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Between Dependency and Liberty: The Conundrum of Children's Rights in the Gilded Age

Published online by Cambridge University Press:  18 August 2010

David S. Tanenhaus
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The Civil War, by abolishing chattel slavery, launched a revolutionary era in American constitutionalism during which lawmakers debated what liberty, dependency, and good governance would mean in the new nation. Although historians have made a convincing case for the significance of legal developments in the 1870s and 1880s, they have not focused much attention on the problem of children's rights in the age of slave emancipation. This is largely due to the assumption that the history of children's rights did not begin until the U.S. Supreme Court's landmark decisions in Brown v. the Board of Education (1954) and In re Gault (1967). This article, however, builds on the work of scholars, such as Joseph Hawes and Mary Ann Mason, who have demonstrated that the ideas and practices central to the modern children's rights movement of the late twentieth century have deep roots in American history. I argue that a sophisticated conception of children's rights existed in the late nineteenth century and investigate how lawmakers in Illinois articulated it through their attempts to define the “rights” of “dependent children.”

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Articles
Information
Law and History Review , Volume 23 , Issue 2 , Summer 2005 , pp. 351 - 385
Copyright
Copyright © the Board of Trustees of the University of Illinois 2005

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References

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3. Scholars generally cite Brown v. the Board of Education, 347 U.S. 483 (1954), as the first decision to recognize a substantive right for children and In Re Gault, 387 U.S. 1 (1967), as the first decision to recognize a child's right to due process protection. See, for example, Glennon, Theresa and Schwartz, Robert G., “Foreword: Looking Back, Looking Ahead: The Evolution of Children's Rights,” Temple Law Review 68 (Winter 1995): 1557–72.Google Scholar Barbara Bennett Woodhouse, however, contends that the first children's rights cases were actually brought by African Americans at the turn of the twentieth century to challenge the constitutionality of school segregation laws. Woodhouse, , “Who Owns the Child? Meyer and Pierce and Children as Property,” William and Mary Law Review 33 (Summer 1992): 1058–59Google Scholar.

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13. Petition of Ferrier, 103 Ill. 367 (1882) and County of McLean v. Laura B. Humphreys, 104 Ill. 379 (1882).

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15. Brief by I. N. Stiles, the City Attorney and counsel for the Chicago Reform School, filed November 23, 1870, 1. Case file 16742 [hereafter cited as Stiles's brief].

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20. Thirteenth Annual Report (1869), 42–43. In 1870 the United States Census recorded the occupations of child laborers for the first time. Clement, Growing Pains, 133.

21. “Petition for Habeas Corpus,” issued November 12, 1870, n.p. Case No. 16472, Supreme Court Archives, Springfield, Illinois.

22. Seventy-eight children were committed to the school in 1870. The children “confessed to” the following offenses: petit larceny (30), vagrancy (12), grand larceny (10), burglary (7), running away from home (7), incorrigibility (6), truancy (4), assault (1), and burning hay (1). Chicago Reform School Annual Reports, 1866–1872 (Chicago, 1872), 14. [Hereafter all cites will be to a specific annual report.]

23. Twelfth Annual Report (1868), 51.

24. According to the school's records, 581 of out the 1,284 children committed to the school between 1856 and 1872 had Irish parents. A separate table listed the “nativity” of the children themselves. It recorded that 161 out of the 1,284 children were Irish, presumably this meant that they had been born in Ireland. Sixteenth Annual Report (1872), 15–16.

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34. “Argument for relator,” Novemebr 26, 1870,Google Scholar Case No. 16742, Supreme Court Archives, Springfield, Illinois, n.p. (emphasis in original). After reading his opposing counsel's brief, Butler filed a second brief. He had filed his first brief on November 23.

35. Sixteenth Annual Report (1872), 19.Google Scholar

36. In its first section, the Thirteenth Amendment banned involuntary servitude: “Neither Slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” In its first section, the Fourteenth Amendment declared: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the law.”

37. Butler's brief, n.p.

38. For a good introduction to the legal privileges of “whiteness,” see Harris, Cheryl I., “Whiteness as Property,” Harvard Law Review 106 (June 1993):1710–91CrossRefGoogle Scholar.

39. Jacobson, Matthew Frye, Whiteness of a Different Color: European Immigration and the Alchemy of Race (Cambridge, Mass.: Harvard University Press, 1998).Google Scholar

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41. “The Bench and Bar,” The Chicago Times, November 10, 1870, p. 3.Google Scholar

42. Butler's brief, n.p.

43. Article II, Section 2.

44. The remainder of the section read: “but the trial of civil cases before justices of the peace by a jury of less than twelve men may be authorized by law” Article II, Section 5.

45. The remainder of the section read: “and no conviction shall work corruption of blood or forfeiture of estate; nor shall any person be transported out of the state for any offense committed within the same.” Article II, Section 11.

