5 Binn. 423 | Pa. | 1813
John Butcher, who is now about the age of sixteen years, was bound apprentice by the managers of of the almshouse and house of employment of the city and county of Philadelphia, to Philip Le Feme, to learn the art and mystery of a cordwainer. On the 17th of August last he was enlisted as a soldier in the army of the United States, the consent of his master in writing having been previously obtained. These facts are set forth in the return to the habeas corpus, and are not disputed.
By the act of congress of the 11th of January 1812, it is provided that no person under the age of twenty-one years shall be enlisted or held in the service of the United States, “ without the consent in writing of his parent, guardian, or “ master first had and obtained, if any he have,” The managers of the almshouse derive their authority from an act of assembly of Pennsylvania. The indenture contains an engagement on the part of the master, not to assign it without the consent of the managers. I do not consider the master’s consent to the boy’s going into the army, as an assignment of the indenture. Still it would be unwarrantable unless justified by the act of congress. In the first place then this act is to be considered. There is no affirmative direction as to the age of the persons to be enlisted. But from the proviso which I have mentioned, there can be no doubt of an intention to authorise the enlistment of minors, with the consent of their parents, masters or guardians. If the minor has a parent living, and is not bound to a master, the consent of the parent is necessary; if the parent is dead, and there is a guardian, his consent must be obtained. But whether there be a parent or guardian, if the minor is bound to a master, the consent of the master alone is sufficient. Upon the first reading of the beginning of the eleventh section of the act, I had doubts
By the eighth section of article first of the constitution of the United States,u congress have power to declare “war, and to raise and support armies.” General laws must be enacted to effect these purposes, which may in some instances' break in upon the municipal provisions of individual states. This part of the act of congress of the 11th of January 1812, on which the question arises, appears bottomed on the principles of the common law, which considers the relation of master and apprentice as not assignable, and does not seem to me to impair any law of this state.
When the public safety shall be supposed to require the
The president of the United States is authorised to raise a certain number of regiments for the public defence, and lifers and drummers are necessary therein. It is well known that youths under the age of eighteen years, acquire proficiency in these capacities, with much greater facility than persons more advanced in life. Where such youths possess sufficient discretion to make choice of a military life, with the consent of their parents, guardiang or master's, if any such they have, who are entitled to their services during their nonage, I see no reason why they should not be bound by their contract of enlistment. They owe duties to their country as well as more adult persons, and we are bound to presume, that such contracts will not be detrimental to them.
I think upon the whole, that John Butcher should be remanded to the custody of captain Barker his officer.
By the constitution of the United States “ the congress shall have power to raise and support armies.” I think the raising and supporting them an object to be favoured; a military establishment to the extern of the public exigences. That military establishment, which we have had
A person of age indenturing himself on becoming of age, exists a contracting party, and the contract can be dissolved by himself and that of the master. But it is- the guardian who in the case of the minor contracts. The instruction of the minor and his services to the master, are but the subject of’ the compact. The managers of the poor are the guardians in this case, and the consent of these has not been given, nor could be given to any apprenticeship, but that specified and contemplated under a fair construction of their powers. Would the consent of-the minor and that of the master have sufficed, when there was a parent to be consulted? It is the guardian here in place of the parent, whose
Petitioner remanded.