purpose, petitioned the Lord Chancellor that he, as sole surviving guardian,
might have the ordering, as he should think proper, of such governor, gentle-
r*cqqn man > anc * otner servants to attend the said infant *earl; and that the
L J person of the said infant earl might be delivered over to the peti-
On the behalf of the countess, it was insisted by the Solicitor- General, Mr.
Lutwiche, Mr. Cowper, and Mr. Talbot, that the guardianship, being devised
to three, without saying, " and to the survivor of them," the same did not sur-
vive ; that it was but a bare authority, and no interest, in regard no profit
could be made thereof; that, if a power were given to three, and one of them
should die, the survivor could not execute such power; that, if two were made
committee of a lunatic, on the death of one of them the commitment would
determine ; that this was a trust annexed to the person, and not assignable,
nor was it reasonable it should survive, forasmuch as the testator might think
1 S. C, 2 Eq. Ca. Ah. 710, pi. 3 ; 755, pi. 4.
EYRE V. COUNTESS OF SHAFTSBURY. 209
it proper to trust three, but not to invest a smaller number with a charge of
Also, it was said, that, if the infant earl should die without issue under age,
in such case the late earl by his will had given an annuity of Â£500 per annum
to Mr. Justice Eyre, which made it improper that he alone should be intrusted
with the person of the infant earl, who would be a gainer on his dying without
issue and under age ; that, the will having appointed three guardians to the
infant, it was the same thing as if the testator had appointed those three
jointly, and then it was plain, that, if one should die, the survivors could not
act ; that, according to Auditor Curie's case, (11 Co. 2, b,) where an office is
granted to two, on the death of one of the grantees, the office determines.
And though it might be attended with some inconvenience were such guar-
dianship or authority to determine on the death of one of the persons intrusted,
yet it must be allowed to have been in the power of the testator to have pre-
vented this inconvenience, by limiting the guardianship to the survivor by
express words : Salk. 465.
It was moreover, urged, that this was a matter of trust; for every guardian-
ship was a trust j 1 that the Crown, as *parens patriae, was the supreme ^ . m
guardian and superintendent over all infants; and since this was a "- ' -"
trust, it was consequently in the discretion of the Court, whether or no they
would do so hard a thing as to take away an infant under thirteen years of
age, from so careful a mother as the countess was ; that the tender calls of
nature were on the mother's side ; and then there were two physicians, (Dr.
Robinson and Dr. Friend,) who both testified that the infant earl was of a
tender and sickly constitution ; so that at least the Court might refuse to grant
this in a summary way, or otherwise than upon a bill.
Also, with regard to the servants, it was represented to be a very hard thing
to turn away such as the countess had experienced to be good servants, and to
take persons in their room whom she had no experience of; particularly that
Dr. Stubbs, the governor, came in at first with the approbation of Mr. Justice
Eyre, and that he was a man of learning, probity, and piety, and a clergyman.
On the other side, it was said, that this guardianship was not devised to
three jointly, but to three until the infant earl should come to twenty-one;
that a guardian had not only a bare authority, but also an interest, for he might
bring a writ of ravishment of ward, or might make a lease during the minority
of the infant, as was determined in the case of Shopland v. Ryoler ; 2 so that
guardians had an interest coupled with their authority, and consequently the
office would survive.
It was true it could not be granted over : no more could the office of execu-
torship ; but yet there could be no question but that, if there had been two
executors, and one should die, the other would take the whole executorship as
1 See Duke of Beaufort v. Berty, 1 P. "Wms. 704 ; Frederick v. Frederick, 1 P. Wms.
2 Cro. Jac. 55, 98.
VOL. III. â€” 14
210 GUARDIANSHIP OF MINORS.
And as to the objection, that there was no profit in the guardianship, and
therefore it should not survive, the same way of reasoning would hold in the
case of an executorship, for that was barely a trust, and no ways profitable ;
notwithstanding which, being a legal interest, it would survive. It was like-
wise said, that in case where three guardians were appointed, if this were sup-
posed to be but *a joint authority, and consequently not to survive, it
[*541] woul( j p rove a g rea t inconvenience, and in a good measure frustrate
the intention of the person appointing them.