46. The remainder of the section read: “he ought to obtain, by law, right and justice freely, and without being obliged to purchase it, completely and without denial, promptly, and without delay.” Article II, Section 19.

47. Butler's brief, n.p.

48. On the significance of juries for American governance in the nineteenth century, see Amar, The Bill of Rights, esp. chap 5.

49. Butler's brief (emphasis in original).

50. Ex Parte Crouse, 4 Wharton 9 (Pa., 1838). For an excellent discussion of the case see Grossberg, Michael, A Judgment for Solomon: The D'Hauteville Case and Legal Experience in Antebellum America (New York: Cambridge University Press, 1996), 74–75CrossRefGoogle Scholar.

51. Novak, The People's Welfare.

52. Crouse, 11.

53. Stiles's brief, 2.

54. Ibid., 1.

55. Stanley, , From Bondage to Contract, x.Google Scholar

56. Quoted in Stanley, , From Bondage to Contract, 62.Google Scholar

57. Stiles's brief, 2.

58. Ibid., 1.

59. For analysis of the creation of the liberal order, see Novak, , The People's Welfare, 235–48Google Scholar.

60. Butler's brief, n.p.

61. “Thornton, Anthony,” in Historical Encyclopedia of Illinois, ed. Bateman, Newton et al. (Chicago: Munsell Publishing, 1906), 1:522.Google Scholar Thornton only served on the Illinois Supreme Court for three years and resigned in 1873.

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64. Ibid., 283–84.

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66. “Petition for Habeas Corpus,” n.p. According to his petition, Michael O'Connell was “a poor man, of the age of 50 years; [and] that the said Daniel O'Connell, his said son, for the eighteen month previous to his commitment to said Reform School had been engaged and employed in a Tobacco factory in said City of Chicago; and was receiving as wages for his labor in said Tobacco factory, the sum of Four Dollars per week at the time of his commitment to said Reform School.”

67. Turner, 285.

68. Ibid. Thornton quoted this passage, but did not name its author.

69. Turner, 286.

70. About forty percent of the soldiers who served in the Civil War were minors. Clement, Growing Pains, 12.

71. Tyler, Ransom H., Commentaries on the Law of Infancy, including Guardianship and Custody of Infants, and the Law of Coverture, embracing Dower Marriages and Divorce, and the Statutory Policy of the Several States in Respect to Husband and Wife (Albany: W. Gould and Son, 1868), 112–13.Google Scholar

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73. Tyler, , Commentaries on the Law of Infancy, 99.Google Scholar

74. Turner, 287.

75. Ibid.

76. Ibid.

77. Ibid.

78. Ibid., 286.

79. Gittens, , Poor Relations, 99.Google Scholar

80. Wines, E. C., The State of Prisons and of Child-Saving Institutions in the Civilized World (New York: Cambridge University Press, 1880), 173.Google Scholar

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83. Redfield, Isaac, “Comment,” American Law Register 19 (1871): 372–74.Google Scholar

84. Ibid., 375.

85. Turner-like decisions that led to the release of children from houses of refuge and reform schools included Commonwealth v. Horregan, 127 Mass. 450 (1879)Google Scholar ; State (ex rel. Cunningham) v. Ray, 63 N.H. 406 (1885); and Ex Parte Jonie Becknell, 119 Cal. 496 (1897)Google Scholar.

86. Grossberg, , “Changing Conceptions of Child Welfare,” 24.Google Scholar

87. Katz, Michael B., In the Shadow of the Poorhouse: A Social History of Welfare in America (New York: Basic Books, 1986), 113–45.Google Scholar

88. Hacsi, Timothy A., Second Home: Orphan Asylums and Poor Families in America (Cambridge, Mass.: Harvard University Press, 1997).CrossRefGoogle Scholar

89. Katz, , In the Shadow of the Poorhouse, 104.Google Scholar

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91. Folks, Homer, The Care of Destitute, Neglected, and Delinquent Children (New York: Macmillan, 1902Google Scholar ; reprint Washington D.C.: NAWS Classic Series); Abbott, , The Child and the State, 2:8–21Google Scholar.

92. “An Act to Establish a State Public School for Dependent and Neglected Children,” reprinted in Abbott, , The Child and the State, 2:54–57Google Scholar ; Merrill, G. A., “State Public Schools for Dependent and Neglected Children,” History of Child Saving in the United States (1893; reprint Montclair, N.J.: Patterson Smith, 1971), 204–46Google Scholar.

93. By the turn of the twentieth century, Colorado, Kansas, Minnesota, Montana, Nebraska, Nevada, Wisconsin, and Texas had all adopted the Michigan plan. Folks, , The Care of Destitute, Neglected, and Delinquent Children, 82Google Scholar.

