in its entire progress to the prosecution of the work."

This case was affirmed in United States Fidelity Co. v. Bartlett, 231 U. S. 237, 34 Sup. Ct. 88, 58 L. Ed. 200, Mr. Justice Day saying:

"The object of the contract was to put the stone in place, much of it being merely dropped into the water, with a view to the construction of the breakwater. To accomplish this purpose it was of course necessary to have the material taken from the quarry, using tools and labor for that purpose, and transported to the location of the breakwater, and there deposited. This material could not be had * * *at the breakwater."

In City Safe Deposit & Surety Co. v. United States, 147 Fed. 155, 77 C. C. A. 397 (C. C. A., 2d Cir.), the contract provided for the building of a dry dock. The intervener's claim was for coal furnished the contractor used in running locomotives, hoisting engines, and pumping engines in carrying on the work. Judge Lacombe said:

"No specially liberal construction is required to bring the materials supplied in this case within the protection of the act. The labor expended by men in wheeling barrows of material from the point of receipt to the place where it is to be used; in working hand pumps to clear an excavation of water; in turning the cranks of a hoisting derrick, so as to raise materials to a proper elevation-all such labor is manifestly in the prosecution of the work," etc.

The latest Supreme Court opinion on this point is in the case of Brogan v. National Surety Co., 246 U. S. 257, 38 Sup. Ct. 250, where the Court held that a surety was liable on a claim for supplies furnished to a hotel which a contractor of a large dam had been compelled to erect to take care of his employees. In that case Justice Brandeis said:

"This court has repeatedly refused to limit the application of the act to labor and materials directly incorporated into the public work. Thus in Title Guaranty & Trust Company v. Crane Company, 219 U. S. 24, 34, the claims for which recovery was allowed under the bond included not only cartage and towage of material but also claims for drawings and patterns used by the contractor in making moulds for castings which entered into the construction of the ship. In United States Fidelity Company v. Bartlett, 231 U. S. 237, where the work contracted for was building a breakwater, recovery was allowed for all the labor at a quarry opened fifty miles away. This included, as the record shows, the labor not only of men who stripped the earth to get at the stone and who removed the debris, but carpenters and blacksmiths who repaired the cars in which the stone was carried to the quarry dock for shipment, and who repaired the tracks upon which the cars moved. And the claims allowed included also the wages of stablemen who fed and drove the horses which moved the cars on those tracks."

THE CUSTODY OF AN INFANT-IGENERAL SURVEY OF THE INTERESTS INVOLVED.*

When and how the Courts of Chancery acquired jurisdiction over the persons of infants appears to be unknown.1 The commonly accepted idea is that the King by virtue of his position is under a duty to defend his subjects from aggressions upon their persons and their property, and that every royal subject, because he is a subject, is taken under the royal protection. The King as parens patriae, takes every infant under his protection immediately upon that infant's birth, and the Chancellor as the personal representative of the King, has, by virtue of his office, jurisdiction over the persons and the property of all infants. But just how this jurisdiction was acquired by the Chancellor and when it was first exercised have elicited much authoritative discussion. Attempts have been made to liken the jurisdiction to that over lunatics and idiots, and to that exercised over trusts. But Hargrave objects to these attempts, and his objections have not been convincingly refuted by those who oppose him. At the same time when Hargrave says that the exercise of this jurisdiction. by the Chancellor was a clear case of usurpation whose only excuse was the absence of any other method of providing for the

5

6

*This is the first of two articles fully covering the subject of the Custody of an Infant. The second article will be published in next week's issue and will be entitled, "Interests Secured by the Decided Cases."

(1) Story; Equity Jurisprudence, Ch. 35 (13th Ed.); Bisphams, Principles of Equity, page 47 (7th Ed.); Co. Litt. 89a, Hargrave's note, (70) 16; 2 Fonbl. Equity B. 2, Pt. 2, Ch. 2, par. 1, note (a); Wellesly v Wellesley, 2 Bligh, N. S. 124, 129, 132, 136, 137.

