The Delinquent Child and the Home
Appendix 1: Legal Problems Involved in the Establishment of the Juvenile
Court
by Julian W. Mack[1]
Sophonisba Breckinridge and Edith Abbott
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Formerly judge of the Juvenile Court of Cook County, Illinois
THE legal problems growing out of the establishment of the juvenile court have given rise to discussion and to some differences of opinion from the standpoint of constitutional law.
It is desirable first to inquire into the distinctively novel features characteristic of the court and to determine whether their novelty is real or perhaps more apparent than real. It is a common conception that the state is the higher or the ultimate parent of all of the dependents within its borders. It is well known, too, that whatever may have been the historical origin of the practice, for over two centuries, as evidenced by judgments both of the House of Lords and of the Chancellors, the courts of chancery in England have exercised jurisdiction for the protection of the unfortunate child.
It was believed for a time that this jurisdiction could be acquired only in case the infant had property. This doctrine has been rejected by the English court and was declared in 1892 to be wholly unsupported by either principle or authority.[2]
(182) And the wellnigh unanimous doctrine of the American courts has been that parents' rights are always "subject to control by the court of chancery when the best interests of the child demand it."[3]
Support was found for the contention that a property interest is essential to jurisdiction in the fact that, until comparatively recent times, the aid of the court in England was seldom sought, except when the child had an independent fortune; but, as was said by Lord Eldon, whose decree in the Wellesley case [4] was affirmed by the House of Lords: [5]
" It is not from any want of jurisdiction that it does not act, but from a want of means to exercise its jurisdiction because the court cannot take upon itself the maintenance of all the children in the Kingdom. It can exercise this jurisdiction fully and practically only where it has the means of applying property for the maintenance of the infant."
In the supplying of this lack through public grants of money for institutions for the support, maintenance, and education of the children and in the enforcement of parental obligations, are found the constructive features of the legislation establishing the court and of other legislation upon which its administration depends.
The common law knew certain parental obligations which are usually enumerated as the duty of maintenance, of protection,
(183) and of education.[6] The last named, however, was admittedly a moral[7] and not a legal duty, while the second was sufficient to serve as a defense in case of assault committed in defense of the child's person or to reduce murder to manslaughter if committed from the same motive.
With reference to the duty of support, it may be said that probably by the common law of England the father was under a legal obligation to provide for the support of his child of tender years. This is the rule stated by English text writers and it may be deduced from the following propositions which are established by English cases:
(1) The father who neglected to provide for his tender child, thereby exposing the child to starvation, was liable to criminal prosecution. [8]
(2) If a child had independent means of support the father was yet under a primary obligation to provide for the child's support out of his own means, and a special order had to be obtained from the court to allow the father to draw upon the child's means. It is true that the practice became gradually settled to reimburse the father for expenses incurred for his child, but this seems to have been a matter of practice and not of absolute right.[9]
(3) It is held in England that a wife, deserted by her husband, may charge her husband not only for expenses incurred for herself, but also for those incurred for her minor children.[10] This presupposes that the father is liable for the support of the child as well as of the wife.
Irrespective of authority, it would also have to be assumed that the law would not give the father an absolute right to the earnings of the child if the father were not under an obligation for the maintenance of the child, and the right of the father to the earnings of the child is so well established that authorities in support of that right need not be cited.[11]
On the other hand it should be considered (t) that there
(184) seems to be no English case where the father was held upon an implied contract to reimburse a stranger who had made the provision for a tender child which the father failed to make; (2) that it is clear that the father had a right to disinherit his child and leave him to the parish.[12] It must also be presumed that the father had a right to emancipate his child if he had advanced beyond the tender age, and throw him upon his own resources, thus waiving the right to the child's earnings, but on the other hand also being relieved from the duty to support the child.
