Shorner's Case

22 F. Cas. 8

• Court: District Court, D. Pennsylvania
• Decided: October 15, 1812
• Status: Published

Opinion

PETERS. District Judge.

I have resolved in my mind the arguments of the counsel on both sides of the question submitted to my decision, as stated in tbe foregoing case. It does not seem to me to lie necessary to discuss the common law points adduced to show that the mother is not in such degree of consanguinity or relationship to, or vested by the common law with the control over the son in his nonage and after the period of nurture, as to render her consent necessary to the binding force of engagements, or to exercise authority over his actions. Those points are grounded very much- on the principles of feudal institutions, which, favoring and protecting the claims of primogeniture, distinguish between the rights and duties even of a father in regard to his eldest son and apparent heir, and of that son towards him; and these as they respect the younger children. The greatest part of those principles are inapplicable in this country, though it is our habit to regard them; and are, in many instances, opposed to the principles both of reason and nature, as the latter are felt and practiced upon here. Women, in ages in this regard barbarous, were treated as mere breeders and nurses, held in slavish subjection, and denied the proper and necessary authority over their offspring.

In the act of congress relative to naval enlistments the words are dissimilar on that subject from those in the act relative to similar engagements in the land service. The words which have been the subject of discussion, are: “Provided always, that no person under the age of twenty-one years shall be enlisted by any officer 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.” Now, whatever rights or disabilities an infant may or may not have or be subjected to, or whatever may be the relationship or power of a mother at common or civil law, I cannot conceive that she is not described in this act of congress so distinctly by the term “parent” that it would be a violation ■of all rational construction to say that she must be excluded from this statutory regulation. If the inconvenience to the service is found so important as it had been stated to be by the counsel who advocates the legality of the enlistment, let congress model the regulations in future so as to exclude the mother by declaring that by the term “parent.” only the father is meant to have authority in any case, where there is not either guardian or master: and of course it will then follow that when a youth has neither father, guardian. or master, that he may, as in this case, have a “parent” remaining. — that is, his mother. — and yet he must be left to his own will, without control over any of his actions, without a friendly monitress to check his indiscretions? or cherish and invite his return to prudence and safety.

Whether the enlistment in this ease be or not discreet and proper, I will not undertake to determine. But it appears to me that, the ■only remaining “parent” of this young man, who has neither “guardian” nor “master,” has a right, by the feelings and affections of a mother, to pass an opinion and to use a discretion on the subject. Whether she will or will not exercise this right wisely must be left to herself, and those who will advise her for the best. General principles cannot be warped to suit a particular case. It is a •cold and cheerless submission to and unnecessary extension of the rude and rigorous principles of black letter jurisprudence to say that because the mother is not entitled to, and cannot sue for amends for loss of service of the son (yet by the law of Pennsylvania he is obliged to assist in her support), she may not interfere in what regards his welfare and happiness. If we take Lord Coke’s advice, and place ourselves in the situation of the legislators when they passed the proviso in question, I think we may safely conclude that few of them knew and none of them thought •of the learned lore which the books contain •on The subject of paternal guardianship and power over the son and his affairs, or maternal disabilities and exclusions from such concerns. No doubt, if the father were living, the mother would not be the “parent,” whose “consent in writing” would be required. But in this case, when he is dead, a “parent” is still left to satisfy the words of the law, “if any he have.”

In the light in which I view the law and case. I cannot but consider the enlistment as invalid.