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Topic: The American Revolution and Constitution

CHAPTER XIII.: STATE REGULATION OF THE RELATION OF PARENT AND CHILD, AND OF GUARDIAN AND WARD. - 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. 2 [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. 2.

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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CHAPTER XIII.

STATE REGULATION OF THE RELATION OF PARENT AND CHILD, AND OF GUARDIAN AND WARD.

SECTION195.Original character of the relation of parent and child—Its political aspect.
196.No limitation to State interference.
196a.People v. Turner.
197.Compulsory education.
198.Child’s right to attend public school—Separate schools for negro children—Expulsion from school must be for a reasonable cause.
199.Parents’ duty of maintenance.
200.Child’s duty to support indigent parents.
201.Relation of guardian and ward altogether subject to State regulation.
202.Testamentary guardians.

§ 195.

Original character of the relation of parent and child—Its political aspect.—

The early history of all the Aryan races, from whom the modern European races have sprung, reveals the family, with the husband and father as autocrat, as the primal social and political organization, upon which subsequently the broader organizations of tribe and nation were established. The tribe was a union of families, of Gentes, and the nation a union of tribes. But the family organization remained intact, and the tribal government was represented by the father or head of the family. The other members of the family did not have a voice in the administration of the tribal affairs, nor did the government of the tribe have any control of the concerns of the family. The father and head of the family ruled its members without constraint, could command the services of the child, make a valid sale of the adult children as well as of the minor, and punish them for offenses, inflicting any penalty which his wisdom or caprice may suggest, even to the taking of life. Nor did this police control extend only to the offenses committed against the members of the same family. The members of one family bore no legal relation to those of another, except the two heads. If the member of one family was guilty of a trespass upon the rights of a member of another family, the head of the latter family demanded redress from the head of the former, and he would inflict the proper punishment upon his offending kinsman, or else prepare to bear the responsibility of the act in an appeal to the tribal authorities.

It is not necessary to enter into the details of the family relation, in its political character. It is sufficient for the present purposes to say that it is in the political character of the family, as an institution of government, that the father is given this absolute control over the children and others, forming the family of which he is the head and ruler. It is not in his natural capacity of a sire that the justification of this control is to be found. When, therefore, the family ceases to be a subdivision of the body politic, and becomes a domestic relation instead of a political institution, we expect to find, and we do find as a fact, that this absolute control of the children is taken away. The children, like the father, become members of the body politic, and acquire political and civil rights, independently of the father. Then this supreme control is transferred to the State, the father retaining only such power of control over his children during minority, as the promptings of nature and a due consideration of the welfare of the child would suggest.

By the abolition of the family relation as a political institution, the child, whatever may be his age, acquires the same claim to liberty of action as the adult, viz.: the right to the largest liberty that is consistent with the enjoyment of a like liberty on the part of others; and he is only subject to restraint, so far as such restraint is neceesary for the promotion of the general welfare or beneficial as a means of protection to himself. The parent has no natural vested right to the control of his child. Except in the day when the family was a political institution, of which the father was the king or ruler, his power over the child during minority is in the nature of a trust, reposed in him by the State (or it may, historically, be more correct to say, which the State reserved to the father, when the political character of the family was abolished), which may be extended or contracted, according as the public welfare may require. To recognize in the father any absolute right to the control of his child, would be to deny that “all men are born free and equal.” For if the child is subject to the commands of the father, as a matter of abstract right, there can be no limitation upon the parental control, except what may be necessary to promote the general welfare, for the prevention of cruelty to the children, and for the protection of the rights of members of other families; the political powers of the father of the patriarchal age could not be taken away from him and vested in some other State organization. The father has as much a right to control the actions of his child when he is over twenty-one years of age as when he is below that age. Liberty, therefore, as we understand it, was not created for him; the heads of families alone are freemen.

But it is said that men are free to do as they please, when they become of age. By what authority are they denied their full liberty until they reach the age of twenty-one? Is a youth of twenty, by nature, less free than the youth of twenty-one? Is it because the father has a natural right to control the actions, and command the obedience, of the youth of twenty, and had not the same power of control over the youth of twenty-one? We have seen that in his political character the father exercised the same absolute control of the members of his family, whatever may be the age of the child or other member of the family. With the abolition of the family, as a political institution, the parental control was limited to the period of minority of the child, and the adult was free to do as he pleased, being only amenable to the State or society for infractions of its laws. If all men are born free and equal, are entitled to the 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.

§ 196.

