Timmins v. Lacy

• Decision Date: 30 April 1867
• Citation: 30 Tex. 115
• Parties: MARY TIMMINS v. SARAH LACY ET AL.
• Court: Texas Supreme Court

30 Tex. 115

MARY TIMMINS

v.SARAH LACY ET AL.

Supreme Court of Texas.

April, 1867.

Upon the question of jurisdiction the cases of Arberry v. Beavers, 6 Tex. 457, and Baker v. Chisholm, 3 Tex. 157, were examined and quoted at length, to show that they related to the special limited duties under discussion. Pas. Dig. notes 182, 433, 604.

The first section of the act of 1866, about apprentices, declares, that “in all applications for apprenticeship, ten days' notice, as in the case of guardianship, shall be given, and no minor shall be apprenticed except at a regular term of the court.” See the act, post, page 119. But the county court does not derive its powers to apprentice from the statute by which the exercise of jurisdiction is regulated, but from the constitution, which gives it as clearly and positively as any other branch of the jurisdiction. Pas. Dig. p. 935, sec. 6.

It follows that the jurisdiction is over an inferior tribunal, by the exercise of a general superintendence and control, with the right, when necessary, to issue the writs of injunction, certiorari, etc. Pas. Dig. p. 935, sec. 6, and note 182, p. 57.

The 16th section of the IVth article of the constitution of 1866, gives the power to the county courts to apprentice minors under such regulations as may be prescribed by law. Pas. Dig. p. 937, sec. 16. And while the 6th section of the same article does not expressly give appellate jurisdiction as to this subject-matter, yet it is within the superintendence and control of the district court. Pas. Dig. p. 935, sec. 6.

The most that could be said is, that if an appeal does not lie from the county court, its action may be brought into exercise by certiorari.

It is a universal principle of the common law, that the father of a bastard has no parental power or authority over such illegitimate offspring.

A bastard is a child born out of lawful wedlock.

And there can surely be no lawful wedlock between parties who are under disability, and cannot exercise the freedom of consent essential to every contract.

Slaves could not marry, even with the consent of their masters, so as to constitute them husband and wife, and protect them from being witnesses against each other; they could not take property by purchase or descent; they had no heirs, and could make no will; they were not entitled to the rights and considerations of matrimony, therefore they had no relief in cases of adultery; they were not the proper objects of cognation or affinity, but of quasi cognation only: contubernism was the matrimony of slaves, a permitted cohabitation, not partaking of lawful marriage, which they could not control.

The state of slavery in this country compared with the Roman law in many respects. The progress of society in civilization, more correct notions on the subject of moral obligation, and, above all, the benign influence of the christian religion, have softened many of the rigors attendant on slavery among the ancients. But the rights of the slave, in respect to marriage and the acquisition of property by way of inheritance, remain substantially on the same gronnd.

The chief justice quoted, and inclined to approve, the opinion of MATTHEWS, J., that while in a state of slavery marriage could produce no civil effect, because slaves are deprived of all civil rights, yet that emancipation gives to a slave his civil rights; and a contract of marriage, legal and valid by the consent of the master, and moral assent of the slave, from the moment of freedom, although dormant during slavery, produces all the effects which result from such contracts among free persons.

The object and purpose of our apprentice law was to give to parents or guardians of minor children, subject to their control, and for whose care and nurture the courts provide, the right of consent. But the father who had abandoned his wife and children has no power to rob the mother of the child, and direct its apprenticeship.

The trial in the district court was de novo, and the judgment was affirmed, without settling the general practice upon a certiorari in such cases.

APPEAL from Cherokee. The case was tried before Hon. REUBEN A. REEVES, one of the district judges.

