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Ex parte Crouse
Ex parte Crouse is a Pennsylvania Supreme Court decision from 1839. Although it is
known as a
major appellate case that upheld the operation of the nineteenth century Houses of Refuge,
more important in what it established for the future juvenile justice system in the twentieth
Crouse would end up providing three critical precedents for juvenile justice.
House of Refuge Contributions
The first major contribution was substantive in nature and involved the contexts under
the state could exercise control over people. Crouse emerged as a challenge to a reform
led by the Quakers who had been upset with what they perceived as the downfall of and abject
in American cities during the beginning stages of the industrial revolution in the early 1800s. The
Quakers believed that poverty eventually led to crime, that impoverished children needed to be
separated from their poor parents (or they would end up the same way), that education along
of moral, vocational and traditional instruction (i.e. reading, mathematics and arithmetic) needed
forced upon these children in order to break the cycle of poverty, and that the state (as
the Quakers) was obliged to undertake these tasks (Sanborn and Salerno, 2005). The Quakers
Houses of Refuge to operationalize these beliefs; they opened first in New York (1825), Boston
and Philadelphia (1828) before expanding to the Midwest. Three categories of youths were
being incarcerated in the House of Refuge. Some would have been convicted of minor crimes in
court, some would have been guilty of begging and minor non-criminal disturbances, and some
have been sent there by their parents. The first group was not controversial in that, as criminals,
could have been sent to jail, but instead wound up in the House of Refuge. The latter two
however, represented an expansion in state power.
The Quaker plan required the completion of the well-rounded education at the House of
to be followed by an apprenticeship (indentured servitude or internship) with a skilled tradesman
as a carpenter, seamstress) usually in the Midwest or other parts west of the Mississippi. These
were forcibly relocated to other parts of the country, many of whom never saw or talked with
families again (Pickett, 1969).
Prior to the Quaker reform effort only the criminals (in jails/prisons), mentally ill (in
dependent poor who required sustenance (in poorhouses and almshouses), and those who
debts (in debtors’ prison) were subject to involuntary institutionalization. Consequently, parents
would have lost custody of their children in one of two contexts only: being incarcerated due to
a criminal conviction or being apprenticed as a laborer (and learning a trade) due to the family’s
financial constraints (Sanborn and Salerno, 2005).
The Quakers wanted the state (i.e., the Quakers) to be considered the ultimate parent
specifically, as substitute parents, charged with raising children (mostly immigrant and poor)
saw as being ignored or mistreated rather than properly reared by their natural parents. Rather
waiting until these youths became actual criminals, the Quakers argued that the state should
into their lives at an earlier, pre-delinquent stage when there was misbehavior or idleness so as
these youths to productive, law-abiding lives. While committed to the House of Refuge juveniles
be given an education and discipline that would culminate in “graduates” being self-sufficient,
adults (Sanborn and Salerno, 2005). The Crouse Court expressed its complete agreement with
The House of Refuge is not a prison, but a school. Where reformation, and not
punishment, is the end…. The object of the charity is reformation, by training its
inmates to industry; by imbuing their minds with principles of morality and religion;
by furnishing them with means to earn a living; and, above all, by separating them
from the corrupting influence of improper associates…. 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 into 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 unalienable one…. (Crouse at 11).
The Quakers had secured the Pennsylvania Supreme Court’s critical endorsement of their view
state-as-ultimate-parent and the idea that involuntary institutionalization to achieve their noble
was non-punitive, benevolent and legal.
The second contribution was procedural in nature and involved the manner in which
were placed in the House of Refuge. Except for those youths who had been convicted in
there were no full-fledged trials given to children before they were committed to a House of
subject of the Pennsylvania case, Mary Ann Crouse, was introduced to the House of Refuge by
mother who had claimed the child was beyond her control. Mary Ann’s father filed a writ of
corpus demanding his daughter’s release due to her being denied a jury trial. The Pennsylvania
Court refused to grant the writ and declared that placement in a House of Refuge was
being sent away to school, and that, as such, jury trial was not required.
As to the abridgement of indefeasible rights by confinement of the person, it is no
more than what is borne, to a greater or lesser extent, in every school; and we know
of no natural right to exemption from restraints which conduct to an infant’s welfare.
Nor is there a doubt of the propriety of their application in the particular instance.
The infant has been snatched from a course which must have ended in confirmed
depravity; and not only is the restraint of her person lawful, but it would be an act
of extreme cruelty to release her from it. (Crouse at 11)
The Pennsylvania Supreme Court had launched what would later be called the quid pro
this for that) exchange (Schultz and Cohen, 1976). The idea, here, is that, if the intention of the
intervention is benevolent, then the recipient of that benevolence is not entitled to employ any
against that intervention. Only if the state’s goal is punishment (as in the criminal justice system)
accused allowed to exercise rights that would challenge and perhaps prevent the state’s
The third and final contribution was legal philosophy in nature and involved the
for Quakers to take command of the lives of children within the walls of the House of Refuge.
Quakers had successfully lobbied their reform effort in several states (Pickett, 1969). They had
convinced several legislatures to grant them the license or charter to open their Houses of
on the Quakers’ analysis of the familial and social conditions prevalent in major cities at the
their commitment to providing quality education and constructive discipline to errant children.
