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the State, as parens patrice, has determined the imprisonment beyond recall. Such a restraint upon natural liberty is tyranny and oppression. If, without crime, without the conviction of any offense, the children of the State are to thus confined for the good of society,' then society had better be reduced to its original elements, and free government acknowledged a failure.” 1
In a later case, arising under a subsequent statute, act of May 29, 1879, which provides for the committal to the industrial school of dependent infant girls, who are beggars, wanderers, homeless or without proper parental care, it was held that the act was constitutional, and was distinguished from the act under consideration in People v. Turner ; by better provisions for a judicial hearing before commitment under the act. Laws committing homeless children to industrial schools have in other States been generally maintained.3
The opposite views of this most interesting phase of police
1 This case was also published in the American Law Register, vol. 10 (N. 8.), p. 372, with an able annotation by Judge Redfield. The following is a quotation from the annotation:
“We have read this decision with great admiration. There can be no question, it is a very creditable advance in favor of liberty among the children of white parents, as well as those of more sombre hue. All classes of men, and women too, under this decision, may keep their own children at home and educate them in their own way. This is a very wonderful advance in the way of liberty. It must certainly be a great comfort to a devout Roman Catholic, father or mother, to reflect that now his child cannot be driven into a Protestant school and made to read the Protestant version of the Holy Scriptures. And what is more, his or her child cannot be torn from home and immured in a Protestant prison, for ten or more years, and trained in what he regards a heretical and deadly faith, to the destruction of his own soul. This is right and we hope the court will be able to maintain this noble stand upon first principles.”
. Ex parte Ferrier, 103 11. 367 (42 Am. Rep. 10).
3 Prescott o. State, 19 Ohio St. 184 (2 Am. Rep. 388); Roth v. House of Refuge, 31 Md. 329; Milwaukee Industrial School 0. Supervisors of Milwaukee Co., 40 Wis. 328 (22 Am. Rep. 702); House of Refuge o. Ryan, 37 Ohio St. 197.
power are thus presented to the reader with great particularity, and the solution of the problem depends upon the nature of the parent's claim to the custody of the child. If it is the parent's natural right, then the State cannot arbitrarily take the child away from the care of the parents; and any interference with the parental control must be justified as a police regulation on the grounds that the assumption of the control of the child by the State is necessary for the public good, because of the evil character of the parents ; and like all other similar cases of restraint upon natural right, the commitment of the child to the care of the State authorities must rest upon a judicial decree, after a fair trial, in which the parents have the right to appear and defend themselves against the charge of being unfit to retain the custody of the child. Whereas, if the parental control be only a privilege or duty, granted or imposed by the State, it rests with the discretion of the legislature to determine under what circumstances, if at all, a parent may be entrusted with the rearing of his child, and it is not a judicial question whether the legislative judgment was well founded.? But while we may reach the conclusion, that there is no constitutional limitation to the power of the State to interfere with the parental control of minors, it does not necessarily follow that an arbitrary denial of the parental authority will in every case be enforcible or beneficial. The natural affection of parents for their offspring is ordinarily the strongest guaranty that the best interests of the child as well as of society will be subserved, by leaving the child to the ordinary care of the parents, and providing for State interference in the exceptional cases, when the parents are of such vile character, that the very atmosphere of the home reeks with vice and crime ; and when it is impossible for the child, under its home influences, to develop into a fairly honest man. The natural bond, between parent and child, can never be ignored by the State, without detriment to the public welfare ; and a law, which interferes without a good cause with the parental authority, will surely prove a dead letter. “ Constitutions fail when they ignore our nature. Plato's republic, abolishing the family, making infants but the children of the State, exists only in the imagination.”] These are, however, considerations by which to determine the wisdom of a law; they cannot bring the constitutionality of the law into question, enabling the courts to refuse to carry the law into execution in any case that might arise under it.