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 statute 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.”1

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.1

In New York, also, it has been held that the commissioners of public charity have the power, under the statutes of 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.2

§ 196a.

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 unconstitutional, 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.3 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 preferable 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 abridgment 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 punishing 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 manhood 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 the State, as parens patriæ, 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 be 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.2 Laws committing homeless children to industrial schools have in other States been generally maintained.1

The opposite views of this most interesting phase of police 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 intrusted with the rearing of his child, and it is not a judicial question whether the legislative judgment was well founded.2

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.”1 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.

It may be added to the foregoing discussion that, while it may be conceded that the parents have no natural right to the control of their children, the recognition of which would to any degree limit the constitutional right of the State to interfere; the children may themselves, have constitutional rights which may be invaded by police regulations. This is certainly true, if the State were to establish arbitrary and altogether unreasonable regulations. But the constitutional rights of a minor, no less than himself, are immature; he is under tutelage, either to the State or to his parents, and he is permitted to enjoy only that degree of liberty, which is considered to be good for him. And the police regulations, which are instituted for his protection, or for the promotion of his welfare, are not to be measured by the same norm, which determines the reasonableness or unreasonableness of the regulations of the rights and liberty of the adult. For that reason, it would be no constitutional objection to statutory provisions for the commitment of minors to reformatory schools or houses of refuge, that a longer period of confinement is prescribed, than what is prescribed in the case of the same offenses for the commitment of adults to jails and penitentiaries.1

On the principle, that there is no constitutional limitation to the interference by the State with the parental control and rearing of a child, it is not an uncommon thing for legislatures in some cases to prohibit altogether the employment of children in certain employments; and in other cases, to subject their employment to the strictest police regulations, in order that the child’s health and welfare may be protected from alike the ignorance and the greed or necessities of the parents. In our large cities, societies for the prevention of cruelty to children are established by law, and are invested with the authority to intervene, and to take into their custody any child who is subjected to the cruelty or neglect of the parents. These societies are also empowered to secure, by the intervention of their agents, the enforcement of the laws, prohibiting or regulating the employment of children. These laws have been very earnestly contested in New York, in respect to their prohibition of the employment of children in theatrical shows and exhibitions. The Penal Code, § 292, of the State of New York makes it a misdemeanor for the parent of a girl under the age of fourteen to procure or consent to her employment or exhibition as a dancer. It was contended that this prohibitive statute was an unconstitutional infringement of the rights of both parent and children. But the law has been sustained by the courts of New York from the trial court to the Court of Appeals. The case deserves a most careful study by the investigator of this branch of the Police Power.1

But, of course, the legislative control of children must be reasonable; not only, because an unreasonable regulation will fail of effective enforcement; but also, because even children are entitled to some liberties. Recognizing the fact, that the moral health of children is more endangered by being allowed to be out upon the streets after dark, than by the similar liberty in the daylight, statutes have been passed in some of the States, which have received the popular name of “curfew law,” prohibiting persons under twenty-one years of age from being upon the streets and in other public places, after nine p. m., except when they are accompanied by their parents or guardians. Such a law was declared by the Texas Court of Appeals to be unconstitutional, because it was an unreasonable interference with the rights of parents and the liberty of the minor.1

§ 197.

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,2 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.

Since the publication of the first edition of this book, statutes requiring the attendance of all children between certain ages at some school, for a stipulated number of weeks and days in the year, have been enacted in a number of the States. In some of these States, the child is only required to attend school during the required time, but the selection of the school is left to the uncontrolled judgment of the parents. In other States, the attendance upon the public schools of the State is required, unless it can be shown that the private school, to which the child is sent, comes up to the requirements of the school law, and is indorsed, approved or licensed by the board of education, or other State officials, who are charged with the supervision of public education. The constitutionality of laws, which only required attendance upon some school during the school age, leaving the choice of the school to the parent, has never been successfully questioned. They have been uniformly sustained as a constitutional exercise of the police power.1

And the statutes, which require the children to attend the public schools, and those private schools only which have been approved or licensed by the State officers, who are charged with the care and control of educational matters, have also been generally sustained. The Vermont statute makes attendance upon a public school obligatory, and does not permit attendance upon any private school to be taken as a substitutive compliance with the law.1 In Massachusetts, the statute permits attendance upon approved private schools, in the place of the public school; and authorizes even the instruction by a private tutor, if the required branches are taught.2

