United States v. Bainbridge

24 F. Cas. 946, 1 Mason C.C. 71, 1816 U.S. App. LEXIS 193

• Court: U.S. Circuit Court for the District of Massachusetts
• Decided: June 22, 1816
• Status: Published

Opinion

STORY, Circuit justice.

The first question is. whether the contract of enlistment, supposing it to have been made without the consent of the father, is valid or not. By the common law, tbe father has a right to the custody of his children during their infancy. In whatever principle this right is founded, whether it result from the very nature of parental duties, or from that authority, which devolves upon him. by reason of the guardianship by nature, or nurture, technically speaking. its existence cannot now be brought into controversy. Ex parte Hopkins, 3 P. Wms. 151; Co. Litt. 88. and Hargrave’s notes; Rex v. De Manneville, 5 East, 222; De Manneville v. De Manneville. 10 Ves. 52; 1 Bl. Comm. 452, 461. This right, however, is not unlimited; for whenever it is abused by improper conduct on the part of the parent, courts of law will restrain him in its exercise, and even take the custody permanently from him. Archer’s Case, 1 Ld. Raym. 673; Rex v. Smith, 2 Strange. 982; Rex v. Delaval, 3 Burrows. 1434; Com. v. Addicks, 5 Bin. 520. By the common law, also, a father is entitled to the benefit of his children’s labor, while they live with him, and are maintained by him; but this (as has been justly observed) is no more than he. is entitled to from his servants. 1 Bl. Comm. 453. It has also been asserted, that by the same law a father may bind his children as apprentices without their consent; and thereby convey the permanent custody ot their persons, as well as benefit of their labor, to their masters during their minority. Com. Dig. “Justice of the Peace," B, 55. But, notwithstanding the aid of the very respectable authorities (Day v. Everett, 7 Mass. 145), it may well be doubted, if this doctrine can be supported to the extent in which it is laid down. The custody of minors is given to their parents for their maintenance, protection, and education; and if a parent, overlooking all these objects, should, to answer his own mercenary views, or gratify his own unworthy passions, bind his child as an apprentice upon terms evidently injurious to his interests, or to a trade, or occupation, which would degrade him from the rank and character, to which his condition and circumstances might fairly entitle him, it would be extremely difficult to support the legality of such a contract. Respublica v. Kepple, 2 Dall. [2 U. S.] 197; Rex v. Inhabitants of Cromford, 8 East, 25. And it would be a strong proposition to maintain that a father might, in time of war, upon the mere footing of the common law, enlist his son as a common soldier in the army, or as a seaman in the navy, • without his consent, and compel him to serve during the whole period of his minority, without a right to receive to his own use any of the earnings of his laborious and perilous course of life. Grace v. Wilber, 10 Johns. 453. In such a contract, there would not even be a semblance of benefit to the minor. ² It is not, however, necessary to decide these points; and they are commented on. merely in answer to some suggestions at the bar. Be the right of parents, in relation to the custody and services of their children, whatever they may, they are rights depending upon the mere municipal rules of the state, and may be enlarged, restrained, and limited as the wisdom or policy of the times may dictate, unless the legislative power be controlled by some constitutional prohibition.

The constitution of the United States has delegated to congress the power “to raise and support armies,” and “to provide and maintain a navy”; and, independent of the express clause in the constitution, this must include the power “to make all laws, which shall be necessary and proper for carrying into effect the foregoing powers.” It is certain, that the sendees of minors may be extremely useful and important to the country, both in the army and navy. How many of our most brilliant victories have been won, on land and sea, by persons, who had scarcely passed the age of minority? In the navy, in particular, the employment of minors is almost indispensable. Nautical skill cannot be acquired, but by constant discipline and practice for years in the sea service; and unless this be obtained in the ardor and flexibility of youth, it is rarely, at a later period, the distinguishing characteristic of a seaman. It is notorious that the officers of the navy generally enter the service as midshipmen as early as the age of puberty; and that they can never receive promotion to a higher rank, until they have learned, by a long continuance in this station, the duties and the labors of naval warfare. And to this early discipline and experience, as much as to their gallantry and enterprise, we may proudly attribute their superiority in the contests on the ocean during the late war. It cannot, therefore, be doubted, that the power to enlist, minors into the naval service is included within the powers delegated to congress by the constitution; and the exercise of the power is justified by the soundest principles of national policy. And if this exercise should' sometimes trench upon supposed private rights, or private convenience, it is to be enumerated among the sacrifices, which the very order of society exacts from its members in furtherance of the public welfare.

