Transforming Childhood: Apprenticeship in American Law

Janet L. Dolgin ^*

I.  Introduction

Primarily through the analysis of relevant cases in law, this Article reviews the history of a single idea central to a heated modern debate of momentous social and legal import. It does so in the hope that an historical perspective will afford each of the two major parties to the modern debate a heightened understanding of its own agenda, and of the agenda of its adversary, and will thus contribute both to the tone and to the substance of the debate.

The debate is about the meaning of family in contemporary American society and law. The idea central to this debate is that the best interests of children should be the principal consideration in family life, and in family law. The historical survey should advance the debate by demonstrating that the idea came into existence only recently; that as it evolved it improved significantly the lives of all children but those of the poor; and that one ancient institution whose decline it hastened was used, when near extinction, to the disadvantage of poor children.

Between the two major parties to the debate--the advocates of traditional and of post-modern conceptions of the family⁽¹⁾--the range of disagreement is almost total. Apart from a shared focus on the welfare of children, the two sides agree about virtually nothing. And the value of their consensus about the idea that children's best interests should be paramount is diminished by the fact that both parties, equally uninformed by history, espouse the idea with insufficient awareness of its antecedents, its nature and function as originally conceived, and therefore its usefulness in the modern debate about family.

In the opinion of the traditionalists, families can survive as supportive, life-giving institutions only insofar as traditional forms--usually, private social units consisting of married adults and their biological children--are safeguarded from threats to their vibrancy and even to their existence. In the post-modern opinion, nurturing, loving families can survive in a variety of new forms that differ from, or even undermine, traditional forms. The traditionalists defend the "old-fashioned" family, validated, in their opinion, by millennia of success as a social norm. Their antagonists, by contrast, applaud the advent, especially within the past several decades, of such innovations as non-marital cohabitation, same-gender marriage, and no-fault divorce. Neither party to the on-going debate questions the desirability of family as an institution. But their conceptions of how it should be structured differ almost completely.

On one point alone do they seem to agree: that, however structured, the family should protect the interests of children. And this agreement derives from a consensus grounded basically in a myth: a shared conviction, accepted as axiomatic, that the family is a sacred unit; that childhood constitutes a natural, and thus inevitable, stage of development; that the passage from childhood to adulthood, though open to social manipulation and reform, is a natural and thus culturally universal process; and that children are special, treasured beings, closer to nature than to culture, purer and more innocent than adults, and thus deserving, on metaphysical grounds, of particular care.

Like all myths, the myth of the family is less a description of social fact than a statement of human aspiration. Actual families, and the family of myth, differ in substantial ways.⁽²⁾ Moreover, the tendency of its adherents to regard it as an archetype independent of history obscures the danger that ideas central to it may be mutable, or even mortal, if imprudently espoused; a danger unsettling in proportion as such ideas are valued.

From this danger both the traditionalist and post-modern adherents of the myth of the family described above can be protected only by an adequate understanding of history. This Article offers one such understanding--the understanding of a social construct which preceded the modern myth of family; the effect of an idea central to that myth upon the social construct; and the manner in which the construct, though nearly defunct, was invoked to serve an oppressive social end essentially unrelated to it.

The present Article provides this understanding by tracing the evolution of the conception of childhood, as that conception is reflected in the response of American law to the institution of apprenticeship.⁽³⁾ By focusing upon this institution, the Article demonstrates that, before the Enlightenment, the myth of the family described above did not exist; that it was created as a series of seminal upheavals in Western culture (to be discussed, of necessity, only in passing) began to erupt; that its most significant effect was to establish, in moral theory and then gradually in social fact, the idea that the interests of children (of the upper and middle classes) must be central to family life and to family law; and, finally, that, as it was gradually undermined by that idea, the institution of apprenticeship was found to be useful rhetorically to advocates of exploitative child labor and foster care.

The presumption by both parties to the debate that the myth of the family they both adhere to has always existed is belied by the facts. Until the fifteenth or sixteenth century, infants in the Western world grew into personhood at about seven years of age.⁽⁴⁾ At seven, children became little adults, wearing adult clothing and participating in adult activities. Previously, Western society had no notion of an extended period of slow adjustment and development into adulthood.⁽⁵⁾ During the subsequent three or four centuries, society internalized and elaborated the conception of childhood (and a conception of motherhood compatible with it), but not until the late eighteenth century did the modern conception of childhood become a crucial element in society's construction of a new myth of family.

With the Enlightenment, ancient patriarchal bonds were undone. Within families, these bonds were slowly replaced with a new spirit of equality and individuality. The ancient pater, whose rule of family had paralleled the priest's rule over church and the local "fathers'" rule in town,⁽⁶⁾ was replaced by a far less secure father. Fathers continued to dominate, but with old certainties under siege, the justification for that domination was exposed to unprecedented challenge.

At first, the family, as much affected by the development of the Industrial Revolution as by the Enlightenment, became a refuge from, a pleasant antithesis to, the tensions of the marketplace. The new marketplace quickly replaced the family as a productive unit. Instead of men, women, and children working together at home, men became wage-earners, departing from home each morning to work. Society, struggling with a dramatic uprooting of realities, and assumptions about them, that had once seemed secure, responded with dramatically new conceptions of work and home, of personhood, motherhood and childhood.⁽⁷⁾ As the Western world reeled under the overwhelming shifts in economic process and ideological belief that characterized the late eighteenth and nineteenth centuries, a myth of family emerged which offered solace from the chaos of apparently unrelenting change. Central to that myth was the idea that children were treasured prizes for their anxious bourgeois parents, and therefore deserved to be coddled and protected as never before in Western history. Thus defined, children began, for the first time, to enjoy a clearly defined stage of life completely cordoned from economic process.

As men were identified with work and money, children (and their nurturant mothers) were identified with home and hearth. This post-Enlightenment ideology⁽⁸⁾ of family developed rapidly during the second half of the nineteenth century, attended by a set of moral directives about proper treatment of children and proper conceptions of childhood. Not all children benefitted. The poor were excluded, almost always in fact, and often in theory as well. But for the children of the upper and middle classes an overwhelming ideological and social shift had occurred.

This Article explores the ramifications of that shift, by analyzing the fate of the ancient institution of apprenticeship during the century that followed the acceptance of Enlightenment ideology. As will be shown in detail, during the colonial and early post-Revolutionary period, before the shift occurred, apprenticeship was basically a matter of business. A parent (generally a father) or guardian and a master negotiated a contract that stipulated how a commodity--an apprentice--would be used for mutual profit. Since during this period a venerable conception of family as an organic, mutually supportive unit still existed, the contracts presumed that certain moral and practical benefits would accrue to the apprentice. This presumption notwithstanding, the contracts were almost always in essence commercial. With the shift in social conceptions of childhood, such contracts became, perforce, increasingly anachronistic. Since custom and law almost invariably respond in a tentative and uncertain fashion to major cultural shifts, essentially commercial apprenticeship contracts continued to be written. But increasingly, as the nineteenth century unfolded, they represented the tardiness of society in grasping the shift, or involved only the children of the poor, who were typically excluded from the benefits of the ideological shift. For the children of the upper and middle classes, American law, reflecting its empowered constituents, gradually provided protection appropriate to treasured darlings, by gradually asserting that their interests were of paramount legal import. And as apprenticeship was increasingly seen as incompatible with those interests, it was doomed to gradual obsolescence.

Its usefulness as rhetorical device, however, persisted. Long after it had ceased to function as social construct, apprenticeship served as effective argument for social programs to which it bore no relation, and in whose behalf it could not be--but nonetheless was--invoked. Industrialists eager to exploit child labor, and politicians eager to trim budgets by removing poor children from their parents' homes, found in a social construct almost defunct rhetorical support for their goals. To the fulfillment of these goals apprenticeship could be made to lend rhetorical assistance.

In its heyday it had functioned far less quizzically. Most colonial parents apprenticed their children soon after infancy ended (generally between the ages of seven and fourteen), to learn a trade and to be educated at least minimally in the home of a master. Master-apprentice relationships were usually the product of contractual negotiations⁽⁹⁾ that led to written agreements between a child's parent (generally father) and master; agreements that today would be labeled immoral, and proffered as evidence necessitating neglect, or even abuse, proceedings.

Within less than a century of the American Revolution, the practice of indenturing as apprentices any children except the those of the poor had become obsolete. The idea of middle- and upper-class children as inestimable treasures having taken hold, apprenticing them had become morally repugnant. Poor children were less fortunate, and remained so until at least the first decades of the twentieth century.⁽¹⁰⁾ Until the end of the nineteenth century, poor children were subjected to indentured servitude, either "voluntarily" by their impoverished parents, or involuntarily under state poor laws. Such servitude, often referred to as "apprenticeship" as the two terms became increasingly synonymous, often closely approximated slavery, and demonstrated that poor families, and their children in particular, were disadvantaged, often deliberately, by the rhetorical ghost of a social construct once a powerful force in American life and law, but rendered obsolete by the emergent conception of family and by the idea central to it (the best interests of children).

The second Part of this Article traces the origins of that construct in the late medieval world, its regulation by English statutes in the sixteenth and seventeenth centuries, and its incorporation, basically intact, into colonial American life.⁽¹¹⁾ The third Part, through close examination of court cases involving apprenticeships, demonstrates that, as the evolving interest in the welfare of children (and, to a lesser degree, and for the most part indirectly, the welfare and power of women) displaced the law's traditional respect for paternal rights as the governing principle in cases involving children's custody, courts relied on competing understandings of the master-apprentice and parent-child relationships.⁽¹²⁾ It demonstrates further that the law responded in a tentative and uncertain fashion to the vast transformations that redefined the worlds of home and of work during the Industrial Revolution, but gradually undermined the system of apprenticeship because it conflicted with an emerging conception of children of upper- and middle-class families as treasured beings deserving, on metaphysical grounds, of especial care and legal protection.⁽¹³⁾ And finally it demonstrates that the emerging conception excluded poor children; that, indeed, as it was increasingly undermined by evolving conception of children, apprenticeship was invoked, but now to exacerbate rather than to improve, the situation of the poor.⁽¹⁴⁾

II.  Apprenticeship: To the Industrial Revolution

The system of apprenticeship,⁽¹⁵⁾ instituted in European towns during feudal times by local trade guilds, was transferred with some changes, but basically intact, to the colonies, where it flourished for well over a century. In British North America the system became indispensable in the seventeenth and eighteenth centuries for socializing and educating children and training them to enter trades and professions.