In the States of Illinois and Wisconsin, the school law was in 1891 so amended as to require attendance upon the public schools or upon private schools, which were conducted in accordance with the prescribed regulations, in regard to the branches taught, and the methods of instruction; one of which regulations was that the instruction should be in the English language. All through these two States, there were parochial schools, attached to the Catholic and German Lutheran churches. The Catholic objection to this regulation was, of course, religious. The German Lutheran churches opposed its enforcement, because their ministers were the teachers, eking out a small ministerial salary by the fees, which they received from the instruction of the children of the church. These ministers, as a rule, were foreigners who could not teach in the English language, and who therefore had to give their instruction in German. The enforcement of the regulation, that the instruction shall be conducted in the English language, would have had the practical result of closing up almost all of the parochial schools of the German Lutheran church. The law was most vigorously opposed in both States, and was made the main issue in the succeeding State elections, with the result that the obnoxious provision was expunged by the subsequent legislature. But, on the principles herein set forth and explained, there can be little doubt of the constitutionality of the regulations.

§ 198.

The child’s right to attend the public school—Separate schools for negro children—Expulsion from school must be for a reasonable cause.—

Notwithstanding the universal adoption in this country of the policy of furnishing a free common school education for all children, in the absence of an express constitutional guaranty of such a system of public schools, no one’s constitutional right would be violated, if any State should fail to make provision for the proper maintenance of the public schools. But if the policy of free education is adopted by a State government, the education must be free to all the children of the State, without favor and without discrimination against any particular class, or against any particular individual child. The constitutional guaranty of equal privileges and immunities extends to the school children, and requires the provision for the equal and uniform enjoyment of the same educational advantages by all the children. Any law, which granted special provisions for the education of a particular class to the exclusion of other children, would be unconstitutional, in that it was class legislation and the grant of exclusive privileges. Thus, it is a common provision of the school law of the different States that no child is entitled to free education in any other school district but the one, in which he resides with his parent or guardian. A statute of Pennsylvania,—which authorized the children of the soldiers of the War of the Rebellion to attend the public schools in any district which they, or their parents, or guardian, may select, irrespective of the residence of the latter,—was held to be unconstitional and void as class legislation.1

A much vexed question, arising under this heading of the constitutional rights of children, is that which involves the constitutionality of laws, which provide for the maintenance of separate schools for negro children and the prohibition of their attendance at the schools which were established for the exclusive benefit of the whites. These laws are found in all of the Southern States; and similar laws have been enacted in a few of the Western Northern States. They are of a piece with the laws which require the use by negroes of separate railroad coaches and other public conveyances; and the same principle determines their constitutionality or unconstitutionality.

It is not one of the constitutional rights of the negro race that it should enjoy association with the white race in any of the social or non-political relations of life. All classes are alike guaranteed equal, but not identical privileges. Where, therefore, the negro population is large enough to induce the State legislature to establish separate schools for the exclusive education of negro children, their constitutional rights have not been violated by a refusal of admission to the schools, which have been established for white children, if the same grade of education, and the same facilities and accommodations, are provided for both classes of the population. Any discrimination whatever, in favor of one and against the other, which results in the provision of an inferior standard of education, or inferior accommodations for the enjoyment of free education, for one or the other of the two races, would be a clear violation of the constitutional guaranty of equal privileges.

In the Northern and Western States, at the present day, there is no general statutory provision for the establishment of separate schools for negro children; and it is very generally held in those States, that, where there is no statutory authority for such separate schools, the local boards of education have not the power to establish them, or to deny to a negro child admission to any school, which a white child, similarly conditioned, may enter;1 while, in other States, the State laws expressly prohibit the establishment of separate schools.2 But, in times past, the constitutional power to establish separate schools has been conceded in all of the States, in which the question has been raised.3

The constitutions of some of the Southern States expressly require the establishment of separate schools; and in all of them, whether there be a constitutional mandate or not, legislation which provides for the maintenance of separate schools, and denies to the negro child the right to attend the schools which are provided for the white children, is very generally sustained; at least, when the accommodations and facilities for the maintenance of the schools show no discrimination against the black children.4 Some of the Southern States, however, in the establishment of separate schools for the two races, show unmistakable discrimination against the negro children, either in the scope of the education, in the accommodations and equipment of the school, or in the proximity to the places of residence of the pupils; and yet a number of the courts have held the statutory provision for separate schools to be constitutional, notwithstanding the discrimination against the negro race. Thus, in Mississippi, it is held to be lawful for a town to establish, outside of the general system of public schools, a special school for the exclusive use of the whites; and bonds, issued by a town for the construction of a school building for such an exclusive use, are valid.1 In Georgia, in the provision for separate schools, the school law directed a division of the fund for building schools between the two races, in the proportions of the taxes, which were paid by them respectively. The constitutionality of the statute was sustained.2 A contrary conclusion was reached by the Supreme Court of Kentucky, in regard to the constitutionality of an act of the legislature, which, in establishing separate schools for negro children, excluded these schools from participation in the “common school fund.”3 The same adverse decision was recently made by the Supreme Court of Virginia because the statutes, in directing the establishment of separate schools, discriminated against negro children in the provision for the maintenance of their separate schools.4