As to what was held in Auditor Curie's case (viz.,) where an office has been
usually granted to two, and one of them dies, that this is a determination of
such office, the reason must be supposed to be, because they both make but
one officer, as in the case of the sheriffs of Middlesex.
That, with regard to the Â£500 per annum given to Mr. Justice Eyre, in
case of the infant's death without issue and under age, that could be no
objection in case of a testamentary guardian appointed by the party himself,
whatever it might be where the guardian was to be appointed by the Court ;
for, where the testator himself says that J. S. shall be guardian of his son,
and by the same will also declares that the said guardian shall have the whole
estate in case the child should die within age, surely that would be good ;
much more shall the devise in our case, which is but a small part of the estate.
Then, as to the objection of hardship from the guardians being empowered
to impose servants, governors, &c, who, when put upon the young lord by
such guardian, would probably not regard the countess, as having no depend-
ence upon her, this might be as well turned the other way, (viz.,) that if they
were put in by the mother, they would have no regard to the guardian, who
yet was intended by the will to be in loco parentis, and to supply the father's
That Dr. Stubbs, the governor, might be a good scholar and a pious man,
and yet it would not necessarily follow that he was a proper governor to attend
the young earl to court, or to noble families, or at the exercises of dancing and
riding, which it was fit his lordship should be acquainted with.
Besides, it was of great consequence, in regard such servants are apt to
flatter their young masters, and to entertain their thoughts with such things
as would be rather pleasing than useful to them.
Lastly. With respect to the tenderness of the young *lord's consti-
L ""J tution, that was, however, of late grown stronger, and he being now
upwards of twelve years of age, this was the proper crisis for forming his
mind, and instilling into him a taste of those noble qualities and that spirit
which became a person of his high station, in order to make him useful to his
country; and this being the proper time, surely it was reasonable to trust
Providence in these cases, and to send the young nobleman to some public
Lord Chancellor Macclesfield. â€” The father, by the statute, 1 has a
1 12 Car. 2, c. 24.
EYRE V. COUNTESS OF SHAFTSBTJRY. 211
right to dispose of the guardianship of his child until twenty-one, and, having
done so here, it will be 1 binding, unless some misbehaviour be shown in the
guardian, in which case, it being a matter of trust, this Court has a superin-
tendency over it.
But as to the objection, that this right of guardianship does not survive,
because it is not said in the will in express terms that it shall go to the sur-
vivor, there seems to be no color for it ; because, where several guardians are
appointed by a will, each of them seems to be a complete guardian, like the
case where there are two or three church-wardens of a parish, each of them is
a distinct church-warden ; and it would be mischievous, and of very ill effect,
if, where there are several guardians appointed by a will, and some refuse to
act, that the rest should not be able to do anything; and yet this must be the
consequence if a guardianship devised to several should be taken to be one
joint naked authority ; such construction would make the Act of little force.
A guardian has an authority coupled with an interest, and may bring a writ
of ravishment of ward on the infant's being taken from him ; and though it is
true that the damages recovered shall, by the statute, go towards the benefit
of the ward, yet the declaration must lay it ad damnum of the guardian, the
The reason of Auditor Curie's case, 2 where, on the office of auditor being
granted to two, without saying " and to the survivor," such office, on the
death of one, *was held to be determined, was because, in such case, P543-]
both made but one officer, as the two sheriffs of Middlesex make, as
to their office, but one person. In the present case, here is a plain right
placed and vested in Mr. Justice Eyre, as the surviving guardian, and who,
every one is assured, will well execute such trust, which it will be impossible
for him to do without being allowed to place and choose the governor, gentle-
man, &c, to attend upon and take care of this young nobleman.
And, though Dr. Stubbs may be a good, learned, and pious man, yet he
may not be so fit to attend the young earl to all places ; for instance, to courts,
places of exercise and diversions, &c, at which it may be proper for his lord-
ship to appear.
But I must differ from Mr. Justice Eyre, as to sending the infant to a
public school, which may be thought likely to instil into him notions of
Wherefore, per Cur., discharge Dr. Stubbs from being governor, as also
Mr. Bennet from being gentleman, and deliver the infant into the hands of
his guardian, Mr. Justice Eyre, who desired the young earl might dine with
him. But the Lord Chancellor said, that this was in confidence, that the
Judge should return him to his mother, the countess, at night ; for that, as
yet, the Court would not make any order touching the custody of the earl's
1 See Dillon v. Lady Mountcashell, 4 Bro. P. C. 306, Toml. ed.
2 11 Co. 2, b.
