Opinion: mr. Justice Thornton delivered the sentiment of the Court:
By the order of this tribunal. the writ of habeas principal was issued. commanding Robert Turner. overseer of the reform school of the metropolis of Chicago. to demo cause for the caption and detainment of Daniel O’Connell.
The request of Michael O’Connell represents. that he is the male parent of Daniel. a male child between 14 and 15 old ages of age. and that he is restrained of his autonomy reverse to the jurisprudence. without strong belief of offense. and under colour of the undermentioned mittimus:
State OF ILLINOIS. COOK COUNTY.
US Secret Service.
Superior Court of Cook county. Of the Sept. Term. A. D. 1870.
The People of the State of Illinois to the Superintendent of the Reform School of the metropolis of Chicago: Greeting:
We do herewith command you. that you take the organic structure of Daniel O’Connell. a male child above the age of six and under the age of 16 old ages. who. upon due scrutiny by the Hon.
Wm. A. Porter. one of the Judgess of the Superior Court of Cook county. has been found. by competent grounds. to be a proper topic for committedness in the said reform school. and whose moral public assistance and the good of society require that he should be sent to said school for direction. employment and reformation. and that you confine the said Daniel O’Connell within the said reform school. harmonizing to the legislative act in such instances made and provided. and for so making. this shall be your sufficient warrant.
To the sheriff of Cook county to put to death.
Witness. Augustus Jacobson. clerk of our said Superior Court. and the seal thereof. this 9th twenty-four hours of September. A. D. 1870.
A. JACOBSON. Clerk.
The return is. that the male child had been detained by authorization of the mittimus. which accompanied the request. the master of which was filed with an indorsement thereon by the sheriff of its due executing. by the bringing of the “body of the captive to the overseer of the reform school. ”
It is admitted. that the relator is the male parent of the male child. alleged to be restrained of his autonomy. and that he is of the age stated.
The lone inquiry for finding. is the power of the legislative assembly to go through the Torahs. under which this male child was arrested and confined.
The first act. in relation to this “reform school. ” is a portion of the charter of the metropolis of Chicago. approved February 13. 1863. and the 2nd is entitled. “an act in mention to the reform school of the metropolis of Chicago. ” approved March 5. 1867.
The first subdivision establishes “a school for the safe maintaining. instruction. employment and reformation of all kids between the ages of six and 16 old ages. who are destitute of proper parental attention. and turning up in beggary. ignorance. idling or frailty. ”
Section four. of the act of 1867. provides. that “whenever any constabulary
magistrate. or justness of the peace. shall hold brought before him any male child or miss. within the ages of six or 16 old ages. who he has ground to believe is a drifter. or is impoverished of proper parental attention. or is turning up in beggary. ignorance. idling or frailty. ” he shall do such male child or miss to be arrested. and. together with the informants. taken before one of the Judgess of the superior or circuit tribunal of Cook county.
The justice is empowered to publish a biddings. or order in composing. to the child’s male parent. female parent. guardian. or whosoever may hold the attention of the kid. in the order named. and if there be none such. to any individual. at his discretion. to look. at a clip and topographic point mentioned. and show cause why the kid should non be committed to the “reform school. ” and upon return of due service of the biddings. an probe shall be had.
HN2The subdivision so directs. “if. upon such scrutiny. such justice shall be of sentiment that said male child or miss is a proper topic for committedness to the reform school. and that his or her moral public assistance. and the good of society. necessitate that he or she should be sent to said school for employment. direction and reformation. he shall so make up one’s mind. and direct the clerk of the tribunal of which he is justice. to do out a warrant of committedness to said reform school ; and such kid shall thereupon be committed. ”
Section nine. of the act of 1863. directs. that all individuals between six and 16 old ages of age. convicted of offense punishable by mulct or imprisonment. who. in the sentiment of the tribunal. would be proper topics for committedness. shall be committed to said school.
Section 10 authorizes the parturiency of the kids. and that they “shall be kept. disciplined. instructed. employed and governed. ” until they shall be reformed and discharged. or shall hold arrived at the age of 21 old ages ; and that the exclusive authorization to dispatch shall be in the board of defenders.
The warrant of committedness does non bespeak that the apprehension was made for a condemnable discourtesy. Hence. we conclude that it was issued under the general grant of power. to collar and restrict for bad luck.