It must also be considered that at a relatively early period,[13] at the beginning of the seventeenth century, statutory provision was made for compulsory support of a child by a parent where the child would otherwise have been a charge upon the parish, and that this remedy would be likely to take the place of a common law remedy in many cases. There seems to be no authority clearly showing what the common law was before the enactment of this statute, and it is very natural that cases of this kind should not have come before the higher courts.
From this statement it is evident that admitting a legal duty of maintenance and even perhaps of education, the sanctions were so slight as to render the father wellnigh irresponsible, while he possessed the right to the custody of the child's person and to appropriate the child's earnings. There has been, then, in the past, no effective control on the part of the community over the exercise of parental rights and the performance of parental duties, especially by those of limited financial means. And, at the present time, most of the children who come before the court are naturally the children of the poor. In many cases the parents are foreigners, frequently unable to speak English. These poor people have not been able to give their offspring the opportunities and supervision that many children enjoy. They often do not understand American methods and views, the amount of education demanded by law or what the modern requirements for childhood are. In many instances the interests of the parents are apparently in conflict with those of the child. False testimonials as to the age of the child, sworn to in order that the child may be employed very young, when his earnings seem necessary for the support of the house
( 185) -hold, evidence this. In not a few instances where the parent is a victim of greed or of degraded habits of life, his interests are actually in conflict with those of the child. Very often, however, what they need, more than anything else, is kindly assistance and intelligent counsel, though sometimes there is necessity of forcing upon their attention the fact that the interest of the child is now a matter of concern to the state, and that the community and not the parent has the power to determine when the interests of the child are being ignored or inadequately protected.
The juvenile court, inheriting the parental powers of the court of chancery, is the institution, and the probation officer is the agent, through whom these services can be rendered by the community to the weak, the ignorant, the greedy, or the degraded parent. These tasks are, of course, of a most delicate and difficult kind, and probation officers must be men and women fitted to perform them. They should be characterized by tact, forbearance, and sympathy with the child, as well as by a full appreciation of the difficulties of the poorer class, and especially of the immigrants in our large cities.
It should be noted, too, that while in most jurisdictions the juvenile court laws make provision for the dependent as well as for the neglected, the truant, and the delinquent child, some of the best workers in this field have objected to a court having anything to do with the strictly dependent child, the child whose parents must ask assistance merely because of poverty or misfortune. If friends or the church fail to supply the necessary help and the aid of the state is to be sought, it should be granted through poor law or relief commissioners. The remedy for the saddest cases that too often come before the court, the dependent children of a woman suddenly deprived of the support of her husband by death or disease and unable to bear her heavy burden unaided, is not the disintegration of the family through the adoption or boarding out of the children, but private or public assistance that will enable the competent and worthy mother to keep her family together.
The common criminal law did not differentiate between the adult and the minor who had reached the age of criminal responsibility-seven at common law and in some of our states, ten in
( 186) others, with a chance to escape up to twelve, if lacking in mental and moral maturity. The majesty and dignity of the state demanded vindication for infractions of its statute from both alike. The fundamental thought in criminal jurisprudence was not, and in most jurisdictions is not, reformation of the criminal, but punishment; punishment as expiation for the wrong; punishment as a warning to other possible wrong-doers. The child was arrested, put into prison, indicted by the grand jury, tried by a petit jury, under all the forms and technicalities of our criminal law, with the aim of ascertaining whether it had done the specific act-nothing else-and if it had, then of visiting the punishment of the state upon it.