This case introduces a new feature in the history of Texas jurisprudence. There was literally nothing in the laws of the republic in relation to apprentices. The 44th section of the act of 20th March, 1848, relating to guardians and wards, reads as follows:

“When a minor shall have no parents living, and no estate, the chief justice shall have power, without the appointment of a guardian, to bind out such minor to some suitable person who will undertake the support and education of such minor; if a male, until he shall arrive at the age of twenty-one years; and, if a female, until she shall marry, or arrive at the age of twenty-one years, whichever shall first happen; and when any such minor shall have property, but not sufficient for his support and education, the chief justice may authorize the guardian of such minor to bind out such minor under the like rules and regulations.” Pas. Dig. art. 3927.

And by the 39th article of the penal code, apprentices were put in the same category with children and slaves, as to offenses perpetrated at the instance of parents, guardians, or masters. Pas. Dig. art. 1641. These were the whole of our laws in reference to apprenticeship. And practically these two sections were dead letters. The jurisdiction was rarely, if ever, exercised by the county courts. In a country of such plenty, and where livings were so easily obtained, orphan children were generally provided for by the early marriages of widows; by the kindness of some relative or friend; and, more generally, by becoming men at ten or fifteen years of age.

Our educational system paid for their tuition at any public school in the state. In the country, they remained upon farms and took to stock-raising, farming, driving teams, or hunting, as best suited their tastes. In the cities, they learned to set type, or handicraft with established mechanics; or else they turned to be merchants' clerks, law or medical students, never being charged for tuition, and not often for board or clothing; or, if religiously inclined, they took to preaching without preparation. The sufferings of orphans or begging by them was unknown. And while they were rarely hired to work, there was no such thing as “going out to service.” The reporter takes this occasion, once again, to repudiate the “great lie,” that to work was a degradation in the south, and that orphan children grew up in idleness or as vagabonds. Nor is it true, as a rule, that the children of the well-to-do people did not labor. In truth, in the south, as in all the rest of the world, to labor in some way was the rule; to be idle, the exception. There were few organized charitable institutions; but there was a great deal of hospitable charity in taking care of the children of deceased relatives and friends, and bringing them up with tolerable educations. And while slavery had its great evils (and what civilization has not), no system of property was better adapted to keeping families of deceased fathers together than that system. It was far more generally distributed than is usually believed. To own few slaves was the rule; many, the exception. Of the three hundred and fifty thousand slave-owners in the whole south, one hundred and sixty thousand owned from one to three, and one hundred thousand from three to ten. When the humane slave-holder died (and all small slave-holders, as a rule, worked with their slaves and were humane), none were so anxious about the children as the faithful slaves. These, with the aid of the widows and children, generally “worked out the debts,” and the farms went along better than they had with thriftless masters. And among that far more numerous class, the six millions whose families were unconnected with slavery by ownership, to be busy laborers was the general rule. They included among them divines, physicians, lawyers, editors, teachers, printers, engineers, all sorts of carriers, merchants, hotel-keepers, mechanics of every art, manufacturers, officers of every grade, professional politicians, overseers, and the vast numbers of small farmers who really made up the great agricultural strength of the southern states.

No eight millions of civilized people were so moral, none more independent. The “poor white trash” was more a thing of imagination than reality. Next to the “great lie,” that the white man never worked in the south, was the shameless one, that the family without slaves had no social or political influence in southern society. Society there, as elsewhere, was greatly controlled by the learned professions and men in commercial life, or those callings which bring them into constant contact with the public. These were not the wealthy planters, by any means, but the classes before mentioned.

The orphans of those without slaves almost always found friends, who gave them employment until they took to professions, like our Crawfords, McDuffies, Clays, Houstons, Grundys, Johnsons, Hamiltons, Lipscombs, Arringtons, and hosts of other great lights, who have added lustre to the nation. Indeed we have few who have won renown in the southern states, who, as boys, did not labor on the farms, or in some other manual way, which gave constitutions and habits of application and conscious self-reliance.

The sudden emancipation of four millions of illiterate people, who had hitherto been slaves--a people without property, money, or book-learning-- required some change of legislation. It is not to be denied, that the shock was a great one, and that it distracted the minds of many, and caused inventions, as to how the labor should be controlled for the benefit of the old masters. Although most men had long felt, few were willing to acknowledge, that slavery was a very expensive institution of the master.

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