BOALER v. CUMMINES, 3 F. Cas. 776

KANE, District Judge. I have had my attention called to the clause of the constitution, and the acts of congress of 1793 and 1850, providing for the rendition of persons held to labor, and the mode of so doing, very often; and the result of the attention heretofore bestowed, and the simple nature of the question to be decided, induce me to give my decision now.

Taking the words of the clause of the constitution, and those of the act of 1850 alone, there can be no difficulty— the words are, “persons held to service or labor in one state under the laws thereof.” Now I know of no words that could more clearly include apprentices than those I have quoted, for the plain effect of the very words of every indenture of apprenticeship is to hold the party to service; and if I could go beyond the words of the act of congress, and those of the

article of the constitution, I should say, that every consideration of policy would dictate such a construction; because to decide the contrary, would be to discharge every apprentice in Pennsylvania that chose to cross the Delaware, and every one elsewhere that repaired to this state, and refused to return to his duty.

The relation created by an indenture of apprenticeship is of such a character, that minors and orphans, instead of remaining ignorant and unprotected, become acquainted with the arts and sciences, and are fitted for the duties of life; and to preserve such a state of usefulness the principles of extradition should be applied.

It is true that no case has been cited in which a United States court or judge has decided this very question; but, perhaps, it is because the master has enforced his rights by seizing his apprentice and conveying him home, that this law, and that of 1793 has not been resorted to, and the want of use, or non user, has no influence upon the construction of a plainly expressed statute.

It is equally clear, that though a judge in considering the case of a fugitive slave in connexion with the statute, might speak only of a slave as within its purview and another in a case like the present might speak only of apprentices; yet each might with propriety use the words, “a person held to labor.” It is equally to be observed, that no decision has been had in which it has been held, that the words of the constitution apply only to slaves.

Most certainly this lad is held by a binding under a local proceeding, within the authority of any state to provide, and thereby to affect persons within her limits and subject to her jurisdiction. The marriage of a minor in Delaware, good by the law of that state, would be good everywhere else.

Now one of the objects of apprenticeship is to prevent pauperism; and a child whose parents are in another and a distant state, and who have deserted him, is a pauper, notwithstanding the fact of his having lawful protectors who do not discharge their duty to him. and the disposition of him under the municipal regulations of the state in which he is deserted, is binding on him, and his parents too.

It cannot, however, be said, that in this case the binding was against the father’s will, for it is in proof before me, that it was with the consent of the father, who sent his son to Delaware on trial, to be bound if he was liked, and sent him back to that state after he was bound, when, on one occasion he had absconded.

The question, therefore, is between the father and master on this proof; and it cannot be, that the father shall stand by, and see his sen bound in another state, to receive education and nurture, and just when he becomes valuable to a master, to take him away; such a course would amount to positive fraud.

The consent is so material that it is not going too far to say, that if a slave should come here with his master’s consent and bind himself apprentice, or, being here, should so bind himself with the master’s consent, in the first case he would not be a fugitive slave within the meaning of the act of congress, and in the second the master would not be allowed to question the validity of the indenture. This case, therefore, returns to the commissioner for adjudication, he being now in possession of my views on the subject. Relator remanded to the custody of the marshal.