It is true that during the last century ameliorating influences mitigated the severity of the old régime; in the last fifty years, the reformatories have played a great and very beneficent part in dealing with juvenile offenders. They supplanted the penitentiary. In them the endeavor was made, while punishing, to reform; to educate the prisoner so that when his time should have expired he could go out into the world, capable at least of making an honest living. And, in the course of time, in some jurisdictions, the youths were separated from the older offenders in stations, jails, and workhouses; but generally in this country, the two classes were huddled together. What was the result of it all? Instead of the state training its bad boys so as to make of them decent citizens, it permitted them to become the outlaws and outcasts of society; it criminalized them by the very methods that it used in dealing with them. It did not aim to find out what the accused's history was, what his heredity, his environment, his associations; it did not ask how he had come to do the particular act which had brought him before the court; it put but one question, "Has he committed this crime?" Nor did it inquire, "What is the best thing to do for this lad?" It did not even punish him in a manner that would tend to improve him. The punishment was visited in proportion to the degree of wrongdoing evidenced by the single act; not by the needs of the boy, not by the needs of the state.
And when some good women in a great city saw these lads of ten and twelve and fifteen in great numbers filling the county jail, receiving no training and no education, mingling with the adult
( 187) criminals, the harlots, and the drunkards, both before and after trial, being daily contaminated physically and morally, they at first secured some measure of segregation; then they employed teachers for them and finally they influenced the board of education to establish a public school in the house of correction. Soon they said to themselves, " If this is good work, is it not better to keep these boys and girls away from this sort of a place altogether? Why is it not just and proper to treat these juvenile offenders as we deal with the neglected children-as a wise and merciful father handles his own child whose errors are not discovered by the authorities? Why is it not the duty of the state instead of asking merely whether a boy or a girl has committed a specific offense, to find out what he is, physically, mentally, morally, and then if it learns that he is treading the path that leads to criminality, to take him in charge, not so much to punish as to reform, not to degrade but to uplift, not to crush but to develop, to make him not a criminal but a worthy citizen."
And it is these two thoughts-the thought that the community is the final arbiter of parental rights and duties and the thought that the child who has begun to go wrong, who is incorrigible, and has broken a law or an ordinance, is to be taken in hand by the state not as an enemy but as a protector, as the ultimate guardian, because either the unwillingness or inability of the natural parents to guide the child toward good citizenship has compelled the intervention of the public authorities; it is these principles, to some extent theretofore applied in Australia and a few American states, which have been fully and clearly declared, in the act under which the Juvenile Court of Cook County, Illinois, was opened in Chicago on July 1, 1899, the Hon. R. S. Tuthill presiding. Colorado followed soon after, and since that time similar legislation has been adopted in most American jurisdictions, as well as in Great Britain, Ireland, Canada, and the Australian colonies.
Such legislation has often seemed very radical.
"There was a time in the history of this House when a bill of this kind would have been treated as a most revolutionary measure, and half a century ago, if such a measure had been introduced, it would have been said that the British constitution was being undermined," exclaimed the Lord Advocate of Scotland, in
( 188) the course of the debate on the sweeping reformation and consolidation of the laws relating to children, called the Children's Charter, which became effective April 1, 1909.[14] In continental Europe and also in Asia, the American juvenile courts have been the object of the most careful study, and in these countries either by parliamentary or administrative measures, similar courts have been established or at least some of their guiding principles enforced.
Juvenile court legislation in dealing with delinquent children has assumed two aspects.
In Great Britain, New York, and a few other jurisdictions, the protection is accomplished by suspending sentence and releasing the child under the care of a probation officer, or, in case of removal from the home, of sending it to a school instead of to a jail or penitentiary. The criminal proceeding remains, however. The child is charged with the commission of a definite offense, of which it must be found either guilty or not guilty. If not guilty of the one certain act, it is discharged, however much it may need care or supervision. If guilty, it is then dealt with, but as a criminal. And this would seem to be true even under the New York statute of June 5, 1909, which provides that:
"A child of more than seven and less than sixteen years of age, who shall commit any act or omission, which, if committed by an adult, would be a crime not punishable by death or life imprisonment, shall not be deemed guilty of any crime, but of juvenile delinquency only . . . . Any child charged with any act or omission which may render him guilty of juvenile delinquency shall be dealt with in the same manner as now is or may hereafter be provided in the case of adults charged with the same act or omission except as specially provided heretofore in the case of children under the age of sixteen years."