(2) DeManneville v. Demanneville, 10 Vesey Jr. 58; U. S. v. Bainbridge, Fed. Cas. 14, 497. (1816). United States v. Green, 3 Mason 482, 485 (1824); In re Ferrier, 103 Ill. 367, (1882); Stewart v. Stewart, 180 P. 165 (1919); Griffin v. Griffin, 187 P. 598 (1920).

(3) Story, Equity Jurisprudence, Ch. 35. Beverlys Case, 4 Co. Rep. 123, 124. Duke of Beaufort v. Bertie, 1 Peere Will.

(4)

(5)

infant, one hesitates to accept his viewpoint. He bases his argument upon the fact that the earliest case which has been

found of the actual exercise of this jurisdiction by the Chancellor to appoint a guardian upon petition without bill is the Case of Hampden in the year 1696. But, juris

diction over the person of an infant can be indicated by the awarding of the custody of the infant as well as by the appointment of a guardian, and there are at least three. cases in which, prior to 1696, the Chancellor disposed of the body of an infant. These cases are Foster v. Denny, decided in 1677, and two cases reported by the Selden Society and decided the first in 1400, and the second sometime between 1400 and 1422.

In Foster v. Denny" a father devised the custody of his infant son to his second wife, the step-mother of this son. Then the Then the father died and the wife married a second time. An uncle of the child got possession of the child and sent him to France to be educated. The mother petitions for the custody of the child and it was held that the uncle must surrender the child to the mother. In discussing the matter of jurisdiction the Court said: "Where there is guardianship by the common law this court will intermeddle and order, but here being a guardian by Act of Parliament, I cannot remove him or her."

The two Selden Society cases are brief and will bear reproduction in full. The first of these is dated 1400.10

"To the most Reverend Father in God, Thomas, Archbishop of Canterbury and Chancellor of England,

Humbly beseecheth your poor tenant, Joan, late wife of Stephen White of Cranbrook, that whereas the said Stephen shortly before his death enfeoffed one Thomas White and Thomas Bery of Wye (who are still alive) and John Assylyn and William White (now dead) of all his lands

(7) Ibid.

(8) Ibid. (I have been unable to find the original report of this case.)

(9) 2 Ch. Cases 237.

(10) Select Cases in Chancery, case 100, page 95. Selden Society.

and tenements in Cranbrook, with the appurtenances declaring to them by his last will that the said suppliant should have all the profits of the said lands and tenements during the nonage of Katherine, his daughter, begotten between the said suppliant and Stephen, and his right heir, together with the guardianship of the said Katherine, by virtue of which will be suppliant had the profits of the said lands and tenements, from wardship of the said Katherine and the the death of the said Stephen, until the Feast of the Nativity of S. John last past, when the said Thomas White wrongfully took the said Katherine out of the possession of the said suppliant and still detaineth her, together with the profits of the said lands and tenements to his own use, contrary to the said will. May it please your most gracious Lordship to cause the said Thomas to come before you, and to examine him as to the truth of the said matter, and thereupon to order him to restore to the suppliant the wardship aforesaid together with the profits of the said lands and teneGod and in way of charity." ments taken by him in the meantime; for

Just what the Chancellor did in this case is not reported, but the existence of the petition certainly indicates that there is a common notion that the Chancellor had jurisdiction in the matter. This indication is verified by the result in the next case, the whole report of which is here given.

"To the Right Reverend Father in God, and his most gracious Lord, the Bishop of Durham, Chancellor of England,

