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The examination I have given this question, leaves no doubt, in my mind, that Beswicke & Son, being alien enemies, commorant in the enemy country, cannot be heard in this court, and that the claim interposed by William Falconer in their behalf, must be rejected.

For the Libellants D. S. Jones, Griffin, Emmet and Wells. For the Respondents-Colden, Slosson and Irving.

PENNSYLVANIA SUPREME COURT.

Commonwealth ex rel. Stephenson, a black boy, vs. Samuel Van Lear. Habeas Corpus.

[An assignment of the indenture of an apprentice, is not valid without the assent of his parent, or his guardian, if there be no parent. An indenture of apprenticeship, executed before an alderman of the city of Philadelphia, is valid. Acts of Assembly of Sept. 1790, and April, 1799, expounded.]

TILGHMAN, C. J. Augustine Stephenson, a black boy of the age of about fourteen years, was bound apprentice with the assent of his father, to Francis Duffee of the city of Philadelphia, and his assigns, for seven years. The indenture was executed by both father and son, before George Bartram, esquire, an Alderman of the city. In about twenty-five days after its date, it was assigned by Duffee, without the knowledge of the father, but with the assent of the boy, before the same alderman, to Samuel Van Lear of Chester county. By the act of eleventh April 1799 (sec. 2d.) it is enacted, that "when any master or mistress shall assign over, his or her apprentice, to any person of the same trade or calling mentioned in the indenture, the said assignment shall be legal, provided the terms of the indenture extended to assigns, and provided the apprentice or his or her parent or parents, guardian or guardians, shall give his, her or their consent to such assignment before some justice of the peace of the county where the master or mistress shall live." The question in this case is, whether an assignment without the consent of the father be legal. It is contended on the part of the master, that the law is complied with, if the consent either of the apprentice or his guardian is given.

The words will bear this meaning, but they will also bear another more convenient, and more analogous to the general principles of the law of parent and child, that is to say, with the consent of the apprentice (where he has no parent or guardian) or (where he has a parent or guardian) with the consent of such parent or guardian. This preserves to the infant, the protection

of his parent or guardian, and places the assignment, so far as concerns parents and guardians, on the same footing with the original binding-for there can be no valid indenture without their consent, except in the case of paupers. It is of great im portance that the authority of the parent should be preserved as far as is consistent with a reasonable construction of this lawbecause in direct violation of the intent of an indenture of ap prenticeship, it has lately become a lucrative business, to have a boy bound, for the purpose of selling him-and if his consent. alone is sufficient, it may be obtained by a trifling bribe, or perhaps, if he be of tender years, by intimidation. When it is said that a thing may be done with the consent of one person, or another, it does not always follow, that the consent of either is sufficient-it is sometimes to be understood, according to the subject matter, that in one case the consent of one shall be had, and in another case the consent of another, reddendo singula sin gulis.

We have an instance of this in the act of 29th September, 1790, on the same subject of apprentices; an infant bound apprentice with the assent of his parent, guardian or next friend, or with the assent of the overseers of the poor, and approbation of any two justices, &c. shall be as valid as if the infant had been of full age, at the time of making the indenture. Now it cannot be understood, that by virtue of this law, every infant may be bound apprentice by the overseers of the poor, and two justices, although the words will bear that meaning-but the true meaning is, that the assent of the parent or guardian must be had, except in cases where the infant becomes a charge on the county. The assent of the one, or the other, is necessary, according to the nature of the case-so with regard to the law in question, where the apprentice has no parent or guardian (a very common case) his own consent shall be sufficient-but where he has a parent or guardian, under whose protection the law has placed him, on account of his own imbecility, the consent of that parent or guardian shall be sufficient. The law would have been better if it had been and instead of or, and very probably it was so intended—but I dare not take the liberty of altering what is written. The construction which I adopt, comes as near to what I suppose to have been the intent as is consistent with the words.

It was argued that this indenture was void, because not exe

cuted before a justice but an alderman. But considering that in most respects aldermen have the power of justices, and that it has been the uniform practice to bind apprentices in the city before aldermen, I should not think the court justified in taking the boy from his master, if there was no other defect than this in the indenture. I consider the indenture as good, but the assignment bad, for want of the consent of the father. The boy must therefore be discharged from Mr. Van Lear, and delivered to his first master Duffee.

YEATES, J. The traffic in human flesh I abominate from the bottom of my heart. But it certainly is of importance to society that minors should be instructed in some occupation, whereby they may afterwards earn an honest livelihood. It is admitted here, that the original indenture of apprenticeship (for of servitude it is not, in which case the boy must immediately have been discharged, because a father cannot consent to sell his child) was legal, the binding having taken place with the assent of his parent, before an alderman of the city, to Francis Duffee and his Assigns, who covenanted to learn him the occupation of a waiter. But it has been objected, that the assignment is invali in this instance, not being made before some justice of the peace for the county where the master lived, according to the provisions of the 2d sect. of the act of 11th April, 1799. The answer is, that by the act of incorporation of the city, the aldermen thereof have the same powers and jurisdictions within the city, as justices of the peace have in the proper county.

As well may it be objected, that under the original act of 29th September, 1770, an alderman has no jurisdiction in cases of dispute between the master and servant; for I know no such legal character as a justice of the peace of the city—or that an assignment of a servant before him, under the 2d sect. of the old law of 1700, would be subjected to a penalty of 10%. because not made before a justice of the peace of the county, according to the expression of that act. The uniform practice has certainly been otherwise; and it would be highly inconvenient that persons living within the city, should be obliged to go to a justice of the peace of the county to transact such business before him.

The assignment moreover has been questioned, because the father of the apprentice did not consent thereto. The words of the act of April, 1799, are "the assignment of an apprentice

shall be legal, provided the terms of the indenture extended to assigns, and provided the apprentice, or his or her parent or parents, or guardian or guardians, shall give his her or their consent to such assignment." It is said here, that or must be construed and, the consent of the parent being necessary. But this appears to me to be the assumption of an unwarrantable liberty over the expressions of the legislature, by changing its provisions. Such a deviation could only be warranted in a clear case to effectuate the plain meaning of the law. What, if the apprentice consents, and the father refuses his consent, must be done with the former? Must he not be put into a way of learning his art, mystery, occupation or labour, whereby he may earn a liv ing? I will not assert, that no inconveniences can arise from a literal, grammatical adherence to the words; but I have nothing to do with the policy of the legislature where their expressions are unambiguous. Ita lex scripta est. But may there not be assigned a solid ground for discrimination between the original indenture and the assignment of an apprentice? A father or guardian may be the best judges of the fitness of the minor for a particular trade or occupation, consulting his wishes at the same time; but when once bound, it is of great moment that a new master should not be obtruded on him against his own consent. Whatever policy dictated the provision, I feel myself bound by it—and therefore am of opinion, that the boy should be remand. ed to the custody of Mr. Vanlear, who claims his services, with his full consent, under the assignment.

BRACKENRIDGE, J. The binding an apprentice carries with it the idea of binding to learn some trade or mystery. Household service in a city, town or village, may perhaps be said to be a sort of trade or mystery, which may require an apprenticeship; for it will require time and instruction to make an expert waiter; and one so instructed will receive wages oftentimes above that of an untaught servant. I take it therefore not to be in the idea of the parent in this case that his child should be assigned to one out of the city, with whom he might not have the like instruction of the like advantage; but more especially the parent cannot be supposed to have contemplated the assigning to a person out of the city, as he must thereby lose the society and superintendance of his child-which he might still have to some extent, while he remained in the city; at least the satisfaction of

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