This would seem to effectuate merely a change in the name of every crime or offense from that by which it was theretofore known, to the crime of juvenile delinquency. Beyond question, much good may be accomplished under such legislation, dependent upon the spirit in which it is carried out, particularly if, as the English act
(189) provides, the conviction should not be regarded as a conviction of felony for the purpose of any of the disqualifications hitherto attached to felony.
But in Illinois, and following the lead of Illinois, in most jurisdictions, the form of procedure is totally different, and wisely so. It would seem to be obvious that, if the common law could fix the age of criminal responsibility at seven, and if the legislature could advance that age to ten or twelve, it can also raise it to sixteen or seventeen or eighteen; and that is what in some measure has been done. Under most of the juvenile court laws, the child under the designated age is to be proceeded against as a criminal only when in the judgment of the judge of the juvenile court, the interests of the state and of the child require that this be done.
It is to be observed that the language of the law should be explicit in order to negative the jurisdiction of the criminal courts in the first instance. In the absence of such express provision the supreme court of New Hampshire recently upheld a criminal conviction.[15] On the other hand the supreme court of Louisiana has decided that a criminal proceeding against one within the age limit must be quashed and the case transferred to the juvenile court.[16]
To get away from the notion that the child is to be dealt with as a criminal; to save it from the brand of criminality, the brand that sticks to it for life; to take it in hand and instead of first stigmatizing and then reforming it, to protect it from the stigma; this is the work which is now being accomplished among the greater number of the delinquent children, through the court that represents the parens patriae power of the state,-the court of chancery. Proceedings are brought to have a guardian or representative of the state appointed to look after the child, to have the state intervene between the natural parent and the child, because the latter needs it as evidenced by some of its acts, and because the parent is either unwilling or unable to train it properly.
Objection has been made from time to time that this is nevertheless a criminal proceeding, and that therefore the child is en-
(190) -titled to a trial by jury and to all the constitutional rights that hedge about the criminal.
The supreme courts of several states have well answered this objection. The supreme court of Pennsylvania has stated, that:
"To save a child from becoming a criminal or from continuing in a career of crime, to end in maturer years in public punishment and disgrace, the legislature surely may provide for the salvation of such a child, if its parents or guardian be unable or unwilling to do so, by bringing it into one of the courts of the state without any process at all, for the purpose of subjecting it to the state's guardianship and protection."The action is not for the trial of a child charged with a crime, but is mercifully to save it from such an ordeal, with the prison or penitentiary in its wake, if the child's own good and the best interests of the state justify such salvation. Whether the child deserves to be saved by the state is no more a question for a jury than whether the father, if able to save it, ought to save it. The act is but an exercise by the state of its supreme power over the welfare of its children, a power under which it can take a child from its father, and let it go where it will, without committing it to any guardianship or any institution, if the welfare of the child, taking its age into consideration, can be thus best promoted.
`The design is not punishment, nor the restraint imprisonment, any more than is the wholesome restraint which a parent exercises over his child. The severity in either case must necessarily be tempered to meet the necessities of that particular situation. There is no probability, in the proper administration of the law, of the child's liberty being unduly invaded. Every statute which is designed to give protection, care, and training to children, as a needed substitute for parental authority, and performance of parental duty, is but a recognition of the duty of the state, as the legitimate guardian and protector of children where other guardianship fails. No constitutional right is violated.[17]
The supreme court of Idaho, in one of the most recent decisions, thus refers to the juvenile court:
" Its object is to confer a benefit both upon the child and the community in the way of surrounding the child with better and more elevating influences and of educating and training him in the direction of good citizenship, and thereby saving him to society and adding a good and useful citizen to the community. This, too,
( 191) is done for the minor at a time when he is not entitled, either by natural law or the laws of the land, to his absolute freedom, but rather at a time when he is subject to the restraint and custody of either a natural guardian or a legally constituted and appointed guardian to whom he owes obedience and subjection. Under this law the state, for the time being, assumes to discharge the parental duty and to direct his custody and assume his restraint.
