USA > Pennsylvania > The Register of Pennsylvania : devoted to the preservation of facts and documents and every other kind of useful information respecting the state of Pennsylvania, Vol. IX > Part 40
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As the laws of the state now stand, clergymen and magistrates must he continually in jeopardy, or clsc thousands of persons will find unreasonable obstructions to their hccoming lawfully united in wedlock. If they should marry by agreement and not before some person or persons required and authorized to make a legal re- cord of such union, great injury and immorality would result to the community. The Legislature has hecn re- peatedly importuned, but in vain, to enact some whole- some law on this subject. Different Governors have recommended the marriage laws to the revision of our Legislatures, but they have thought it needless to do any thing, because in country towns every body knows every body, and magistrates and ministers are not therc- forc liable to be cheated into such professional services as incur the fine. It is some satisfaction to us, to have it settled, as it now is in Pennsylvania, that the master or mistress of an apprentice has no right to consent to the marriage of said apprentice; that parents or guar- dians alone have this right; and that masters or mis- tresses of apprentices cannot recover the fine of fifty pounds, if said apprentices should be united in marriage during their minority.
Tried before the Supreme Court of Pennsylvania. John Altemus
Error to the 20. Rev. Ezra Stiles Ely, D. D. S Supreme Court.
This was an action of debt brought to June Term, 1824, in the District Court for the city and county of
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Philadelphia, to recover a penalty of $133 33} for mar- rying the plaintiff's apprentice. The cause was tried at March Term 1827, and a verdict taken by consent, for the plaintiff, subject to the opinion of the Court. At a subsequent term, the cause was argued by Joseph M Ilvaine and James Mahany, Esquires, for the plain- tiff, and Henry Chester, and Charles Chauncey, Es- quires, for the defendant, wben judgment was entered for the defendant, to which the plaintiff took a writ of error to the Supreme Court.
The only question presented for the consideration of the Supreme Court was, whether the master of an in- dented apprentice, as distinguished from the master of an indented servant or servant by agreement could sustain an action for the penalty of £50, which is in certain cases recoverable under the supplement of the Marriage Act, passed in 1729-30. It was not denied that parents and guardians, and masters and mistresses of indented menial servants could sustain the action if they could satisfy a court and jury that they had been grieved by a violation of the act.
THE OPINION OF THE COURT was delivered by Judge Kennedy ;- and is as follows:
This was a writ of error to the District Court for the city and county of Philadelphia. The plaintiff in error was the plaintiff below, and brought this suit as the master of an apprentice against the defendant, a clergy- man, to recover the penalty of fifty pounds for marry- ing the apprentice of the plaintiff without his consent. This penalty was claimed to be recovered by the plain- tiff for the violation of the Act of Assembly passed the 14th of February 1729-30, entitled "a supplement to the act, entitled an act, for preventing clandestine mar- riages." The only question which has heen raised in this case by the error assigned, is, whether an apprentice be embraced within the words "indented servants," which by the Act, justices of the peace, clergymen, mi- nisters or other persons are prohibited from joining in marriage, without the consent of their masters or mis- tresses. The court below decided that such an action would not lie for the master of an apprentice although it would by the master of a servant.