Beseecheth most humbly, William Burton, servant to Master Robert Burton Clerk, one of your Chaplains, and grievously complaineth of Ludovic Greville, of the County of Oxford, that whereas, one Robert Archer, late of Winchester, merchant, with the assent and abettment of the said Ludovic did on the Tuesday next before the Feast of Ascension, of Our Lord, and in the eighth year of the reign of our Sovereign Lord, the present King, forcibly and against the peace of the same Our Lord the King, ravish one Alice Wodeloke, daughter and heir apparant of Parnell, the wife of the said suppliant, the same daughter being of the age of seven years, and being found at Collenburn in the County of Wiltshire, in the ward of one Richard Santon (to whom she was) committed by the

said suppliant, and thence brought her to the house of the said Ludovic at Drayton in the County of Oxford, and the said Ludovic still detaineth the said Alice wrongfully and against law, right and good conscience, and against the will of the said suppliant, and will not deliver the said Alice to the said suppliant, unless he will make fine with the said Ludovic for 40 marks and (also) release by his writing to the said Robert (Archer) all the debt which the said Robert oweth the same suppliant (and this) wrongfully and to the damage of the said suppliant of 100 marks, and to the great detriment of his poor estate if he be not aided by you, most gracious Lord, in his behalf; may it please your most gracious Lordship, to consider this matter and thereupon to ordain that the said suppliant may have restitution of the said Alice, as law and conscience demand, with their damages in this behalf; For God and Charity.

At the foot. It is considered that while the said William (Burton) was with her in his house the daughter was in his wardship, and that he should safely keep the said daughter, unless she should be stolen from his custody.

Indorsed. A day is given him (the defendant) on the Octave of Michaelmas next, under a penalty of £40."11

Story

These cases, it is submitted, would seem to suggest that the Chancellor had jurisdiction in these matters for nearly three centuries before the case upon which Hargrave founds his argument was decided. disagrees with Hargrave1 and prefers to follow Fonblanque.13 Indeed, the courts generally in both England and the United States take the view that jurisdiction over the person and property of an infant must exist somewhere, and should exist somewhere, and that the King, as Parens Patriae, or the State, as the guardian of the interests of its citizens, should have this jurisdiction, and that, as courts of equity represent the sovereign in his personal capacity, the Chancellor should, and does, have juridiction in

(11) Select Cases in Chancery, case 121, page 118, Selden Society.

(12) Story, Equity Jurisprudence, page 665, note 3, (13th Ed.).

(13) 2 Fonbl. Eq. B. 2, pt. 2, ch. 2, Par. 1, note (a).

such matters. The decided cases are unanimous in this regard, as can be seen by the following citations.

In Cary v. Bertie,1 decided in 1696, the Court said, semble: "In this court there are several things which belong to the King as Parens Patriae, and fell under the care and direction of the court, as Charters, Infants, Idiots, Lunatics, etc. Upon the dissolution of the Court of Wards, these matters came back to the Chancery, where the interests of the infant were so regarded and taken care of that no decree shall be made

against an infant without having a day given him to show cause after he comes of age."

In the case of Duke of Beaufort v. Berty, 15 decided in 1721, the question was whether the Chancellor could interfere with the desires of a guardian appointed by a will, and it was held that he could. Lord Macclesfield, Chancellor, said:

"This court would and had interfered even in the case of a father, as where the child had an estate and the father, who was insolvent and of an ill character, would take the profits, there the court has appointed a receiver as was done in Kiffen v. Kiffen."

15a.

The following year, 1722, the famous case of Eyre v. Countess of Shaftesbury16 was decided, in which the Court said:

"This court may upon petition only without any bill or decree make an order to determine the right of guardianship in regard the care of all infants is lodged in the King as Parens Patriae, and by the King this care is delegated to his court of chancery.

"In F. N. B. 232, the King is bound of common right and by the laws to defend his subjects, their goods and chattels, lands and tenements, and by the law of this realm every loyal subject is taken to be within the king's protection for which reason it is that idiots and lunatics, who are uncapable to take care of themselves are provided for by the King as Parens Patriae, and there is some reason to extend this care to infants."

(14) 2 Vernon 342, 343. (15)

1 P. Will. 704.

(15a) I was unable to find the original report of this case, of Kiffen v. Kiffen.

(16) 2 P. Will. 103.

