A Question of Disputed Guardianship. son should exercise authority over the chil dren. As to the claim that the mother is now a Christian, the Attorney General admitted that this is a proper argument, but " we are not to be wiser than the law." The taking away of the children and putting them under a different education, was thought one of the hardest parts of the prosecution of Protest ants abroad. If the court should interpose in such cases, he was afraid that no children would be suffered to be educated otherwise than according to the legal establishment. According to the statute of 1 Anne, chap. 30, it was provided that children should be left free in their choice of religion. The Attorney General also pointed out that the deed between Mr. Da Costa and his daughter was dated May 3, 1734, wherein she had agreed that if her two infant children died intestate, the grandfather should be en titled to an equal moiety with her, and that she and all persons who would be entitled to the guardianship of the children, should per mit Mr. Da Costa to have the care of their persons and estates. On the back of the deed was an endorse ment dated March 17, 1735, by Mr. Mellish and his wife, whereby they ratified the deed. A deed poll signed by Mr. Da Costa was also produced whereby he agreed to permit Mrs. Mellish to visit the children at his house; and he averred that he never refused the mother permission to visit the children. Other counsel on the same side argued that the guardianship of the mother was little regarded by the common or statute law of the kingdom, and wisely so, because the mother, by her second marriage, puts herself under the power of another, and her affections will often be alienated from the children of the first husband to those of the second. The true point before the court was whether it would change the education
599
of the children so as to change their re ligion. The Lord Chancellor, in delivering his judgment, avowed his reluctance to deter mine questions of this sort in family disputes, the more disagreeable, where they relate to religious matters, — but when it becomes necessary, he must do it. As to the mother's claim, before the deed of 1734, the right was clearly in her. She had a right to the custody of the persons, and care of the education, and the grand father had no right to interpose otherwise than as the mother, being his daughter, owed a duty to him; but the mother had no right to assign the guardianship. As to the deed of May, 1734, a guardian ship is no more assignable in equity than at law. The deed is only an agreement that the grandfather should have the actual care and education of the children, and that she should not interpose. The deed does not use the words of assignment. It seems a little strange for parties to come into a court of equity and pray contrary to their agreement, and the court cannot set it aside in this summary way. No imputa tion on the behavior of Mr. Da Costa had been urged, and there was therefore no ground to relieve Mrs. Mellish as prayed in her petition, which was therefore dismissed. But the Chancellor also had the petition of the infants before him, and that received another consideration. As the Chancery Court gives directions touching the estate of infants, it ought to interpose from whatever hands the petition comes, though from a mere stranger. There are here two questions, continued the Lord Chancellor : Has the court power to give directions to deliver the children to the mother? Has it discretion in doing so? As to the first question, the court has the power without doubt. Secondly, — as to