94. Ibid., 97–98. Although Folks listed concerns about partisan politics as a leading objection to the state system, he argued that these charges were generally exaggerated.

95. By the end of the nineteenth century, California, Delaware, the District of Columbia, New York, Maryland, North Carolina, New Hampshire, Oregon, Pennsylvania, and Tennessee all made appropriations to some child welfare institutions within their borders. Folks, , Care of Destitute, Neglected, and Delinquent Children, 116Google Scholar.

96. “An Act for Industrial Schools for Girls,” Laws of Illinois (Springfield: Weber and Co., 1879), 309–13.Google Scholar

97. Milwaukee Industrial School v. Supervisor of Milwaukee County, 40 Wis. 328 (1876).

98. “An Act for Industrial Schools for Girls,” 309.

99. Ibid., 313.

100. Ibid., 309.

101. Ibid.

102. This notice requirement only applied if the parents or guardians were in the county at the time.

103. As Martha Minow has noted, “The problem of insuring that advocates work towards the best interests of the client is inherent in any system which uses counsel to represent clients. Where one party is given the authority to put forward another's interests, there is always the danger that the agent will not be faithful to the interests of his client. The agent may have misperceived what the client wanted. The agent may believe something to be in the client's interests when it actually is not. Finally, wherever power is delegated, there is always the potential and incentive for the agent to put his own interests ahead of those of his client. These problems infect almost every human relationship.” Minow, Interpreting Rights, 1889–90.

104. “An Act for Industrial Schools for Girls,” 310

105. Ibid., 312.

106. Ibid.

107. Ibid.

108. Ibid., 310.

109. Ibid., 313.

110. On health concerns in children's institutions in the 1870s and 1880s, see Cmiel, Kenneth, A Home of Another Kind: One Chicago Orphanage and the Tangle of Child Welfare (Chicago: University of Chicago Press, 1995), 25–26Google Scholar.

111. Illinois' age of consent (i.e., the age at which girls could legally consent to sex) was set as ten years of age, which was the norm in the 1880s. For an analysis of the campaign to raise the age of consent law in the late nineteenth century, see Odem, Mary E., Delinquent Daughters: Protecting and Policing Adolescent Female Sexuality in the United States, 1885–1920 (Chapel Hill: The University of North Carolina Press, 1995), chap. 1Google Scholar.

112. “Petition of Alexander M. Ferrier,” November 10, 1881, Case No. 20610, Supreme Court Archives, Springfield, Illinois, n.p. The information about Ferrier's family comes from the 1880 Census track for Illinois, Cook County, Registration District, 123, p. 22.

113. “Petition of Alexander M. Ferrier,” n.p.

114. “Abstract, In the Matter of the Petition of Alexander M. Ferrier To Have Winifred Breem [sic] Declared A Dependent Girl,” Case No. 20610, Supreme Court Archives, Spring-field, Illinois, p. 3.

115. Ibid.

116. According to the 1880 census track, Ferrier and his wife had four daughters (Agnes, age 11; Anna, age 9; Helen, age 8; and Gracie, age 6). Dr. Hanson testified that he had several children.

117. “Abstract,” p. 3.

118. On the competency of children and adolescents to understand the legal process, see Youth on Trial: A Developmental Perspective on Juvenile Justice, ed. Grisso, Thomas and Schwartz, Robert G. (Chicago: University of Chicago Press, 2000)Google Scholar.

119. “Abstract,” p. 4.

120. This paragraph is drawn from Beveridge's testimony, which is printed on an insert, located between pages three and four of the “Abstract.”

121. Ibid. (emphasis in original).

122. An attorney for the Industrial School charged that Willett was only “acting in the name of the respondent [Winifred], but in reality” represented Cook County. “Brief for Appellees,” Case No. 20610, Supreme Court Archives, Springfield, Illinois. Determining how attorneys should represent children raises a host of ethical questions. For more discussion of these issues as well as a proposed model, see Guggenheim, Martin, “A Paradigm for Determining the Role of Counsel for Children,” Fordham Law Review 64 (March 1996): 1399–1433.Google Scholar For an excellent discussion of these fears about creating dependency in this age of ascendant liberalism, see Sawislak, Karen, Smoldering City: Chicagoans and the Great Fire, 1871–1874 (Chicago: The University of Chicago Press, 1995)Google Scholar.

123. “Appellant's Brief,” Case No. 20610, Supreme Court Archives, Springfield, Illinois, p. 7 (emphasis in original) [hereafter Willett's Brief].