"It would be carrying the protection of `inalienable rights' guaranteed by the Constitution, a long way to say that that guaranty extends to a free and unlimited exercise of the whims, caprices, or proclivities of either a child or its parents or guardians, for idleness, ignorance, crime, indigence, or any kindred dispositions or inclinations."[18]
Years ago, in considering the power of the court to send a child to the house of refuge, Chief justice Gibson said:
" May not the natural parents, when unequal to the task of education, or unworthy of it, be superseded by the parens patriae, or common guardian of the community? It is to be remembered that the public has a paramount interest in the virtue and knowledge of its members, and that of strict right, the business of education belongs to it. That parents are ordinarily entrusted with it is because it can seldom be put in better hands; but where they are incompetent or corrupt, what is there to prevent the public from withdrawing their faculties, held as they obviously are at its sufferance? The right of parental control is a natural, but not an inalienable one. It is not excepted by the declaration of rights out of the subjects of ordinary legislation."[19]
Care must, however, be taken not to provide for dealing with the child as a criminal. The city of Detroit, as the result of a decision of the highest court, lacked for a time a juvenile court.[20] The supreme court of Michigan, following the cases cited and numerous others, over-ruled many objections urged against the constitutionality of the Detroit juvenile court act, but nevertheless held it invalid, saying:"The statute, it is true, declares that the proceedings shall not be taken to be criminal proceedings in any sense; and yet by
(192) section 14 it is provided that if the child be adjudged a delinquent child, the court may place the case on trial, and impose a fine not to exceed $25 and costs, etc. This can have no other purpose than punishment for a delinquency, which means nothing less, or at least includes one who violates any law of this state or any city ordinance.
"In the present case, however, this statute is a state law providing for a penalty. A complaint, an arrest, and trial are authorized, and, upon a determination, the imposition of a fine. It is difficult to conceive of any element of a criminal prosecution which may be said to be lacking. And, as section 28 of article 6 of the Constitution very plainly provides for a jury of twelve men in all courts of record in every criminal prosecution, the provisions for a jury of six for the trial of delinquents is in violation of this section."
Further legislation in Michigan has now corrected this defect.
In answer to the objection that the act has the effect of depriving a parent of the custody of his child in violation of his constitutional rights, the supreme court of Idaho says:
" If the parent objects to the child's being taken care of by the state in the manner provided for by the act, he may appear and present his objections. If, on the other hand, he is not made a party to the hearing and proceeding, under all the recognized rules of legal procedure, he is clearly not bound by the judgment and none of his rights are precluded.
"The parent or guardian cannot be bound by the order or judgment of the probate court in adjudging a child delinquent and sending him to the Industrial Training School unless he has appeared or been brought into the proceeding in the probate court."[21]
The supreme court of Utah emphasized this requirement when it said:" Before the state can be substituted to the right of the parent it must affirmatively be made to appear that the parent has forfeited his natural and legal right to the custody and control of the child by reason of his failure, inability, neglect, or incompetency to discharge the duty and thus enjoy the right.
" Unless, therefore, both the delinquency of the child and the incompetency, for any reason, of the parent concur, and are so found, the court exceeds its power when committing a child to any of the institutions contemplated by the act."[22]
(193)
It is, therefore, important to provide, as has been done in the most recent statutes, but as was not done in the earlier acts, that the parents be made parties to the proceedings, and that they be given an opportunity to be heard therein in defense of their parental rights.