In order to determine this question correctly, it may be well to refer to the words of the original act, as well as the supplement. The original act, (1 Smith's Laws, 21,) among other things declares, that "if any servant or servants, shall procure themselves to be married, with- out the consent of his or her master or mistress, such servant, or servants, shall for such their offence, each of them serve their respective masters or mistresses one whole year after the time of their servitude by inden- ture or agreement is expired. And if any person being free, shall marry with a servant as aforesaid, he or she so marrying, shall pay to the master or mistress of the servant, if a man, twelve pounds, and if a woman, six pounds, or one year's service; and the servant so being married, shall abide with his or her master or mistress according to the indenture, or agreement, and one year after as aforesaid." The preamble to the supplement, (1 Smith's Laws, 180, ) recites that, "whereas the good intention of an Act of Assembly of this province, enti- tled an act for preventing clandestine marriages, hath been very much eluded by reason that no proper penalty is by the said law imposed upon the justice of the peace, or other person marrying or joining in marriage any person contrary to the intent and meaning of the said act, for remedying whereof, be it enacted that no justice of the peace, shall subscribe his name to the publication of any marriage within this province, intended to be had between any persons whatsoever, unless one of the persons at least, live in the county where such jus- tice dwells, and unless such justice shall likewise have first produced to him, a certificate of the consent of the parent or parents, guardian or guardians, master or mis- tress of the person whose names or bans are to he pub- lished, if either of the parties be under the age of twenty- one years, or under the tuition of their parents, or be
indented servants," &c. The second section then im- poses a forfeiture of fifty pounds upon every justice of the peace, clergyman, minister, or other person who shall join in marriage, contrary to the provisions of these acts, "to be recovered in any court of record with- in this commonwealth, by bill, plaint, or information, by the person or persons grieved, if they shall sue for the same."
It has been urged by the counsel for the plaintiff in error, that the term "servant," in legal acceptation at least, embraces an apprentice. That this appears not only from Jacob's Law Dictionary, but from Viner, Blackstone, and others, who have classed apprentices with servants; have treated them as a species of servants, and laid down the law in respect to them under the title of "master and servant." This argument, if it prove any thing, proves more than the plaintiff claims, be- cause it is admitted on his part, that hirelings are not embraced under either of the acts, yet nothing is more certain, than that they are embraced within the genuine term "servants" in its legal signification. But I think it apparent from the phraseology of these acts, that it was not the intention of the Legislature to employ the term "servants" in its legal genuine sense, and more especially in the supplementary act which is the one that imposes the penalty. The original act declares, that if servants shall procure themselves to be married without consent of their master or mistresses, that they sball for such offence, "serve their respective masters or mistresses one whole year after the time of their servi- tude by indenture or agreement, is expired." The terms employed in the supplementary act, are "indented ser- vants," which are more definite, and perhaps more re- strictive than the phraseology used in the original act. The supplement is in positive terms confined to the cases of indented servants, and I will not say but what this ought to be considered as explanatory of the de- scription of servants intended to be embraced by the first act, and that neither were intended to be extended to other than indented servants. For the preamble to the supplement would seem to indicate, that its design was to provide a suitable punishment for those who should join such servants in marriage as were prohibited from marrying by the original Act, under a penalty of having their term of servitude extended one year beyond the term of their indenture or engagement. These acts, although it may be said, that in one point of view, they are remedial, yet it must be admitted, I think, that they are highly penal; for by the provisions of the first Act, the servant who offends against it, is made to serve his master or mistress, one whole additional year whether the master or mistress shall have sustained damage or not, by the servant's marrying without consent. And by the supplementary Act, the person who joins an in- dented servant in marriage is made to pay fifty pounds to the party grieved, that is, to the master or mistress whether he or she shall have sustained any actual da- mageby it or not. I am therefore inclined to believe, that in the construction of these acts, we are bound to con- fine ourselves to what shall appear to have been clearly and manifestly the intention of the Legislature in pass- ing them; and that this intention must be collected from the various parts of these acts taken together, and the terms used therein, as also from other acts passed about the same time, and subsequently, in relation to servants and apprentices, and not from our own notions of what may, or ought to be considered as existing evils at the present day on this subject, and therefore proper to be considered as corning within the provisions of these acts. I think that it may be safely affirmed, that at no period in Pennsylvania has the term "servant" in common parlance been extended to an apprentice. An appren- tice has ever been considered as having and maintaining a higher stand or grade in society, than him who is com- monly denominated a "servant." This distinction too, will appear to have been taken and to have existed in the mind of our legislative body as often as its atten-
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tion has been turned to servants and apprentices, and it has thought proper to legislate upon the subject. A reference to these acts will furnish the most abundant proof that whenever the legislature intended to pass or make any provision which was intended to embrace ap- prentices, that they have uniformly named them specifi- cally: and no instance, I think, can be found, in any act of Assembly, where the two terms are used as synony- mous.