1 "The duties and authority pertaining to the relation of parent and child have their foundations in nature it is true. Nevertheless all civilized governments have regarded this relation as falling within the legitimate scope of legislative control. Except in countries which live in barbarism, the authority of the parent over the child is nowhere left absolutely without municipal definition and regulation. The period of minority is fixed by positive law, when parental control shall cease. Within this, the age when the child may marry at its own will is in like manner detined. The matter of education is deemed a legitimate function of the State and with us is imposed upon the legislature as a duty bg imperative provisions of the constitution. The right of custody, even, is sometimes made to depend upon considerations of moral fitness in the parent to be entrusted with the formation of the character of his own off-pring. In some countries, and even in some of our American States, education has for more than a century been made compulsory upon the parent, by the infliction of direct penalties for its neglect. The right of the parent to ruin his child either morally or physically has no existence in nature. The subject has always been regarded as within the purview of legislative authority. How far this interference should extend is a question, not of constitutional power for the courts, but of expediency and propriety, which it is the sole province of the legislature to determine. The judiciary has no authority to interfere with this exercise of the legislative judgment; and to do so would be to invade the province which by the constitution is assigned exclusively to the law-making power." State o. Clottu, 33 Ind. 409. 1 Bliss on Sovereignty, p. 17.
§ 167. Compulsory education. – One of the popular phases of police power at the present day is the education of the children at the expense of the State. For many years it has been the policy of every State in the Union to bring the common school education within the reach of the poorest child in the land, by establishing free schools; and in the estimation of many the best test of the civilization of a people or a State is the condition of its public schools; the more public schools, properly organized, the more civilized. Whatever may be the view one may hold of the question of compulsory education, none but the most radical disciple of the laissez-faire doctrine will deny to the State the right to establish and maintain free schools at the public expense, provided the attendance upon such schools be left to the discretion of the child or its parents. When, however, the State is not satisfied with simply providing schools, the attendance to which is free to all ; but desires to force every child to partake of the State bounty, against its will and the wishes of its parents, perhaps against the honest convictions of the parent that attendance upon the public schools will be injurious to the child: when this exercise of police power is attempted, it will meet with a determined opposition from a large part of the population. For reasons already explained, the child who is altogether bereft of parental care, cannot interpose any legal objection ; for he is presumed to be mentally incapable of judging what will best promote his welfare. But it becomes a more serious question when the child has parents, and they oppose his attendance upon the public school. If the children do not go to any school, it does not appear so hard to compel the children to attend the State schools; but it is an apparent wrong for the State to deny to the parent his right to determine which school the child shall attend. And yet the constitutionality of the law, in its application to the two cases, must be governed by the same law. If the control of children is a parental right, instead of a privilege or duty, then in neither case is the State authorized to interfere with the parental authority,
unless the parent is morally depraved or insane : while the interference in both cases would be constitutional, if the parental control is held to be a privilege or duty, according to the point of view. It is probable that, under the influence of the social forces now at work the latter view will prevail, and compulsory education become very general, at least to the extent of requiring every child to attend some school within the specified ages.
$ 168. Parent's duty of maintenance.-The law of every civilized nation imposes upon the parent the duty to maintain and support the child during his period of infancy, when he is unable to support himself. Having brought the child into the world, he owes this duty, not only to the child, but to society as well, and the legal enforcement of this duty is a justifiable exercise of police power. Probably no one will dispute this, as long as the duty is confined to the support of the child during the time when it is physically or mentally incapable of providing for its own maintenance ; and the duty may be made to last as long as the incapacity exists, notwithstanding it is permanent and will continue through life to old age. But when there is no actual incapacity, and the child is really able to provide for him or herself, may the State impose upon the parent the duty to support the child during the time that the State requires the child to be in attendance upon the schools? This might very properly be considered a doubtful exercise of police power. Still, if the education is necessary to make the child a valuable citizen, and can be made compulsory ; as long as this requirement is kept within the limits of necessity, it would seem that the maintenance of the child during its attendance upon the school would be as much the duty of the parent, as to provide for the child's physical wants during its early infancy. If the question is ever " raised, and this is quite likely in any effort to make com