43

the child other than by legal proceedings. Todd v. Lyons. Mr. Vice Chancellor Malins ordered the superior of a monastery to refrain from admitting a young man of 17 to monastic vows against the father's consent, and directed that he be delivered back to the father. Iredell v. Iredell. Mr. Justice Kay granted an injunction restraining certain persons from communicating with a minor where they had been having secret interviews with her to induce her to adopt their religion instead of her father's.

Logically, unless justified on other grounds, Re Lyons must be erroneous. If the parents have the legal right, or even a trust to discharge, to inculcate some proper religious training in the minds of their children, in so doing they have the right to be free from the officious meddling of strangers no matter from what highly disinterested motives such interference may be inspired.

VI

In the United States the constitutional limitations 45 against any established religion have fortunately suggested a different judicial approach to religious litigation.

"In this country, the full and free right to entertain any religious belief, to practice any religious principle, and to teach any religious doctrine which does not violate the laws of morality and property, and which does not infringe personal rights, is conceded to all. The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect." 46

43 Unreported, see SIMPSON, LAW OF INFANTS, 3 ed., 127.

44 I Times L. R. 260 (1885).

45 U. S. CONST., First Amendment.

Practically every state constitution has a provision to insure religious liberty and equality before the law of all religions. Thus in Massachusetts:

"It is the right as well as the duty of all men in society, publicly, and at stated seasons, to worship the SUPREME BEING, the great Creator and Preserver of the universe. And no subject shall be hurt, molested, or restrained, in his person, liberty, or estate for worshipping God in the manner and season most agreeable to the dictates of his own conscience; or for his religious profession of sentiments; provided he doth not disturb the public peace, or obstruct others in their religious worship." MASS. CONST., pt. 1, art. 2

". . . all religious sects and denominations, demeaning themselves peaceably, and as good citizens of the commonwealth, shall be equally under the protection of the law; and no subordination of any one sect or denomination to another shall be established by law." Amendment XI, MASS. CONST. See STIMSON, AMERICAN

STATUTE LAW, §§ 40, 42, 43.

46 Watson v. Jones, 13 Wall. (U. S.) 679, 728 (1871).

The result is that our courts have been remarkably free from litigation over the religious education of children. It is only in very recent years that it is beginning to make its appearance. Most of the states even a state so important as New York 47 - are stiil without any decisions on the subject from a court of last resort. Such litigation as has arisen has either been decided by side-stepping the religious aspects of the controversy altogether and resting the decision on some other grounds entitling one or the other party to custody of the infants,48 or, too often, in more or less slipshod fashion the court has treated the matter as if it were a novel issue to be decided as law of first impression, or has fallen into an undiscriminating citation of an English authority to justify some particular disposition of the case under consideration. In recent years, as the minority religious groups have strengthened themselves they have more aggressively asserted a right to protect from proselytism the children of their faith who come before the courts for disposition usually as dependent, delinquent, or neglected children. Generally, however, these efforts have been directed toward securing legislative enactment imposing limitations upon the courts or public authorities in the indiscriminate placing of children of some particular faith in conflicting religious surroundings.49 The divergence between the standards of American courts is perhaps illustrated by a contrast of three cases. First, a Florida court adopted a rule that "It is not enough to consider the in

47 The New York decisions, five in number, all of inferior courts, lack distinction and contribute little or nothing to define the position which the courts of the state will ultimately take. Matter of Marcellin, 24 Hun 207; Matter of Jacquet, 40 Misc. 575, 82 N. Y. Supp. 986 (1903); Matter of Crickard, 52 Misc. 63, 102 N. Y. Supp. 440 (1906); Matter of McConnon, 60 Misc. 22, 112 N. Y. Supp. 590 (1908); Bolling v. Coughlin, 5 Redf. 116 (1881).

48 Desribes v. Wilmer, 69 Ala. 25 (1881); Whalen v. Olmstead, 61 Conn. 263, 23 Atl. 964 (1891); People v. Gates, 43 N. Y. 40 (1870); In re Northern Pac. P. B. of M. v. Ah Wan, 18 Ore. 339, 349, 22 Pac. 1105 (1890).

49 It has been said that statutes of this class are "not made with any view to the external interests of the child in a future state of existence, but with a view to the rights and feelings of the parents." In re Doyle, 16 Mo. App. 159, 167 (1884).

For example see:

Pennsylvania. I PURD. DIG., 13 ed. 1084; Parks's Estate, 7 D. R. 700 (1898); Appeal of McCann, 49 Pa. St. 304 (1865); Nicholson's Appeal, 20 Pa. St. 50 (1852). Missouri. REV. STAT. MO., § 5295; Voullaire v. Voullaire, 45 Mo. 602 (1870); In re Doyle, 16 Mo. App. 159 (1884).

Massachusetts. ACTS 1904, c. 363; ACTS 1905, c. 464.

51

terest of the child alone. And as between father and mother, or other near relation of the child, where sympathies of the tenderest nature may be confidently relied on, the father is generally to be preferred"; that the father has the legal right to have his children educated in any religious faith that he sees proper whose tenets do not inculcate violations of law.50 The Massachusetts court announces as its fundamental doctrine that "the court will not itself prefer one church to another, but will act without bias for the welfare of the child under the circumstances of each case." "The wishes of the parent as to the religious education and surroundings of the child are entitled to weight; if there is nothing to put in the balance against them, ordinarily they will be decisive. If, however, those wishes cannot be carried into effect without sacrificing what the court sees to be for the welfare of the child, they must so far be disregarded."

