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equal protection of the law, they can claim the enjoyment of equal liberty, whether they be children or parents, infants or adults, under or over twenty-one years of age. It is only, therefore, as a police regulation, that the subjection of minor children to the control of parents may be justified under constitutional limitations. The authority to control the child is not the natural right of the parents ; it emanates from the State, and is an exercise of police power.
§ 166. No limitation to State interference. If it be true that the control of children, by whomsoever the control is exerted, is an exercise of police power, and can be justified only as such, on constitutional principles, then the parental control is a privilege or duty, and not a natural right; and this view meets with a tacit acquiescence, as long as the limitations upon the parental control are confined to the ordinary ones, with which long usage has made us familiar. Thus we readily acknowledge the right of the State to punish the parent for inflicting cruel and excessive punishment; and in a clear case of cruel treatment, we would not be shocked if the authorities were to take the child away from the parent. But we are startled if the rule is carried to its extreme limit in laying down the proposition, that, being a privilege, the State may take away the parental control altogether, and assume the care and education of the child, whenever in the judgment of the legislature such action may be necessary for the public good, or the welfare of the child. And such has been, with few exceptions, the opinion of the courts of this country. Thus, at common law, and everywhere in America, in the absence of statutory regulation to the contrary, the father has the absolute control of his minor children, to the exclusion of a similar right in the mother. Is this discrimination against the mother in recognition of the father's natural right to the custody of the child? If this were true, the legislature of New Jersey exceeded its powers when it provided by stat
ute that the mother, in cases of separation, shall have the custody of children of tender
age. But the Supreme Court of that State held that the act was constitutional. In rendering the decision the court said:
“ The argument (that the act is unconstitutional) proceeds upon the assumption that the parent has the same right of property in the child that he has in his horse, or that the master has in his slave, and that the transfer of the custody of the child from the father to the mother is an invasion of the father's right of property. The father has no such right. He has no property whatever in his children. The law imposes upon him, for the good of society and for the welfare of the child, certain specified duties. By the laws of nature and of society he owes the child protection, maintenance, and education. In return for the discharge of those duties, and to aid in their performance, the law confers on the father a qualified right to the services of the child. But of what value, as a matter of property, are the services of a child under seven years of age? But whatever may be their value, the domestic relations and the relative rights of parent and child are all under the control and regulation of municipal laws. They may and must declare how far the rights and control of the parent shall extend over the child, how they shall be exercised, and where they shall terminate. They have determined at what age the right of the parent to the services of the child shall cease and what shall be an emancipation from his control." I
It has also been held that Congress has power to enlist minors in the navy or army, without the consent, and against the wishes of the parents."
In New York, also, it has been held that the commissioners of public charity have the power, under the statutes of
1 Bennett o. Bennett, 13 N. J. Eq. 114.
See United States v. Bainbridge, 1 Mason, 71.
that State, to bind out to apprenticeship a child left to their care by the father, without providing the means of support, against the father's will or without his consent.
§ 166a. People v. Turner. — But in a late decision of the Supreme Court of Illinois the natural right of the parent to the custody of his minor child has been recognized and affirmed, and an act of the legislature declared upconstitutional, which empowered certain officers to commit to the reformatory school all minors under a certain age, when he is found to be without the proper parental care. The Court say:
“ The contingencies enumerated, upon the happening of either of which the power may be exercised, are vagrancy, destitution of proper parental care, mendicancy, ignorance, idleness, or vice. Upon proof of any one the child is deprived of home, and parents, and friends, and confined for more than half of an ordinary life. It is claimed that the law is administered for the moral welfare and intellectual improvement of the minor, and the good of society. From the record before us we know nothing of the management. We are only informed that a father desires the custody of his child, and that he is restrained of his liberty. Therefore we can only look at the language of the law and the power granted.
“ What is proper parental care? The best and kindest parents would differ in the attempt to solve this question. No two scarcely agree; and when we consider the watchful supervision which is so unremitting over the domestic affairs of others, the conclusion is forced upon us that there is not a child in the land who could not be proved, by two or more witnesses, to be in this sad condition. Ignorance, idleness, vice, are relative terms. Ignorance is always pre
1 People v. Weisenbach, 60 N. Y. 385.
ferable to error, but at most is only venial. It may be general, or it may be limited. Though it is sometimes said that •idleness is the parent of vice,' yet the former may exist without the latter. It is strictly an abstinence from labor or employment. If the child performs all its duties to parents and to society, the State has no right to compel it to labor. Vice is a very comprehensive term. Acts, wholly innocent in the estimation of many good men would, according to the code of ethics of others, show fearful depravity. What is the standard to be? What extent of enlightenment, what amount of industry, what degree of virtue, will save from the threatened imprisonment? In our solicitude to form youth for the duties of civil life, we should not forget the rights, which inhere both in parents and children. The principle of the absorption of the child in, and its complete subjection to the despotism of, the State is wholly inadmissible in the modern civilized world.”
“ The parent has the right to the care, custody and assistance of his child. The duty to maintain and protect it is a principle of natural law. He may even justify an assault and battery in the defense of his children, and uphold them in their lawsuits. Thus the law recognizes the power of parental duty, strongly inculcated by writers on natural law, in the education of children. To aid in the performance of these duties and enforce obedience parents have authority over them. The municipal law should not disturb this relation except for the strongest reasons.
The ease with which it may be disrupted under the laws in question; the slight evidence required, and the informal mode of procedure, make them conflict with the natural right of the parent. Before any abridgement of the right, gross misconduct, or almost total unfitness on the part of the parent should be clearly proved. This power is an emanation from God, and every attempt to infringe upon it, except from dire necessity, should be resisted in all well governed States. In this country the hope of the child in respect to its education and future advancement is mainly dependent upon the father ; for this he struggles and toils through life; the desire of its accomplishment operating as one of the most powerful incentives to industry and thrift. The violent absorption of this relation would not only tend to wither these motives to action, but necessarily in time alienate the father's natural affections.
“ But even the power of the parent must be exercised with moderation. He may use correction and restraint, but in a reasonable manner. He has the right to enforce only such discipline as may be necessary to the discharge of his sacred trust; only moderate correction and temporary confinement. We are not governed by the twelve tables, which formed the Roman law. The fourth table gave fathers the power of life and death and of sale over their children. In this age and country such provisions would be atrocious. If a father confined or imprisoned his child for one year, the majesty of the law would frown upon the unnatural act, and every tender mother and kind father would rise up in arms against such monstrous inhumanity. Can the State, as parens patriæ, exceed the power of the natural parent, except in pupishing crime?
“ These laws provide for the safe keeping,' of the child, they direct his commitment' and only a ticket of leave,' or the uncontrolled discretion of a board of guardians, will permit the imprisoned boy to breathe the pure air of heaven outside his prison walls, and to feel the instincts of unanhood by contact with the busy world. The mittimus terms him a proper subject for commitment;' directs the superintendent to take his body' and the sheriff indorses upon it, executed by delivering the body of the within named prisoner.' The confinement may be from one to fifteen years, according to the age of the child. Executive clemency cannot open the prison doors, for no offense has been committed. The writ habeas corpus, the writ for the security of liberty, can afford no relief, for the sovereign power of