The Missouri school law provides for the establishment of separate schools for negro children in every school district in which there are fifteen or more resident negro children of the school age; and where less than that number of negro children reside in a district, these children shall be entitled to attend school in any county or district in which a separate school is maintained for negro children; but they shall not be admitted to the white school of the district in which they reside. The Supreme Court of Missouri sustained the constitutionality of these provisions of the school law,5 and the court held that the right of the children to attend the schools of the State is a privilege belonging to a citizen of the State, and not to him as a citizen of the United States.6

I do not think, however, there is any room for doubt that the Federal courts would take jurisdiction in such a case and pronounce against the constitutionality of any provision of the school law of the State, which discriminated against the negro children in any material way. And this particular decision of the Missouri court, would most certainly be reversed, if the case had been taken up on appeal to the Supreme Court of the United States. In one case, a United States judge charged the jury that a provision for the attendance of negro children at separate schools was void, if the separate school was too remote, or the advantages for education were inferior to those which were provided in the schools for white children.1

A State law, which excluded negro children from a school which had been established by the State for the benefit of Indian children, was held to be constitutional and valid.2

A very peculiar and interesting question has arisen in connection with provisions of the Florida school law, which prohibit the attendance of white and black children at the same school. The prohibition is universal and comprehensive in its terms, so that it not only operates impartially against both races, so that the blacks are prohibited from attending the schools for the whites, as well as are the whites prohibited from attending the schools for the blacks; but it likewise applies to both private and public schools.

A missionary society had established a private school in Florida for the benefit of negro children, in a section of the State in which no efficient, if any, provision had been made for the education of the children of either race. The society desired to extend the privileges of their school to the white children of the community, when this prohibitory statute was enacted to prevent this mingling of the races. I do not think that there can be much doubt of the constitutionality of the law, inasmuch as it operates equally against both races.

The right of all children of a school district to the enjoyment of the privileges of the public school is so fixed and protected by law that not only may one force an entrance into the school if he is debarred admission in the first instance; but he may secure reinstatement, if he should be suspended or expelled for an unreasonable cause, or in the enforcement of an unreasonable rule. Still, children are under the obligation to obey all reasonable regulations for the orderly management of the school; and if they violate these reasonable rules, they may be suspended or expelled by the school authorities, and their right of attendance forfeited. This is a simple and rational application to child life of a principle of law, which is universally followed in adult life.1

§ 199.

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 himself 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 compulsory education a realized fact, it will probably be settled in favor of the power of the State to impose this duty.

Unless it is otherwise stated in the law, when reference is made to the rights and duties, which children possess and owe, legitimate children are meant; and a child is legitimate or illegitimate, according to the declarations of the municipal law of the country of his residence. The ordinary rule of the common law, which is the prevalent rule in this country, in the absence of statutory modification, is that a child is legitimate only when it is born in lawful wedlock. The subsequent marriage of the parents does not legitimize the offspring born before marriage, as it does in the Roman law. A number of the States have adopted the Roman rule, but requiring that the putative father shall after the marriage acknowledge the paternity of the child. There can be very little doubt that such a statutory change would not infringe any vested rights or constitutional limitations, if the statute were given a retroactive affect, and children already born out of wedlock were legitimized by the statute. The rights of legitimate children to maintenance and to a share of the patrimony are not so vested, as to furnish the ground for constitutional objection to such a retroactive law, which extends the enjoyment of these rights to children, who, under the law in force at the time of their birth, were illegitimate and were denied these rights. This has been the conclusion of the Supreme Court of South Carolina in sustaining a statute of that State, passed in 1865, which provided that every colored child heretofore born shall be the legitimate child of “his colored father, if he is acknowledged by such father.” The act was intended to avoid the confusion and doubt in such matters, which it was supposed would arise out of the loose and obscure marriages of slavery.1

§ 200.