In the third case-in Wyoming-it was held that in view of the statutes prohibiting distinctions being made on account of religious belief in awarding custody of minor children, religious considerations will not be given "the slightest weight in our decision," although "some reputable courts" have considered such differences of religion.52 This almost goes to the extremes of a Victoria court which ordered a minor placed at an institution where she might have experience of both the Catholic and Protestant religions so that she might be able to have "a free means of exercising her own judgment" until ultimately she adopted some fixed views.53

As the law develops in American jurisdictions it will probably enlarge the mother's authority over her children's religious education. It is to be expected that it will be recognized that it is equal to that of the father. As between father and mother, any religious question respecting the child's religion will be settled by the award of the right of custody. Already it is safe to predict that if the question of the right and duty of a surviving mother concerning the religious education of her child should arise the courts will probably follow the Canadian case rather than the English authorities 54 and hold that where the surviving mother has the 50 Hernandez v. Thomas, 50 Fla. 522, 536, 39 So. 641, 645 (1905). "Purinton v. Jamrock, 195 Mass. 187, 199–200, 80 N. E. 802, 805 (1907). 12 Jones v. Bowman, 13 Wyo. 79, 77 Pac. 439 (1904).

In re Pennington, 1 V. L. R. Eq. 97 (1875); S. C. 2 V. L. R. Eq. 49 (1876). 54 See n. 39.

right of custody she has a right to dictate the religious teachings the child shall receive irrespective of any question of the father's religion or his possible wishes on the subject.

A desirable American innovation in the not unusual domestic religious situation in many of these cases has already been promulgated by the New Jersey court. It was held that in the absence of any expressed preference and direction by a deceased father as to the religious education of his child, the clearly expressed wishes of a deceased mother should be followed.55

The Missouri court had a more startling and more novel proposition presented to it in an attempt to obtain an injunction to compel a father to baptize his child in accordance with an antenuptial contract with the deceased wife. It was, of course, refused.56

To the very limited extent that they have as yet considered the subject, the courts seem to have allowed an examination of the child in these cases.57

It is evident in view of the paucity of authority on this subject in the United States that a thorough understanding and analysis of the English decisions in the pioneer American cases will enable our courts to avoid difficulties and false standards that will only confuse and increase a troublesome class of litigation that is now beginning to force itself on the attention of our judges.

BOSTON, MASS.

65 In re Turner, 19 N. J. Eq. 433 (1868).

Lee M. Friedman.

It was held, however, in Hernandez v. Thomas, 50 Fla. 522, that the will of the mother undertaking to give custody of her children, even though she was divorced and had been awarded custody of her child, was of no effect; that a father alone had testamentary power to appoint a guardian for an infant child.

56 Brewer v. Cary, 148 Mo. App. 193, 127 S. W. 685 (1910).

57 Matter of McConnon, 60 Misc. (N. Y.) 22, 112 N. Y. Supp. 590 (1908); cf. Curtis v. Curtis, 5 Gray (Mass.) 535 (1855).

Ο

PROPERTY IN CHATTELS

II

PROPERTY IN THE BAILOR

NE from whom chattels had been taken could not sue the second trespasser and this, as we have seen,1 was ascribed by Brooke to a change of "property" by the first trespass and by Brian, C. J., to the fact that possession was out of him by the first trespass and that, therefore, the second trespasser was not a trespasser as to him. It has been thought that the early law went even further than this and in the beginning denied trespass altogether against the third hand, and, as it was extremely difficult, perhaps impossible, to frame a count in detinue against the third hand,3 that until the development of the action on the case, the interest of the bailor, whether thought of as "property" or not, was so inadequately protected by judicial remedies as hardly to deserve that name.1

That in the earlier law the interest of the bailor was thought of as property, or at least that the bailed goods were thought of as "his" rather than the bailee's, has been placed beyond serious question by Pollock and Maitland. We find no such puzzling statements as to a change of property by a bailment as we do of a trespass. Whatever might be the case with the trespasser or thief, the bailee as such was no disseisor. He did not hold the chattel as his own but as that of another. The instances we are given where he was said

to have been "seised" are rare. Commonly speaking, the bailed

1 Supra, p. 383.

2 2 P. & M., 2 ed., 172.

3 Ibid., 176; Ames, "History of Trover," 3 SELECT ESSAYS, 434. But see 3 HOLDSWORTH, HISTORY OF ENGLISH LAW, 274.

4 2 P. & M., 2 ed., 153, 182.

5 Ibid., 176.

• Supra, p. 374.

7 2 P. & M., 2 ed., 176.

• Maitland gives an instance where seisin is attributed to the pledgee by Glanville (1 LAW QUART. REV. 325). There are many instances where "seised" was used of the distrainor, thief, testator, and executor. (Maitland, "Seisin of Chattels," I LAW QUART. REV. 324.) See also 2 P. & M., 2 ed., 176, and supra, p. 380.