A.  The English System

In England local ordinances began to regulate relations between apprentices and masters during the last part of the thirteenth century.⁽¹⁶⁾ These early regulations included some of the basic principles that characterized later English legislation. Among the rules applied to English fishmongers in 1280, for instance, were those requiring public registration of each master-apprentice relationship; those limiting the number of a master's apprentices to one or two, but in no case more than a number that the master could support; and those requiring that the master-apprentice relationship continue at least seven years.⁽¹⁷⁾ In addition to these rules, by the middle of the thirteenth century all London craft guilds required apprentices to pay an "entry fee" and an "exit fee." The latter represented acceptance into a guild and status as a "freeman," including local political rights and significant economic privileges.⁽¹⁸⁾ Able to control admission to the rank of master and to plan the training of the next generation of masters, guilds had considerable power within late medieval towns.⁽¹⁹⁾

In the late middle-ages many English families placed their children in apprenticeship positions after the age of about seven. Masters, acting as parent and teacher, became responsible for the moral, as well as professional or vocational training of their apprentices. Guild rules and town ordinances placed limits on the sorts of punishments that masters could inflict and thus limited the authority of medieval masters.⁽²⁰⁾ One rather uncomplimentary fifteenth century account of English families, written by an Italian, asserts that the entire system of apprenticeship reflects the unaffectionate relations that pertained between English parents and their children:

The want of affection in the English is strongly manifested towards their children; for after having kept them at home till they arrive at the age of seven or nine years at the utmost . . . , they put them out, both males and females, to hard service in the houses of other people, binding them generally for another seven or nine years. . . . And these are called apprentices, and during that time they perform all the most menial offices; and few are born who are exempted from this fate, for everyone, however rich he may be, sends away his children into the houses of others, whilst, he, in return, receives those of strangers not his own.⁽²¹⁾

Early indenture agreements contained most of the basic provisions found in such agreements during subsequent centuries. Three agreements, written respectively in 1291, 1496 and 1414, obliged the master to instruct the child⁽²²⁾ in the master's trade and to provide for the child's maintenance; the apprentice, in turn, agreed to live with the master, to serve him and obey his "reasonable" commands, to keep the master's secrets, and to refrain from immoral behavior.⁽²³⁾

In England, the apprenticeship system came under national scrutiny when it was established as a national trade program in 1562 with passage of the Statute of Artificers. The system, like its feudal counterpart, was meant to ensure that master craftsmen would transmit their skills but, even more, was directed at creating and maintaining foreign commercial interest in English products.⁽²⁴⁾ The statute established rules for managing the system of apprenticeship, though enforcement of those rules was still left largely to local guilds.⁽²⁵⁾

Under the Statute of Artificers only a master's child or the child of parents possessing freeholds worth at least forty shillings was entitled to serve as a voluntary apprentice.⁽²⁶⁾ Almost from the start, however, this system for establishing voluntary apprenticeships co-existed alongside another system which established involuntary apprenticeships for impoverished children. Soon after the Statute of Artificers preserved voluntary apprenticeships for children of the artisan class, the English poor laws established a system of apprenticeship for poor children. A series of English statutes, culminating in the Poor Law of 1601,⁽²⁷⁾ required town overseers (a position created by statutory law about thirty years earlier)⁽²⁸⁾ to provide relief to the poor and seek work for them and apprenticeships for their children.⁽²⁹⁾ These apprenticeships, unlike others, were aimed at "binding children out" more than at teaching them the skills of a trade.⁽³⁰⁾ The system was widely praised. Blackstone remarked that English laws

have in one instance made a wise provision for breeding up the rising generation: since the poor and laborious part of the community, when past the age of nurture, are taken out of the hands of their parents, by the statutes for apprenticing poor children; and are placed out by the public in such a manner, as may render their abilities, in their several stations, for the greatest advantage to the Commonwealth.⁽³¹⁾

In fact, most apprenticeships in the skilled trades were closed to poor children, who were not infrequently left unsupervised during non-working hours and were often subjected to harsh punishment during working hours.⁽³²⁾

In England apprenticeships remained important until the middle decades of the nineteenth century although the Statute of Artificers was repealed in 1814, thereby ending the compulsory system of apprenticeship that had been in operation for over two centuries.⁽³³⁾ By the end of the nineteenth century children who worked had become independent wage-earners, preferred to their parents as laborers only because they were cheaper.

B.  The System in British North America

With some changes, but basically intact, the English system of apprenticeship was brought to the colonies during the seventeenth century. It persisted in its imported form until the end of the eighteenth century, as basically a commercial arrangement. Because, as will be seen, colonial society viewed itself as a single continuous family, unified by a traditional world-view and moral system, the position of principle was maintained and often enunciated that apprenticeship was concerned not only with commercial profit but with the moral as well as technical education of the apprentice. This position notwithstanding, the apprenticeship contract was essentially, as will be seen, a stipulation of business interests.

In the typical arrangement, journeymen and apprentices labored together in a craft workshop for a master.⁽³⁴⁾ Colonial apprentices, who lived with the families of their masters, owed those masters reverence and obedience, and were entitled, in turn, to decent treatment.⁽³⁵⁾ During the colonial years most children received basic parts of their moral and practical education away from "home," usually as apprentices.

The colonial family typically housed many children, including young relatives such as nieces and nephews, apprentices, as well as other servants, and the basic unit of husband and wife.⁽³⁶⁾ This family was understood as joined with the wider community to create a continuous social whole.⁽³⁷⁾ Family and church represented complementary and interconnected aspects of the colonial community; each espoused the same moral vision of reality. As one seventeenth century "Puritan" preacher explained:

A family is a little church, and a little commonwealth, at least a lively representation thereof, whereby trial may be made of such as are fit for any place of authority, or of subjection, in church or commonwealth. Or rather, it is as a school wherein the first principles and grounds of government are learned; whereby men are fitted to greater matters in church and commonwealth.⁽³⁸⁾

During this period, family and church together constituted the core institutions through which the colonial world socialized and trained children. Not for over a century did formal schooling begin to appropriate significant parts of each task.

Within the family, the system of apprenticeship constituted the central educational institution, providing vocational, as well as moral and intellectual, training during the colonial years:

Servants of almost every degree were included within the family, and it was the family's discipline that most directly enforced the condition of bondage. The master's parental concern for his servants, and especially for apprentices, included care for their moral welfare as well as for their material condition. He was expected and required by law to bring them up in good Christian cultivation, and to see to their proper deportment.⁽³⁹⁾

Almost always the master-apprentice relationship was created pursuant to a written indenture agreement, signed by the master, the apprentice (if deemed old enough to understand the meaning of consent) and the child's father or in the absence of a father, the child's mother or guardian.⁽⁴⁰⁾ These agreements, though negotiable to some limited extent, usually followed closely the model that had been created by medieval guilds.⁽⁴¹⁾ A typical indenture agreement leading to the creation of a colonial master-apprentice relationship required the apprentice to learn his master's trade while serving the master faithfully, and required the master to educate the apprentice and supply him or her⁽⁴²⁾ with lodging, clothing, and food. One such agreement stipulated

that Henry Nap, son of Joseph Nap, of Boston, in the County of Suffolk, Ship Carpenter, hath put himself, and by these presents doth voluntarily put himself Apprentice to William Stone of Charlestown, Butcher; to learn his Art, after the manner of an Apprentice to serve him from the day of the date hereof, for and during the term of seven years, thence next following: During all which term, the said Apprentice his said Master faithfully shall serve, his secrets keep, his lawful commandments every where obey, He shall do no damage to his said Master, nor seen to be done of others, without letting or giving notice thereof to his said Master: He shall not waste his said Masters Goods, nor lend them unlawfully to any; he shall not commit Fornication, nor contract Matrimony within the said term; at Cards, Dice, or any unlawful Game he shall not play, whereby his Master may have damage with his own Goods or others: He shall not absent himself day or night from his Masters service without his leave, nor haunt Ale house, nor Tavern, but in all things behave himself as a faithful Apprentice ought to do; during all the said term, And the said Master shall use the utmost of his endeavor, to teach or cause to be taught or instructed, his said Aprentice in the Trade or Mystery that he now followeth; and to find and provide for him sufficient meat, drink, apparel, lodging and washing befitting an Apprentice, during all the said term. And for the true performance of all and every the said Covenants and Agreements either of the said parties binds himself unto the other by these presents. In witness, whereof, they have interchangeably set their hands the 10th day of April, &c.⁽⁴³⁾

The situations and contracts described briefly above are typical. As had been the case in Europe for centuries, apprenticeships in colonial America were designed to benefit people in organic communities. Fathers and masters, as heads of hierarchical family units, entered into contracts that stipulated how a commodity--the apprentice--was to be used for mutual gain. Because of prevailing social norms, it was sometimes necessary to stipulate further that the apprentices were to be treated humanely, and to be taught conventional social values, moral and religious. But they were certainly not children, as modern society understands the term; the category "children" in its modern sense did not exist. Nor did the further stipulation effectively mask the essentially commercial nature of the contract in which it sometimes appeared. The master and the apprentice's parent (usually, the father) would profit from the contract. The apprentice would learn a trade. It was business as usual, as it had been for centuries.

III.  Apprenticeship: The Industrial Revolution

But it was business that was about to cease. As the direct result of a huge upheaval, irresistible forces were about to restructure Western culture almost unrecognizably, and in consequence to sweep abruptly away institutions hoary with legitimacy and age, among them the institution of apprenticeship.

The upheaval was the Industrial Revolution. A full discussion of its social effects is obviously beyond the scope of this Article. But a brief discussion of a number of them will help to explain the gradual demise of apprenticeship as an institution.

A.  The Middle Class

The decline and rapid disappearance of indentured servitude for white adults,⁽⁴⁴⁾ and soon thereafter of apprenticeships and indentured servitude for all but poor children, coincided with the re-definition of both family and work in the United States beginning in the early years of the Industrial Revolution. At the start of the nineteenth century, the system of apprenticeship could still be seen as educational,⁽⁴⁵⁾ and thus salutary, and some young apprentices still came from middle-class homes. By the end of the century, the system of apprenticeship had disappeared completely as a means of educating middle-class children and providing them with the training and position needed to become economically self-sufficient.

The transformation and eventual disappearance of the system of apprenticeship for the middle class was closely connected to sweeping shifts in the larger society. In particular, relations at home and relations at work were reconceptualized so that the two sorts of relations became increasingly incompatible. This reconceptualization made it difficult to sustain an institution that, especially in the American context, assumed compatible understandings of home and work and that, assumed further, that work could be, and usually was, conducted at home. Even at the start of the nineteenth century, the world of family was beginning to be defined in express contrast to the world of work, Moreover, "home," the domain of family, was separated, not only in theory, but physically as well, from the "office" and the factory--from the domain of work. Home was becoming the sphere of women and children; work was becoming the sphere the men.⁽⁴⁶⁾

In the patriarchal family of the colonial years, family and work blended together within one economic and social unit. Husbands and fathers had authority over wives and children, but men, women and children all worked in the home and in the community to make the familial unit prosper.⁽⁴⁷⁾ And relations in the rest of life (the village, the church) mirrored those at home. With the start of the Industrial Revolution, this family began to collapse. The holistic, hierarchical family of the colonial years, a family that merged into and was part of the social fabric outside the home, was largely replaced by a new form of family. As work moved out of the home and into the marketplace, the home and the family were redefined as areas of "private life" within which women raised children. Men, who spent their days elsewhere--in the "public" world of the marketplace--became less integral to everyday life at home.

Legitimate work was redefined to exclude women and children as the central presumption of the nineteenth-century marketplace became clear. That presumption--that in the marketplace each autonomous individual could, and must, negotiate the terms of his own reality--contrasted sharply with the presumption of the home--that woman's nature suited her to the tasks of raising children and keeping house.⁽⁴⁸⁾ For the children of the wealthy and middle classes, childhood itself changed. Earlier seen as small, inexperienced adults, these children were removed with their mothers from the world of the marketplace, and socialized in an increasingly permissive and secular world, one carefully differentiated from the domain of men and work.⁽⁴⁹⁾ Having lost the productive function it had enjoyed in the colonial years, the family remained important, with children at its center, as a unit of bonding and affection. In this context, childhood was elaborated and extended as a distinct stage in life, with distinct characteristics and needs. With these changes in understandings of the family and of the significance of children and childhood, the notion of apprenticeships became less and less compatible.