Child’s duty to support indigent parents.—

Blackstone says: “The duties of children to their parents arise from a principle of natural justice and retribution. For to those who gave us existence, we naturally owe subjection and obedience during our minority, and honor and reverence ever after; they who protected us in the weakness of infancy are entitled to our protection in the infirmity of their age; they who by sustenance and education have enabled their offspring to prosper, ought in return to be supported by that offspring in case they stand in need of assistance.”2 In the support of the claim of a moral duty, the reasons assigned by Blackstone are all sufficient, but they cannot constitute the basis of a legal duty. Independently of statute, in England and in this country, the child is under no legal duty to support its aged parents.3 But statutes have been passed in England, and in most of the United States, providing for the legal enforcement of this obligation; at least, to the extent of relieving the public from the support of the paupers.1 The same legal duty has been imposed upon children by the laws of other countries, for example, the Athenians.2

On what ground can the imposition of these statutory duties be justified? Gratitude is the reason assigned by Blackstone for the exaction of the moral duty. Will the law undertake to compel children to manifest to their parents gratitude for past care and maintenance? That is clearly not the object of the statutes. Their object is to relieve the community of the necessity to support the aged and indigent. As a protection against an increased public burden, the law compels the child to support his parents. The State has a clear right to compel the parent to maintain his infant child, because the father or mother is responsible for its birth. They brought the child into the world, primarily and, in ordinary cases, chiefly to gratify their own desires; and it is but just that the State should compel the parents to relieve the community of the necessity of supporting their offspring. But the child has done nothing, which in any legal sense would make him responsible to the public, to provide his aged parents with the means of support. The law can never be invoked for the purpose of enforcing pure moral obligations; nor can a law be justified by the fact, that its enforcement compels incidentally the performance of a moral or religious duty. Clearly, there is no reason arising out of the relation of parent and child, upon which can be rested a legal duty of the child to support the parent. If it can be justified on constitutional grounds at all, as an exercise of police power, it can only be as a special tax upon the child, and is constitutional or not, according as special taxes are permitted or prohibited by the limitations of the constitution.

§ 201.

Relation of guardian and ward altogether subject to State regulation.—

Inasmuch as the guardian is ordinarily appointed by a court of the State in which the minor resides, there can be no doubt that the rights, obligations and duties of guardian and ward to each other are subject to the almost unlimited control of the State. The guardianship is instituted for the benefit of the minor, and it is for the legislature to determine what will advance his interests.1 But there is some doubt involved in determining the limitations of police power in the control and regulation of the powers and duties of

§ 202.

Testamentary guardians.—

They are those who are appointed by testament by the parent of the minor child. It is permitted by the law of England and of the United States for the father to appoint by testament a guardian by will, and it might very well be urged that, if the parent has a natural right to the care and control of his minor child, he would have a right to determine who shall succeed him in the enjoyment of this right. The one position is no more unreasonable than the other. But the argument in favor of the right to appoint testamentary guardians is historically weakened by the fact that it did not exist at common law, the privilege being granted for the first time by statute (12 Charles II.). “It is clear by the common law a man could not, by any testamentary disposition, affect either his land or the guardianship of his children.”1 It is our own opinion that all guardianships are trusts or privileges, and do not confer upon the guardians any absolute rights; and such has been the conclusion of the courts, in the few cases in which the question has been raised.2

[1]Bennett v. Bennett, 13 N. J. Eq. 114. See, also, People ex rel. Zeese v. Masten, 79 Hun, 580; Ex parte Liddell, 93 Cal. 633.

[1]See United States v. Bainbridge, 1 Mason, 71. See, also, to the same effect, People ex rel. Duntz v. Coon, 67 Hun, 523; People ex rel. Zeese v. Masten, 79 Hun, 580; Ex parte Liddell, 93 Cal. 633.

[2]People v. Weisenbach, 60 N. Y. 385.

[3]People v. Turner, 55 Ill. 280 (8 Am. Rep. 645).

[1]This case was also published in the American Law Register, vol. 10 (n. s.), 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.”

[2]Ex parte Ferrier, 103 Ill. 367 (42 Am. Rep. 10).

[1]Prescott v. State, 19 Ohio St. 184 (2 Am. Rep. 388); Roth v. House of Refuge, 31 Md. 329; Milwaukee Industrial School v. Supervisors of Milwaukee Co., 40 Wis. 328 (22 Am. Rep. 702); House of Refuge v. Ryan, 37 Ohio St. 197.

[2]“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 defined. The matter of education is deemed a legitimate function of the State, and with us is imposed upon the legislature as a duty by 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 intrusted with the formation of the character of his own offspring. In some countries, and even 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 v. Clottu, 33 Ind. 409.

