
    [Philadelphia,
    Saturday, July 18, 1812.]
    The Commonwealth against Alexr. Murray, Esq.
    Under the act of congress authorizing the President of the United States to cause to be engaged certain able seamen, ordinary seamen, and boys, to serve in the navy, an infant who has arrived at years of discretion, and has neither father, master, nor guardian, may make a valid contract to serve according to the act, notwithstanding he has a mother with whom he resides at the time, and whose consent was not given to the contract.
    An infant owes reverence and respect to his mother, but she has no legal authority over him, nor any legal right to his services.
    Under the constitutional power of congress to provide and maintain a navy, that body may by law authorize minors to enter into contracts for service in the navy, notwithstanding such contracts if made by an infant might not be binding upon him at common law.
    This was a habeas corpus to the defendant, who is commander of the gunboats on this station, to bring up the body of John Lewis Connor, alleged to be in his custody.
    The return of Commodore Murray stated the act of congress of the' 31st January 1809, authorizing the President of the United States to cause to be engaged and employed 3600 able seamen, ordinary seamen and boys, to serve for a period not exceeding two years; that in pursuance of instructions from the President, John Lewis Connor was engaged in the usual form to serve for a period not exceeding two years from the ■-day of-, in the navy of the United States ; and that he was detained in the service of the United States under the authority of the said act of congress, and by virtue of his said engagement, and that the said Alexander Murray had the said Connor in court ready, &c.
    The mother of Connor being examined, proved to the Court, that he was between seventeen and eighteen years of age, and that he was sickly. He had been indented in the year 1807 as an apprentice to a ladies’ shoemaker, and in consequence of this trade not agreeiug with him, she had bought his time about a year ago. Since that, he had boarded with her, and worked with his former master by the piece, for wages which she received. His father had been dead many years, and he had no guardian. He entered into the service of the navy, not with, but against, her consent.
    
      Dallas for the United States.
    This discharge being claimed as a matter of right, and not as a favor in consequence of the supposed state of the boy’s health, it is resisted. As to the question of law before the Court, his health is of no consequence.
    The contract binds the boy, whether-it is considered at common law, or under the act of congress.
    At common law. It is to be noticed, that Connor has neither father, guardian nor master. He has arrived to years of discretion. He is under no precontract of service, and he is neither under the legal authority of any one, nor bound to labor for the benefit of any one but himself. Although he has resided with his mother, and owes her reverence and respect, yet the law gives her no control over him. She is not entitled to the fruit of his labor, nor is her consent material to any contract he may make. In relation to the present question, it is as though he had no mother. Wood’s Inst. 64; 1 Woodeson 451; 3 331. Comm. 453-4. In such a case then, will the Court say upon general principles that the contract is void ? It certainly is a beneficial contract. It gives him bread, and it instructs him in a profession, that no court can say is not a necessary and therefore a useful one. An infant may make a contract for necessaries; no qfiestion then *ma7 ma^e a contract the object of which is to provide him necessaries through the medium of his labor and services. Such a contract must be beneficial, and therefore it binds him. 3 Bac. 597-8 ; Maddon v. White, 2 D. & E. 159. The present engagement violates no filial duty, breaks no previous contract, is not contrary to law, and is beneficial. Can this Court say that the infant may himself avoid it? It is a momentous question to the navy, in relation to that part of its force which is composed of minors.
    Under the act of congress. The act referred to in the return, empowers the President to cause to be engaged and employed 3600 able seamen, ordinary seamen, and boys, who shall be engaged to serve for a period not exceeding two years. 9 U. S. Laws 207. By the constitution, congress are empowered to provide and maintain a navy, and of course they have all powers that are necessary to that end. No one can question the necessity of employing boys in that service. They form a regular and essential part of the naval force of all countries. But if it is essential to employ them, and congress have the power to employ, they must have the power also to give validity to the contract, because except through the medium of a valid contract, boys cannot be employed. It follows therefore, that by authorizing a contract to be made with boys for this service, they have authorized boys to bind themselves by the contract. This argument does not interfere with any duty that a boy may owe to a father with whom he resides, who maintains him, and is therefore entitled to his labor, nor to a master to whom he may be indented. It is meant to apply to a case circumstanced like the present, where the boy is his own master; and where the persons who at present are understood to interfere, the overseers of the poor, have no authority in any case to act for the purpose of discharging a boy from service, particularly from one which, by providing for him, raises him entirely above the want of their interference.
    
