XXI. The Rights of Children

CHAPTER XXI. THE RIGHTS OF CHILDREN. § 331. The reader who remembers that at the outset we recognized a fundamental distinction between the ethics of the family and the ethics of the State, and saw that welfare ·0£ the species requires the maintenance of two antagonist principles in them respectively, win infer that the rights of children must have a nature quite different from that of the rights of adults. He will also infer that since children are gradually transformed into adults, there must be a contin ually changing relation between the two kinds of rights, and need for a varying compromise. Preservation o£the race implies both self-sustentation and sustentation of offspring. If, assuming preservation of the race to be a good end, we infer that it is right to achieve these two sustentations; and if, therefore, the conditions precedent, without which they cannot be achieved, become what we call rights; it results that children have rights (or rather, for distinction sake, let us say rightful claims) to those materials and aids needful for life and growth, which, by implication, it is the duty of parents to supply. . Whereas during mature life, the rights are so many special forms of that general freedom of action which is requisite for the procuring of food, clothing, shelter, &c.; during immature life the rightful claims are to the food, clothing, shelter, &c., thernselves, and not to those forms or 168 JUSTICE.

freedom which make posRible the obtainment of them. While yet its faculties are undeveloped the child cannot .occupy various parts of the sphere of activity occupied by the adult. During this stage of inability, such needful benefits as are naturally to be gained only within these unusable regions of activity, must come to it gratis. And, deduced as its claims to them are from the saIne primary requirement (preservation of the species), they must be considered as equally valid with the claims which the adult derives from the law of equal freedom. I use the foregoing verbal distinction between the rights of adults and the rightful claims of children, because, in the general consciousness, rights are to so large an extent associated with activities and the products of activities, that some confusion of thought arises if we ascribe them to infants and young children, who are incapable of carrying on such activities and obtaining such products.

§ 338. Still regarding preservation of the species as the ultimate end, we must infer that while in large measure children's rightful claims are to the products of activities, rather than to the spheres in which those activities are carried on, children havA, at the same time, rightful claims to such parts of those spheres of activity as they can advantageously use. For if the desideratum is preservation of the species, then, to achieve it, the members of each generation have not only to be supplied by parents with such food, clothing and shelter as are requisite, but h.ave also to receive from them such aids and opportunities as, by enabling them to exercise their faculties, shall producn in them fitness for adult life. By leading their young ones to use their limbs and senses, even inferior creatures, how ever unconsciously, fulfil this requirement to some extent. And if for the comparatively simple lives of birds and quadrupeds such needful preparation has to be made, still more has it to be made for the complex lives of mankind, THE RIGHTS OF CHILD HEN • 169 Rnd still more does there follow the responsibility of pro viding for it and furthering it.

How far the lives of parents must, in the due discharge of these responsibilities, be Rubordinated to the lives of children, is a question to which no definite answer can be given. In multitudinous. kinds of inferior creatures, ea,ch generation is completely sacrificed to the next: eggs having been laid the parents forthwith die. But among higher creatures, which have to give much aid to their offspring while they grow, or which rear successive broods of off spring, or both, this of course is not the case. Here the welfare of the species demands that the parents shall con tinue to live in full vigour, that they may adequately nurture their offspring during their periods of immaturity. fJ.1his is of course especially the case with mankind; since the period over 'which aid has to be given to offspring is very long. Hence, in estimating the relative claims of child and parent, it is inferable that parental sacrifices must not be such as will incapacitate for the full perforrnance of parental duties. Undue sacrifices are eventually to the dis advantage of the offspring, and, by implication, to the dis advantage of the species. To which add that, since the well-being and happiness of parents is itself an end which forms part of the general end, there is a further ethical reason why the self-subordination of parents must be kept within moderatb limits.

§ 339. From the rightful claims of children on parents, we pass now to the correlative duties of children to parents. As before we must be content with a com promise 'which changes gradually during the progress from infancy to maturity. Though, as we have seen) the child has a rightful c~aim to food, clothing, shelter, and. other aids to development) yet it has not a right to that self-direction which is the normal accompaniment of self-sustentation. There are two 170 JUSTICE. reasons for not admitting this right-the one that exercise of it would be mischievous to itself, and the other that it would imply an ignoring of the claim of parent on child which is the reciprocal of the claim of child on parent. The first is self-evident, and the second scarcely needs exposition. rrhough here there can be made no such measurement of relative claims as that which the law of equal freedolIl enables us to make between adults; yet, if we guide ourselves by that law as well as may be, it results that for sustentation and other aids received there should be given whatever equivalent is possible in the form of obedience and the rendering of small services.