The eventualities enumerated. upon the occurrence of either of which the power may be exercised. are vagrancy. destitution of proper parental attention. beggary. ignorance. idling or frailty. Upon cogent evidence of any one. the kid is deprived of place. and parents. and friends. and confined for more than half of an ordinary life. It is claimed. that the jurisprudence is administered for the moral public assistance and rational betterment of the child. and the good of society.
From the record before us. we know nil of the direction. We are merely informed that a male parent desires the detention of his kid ; and that he is restrained of his autonomy. Therefore. we can merely look at the linguistic communication of the jurisprudence. and the power granted.
What is proper parental attention? The best and kindest parents would differ. in the effort to work out the inquiry. No two barely agree ; and when we consider the alert supervising. which is so ceaseless over the domestic personal businesss of others. the decision is forced upon us. that there is non a kid in the land who could non be proved. by two or more informants. to be in this sad status. Ignorance. idling. frailty. are comparative footings. Ignorance is ever preferred to error. but. at most. is merely minor. It may be general or it may be limited.
Though it is sometimes said. that “idleness is the parent of frailty. ” yet the former may be without the latter. It is purely an abstention from labour or employment. If the kid execute all its responsibilities to parents and to society. the State has no right to oblige it to labour. Vice is a really comprehensive term. Acts. entirely guiltless in the appraisal of many good work forces. would. harmonizing to the codification of moralss of others. demo fearful corruption. What is the criterion to be?
What extent of enlightenment. what sum of industry. what grade of virtuousness. will salvage from the threatened imprisonment? In our solicitousness to organize young person for the responsibilities of civil life. we should non bury the rights which inhere both in parents and kids. The rule of the soaking up of the kid in. and its complete subjugation to the absolutism of. the State. is entirely inadmissible in the modern civilised universe.
The parent has the right to the attention. detention and aid of his kid. The responsibility to keep and protect it. is a rule of natural jurisprudence. He may even warrant an assault and battery. in the defence of his kids. and uphold them in their jurisprudence suits. Thus the jurisprudence recognizes the power of parental fondness. and excuses Acts of the Apostless which. in the absence of such a relation. would be punished. Another subdivision of parental responsibility. strongly inculcated by authors on natural jurisprudence. is the instruction of kids. To assistance in the public presentation of these responsibilities. and enforce obeisance. parents have authorization over them.
The municipal jurisprudence should non upset this relation. except for the strongest grounds. The instance with which it may be disrupted under the Torahs in inquiry ; the little grounds required. and the informal manner of process. do them conflict with the natural right of the parent. Before any condensation of the right. gross misconduct or about entire softness on the portion of the parent. should be clearly proved. This power is an emanation from God. and every effort to conflict upon it. except from desperate necessity. should be resisted in all good governed States.
“In this state. the hope of the kid. in regard to its instruction and future promotion. is chiefly dependent upon the male parent ; for this he struggles and toils through life ; the desire of its achievement operating as one of the most powerful inducements to industry and thrift. The violent breaking off of this relation would non merely be given to shrivel these motivations to action. but needfully. in clip. estrange the father’s natural fondnesss. ”
But even the power of the parent must be exercised with moderateness. He may utilize rectification and restraint. but in a sensible mode. He has the right to implement merely such subject. as may be necessary to the discharge of his sacred trust ; merely chair rectification and impermanent parturiency. We are non governed by the 12 tabular arraies. which formed the Roman jurisprudence.
The 4th table gave male parents the power of life and decease. and of sale. over their kids. In this age and state. such commissariats would be flagitious. If a male parent confined or imprisoned his kid for one twelvemonth. the stateliness of the jurisprudence would glower upon the unnatural act. and every stamp female parent and sort male parent would lift up in weaponries against such monstrous inhumaneness. * Can the State. as parens patriae. transcend the power of the natural parent. except in penalizing offense?
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* See the instance of Fletcher et Al. v. The People. keeping that the male parent may be indicted and punished for cold intervention of his kid.
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These Torahs provide for the “safe keeping” of the kid ; they direct his “commitment. ” and merely a “ticket of leave. ” or the uncontrolled discretion of a board of defenders. will allow the captive male child to take a breath the pure air of Eden outside his prison walls. and to experience the inherent aptitudes of manhood by contact with the busy universe.