3 Few, at the present day, would entertain this singular notion of the Lord Chancellor.
212 GUARDIANSHIP OF MINORS.
Afterwards, on the Great Seal being taken from the Earl of Macclesfield,
and placed in the hands of three Lords Commissioners, on the 18th of March,
1724 Mr. Justice Eyre (lately made Lord Chief Baron of the Exchequer)
exhibited his petition to the Lords Commissioners, setting forth the former
proceedings ; and that the infant earl, who was now just fourteen years of age,
and had been married to Lady Susanna Noel, daughter to the Countess of
Gainsborough, was detained from the petitioner; that such marriage was
without the consent or privity of the said Lord Chief Baron, the surviving
guardian. Therefore the petitioner thought it his duty to lay *these
[*544] t ki D g S before the Court, praying that the custody or tuition of the in-
fant lord mio-ht be granted to him, and that the Court would make such
order touching this matter as they should think proper.
Upon this the Dowager Countess of Shaftsbury petitioned the Lords Com-
missioners, that the order of the late Lord Macclesfield, declaring the right of
guardianship to belong to the Lord Chief Baron Eyre, and directing the per-
son of the infant earl to be delivered to the said Lord Chief Baron, might be
Also, the infant earl petitioned the Lords Commissioners, insisting, that
the guardianship of his lordship, given by the will, was determined by the
death of two of the guardians, and praying that his lordship, being now of the
a"-e of fourteen years, might be at liberty to choose his guardian.
On hearing these petitions, the Court ordered a sequestration, unless cause,
both against the Countess (dowager) of Shaftsbury, and against the Countess
of Gainsborough, for their contempt in contriving and effecting this marriage
without the consent of the guardian, and without applying to the Court.
And the person of the infant earl was ordered to be restored by the Countess
Dowager of Shaftsbury to the Lord Chief Baron, it being the opinion of the
Court, that though the declaration made by the late Lord Chancellor, that the
right of guardianship did belong to the Lord Chief Baron, as surviving
guardian, and the order made thereupon was ever so erroneous, yet that the
same was a good order until reversed, and, consequently, it was a contempt to
Gn the 15th of May, the three Lords Commissioners, (viz.) Sir Joseph
Jekyll, Master of the Rolls, Mr. Baron Gilbert, and Mr. J. Raymond, having
heard this matter solemnly argued by counsel on both sides, gave their judg-
ment, which was delivered by the Lord Commissioner Jekyll, that the Court
were all of opinion the sequestration against the Countess of Shaftsbury ought
to be absolute.
r*'AW *Lord Commissioner Jekyll. â€” The marriage of a ward without
L the consent of the guardian is a ravishment of the ward, (2 Inst. 440,)
and aggravated in this respect, that, after such ravishment by marriage, the
ward cannot be restored to such condition as he was in before, it being ren-
dered impossible by the wrong of the ravisher.
By the Statute of Westminster 2, cap. 35, it is enacted that if one be guilty
of ravishment, either of a male or female ward, if the ward be restored, though
EYRE V. COUNTESS OF SHAFTSBURY. 213
not married, the ravisher shall be punished with two years' imprisonment; but
if the ward be not restored, or if he be restored and be married, the party guilty
of such ravishment, (if he cannot make satisfaction for the marriage,) shall be
punished by imprisonment for life, or by abjuring the realm, at the discretion
of the Court where he is tried ; so that a ravishment of a ward became an
offence not only against the. guardian, but against the king ; and whereas, on
the ward's being married, the ravisher was to be punished by perpetual impri-
sonment, or by abjuring the realm, this shows the greatness of the offence, by
the grievousness of the punishment.
And the matter of marrying infants without the proper consent of guardians,
is provided against, both at law and in this Court, especially the latter, it being
notorious that a court of equity entertains no greater jealousy of, nor shows
more resentment against, anything, than the unlawful marriage of infants.