In the year 1700, (1 Smith's Laws, 10, ) a little be- fore the passage of the first act, involved in this case, an act entitled "an act for the better regulation of ser- vants in this province and territory," was passed. The term servants, without any epithet of qualification or re- striction, is used in this act, throughout, yet, it has never been supposed that apprentices were embraced within its provisions; certainly in practice they have not. The 3d section gives freedom dues, such as are therein speci- fied, to those servants who shall have served faithfully for four or more years. Among the articles specified as freedom dues, are one new axe, one grubbing hoe and one weeding hoe; things that would be of little or no use whatever in almost every trade, art, or mystery that is " learned in the character of an apprentice. The 4th section imposes a penalty of 5 days' service upon any "servant" who shall absent himself from his master's service without his consent for every day that the ser- vant shall so absent himself, and such further satisfaction as to the county court shall seem meet-who are also to order the additional time to be served. Sons of the most respectable citizens in this State, as well during the time it was a province as since, have been bound out, to learn some art, mystery, trade, or occupation, such as that of husbandman, merchant, or some of the me- chanic arts. Indeed, it is as likely as not that some of the sons of these very legislators themselves, who made some of these laws, were bound out as apprentices: and can it be imagined that they intended such regulations for apprentices? Most certain is it, that in practice they have never been so applied-which is at least strong if not conclusive evidence of the original design of these acts. By a supplement to this act, passed as late as the 9th of March, 1771, (1 Smith's Laws, 521) a summary remedy is provided to enforce some of the provisions contained in the original, without the least alteration of phraseology, showing that apprentices or their masters were not intended to be embraced.
That the term "servants," as used in these acts, was not intended to embrace apprentices, will appear still more clearly, if possible, from acts passed providing for them ea nomine. For by reference to these acts, we shall find that apprentices have not escaped the atten- tion of the legislature, but have been provided for, ex- pressly by name, and that some of the provisions in re- spect to apprentices are substantially, if not verbatim, the same with some of those, which were in being at the time for servants, which would have been altogether unnecessary if they had been previously embraced un- der the term and idea of their being "servants." By an act passed March 27th, 1713, (1 Smith's Laws, 81,) Orphans' Courts were established, and by the 7th sec- tion of the act page 84, were authorized upon the ap- plication of the executors or administrators, of persons dying and leaving minor children, without regard to the value or amount of the estate which was left or de- scended to such children, or upon the application of the guardians or tutors of orphan minor children, "to order and chirect the binding, or putting out of them, apprentices to trades, husbandry, or other employment as shall be thought fit;" subject, however, to some restrictions mentioned in the 12th section of the act, which go to prove, the great care and attention that the legislature had for apprentices, above servants. By this section they were not to be bound to persons whose re- ligious persuasion was different from what the parents of such orphan, or minor professed, at the time of their decease, or against the minor's own mind or inclination, |
so far as she or he had diseretion and capacity, to ex- press or signify the same: or to persons who were not of good repute, so as others of good eredit and of the same persuasion might or could be had. But very dif- ferent was the law as to servants who, at this time, were liable to serve any body, and to be transferred from hand to hand, so that they were not disposed of to per- sons residing out of the state, without their consent, or any regard paid to the religious profession, or even moral character of the master. On the 4th of March, 1763, " an act for the regulation of apprentices within this province," was passed, which was afterwards on the 29th of September, 1770, repealed by an act of that date, entitled "an act for the regulation of ap- prentices within this province." (1 Smith's Laws, 309,) The preamble to this aet recites that, "whereas great mischiefs and losses had been sustained by the masters and mistresses of apprentices within this province, for want of some law to regulate their conduct and heha- viour, during their apprenticeships, (not servitudes) to prevent their absenting themselves from their said masters or mistresses' service without leave-to punish them for any disorderly, immoral behaviour, and to make the covenants between them mutually binding. The state of things referred to and recited in this preamble, must be considered as true, and if so, the act of 1700, for the better regulation of servants in this province and territo- ry, could not be considered as embracing apprentices. If this last act does not, it is equally clear, that the acts of 1701, and 1729-30, already referred to on the sub- ject of marrying servants, cannot be extended to ap- prentices. But