Baker v. Winfrey , 54 Ky. 499 ( 1854 )

Chief Justice Marshall

delivered the opinion of the Court—

These five cases are brought by appeals from the proceedings of the County Court in binding out the appellants, free persons of color, of whom some are the children of Eliza Baker and others the children of Mary Baker, free women of color. It appears that a summons issued against each of the mothers to appear at the October term of the County Court, and show cause why her children should not be bound out, &c. That on their appearance, the county attorney moved the court to bind out the children, ten in number, to five persons whom he named; to which the mothers, by their counsel, objected, claiming the right to choose the masters to whom their children should be bound, andj naming four persons whom they selected under that right. But the court, upon hearing argument, and without any evidence or, (so far as appears,) any suggestion that the persons proposed by the mothers were not competent and suitable, overruled the objection, and thus denied the right claimed; and without any evidence of the condition or character of the mothers, or of their ability or inability to support the children, or their disposition to bring them up in moral courses, proceeded to bind out to the persons named by the county attorney each of the ten children, the males to learn farming, and the females to learn house-keeping. It appears from the orders and the indentures that several of the children were between ten and fourteen years of age, one three years old, another five, and the others between five and ten. It is somewhat singular that in two or three months after these proceedings most of the persons to whom the children were bound came again into court, and on their several motions, and as the order says, for good cause shown, they were severally released from the indentures, and the children were immediately bound again to other persons. In most of these instances the mothers, by their attorney, again objected.

Each of the ten children prosecutes an appeal for the reversal of these proceedings, all of which appear in the same record, and are in fact precisely similar, except that as to some of them, there was no change of masters. Five of the cases seem not to have been prepared for hearing by service of the summons on the appellees, the appeal having been taken out of court and after the term, and five alone, named at the head of this opinion, have been submitted for our decision.

The radical question presented by the record, is whether the mothers have a right to select the masters to whom their children are to be bound.

1. The 3d section of the 64th chapter' of the Revised Statutes recognizes the right of the mother to bind out her children, nnder the supervision of the County Court.— This embraces free mothers of color, as well as white women, where there is no legitimate father.

The 3d section of the 64th chapter of the Revised Statute, title master and apprentice, page 466, enacts that any orphan minor may be bound, &c., by his guardian, or if no guardian, by his mother, with the consent entered of record, of the County Court of the county where the minor resides. We think this section recognizes and secures a fight in the mother to bind out her child or children under the supervision of the County Court, provided merely to prevent the choice of an incompetent or unsuitable person to whom her children are to be bound. And although it may be inferred that the framers of this section had in contemplation white mothers and their children, the language is broad enough to embrace also free colored persons, and all cases in which there is no father by whom the right to dispose of the services of the children by hiring or by placing them under apprenticeship, may be exercised.

Such may be assumed to have been the fact in the cases now before us, in which, although there is no evidence that these children are orphans, there is no suggestion that their father or fathers are ascertainable in the manner required by the law, or that if living they have or can assert the legal rights belonging to that relation, whep its existence is recognized and sanctioned by the law. The fact that the mothers were summoned as the persons having the children in possession, precludes the supposition that they had husbands entitled to legal rights in that character. And if it be necessary, in order to secure to them the legal as well as the natural rights of mothers, that they should have had lawful husbands, by whose death their children have become orphans, these facts may be and should be presumed in favor of their natural right to the control and the services of their children, when in fact there is no father who can claim or exercise the legal right. But we do not suppose the statute intended to exclude from the right recognized in the 3d section, the mother of an illegitimate child, who, although by the common law he was regarded as films nullius, is by our law regarded at least as the child of his mother, and therefore occupies, with respect to his mother, substantially the same position as if he were an orphan by the death of his father. The natural right of such a mother to the society and services of her child, grows out of the fact that he is her own child, the produce of her ow body, nurtured from her own bosom, and protected and provided for in tender infancy by her care and affection. Our law; does not repudiate or ignore the rights even of such a mother. It does not deprive her of the society, and services, and control of her child, unless in view of the welfare of the child itself, or of the welfare and safety of society, it be necessary to do so. And even when, from her poverty or incapacity, this necessity exists, it does not intend to deprive her of the poor privilege of choosing a proper master to whom her child shall render service.