In the case of the marriage of a lunatic, (viz.,) that of Mr. Packer's mar-
rying Mrs. Ash, 1 the Court committed Mr. Packer, the parson, and others that
were their agents, and Packer continued in custody for a considerable time ;
and infants and lunatics may be compared together, both of these being unable
to take care of themselves. 2
In the case where an infant is committed by the Court to the custody or care
of any one, such committee gives a recognizance that the infant shall not marry
without leave of the Court, which form is very rarely altered, and on special
circumstances; so that, if the infant marries, * though without the
privity, or knowledge, or neglect of the committee, yet the recogni-
zance is, in strictness, forfeited, whatever favor the Court upon application
may think fit to show to such committee, when he appears not to have been
In Lord Somers's time, Mr. Goodwin married an infant, (Mrs. Knight,)
and was committed, and this commitment was followed by an Act of Parlia-
ment for dissolving the marriage.
So, on Sir Edward Hannes's daughter and heir, who was an infant, being-
inveigled from her guardian, Dr. Waugh, and married to one Willis, though
Mrs. Hannes was not taken from a guardian assigned by the Court, yet, in
that case, both Mr. "Willis, and the parson, and the agents, were all committed
by the Master of the Rolls, Sir John Trevor, and the order afterwards con-
firmed by Lord Harcourt ; and, as this Court punishes the instruments where
such marriage is had without the consent of the guardian, so, if there be only
an apprehension that the infant will be married unequally, either by the guar-
dian or by his neglect, a court of equity will interpose, and send for the infant,
and commit him to the custody of a proper person, or relation, in order to pre-
vent such danger ; as was done in the case of the infant Lady Catherine An-
nesley, by Lord Chancellor Harcourt, and likewise in another case, (viz.,) that
of Mr. Vernon, of Staffordshire, by Lord ^Macclesfield. 3
1 See Packer v. Wyndham, Prec. Ch. 412.
2 See Dr. Davis's case, 1 P. Wms. 698 ; Jeffrys v. Vanteswarstwarth, Barn. 144, 145. '
3 See Lord Raymond's case, Ca. t. Talb. 58 ; Smith v. Smith, 3 Atk. 304.
214 GUARDIANSHIP OF MINORS.
But the present case is still of a higher nature, as it is the case of a peer of
the realm in whose education the public is interested, and where the guardian-
ship of him is devised by a peer of the realm, (viz.,) by the will of the late
As to the objection that has been made to the order of this Court, that there
are no words therein, that the infant shall not be married without the consent
of the guardian :
Resp. The Court could not suppose, or foresee, that any person would marry
the infant without the guardian's consent ; and, for that reason, there was no
express *provision against it in the order; but still this prohibition is
*- implied, (viz.,) that no person without the leave of the guardian,
should marry this infant ; besides, by the same reason that these words ought
to be inserted, the order should likewise have provided that no person should
take away or ravish this ward from the guardian, &c, all which things are
surely implied ; but, further, it is a sufficient answer to this objection, that
such negative words are never inserted in the order.
But then it is objected, here is no disparagement in this marriage ; foras-
much as the birth of the noble lady to whom Lord Shaftsbury is married, and
also her quality, are equal to those of her husband ; and she has had the advan-
tage of being educated under the Countess of Gainsborough, her mother, a lady
of great honor, virtue, and quality.
Resp. Admitting all this to be so, yet it may be reasonably supposed, thatj
if the infant earl had staid till he had attained his age, and could have made
a jointure and settlement, in such case his Lordship might have had a better
But, in reality, though there be no disparagement, yet this is only by way
of extenuation, and can never be urged as a justification; for, it is the mar-
riage without the consent of the guardian that constitutes the offence ; so that,
such marriage having been to one of equal degree and fortune, can at most
tend but to extenuate.
And it is observable, that the disparagement of the ward was not where
such ward, without the guardian's consent, married one of inferior degree, as
a villein, citizen, or burgess, but where the guardian himself married the
ward to one of inferior degree ; for which see the statute of Merton, cap. 6 &
7, 2 Inst. 89-92.
Object. The punishment of this ravishment of ward by sequestration, or
otherwise, would be fruitless, since the marriage, having been once solemnized
and perfected, the same cannot be afterwards rescinded or dissolved.