      S. Ewing for the petitioner.
    The act of congress cannot in any respect affect this case. It may be a justification of the officer to the navy department, but it is no abridgment of *the rights of minors. Their general inability to contract, is one of their most material rights, a right to be freed from the consequences of their rash contracts. Congress in the first place did not intend to affect this point. They authorize the President to employ boys it is true ; and he may employ them through the instrumentality of those who have a legal control over them, namely their parent, or guardian, or the overseers of the poor. But it no more follows that boys can under the authority of this law bind themselves without such consent, than that they can bind themselves against it, and where they are actually under pre-contract; for either the law must be construed to over-leap all impediments to the contract, or else it must be understood to leave the question of the legality of contract untouched. It must either say, that boys may contract whether they are previously bound or not, and whether it be legal or not, or they may contract, provided it be legal, which leaves the validity of the contract as it would have stood without the law. But if congress did intend to affect this question, they have no constitutional authority to do it. It is stretching the argument of implied power infinitely too far. By the same reasoning a slave might be authorized to contract for the public service. The common law of the several states, congress have no power to alter, in a matter in which the states alone have jurisdiction, namely the rights and immunities of infants.
    At common law the obligation of this minor to continue in the public service cannot be maintained. In the first place, the case is not altered in consequence of its being a military service. An infant owes no such service upon the feudal principles of the common law, 3 Bac. 576, and he owes none by any statute to the navy of this country. It stands upon the footing of a common contract; and there is not an authority to be found in any book, ancient or modern, which say that a contract of service made by an infant, without the intervention of parent, guardian, or next friend, or some public officer appointed by statute, is binding upon him. He may be bound to service in this state, in the manner pointed out by our own act of assembly ; he may be bound in England under various statutes; in both cases however with the consent of certain persons who are pointed out. But a binding by the infant personally, is good only in one place in England, *and that by the special custom of London. 3 Bac. 581. Nothing can show more plainly that it is not good by the common law. Indeed it is not possible to state more clearly the general principle, than it is done by many of the sages of the law. “ Infants are regularly allowed to rescind and break through all contracts in pais, made during minority, except only for schooling and necessaries.” 3 Bac. 597; Roll. Abr. 729 ; Co. Litt. 172, 381; 3 Caines 323 ; 6 Mass. Rep. 80. He cannot even obtain the benefits of naturalization upon his own petition, not being able to renounce or to assume allegiance. 2 Mass. Rep. 419. The contract then by which Connor is held, must come strictly within the exception, or he may rescind it. It certainly is no contract for schooling, except such a sort of schooling as is gi'ven in gunboats, not very beneficial to either morals or understanding. Nor is it what is meant by a contract for necessaries. The distinction is a very obvious one between a contract for necessaries, binding upon an infant in a general way, and to be enforced in the ordinary manner by an execution upon persons or goods, and a contract binding as this is asserted to be, in such a manner as to require a personal service in satisfaction. An infant may bind himself for necessaries, that is, to pay for necessaries; but he cannot bind himself to serve for necessaries; otherwise we should never have had any question about the authority of an infant to bind himself as an apprentice, or to sell his real estate; for these acts might as well form part of a contract for necessaries, as service in the navy. Here then is the fallacy of the opposite argument. That part of the contract which gives him bread may be beneficial, and if he has received bread, he is bound to pay for it, in the manner which the law implies; but that part which respects the service does not bind him, because it is not a necessary mode of paying for bread.
    The case however comes within the admission of Mr. Dallas. The mother is by the act of 29th March 1803, Sec. 29, Purdon’s Abr. 455, bound to maintain her son, who is sickly and unable to gain a competent living. She is therefore within the rule of the father’s right, and is entitled to his service. She is in fact his guardian by nature, and ought to have the custody of him until twenty-one. 4 Bac. 404. -^nc* '^although this guardianship embraces merely. the heir, yet in Pennsylvania all are heirs.
   Tilghman C. J.

