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Subject Area: Law
Topic: The American Revolution and Constitution

§ 196a.: People v. Turner.— - 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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§ 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

[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.