The position asserted at the bar, denying to congress the power of enlisting minors without the consent of their parents, is not a little extraordinary. It assumes as its basis, that a granted power cannot be exercised in derogation of the principles of the common law; a construction of the constitution, which would materially impair its vital powers, and overthrow the best settled rules of interpretation. Can there be a doubt, that the state legislature can, by a new statute, declare a minor to be of full age, and capable of acting for himself at fourteen, instead of twenty-one years of age? Can it not emancipate the child altogether from the control of its parents? It has already, in the case of paupers, taken the custody from the parents, and enabled the overseers of the poor to bind out the children as apprentices, or servants, during their minority, without consulting the wishes of the parents. Act Feb. 26, 1794, § 4. It has, without the consent of parents, obliged minors to be enrolled in the militia, and to perform military duties; and although these duties are, in time of peace, but a slight interference with the supposed rights of parents; yet they may, in time of war, expose minors to the constant perils and labors of .regular soldiers, and altogether deprive their parents of any control over their persons or services. In time of war, too, the state may, for its defence, establish and maintain an army and navy; and it would be a strange and startling doctrine, that the whole youth of the state might, unless the consent of their parents could be previously obtained, be withheld from the public service, whatever might be the pressure of the public dangers or necessities. And if the state legislature could, in their discretion, abrogate or limit the paternal authority, it must be for precisely the same reasons, that the national legislature could do it, viz. that it is necessary, or proper, to carry into effect some other granted powers.

It has been justly observed, in a work of the very best authority (The Federalist, No. 44), that no maxim is more clearly established in law or in reason, than that wherever the end is required, the means are authorized. Whenever a general power to do a thing is given, every particular power necessary for doing it is included. And I feel no scruple in affirming, that congress, having authority “to provide and maintain a navy,” may constitutionally authorize the enlistment into the naval service of any minors, independent of the private consent of their parents; and that the statutes passed for this purpose are, emphatically, the supreme law of the land. Nor is the exercise of this power novel in the institutions of that country, from which we have borrowed most of the principles, which regulate our civil and political rights. It has even been pushed to an extent, which is not only odious, but has become, in a great degree, subversive of the personal liberty of a large class of meritorious subjects. Minors 'may not only be enlisted into the British navy without the consent of their parents; but they may be forcibly impressed into it against the joint will of their parents and themselves. And even apprentices, regularly bound by contract are not, except in special cases, and for a limited time prescribed by statute, exempted from the like impressment. Rex v. Reynolds, 6 Term R. 497; Rex v. Edwards, 7 Term R. 745; Ex parte Softly, 1 East, 466; Ex parte Brocke. 6 East. 238; St. 13 Geo. II. c. 17.