John Lewis Connor who is brought before the Court on this habeas corpus, is an infant of the age of seventeen years and about eight months. He has neither father, master nor guardian, but he has a mother with whom he lived at the time of his being enlisted in the navy of the United States, two or three weeks ago. He claims a discharge on the principle of his contract not being obligatory, by reason of his infancy.

By the eighth section of the first article of the constitution of the United States, it is provided, that the congress shall have power to raise and support armies, and to provide and maintain a navy. In this power are included all powers necessary to effect the object intended. I shall not attempt to draw the line which limits the authority of the congress in their laws for raising armies and providing a navy. But it is certain, that in the navy particularly, the service of persons under the age of twenty-one, may be very useful not only to the country, but to the infants themselves; because practical knowledge of sea affairs, is not to be acquired without early discipline. Granting then for the argument’s sake, (and for the argument’s sake only) that by the common law an infant may avoid any contract by which he has bouud himself to any service, it is to be considered, whether such contract may not be binding by virtue of the act of congress under which enlistments are made for the navy. I have said, that I shall not attempt to draw the line which limits the power of congress, but I think I may safely say, that they have power to give validity to the contract of an infant, who has come to the years of discretion, and who is not subject to the control of any other person. That will be sufficient for the present purpose; for Connor had neither father, guardian nor master. As for his mother, although he owed her reverence and respect, yet she had no legal authority over him. Assuming then that congress have the power which I have mentioned, let us see how far they have exercised it. By the act of 31st January 1809-, the President is authorized to cause to be engaged and employed 800 midshipmen, and 3600 able-bodied seamen, ordinary '-seamen and boys, who shall be engaged to serve for a period not exceeding two years. It may be said that the intention was, that boys might be employed, with the consent of their fathers, guardians or masters. But suppose there is no father, guardian or master. In such a case it appears to me that the intention was that the infant might contract for himself. Such intention, is entirely consistent with-the words of the law, may be productive of good consequences, and is attended with no evil. The country is benefited, the right of no person is violated, and helpless unprotected infants, may be put in the way of earning a decent livelihood, and becoming useful citizens. It is impossible to say in any individual case, whether engaging in the navy will be attended with good or bad consequences. But it may safely be taken as a principle, that to an infant without father, guardian or master, it is a beneficial contract. I am the more induced to put this construction on the act in question, because, on adverting to an act respecting the army passed 16th March 1802,1 find it is provided 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.” This proviso is altogether omitted in the act respecting the navy, so that a question might be made, whether infants may not engage themselves in the navy even without the consent of parents, masters or guardians. Concerning that I intimate no opinion, but confine myself to the case before the Court. Connor is of an age to comprehend fully the nature of the engagement which he has made, and at the time of making it, there was no person who had any lawful authority over him. In such case, I am of opinion, that the congress had power to authorize him to make a binding contract for engaging in the service of his country, and that they have authorized him. He must therefore be delivered to Commodore Murray his commander.

Yeates J.

By the express terms of the eighth section of the first article of the Constitution of the United States, congress have “ power to provide and maintain a navy;” and must therefore possess the inherent right of enacting such laws as may be found necessary to effectuate that object, Although in so doing they may interfere with the particular provisions of individual states.