Mean while, in view of the ultimate end-the welfare of the species-this reciprocal relation between mature and irnmature should be approximated to the relation between adults as fast as there are acquired the powers of self.. sustentation and self-direction. To be fitted for independent or self-directed activities there must be practice in such activities; and to this end a gradually increased freedom. As. a matter of equity, too, the same thing is implied. 'Vhere a child becomes in a considerable degree se1£ sustaining before the adult age is reached, there arises a just claim to a proportionate amount of freedom. Of course, essentially at variance as are the ethics of the family and the ethics of the State, the transition from guidance by the one to guidance by the other, must ever continue to be full of perplexities. We can expect only that the compromise to be made in every case, while not forgetting the welfare of the race, shall balance fairly between the claims of the two who are immediattly concerned: not sacrificing unduly either the one or the other.

§ 340. StIll more in the case of children than in the case of women, do we see that progress from the lower to the higher types of society is accompanied by increasing THE RIGHTS OF CHILDREN. 171 recognition of rightful claims. Alike in respect of life, liberty, and property, the change is traceable. In every quarter of the globe and among all varieties of men, infanticide exists, or has existed, as a customary or legalized usag~-carried sometinles to the extent of one half of those born E~pecially where, the means of sub sistence being small,much increase of the tribe is disastrous, the sacrjfices of the newly-born are frequent: the females being those oftenest killed because they do not promise to be of value in war. rfhe practices of the Greeks, as well as those of the early Romans, among whom a father· might kill his child at will, show that regard £01" the rights of the immature was no greater in law, though it may have been greater in usage. Of the early Teutons and Celts the like may be said: their habit of exposing infants, and in that way indirectly killing them, continued long after denunciation of it by the Christian church. Of course with disregard for the Iives of the young has everywhere gone disregard for their liberties.

The practice of selling them, either for adoption or as slaves, has prevailed widely. Not only among the Fuegians, the people of New Guinea, the New Zea landers, the Dyaks, the Malagasy, and many other un civilized peoples, is there barter of children, but children ,,"ere similarly dealt with by the forefathers of the civilized. IIebrew custom allowed sale of them, and seizure for debt. The Romans continued to sell them down to the time of the emperors, and after the establishment of Ch~istianity. By the Celts of Gaul the like traffic was carried on until edicts of the Roman emperors suppressed it; and the Germans perslsted in it till the reign of Charlemagne. Of course, if the liberties of the young were disregarded in this extreme way, they were disregarded in minor ways. No matter what age a Roman had attained, he could not marry without his. father's consent. Of course, too, along with non-recognition of the rights of life and liberty went 172 JUSTICE.

non-recognition o£ the right of property. If a child could not possess himself, he clearly could not possess anything else. Hence the fact that by legal devices only did the son among the Romans acquire independent ownership of certain kinds of property, such as spoil taken in war and certain salaries for civil services. Through what stages there has been eventually reached that large admission of children's rightful claims now seen in civilized societies, cannot here be described. Successive changes have gradually established for the young large liberties-liberties which are, indeed, in some cases, as in the United States, greater than is either just or politic. That which it concerns us here chiefly to note is that recognition of the rights of children has progressed fastest and farthest where the industrial type bas most outgrown the militant type. In France, down to the time of the . revolution, children continued to be treated as slaves.

Sons who, even when adults, offended their fathers, could be, and sometimes were, put in prison by them; and girls were thrust into convents against their wills. Only after the revolution were the rights of sons" at last proclaimed," and "individual liberty was no longer at the mercy of lelt1'es de cachet obtained by unjust or cruel fathers." But though among ourselves in past centuries the treatment of children was harsh, a father had not the power of imprisoning his son simply on his own motion. Though, up to recent generations, parental interdicts on the mar riages of children, even when of age, were to a large extent voluntarily recognized, they were not legally enforced. And while at the present time, on the continent, parental restraints on marriage to a great extent prevail, in England marriage contrary to parental wishes, quite practicable, does not even excite much reprobation: oftentimes, indeed, no reprobation.

Thus an extreme contrast exists between those early states in which a child, like a brute, could be killed with TIlE RIGHTS OF CHILDREN. 173 impunity, and modern states in which infanticide is classed as nlurder and artificial abortion as a crime, in which harsh treatment or inadequate sustentation by a parent is punish able, and in which, under trust, a child iB capable of valid ownership. § 341. Yet once more, then, we meet with congruity between theory and practice-between ethical injunctions and political ameliorations - between deductions froIP fundamental principles and inductions from experience . . When we keep simultaneously in view the ethics of the family and the ethics of the State, and the necessity for a changing compromise between, the two during the progress of children from iD,;fancyto maturity-when we pay regard at the salne time to the welfare of the individual and the preservation of the race, we are led to approximately definite conclusions respecting the rightful claims of children. These conclusions, reached a priori, we find verified a p08ter1~o1~i by the facts of history; which show us that along with progress from lower to higher types of society there has gone increasing conformity of .laws and usages to moral requirements.