I have dealt with this historical matter in so summary a fashion because I am not unmindful of the "pitfalls of antiquarianism" and because, as Mr. Justice Holmes puts it, "our only interest in the past is for the light it throws upon the present. I look forward to a time when the part played by history in the explanation of dogma shall be very small, and instead of ingenious research we shall spend our energy on a study of the ends sought to be attained and the reasons for desiring them."20 Mr. Justice Holmes is supported in his viewpoint by Dean Pound when the latter says:

"Perhaps the most significant advance in the modern science of law is the change from the analytical to the functional attitude. For the jurist of today, the world over, seeks to discover and to ponder the actual social effects of legal institutions and legal doctrines. He views them as instruments of social engineering. He seeks to

study their social operation and the effects. He regards law and the legal ordering of society as things which may be improved by conscious human effort. He holds it his duty to discover the best means of furthering and directing that effort."21

Even the most cursory examination of the cases dealing with the subject of the awarding of the custody of children at once. makes it evident that the Chancellor, while insisting that he has jurisdiction by virtue of his office in this matter, is animated by a desire to protect the helpless infant. All things are finally decided by reference to the needs of the child. Not that the other individual, public and social interests are ignored, but that they yield to the welfare of the child. The activities of the Courts of Equity, in this sphere of the law, exemplify to a striking degree the ideas of Dean Pound, when he says: “Let us think of the legal ordering of society as a great task, or rather as a great series of tasks, of social engineering. For the problem of law and government is not one of abstract harmonizing of human wills; it is one of concrete securing or realizing of human interests.

The problem becomes one of securing as many interests as we may with as little sacrifice as possible of other interests. The Chancellors balance22a the in

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(21) "The Administrative Application of Legal Standards;" An Address presented at a meeting of the Section of Public Utility Law of the American Bar Association, Boston, Mass., Sept. 2 1919, page 5.

(22) Ibid, page 4. (22a)

Cases in which the balancing of interest is shown are as follows:

(a) Interests of the Father against the interest of the mother. In re Besant, 11 Chan. Div. 508; Commonwealth v. Briggs, 16 Pick. (Mass.) 203; Rowe v. Rowe, 28 Mich. 353; Ex parte Schoptrine, 85 S. 494; Griffin v. Griffin, 187 P. 598; Draper v. Draper, 68 Ill. 17; Cowles v. Cowles, 3 Gilm. (Ill.) 435; Commonwealth v. Addicks, 5 Binn. (Pa.) 520; Adams v. Adams, 1 Duv. (Ky.) 167; Hewitt v. Long, 76 Ill. 399.

(b) Interests of the father against the interests of a stranger Washaw v. Gimble, 7 S. W. 389; Shaw v. Natchwey, 43 Iowa 653; State v. Richardson, 40 N. H. 272. State v. Barrett, 45 N. H. 15; In re Goodenough, 19 Wis. 274; Sheers v. Stein, 43 N. W. 728; Henson v. Walts, 40 Ind. 170; McDowles Case, 8 Johns. Ch. (N. Y.) 328; Hernandez v. Thomas, 39 S. 641.

(c) Interests of the father against the interests of next of kin. Weir v. Morley, 99 Mo.

terests involved one against the others and through this balancing reach their conclusions as to which of contending claimants for the custody of an infant will the better be able to carry out the purpose of the State that the weak and the helpless are to be protected and cared for. It is the purpose of the rest of this article to discuss three problems which arise in the Law governing the custody of an infant; (1) What are the interests involved in the award of the custody of an infant; (2) To what extent have these interests actually come up for balancing in the courts; (3) To what

484; Colston v. Morris, Jac. 257; Heineman's Appeal, 42 Am. R. 532; Schroeder v. Filbert, 60 N. W. 89; Merritt v. Swimly, 82 Va. 433; People v. Mercein, 26 Wend. 64; United States v. Green, Fed. C. 15,256; Gardenhire v. Hinds, 1 Head. (Tenn.) 402; Latham v. Ellis, 20 S. E. 1012; In re Toulmin, R. M. Chartt. (Ga.) 489; Rust V. VanVacter, 9 W. Va. 600; Green v. Campbell, 14 S. E. 212. Proctor v. Rhodes, 4 Ky. L. R. 453; State v. Bratton, 15 Am. L. Reg. n. s. 359; Verser v. Ford, 37 Ark. 27; Burke v. Crutcher, 4 Ky. L. R. 251; Sturdevant v. State, 19 N. W. 617; Ex parte Murphy, 75 Ala, 409.

