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Home > Journals > Michigan Law Review > MLR > Volume 5 > Issue 8 (1907)

 

Abstract

Although strenuous opposition has been encountered in the courts whenever an attempt has been made by the legislatures to interfere with the contractual freedom of adults in matters pertaining to the contract of employment, the right of interference in the case of children has been always conceded. From an early time minors have been placed under contractual disability by the law and have been looked upon as wards of the State. Having denied to them a full measure of contractual freedom, the State can hardly deny an equivalent protection; in fact the rule of contractual disability is in a large measure the result of the actual disability of the minor and his unquestioned need of protection. But not merely do these considerations apply-considerations of fair play and of an equality before the law-but the broader principles that the child of today is the citizen of tomorrow; that the whole is no greater than the sum of its parts, and that it is therefore a matter of supreme concern to the State that its wards shall be protected in the days of their helplessness and be properly trained for the duties which are to be theirs. It has been universally conceded, therefore, that the legislatures of the States may not merely confer privileges which are reciprocal and which may be justified under the theory that others have been taken away or denied; or on the broader ground that wherever there is any real contractual inequality protection may be given, but that the States may safeguard the interests of the child for considerations of their own. The right is conceded then not only to protect the child as a person against unwise contracts and an extravagant use of money, but to protect the State itself against unwise and injurious conduct on his part which may detract from his capacity and value as a citizen. The State may insist that its wards shall grow up possessed of bodily, spiritual and mental strength and power, and this in spite of even so-called parental rights. The old Common Law of England indeed, which seemed to give to the father, except where the question of inheritance and marriage were concerned, almost unlimited, rights over his minor children, seems in America to be now generally disregarded. Here the parent is prima facie entitled to the care and custody and services of his minor children, yet if he be an unfit person therefor, or if it be for the welfare of the children that their nurture be entrusted to another, that custody may be taken from him. It is in the welfare of the child, after all, as an individual and as a future citizen, and not in the desires or rights of the parents that the law evinces the most concern. No one today questions the validity of compulsory educational laws which are in any way reasonable. Nor is there any court to be found which denies to the State the right to protect the child from injurious employments and from excessive hours of labor. So far indeed, has one court gone in this particular that it has been willing to sustain a statute which prohibited the exhibition of female children in public dances or theatrical exhibitions even in a case where it was shown that the exhibition was not in any sense immoral. "To society, organized as a State," the opinion says: "It is a matter of paramount interest that the child shall be cared for and that the duties of support and education be performed by the parent or guardian in order that the child shall become a healthful and useful member of society. It is well remarked that the better organized and trained the race, the better it is prepared for holding its own, hence it is that laws are enacted looking to the compulsory education by parents of their children and to their punishment for cruel treatment and which limit and regulate the employment in the factory and the workshop to prevent injury from excessive labor. This legislation interferes to prevent the public exhibition of children under a certain age in spectacles or performances which by reason of the place and the hour, and of the nature of the acts demanded of the child performing and the surroundings and circumstances of the exhibition, are deemed by the legislature prejudicial to the physical, mental and moral welfare of 'the child and hence to the interests of the State itself. The scanty dress of the ballet dancer, the pirouetting and the various other described movements with the limbs and the vocal effort cannot be said to be without possible prejudice to the physical condition of the child, while in the glare of the footlights, the tinsel surroundings and the incense of popular applause, it is not impossible that the immature mind should contract such unreal views of existence as to unfit it for the stern realities and exactions of later life. The inalienable right of the child or adult to pursue a trade is indisputable, but it must be not only one that is lawful, but which for a child, of immature years the State or sovereign as parens patrim recognizes as proper and safe. It is not the strict moralist's view but the view from the standpoint of a member of the body politic."

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