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Subject Area: Law
Topic: The American Revolution and Constitution

§ 52.: State control of minors.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 52.

State control of minors.—

It is not proposed to discuss in this connection the power of the State to interfere with the parent’s enjoyment of his natural right to the care and education of his minor child. The regulation of this relative right will be explained in a subsequent section.1 Here we shall make reference only to the power of the State to take into its care and custody the young children who have been robbed by death of parental care, and but for State interference would be likely to suffer want, or at least to grow up in the streets, without civilizing influences, and in most cases to swell the vicious and criminal classes. There can be no doubt that, in the capacity of a parens patriæ, the State can, and should, make provision for the care and education of these wards of society, not only for the protection of society, but also for the benefit of the children themselves. The State owes this duty to all classes, who from some excessive disability are unable to take care of themselves. It is clear, as has already been stated, and explained in several connections, the State has no right to force a benefit upon a full grown man, of rational mind, against his will. But the minor child is not any more capable of determining what is best for himself than a lunatic is. Being, therefore, devoid of the average mental powers of an adult, he is presumed to be incapable of taking care of himself, and the State has the right, in the absence of some one upon whom the law of nature imposes this duty, to take the child in custody, and provide for its nurture and education. This subjection to State control continues during minority.

Now, there are two ways in which the State can interfere in the care and management of a child without parental care. It can either appoint some private person as guardian, into whose custody the child is placed, or it may direct him to be sent to an orphan asylum or reformatory school, especially established for the education and rearing of children who cannot be otherwise cared for. The right of the State to interfere in either way has never been disputed, but a serious and important question has arisen as to the necessary formalities of the proceedings, instituted to bring such children under the control of the State. As already explained, the constitution provides, in the most general terms, that no man shall be deprived of his liberty, except by due process of law. Of course, minors are as entitled to the benefit of this constitutional protection as any adult, within, what must necessarily be supposed to have been, the intended operation of this provision. In the nature of things, we cannot suppose the authors of this provision to have intended that, before parents could exercise control over their minor children, and restrain them of their liberty, they would be compelled to apply to a court for a decretal order authorizing the restraint. The law of nature requires the subjection of minors to parental control, and we therefore conclude that “the framers of the constitution could not, as men of ordinary prudence and foresight, have intended to prohibit [such control] in the particular case, notwithstanding the language of the prohibition would otherwise include it.”1 The subjection of minors to control being a natural and ordinary condition, when it is clearly established that the State, as parens patriæ, succeeds to the parent’s rights and duties, in respect to the care of the child, due process of law would be no more necessary to support the assumption of control by the State than it is necessary to justify the parental control. The child is not deprived of a natural right, and hence he is not deprived of his liberty in any legal sense of the term. In a late case the Supreme Court of Illinois has, in an opinion exhibiting considerable warmth of feeling, declared that an adjudication is necessary before the child can be deprived of its natural liberty.1

This is really only a dictum of the court so far as it affirms the right of a child to a trial, before the State can place him under restraint, for in this case the boy was taken from the custody of his father, and the real question at issue was whether the State had a right to interfere with the father’s control of the boy. This aspect of the question will be presented subsequently.1 The following calm, dispassionate language of the Supreme Court of Ohio commends itself to the consideration of the reader. It was a case of committal to reformatory school on an ex parte examination by the grand jury, of a boy under sixteen, who had been charged with crime, under statutes which authorize and direct the proceeding:—

“The proceeding is purely statutory; and the commitment, in cases like the present, is not designed as a punishment for crime, but to place minors of the description, and for the causes specified in the statute, under the guardianship of the public authorities named, for proper care and discipline, until they are reformed, or arrive at the age of majority. The institution to which they are committed is a school, not a prison, nor is the character of this detention affected by the fact that it is also a place where juvenile convicts may be sent, who would otherwise be condemned to confinement in the common jail or penitentiary. * * * Owing to the ex parte character of the proceeding, it is possible that the commitment of a person might be made on a false and groundless charge. In such a case neither the infant nor any person who would, in the absence of such commitment, be entitled to his custody and services, will be without remedy. If the remedy provided in the twentieth section should not be adequate or available, the existence of a sufficient cause for the detention might, we apprehend, be inquired into by a proceeding in habeas corpus.”1

CHAPTER VI.

REGULATIONS OF THE RIGHTS OF CITIZENSHIP AND DOMICILE.

SECTION53.Citizenship and domicile distinguished.
54.Expatriation.
55.Naturalization.
56.Prohibition of emigration.
57.Compulsory emigration.
58.Prohibition of immigration.
59.The public duties of a citizen.

[1]See post, §§ 195, 196a.

[1]Christiancy, J., in People v. Plank Road Co., 9 Mich. 285.

[1]“In cases of writs of habeas corpus to bring up infants, there are other rights besides the rights of the father. If improperly or illegally restrained, it is our duty, ex debitio justitiæ to liberate. The welfare and rights of the child are also to be considered. The disability of minors does not make slaves or criminals of them. They are entitled to legal rights, and are under legal liabilities. An implied contract for necessaries is binding on them. The only act which they are under a legal incapacity to perform, is the appointment of an attorney. All their other acts are merely voidable or confirmable. They are liable for torts and punishable for crime. Every child over ten years of age may be found guilty of crime. For robbery, burglary or arson, any minor may be sent to the penitentiary. Minors are bound to pay taxes for support of the government, and constitute a part of the militia, and are compelled to endure the hardship and privation of a soldier’s life, in defense of the constitution and the laws; and yet it is assumed that to them liberty is a mere chimera. It is something of which they may have dreamed, but have never enjoyed the fruition.