among other things, it is stated in the preamble of this act, of the 29th of September, 1770, for the regulation of apprentices, that there was no law to prevent their absenting themselves from their masters or mistresses service without leave. Now it is evident that this was not true, it the term "servants," as used in our acts of assembly, and used too without any qualifying or restrictive adjunct or phrase, be sufficient, and does include, apprentices. Because the very words of the 4th section of the act of 1700, (I Smith's Laws, 10,) for the better regulation of servants in this province, are "and for prevention of servants quitting their master's service, Be it enacted, that if any servant shall absent himself from the service of his master or owner, for the space of one day, or more, without leave first ob- tained for the same, every such servant shall for each days' absence, be obliged ta serve five days after the expi- ration of his or her time." &c. And in addition to this, a fee of ten shillings was allowed to any one who should take up or apprehend a runaway servant. Again, to esta- blish what I before said, I refer to the 6th section of the act of 1700, for the regulation of apprentices, imposing a penalty on such as conceal, entertain, or harbour them, and by comparing these sections it will be seen, that the latter is substantially the same with the former, only that the term servants is used in the one, and the ap- prentice in the nther, a thing altogether unnecessary, if the term servants had been understood to embrace and include apprentices in our legislative enactments. But whde the legislature thought there was no difference between the person who shoukl harhour and conceal a servant, and him, who should harbour and conceal an apprentice, having made the punishment the same; it is obvious that they have made a great distinction between the punishment to be inflicted upon an absconding ser- vant, and that which is to be inflicted upon an abscond- ing apprentice. In the case of the first, they have made him liable to serve five days for every one lost by his absenting himself without his master's leave, and to pay such damages, in further satisfaction to his master or mistress, as the court shall think proper to award. But in the case of the apprentice, the court can only im- prison and confine to hard labour in ease he should seem to be refractory, and unwilling to return to a faithful discharge of his duty. Also another very important clistinction is made in favour of the apprentice, by this
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act of the legislature for regulating apprentices, that has never been extended to servants. The court of quarter sessions of the proper county is thereby author- ized to discharge an apprentice from his apprenticeship, and from all obligation contained in the indenture up- on liis part, if the court shall see, that the master or mistress has misused, abused, or evilly treated, or, shall not have performed his or her duty towards the ap- prentice. From a fair exposition of all these acts of Assembly on the subject, I feel satisfied that apprentices were not intended to be embraced under the term "servants," which is used in the acts of 1701, and 1729-30, as contended for by the plaintiff's counsel.
So far as we have any judicial lights upon this sub- ject in this state, it appears to me, that they are rather against what the plaintiff's counsel contends for in this case. The commonwealth vs. Keppele, (1 Yates Repts 233, ) determines a servant in Pennsylvania, to be a very different person from an apprentice, and denies all power to a guardian to hind out his ward as a servant, or to a parent to transfer a right to the service of his child, who is a minor, to pay the father's debt. Yet, for the purpose of making the ward, or the child an ap- prentice such authority does exist. In Tieher vs. Boos, (2 Yates 321, ) the point which is made in this case was not decided. The court merely adjudged that the minor who was married by the defendant, not being either the servant or the apprentice, or the child of the plaintiff, he could not maintain the action. But the de- cision of the supreme court in this state in the case of Norris vs. Pilmore, (1 Yates 405, ) establishes the right of the parent to recover the penalty of fifty pounds for marrying his minor son who was at the time, an ap- prentice to another person. Again, it has been deci- ded in the case of Hill vs. Williams, (14 Sergt. and Rawle's Repts.287, ) that but one penalty can be recover- ed under this act. These two cases come pretty near, if not quite to deciding the present case in favor of the defendant. It is reasonable. and certainly very ex- pedient that the person who is entitled to demand and receive the penalty should be certain, and that the act should receive such a construction as to render it certain who he is. If then, it he the parent, according to the decision of Norris and Pilmore, and but one pen- alty can be recovered, for the marriage of the same person, the necessary conclusion is, that this suit was not maintainable. But to say that the master of an ap- prentice should recover the penalty, would he to de- cide that a justice of the peace, clergyman, or other person, may with impunity marry the minor child of a father, or a mother, without their consent if such minor he an apprentice at the time, and his master or mistress give consent.