The supreme court of Illinois, however, struck a discordant note in its decision in a case releasing the child from the state training school for boys. Subsequently, however, it granted a rehearing, and because of the discontinuance thereafter of the habeas corpus proceedings, rendered no final judgment in the case. In the original opinion, however, which we may, in view of the re-hearing, regard as retracted, the court, while upholding the constitutionality of the juvenile court law in the case of a child whose parents actively contributed to its wrongdoing, said:
" If this enactment is effective and capable of being enforced as against the relator, the father of the boy, it must be upon the theory that it is within the power of the state to seize any child under the age of sixteen years who has committed a misdemeanor, though the father may have always provided a comfortable, quiet, orderly, and moral home for him, and have supplied him with school facilities, had not neglected his moral training, and had been and was still ready to render him all the duties of a parent. We do not think it is within the power of the General Assembly to thus infringe upon parental rights."[23]
The answer to this, made by counsel on the argument on rehearing, would seem to be conclusive. They said:
"The boy incorrigible at home must be corrected by the State. Whether this correction be by fine, imprisonment, or commitment to school, is a matter which does belong to the legislature and not to this court to determine.
"This law applies, with equal force, to the son of the pauper and the millionaire, to the minister's son (who is sometimes the wolf among the flock) as well as to the son of the convict and the criminal. The circumstances and disposition of the parents are not the test by which the state measures its power over the child; the right of the parent to retain the society and the services of the child is rightfully suspended when the parent is unsuccessful in keeping the child in a state of obedience to the criminal law of the
(194) state; he cannot keep his child and allow him to continue to violate the law of the state without successful check or barrier thereon, just because he has a comfortable and moral home.
"The manner in which the power of the state shall be exercised, and the extent to which the deprivation of the parent shall go, is a matter for the determination of the legislature, and the legislature by this act has confided it to a court of chancery, where the parental power of the state has been lodged and exercised from time immemorial."
They quote, too, the passage heretofore cited from the decision of Chief justice Gibson, with this addition:
"The right of parental control is a natural but not an inalienable one. It is not excepted by the Declaration of Rights out of the subjects of ordinary legislation and it consequently remains subject to the ordinary legislative power which, wantonly or inconveniently used, would soon be constitutionally restricted, but the competency of which, as the government is constituted, cannot be doubted."[24]
One more legal question remains. In a decision, [25] characterized by the supreme court of Michigan in the Robinson case (supra). as "now chiefly notable as an example of the vigor with which that which is not the law may be stated," the supreme court of Illinois released a child from the reformatory on the ground that the reformatory was a prison; that incarceration therein was necessarily punishment for a crime; and that such a punishment could be inflicted only after criminal proceedings conducted with due regard to the constitutional rights of the defendant. Whether the criticism be just or not, the case suggests a real truth, and one which, in the enthusiastic progress of the juvenile court movement, is in danger of being overlooked. If a child must be taken from its home, if for the natural parental care that of the state is to be substituted, a real school, not a prison in disguise must be provided.[26]
( 195)
Taking a child away from its parents and sending it even to an industrial school is as far as possible to be avoided; and when the child is allowed to return home, it must be under probation, subject to the guidance and friendly interest of the probation officer, the representative of the court. To raise the age of criminal responsibility from seven or ten to twelve or eighteen, without providing for an efficient system of probation, would indeed be disastrous. Probation is, in fact, the foundation stone of juvenile court legislation.[27]
(196)
But in all this, there is nothing radically new. Massachusetts has had probation, not only in cases of minors but even in cases of adults, for forty years; and several other states have provisions for the suspension of a criminal sentence in the case of adults, permitting the defendant to go free, but subject to the control of a probation officer. Wherever juvenile courts have been established a system of probation has been provided for, and even where as yet the juvenile court system has not been fully developed, some steps have been taken to substitute probation for imprisonment of juvenile offenders.