Equally important, with the Industrial Revolution came a basic reconceptualization of legitimate work. The eighteenth century understood both apprentices and indentured servants as voluntary laborers in contrast to slaves. Unlike slavery, indentured servitude and apprenticeship had been understood as based in contractual freedom and therefore as legitimate forms of work.⁽⁵⁰⁾ By the start of the nineteenth century, Americans were redefining indentured servitude (including apprenticeship), and categorizing it with slavery, as a form of involuntary servitude. By this time wage labor was clearly emerging as the only legitimate form of labor.

In sum, the amalgamation of home and work necessary to the system of apprenticeship as it had been practiced since originating in feudal Europe was replaced by two separate, almost antagonist domains of human endeavor. Concomitantly, both the father-child and the master-servant relationship were redefined. The father-child relationship identified with private, domestic life, grew more uncertain as the mother-child bond became the predominant familial tie. The master-servant relationship shifted almost beyond recognition to meet the demands of the marketplace. Finally, childhood was redefined as a stage of life fit for play and learning, but not for work, and legitimate work was redefined to exclude indentured servitude. Inevitably these changes culminated in the decline and eventual disappearance of the institution of apprenticeship and indentured servitude, for children, as well as for adults, in the United States.⁽⁵¹⁾

As the changes were momentous, they were greeted in a tentative, confused, and wary fashion; understandably so, since they necessitated basic alterations in the understanding of family, and in the distribution of power within the family. The process by which those alterations were made--primarily for the benefit of the middle class--is reflected clearly in the shifting responses of the legal system to the institution of apprenticeship as it decayed. The changes discussed forced reconsideration of the following basic aspects of family: the authority of fathers; the nature and social power of mothers; and the nature and rights of children. And, as will now be seen, profoundly unsettling conclusions were broached, shied away from, and, because increasingly unavoidable, broached again: that the authority of fathers should, in appropriate circumstances, be curtailed; that mothers deserved heightened respect, and perhaps even some modicum of power; that the idea of the best interests of children was a legitimate--perhaps even a central--concern of law; and--perhaps most startling, given the age in which it was asserted--that children should sometimes be free to choose their own fate.

1.  Indentured Children and Paternal Authority

After the Revolution, American society and law definitively reconceptualized the status and role of fathers. The paramount authority fathers previously enjoyed began to be challenged successfully in court as judges began to replace the old rule (that fathers enjoyed near absolute authority over their children) with a new rule (the best-interests of the child). Law, reflecting the larger society, questioned the assumption that paternal custody followed inevitably from a property interest that a man enjoyed in this children. That assumption, once challenged, began to seem increasingly inconsistent with newly romanticized images of romping children enjoying the natural freedoms of childhood. By the start of the nineteenth century, as court began to focus on the welfare of children in domestic disputes, mothers, and sometimes even third parties, achieved some success in disputes against fathers.

In general, the source of paternal authority remained a subject of debate for society and law at the end of the eighteenth, and start of the nineteenth, centuries. Disputants continued to assert that paternal authority stemmed inexorably from the fact of paternity.⁽⁵²⁾ But this assertion no longer seemed self-evident. Alternative understandings had become imaginable, and as a result, the character of debate was transformed. Even in cases in which a father's right to custody was presumed, the source of that presumption had become disputable. Thus, a father's right to custody, even when presumed, was often premised on his role as family provider rather than on his inherent status as pater.⁽⁵³⁾

As a result, resolution of disputes about indenture agreements came increasingly to rest on conclusions about the scope and bases of the right of fathers to bind their children as apprentices--once the fundamental presumption that legitimized master-apprentice relationships. Courts entertaining a variety of disputes about apprenticeships began to consider and re-consider the limits and implications of paternal authority. Such cases involved, for instance, disputes about a father's right to receive payments earned through his child's labor as an apprentice; disagreements about a father's contractual obligation in cases in which his child absconded from an apprenticeship before expiration of the term of service; or disputes about the need for paternal consent to his child's entering an apprenticeship.

a.  Entitlement to Wages

Traditionally in England, apprentices did not receive wages. However, even in the colonial period, and more commonly after the Revolution, American apprenticeship agreements began to provide for the payment of wages, either during the term of the indenture or at its termination.⁽⁵⁴⁾ This new practice reflected the breakdown of a system of apprenticeship in British North America that had understood home and work as compatible--often identical--spheres and reflected a growing identification of apprenticeships with the world of the marketplace--with the world of work and money.

When indenture agreements did begin to provide for wages, it was unclear whether a noncustodial parent (the apprentice was in the custody of a master) had any right to the earnings of the minor child. That question was disputed in a number of cases that came to nineteenth century courts for resolution.⁽⁵⁵⁾ These cases, and the debates they engendered, illustrate many of the parameters of the nineteenth century concerns about family. In particular, old assumptions about the source of parental status and control competed with new ones. As a result, these assumptions (the old and the new) were debated and reformulated. As a result, courts, even within a single district, depended on contradictory understandings and reached discrepant results in cases involving wages owed to indentured children or their parents. At stake most obviously were the comparative rights of parents, children, and masters. But more important, these cases considered, and then questioned, the bases of parental (and especially paternal) custody and, accordingly, the scope and the implications of fathers' rights to the custody and control of their children.

For example, if paternal custody and the right to control one's children⁽⁵⁶⁾ was premised on an inherent ownership right, then a father could legitimately claim the earnings of an indentured child on the ground that he "owned" the services provided by the child. If however, paternal custody and a father's right to control his children was premised on the father's role in providing for them, then his right to continued control of them and of their earnings lasted only as long as the father provided for their needs.

So, for instance, in 1810, a Massachusetts court considered whether payments provided for in an indenture agreement involving a minor boy had to be made to the boy directly or to the child's father. In deciding that question, the court in Day v. Everett⁽⁵⁷⁾ considered the justification and scope of the paternal right to custody and control and concluded that the father of an apprentice could be the legitimate recipient of wages paid for the services of the child.

The decision of the court and the arguments of the parties in Day v. Everett recognized a developing social concern with children and their interests, a concern beginning to be seen in custody cases decided during the same period. The court as well as all the parties to the litigation stressed the importance of children's interests or at least referred to those interests as a legitimate matter for judicial concern. However, in the end, neither the parties nor the court premised their arguments or conclusions on concern for the child's interests. The more encompassing concern involved the bases of the father's right to custody and control of his child.

In Day, Aaron Everett, the master, focused on the moral significance of protecting children involved in apprentice relationships. However, Everett's stance seems unappealing, given the facts of the case, and did not, in fact, convince the court. Everett, responding to a claim brought by Levi Day, his apprentice's father, for $50, argued that the indenture agreement entered into by himself, Levi Day, and Day's son in 1799, should be declared void because the agreement provided for a termination payment to the father rather than to the boy. Everett, however, made this argument at the expiration of the indenture term, only after he had benefitted from six years of service from the boy (the period agreed upon in the indenture contract under dispute). Everett did not propose that he pay the boy rather than the father. He hoped to pay no one.

In the court's view, a 1794 Massachusetts statute, rather than Everett's concern for the child's welfare, posed the major stumbling block for the father's case. That statute provided that "all considerations which shall be allowed by the master or mistress, in any contract of service or apprenticeship, shall be secured to the sole use of the minor thereby engaged."⁽⁵⁸⁾ The court held for the father, however, and concluded that the 1794 statute implicitly preserved the right to enter into indenture agreements under the common law. Therefore the court ordered Everett to pay Levi Day the sum that the parties had originally agreed would be paid to the father at the end of the boy's six-year apprenticeship. The court did not premise that conclusion on the apparent equities of the case, but on a common law right to payments such as that at issue in Day.

In reviewing and explaining its decision, the court recognized some of the advantages that might have followed from a different holding--one favoring the defendant/master. The court explained its refusal to declare the indenture void and thereby deny the father the money he claimed his son's master owed him. That explanation as well as arguments presented by the parties⁽⁵⁹⁾ suggest some of the shifting parameters in terms of which people understood the system of apprenticeship at the start of the nineteenth century.

Everett,⁽⁶⁰⁾ arguing that the 1794 statute rendered void the indenture agreement at issue in the case, stressed the statute's moral ends. The statute, he asserted, was "calculated to protect children from the mercenary views of parents, who might sacrifice the present comfort and future prospects of their children to a present gain for themselves."⁽⁶¹⁾ The argument, though apparently disingenuous when offered by Everett, a man who had himself already profited from young Day's labor, was recognized as legitimate--though not conclusive--by both the plaintiff\father and the court.

Day did not depend heavily on moral arguments in responding to Everett's invocation of statutory law. However, he acknowledged those arguments and at one point buttressed his own position through reference to a concern for children. Day suggested that the statutory provision on which the defendant relied was applicable only to cases involving children with no available parent or guardian, whose indenture agreements had therefore been approved by town selectmen. He argued further that even if the 1794 statute invalidated the agreement involving his son insofar as it defined relations between Everett and the boy, still the agreement remained valid as between himself and the master. Day acknowledged the harm that might befall children subject to unsavory indenture agreements. But ultimately he placed contractual promises before children's welfare. "[N]otwithstanding all the dangers and mischiefs which have been stated to arise to minor children from the unfeeling avarice of unnatural parents," continued Day, the contract into which the parties had entered was good at common law and thus had to be judged valid in fact.⁽⁶²⁾ While acknowledging the moral advantages of the statutory rule, Day was apparently content to have the state ignore that rule not only in his case but in all indenture cases in which it could be shown that an indenture agreement had been entered into pursuant to common, rather than statutory, law. It cannot be known whether he reached this conclusion with the comfort that he, himself, was not the sort of unnatural parent of whom he spoke; because the weight of the moral argument impressed him only dimly; or because he assumed most parents, being natural, rather than "unnatural,"⁽⁶³⁾ would act to the benefit of their children. In any case, even Day acknowledged, though he then chose to ignore, the implications of the claim that "dangers and mischiefs" might affect children indentured through the agreements of their "unnatural parents" influenced by "unfeeling avarice."

However, Day did rely on the interests of children in justifying his conclusion that the statutory provision in question should be considered applicable only to cases in which a selectman, rather than a parent or guardian, entered into an indenture agreement. Selectmen, he suggested, unlike parents and guardians, could not be trusted to serve the interests of their wards. Thus, "selectmen might, through carelessness or negligence, approve of contracts which might be prejudicial to the minor."⁽⁶⁴⁾

The court, though ultimately holding for Day, noted simply that the statute in fact contained no ground for differentiating between agreements approved by parents, guardians or town selectmen.⁽⁶⁵⁾ Similarly, in responding to Day's suggestion that parents and guardians, as opposed to town selectmen, could be trusted to protect a child's interests, Everett shifted the terms of discourse away from children and their interests. Now, instead of focusing on the children, Everett focused on the legitimate bases of a father's right to the custody and control of his minor child and declared:

If a father assigns the service of his minor son for a time, he may be well entitled to his earnings, for he is still bound to provide for him; but where he places him as an apprentice, he puts the master in his own place, and the latter contracts to educate him, to clothe him, to take care of him in sickness, &c.; so that there is no shadow of reason, why the parent should make a pecuniary benefit to himself out of the contract.⁽⁶⁶⁾

The court presumed differently. Holding for Day, the court ordered Everett to pay his former apprentice's father the amount agreed upon in the indenture instrument as due at the expiration of the apprentice period. The court expressly grounded this decision on a straightforward finding that the statutory provisions enacted in Massachusetts in 1794 were not exclusive and therefore covered only those indenture agreements expressly entered into pursuant to the statute.