124. “Willett's Brief,” p. 4. The opposing counsel, N. M. Jones, mocked Willett for this argument: “He is afraid lest Cook county shall be a refuge for dependent girls from all parts of the world! He seems as greatly agitated in regard to their irruption as the Californians are in regard to the Chinese. This school, however, has, been established four years, and yet Cook county, with its 600,000 inhabitants, has now committed to said school less than forty girls, although thousands of boys and girls are annually arrested in said county and punished for crime.” “Appellee's Brief,” Case No. 20610, Supreme Court Archives, Springfield, Illinois p. 8 [hereafter Jones's Brief].

125. “Willett's Brief,” p. 5

126. Ibid.

127. According to section 8 of the Industrial School Act, “The fees for conveying a dependent girl to an Industrial School for Girls, shall be the same as conveying a juvenile offender to the Reform School for Juvenile Offenders, at Pontiac, in this State, and they shall be paid by the counties from which such dependent girls are sent, unless they are paid by the parent or guardian.” “An Act for Industrial Schools for Girls,” 311.

128. Ibid., 313.

129. Article 8, Section 3 of the Illinois Constitution of 1870 declared: “Neither the General Assembly, nor any city, town, township, school district or other public corporation shall ever make any appropriation, or pay from any public fund whatever, anything in aid of any church or sectarian purpose, or to help support or sustain any school, academy, seminary, college, university, or other literary or scientific institution, controlled by any church or sectarian denomination whatever; nor shall any grant or donation of land, money or other personal property ever be made by the State, or any such public corporation, to any church, or for any sectarian purpose.”

130. “Appellant's Brief,” Case No. 6293, Supreme Court Archives, Springfield, Illinois, p. 6.

131. Ibid., 9.

132. Ibid., 12.

133. “Appellee's Brief,” Case No. 6293, Supreme Court Archives, Springfield, Illinois, p. 6.

134. “Jones' Brief,” 15.

135. Ibid., 18.

136. Petition of Ferrier, 103 Ill. 367 (1882).

137. Ibid., 371.

138. Ibid., 372.

139. Ibid., 374.

140. Ibid., 373.

141. Justice Sheldon was relying upon William Blackstone, Commentaries of the Laws of England, vol. 1, 125. It is not clear which edition he used.

142. For an overview of Sheldon's life and career, see Historical Encyclopedia of Illinois, 477.

143. Ferrier, 373.

144. Ibid., 374.

145. Humphreys, 383.

146. Six years later, for example, the court did declare that the Chicago Industrial School for Girls, a Catholic school, was a sectarian institution. County of Cook v. The Chicago Industrial School for Girls, 125 Ill. 540 (1888).

147. Humphreys, 383–84.

148. “An Act to Provide For and Aid Training Schools for Boys,” Laws of Illinois (Springfield: H. W. Broker's Printing House, 1883).Google Scholar Due to the different ages of majority for boys and girls in Illinois, the length of commitments differed. Training schools retained custody over boys until they turned twenty-one, whereas industrial schools had custody over girls only until they turned eighteen. Training schools received smaller subsidies than industrial schools. They were paid from between $7 to $9 per boy, considerably less than the $10 per-child subsidy paid to industrial schools.

149. See, for example, Tanenhaus, David S., Juvenile Justice in the Making (New York: Oxford University Press, 2004).Google Scholar For analysis of African Americans keeping the spirit of the Civil War and Reconstruction alive, see Blight, David W., Race and Reunion: The Civil War in American Memory (Cambridge: Belknap Press of Harvard University Press, 2001).Google Scholar For the status of civil rights law in Illinois in the 1880s, see Dale, Elizabeth, “Social Equality Does Not Exist among Them or Us: Baylies vs. Curry and Civil Rights in Chicago, 1888,” American Historical Review 102 (April 1997): 311–39.CrossRefGoogle Scholar In his influential brief for Pierce v. Oregon (1925), the Columbia Law professor William D. Guthrie, for example, cited Turner as a precedent that supported the liberty of parents. Mr. William D. Guthrie, with whom Mr. Bernard Hershhoff was on the brief, for appellee in No. 583, Pierce v. Society of Sisters, 268 U.S. 510, 519 (1925). For discussion of Guthrie's role in the parental rights cases of the 1920s, see Woodhouse, , “Who Owns the Child?” 1070–80Google Scholar.

150. Commonwealth v. Fisher, 213 Pa. 48, 53 (1905).

151. Tanenhaus, David S., “Growing Up Dependent: Family Preservation in Early Twentieth-Century Chicago,” Law and History Review 19 (Fall 2001): 547–82.CrossRefGoogle Scholar

152. For characterizations of 1960s child savers attacking the accomplishments of the Progressive Era child savers, see Rothman, David J., “The State as a Parent: Social Policy in the Progressive Era,” in Doing Good: The Limits of Benevolence, ed. Gaylin, Willard et al. (New York: Pantheon Books, 1978), 67–96Google Scholar, and Minow, , “Children's Rights, 1575–76.Google Scholar