Opinion
Argued October 18th, 1870
Decided October 25th, 1870
R.E. Andrews and Amasa J. Parker, for the appellant.
J.C. Newkirk, for the respondent.
The objection that the indenture could not be read in evidence, for want of a stamp, as prescribed by the United States internal revenue act, was not tenable. That act, so far as it prescribes a rule of evidence, is operative only in the federal courts, and has no application to the courts of a State. ( Carpenter v. Snelling, 97 Mass., 452.) It is not claimed that the instrument was void for the omission of the stamp.
The tender age of the infant at the time of entering into the apprenticeship, does not vitiate the indenture. The statute requiring her signature was complied with, and the capacity to bind himself or herself, with the consent of the proper guardian, is conferred upon every male infant, and every unmarried female infant under the age of eighteen years.
The disability of infancy is removed as to all infants, and the protection of the infant is cast upon the persons or officers whose consent is required by the act (2 R.S., 154), and the courts, whose duty it might be to release infants from apprenticeship, ill advised and injudicious, and which would be pernicious to their interests. At common law, the parent may bind his infant an apprentice, and the statute simply controls and limits this authority, by requiring the infant to be a party to the deed. (Matter of McDowles, 8 J.R., 328.) Notwithstanding the age of the infant, her execution of the articles was a valid compliance with the statute. The certificate of the justice of the peace, made necessary by the statute as one of the conditions upon which the mother can consent to the binding, is only required, when her power to act depends upon the abandonment and neglect to provide for his family by the father. (2 R.S., 154, § 2.)
The authority of the mother to act in such a case, was not first given by the Revised Statutes. Before that time, the mother could give the required consent, if the father was dead or was not in legal capacity to give such consent, and no certificate or preliminary evidence of such death or incapacity was required, neither was any memorial of such facts required in connection with the indentures. (1 R.L., 135, §§ 2 and 3.)
The legislature, upon the revision of the statutes, extended to the mother the guardianship of her children so as to authorize her to consent to the binding of them as clerks, apprentices or servants in the case of an abandonment or neglect to provide for his family by the father, and, either because such fact was not likely to be equally notorious and publicly known as the other facts, upon the existence of which the authority of the mother depended, or because there might be greater danger of a fraud upon the right of the father, or for some other or better reasons, satisfactory to the legislature, the certificate of a justice of the peace of the town to the fact was required. There was no intention to embarrass the mother in the exercise of the power which she had before then exercised, or limit its exercise by imposing new forms and requirements, and hence the provision was so framed that the requirement of the magisterial certificate should attach only to the last of the conditions precedent upon the authority conferred, to wit, "the abandonment by the father of his family, and neglect to provide for them."
The provision is in these words: "If he (the father) be dead, or be not in a legal capacity to give his consent, or if he shall have abandoned, and neglected to provide for his family and such fact be certified, etc."
The frame of the sentence clearly separates, and indicates the intention of the legislature to distinguish between the two clauses and restrict "such fact" in its application to the last antecedent. The court, therefore, erred in holding that the indentures were void, for the want of a certificate of the death of the father. It is true, that notwithstanding the validity of the indentures, it would have been competent for the Supreme Court, if sufficient cause had been shown, to take the custody of the infant from the defendant and commit her to the care and nurture of her mother and natural guardian. This might have been done by reason of the unfitness of the master to retain and have the training and education of the child, or other causes, showing that the interest of the infant required such transfer of custody; and had the decision of the court below been put upon such ground, it would have been for this court to say, to what extent it would review it, and sit in judgment upon this exercise of discretion. It would have been the subject of review, but it is not probable that it would have been very closely scrutinized or reversed except for manifest error. But the decision is not made to rest either at General or Special Term upon this ground. The judge, at Special Term, expressly says "that the child has been well taken care of by the person having her in charge," and that the evidence did not establish that there was any matter connected with the society to which the respondent was attached, which rendered it improper for her to remain there.
The judge, pronouncing the prevailing opinion at General Term, after, in substance, disposing of the case and holding that the indenture was void, and that the mother was not estopped from asserting her right to the custody of the child, was strongly inclined in favor of restoring the child to the mother, not because he believed its present guardian would not inculcate habits of industry, virtue and sobriety, but because of his belief that the welfare of individuals, of families and of society depend upon cherishing and preserving the family relation, and that the influence and tendency of the Shaker institutions was to alienate the affections of the child from its parents. But these views were not acquiesced, in so far as the record shows, by either of the other judges, and the affirmance of the order at Special Term was not based upon them. The most prominent among the doctrines and practices of the Shaker community, and which distinguish it from other communions and societies, are those of communism or a community of property among the members; there being no recognized individual or separate rights of property; and the celibacy and perpetual chastity of the individual members, together with an attempted and professed substitution of a general love and affection for all within the pale of the brotherhood, for the more limited and partial affections for relatives and kindred, with a suppression of all outward manifestations of partiality for kinsmen and friends.
These doctrines, based upon what are regarded by the mass of Christians as erroneous and fanatical views of the gospel, lie at the foundation of the order, and have been taught and practiced from its first existence. And yet the legislature and the courts have not thought that these peculiarities of faith and practice were so obnoxious and detrimental to individual well-being or the public good as to deprive the members of the community of the care, education and training of children legally committed to their care and custody by parents and guardians. The legislature has not forbidden the binding of infants to them, and courts have refused to recognize these peculiarities as good ground for taking from them the custody of infants bound to them under forms of law and with the consent of the proper authorities. In the matter of McDowles (8 J.R., 328), People v. Pillow (1 Sandf. R., 672). It is conceded that the temporal wants of the children are properly cared for, and that they are educated to "habits of industry, virtue and sobriety," and this would seem to be all that the State could demand. There is an entire absence in this case of any evidence of the fitness or even of the ability of the mother to care or provide for this infant. There is no evidence that she has the means for its support, and certainly none that there has been any change in her circumstances or the circumstances and prospects of the child since she united with the Shakers and gave to them her child, which calls for an interference by the court, in the interests of the child, to annul the indentures.
Upon the case now made, the order appealed from must be reversed and the habeas corpus dismissed.
All the judges concurring but PECKHAM, J., who, having been a member of the General Term below, did not sit.
Ordered accordingly.