Behind the court's conclusion, however, lay a set of assumptions about the character and scope of paternity that contrasted with the assumptions of Everett. The court echoed Everett in acknowledging the moral and social advantages of the statutory rules. But for the court, paternal status, regardless of a particular father's behavior, constituted the essential truth justifying the provision in common law that a father had the right to custody and control of his children as well as the right to benefit from those children, which included the right to benefit from their labor. "There is no question," wrote Chief Justice Parsons in Day, "but that a father, who is entitled to the services of his minor son, and for whom he is obliged to provide, may, at the common law, assign those services to others, for a consideration to enure to himself."⁽⁶⁷⁾ In the view of the Chief Justice, this entitlement included the right of a father to sell the labor of his child to a third party so long as the child remained a minor. This conclusion depended on the presumption that a father's "entitle[ment] to the services of his minor son" flowed from the fact of fatherhood and not from the behavior of any particular father or from the quality of the relation between a particular father and his child. That presumption differed significantly from Everett's presumption that a father could control his child and receive benefit from that child's labor only to the extent that the father was the child's primary provider.

When Day was decided, both sorts of presumptions--one reflecting a past in which paternal authority was paramount and the other a future in which paternal authority competed with, and was sometimes displaced by, the inexorable ties of affection newly seen to connect mothers to their young children--seemed plausible. Thus, almost four decades after the English chancellor Lord Mansfield ignored longstanding precedent in deciding an English custody case in 1774 in favor of the child's mother by "doing what appeared best for the child, notwithstanding the father's natural right,"⁽⁶⁸⁾ and some time after American courts had begun to voice concern with protecting the welfare of children, that concern continued to contend with the older view that virtually no interest competed with a man's inherent right to control his children's lives and labor. And in Day, although the parties and the court all relied on, or at least acknowledged, the significance of protecting children from unsavory parents, concern with the welfare of the child involved was easily outweighed by a surviving concern with the rights of a child's father to control his child and to benefit from his child's labor.

The explicit debate in Day was not about the importance of children and their interests or about the fact vel non of paternal authority. It was about the shifting parameters and scope of paternal authority. But the implications of that debate for the character of the nineteenth-century family were momentous.

b.  Paternal Consent

As the nineteenth century progressed, some courts continued to invoke the paramount right of fathers to custody and control of their children; others self-consciously limited that right in the name of a new and developing understanding of family and of the parent-child relationship; still others invoked traditional understandings of paternal authority while in fact qualifying that right in the name of public good or children's welfare. United States v. Bainbridge,⁽⁶⁹⁾ decided by a federal circuit court sitting in Massachusetts, six years after the decision of the Massachusetts state court in Day, represents the third approach. Bainbridge involved a minor, bound, not to an apprenticeship, but to serve a term of enlistment in the United States military.

Robert Treadwell was nineteen when he enlisted in the navy without paternal consent. Before finishing his term of service, Robert deserted. He was court-marshaled, convicted of desertion, and sentenced to two additional years of military service. Robert responded to the sentence with a habeas corpus action in which he argued that his original enlistment was invalid because his father's consent had not been obtained. Robert's father, at sea at the time of trial, was not available to testify.

Justice Story, writing for the court that decided Bainbridge, reached a holding completely at odds with Day. The court noted Day in the first paragraph of its opinion, but found the reasoning of the Day court "extremely difficult to . . . maintain."⁽⁷⁰⁾ There are significant differences between the facts that led to the dispute in Day and those that led to the dispute in Bainbridge. Day involved an indentured child whose father consented to his son's servitude. Bainbridge, in contrast, involved an absent father and a boy who enlisted in the United States navy, and then attempted to free himself from the commitment after having been convicted of desertion by arguing that he had enlisted without paternal consent. Whether the differences in the two courts' assumptions and conclusions derived in any part from differences in the litigants' stories is not clear. In any event, the differences between the assumptions and assertions of the Day and Bainbridge courts illustrate starkly the intensity of competing understandings of parents and children in legal deliberations during the first few decades of the century.

Each court asserted a right to paternal custody and control of a minor child. The state court in Day relied on that assertion in concluding that paternal authority empowered fathers to enter contracts that promised them wages in exchange for the sale of their children's labor. In contrast, the federal court in Bainbridge invoked paternal authority but immediately limited and qualified that authority so as to validate the enlistment of young Robert despite the apparent absence⁽⁷¹⁾ of paternal consent.⁽⁷²⁾ Together, the two cases present the shifting, often contradictory, understandings of father-child relationships and of relationships within families more generally that underlay social and legal responses to cases such as Day and Bainbridge during the early nineteenth century.

In Bainbridge, Robert Treadwell, the boy, contended that the contract of enlistment was invalid because Congress had not, and in any case could not, authorize the enlistment of a boy under twenty-one years of age without paternal consent.⁽⁷³⁾ He further contended that the contract of enlistment was invalid under the common law rule that minors not be permitted to enter into contracts except in special cases. He claimed that his own case did not involve any such exception because, among other things, he had not enlisted "for his benefit."⁽⁷⁴⁾

This contract, then, is not an exception from the general rule, and not binding on the infant, but the father is the natural guardian of the son, and has a right to control his person, and dispose of his services and labor; the consent of the father is, therefore, necessary to render the contract valid.

Commodore Bainbridge, Robert's commanding naval officer, to whom the writ of habeas corpus had been issued, claimed that Congress had the authority to enlist minors, and argued more particularly for recognition of an actual intention on the part of Congress to permit the enlistment of minors without parental consent. Moreover, Commodore Bainbridge responded to the claim that the contract was of no benefit to Robert by noting that Robert's enlistment served the "public good," and that benefit was similar enough to Robert's own to render the difference irrelevant.

Commodore Bainbridge acknowledged that at one time paternal authority, as defined under the laws of ancient England, might have precluded the enlistment of a child in the military without paternal consent. However, he explained, English law had long since limited the father's right so that paternal consent had become unnecessary in such cases. Blackstone himself, the Commodore declared, had settled the matter in asserting that a father "may indeed have the benefit of his children's labor while they live with him, and are maintained by him: but this is no more than he is entitled to from his apprentices or servants."⁽⁷⁵⁾ In fact, Blackstone's express language does not settle the question, as becomes clear from an examination of Blackstone's language in context. It appears in the Commentaries immediately after a paragraph describing the absolute power--"a power of life and death"⁽⁷⁶⁾--enjoyed by fathers over their children under ancient Roman law. Blackstone was concerned to show that in comparison to Roman law, the eighteenth century English father had limited power. In fact, when Blackstone wrote, though hardly more than a half-century before Bainbridge, the effects of the Industrial Revolution were only beginning to undermine the system of apprenticeship established as a national system in England in 1562; and thus to compare paternal authority to the authority of a master over apprentices and servants was hardly to consider a father's authority as insignificant. Puritans in the seventeenth century thought servants and apprentices bound by Divine order to obey and revere their masters,⁽⁷⁷⁾ and even in Blackstone' day, masters enjoyed considerable authority over apprentices and servants. Blackstone's language did not definitively settle the question at issue in Bainbridge.

Justice Story began his opinion in the case by reaffirming the existence of a father's right to custody and control of his children. However, he almost immediately limited the scope of that right and ordered that Robert be returned to his commanding naval officer. First, Justice Story described the rights a father holds over his children:

By the common law, the father has a right to the custody of his children during their infancy. In whatever principle this right is founded, whether it result from the very nature of parental duties, or from that authority, which devolves upon him, by reason of the guardianship by nature, or nurture, technically speaking, its existence cannot now be brought into controversy.⁽⁷⁸⁾

In the same paragraph, however, Justice Story recognized that the absolute, or near-absolute, right to paternal custody that had been assumed a century earlier was being "brought into controversy."⁽⁷⁹⁾ In fact, though a remarkable and novel flexibility had appeared in some late eighteenth and early nineteenth century custody decisions, granting custody to mothers, and even third parties, rather than to fathers, many other cases were still being decided according to the traditional rule that a father's right to custody of his children was absolute. Justice Story acknowledged both trends by citing first a set of custody cases in which courts strictly preserved paternal control⁽⁸⁰⁾ and then, a set in which courts limited, and even sometimes completely revoked, paternal control.⁽⁸¹⁾

As Justice Story clearly understood--his disclaimer notwithstanding--if the social and moral justifications of a right, such as the right to paternal custody and control, can be challenged then, inevitably, the right itself can be challenged as well. Thus, in effect at least, Justice Story invoked the father's right to custody and control in order to provide an acceptable frame within which to limit that right. Accordingly, the court thus echoed Bainbridge's reliance on Blackstone's understanding of paternal entitlement to the benefits of a child's labor.⁽⁸²⁾

Justice Story's understanding of the scope of paternal control put him at odds with the court that decided Day. In contrast with the court in Day, Justice Story concluded that fathers did not have authority to bind their children as apprentices without the consent of the children:

The custody of minors is given to their parents for their maintenance, protection, and education; and if a parent, overlooking all these objects, should, to answer his own mercenary views, or gratify his own unworthy passions, bind his child as an apprentice upon terms evidently injurious to his interests, or to a trade, or occupation, which would degrade him from the rank and character, to which his condition and circumstances might fairly entitle him, it would be extremely difficult to support the legality of such a contract.⁽⁸³⁾

Finally, at the end of the opinion, Justice Story settled the question that he had raised at the start, but which he had there asserted need not be answered: whether a father's right to custody of his children stemmed from "the very nature of parental duties, or from that authority, which devolves upon him, by reason of the guardianship by nature, or nurture."⁽⁸⁴⁾ In the end, he sided with the second option. Although he grounded his decision on the conclusion that the Constitution permitted Congress to authorize the enlistment of minors into the navy without parental consent and that Congress had so provided, he proclaimed clearly that had that not been the case, it would have been necessary to have inquired further into the relation between Robert and his father.

I should have thought it necessary to have required more explicit affidavits than have been made . . . [including] a special statement of the facts, as to the mode of life and place of residence of the minor previous to his enlistment; for an assent of the father need not be express, but may be implied from circumstances. If a father should voluntarily send his minor children away from home, to obtain a maintenance and support in any manner, that they could; this would be an implied consent to any contract for that purpose, into which they should enter, and a waiver of his parental rights.⁽⁸⁵⁾

For Justice Story paternal authority was a legal fact only when paternal obligations were fulfilled. A father's authority extended only so far, and lasted only so long, as he fulfilled his obligations as a father.