Much has been stated in the argument, in reference to what contracts of infants are void, and what are voidable at the common law. There is in the books considerable confusion on this subject, which has not been entirely removed by the learned discussions in Zouch v. Parsons. 3 Burrows, 1794; and see Burgess v. Merrill, 4 Taunt. 468. The distinctions laid down in another case by Lord Chief Justice Eyre, seem founded in solid reason, viz. that where the court can pronounce, that the contract is for the benefit of the infant, as for instance, for necessaries, there it shall bind him; when it can pronounce it to be to his prejudice, it is void; and that where it is of an uncertain nature, as to benefit or prejudice, it is voidable only; and it is in the election of the infant to affirm it or not. Keane v. Boycott, 2 H. Bl. 511; Rex v. Shinfield, 14 East, 541. It is a material consideration also, that the validity of the infant’s act. or contract, is, in point of law. independent of the right of custody in his parent, although this may be an ingredient in ascertaining in point of fact, whether the act, or contract, be for his benefit or not. In short, the disabilities of an infant are intended by law for his own protection, and not for the protection of the rights of third persons; and his acts may, therefore, in many cases, be binding upon him, although the persons, under whose guardianship, natural or positive he then is, do not assent to them. The privilege, too, of avoiding his acts or contracts, where they are voidable, is a privilege personal to the infant, and which no one can exercise for him. Keane v. Boycott, 2 H. Bl. 511. And whenever any disability, enacted by the common law, is removed by the enactment of a statute, the competency of the infant to do all acts within the purview of such statute, is as complete as that of a person of full age. And whenever a statute has authorized a contract for the public service, which, from its nature or objects, is manifestly intended to be performed by infants, such a contract must, in point of law, be deemed to be for their benefit, and for the public benefit; so that when bona fide made, it is neither void nor voidable, but is strictly, obligatory upon them. I say bona fide made, for if there be fraud, circumvention, or undue advantage taken of the infant’s age, or situation, by the public agents, the contract could not, in reason or justice, be enforced. It would be strange, indeed, if courts of law could judicially hold contracts to be void, or voidable, which the. legislature should deem salutary or essential to the public interests; or pronounce them invalid, because entered into by the very parties, who were within the contemplation of the law.

From these more general considerations, we may now pass to the question, whether the laws of the United "States authorized the enlistment of minors into the navy, without the consent of their fathers. All the acts, from the first establishment of the navy, authorize the employment of midshipmen (who are invariably minors, when they enter the service) and all the acts since the statute of 30th June, 1798, c. 81, including those now in force, and under which the present applicant has been enlisted and held in service in express terms authorize the president to engage and employ “boys” in the ordinary duties of the navy. In no one of them is there any provision requiring the consent of parents or guardians to their engagement, or authorizing them to make it. See Acts 30th June, 1798, c. 81 [1 Story’s Laws, 520; 1 Stat. 575, c. 64]; 21st April, 1806, c. 35 [2 Stat. 390]; 3d March, 1807, c. 40 [2 Stat. 443]; 31st January, 1809, c. 78 [2 Story’s Laws, 1109; 2 Stat. 514, c. 11]; 2d January, 1813, c. 148 [2 Story’s Laws, 1282; 2 Stat. 789, c. 6]. The laws manifestly contemplate, that it is a personal contract made by the infants themselves for their own benefit. They are entitled to the pay, the bounties, and the prize-money earned and acquired in the service. This is not denied in the argument. And if the laws be so, then they must, by necessary implication, give a capacity to the infants to make such a contract; and when made, assert its legal validity. Upon any other supposition, the whole object of the legislature would be defeated; for if the contract of the infant, made without the assent of his parent, were void, or voidable, that assent would not, by the mere operation of the common law, change its character. A contract voidable by the common law, cannot be confirmed or avoided by any assent or dissent of the parent thereto. It is binding, or not, solely at the election of the infant himself. And if the contract be void, it is incapable of being set up by any person. To suppose, that the legislature meant to authorize an infant to enlist in the navy and yet that the contract should be voidable at his election, would be to suppose, that it meant to repeal the rules and articles of the navy in his favor, and enable him to desert, when his services were most important to the public. If,- indeed, the acts of congress had authorized parents or guardians to bind their minor children to an apprenticeship or servitude in the navy, a valid contract might then have been made by such parents or guardians. But there is no such authority in the acts, nor am I satisfied, that it ever existed at the common law; and if it ever did, the statute. of Massachusetts of the 28th of February, 1795, c. 64, seems to have restrained the exercise of that power to th'e cases and manner specified in that statute. A different doctrine has indeed been held; but it seems to me extremely difficult to be maintained (Day v. Everett, 7 Mass. 145), and, in a ease depending upon similar principles of construction, the opposite doctrine has been established in another court (Ex parte M’Dowle, 8 Johns. 253).