The mittimus footings him “a proper topic for committedness ; ” directs the overseer to “take his organic structure. ” and the sheriff endorses upon it. “executed by presenting the organic structure of the within named captive. ” The parturiency may be from one to fifteen old ages. harmonizing to the age of the kid. Executive mildness can non open the prison doors. for no discourtesy has been committed.
The writ of habeas principal. a writ for the security of autonomy. can afford no alleviation. for the autonomous power of the State. as parens patriae. has determined the imprisonment beyond callback. Such a restraint upon natural autonomy is tyranny and subjugation. If. without offense. without the strong belief of any discourtesy. the kids of the State are to be therefore confined for the “good of society. ” so society had better be reduced to its original elements. and free authorities acknowledged a failure.
In instances of writs of habeas corpus to convey up babies. there are other rights beside the rights of the male parent. If improperly or illicitly restrained. it is our responsibility. ex debito justitiae. to emancipate. The public assistance and rights of the kid are besides to be considered. The disablement of bush leagues does non do slaves or felons of them. They are entitled to legal rights. and are under legal liabilities. An implied contract for necessities is adhering on them. The lone act which they are under a legal incapacity to execute. is the assignment of an lawyer. All their other Acts of the Apostless are simply rescindable or verifiable.
They are apt for civil wrongs. and punishable for offense. Lord Kenyon said. “If an infant commit an assault. or arrant slander. God forbid that he should non be answerable for it. in a tribunal of justness. ” Every kid over 10 old ages of age may be found guilty of offense.
For robbery. burglary or incendiarism. any minor may be sent to the penitentiary. Minor leagues are bound to pay revenue enhancements for the support of the authorities. and represent a portion of the reserves. and are compelled to digest the adversity and want of a soldier’s life. in defence of the fundamental law and the Torahs ; and yet it is assumed. that to them. autonomy is a mere Chimera. It is something of which they may hold dreamed. but have ne’er enjoyed the fruition.
Can we keep kids responsible for offense ; apt for their civil wrongs ; impose burdensome loads upon them. and yet deprive them of the enjoyment of autonomy. without charge or strong belief of offense? The measure of rights declares. that “all work forces are. by nature. free and independent. and have certain built-in and unalienable rights–among these are life. autonomy. and the chase of felicity. ”
This linguistic communication is non restrictive ; it is wide and comprehensive. and declares a expansive truth. that “all work forces. ” all people. everyplace. have the inherent and unalienable right to liberty. Shall we say to the kids of the State. you shall non bask this right–a right independent of all human Torahs and ordinances? It is declared in the fundamental law ; is higher than fundamental law and jurisprudence. and should be held everlastingly sacred.
Even felons can non be convicted and imprisoned without due procedure of law–without a regular test. harmonizing to the class of the common jurisprudence. Why should bush leagues be imprisoned for bad luck? Destitution of proper parental attention. ignorance. idling and frailty. are bad lucks. non offenses. In all condemnable prosecutions against bush leagues. for grave and flagitious discourtesies. they have the right to demand the nature and cause of the accusal. and a rapid public test by an impartial jury. All this must predate the concluding committedness to prison. Why should kids. merely guilty of bad luck. be deprived of autonomy without “due procedure of jurisprudence? ”
It can non be said. that in this instance. there is no imprisonment. This male child is deprived of a father’s attention ; bereft of place influences ; has no freedom of action ; is committed for an unsure clip ; is branded as a captive ; made topic to the will of others. and therefore feels that he is a slave.
Nothing could more contribute to paralyse the vernal energies. oppress all baronial aspirations. and unfit him for the responsibilities of manhood. Other agencies of a milder character ; other influences of a more charitable nature ; other Torahs less in restraint of autonomy. would better carry through the reformation of the depraved. and infringe less upon unalienable rights.
It is a sedate duty to articulate upon the Acts of the Apostless of the legislative section. It is. nevertheless. the grave responsibility of the tribunals to declare the jurisprudence. and guard. when assailed. the autonomy of the citizen. The fundamental law is the highest jurisprudence ; it commands and protects all. Its declaration of rights is an express restriction of legislative power. and as the Torahs under which the detainment is had. are in struggle with its commissariats. we must so declare.
It is hence ordered. that Daniel O’Connell be discharged from detention.