The court in Bainbridge ultimately sided with the future of American family law rather than with the past in its understanding of the parent-child relationship. Yet the court did not ignore the past completely. It recognized young Robert's right to enlist in the navy without his father's consent on common law⁽⁸⁶⁾ as well as on constitutional grounds, and thus declared Robert's enlistment valid. But the court also paid deference, as Justice Story explained in the conclusions to his opinion, to assumptions of an earlier period that might have led to a different holding in the case. The competing presumptions voiced in Bainbridge about the limits of paternal authority were equally in question as society and law redefined the meaning and scope of the system of apprenticeship in the nineteenth century.

c.  A Father's Profit

In 1852, when a New York court decided Van Dorn v. Young,⁽⁸⁷⁾ a father's right to custody and control of his children was securely premised on the responsible fulfillment of a particular father's paternal obligations. Neither the court nor the parties in Van Dorn even hinted that paternal authority should be premised on a man's inherent status as pater. One of the parties in Van Dorn stated (and neither the court nor the other party disagreed) that a father "has no property in his child. His right to its labor grows out of and is dependent upon his care over it; and is intended as a just compensation, not a source of pecuniary profit."⁽⁸⁸⁾ For the court in Van Dorn, the extent to which a particular father accepted the obligations incumbent upon him as a father determined the scope of his authority to benefit from his child's labor. Moreover, the concern voiced expressly in Day and Bainbridge about the fact, and source, of paternal authority is displaced in Van Dorn by concern for defining and securing a child's welfare.

The case involved an 1846 indenture agreement, entered into by John Young and Frederick Van Dorn. Under the agreement Young agreed that his son Henry would work as an apprentice for Van Dorn for five years, until Henry turned twenty-one. Van Dorn promised to teach Henry graining and sign-painting, and to make periodic payments to Henry's father during the term of the apprenticeship.⁽⁸⁹⁾ In 1850, after serving Van Dorn for almost four years, Henry "voluntarily left, and refused to work for the plaintiff any longer"⁽⁹⁰⁾ even though, under the indenture agreement, he was obliged to serve Van Dorn for another year. Van Dorn then sued Henry's father for breach of contract,⁽⁹¹⁾ claiming $450, the estimated value to Van Dorn of Henry's unfulfilled work obligation.⁽⁹²⁾ No argument was made, nor apparently could one be made, regarding Henry's own liability to Van Dorn because the boy had not been a party to the indenture contract. Van Dorn argued only that Henry's father, John, was responsible for trying to effect Henry's return to Van Dorn's service, though not necessarily for actually effecting it. The court agreed. Judge Strong, for the court, took "notice of [John Young's] power as a parent," and concluded that Young "might have done something towards securing a return of his son, by making search for him, if ignorant of his residence, and on finding him exercising parental authority over him to effect his return."⁽⁹³⁾

The father, in an argument reminiscent of the master, Aaron Everett, in Day v. Everett,⁽⁹⁴⁾ asked that the contract be declared void because, lacking the boy's consent, it failed to comply with state law and was, in addition, violative of "public policy and the interest of the state."⁽⁹⁵⁾ Young, however, was more explicit than Aaron Everett about the character of the apprenticeship and its unfortunate consequences for the child involved. "The contract," he asserted, "in this case is the sale of the child's labor. It contains no provision for his benefit, save the benefit of work."⁽⁹⁶⁾ The claim--that the apprenticeship was at best of slight value to Henry--seems remarkable to contemporary ears because it was voiced by Henry's father, the very man who had arranged for Henry to be bound as apprentice to Van Dorn for the final six years of Henry's minority. John Young's assertion that the apprenticeship was without value for young Henry was echoed and elaborated elsewhere in the arguments that he presented to the court. So, for instance, John Young, arguing for the exclusivity of statutory rules in the valid creation of indenture contracts, described those rules to be "for the benefit and protection of the infant, and in some measure [to] compensate him for the loss he sustains in leaving his parents' care and being deprived of the benefit and protection of home."⁽⁹⁷⁾ John Young's contention that Henry's apprenticeship was without value to the boy did not depend on claims about Van Dorn's actual treatment of the boy. Rather, the matters about which John Young complained were apparent in the indenture agreement that first positioned Henry as Van Dorn's apprentice. Whether Henry's father in fact agreed with, or even knew specifically about, his lawyer's characterizations of the apprenticeship system and of the loss--specifically the loss of family--endured by young apprentices such as his son, can no longer be known. Whether John Young suffered pangs of conscience or at least conflicting emotions for having bound Henry to Van Dorn, even if his decision to do so was grounded in economic necessity, can only be guessed. But, whatever Mr. Young's own conflicts, and however he resolved them, it is clear that by the mid-nineteenth century, there was nothing remarkable about the claim that apprenticeships served children poorly. That view would have surprised an earlier American generation which expected parents to arrange either college education or an apprenticeship for children (especially sons) of Henry's age.

For a Puritan child, training in almost every trade necessitated a period of apprenticeship (usually from age 7 to 14 until age 21), and so, most Puritan parents sent their children from home (often as apprentices, but sometimes to live with schoolmasters, friends or relatives). It is not clear whether colonial parents believed children could be socialized more successfully outside the orbit of parental affection.⁽⁹⁸⁾ Henry Young's own case shows that as late as the middle of the nineteenth century, society and law continued (though with increasing reluctance) to provide for parents such as John Young, who chose "voluntarily" to enter into contracts that arranged for their children to become apprentices. But by 1852 when Van Dorn was decided, even parents who indentured their children into positions of apprenticeship viewed the practice as an unfortunate expedient.

Indeed, this sentiment was so common that John Young, apparently unconcerned with preserving his own dignity as a decent parent,⁽⁹⁹⁾ explained that the contract, of no benefit "save . . . work" to the child, was entered into for the benefit it provided him as a parent. By placing Henry as an apprentice with Van Dorn, John Young explained, he had saved himself from "the obligation of maintenance and education; and secure[d] by [the apprenticeship] to himself, pecuniary profit."⁽¹⁰⁰⁾ But the indenture agreement was illegal, Young asserted, because paternal authority was limited. Young proclaimed that a father's authority to arrange an apprenticeship for his child, an authority based in the father's obligation to care for the child, did not include the right to profit from the child's labor. Young described a father's right to benefit from his child in formulaic fashion, by asserting that a father's right to his child's labor "is intended as a just compensation, not a source of pecuniary profit."⁽¹⁰¹⁾ Even more, argued Young, a father who did seek pecuniary gain by apprenticing his child was thought not only to violate his duty to child and state, but to contravene "the relations which nature has imposed on him."⁽¹⁰²⁾ Such an agreement constituted a breach of paternal duty, and therefore could not be enforced.⁽¹⁰³⁾

The court, overruling the father's response to the master's complaint, viewed the system of indenturing children as well as the father-child relationship differently than John Young did. After asserting that the contract bound only Van Dorn and John Young, but not Henry Young, the court considered the legality and acceptability of a father's "binding himself that the services of his infant child shall be rendered to another . . . for instruction to be rendered to the child, and in addition a compensation to be paid to himself."⁽¹⁰⁴⁾ Such an arrangement, the court concluded, was entirely acceptable:

This obligation, imposed as well by municipal law as by the laws of nature and religion, to maintain and educate the child, is in no respect diminished by such a contract; there is nothing in a fair contract of that character inconsistent with the proper discharge of that obligation; and the parental duty may often be better discharged in that way than in any other.⁽¹⁰⁵⁾

Judge Strong did not respond to the father's warning that allowing a parent to bind a child into servitude for the parent's financial gain--a practice not provided for by statutory law--could easily leave such a child without protection from a cruel master and a cruel or simply greedy parent. Neither did the court respond to the father's suggestion that nature endowed parents with a special obligation to socialize their children, an obligation that could not therefore be easily transferred to others.⁽¹⁰⁶⁾

Perhaps the discrepant claims of the defendant and the court about the dangers and benefits of apprenticeships, and more particularly about the value of Henry Young's apprenticeship, were merely strategic. Certainly John Young was anxious to have the contract binding Henry to Van Dorn invalidated. And the court, in asserting that children are often best cared for and educated outside the parental home, might have been influenced by its concern with reaching a fair and just decision in the particular case. After all, Young was in effect saying that he had participated in mistreating his child, but should be allowed to benefit from the consequences of that act. But whatever the motives of the parties and the bench (and they can no longer be known with certainty) their various and conflicting positions about the virtues of the apprentice-master relationship show clearly that by the mid-nineteenth century conclusions about appropriate models for socializing children were open to energetic debate.

d.  From Patriarchy to Modern Fatherhood

During the colonial period, the system of apprenticeship presumed a patriarchal family. Within that unit, fathers enjoyed enormous authority over wives and children. A father's relation to other members of his family, reflecting the inherent prerogatives of paternal status, was a matter of fact, not a matter of choice.

Moreover, family members lived and worked together under the consistent aegis of paternal control. In such a world, children served masters as they served fathers. With the advent of the Industrial Revolution, and the dissociation of home and work, the inexorable ties that defined women and children as subservient to their husbands and fathers loosened. Images of dominant and harsh Victorian fathers notwithstanding, the security of the old order had begun to crumble and with it the inevitability of paternal control.

Thus, in Day, decided at the turn of the nineteenth century, the court sided with an earlier century's understanding of paternal authority in premising that authority on the fact of paternity: paternal authority derived from the status of the pater. But the decision in Day--a decision that would have been inevitable a century previous--represented a judicial choice about the scope and meaning of paternity. Only six years later, a federal court, deciding Bainbridge, while proclaiming the security of a father's right to custody, allowed for an understanding of paternal authority essentially incompatible with that assumed in Day. Justice Story in Bainbridge recognized assessments of paternal behavior as central in defining the scope of a particular father's authority. Finally, in Van Dorn, decided at mid-century, a New York court followed a middle course between respect for the parties' contractual obligations and the defendant-father's strong plea that the child's best interests should be paramount. The Van Dorn court held the father liable under the contract to his son's master but found the contract binding only on the father and not on his son.

As a group, Day, Bainbridge, and Van Dorn illustrate the modification and eventual eradication of patriarchal families. As society challenged the inexorability of rights previously understood as inherent to paternal status, alternative principles appeared for understanding and ordering familial relationships. Concern for the welfare of children followed from a startling redefinition of childhood⁽¹⁰⁷⁾ that had begun several centuries earlier. By the nineteenth century, American law began to institutionalize that concern in formulating the best-interest principle. Concomitantly, women, though increasingly confined to the domestic arena, were romanticized as uniquely capable of providing for the nurturance and socialization of their children and thereby gained new rights as parents and as custodians to their children.