2. The County Court, binding out orphans of a free woman of color, should permit the mother of such orphan to nominate the person to whom the orphan is to be bound, and bind to such person, unless there be valid reasons against it. 3. There should exist some ground of necessity for binding out orphan children of color, such as inability or neglect to bring them up in comfort and moral habits. The mother is entitled to the services of her children, and should not be deprived of their labor and assistance without good reason.

W e are of opinion, therefore, that if this were a proper case for binding out these children, these mothers respectively had, by the 3d section of the statute referred to, the right, under the supervision of the County Court, and subject to its judgment as to the suitableness of the choice, to choose or select the persons to whom their children should be bound, and that the Court, unless those persons were incompetent or unsuitable, was bound to consent of record that the children be bound to such persons; and might, of course, have had the indentures executed in a formal manner, and for such period, not extending beyond the full age of the child, as might be agreed on between the mother and the proposed master. The County Court therefore erred in overruling the objection of the mother to the persons proposed by the county attorney as the masters to whom the children were to be bound, and in disallowing their right to choose the masters, and in proceeding to bind out the children severally to the different persons objected to by the mothers.

As these proceedings were erroneous and illegal, and therefore presumably injurious to the children who had a right to the care and protection of their mothers, we think they are severally entitled to rely upon the illegality referred to as a ground of reversing the orders operating upon them respectively. And as the illegality of the first orders and indentures rendered illegal the possession of the children by their supposed masters, so far as any possession was taken under said orders, the subsequent appearance of the master in court, when he was released and his supposed apprentice was, with his consent, bound to another, neither dispensed, nor was a compliance with the notice required by the statute, to be served upon the person in possession of the children intended to be bound out. There is therefore no necessity for discriminating between the cases in which the master was changed and new indentures taken, and those in which the original order and indentures remain unchanged. The proceedings in both cases were illegal and erroneous; and the illegality is not cured or waived by the fact that the mothers objected to the second binding, any more than by their obj ections to the first.

As, for the reasons above stated, the orders and indentures in the five cases now before us must be reversed and annulled, it is not necessary to notice in detail all the errors which have been relied on. But we remark that as the number of children to be bound out to particular persons, and the periods for which they are to serve, are circumstances well calculated to excite a desire, as matter of profit, to have the rights secured to a master of an apprentice, the same circumstances should also excite the vigilance and precaution of the court in exercising the power entrusted to it, lest under the specious form of charity or of a public duty, mothers whose condition requires the services of their children who are capable of labor, should be deprived of them without necessity, and lest children who, from their tender age, require the care and nurture of their mothers, and are the objects of their affection and solicitude, should be taken from them, when it is not necessary that this should be done as a means of providing for their sustenance. The mere fact that these are colored persons does not put them out of the protection of the law, nor subject them to be dealt with or disposed of with a view merely to the interest of individuals. There must be some ground of necessity, in view of the requirements of the law, to authorize the binding out of these children. As to such as are able to do service and to earn hires, their mothers are primarily entitled to the benefits, and there is no propriety in taking them from her against her consent, unless she is bringing them up in idle and immoral habits, or fails to keep them in reasonable comfort. She is not necessarily poor if she has able-bodied sons whose services she can command. And as to the children who are incapable of service, and require a mother’s care, they should not be taken against her consent, unless their comfortable subsistence require it. No such necessity is shown to have existed with respect to either class of children. We only say further, that although the statutes do not in terms require it, the indentures ought, in all propriety, to contain a covenant on the part of the master to teach his apprentice the art or business for the purpose of learning which he is bound to him.

4. The indenture of apprenticeship should contain a covenant on the part of the master to teach the apprentice the art or business designated by the order of the County Court.

For the errors before noticed, the several orders for binding out the appellants are reversed and the proceedings under them annulled, and the cases are remanded for proceedings de novo, in conformity with this opinion, if it be deemed necessary to institute such proceedings.