I cannot persuade myself that the good sense and feeling of the legislature of the state, could have in- tended to substitute the consent of the master or mis- tress of a minor apprentice, for that of the parent in a matter which not only concerned the welfare and hap- piness of the minor himself, but the well-being and hap- piness of his parents, and which was to endure not merely during the apprenticeship, but throughout life.
So far as we have any judicial authority hearing upon the question in this case, I think it is in favor of the de- fendant: and I would further observe, that there does not seem to be any strong reasons for extending the provisions of these acts against clandestine marriages to apprentices, and giving to their masters a right to re- cover the penalties as the party aggrieved, because they always have it in their power to protect and secure themselves against loss or damage that may he sus- tained by their apprentices getting married, without their consent, in the contract creating the apprentice- ship. They can always have the covenant of the ap- prentice and the parent, as an indemnity, if required; and when there is no parent, they can often in addition to the covenant of the apprentice himself, obtain that of the guardian, or some friend as a security against future
damage arising from such a cause. Indeed it does not appear often to be the occasion of actual injury or loss to the masters or mistresses of apprentices, or we should hear much more of it than we do.
The judgment of the court below is affirmed .- Judge Huston dissenting.
Peter A. Browne, Esquire, for plaintiff in error.
Henry Chester, and Charles Chauncey, Esquires, for defendant in error.
THE REGISTER.
MARCH 3, 1832.
The long report to the House of Representatives, on Lotteries, is concluded this week-we have received a report of the committee of Vice and Immorality, to the Senate on the same subject, giving a different construc- tion to the several acts-also some other documents in relation to the particular case-which will be inserted next week. The whole matter, which is of great mo- ment-will then be before the public.
In our last number we published an article on the early settlement of Columbia; in which the subject of the Pax- ton affair is introduced. We have received from a corres- pondent the following note remarking upon that arti- ticle. It is a somewhat singular coincidence-that the last "Columbia Spy" and we, were at the same time publishing an article on Columbia, the facts of both which are evidently derived from the same original source; but much more is detailed on many points in the the "Spy;" and as it contains also, statistics of the -present period, we shall insert it entire next week. It merely alludes to the Paxton massacre; promising to give a correct account hereafter. It is desirable that this should be done while facts and persons are accessi- ble, and to remove unjust imputations, from the inno- cent.
LANCASTER, February 28, 1832.
Dear Sir,-In the Register of Pennsylvania, number eight, February twenty-fifth, is an article headed " First · Settlement of Columbia," containing assertions unsup- ported by evidence. The writer says "a company of Presbyterians from Paxtung township, under the name of Paxton boys." Why attribute such a barbarous murder to a respectable body of Christians, when the Paxton boys consisted of persons of several denomina- tions of Christians. The statement relative to the ma- gistrates of Lancaster and Capt. Robinson, does not ac- cord with records, (see the article headed Paxton boys, on page 255 of the 7th volume of the Register, re- published from the Lancaster Journal. ) As to the "Episcopalian minister in Lancaster," the church had no resident minister at that period in Lancaster; I ask, therefore, for the evidence-produce the letter, the bare assertion in this case can have no weight. Fortunately there are persons living in Lancaster at this time who have a full knowledge of the facts, and who can prove the incorrectness of the writer's state- ment, if necessary.
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