2.  Indentured Children and the Changing Nature of Motherhood

At the beginning of the nineteenth century, most courts asked to consider the legal power and authority of mothers either agreed with Blackstone--or claimed to, despite holdings that argued otherwise--that a mother, "as such, is entitled to no power, but only to reverence and respect."⁽¹⁰⁸⁾ By the end of the century, mothers were routinely preferred over fathers in disputes about custodial arrangements for their children.

a.  The Romanticization of Motherhood

In fact, however, even at the start of the nineteenth century, the position of mothers within families had already shifted significantly in a direction that became more and more obvious throughout the century. As society and law redefined mothers and maternity, new understandings of children and of their social and economic worth appeared. The nineteenth century created the "economically `worthless' but emotionally `priceless' child."⁽¹⁰⁹⁾ This pervasive reconceptualization of childhood contributed to a strong preference by century's end for socializing children within their parents' homes and for protecting them from the tensions of the world of work. Felix Adler reflected this preference forcefully when he declared at the start of the twentieth century that to profit from the work of a child was to "touch profanely a sacred thing."⁽¹¹⁰⁾

As work moved out of the home and into the marketplace, the domain of home, reconceptualized as the private arena of familial affection, was identified with women and children.⁽¹¹¹⁾ This identification occurred through the elaboration of a set of images about home and family that contrasted in almost every regard with the tensions and harsh uncertainties identified with the marketplace. Woman emerged as nurturer of children, guarantor of moral values, and self-effacing symbol of hearth and home. Ladies' Magazine, a popular nineteenth century magazine for women, described the contemporary woman as "forming the future patriot, statesman, or enemy of his country, [but] more than this, she is sowing the seeds of virtue or vice which will fit him for Heaven or for eternal misery."⁽¹¹²⁾

Such images of woman--along with a new romantization of childhood⁽¹¹³⁾ which directed courts to examine children's "best interests"--did not always result in grants of custody to mothers rather than to fathers but did provide the rhetoric through which courts were newly able to consider, and increasingly to affect, that possibility. The first such holding in the United States was made by a South Carolina court in 1809. In that case, Prather v. Prather, the court granted custody of a child to the mother rather than to the father even though fathers, in the court's view, were their children's "natural guardian[s], invested by God and the law of the country with reasonable power over them."⁽¹¹⁴⁾ That view notwithstanding, the court in Prather considered the mother, "a prudent, discreet and virtuous woman," a better parent to the five-year old girl than the father, who was living in an adulterous relationship with a woman he had brought into his home after throwing out the child's mother.

By mid-century courts began to justify grants of maternal custody by invoking the "natural law" presumption that mothers better serve their children's interests than do fathers. In Mercein v. People, decided in New York in 1842, the court granted custody of a young girl to her mother, declaring that "the law of nature has given to her an attachment for her infant offspring which no other relative will be likely to possess in an equal degree."⁽¹¹⁵⁾ By the end of the nineteenth century, a "new orthodoxy"⁽¹¹⁶⁾ had emerged in custody law: mothers, not fathers, had become the preferred custodians in cases of parental dispute, as well as in disputes involving third parties.

However, that orthodoxy, though increasingly applicable to middle-class mothers, did not often protect the interests of poor mothers in custody disputes. Similarly, the newly romanticized conception of woman, which defined her as intuitive, emotional, nurturant, and selfless--as everything the market was not--was not applied, and was usually not applicable, to most poor mothers who, compelled to enter the marketplace as workers in order to sustain themselves and their children, were unable to enjoy the prestige bestowed upon those able to concern themselves exclusively with middle-class housewifery. Such women became increasingly marginal in a society anxious to identify men with work and money, and women with home and hearth.

Increasingly during the nineteenth century, apprenticed children, regardless of which parent consented to the placement, came from poor homes, or, because poor, were involuntarily apprenticed without either parent's consent. While many colonial families sent their children from home to serve as apprentices, by the middle decades of the nineteenth century, middle-class children were kept at home long into adolescence. Further, middle-class families became less interested in having other people's children in their homes.⁽¹¹⁷⁾ More and more, indentured children came from poor families, and, once indentured, were treated as servants rather than as family members.

The changing class dimensions of the system of apprenticeship, especially for children indentured "voluntarily," were especially evident in cases involving children whose mothers, rather than fathers, negotiated and signed contracts of indenture that placed them in positions of servitude. Mothers who apprenticed their children usually did so to provide relief from poverty. In fact, the law continued to discourage, or completely to prevent, mothers from negotiating and executing indenture agreements involving their children. A number of states simply precluded mothers by statute from signing indenture agreements to bind out their children as apprentices or servants. Others allowed mothers to place their children as apprentices only if the children's father had died.⁽¹¹⁸⁾ As a matter of law, as well as of custom, therefore, generally only mothers of fatherless children participated in legal arrangements for apprenticing those children. Such mothers were often impoverished.

In earlier centuries the law relied on separate rules for regulating voluntary apprenticeships and involuntary apprenticeships. However, by the nineteenth century, children apprenticed voluntarily were hardly distinguishable in their class origins from those indentured voluntarily. At the same time, within family law, a more subtle reliance on a two-tiered response to cases involving children worked to the disadvantage of indentured children and their parents, but most especially their mothers. The law's evolving idealization of sheltering, self-sacrificing mothers did not, and usually could not, apply to the impoverished mothers of indentured children. Images of nurturant mothers, freed from the pressures of the marketplace and therefore able to devote selfless love to the socialization of affectionate children--though perhaps nowhere actualized in fact as much as in imagination--were images that, almost by definition, excluded poor women in their relationships to their children.

Courts, newly concerned with children's interests and welfare, and beginning to associate both with a certain kind of mother, saw a mother's poverty and her failure to reflect emerging images of the `good mother' as evidence that she would not serve her children well and should, therefore, be denied the right to preserve or regain custody of them. Ironically, therefore, the new focus on children's interests, which served middle-class mothers well in custody disputes against fathers or third parties, by providing a jurisprudential foundation for overturning centuries of precedent that automatically granted fathers, but not mothers, custody, worked to the detriment of poor mothers.

b.  Motherhood and the System of Apprenticeship

Moreover, throughout the first half of the century, as courts began to recognize both the best interests of children as a governing principle in custody cases as well as the authority of mothers to limit, and sometimes completely to outweigh, paternal authority, the law also more often recognized the authority of mothers to bind their children out as servants. But, especially at the start of the century, in cases involving children who had been indentured by their mothers, other courts invoked, and relied strictly on, the traditional rule that fathers, but not mothers, had the right to control their children and to benefit financially from their children's remunerated services. In the early decades of the century, several courts refused completely to recognize indenture agreements signed by mothers but not by fathers.⁽¹¹⁹⁾

In an 1812 Pennsylvania case, involving facts similar to those in United States v. Bainbridge which would be decided four years later,⁽¹²⁰⁾ the state supreme court validated young John Connor's enlistment in the navy against his mother's wishes.⁽¹²¹⁾ As would the federal court in Bainbridge, the Pennsylvania court in Commonwealth v. Murray found parental consent unnecessary to the validity of the child's enlistment.⁽¹²²⁾ However, the court in Murray identified with tradition in rejecting the plea of John's mother that her son be released form the naval service to which he had committed himself in opposition to her wishes. In contrast, the court in Bainbridge, in similarly validating a boy's enlistment despite the absence of paternal consent, re-examined and re-interpreted social tradition and common law in reaching its holding in the case.⁽¹²³⁾

In Murray, Justice Tilghman considered the limits of Congress's authority to provide a navy and found those limits broad, as Justice Story would in Bainbridge in 1816. However, Justice Tilghman was able to judge Murray on familiar grounds, because young John "had neither father, guardian nor master." "As for his mother," continued Justice Tilghman, "although he owed her reverence and respect, yet she had no legal authority over him."⁽¹²⁴⁾ Justice Tilghman further explained that for a boy such as John, "without father, guardian or master," the normal uncertainty one might feel about the benefits of naval service for a minor could be replaced with the near certainty that John's enlistment agreement was for him "a beneficial contract."⁽¹²⁵⁾ As the court had done, the lawyer for the United States echoed Blackstone's declaration that a mother is owed nothing but "reverence and respect," and declared, even more conclusively, that "[i]n relation to the present question, it is as though [John] had no mother."⁽¹²⁶⁾ A second justice, less sanguine about the law's failure to accord mothers the authority to preclude the enlistment of their sons, felt himself compelled nonetheless to agree with Justice Tilghman's conclusions in the case. Justice Yeates declared:

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 intitled to the services of his sons while they live with him, but however strange it may appear, the mother has no such right.⁽¹²⁷⁾

Justice Yeates' concern at the law's assessment of maternal authority might have been intensified had he noted that under state law the responsibility of John's mother to support and provide for her son was identical to that of a living father.⁽¹²⁸⁾

Murray is notable not simply because the court returned John to Commodore Murray. A similar result was reached four years later in Bainbridge even though there the boy's father was alive and had not given his consent to the boy's enlistment in the navy. Murray is also notable because it illustrates the continuing strength in family law cases decided at the start of the century of the supposition that maternity qualified a women for reverence and respect from her children, but did not give her any power over them or over their acts involving third parties.

Within a half-century, alternative understandings of maternal, as compared with paternal, status and authority, though still sometimes competing with older understandings, had become conventional. Generally courts reserved these new understandings for middle-class mothers, but sometimes even poor mothers, involved in disputes with their children's masters or employers, benefitted from the century's evolving conception of maternal status and authority. In one such case, Osborn v. Allen,⁽¹²⁹⁾ decided in 1857, the New Jersey Supreme Court declared that maternal authority, though not as extensive as paternal authority, was predicated on the same understanding of parentage: "The authority and rights of parents over their children result from their duties."⁽¹³⁰⁾ The Court's Chief Justice further explained that, Blackstone's eighteenth-century view of maternity notwithstanding, the proposition that mothers enjoy no legal power with regard to their children "is not consistent with the principles of natural law, with the rules of the common law, or with the dictates of sound public policy."⁽¹³¹⁾

Allen involved a mother, Rebecca Cottrell,⁽¹³²⁾ who brought suit against Thomas Osborne to collect wages due as a result of the labor of her minor son. Osborne argued that in the absence of clear evidence that the boy's father had died, he should be presumed alive thereby precluding the mother's right to sue. But Osborne further argued that, even were the father to be presumed dead, the mother had "no right to sue for a child's wages; her rights are not the same as those of a father."⁽¹³³⁾ The court's Chief Justice thought otherwise, and thought, moreover, that his views, as compared with those of Osborne, represented modernity and enlightenment. He declared:

The extent of this natural authority of parents over children is the subject of municipal regulation, and has greatly varied in different ages and under different systems of laws. It has undoubtedly been greatly modified by the progress of intelligence and refinement, by the diffusion of the benign principles of Christianity, and the consequent elevation of the female sex. The ancient Roman laws gave to the father the power of life and death over his children. The mother had no authority over her children. She could have none, because the Roman laws subjected women, except they were under the cover and authority of a husband, to a perpetual guardianship.⁽¹³⁴⁾

Allen illustrates new understandings of maternity. However, the decisions of the judges who wrote opinions in the case continued to reflect traditional understandings of parental authority in that they regarded authority (whether in the hands of mothers or fathers) as the central determinant of familial matters. Thus, Justice Elmer, agreeing with the court's Chief Justice that the mother was entitled to collect wages earned by her son's labors, concluded that the son's "work and labor for others, actually or virtually at [the mother's] request, was the same as if she had performed the services with her own hands." This court, which benefitted the working child's mother, did not focus upon the interests of the child, as later courts invariably would.

