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lent for the privation of the labor and enterprise of that class of citizens.
Credit is necessarily and hazardously increased by expectations on the part of the creditor of ultimate power of coercion or control over the debtor, the exercise of which must be fruitless to the creditor, and productive only of wretchedness to the debtor and his unoffending family.
These principles are now so universally acknowledged, that they are recognised in the codes of all civilized countries, and are especially established in the legislation of every state in the Union. Yet while the commercial operations of our citizens extend throughout the Union, and relations of debtor and creditor are freely assumed without reference to the boundaries of states, the neglect by Congress to establish uniform laws of bankruptcy, very often leaves the debtor without effectual relief, notwithstanding his surrender of all that he possesses for the satisfaction of his creditors. The power of a state to absolve its citizens, under any circumstances, from debts to citizens of other states, is more than questioned at home, and while the constitution expressly declares, that citizens of one state shall be entitled to all the privileges and immunities of citizenship in other states, the citizen humanely and wisely discharged at home, is debarred from seeking by emigration, the poor man's last hope, to improve his condition under more favorable auspices in any other part of the republic. Besides all the personal and domestic infelicity thus produced, it is obvious that this evil tends to create and sustain alienation of feelings, sympathies, and interests, among the citizens of the several states, who have not only one commerce, but one country, one ancestry, one constitution, and one destiny.
Entertaining these views, I heartily commend the proceedings of the citizens of New York, in relation to a general bankrupt law, to the favorable consideration of the legislature, in the hope that the subject may be deemed worthy of being presented by legislative instruction and advice to the senators and representatives of this state in the Congress of the United States. And I press the subject more earnestly, both because the peculiar misfortunes of the present time are greatly increasing the number of those unfortunate citizens who require the interposition of the national legislature, and because there can be little hope of stimulating the action of Congress on the subject at a future
THE CHILDREN OF ALIENS.
ALBANY, MARCH 20, 1840.
TO THE SENATE:
I HAVE had under consideration a bill entitled “An act for the protection of minors," which originated in the senate, and which has passed both houses of the legislature.*
The father is recognised as the natural guardian of his children by the laws of this state, and of all Christian countries. The duty of providing for their maintenance and education falls upon him, and he is entitled to the custody of their persons, and to the solaces of their society. But the father may forfeit his right of guardianship by neglect or violation of his conjugal duties, or by conduct which renders him an incompetent or improper person to support or educate his child. In such cases, the mother is entitled to the custody of the child; the supreme court may, on her application, commit the child to her care, and the chancellor
may decree a provision out of the father's property for its support.
The bill under consideration proposes to deprive alien fathers of their natural right of guardianship in certain specified cases. Those cases are, where the father, being an alien, and the mother and child American citizens, the father “shall attempt or threaten to carry the child into a foreign country, without the consent of the mother, or her next of kin, if she should not be living," and where the chancellor shall be satisfied that the welfare of the child would be promoted” by its being retained in this country. Stated in a more simple form, the effect of the bill is, that if an alien father shall, in any case whatever, attempt or threaten to carry his own child to his own country, without the consent of its mother, he shall thereby forfeit his natural right to determine what is expedient for his child's welfare, and the chancellor shall be substituted in his place with power over his property, to make such provision as the chancellor shall deem expedient and suitable for the maintenance and education of the child.
* It has been understood that the bill thus returned was hastily passed, from motives of sympathy with an American lady, who had formed an unhappy connection with a gentleman in Switzerland, and had taken refuge, or desired to take refuge, in this state. The parties were Mons. and Madame D'Hauteville. No proceeding in the bill was had in the legislature after the veto message was received. - Ed.
I confess it does not seem to me that the natural wish of an alien parent, who is obliged, or who deems it his duty or interest to return to his native land, to carry his child with him is so immoral that it ought to work a forfeiture of paternal rights. It may at least in some cases, if not always be presumed, that the father obeys laws of nature, stronger and more sacred than all human laws. Natural affection is not peculiar to American parents, nor does it cease to burn in a father's bosom because a sea has intervened between him and his native land. If it would not be unnatural, nor necessarily immoral, for an American sojourning in a foreign country to attempt or threaten to bring home his child, against the wishes of its mother, it can not be unnatural or immoral for an alien father residing in this country, under similar circumstances, to assert the same right.
The bill manifestly contemplates a case of separation or alienation between the father and mother of the child. What are the wife's rights under existing laws? If the husband violates or neglects his conjugal or parental duties, she may obtain a separation. If he does not thus forfeit his conjugal or parental rights, she is bound both in law and duty to attend him, wherever his fortune may oblige him to seek a residence, and to afford him the solace of her own society, as well as that of his children. It has been supposed to be essential to the public morals, and to the domestic happiness of families, that separation of husbands and wives, for light and trivial causes, should not be encouraged. It is not necessary to contend against an enlargement of the wife's privileges. It is probable that the superior influence and power of the male sex, are manifested as well in the legislative construction of the religious contract of marriage, as in the judicial expositions of it. I doubt not that many a case exists of injury, oppression, and domestic tyranny, unredressed, and even uncomplained of. I shall certainly be the last to resist any modification of the laws which the legislature may deem adapted to secure to married women a more faithful discharge of the obligations of the marriage contract, the better preservation of their just rights, and the security of their property. But the bill in question contemplates no such modification of the laws. It applies only to alien husbands, and to cases where the wife, being a citizen, refuses to consent that her child be taken by the father out of the country, a refusal which, from the circumstances of the cases, always follows her refusal to accompany her husband personally. Undoubtedly cases occur where an alien husband unreasonably and arbitrarily requires a wife to leave her native country, and expose herself and children to the vicissitudes of fortune in a strange land. But on the other hand, there may be instances in which a wife may unreasonably or capriciously refuse to abide the fortunes of a faithful husband in the country to which he belongs, and where his interests and duty may require him to reside. While it might be just and reasonable that the wife's wishes should prevail in the former case, it would be manifestly wrong that her perverseness should be encouraged in the other. Unfortunately the bill before me makes no distinction between these cases, and the perverse and delinquent wife may, equally with her who is injured or neglected, carry the domestic controversy into the court of chancery. It may be answered that the chancellor is not authorized by the bill to interpose, except in cases where the welfare of the child will be promoted thereby. This saving clause, however, seems to me insufficient to protect the father in his just and natural rights. It does not clearly appear what is meant by the welfare of the child. Is it welfare in respect to fortune or rank? Certainly neither of these circumstances can weigh against that higher welfare, which is promoted by parental care of the health, and of the moral, intellectual, and religious education of the child.
Again, I can not believe that the chancellor would be a more competent judge of what would promote a child's welfare than its virtuous and unoffending parent, even though that parent should be a foreigner. Chancellors are not exempt from human infirmities, and it can not be supposed that they acquire feelings of parental affection and tenderness toward the many thousand children of misfortune whom the destitution or depravity of parents cast upon their care. Nature designates the parent as