
    Pennsylvania v. James Montgomery.
    A writ of habeas corpus, for Catharine, a mulatto woman, having been directed to James Montgomery, he returned, that he claimed her as a servant under an indenture, dated 7th November, 1777, by the overseers of the poor of Leacock township in Lancaster 
      county, with the consent of two justices of the county, binding her, as the child of a woman an indented servant of his, to him, till the said mulatto child, born 8th September, 1775, should accomplish her full age of thirty-one years, according to law.
    Brackenridge, for the master.
    This indenture is executed by virtue of the act for the better regulating of Negroes. The binding of the overseers is conclusive, that all the necessary requisites for giving them authority existed at the time; and the existence of those requisites is not now traversable. Many acts of justices, as convictions on view, &c. are records, and not traversable. No man would take a servant, if, after twenty years, the ground of the binding were traversable; and thus the law, intended to preserve the blood from commixture, would be entirely defeated. The law requires not only the agency of overseers, who are mere ministerial agents, but of justices of the peace, who are judicial officers. This shews an intention to make their joint acts conclusive.
    1 St. L. 143. O. Ed.
    
    1 St. L. 143, O. Ed.
    
    
      1 St. L. 842.
    Young, for the woman.
    The act has a variety of objects in view, The 8th section is the material one. It enacts that if any white man or woman cohabit or dwell with any Negro under pretence of being married, the child or children of such white man or woman shall be put out to service until they come to the age of thirty-one years. It gives no power to record a conviction. The courts had this power. In some other cases in this act, single justices have powers.
    There ought to have been a previous conviction in the county court, and, in consequence of that, with, or perhaps without, an order of the court, the overseers could bind. Then the proof could, at any distance of time, be given. The binding is in consequence of the conviction, and is a part of the punishment.
    Here the innocent offspring is bound by the act of mere executive officers. This is such tyranny as can exist in no free country. Indeed the law is now repealed.
    Were the construction contended for to be held good, it would be easy for the overseers to pick up and bind any helpless mulatto child. Shall not this be enquired into? The authority is merely ministerial, and must be subject to control. The subject requires the solemnity of a court of record.
    Commissioners of bankruptcy have powers like a court of record. They may imprison, &c.; yet their acts are traversable.
    In most cases of summary convictions, forms of conviction are prescribed; why did not this act prescribe a form, if it was intended that any act out of court should be conclusive?
    The law is careful of the person and interest of minors. It appoints guardians for them.
    A conviction is necessary to recover the fine of 30l. under this section; a fortiori, to bind the innocent child. The court will surely not presume what ought to be established by a conviction.
    The indenture does not even set out the necessary requisites: it says not, that the father and mother lived together under pretence of marriage. The overseers therefore shew no authority. It may have been an ordinary binding of a helpless orphan, and good only till 18 years of age. The petitioner has already served 19 years; and that is sufficient to indemnify the master.
    
      Brackenridge. There are two parts of the punishment of the offence against this act; one is the fine of the parents, another the servitude of the child. There is no reason, why, because the state has not prosecuted for the one, the overseers may not exercise their part of the duty. The two things are entirely separate. The acts of a justice of the peace are frequently conclusive; as in cases of debt under forty shillings, and in many convictions for the breach of penal laws.
    We are to consider this case, as if it were discussed the day after the binding, with all the prejudices then existing. The binding was not traversable one hour after it was completed. If traversable then, I admit, it is traversable now.
   President.

Overseers of the poor have a right to bind out children, who have none to provide for them, till, if females, they arrive at the age of 18 years, or, if males, at the age of 21 years; when, it is presumed, they can provide for themselves. This indenture is good till eighteen.

It is a settled point, that one man is not bound by the act of another, except as to rights claimed under that other. A verdict, &c. between two may be traversed by a third person affected by it.

This woman, arrived at an age to provide for herself, calls for the authority of the master or the overseers, to keep her longer in servitude. No authority is shewn, but the indenture. That, of itself, is not sufficient, for a longer term, than till the woman bound arrives at the age of eighteen.

The woman was discharged.  