With reference to the actual court procedure and practice it should be said in the first place, that the number of arrests is greatly decreased. The child and the parents are notified to appear in court and unless the danger of escape is great, or the offense very serious, or the home totally unfit for the child, detention before hearing is unnecessary. Children are permitted to go on their own recognizance or that of their parents, or on giving bail. Probation officers should be, and often are, authorized to act in this respect and to determine whether a summons must issue or the child be detained. If, however, it becomes necessary to detain the children either before a hearing or pending a continuance, or even after the adjudication, before they can be admitted into the home or institution to which they are to be sent, they are no longer kept in prisons or jails, but in detention homes. In some states the laws are mandatory that the local authorities provide such homes, managed in accordance with the spirit of this legislation. They are feasible even in the smallest communities inasmuch as the simplest kind of building best meets the need. In this building the court may be held, as is done in some of the larger cities.
The jurisdiction to hear the cases is generally granted to an existing court having full equity powers. In some cities, however, special courts have been provided, with judges devoting their entire time to this work. If these special courts can be constitutionally vested with full and complete chancery and criminal jurisdiction, much is to be said in favor of their establishment. In the large cities particularly, the entire time of one judge may well be. needed. It has been suggested from time to time that all the judges of the municipal or special sessions courts be empowered to act in
(197) these cases, but while it would be valuable in metropolitan communities to have more than one court house, nevertheless it would seem to be even more important to have a single juvenile court judge, empowered, however, to appoint assistants or masters.[28]
The personality of the judge is an all-important matter. The supreme court of Utah, commenting upon the choice of a layman, a man genuinely interested in children, pointed out that:
"To administer juvenile laws in accordance with their true spirit and intent requires a man of broad mind, of almost infinite patience, and one who is the possessor of great faith in humanity and thoroughly imbued with that spirit.
"The judge of any court, and especially a judge of a juvenile court, should be willing at all times, not only to respect, but to maintain and preserve, the legal and natural rights of men and children alike. . . The fact that the American system of government is controlled and directed by laws, not men, cannot be too often or too strongly impressed upon those who administer any branch or part of the government. Where a proper spirit and good judgment are followed as a guide, oppression can and will be avoided.
"The juvenile court law is of such vast importance to the state and society that it seems to us it should be administered by those who are learned in the law and versed in the rules of procedure, to the end that the beneficent purposes of the law may be made effective and individual rights respected. Care must be exercised in both the selection of a judge and in the administration of the law."[29]
( 198)
The decision but emphasizes the dangers that beset the path of the judge of the juvenile court. The public at large, sympathetic as it may be with the work, and even the probation officers who are not lawyers, regard hire as one having almost autocratic power. Because of the extent of his jurisdiction and the tremendous responsibility that it entails, it would seem to be essential that he be a trained lawyer, thoroughly imbued with the doctrine that ours is a "government of laws and not of men."
He must, however, be more than this. He must be a student of and deeply interested in the problems of philanthropy and child life, as well as a lover of children; he must be able to understand the boys' point of view and ideas of justice; he must be willing and patient enough to search out the underlying causes of the trouble, and to formulate the plan by which, through the co-operation of many agencies, the cure may be effected.
In some very important jurisdictions the vicious practice is indulged in of assigning a different judge to the juvenile court work every month or every three months. It is impossible for these judges to gain the necessary experience or to devote the necessary time to the study of the new problems. The service should under no circumstances be for less than one year, and preferably for a longer period. In some of our cities, notably in Denver, the judge has discharged not only the judicial functions, but also those of the most efficient probation officer. Judge Lindsey's love for the work, and his personality, have enabled him to exert a powerful influence on the boys and girls that are brought before him. While doubtless the best results can be thus obtained in such a court as exists in Denver, lack of time would prevent a judge in the largest cities from adding the duties of probation officer to his strictly judicial functions, even were it not extremely difficult to find the necessary combination of elements united in one man.
