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350.: THE CASE OF THE NORTH FAMILY MORNING CHRONICLE, 29 DEC., 1846, P. 4 - John Stuart Mill, The Collected Works of John Stuart Mill, Volume XXIV - Newspaper Writings January 1835 - June 1847 Part III [1835]

Edition used:

The Collected Works of John Stuart Mill, Volume XXIV - Newspaper Writings January 1835 - June 1847 Part III, ed. Ann P. Robson and John M. Robson, Introduction by Ann P. Robson and John M. Robson (Toronto: University of Toronto Press, London: Routledge and Kegan Paul, 1986).

Part of: Collected Works of John Stuart Mill, in 33 vols.

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350.

THE CASE OF THE NORTH FAMILY

MORNING CHRONICLE, 29 DEC., 1846, P. 4

Dudley North, as the result of a coach accident, died on 25 Jan., 1845, leaving a wife, Sarah, and four children, Arabella, Sarah, Dudley, and Helen. A legal contest arose between Sarah North, the widow, on the one hand, and her mother-in-law, Mrs. Wilson, and her sister-in-law, Arabella North, on the other, over the guardianship of the children. The case, which attracted attention because of the anti-Catholic feeling at the time, was heard in the Court of Chancery before James Lewis Knight-Bruce (1791-1866), politician and judge, Vice-Chancellor in the Court since 1841. Counsel for Sarah North was Thomas Chisholm Anstey (1816-73). The case was reported in The Times on 21, 22, and 24 Dec., 1846, but most fully in “In the Matter of the Petition of Arabella Frances North and Others,” The Times, 23 Dec., 1846, pp. 7-8, from which the quotations are taken. This unheaded second leader, the sixth of those on injustice and cruelty jointly authored by Harriet Taylor and Mill (see No. 303), is described in his bibliography as “A leading article on the case of the North family in the Vice Chancellor’s Court, in the Morning Chronicle of 29th December 1846. Very little of this article was mine.”

(MacMinn, p. 66.)

the case of the north family, heard last week before Vice-Chancellor Knight Bruce, and on which that judge has pronounced at least a temporary decision, suggests some queries on the state of the law respecting maternal rights, to which this judgment, if it represents the law correctly, gives anything but a satisfactory answer.

The parties to the cause are the widow of Lieut. Dudley North on the one side, and his mother and sister on the other, and the contest is for the guardianship of the four children. The facts of the case are these:—The parents, originally members of the Church of England, had for some time before the father’s death been in the habit of attending, along with two of their children, a Roman Catholic chapel, but had not publicly professed the Catholic religion. The father died from the effects of a coach accident, and on his death-bed refused to receive the Protestant clergyman who had been brought to the house by one of his relations. The widow soon after became an avowed Roman Catholic, as she asserts on oath that, according to her belief, her husband, but for his untimely decease, would have done. The husband’s relations got possession of the children by a stratagem, and refused to restore them to their mother, placing them under the care of a maiden aunt.1 The mother sought legal redress; and the result is, that the Vice-Chancellor directs a reference to a Master, to appoint a guardian or guardians, and decides that in the meantime the children shall remain in the custody of their paternal relations, the mother “to have access to them for two hours daily,” but only in the presence of one or more of the said relations.

We have attempted to discover, from the reported judgment, on what distinct principle this startling decision is founded. Vice-Chancellor Knight Bruce does not positively affirm any principle, but makes indistinct reference to two. He is very positive on one thing—that it is the duty of the court to have the children brought up in the religion of the Church of England. Sometimes it seems as if his reason was, that the father must be presumed to have intended it. But there are other sayings on which it is difficult to put any interpretation but that, even if the father had intended otherwise, the court would not the less have thought it its duty to see the children brought up in the religious belief which this Vice-Chancellor sanctions by his approval.

It is a duty to society that a decision should be given by the highest authority on this question of law: Is, or is not, a widowed mother, in case of intestacy, the legal guardian of her children? The counsel for the widow asserts that she is. The judge, if we understand his meaning, decides that she is not; that there is no legal guardian; that it rests with the court to appoint one; that it is entirely at the court’s discretion to appoint anybody, the mother, or any one else. If this is correct; if the mother, even when she is the sole parent, is in the eye of the law a stranger to her own children; if even when the father is silent the mother has no rights over the children, more than anybody has who chooses to claim them, and can have no rights unless the court thinks fit to confer them on her, as it is equally at liberty to do on any one else—if this is the law, it ought to be made universally known, in order that the common sense and sense of justice of the community may speedily put an end to so iniquitous an outrage on the most universally recognised and strongest tie of nature. Society is rigid in enforcing this tie against the mother; there are no bounds to its aversion and contempt for a mother who deserts her offspring; is it then entitled to arrogate to itself the power to deprive her of them for no presumed or alleged fault—nay, while saying, as in this case, that the mother’s conduct is unimpeachable? The idea is monstrous, and repugnant to all feelings of justice. Again, if the widowed mother is not the legal guardian of the children, with what justice can she be bound to maintain them by her labour? In the case of mothers in the lower ranks, can the law, which acknowledges between them and their children no relationship, treat the mother as a parent for the sole purpose of forcing her to work for their maintenance?

