and which should be as nearly as possible like the life of the other children of the community.

15. We respectfully recommend that you send to Congress a message urging favorable action upon the bill for a federal children's bureau and the enactment of such legislation as will bring the laws and the public administration of the District of Columbia and other federal territory into harmony with the principles and conclusions herein stated, and we further recommend that you cause to be transmitted to the governor of each State of the Union a copy of the proceedings of this conference for the information of the state board of charities or other body exercising similar powers. Yours very respectfully,

The above letter, embodying the conclusions of the conference on the care of dependent children, was unanimously adopted at the close of the afternoon session on Tuesday, January 26, 1909. HOMER FOLKS,

Vice-Chairman.

JAMES E. WEST,
Secretary.

III. DELINQUENTS

[From Mack, Julian W., "The Law and the Child," Survey, Vol. 23 (1910), pp. 638-643.]

The legal questions involved in the problem of the delinquent child, while not complicated, have nevertheless given rise to some discussion and to some slight dissent from the standpoint of the constitutional law.

We are familiar with the conception that the state is the higher or ultimate parent of all the dependents within its borders. Whatever may have been the historical origin of the practice, we know that for over two centuries the Courts of Chancery in England have exercised jurisdiction for the protection of the unfortunate child, as evidenced by judgments of the House of Lords and of the chancellors.

The proposition that the Court of Chancery could not act unless the infant had property, has been declared in many cases to be wholly unsupported by either principle or authority.

In the early case of Cowles vs. Cowles (3 Gilman, 435, 1846), Caton, J., said:

The power of the Court of Chancery to interfere with and control not only the estates but the persons of all minors within the limits of its jurisdiction, is of very ancient origin and cannot now be questioned. This is a power which must necessarily exist somewhere in every well-regulated society, and more especially in a republican government. A jurisdiction thus extensive and liable, as we have seen, to enter into the domestic relations of every family in the community, is necessarily of a very delicate and even of a very embarrassing nature; and yet its exercise is indispensable in every well-governed society. It is indispensably necessary to protect the persons and preserve the property of those who are unable to protect and take care of themselves.

And shortly thereafter in the case of Miner vs. Miner [11 Ill., 40 (1849)], he enunciated the practically unanimous American, doctrine that the parents' rights are always "subject to control by the Court of Chancery when the best interests of the child demand it."

Support was found for the erroneous 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 [2 Russ., 1 (1827)] was affirmed by the House of Lords [2 Bligh, N. S., 124 (1827)]:

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.

This want has been met both through the extension of parental obligations and through public grants of money or institutions for the support, maintenance, and education of the children.

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

and the aid of the state is sought, it should be granted through poor law or relief commissioners, they argue. The court should be called upon to act only in the case of a persistent truant or a victim of neglect or wrong-doing on the part of others or of itself.

It is particularly in dealing with those children who have broken the law or who are leading the kind of life which will inevitably result in lawbreaking, that the new and distinctive features of the Juvenile Court legislation appear.

Our 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 others, with a chance of escape up to twelve if lacking in mental and moral maturity. The fundamental thought in our 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 wrongdoers. 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 inflicting the punishment of the state upon it.

It is true that in the modern reformatories which supplanted the penitentiary for youthful offenders guilty of serious crimes, an endeavor was made, while punishing, to reform, so that at the expiration of his term the prisoner could go out into the world capable at least of making an honest living. And in course of time, in some jurisdictions, youths were separated from older offenders even in police stations, jails, and workhouses. But the state criminalized the boys in its very effort to reform them. Instead of aiming to find out the history of the accused lad, his heredity, environment, associations; how he had come to do the act which brought him before the court, it asked but one question, "Has he committed this crime?" If the answer was Yes it did not even then inquire, "What is the best thing to do for him?" It did not punish him in a manner that would tend to improve him. The punishment was proportioned to the degree of wrongdoing evidenced by the single act; not by the needs of the boy, not by the needs of the state.

To-day, however, the thinking public is putting another sort of question, Why is it not just and proper to treat these juvenile offenders as we do neglected children, as a wise and merciful father handles his own child whose errors are not discovered by the authorities, by finding out what he is, physically, mentally, morally, and then if he is treading the path that leads to criminality, by

taking 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 this thought that predominates to-day; that the child who has begun to go wrong, who is incorrigible, who 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 the unwillingness or the inability of the natural parents to guide it toward good citizenship has compelled its intervention. This principle, which to some extent was applied earlier in Australia and a few American states, was first fully and clearly declared in the act under which the Juvenile Court of Cook county, Ill., was opened in Chicago, on July 1, 1899, Judge R. S. Tuthill presiding. Colorado followed soon after, and since that time similar legislation has been adopted in over thirty American jurisdictions, as well as in Great Britain and Ireland, Canada, the Australian colonies and to some extent continental Europe.

Juvenile Court legislation has assumed two aspects. In Great Britain, New York, and a few other jurisdictions, protection is accomplished by suspending sentence and releasing the child under probation, or, in case of removal from the home, by sending it to a school instead of to a jail or a 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 dealt with, but as a criminal. And this would seem to be true even under the New York statute of May 25, 1909, which seems merely to change the old name of the crime to "juvenile delinquency."

But in Illinois, and following the lead of Illinois in most jurisdictions, the form of procedure is totally and wisely different. It seems obvious that if the common law can fix the age of criminal responsibility at seven, and if the Legislature can 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 a child under the designated age is not to be proceeded against as a criminal in the first instance except when, in the judgment of the judge of the Juvenile Court, the interests of the state and of the child require it. Unless the act is clear on this point, criminal proceedings will be upheld as they were in New Hampshire [State vs. Burt, 71 Atl., 30 (1908)], but if the act is clear they will be quashed [State of Louisiana rs. Reed, 49 So. 3 (1909)].

The case is now heard in the court that represents the parens patriæ 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 some acts of the child show a need for it, and because the parent is either unwilling or unable to train the child properly.

The objection made from time to time that this is nevertheless a criminal proceeding, and that therefore the child is entitled to a trial by jury and to all the constitutional rights that hedge about the criminal, is well answered in the language of the Pennsylvania Court, in Commonwealth against Fisher (213 Pa. St., 48):

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 the child, taking its age into consideration.

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 the 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.

Juvenile Court acts framed on this theory must not provide for that which is clearly punishment as e.g., a fine, or imprisonment, or they will be unconstitutional [Robinson vs. Wayne Circuit Judges, 151 Mich., 315, 115 N. W., 682, (1908); People ex rel. vs. Turner, 55 Ill., 280 (1870)]. The spirit of this latter case is to change what would otherwise be a moral obligation of the state into a legal duty, the obligation in taking a child away from its natural parents, to give it a real home and school and not a prison in disguise. The parents should always be made parties to the