While the New Jersey Supreme Court was deciding Allen, other courts, asked to consider the law's understanding of intra-familial relationships, were as likely to examine the welfare of children as to examine the limits of parental authority. In many of these cases, mothers in disputes involving their indentured children fared badly. That the new attention being paid to children's interests and welfare did not always lead to the expansion of maternal rights,⁽¹³⁵⁾ especially in cases involving poor mothers, is illustrated by three cases decided at mid-century, each of which involved children indentured by their mothers to Shaker communities.⁽¹³⁶⁾ In these cases courts relied on children's interests to subvert, rather than to expand, maternal rights.⁽¹³⁷⁾ All three cases (two from Massachusetts and one from New York) involved mothers seeking to retrieve a child who had been indentured, either through a formal, written indenture agreement, or informally through a verbal agreement, to a Shaker community. In all three cases, the Shakers were ultimately allowed to keep the child who had been indentured to them,⁽¹³⁸⁾ although in the New York case, two lower courts would have returned the child to her mother. In each case, a court considered the interests of the child involved.⁽¹³⁹⁾

The importance of class to the three courts that allowed the Shakers to retain custody of children in disputes with those children's mothers is hard to assess definitively, since none of the opinions provides much detail about the economic situation of the families involved. However, it is likely that each of these decisions was at least in part a consequence of judicial conclusions about the extent to which the background and home of the mother seeking custody reflected, or failed to reflect, middle-class resources and values.⁽¹⁴⁰⁾

The first case, Commonwealth v. Hammond,⁽¹⁴¹⁾ was decided in Massachusetts in 1830. Margaret Holst, a young girl,⁽¹⁴²⁾ was given by her mother to Joseph Hammond, a member of the Shaker community at Harvard, pursuant to a verbal agreement which obliged Hammond to support and educate the girl until she turned twenty-one.⁽¹⁴³⁾ Later, a local probate court appointed Ephraim Tufts to act as the child's guardian. Tufts applied for a writ of habeas corpus asking that the child be removed from Hammond and from his community. Although both Margaret's mother and Tufts desired that the girl be removed from Hammond's control, the two apparently disagreed about the best custodial arrangement for the child. Margaret wanted to remain with Hammond.⁽¹⁴⁴⁾ The court, unwilling to intervene between the guardian and the mother, concluded that the girl, anxious to stay, and, all agreed, not ill-treated in Hammond's custody,⁽¹⁴⁵⁾ be permitted to determine her own custodial arrangements.⁽¹⁴⁶⁾

Twenty-five years later, a Massachusetts court entertained the petition of Emily Curtis, a sixteen-year-old girl, who asked to be freed from her mother's custody and returned to the custody of Joseph Fairbank, a member of the community of Shakers at Enfield, Connecticut.⁽¹⁴⁷⁾ Emily, along with two younger siblings, had been placed with the Shakers by her widowed mother when Emily was eleven years old. The indenture agreement obliged the Shakers to educate the three children and instruct them in Shaker "usages, principles and rules of the society." In exchange, Emily and her siblings were committed to serve Fairbank and to obey him.⁽¹⁴⁸⁾

In 1855, the Massachusetts court, pondering the arguments of Emily, her mother, and Fairbank, cited Hammond and focused even more expressly than had the court in that case on the interests of the child, defining those interests as the "principal thing to be considered."⁽¹⁴⁹⁾ The chief justice took Emily's welfare so seriously that he interrogated the girl about her interests and preferences⁽¹⁵⁰⁾ and then ordered that she be discharged from her mother's custody⁽¹⁵¹⁾ and returned, according to her preference, to the custody of Fairbank. On the basis of Emily's opting to be sent back to Fairbank, and the court's assessment of Emily's maturity,⁽¹⁵²⁾ the court was willing to forego careful examination of the indenture agreement, asserting that, in light of Emily's preference, the indenture agreement--whether taken as "a contract or an estoppel"--provided grounds for concluding that the mother had relinquished her maternal rights to Fairfield.⁽¹⁵³⁾

Finally, in People ex rel. Barbour v. Gates, the mother of a young girl asked the New York courts to declare invalid an indenture agreement, ostensibly binding her child, Maria Barbour,⁽¹⁵⁴⁾ to Benjamin Gates of the New Lebanon Shaker community.⁽¹⁵⁵⁾ Maria was six when indentured to a seamstress, and nine when her mother attempted to regain custody.⁽¹⁵⁶⁾ Judge Miller, writing for the lower court, agreed that the indenture was defective as to the child, but not as to the mother, who "voluntarily" transferred custody of her child to Gates.⁽¹⁵⁷⁾ Concluding that the child was "without a lawful protector," the court proceeded to find one for her by determining her "interest."⁽¹⁵⁸⁾ On this score, the court unequivocally sided with the mother, not because the Shakers had proved themselves inadequate caretakers, but because a mother, as such, is better endowed by the "laws of nature" than anyone else to care for her child.⁽¹⁵⁹⁾ The lower court declared:

It is too clear to admit of an argument, that a mother who is the guardian of infant children by nature and nurture as well as by law, where the father is dead, is better calculated than any other person to train and protect them, during infancy, both in sickness and in health, and prepare them for future usefulness.⁽¹⁶⁰⁾

Judge Miller noted the child's long and apparently successful residence with her Shaker caretakers, but asserted that it would be balanced by the "solicitude and care" of the mother "who has evinced so much anxiety to assume the responsibilities which must be incurred in promoting the future welfare and happiness of her only child."⁽¹⁶¹⁾

Although Judge Miller's opinion was later reversed,⁽¹⁶²⁾ it is worth considering because it contrasts so sharply with the opinion of the state's highest court on appeal and with the opinions of the courts that decided Hammond and Curtis. Several explanations are possible.⁽¹⁶³⁾ First, competing notions of motherhood and maternal authority co-existed as social understandings of family, and family law itself, changed during the nineteenth century. Certainly, some courts were more willing to abandon, more quickly than others, the law's traditional, once almost sacrosanct, respect for paternal authority, and replace it with a new emphasis on loving mothers, treasured children, and the natural affections associated with the mother-child bond. (A few courts applied this emphasis even in cases involving poor families.) Judge Miller referred expressly to the importance for a child of "that affection, regard and love which none but a mother can feel and manifest towards her offspring."⁽¹⁶⁴⁾

It is possible also that to two of the three courts that rendered opinions in Gates, the mother in that case appeared more middle-class, and was therefore more closely identified with contemporaneous visions of a good mother, than did the mothers in Hammond and Curtis appear to the courts that decided those cases. Sara Barbour, the mother in Gates, had herself been a member of the Shaker community⁽¹⁶⁵⁾ to which she indentured Maria and Maria's sister. Therefore, her decision to place her children in such a community was likely influenced by her own identification with, and knowledge of, the Shakers and their way of life as well as by her interest in keeping her children with her. No information is provided about Sara Barbour's financial situation⁽¹⁶⁶⁾ or about why she joined the Shakers, or about her willingness to relinquish custody of her children.⁽¹⁶⁷⁾ However, Sara's membership in the Shaker community suggests that she may have shared the Shaker's general sophistication, stress on usefulness and interest in social service--all middle-class traits.⁽¹⁶⁸⁾

Most children indentured to Shaker communities during the middle decades of the nineteenth century came from poor homes; some were placed with the Shakers by state authorities as an alternative to almshouses and orphanages. To state officials, anxious about how best to provide for impoverished children, Shaker communities may have provided an option that had few of the disadvantages of almshouses and that, in addition, cost local towns nothing.⁽¹⁶⁹⁾ Perhaps, in sum, the mother in Gates, was different enough from the mothers in Hammond and Curtis (at least in the eyes of two of the courts that heard the case) that, unlike them, she benefitted from the century's developing veneration of the mother-child bond and from the related romanticization of woman as mother.

c.  From Woman to Mother

These cases, as a group, reflect the century's new understandings of woman as mother. Defined as inadequate by nature to act in the marketplace, women, or at least middle- and upper-class women, were increasingly enthroned--and empowered--at home where they were defined as incomparably superior to men at providing for the welfare of children. As a result, women, though denied the basic rights of those who participated in the world of work (the rights, for example, to enter into contracts, to sue, and to practice the professions), gained unprecedented authority at home and in regard to their children. However, poor women, unable to afford the life of homemaker, entered the marketplace, defined as less than fully human, and therefore enjoyed virtually no rights or protections in that arena; moreover, because poor women spent much of their everyday lives in the marketplace rather than in the home, they were judged wanting as mothers and therefore rarely benefitted socially or legally from the century's transformed images of maternity.

As a result, poor women were nowhere defined as fully human. A similar fate befell their children. In contrast, upper- and middle-class children, identified as treasures produced by their loving mothers' nurturance, became central to understandings of the domestic arena during the nineteenth century.

3.  Indentured Children and the Elaboration of Childhood

Indeed, changes in the society's understanding of children were at least as important as contemporaneous transformations in understandings of motherhood and maternal authority in altering custody law, generally, and the law's response to indentured children, more specifically during the nineteenth century. By mid-century, attention to children and their interests was competing, though far from inevitably, with both paternal and maternal authority as the touchstone of the law's rule for settling cases involving children' familial, and working, relationships.⁽¹⁷⁰⁾

Carl Degler, placing the transformation of the modern American family at the end of the eighteenth century, describes the differentiation of children from adults as the most notable of the changes that re-defined the family. According to Degler, society re-conceptualized childhood as essentially "innocent":

[C]hildhood itself was perceived as it is today, as a period of life not only worth recognizing and cherishing but extending. Moreover, simply because children were being seen for the first time as special, the family's reason for being, its justification as it were, was increasingly related to the proper rearing of children.⁽¹⁷¹⁾

The precious children of middle-class nineteenth century homes were no longer "object[s] of utility." They had become "object[s]s of sentiment."⁽¹⁷²⁾

As early as the first decades of the nineteenth century, the appearance of the best-interest standard in family law cases suggests that the law, reflecting the changed understanding of childhood that Degler describes, had begun to adjust its own role in adjudicating disputes about children. Not all children were similarly affected by these shifts, but the families of those who were--mostly middle-class families--were viewed by the law as important because they provided sanctuaries for the preservation of childhood and for the consequent socialization of emotionally and physically healthy children.⁽¹⁷³⁾ That effort came to be associated with the demand that children be separated, as a matter of preference and of fact, from the harsh demands of the working world.

Thus, like their mothers, children were associated with home and family, even becoming the raison d'etre of that social world. However, unlike their mothers, children were not ideally supposed to spend their days at home. Rather, more and more, they were expected to attend school. During these years systematized public schools were established widely by the states,⁽¹⁷⁴⁾ and then compulsory school attendance laws were promulgated.⁽¹⁷⁵⁾ The continuing extension of childhood during the nineteenth century was closely connected to the development and gradual universalization of institutional schooling.⁽¹⁷⁶⁾ Children were removed from the business of learning through work, and put to the business of learning in school.⁽¹⁷⁷⁾

Ironically, however, in precisely these years--years during which childhood was redefined to preclude participation in the marketplace at least for middle-class children,⁽¹⁷⁸⁾ and years during which the marketplace was redefined as a domain of putatively equal, autonomous individuals, able at least in theory to negotiate the terms of their own participation--poor children became a prime source of cheap labor for the burgeoning industrial enterprise.⁽¹⁷⁹⁾ These children were not sheltered by the romanticization of childhood that protected more fortunate children nor by the presumption of autonomous individuality that in theory at least protected white, adult men. And so, for these children, childhood ended early, and the society's new understandings of children and of work offered almost nothing.

