A QUESTION OF DISPUTED GUARDIANSHIP. By Adolph Moses. A PECULIAR case came before Lord Chancellor Hardwicke, in March, 1737, as reported in 2 Swanston's Reports, 5 33, 1 which proves the effect of the State Church upon the Court of Chancery. Mrs. Mellish was the daughter of Mr. Da Costa, and having married Mr. Villareal, had by him two children, respectively eight and nine years old. Both parties were Jews. Upon the death of Villareal, a bill was brought in the Chancery Court, touching the children's estate, and the fortune of the two children appeared to be 27,000 pounds each. In the course of time a marriage treaty was contracted between the widow and one Mr. Mendez. Thereupon Mr. Da Costa, her father, prevailed on his daughter to assign over to him the guardianship of the two chil dren, with the agreement that if they died during their minority, he should have a moiety of their fortunes. Afterwards it came to pass that the treaty of marriage was broken off, and the widow married a Mr. Mellish, without her father's consent, and became a Christian. Da Costa, having possession of the children, refused the mother permission to visit them without a French woman being with them. This led to a suit in chancery, wherein Mellish and his wife preferred a petition to restore to her the guardianship of the children; that she might have liberty. to see them without intervention, alone, with the privilege to the children to visit her. Another petition was presented on behalf of the two children, praying that the court would give proper directions for their educa tion, and this petition met with final success, as will further appear. 1 Also reported under title of Da Costa Villa Real v. Mellish, 1 West's Cases Temp. Hardwicke, 1736-1 739.
Mrs. Catherine Mellish presented her affi davit to the effect that she was baptized on the 28th of March, 1735; that her father, Mr. Da Costa, 'Was a Jew. Counsel for Mrs. Mellish insisted that the assignment of the guardianship by the mother, was invalid; that it was for the benefit of the infants and could not be transferred, nor could it be renounced. It was also argued that the children had the right to the mother's care. As to the religion of the infants, counsel argued that, although that should be the choice of every person, yet, as the children cannot choose, and as the method of educa tion would naturally affect their religious principles, care should be taken of their edu cation; that, considering the temporal ad vantages only of the children, their education in Judaism would affect their fortunes, and the consequence of the children continuing with the grandfather, who would educate them in a different religion from the parent, would lay a foundation for differences in the family which is too common, by reason of the difference in religious principles, and especially so in Jewish families. Counsel for the children argued that the son under the English law, would be under an incapacity as a Jew, could enjoy no offices, and the daughter, as a Jewess, might be married improvidently. The Attorney General appeared for Mr. Da Costa, stating that his client had had the care of the children under the deed of agree ment, since 1734, without any complaint by them, or by the mother, prior to the filing of the petition. He conceded that the guard ianship could not be assigned in law, but the mother might agree that another proper per