[1]Bliss on Sovereignty, p. 17.

[1]People ex rel. Duntz v. Coon, 67 Hun, 523; Ex parte Liddell, 93 Cal. 633. In a preceding section (§ 52), the State control of infants or minors from the standpoint of the minor, as the independent possessor of constitutional rights, is more fully treated, and to that section, the reader is referred. In other preceding sections (§ 86, 102), the industrial freedom of the minor is explained.

[1]People v. Ewer, 19 N. Y. S. 933; 8 N. Y. Crim. R. 383; In re Ewer, 70 Hun, 239; People v. Ewer, 141 N. Y. 129.

[1]Ex parte McCaever (Tex. Civ. App.), 46 S. W. 936.

[2]See ante, § 52.

[1]Bissell v. Davison, 65 Conn. 183; State v. McCaffrey, 69 Vt. 85; Quigley v. State, 5 Ohio C. C. 638.

[1]State v. McCaffrey, 69 Vt. 85.

[2]Commonwealth v. Roberts, 159 Mass. 372.

[1]York City School District v. W. Manchester School District, 8 Pa. Dist. R. 97; Sewickley School District v. Osborne School District, 19 Pa. Co. Ct. 257; 6 Pa. Dist. 211; 27 Pittsb. Leg. J. (n. s.) 440.

[1]Knox v. Board of Education, 45 Kans. 152; Board of Education v. Tinnon, 26 Kans. 1; People v. Board of Education, 18 Mich. 399; Board of Education v. State, 45 Ohio St. 555.

[2]People v. Board of Education, 127 Ill. 613; State v. Duffy, 7 Nev. 342; Wysinger v. Crookshank, 82 Cal. 588; Marion v. Oklahoma, 1 Okl. 210; 32 P. 116.

[3]See Cory v. Carter, 48 Ind. 327; State v. Gray, 93 Ind. 303; Stewart v. Southard, 17 Ohio, 402.

[4]See Hare v. Board of Education, 113 N. C. 9; Union County Court v. Robinson, 27 Ark. 116; Maddox v. Neal, 45 Ark. 121.

[1]Chrisman v. Town of Brookhaven, 70 Miss. 477.

[2]Reid v. Town of Eaton, 80 Ga. 755.

[3]Dawson v. Lee, 83 Ky. 48.

[4]Williams v. Board of Education (Va.), 31 S. E. 985.

[5]Lehew v. Brummell, 103 Mo. 546.

[6]“The common school system of this State is a creature of the State constitution and the laws passed pursuant to its command. The right of children to attend the public schools, and of parents to send their children to them, is not a privilege or immunity belonging to a citizen of the United States.”

[1]U. S. v. Bunton, 13 Fed. Rep. 360.

[2]McMillan v. School Committee, 107 N. C. 609.

[1]Hodgkins v. Rockport, 105 Mass. 475; Watson v. City of Cambridge, 157 Mass. 561; Bishop v. Inhabitants of Rowley, 165 Mass. 460; Board of Education v. Purse, 101 Ga. 422; Fessman v. Seeley (Tex. Civ. App.), 30 S. W. 268; Cochran v. Patillo (Tex. Civ. App.), 41 S. W. 557.

[1]Callahan v. Callahan, 36 S. C. 454.

[2]1 Bl. Com.

[3]Rex v. Munder, 1 Stra. 190; Lebanon v. Griffin, 45 N. H. 558; Stone v. Stone, 32 Conn. 142; Edwards v. Davis, 16 Johns. 281; Reeve Dom. Rel. 284.

[1]Schouler Dom. Rel. 365; 2 Kent, 208.

[2]1 Bl. Com. 453; 2 Kent’s Com. 207.

[1]It has thus been held that in the capacity of a guardian of his minor child the father is competent to sue for injuries to the child, without making the child a party to the suit. In his character as a guardian, he appears in the suit as the representative of the child, so that the child is a party by representation. See Lathrop v. Schulte, 61 Minn. 196; Hess v. Adamant Mfg. Co. of America, 66 Minn. 79.

[1]Lord Alvanley in Ex parte Chester, 7 Ves. 370. But see Coke Lit. 87b, in which there are statements, calculated to throw doubt upon the correctness of this position, at least so far as the guardianship of the ward’s person is concerned.

[2]Beaufort v. Berty, 1 P. Wms. 703; Gilbert v. Schwenck, 14 M. & W. 488.