The question arising on the return of this habeas corpus, is what is the true construction of the act of congress of 31st January 1809, which authorizes the President of the United States to engage and employ 3600 able bodied seamen, ordinary seamen and boys? It does not contain the provisions made in the eleventh section of the act of 16th March 1802, as to the army “ 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.” 6 U. S. Laws 17. I see no ground whatever to doubt the constitutionality of either of these laws.

It has not been contended by the attorney for the district, that an infant under the years of discretion, or one whose services have been engaged by a prior contract, can lawfully engage in the navy of the United States, but that at all events a mother after the death of the father has no legal right to prevent her son from forming such engagement.

The father is entitled to the services of his sons while they live with him, but however strange it may appear, the mother has no such right. Wood’s Inst. 64 ; 1 Bla. Com. 453; 1-Woodes. 451.

Infants are shielded by the policy of the law, from the effect of contracts, which may terminate in their ruin ; but-they cannot avoid every contract made during their infancy, which may tend to their benefit. They are supposed to have discretion for particular purposes. They may marry during their nonage; and it has been said that if an infant at the age of fifteen marries, he may take up provision for his wife and children.' Carter 215. At the age of fourteen they may choose guardians, or may make a will of personal estate. Fitzgib. 176 ; Gilb. Rep. 74. Their contracts are not void but voidable only. 1 Burr. 566. If they do a right act which they ought to do, or which they were compellable to do, they shall be bound thereby. 3 Burr. 1801. Where the minor has a probable benefit at the time which may result from the contract, he shall not avoid it. 3 Bac. 598.

Here then a lad above seventeen years and seven months old, has voluntarily engaged to serve in the navy of the ^United States for two years. His father is dead, and his mother has no legal right to his services. He is under no pre-contract. The interests of third persons are not affected by his present engagement. He owes a duty to his country as well as an adult; and this Court cannot do otherwise than presume, that the contract he has made is for his benefit. I am therefore of opinion, that he cannot now avoid it, and of course that he be remanded to his superior officer.

Brackenrid&e J.

I agree in remanding the boy, but not for the same reasons which have been given by the other judges. I agree it to be a principle of the common law, that an infant cannot bind himself by indenture, nor contract for more than such necessaries as become the estate which he has, or which may come to him. He may however contract for his necessary subsistence and clothing, because these are essential to his existence. In the present instance the boy has neither father nor guardian, nor any means of livelihood, except the trade of a shoemaker, which his health would not permit him to pursue. He is not of an age to have the ability of a day laborer, and no-employment could offer to him as a means of gaining subsistence, but upon a contract for time, as a year or the like. The present contract gives him subsistence and clothing. The common law therefore warrants it, because it is both necessary and beneficial. Courts have a superintending control over such cases, and can relieve where the contract is injurious or not beneficial ; and this is a sufficient security for the infant. I ex-elude all idea of the act of congress. It has nothing to do •with it. I will not look at it. It can give no authority to the other contracting party, to a slave, or a feme covert. Congress cannot change the principles of the common law. They have not the whole power of the people delegated to them. The legislature of the state may do it. Their power over the common law is without limitation. It is said that congress have all necessary powers to carry their express powers into effect, This principle of construction will include every imaginable power; I am against the extension of it further than it has hitherto been carried. Encroachments have already been made under the cover of this principle. In the case of the Bank of the United States it was strongly contested; a case upon *which many have changed their minds, who once denied the authority of congress to pass that law. I incline myself to think that some such law will be found necessary. But to justify under it the enactment of such a law as that of 1797, which sweeps the whole property of a debtor from his private creditors, and gives all to the United States, is monstrous. To give the argument that has been used in this case its true consequences, it will justify impressment, or any act whatsoever which can be plausibly urged as convenient or necessary to a naval establishment. I cannot agree to it.

Prisoner remanded.

[Cited in 7 Barr, 338; 3 Gr. 454, 567 ; 6 Phila. 178; 7 id. 77, 79 ; 9 Wr. 337.]  