Upon the whole, as congress have authorized “boys” to be engaged in the service of the navy, without requiring the previous consent of their parents to the contract of enlistment, that contract, when fairly made with an infant of reasonable discretion, must be deemed to have a semblance of benefit to him, and to be essential to the public welfare, and, therefore, binding to all intents and purposes. And if it were not so binding, but were voidable, even the consent of parents would not infuse into it any farther validity. This construction of the acts respecting the naval establishment, is confirmed by the general practice in that department, and by the consideration, that in the acts respecting enlistments in the army, a proviso was for a long time inserted, “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 of his parent, guardian, or master, first had and obtained, if any he have.” See Acts 16th March, 1802, c. 9 f2 Stat. 132]; 11th January. 1812, c. 14 [2 Stat. 671]; 20th January, 1813. c. 154 [2 Story’s Laws, 1284; 2 Stat. 791, c. 12]. By the acts of 1812 and 1813, this contract must be in writing. And at length the necessities of the public service were such, that the enlistment of minors, over eighteen years of age, into the regular army, was expressly authorized. And the proviso of the act of the 20th of January, 1813, ch. 154, which required the previous consent of their parents, guardians, or masters was expressly repealed by the act of 10th of December, 1814, c. 10 [3 Stat. 146]. This course of legislation manifestly shows, that whenever the rights of parents were intended to be saved, a special proviso was uniformly introduced for that purpose.

The decisions of two very respectable state courts, which have been cited at the bar, so far as they go, proceed on the same principles, which have been adoped by this court, and are entitled to great weight. Com. v. Murray, 4 Bin. 487; Ex parte Roberts, 2 Hall, Law J. 192. The decisions of our own state court, which have been cited on the other side, are inapplicable; for they turn altogether upon the meaning and extent of the proviso in the army act of 1813, c. 154. It is not now necessary to consider, bow far a state court has jurisdiction to discharge a person, who, by the return of the habeas corpus is shown to be enlisted under a contract with the United States. Whenever that question shall arise, it will deserve very grave consideration. See Ex parte Roberts, 2 Hall. Law J. 192; Ferguson’s Case, 9 Johns. 239; Martin v. Hunter, 1 Wheat. [14 U. S.] 304. But, with great deference to the learned judges, I have never been able to bring my mind to assent to the construction put upon the act of 1S13, in some of the cases in the Massachusetts Reports. Com. v. Cushing 11 Mass. 67.

The view, which has been taken upon the general question, as to the validity of the contract of enlistment, renders it unnecessary to consider the second point made in this cause, viz. how far an infant can, by disaffirming his contract of service, avoid the punishment, which has been regularly adjudged against him by the sentence of a court-martial, for a crime committed by him, the whole proceedings and sentence having been pronounced, while the contract was in force. See Rex v. Inhabitants of St. Nicholas, Burrows, Sett. Cas. 91; 2 Strange, 1066; Gray v. Cookson, 16 East, 13; Grace v. Wilber, 10 Johns. 453, 12 Johns. 68.

If it had been necessary in this ease to ascertain, whether there had been any consent of the father. I should have thought it necessary to have required more explicit affidavits than have been made, and a peremptory denial of assent on the* part of the father, as well as a special statement of the facts, as to the mode of life and place of residence of the minor previous to his enlistment: for an assent of the father need not be express, but may be implied from circumstances. If a father should voluntarily send his minor children away from home, to obtain a maintenance and support in any manner, that they could; this would be an implied consent to any contract for that purpose, into which they should enter, and a waiver of his parental rights. It is upon this ground, that the ordinary retainers of servants. who are minors, are held valid against the subsequent acts of the father. In strictness of law the contract of the minor in such cases becomes obligatory, because, being an exile from his father’s house, whatever contract he forms is, in an enlarged view, necessary for his support, maintenance, or education. •

I am of opinion, that Robert Treadwell, the minor, ought to be remanded to the cus tody of his commanding officer. It is the opinion of the district judge, that the consent of the parent, or guardian, when there is one, is necessary, either expressed or implied, to authorize the engagement of a minor in the naval service; but he concurs in the order to remand the said Robert to the custody of his commanding officer on the special circumstances of this case.

2 It has been recently decided in New York, that a parent has no authority to bind his child to military se-vice. Grace v. Wilber, 10 Johns. 453, 12 Johns 68.