“Can we hold children responsible for crime, liable for torts, impose onerous burdens upon them, and yet deprive them of the enjoyment of liberty without charge or conviction of crime? The bill of rights declares that ‘all men are, by nature, free and independent, and have certain inherent and inalienable rights—among these are life, liberty, and the pursuit of happiness.’ This language is not restrictive; it is broad and comprehensive, and declares a grand truth; that ‘all men,’ all people, everywhere, have the inherent and inalienable right to liberty. Shall we say to the children of the State, you shall not enjoy this right—a right independent of all human laws and regulations? It is declared in the constitution; is higher than the constitution and law, and should be held forever sacred.

“Even criminals cannot be convicted and imprisoned without due process of law—without regular trial, according to the course of the common law. Why should minors be imprisoned for misfortune? Destitution of proper parental care, ignorance, idleness and vice, are misfortunes, not crimes. In all criminal prosecutions against minors for grave and heinous offenses, they have the right to demand the nature and cause of the accusation, and a speedy public trial by an impartial jury. All this must precede the final commitment to prison. Why should children, only guilty of misfortune, be deprived of liberty without ‘due process of law?’

“It cannot be said that in this case there is no imprisonment. This boy is deprived of a father’s care; bereft of home influences; has no freedom of action; is committed for an uncertain time; is branded as a prisoner; made subject to the will of others, and thus feels that he is a slave. Nothing could more contribute to paralyze the youthful energies, crush all noble aspirations and unfit him for the duties of manhood. Other means of a milder character; other influences of a more kindly nature; other laws less in restraint of liberty would better accomplish the reformation of the depraved, and infringe less upon inalienable rights.” People v. Turner, 55 Ill. 280. But see contra, Ex parte Ferrier, 103 Ill. 367 (42 Am. Rep. 10).

[1]See post, § 196a.

[1]Prescott v. State, 19 Ohio St. 184 (2 Am. Rep. 388). The following provisions of the present charter of the city of New York may be of value in explaining the scope of the power of the State in controlling the liberty and providing for the welfare of children, who otherwise might become dangerous elements of society.

“Each Commissioner [of Public Charities] shall have authority, and it shall be his duty, to visit and inspect, personally, or by his agent, all charitable, eleemosynary, and reformatory institutions, wholly or partly under private control, which are situated or hereafter established within the borough or boroughs for which he is appointed, or which receive inmates from such borough or boroughs, and which demand or receive payment from the City of New York for the care, support, or maintenance of inmates. No payment shall be made to any such last-mentioned institution by the City of New York for the care, support, or maintenance of any inmate except upon the certificate of said Commissioner, or his deputy, showing that said inmate has been accepted by such Commissioner, pursuant to the rules and regulations established by the State Board of Charities, as a proper public charge for the period for which payment is demanded.

“Each Commissioner shall have power to indenture, place out, discharge, transfer, or commit any child for whose care, support, or maintenance payment from the City of New York is demanded or received by any of the aforesaid institutions, which are wholly or partly under private control, or who may be in his custody, whenever, in his judgment, it shall be for the best interests of such child so to do, and he and his successors in office shall have power to revoke or cancel any such indenture or agreement, and to make contracts for the maintenance of any such child in accordance with the general rules and regulations of the board; but, in indenturing, placing out, transferring, or committing any such child such Commissioner shall, when practicable, indenture or place out such child with an individual of the like religious faith as the parents of such child, or transfer or commit it to an institution governed by persons of the same religious faith.

“It shall be the duty of the Commissioner so notified to investigate forthwith the circumstances of the arrest and of the charge against such child, with a view of determining the bona fides of the same and of the merit of the claim for the support of such child as a public charge at the expense of the borough in which such arrest is made, and the court or magistrate before which such proceeding is pending is hereby authorized, in its or his discretion, to adjourn such proceeding from time to time, pending such investigation by the Commissioner, and to send back the final report, when made, for further investigation and report, and to examine under oath the person or persons making such investigation on behalf of the Commissioner.

“The term of commitment of each child committed in the City of New York as constituted by this act under any of the provisions of Section 291 of the Penal Code or of Section 888 of the Code of Criminal Procedure, shall be until such child shall attain the age of sixteen years, or until, with the written consent of the Commissioner, it shall be duly bound out as an apprentice by the institution to which it shall have been committed, or until, with like consent, it shall be given over in adoption by the said institution to some suitable person, or until upon application by or upon due notice to the Commissioner any court or magistrate of the City of New York as constituted by this act authorized by law to make commitment under Section 291 of the Penal Code, shall, upon proof, to its or his satisfaction that the best interests of such child require its immediate discharge from commitment, make an order directing such discharge, or until upon at least five days’ written notice to the Commissioner it shall be returned by such institution to the committing magistrate, court or official, as the case may be, on the stated ground that, in the opinion of said institution, said child is an improper subject for its further custody or care.”