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Subject Area: Law
Topic: The American Revolution and Constitution

§ 196.: No limitation to State interference.— - 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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§ 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

[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.