Faced with the glaring contradiction between the sentimentalization of childhood and society's obvious exploitation of poor children in a variety of working environments, society responded variously and inconsistently. Some social observers deplored an economic system that depended on the exploitation of young children.⁽¹⁸⁰⁾ Others stressed the moral value of productive work from young children while keeping their own children at home and in school.⁽¹⁸¹⁾ Still others blamed the poor themselves. Impoverished parents were denounced for allowing their children to help sustain their families. Jacob Riis concluded in 1873 that "it requires a character of more disinterestedness . . . than we usually find among the laboring class to be able to forego present profit for the future benefit of the little one."⁽¹⁸²⁾ Sometimes, the practices and decisions of poor parents were attributed to the "foreign values" of new immigrants.⁽¹⁸³⁾

Consistent with the changing definitions of children and of work, the system of apprenticeship was increasingly reserved for children from poor homes. Some of these children were placed into servitude by their impoverished parents.⁽¹⁸⁴⁾ Others were indentured involuntarily by local overseers of the poor. No longer did middle-class parents believe that their children would be better educated, morally or professionally, if sent from home and placed under the roof and guidance of another family, comparable to, but different from, the one from which they came. In contrast, at home and at school, middle-class children, whose existence had come increasingly to be understood as the essence of familial matters, were separated from almost any contact with the world of work.⁽¹⁸⁵⁾

Thus, as the nineteenth century evolved, courts entertaining cases involving indentured children were variously informed by two fundamentally different understandings of the children involved. One approach, essentially familial, stressed the best interests of indentured children in disputes between parents as well as in disputes between parents (or town authorities) and masters. To proponents of this approach, the increasingly commercial quality of a young apprentice's life was problematic. A second approach, essentially commercial, refrained from applying the new rules of the developing family law system to indentured children. But this second approach, no more consistent with emerging notions of family and work than the first--though inconsistent in a different way--rested on the application to children of presumptions and laws understood as applicable only to putatively equal, autonomous adults, interacting in the marketplace. Each approach to indentured children differed from the approaches of the colonial and immediately post-revolutionary periods, when the law was able to analyze cases involving indentured children as contractual matters without thereby contradicting the essentially familial character of the apprentice-master relationship. In short, as the notions of childhood and of work became incompatible, courts deciding cases involving indentured children almost invariably faced a widening contradiction between the idea and the reality of working children.⁽¹⁸⁶⁾ They viewed this contradiction, however, from a variety of perspectives.

Nineteenth century courts, struggling to safeguard the interests of indentured children, employed a number of approaches. Some, assuming continuity with a previous century's reality, continued to define apprenticeships as familial. Others relied on legal technicalities to terminate apprentice-master relationships. Still others, ready to apply the rules of the marketplace to disputes involving apprenticeships, defined apprentices as workers. However, the marketplace excluded children by definition, though not in fact, from its realm by presuming the autonomous individuality of its participants.

Cases such as Curtis v. Curtis⁽¹⁸⁷⁾ and People ex rel. Barbour v. Gates⁽¹⁸⁸⁾ show courts concerned with children's interests permitting children to choose their masters (one `family') over parents (another `family'). In each of those cases at least one court determined the custody of an indentured child by focusing on the child's interests more than on the terms of the indenture agreement. Indeed, even New York's highest court, which reversed the decisions of the lower courts in Gates and found the indenture agreement that bound young Maria valid, recognized two judicial options: to focus either on the contractual agreement that created the apprenticeship of the child involved, or on the welfare of the child. In fact, the lower court appears to have found the indenture agreement invalid in order to have been able to consider the interests of the child.⁽¹⁸⁹⁾ However, explaining his decision to reverse that holding and to return young Maria Barbour from her mother to her Shaker master, Justice Allen, writing for the appellate court, declared:

It is true, that notwithstanding the validity of the indentures, it would have been competent for the Supreme Court, if sufficient cause had been shown, to take the custody of the infant from the defendant and commit her to the care and nurture of her mother and natural guardian. This might have been done by reason of the unfitness of the master to retain and have the training and education of the child, or other causes, showing that the interest of the infant required such transfer of custody; and had the decision of the court below been put upon such ground, it would have been for this court to say, to what extent it would review it, and sit in judgment upon this exercise of discretion. It would have been the subject of review, but it is not probable that it would have been very closely scrutinized or reversed except for manifest error. But this decision is not made to rest either at General or Special Term upon this ground.⁽¹⁹⁰⁾

Thus, the court proclaims that the case could have been decided either as a contractual, or as a domestic, matter. But once the court below premised its holding on the validity of the indenture agreement, its conclusions about the child's welfare were to be given no weight by the reviewing court.

Other courts, while asserting that their decisions rested on the formal validity or invalidity of indenture contracts, actually provided new sorts of choices and protections for indentured children. For instance, in an early nineteenth century case involving two boys, who were apprenticed by their father at ages six and eight to learn, respectively, the carpenter's and joiner's trade and the trade of blacksmith, a New York court declared that the indenture agreements had to be interpreted under statutory rather than common law, and that, as a result, the indentures were invalid, since the children had not consented in writing to their execution.⁽¹⁹¹⁾ The court concluded that the defect in the contract could be relied upon by the boys, who could have departed from their master's custody, if they had chosen to, but that the defect could not be relied upon by the boy's father. "It is for the infant alone to take advantage of the defect," proclaimed the court, "and if he does not choose to do it, he may waive the defect, and avail himself of the benefit of the apprenticeship."⁽¹⁹²⁾ At the time of the decision the boys, ages eight and eleven years old, were asked by court-appointed representatives about their preferences. Since the boys "expressed a decided and unequivocal desire to return to their masters, and a strong and unaccountable repugnance to go back to their father," the court had the boys sent back to their masters with official escorts, who were instructed to safeguard the boys and ensure their safe return.⁽¹⁹³⁾

Other courts relied on formal legal rules to free children anxious to escape their apparent fate as apprentices. In 1826 a Vermont court granted John Whipple freedom from an apprenticeship into which he had been bound by his father six months earlier.⁽¹⁹⁴⁾ In March 1825 John's father and Bulkey Squire entered into an oral agreement whereby John would "truly and faithfully serve and labor for" Squire for four years, and Squire, in turn, would teach John the "art, trade and mystery of a tanner and currier."⁽¹⁹⁵⁾ After working for Squire for six months, John departed and refused to return. Squire argued that the contract into which he had entered with John's father bound the boy as a servant and not an apprentice, and that the father, because "entitled to the services" of his son had the authority to assign those services to Squire.⁽¹⁹⁶⁾ The court, split on the matter of whether the contract might have bound John as a servant rather than as an apprentice, decided for John and his father, because the contract into which the parties had entered was oral, rather than written. In so deciding, the court refused to avoid the Statute of Frauds by deciding that the contract was good for a year, though not for a longer period.⁽¹⁹⁷⁾ Thus, the contract was declared void, and John was liberated from his relationship with Squire.

Blumenthal v. Shaw, decided at the end of the century, illustrates a contrary sort of judicial response to an indenture case--one that gave no consideration to the minor's interests and welfare.⁽¹⁹⁸⁾ In Blumenthal a federal court applied to a minor laws that governed relations in the marketplace. In 1888, Mark Shaw's father, and Charles Mullin entered into an agreement indenturing Mark to serve as Mullin's apprentice for four years. Mark was to learn the trade of shaver in Mullin's leather factory. Before the apprenticeship ended, Mullin transferred his business to F. Blumenthal and Co. With the business, he transferred rights to Mark as an apprentice. In 1890, the new owner's foreman argued with Mark and as a result informed the boy that he was fired. Later, the foreman testified that he had not really fired Mark. He explained: "It is a way we had of disciplining apprentice boys. . . . We expected Shaw to come back."⁽¹⁹⁹⁾

Mark, having interpreted his discharge as real, or perhaps having preferred to depart from his apprenticeship, sought work in other leather factories in the same city. However, he was prevented from finding alternative work because, following an "unwritten law" that no leather manufacturer in the area would hire an apprentice "belonging to" another concern, a representative⁽²⁰⁰⁾ of Blumenthal notified other companies about Mark's position as apprentice with Blumenthal.⁽²⁰¹⁾ Mark sued the company for damages that he had suffered as a result.

Mark was successful in court, but only because the court concluded that the original indenture agreement had not in fact created a valid apprenticeship. The court was unhesitating, however, in suggesting the proper result, had Mark been an apprentice to Blumenthal: "To reclaim a runaway apprentice, and to notify the trade not to harbor him, is the right, and perhaps the duty, of the master."⁽²⁰²⁾

This case, decided at the end of the century, when apprenticeships in which children benefitted through training and socialization had vanished, acknowledges and approves of the continued use of the apprenticeship form, but in a world with no place for traditional apprenticeships. The possibility of appropriating the apprenticeship form to serve new ends, though not actualized by the court in Blumenthal, posed serious risks for laboring minors, bound to their employers under indenture agreements.⁽²⁰³⁾ Deprived of protections previously afforded apprentices by the character of the master-apprentice relationship which, though paternalistic, assumed masters' responsible for their apprentices' welfare, these new apprentices--because children--could claim no rights in the marketplace either. By the late nineteenth century, apprentices, defined as children in a universe that presumed autonomous individuality, could be exploited as laborers and prevented from enjoying even the illusion of the rights held by other workers.⁽²⁰⁴⁾ Finally, by the middle of the century, cases such as Blumenthal made it increasingly apparent that the ancient system of apprenticeship survived in name alone.

The evolving view, reflected in the cases thus far discussed, that the idea of the best interests of children legitimately concerned American law is far less startling than a related view, far more radical, that began to appear at about the same time: the view that, in certain carefully circumscribed situations, children themselves should determine their own best interests, and that the courts should be bound by their preferences. This view is reflected in a number of cases in the nineteenth century which, by legitimating the transfer of custody of indentured children in their own best interests, legitimated also the extraordinary option that those interests might best be determined by the children themselves. Typically in such cases, judges interpreted indenture agreements as having effected a transfer of custody insofar as the parent was concerned, but left the children free to choose actual custodial arrangements. For example, in Commonwealth v. Hammond,⁽²⁰⁵⁾ involving the indenturing of young Margaret Holst to a member of the Harvard Shaker community, the court focused on a child's interests and respected her choice to deprive a parent of custody and parental authority despite the invalidity of the indenture agreement that purported to transfer custody of Margaret to Joseph Hammond. A similar decision was reached by a New York court in In re McDowle.⁽²⁰⁶⁾ Despite the invalidity of the agreements under New York law⁽²⁰⁷⁾ by which Matthew McDowle appeared to have indentured two children to two different masters, the court held that the indentures were binding with regard to the father, but not with regard to the boys. Thus, the sons were free to remain with their masters if they so chose. The court was apparently serious about acceding to the children's own choices. A note attached to the court's decision states that the chief justice appointed a special group of three lawyers to question the boys after the father suggested that the children's expressed preferences resulted from coercion by their master.⁽²⁰⁸⁾

In each of these cases, the parent lost custody despite the fact that valid app