The problem to be determined by the judge is not, " Has this boy or girl committed a specific wrong?" but "What is he, how has he become what he is, and what would best be done in his interest, and in the interest of the state, to save him from a downward career?" It is apparent at once that the ordinary legal evidence in a criminal court is not the sort of evidence to be heard in such a proceeding. A thorough investigation, usually made by
(199) the probation officer, will give the court much information bearing upon the heredity and environment of the child. This, of course, will be supplemented in every possible way; but this alone is not enough. The physical and mental condition of the child must be known, and it is, therefore, of the utmost importance that there be attached to the court, as has been done in a few cities, a child study department, where every child, before hearing, shall be subject to a thoroughly scientific psycho-physical examination.
The child who must be brought into court should, of course, be made to know that he is face to face with the power of the state, but he should at the same time, and more emphatically, be made to feel that he is the object of its tender care and solicitude. The ordinary trappings of the court room are out of place in such hearings. The judge on a bench, looking down upon the boy standing at the bar, can never evoke a proper sympathetic spirit. Seated at a desk, with the little one at his side, where he can on occasion put his arm around his shoulder and draw the lad to him, the judge while losing none of his judicial dignity, will gain immensely in the effectiveness of his work.
It need hardly be pointed out, however, that it is of far greater importance to keep children out of any court, than to bring them into the juvenile court. In many communities, the influence of the probation officers in their immediate surroundings has been such that they have become arbiters of the petty disputes and quarrels that in former years brought not only the children but their parents into conflict and into court.
The object of the juvenile court and of the intervention of the state is, of course, in no case to lessen or to weaken the sense of responsibility either of the child or of the parent. On the contrary, the aim is to develop and to enforce it. Therefore, it is wisely provided in most of the recent acts that the child may be compelled when on probation, if of the working age, to make restitution for any damage done. Moreover, the parents may not only be compelled to contribute to the support of the children who are taken away from them and sent to institutions, but since the Colorado act of 1903, they, as well as any other adults, may be made criminally liable for their acts or neglect contributing to a child's dependency or delinquency. In most of the jurisdictions
(200) which have established separate juvenile courts, as well as in some of the others, all criminal charges affecting children, which are brought against adults, are tried by the juvenile court judge. In drafting legislation of this kind, however, it must not be overlooked that if criminal proceedings are brought against the adult, his constitutional rights must be carefully safeguarded. Following general principles such penal acts are strictly construed and therefore in the recent case of Gibson v. the People,[30] the Colorado supreme court limited the application of the act of 1903 to the parents and those standing in a parental relation to the child. Colorado, in 1907, however, as well as several other states, expressly extended the scope of such statutes so as to include any person whether standing in loco parentis or not. The supreme court of Oregon [31] has construed such legislation to refer only to misconduct not otherwise punishable.
Kentucky, in 1908, followed by Colorado, in 1909, has enacted a statute providing for the enforcement of parental obligations, not in the criminal but in the chancery branch of the juvenile court. A decree not merely for the payment of support money, but for the performance or omission of such acts, as under the circumstances of the cases are found necessary, may be enforced by contempt proceedings.
Valuable, however, as is the introduction of the juvenile court into our system of jurisprudence, valuable both in its effect upon the child, the parents, and the community at large, and in the great material saving to the state which the substitution of probation for imprisonment has brought about, it is in no sense a cure-all. Failures will result from probation just as they have resulted from imprisonment.
But more than this; the work of the juvenile court is, at the best, palliative, curative. We take these little human beings that are going the downward path and we try to save them-and to some extent succeed-from going farther down. But that is not the most important task. The vital thing is to prevent them from reaching that condition in which they have to be dealt with in any court, and we are not doing our duty to the children of today, the men and women of tomorrow, when we neglect to destroy the
( 201) evils that are leading them into careers of delinquency; when we fail not merely to uproot the wrong, but to implant in place of it the positive good.
" We want to say to the child," declared one of the speakers in the course of the debate on the Children's Bill in the House of Commons, "that if the world or the world's law has not been his friend in the past, it shall be now. We. say that it is the duty of this Parliament, and that this Parliament is determined to lift, if possible, and rescue him; to shut the prison door and to open the door of hope."[32]