But if the mother is the legal guardian of the children, unless the court for reasons assigned should appoint otherwise, what reasons appear in the Vice-Chancellor’s statement which justify his setting aside her guardianship in this particular case? And here we cannot but express an opinion that the two reasons between which, as we before observed, the Vice-Chancellor halts, are each of them so bad, that we do not think he could have ventured to rest his decision upon the unassisted strength of either of them. He appears to intend to eke them out, one by another, under the idea that two bad reasons added together amount to a good one. In the first place, he argues at some length that the father, having never professed himself a Catholic, must be held to have died a Protestant, and to have intended therefore that the children should be brought up as Protestants. Now, if the mother has no rights, the father by his intestacy having abdicated his, it seems quite frivolous to discuss hypotheses about what the father may be presumed to have intended. The court, on this supposition, is the sole guardian, and ought to decide the matter on its own merits. But if the mother has rights, what can be more irrational than to supersede them on a presumption (not to say on a doubtful one) that the father desired something different? If he had desired anything different, he could have so provided by will; and his not doing so must be taken as complete evidence of his acquiescence in what, he had every reason to believe, would be the consequence of his intestacy—that the children would remain in the society and guardianship of their mother. Would the court have treated the question in this manner if it had been a question of property? A man dies possessed of an estate, which he could have bequeathed to whom he pleased; but he dies intestate, and it passes to the heir-at-law. Would the court receive evidence to prove that he disliked the heir-at-law, and would have preferred leaving the estate to some one else? The proposition is absurd, and would be so regarded. The deceased not having declared his intentions by will, the law would take its course, and the estate devolve on the person whom it had designated.

While, however, Vice-Chancellor Bruce is willing to make all the use he can, in favour of his conclusion, of the imaginary intentions of the father, he intimates the right of the court to direct the children’s religion, let the father’s purpose be what it may:

That it should view the religion of the children as a matter of indifference is of course quite out of the question. That no one can do. That the religion of the children should depend on the mere will and pleasure of the person or persons who may happen to be guardian or guardians,especiallywhen there is no testamentary guardian—appears to me to be equally out of the case. As it is the duty of the court to superintend the education of infants in all cases where its powers are not excluded, so especially and most importantly it is the duty of the court to superintend that course of religious education in which the children ought, until they are of years of discretion, and able to and think fit to choose for themselves, to be educated.

Not only therefore when there is not, but when there is, a lawful guardian, the court will not permit the religion of the children to depend on the guardian’s decision, but will make it depend on the court’s pleasure. Nor is the maxim limited to cases in which there is no testamentary guardian. If Mr. North had made a will appointing Mrs. North guardian, or any one else guardian, and the person appointed had been supposed to intend to make the children Roman Catholics, the court would have set aside the will.

Hear this all parents who think that you have the power of confiding your children after your death to the relatives or friends on whose integrity, judgment, and affection you most rely. If the friend or relative be a Roman Catholic, he may be your choice, but some other person, perhaps one you have the greatest reason to despise and dislike, will be Sir J.K. Bruce’s. Nay, it is not certain that his interference will wait for your death. It is his duty, he says, to regulate the religious education of the children in all cases from which his powers “are not excluded;” and that they are not excluded from the case of children whose father is alive, Shelley’s case2 and several other cases bear witness. For aught that appears, the children might have been taken out of the control of Mr. North himself, if he had lived to declare himself a Roman Catholic, and the Protestant maiden lady who has them in custody might have been in loco of both their parents, as she now is of their widowed mother. If we could smile on so serious a subject, we should be moved to do so by the doctrine that a maiden aunt is as nearly related to children as their mother!

The case has two stages yet to go through. The Master has to report; and his report, when made, must receive the sanction of the court; from which, if the present temporary decision is made a permanent one, we sincerely hope the case will be carried by appeal to the Lord Chancellor,3 and will not pass by without calling the attention of the public and of Parliament to the principles which it involves. It is they who should decide whether a mother is her child’s nearest relation or no, and whether Sir J.K. Bruce, under cover of his court’s powers as protector of infants, shall be permitted to commence, in the year 1846, a new form of religious persecution.4

[1 ]Dudley North’s sister Arabella.

[2 ]When the poet Percy Bysshe Shelley (1792-1822), after the suicide of his first wife in December 1816, sued in the Court of Chancery for custody of his two children, the Lord Chancellor, John Scott (1751-1838), 1st Earl of Eldon, ruled against Shelley on the ground of his unorthodox religious views.

[3 ]Charles Pepys, Lord Cottenham.

[4 ]In the event, the case was shortly closed. On 12 Jan., 1847, The Times, p. 8, reported that an arrangement had been made between the mother and the grandmother that rendered further application to the Court unnecessary.