Jeffrey Shulman (Georgetown University Law Center) has posted Sacred Trust or Sacred Right? (in The Constitutional Parent: Rights, Responsibilities, and the Enfranchisement of the Child: (New Haven, Conn.: Yale University Press, 2014)) on SSRN. Here is the abstract:
Edward Walker was a minor when, in 1838, he went to work at sea. Upon his return, his father, Joseph Walker, claimed Edward’s wages for his own use. Joseph made what charitably might be called a private settlement with the owner of the Etna, the ship on which Edward had served. Edward disputed the settlement, claiming the wages as his own. The federal district court made note of the general proposition that a father was “entitled to the earnings of his child by virtue of his paternal power.” On this ground, Joseph had the right to settle matters on such terms as pleased him. The general proposition, however, was not as legally dispositive as he would have hoped.
The court distinguished between the rights and duties of a father. While a father’s duties were “indissolubly attached to the paternal relation,” the same could not be said of a father’s rights. The rights of the father, according to the court, are given to him by the state to enable him to fulfill his parental duties (“to provide for his child a home, to protect, to maintain, and to educate him according to the measure of his ability”), and, as a more concrete compensation, the father is allowed “to take the fruits of his child’s labor.” But this paternal power is not a “sovereign and independent authority.” It is not, to use the court’s comparison, like the patria potestas enjoyed by the father in ancient Rome, “whose law held children to be the property of the father, and placed them in relation to him in the category of things instead of that of persons.” This sovereign paternal authority, the court declared, “has never been admitted by the jurisprudence of any civilized people.” Rather, the father holds only a contingent authority, “subject to the restraints and regulation of law,” contingent because it is “inseparably connected with the parental obligations, and arises out of them.” In short, paternal power rests on the fulfillment of paternal duty. Relying on a deep pool of legal theoreticians, treatise writers, and jurists, including “[t]he soundest and most esteemed commentators upon the common law,” the court affirmed what, by the time of this dispute, was a well-settled legal precept: The power of the parent, because it derives directly from the duty to benefit the child, is limited in scope and duration. It is only as great as is needed to secure the child’s welfare: “It is not a power granted to the parent for his benefit, but allowed to him for the benefit of the child, and it ceases when the faculties of the child have acquired that degree of maturity, that it may safely be trusted to its own resources. When, therefore, the parent abuses this power, or neglects to fulfill the obligations from which it results, he forfeits his rights.”