession of the Witnesses.