sovereign state of Virginia, is now become an arm of the state,rncapable of exercising its privileges only so long as it does notrnrun afoul of the higher authority from which it draws its legitimacy.rnIn earlier times, a parent’s responsibilities were coextensivernwith his rights, or rather the claims of blood required bothrnparents and children to fulfill their duties to each other. Familiesrnwere responsible for maintaining the child, for protectingrnhim from harm, and—in earlier or unsettled times—for takingrnvengeance against those who hurt or killed him. Today, vast legalrnsystems in Europe and North America see to it that the manrnwho rapes and murders a child is temporarily incarcerated in arnmental institution to protect him from the parents’ vengeance,rnand of the 50 American states it is only Louisiana that requiresrnparents to include children in their wills.rnUntil the Civil War, American households were still, by andrnlarge, fortresses that could shut out the world. When examplesrnof disciplinary severity and excessive punishment were broughtrnto trial, the usual result was an affirmation of parental rights. Atrnthe end of the last century, the North Carolina Supreme Courtrnoverturned a lower court that had convicted a father of assaultrnand battery, arguing that the application of the “cruel and unusualrnstandard” wouldrnsubject every exercise of parental authoritv in the correctionrnand discipline of children—in other words, domesticrngovernment—to the supervision and control ofrnjurors…. [S]uch a rule would tend, if not to subvertrnfamily government, greatly to impair its efficiency, andrnremove restraints upon the conduct of children . . . . [I] trnwould open the door to a flood of irreparable evils farrntranscending that to be remedied by a public prosecution.rnThe first child protection laws were devised by well-meaningrnEnglish statesmen who wished to save the lives of children.rnBeginning with Peel’s Health and Morals of Apprentices Actrn(1802), Parliament passed a series of acts to protect workingrnchildren. The first blow against family integrit’ was not struckrnby the politicians who passed child protection statutes but byrna social and economic system that droe mothers and childrenrnfrom the sanctuary of their homes, not into the marketplacernbut into the bowels of mines and factories.rnhi the United States, the frontier acted as a safety valvernthat encouraged the poorer classes to trek westward in search ofrnnew land. In the older parts of the country, however, industrializationrnand proletarianization proceeded along Englishrnlines. Deteriorating social conditions were exacerbated by thernarrival of non-English immigrants. The good Yankees were terrifiedrnof Irish Catholics, whose children needed to be Americanized,rni.e., protestantized and indoctrinated into habits ofrnthrift, diligence, punctuality, and above all sobriety. Thesernfears and aspirations were translated into legislation: compulsoryrnschool attendance laws and agencies designed to “save” potentiallyrn”delinquent” children—an elastic term that ran therngamut from criminal to shiftless—by removing them fromrnunsuitable homes.rnOne key to the process of children’s liberation is the conceptrnof parens patriae, which can be used to justify state interventionrnnot just in cases of real abuse but even when the choice is onlyrnbetween good and better environments for the child. Thernconcept arose in the English chancery courts that dealt withrncases of orphans. As parent of the nation, the king regardedrnhimself as the foster parent of last resort. In a monarchy,rnwhere citizenship means personal allegiance to a personal ruler,rnparens patriae is a limited concept that could not be broadenedrnto justify the state’s assumption of power oer all children. Inrna modern state, however, the bias is all against particular rightsrnand immunities and in favor of generalized rules that apply tornall. Pass a law aimed at aliens or the mentally defective, and itrnwill some day be used against the native-born and normal.rnIn the United States, parens patriae was used to justify therncreation of a juvenile justice system. In cariier times, althoughrnchildren over the age of seven might be tried and punished asrnadults, judges and juries were typically lenient in all but murderrneases. In 1899 Illinois passed a statute, widely imitated byrnother states, establishing a special system for youthful offenders,rnwho were to be tried and punished separatclv from adults.rnSince they were now not being treated as criminals, childrenrnand adolescents were no longer possessed of constitutionalrnguarantees of due process. The object of juvenile justice wasrnnot, after all, the punishment of a criminal but the rehabilitationrnof a delinquent. Pbr his own good, the youthful offenderrnwas removed from undesirable homes and placed in correctionalrnfacilities where he learned to mend his wavs.rnIn the absence of a clear, inflexiblernrule, the courts are free to apply thernhighly subjective notion of ‘bestrninterests/ not only in choosing one ofrntwo parents but even in choosing betweenrnnatural parents and an alternative.rnIn the course of this century, the powers of the juvenile justicernsystem were considerably broadened to encompass comparativelyrnminor infractions. At the same time, the courts andrnstate agencies began to operate on the assumption that they,rnrather than parentis, could be relied upon to determine a child’srnbest interests. Parents may be supervised, instructed, counseled,rnand monitored for failing to live up to the state’s definition.rnThe ultimate sanction is to remove the child from thernhome.rnThe basic fact of children’s lives is their dependency—arncondition that is material, moral, and legal. Most children dornnot, indeed cannot, provide for the necessities of shelter, food,rnand clothing. Morally, they are not een responsible. Sincerntheir character and judgment are incompletely developed,rnthey must relv on the guidance or supervision of their elders tornteach them how to discern right from wrong.rnParents, by irtue of conceiving and begetting a child, naturallyrnassume the role of guardian without any interferencernfrom the state. The problem of custody did not arise except inrncases where the family integrity was fractured by death or divorce.rnIf both parents died, their offspring usually went to livernOCTOBER 1993/nrnrnrn