Resp. The like objection might be made, though the marriage were ever so
P^-ISI muc ^ to tne disparagement of the *ward ; but in all these cases the
L J reason of inflicting punishments is for example's sake, and to deter
others from the like offence of ravishment of wards.
Object. This marriage is by the Countess, the mother of the infant earl,
who is guardian by nature and nurture, and so cannot be guilty of ravishment
EYRE V. COUNTESS OF SHAFTSBURY. 215
Resp. The right of a testamentary guardian takes place of a guardianship
by nature ; by the express words of the Act of Parliament, the guardian by
will takes place of all other guardians, and his authority, by that law, is a con-
tinuation of the paternal authority.
Object. There is no instance of any one case, where a complaint has been
against an infant's mother, for taking away her own child.
Resp. The Lords Selkirk and Orkney, guardians of the infant Duke of
Hamilton, petitioned against the Duchess of Hamilton for taking away the
infant Duke out of their custody, and their complaint was received ; upon which
the Court would have proceeded against the mother, but the guardians could
not make out their right of guardianship, by reason of some defect in the
instrument under which they claimed.
So that, all these objections being answered, the Court are of opinion, that
the sequestration against the Countess Dowager of Shaftsbury ought to be made
As to the case of Lady Gainsborough, that seems to differ; and here the
question is, whether the Countess of Gainsborough's consenting that her
daughter should be married to the infant earl, be not a contempt ?
8 Edw. 3, p. 52. The case was a writ of ravishment of ward, which was
brought against four men and a woman ; the men took away the ward, and the
woman, knowing that the four men had taken away the ward, married the
ward to her daughter, upon which Hirle, C. J., gave the rule, that the woman
was equally guilty with the four men of the ravishment of the ward, the mar-
riage of the infant, without the consent of the guardian, constituting the
offence ; and though the guardian be not appointed by the Court, nor
any commitment made by the Court *of the infant, yet have those L *
been punished who have married the ward without the consent of the guar-
dian, as appears from the above-cited case of Mrs. Hannes, where the case was
nothing more than that of marrying the infant without the consent of the tes-
tamentary guardian, and the decree was only for an account of Sir Edward
Hannes, the father's, personal estate, and for an allowance of maintenance for
Whereas, in the principal case, the decree goes something further, as it
directs that the will of the late Earl of Shaftsbury should be performed, part
of which will is, that the infant earl should be under the care and guardian-
ship of the persons named therein.
In 3 Co. 38, (Ratcliffe's case,) it was resolved, that every ancestor, whether
male or female, might bring an action of trespass or ravishment of ward against
any one for taking away his heir apparent, male or female, and for marrying
such heir ; and that it is not material of what age such heir then was ; and as
the ancestor might bring such action for taking away and marrying the heir,
so also might the guardian for taking away and marrying the ward.
It does not appear that the late Earl of Gainsborough left any testamentary
guardians of his children ; so that the Countess was guardian of them by na-
ture; the marriage of her daughter belonged to her; consequently, it is to bo
216 GUARDIANSHIP OF MINORS.
presumed that she married her daughter to the infant earl ; at least, if she did
not, she may purge herself by oath.
But it is material that the Lord C. B. Eyre, the guardian of the infant earl,
has not, in his petition, made out any direct charge, or prayed anything against
the Countess of Gainsborough ; and, possibly, the Court may not be bound,
ex officio, to punish for a ravishment of a ward where there is no complaint.
The Court has the care, but not the guardianship, of infants; and the Lord
C. B. Eyre is not a guardian appointed by the Court, 1 but by the will of the
father; in which respect the Court is the less concerned.
*And though the stat. 12 Car. 2, c. 24, says, that a testamentary
*- J guardian may maintain an action of ravishment of ward, if the infant
be taken from him, yet the statute does not enjoin him to do it, but refers the
same to the discretion of the guardian.
So that, in this case, forasmuch as the testamentary guardian has not com-
plained of or prayed any redress against Lady G-ainsborough, the Court will
do nothing against her, but discharge the order of sequestration with respect
to her. 3
And now we come to the petition of the infant Earl of Shaftsbury, where it
is first objected, that though the Court might, upon a petition, make a pro-
visional order for the taking care of an infant, yet that they ought not to make
an order determining the right of guardianship, unless the matter be brought
judicially before them, by bill, answer, and proofs.