Opinion
December Term, 1858.
HABEAS CORPUS.
A free infant of color, rightfully bound as an apprentice, remains subject to the jurisdiction of the County Court, wherein he was bound, until discharged in the mode provided, sec. 5, ch. 5, Revised Code.
A HABEAS CORPUS was returned before his Honor, Chief Justice PEARSON, who invited the other Judges to assist at the argument of the matter, and accordingly the case was heard in the room of the Supreme Court, by all the Judges, on 8th of January, 1859, and was as follows:
Alfred Prue, a free boy of color, an inhabitant of Franklin county, was bound by the County Court of that county, as an apprentice, to one Fuller, a resident of that county, who removed from the State in 1849, leaving the apprentice in charge of the defendant, Hight, also a citizen of Franklin county. Hight placed the apprentice with a son-in-law, who lived in Granville county, where, by the direction of Hight, he stayed as a servant until the close of the year 1857, when he deserted his home, and went at large, in Granville county, until March, 1858; being still a minor, he was brought to the County Court of Franklin, and by that Court bound to Hight, who took him in charge.
The petitioner, the apprentice aforesaid, deeming himself a an inhabitant of Granville county when he was bound to the defendant, Hight, and that the County Court of Franklin had not jurisdiction of the subject-matter, sued a writ of habeas corpus, and prayed to be discharged from the custody of the defendant.
The matter was argued by Badger, with whom was Edwards, for the petitioner, and B. F. Moore and Miller, for the defendant. Upon the argument of the case, the Judges unanimously agreed, that the petitioner had been lawfully bound to the defendant by the County Court of Franklin. At the request of the Chief Justice, Judge Ruffin drew up an opinion, which was concurred in by Judge Battle, which is contained in the following letter addressed to the Chief Justice:
"RALEIGH, January 11th, 1859.
"Dear Sir:
"Agreeably to your request, I have considered the case of habeas corpus, which was before you on Saturday, and my conclusion is, that the applicant cannot be discharged.
The gentlemen of the bar put the case, I think, on its true point, namely, whether the County Court of Franklin had jurisdiction, so as to render the binding to the present master valid, and I am of opinion that Court had jurisdiction. It is unnecessary to embarrass oneself, in considering this question, by adverting to the law of settlement as to infants generally, or even as to those of color generally; because, as I conceive, the statutes have created a clear rule in respect to such an infant of color as this applicant, namely, one who was once rightfully bound by the court of a particular county. It is admitted that the original residence and settlement of this boy was in Franklin, and at the time he was first bound. That seems to me to fix the apprentice of color to that county, during his minority, except in the special case provided for, of a removal of the master and apprentice to another county by the consent of Franklin Court, and the assent thereto by the wardens and court of the new county, evidenced by a new binding in the latter county, to the same master. The act requires the person, to whom a free negro is bound, to give bond not to remove the apprentice out of the county, and for the production of him at the expiration of the term, and whenever the court may require in the meanwhile; with a proviso for a surrender to the court by the master and acceptance by the court, and the further proviso, just mentioned of a removal to another county. If the bond were one voluntarily given by the master, it might be argued that a removal of the apprentice would give an action on the bond as the only remedy. But this bond is prescribed by the Legislature upon a principle of policy, and the provision of the statute, which requires it, is to be construed as establishing that policy and a rule of law to enforce it, just as much as if the statute declared and enacted them expressly. To what end, then, is the apprentice to be produced, when required by the court which bound him, but that he is to be subject to the control and disposition of that court. If so, then the master may not only be sued, for not producing him, when ordered, but the court may assert its control and power of disposition over the apprentice, in any way, necessary to render it effectual, by bringing in his body, whether found in that county or any other. That is not only a power of the binding court, but it is a duty which the wardens and court of a county, to which the master has removed, (which can only be a county adjoining the first,) may enforce on the first county by a refusal to bind anew, and a removal of the apprentice to his former settlement, according to the 13th section of 86 ch. Revised Code. Such a construction of the acts is the more required, since it is plain that the enactments proceed upon two ideas affecting public policy — the one, the peculiar exposure of this part of our population to oppression and wrong, in being carried to remote parts and made the subject of traffic, and the other, that they may be subjected, while amongst us, to the supervision of a strict police, so as to restrain their propensity to be idle and mischievous; and that can only be effected by permanently vesting the whole control of the free infant of color in the court which first legally takes charge of him. The power is, therefore, given for the twofold purpose of protection to the child of color from much wrong — even, possibly, of being enslaved in remote places, and in the wholesome exercise of a local police; and the jurisdiction once attached, it cannot be ousted by the unlawful act of the master or apprentice.
"I do not consider it material to enquire, whether the boy might properly be bound a second time, before cancelling the first indentures after notice to the first master. It would seem, indeed, after so long an abandonment of an apprentice by a master, who had removed from the State, the court must, of necessity, reassume the charge and care of the infant. But, at all events, that is a question between the two masters, and cannot found a reason why the boy should not be the apprentice of either, so as to entitle him to the absolute discharge, which is claimed for him.
"He ought, I think, to be remanded to the custody of the defendant."
Most respectfully, your ob't. servant,
THOMAS RUFFIN.
I concur in the above opinion.
WM. H. BATTLE.
I concur in the conclusion of Judge Ruffin, for the reasons set out in the opinion, which he was kind enough to draw up at my request. It is considered by me, that the petitioner be remanded and put in possession of Herbert H. Hight, and that the said Hight recover of Jesse Person, the next friend of the petitioner, his costs to be taxed by the clerk of the Supreme Court, at Raleigh. Let execution issue therefor.
R. M. PEARSON, C. J.