(d) Interests of the father against the interests of an institution. Wadleigh v. Newhall, 136 F. 941; Brooke v. Logan. 13 N. E. 669; In re Knowack, 53 N. E. 676; McDonald v. Short, 125 N. E. 451; Dumain v. Gwynne, 10 Allen (Mass.) 270.

(e) Interests of the father against the interests of a guardian. State v. Libbey, 44 N. H. 321; Bryan v. Lyon, 3 N. E. 880; Schammell v. Schammell, 38 P. 729.

(f) Interests of a mother against the interests of a stranger. ( Reg. v. Gyngall (1893) 2 Q. B. 232; McDaniel v. Youngblood. '77 (Ala.) So. 674; Curtis v. Curtis, 5 Gray (Mass.) 535; Bentley v. Terry, 59 Ga. 555.

(g) Interests of the mother against the interests of a next of kin. Reynolds v. Teynham, 9 Mod. R. 40; In re Clarke, 21 Ch. Div. 817; Bonnett v. Bonnett, 16 N. W. 91; Hoxie v. Potter, 16 R. I. 374, 17 Atl. 129.

(h) Interests of the mother against the interests of an institution. Lovell v. House of Good Shepard, 37 P. 660.

(i) Interests of the mother against the interests of a guardian. Wright v. Neyler, 5 Medd. 4.77. Roache v. Garvin, 1 Dick. R. 88, 21 Eng. Reprint, 201; Cooke v. Bybee, 24 Tex. 278.

(j) Interests of the parent against the interests of the husband of the infant, Gibbs v. Brown, 68 Ga. 803. (

(k) Interests of a guardian against the interests of the next of kin. In re Smith, 13 Ill. 139; In re Heather Children, 15 N. W. 487; Woodruff v. Conley, 50' Ala. 304; Marshall v. Reams, 14 S. 95.

extent are these interests secured by the existing state of the law.

Interests Involved in Awarding the Custody of an infant.23-"Strictly the concern of the law is with social interests," Dean Pound, "since it is the social interest in securing the individual interest that must determine the law to secure it. But using interest to mean a claim which a human being or group of human beings. may make, it is convenient to speak of individual interests, public interests—that is, interests of the state as a juristic personand social interests—that is, interests of the community at large. This is the order in which they have been recognized in the development of juristic thought."2 Elsewhere Dean Pound gave a more detailed scheme of the interests to be secured by law,25 but using the above general division as a foundation for our discussion, we shall see that all three types, in many and varying forms, are involved and need to be considered by the courts when dealing with matters effecting the custody of a child.

The individual interests of the infant, with which the law of custody is concerned, are interests of personality. It is, of course, obvious that the physical existence of the child must be protected and conserved. He must be properly clothed, fed and housed. The treatment which he receives must not be cruel or abusive. Should the custodian violate these primary principles he will be answerable for the violation and have the custody of the child removed from him;

23. Cf. Roscoe Pound; Interests of Personality, 28 Harvard L. Rev. 343, 445. Individual Interests in the Domestic Relations, 14 Mich. Law Rev. 177. The Need of a Sociological Jurisprudence, The Green Bag for October, 1907; The Scope and Purpose of Sociological Jurisprudence, 24 Harvard Law Rev. 591, 25 Harvard L. Rev. 140, 489; The End of Law as Developed in Juristic Thought, 27 Harvard L. Rev. 605; 30 Harvard L. Rev. 201; Outlines of Lectures on Jurisprudence, 2nd Ed., page 56, seq.; Outline of a Course on the History and System of the Common Law, page 3, et seq.

(24) Interests of Personality, 28 Harvard L Rev. 344.

(25) Outline of a Course on the History and System of the Common Law, page 3.