Nevertheless, the Quakers had offered nothing in justification for their plan other than the
their beliefs and the wisdom of their insights. Noticeably absent from the lobbying was any
authorization for what the Quakers planned to do. In other words, by what authority could the
(or the state) seize and maintain control of children who had not committed a crime and who
required state support or welfare? None of the constitutions of any of the affected states had
provision that would permit involuntary institutionalization of children (separate and apart from
families) in a non-criminal context. The state had never been cast as the ultimate parent in any
document in the history of the country.
Ex parte Crouse provided the Quakers the invaluable authorization they had lacked. The
Pennsylvania Supreme Court essentially created legal doctrine to fill the void. In Crouse, the
forth a rhetorical question concerning the legitimacy of the House of Refuge program:
To this end 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?... (Crouse at 11)
The Pennsylvania court alleged that parens patriae was the legal doctrine or principle upon
House of Refuge operation rested, allowing the Quakers (or the state) to intervene into and
the lives of children, even when that required incarceration.
Parens patriae can be traced back several centuries to medieval England. In a nutshell,
involved the King’s appointment of a financial manager to oversee the estate of noble orphans
1970; Rendleman, 1971; Venable, 1966). Children of nobility who became orphaned would be
exploitation if they were not provided assistance in managing their property. The King needed
ranks for many reasons (as in raising armies), and could not afford to lose members due to
Thus, parens patriae afforded both parties (i.e., the King and the children) a mutually beneficial
arrangement. In its original application, then, parens patriae did not involve the poor,
forcible removals from families, relocations to other parts of the country, and involuntary
In other words, parens patriae had absolutely nothing to do with what was happening to youth in
House of Refuge. Nevertheless, lacking a relevant legal doctrine and desperate to provide the
with necessary authorization, the Crouse Court basically invented the American version of
Not all courts in the nineteenth century agreed with the Crouse ruling. For example, the
Supreme Court in 1870, argued that the state was not equipped to act as a surrogate parent
parens patriae was not meant to be interpreted as the license and the duty of the state to raise
as Crouse had asserted (People v. Turner, 1870). Nevertheless, Crouse survived as the most
decision from the House of Refuge period and became the cornerstone of the juvenile justice
Juvenile Justice Contributions
When juvenile courts emerged at the turn of the twentieth century they contained two
characteristics that were borrowed from Houses of Refuge. The first involved the state’s
when juveniles committed what are now called status offenses. Status offenses are behaviors
not crimes, but are nonetheless illegal for youths, such as truancy and incorrigibility (the offense
which Mary Ann Crouse was incarcerated). The second involved the operation of juvenile court
providing youths any procedural rights, such as counsel or jury trial. This no-rights policy applied
those youths who had been charged with crimes. In criminal court these youths had been and
would have been provided the same rights as any adult charged with crime. Much as the
done, the founders of juvenile court promised benevolent treatment of those brought into the
(Sanborn and Salerno, 2005).
As fate would have it, the first challenge by a youth to this rights-free proceeding in
court was heard by the Pennsylvania Supreme Court in 1905. In Commonwealth v. Fisher, the
court upheld the denial of rights to defendants in juvenile court, employing language that
though it had been plagiarized from the Crouse opinion:
To save a child from becoming a criminal, or from continuing a career in crime, to
end in mature years in public punishment and disgrace, the Legislature surely may
provide for the salvation of such a child, if its parents or guardians be unwilling or
unable 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…. (Fisher at 200)
The quid-pro-quo exchange initiated by Crouse was extended by Fisher to include criminal
the benevolent intention of the intervention sufficed to strip youths of their rights, again even
charged with crime. Also copied from Crouse, was the Fisher Court’s analysis of the parens
The natural parent needs no process to temporarily deprive his child of its liberty by
confining it in his own home, to save it and to shield it from the consequences of
persistence in a career of waywardness; nor is the state, when compelled as parens
patriae, to take the place of the father for the same purpose, required to adopt any
process as a means of placing its hands upon the child to lead it into one of its courts.
When the child gets there, and the court, with the power to save it, determines on its
salvation, and not its punishment, it is immaterial how it got there…. (Fisher at 200)
Remarkably, the Pennsylvania Supreme Court interpreted parens patriae, now twice
removed from its original intent, as the legal principle by which a group of individuals (i.e.,
could be stripped of their constitutional rights even when the state constitution made no mention
adult age (or any age) as a prerequisite for exercising those rights. Arguably, this interpretation,
radical as it is, would not have been possible if the Crouse decision hadn’t already taken parens
far distance from its source. In turn, this revision of parens patriae would not likely have been
unless the Crouse court had accepted the Quakers’ vision of both the state as the ultimate
the benevolent purpose of state intervention. Equally remarkable is that a decision without a
(i.e., Crouse) became the foundation for such a critical case upholding the new juvenile court
Fisher), which, in turn, became the foundation for all other appellate courts in the country as
asked if the juvenile courts in their states could operate without giving youths charged with
constitutional rights (Sanborn and Salerno, 2005). As juvenile courts spread throughout the
States, juveniles challenged the lack of rights and virtually every appellate court cited parens
Commonwealth v. Fisher (Sanborn and Salerno, 2005).
Enabled by Crouse and Fisher and their handling of parens patriae and the quid pro quo
exchange, juvenile courts operated expediently for several decades during the first half of the
century. Youths were subjected to the intervention of juvenile court without the benefit of rights;
had to rely on the integrity of judges and probation officers, who were the powerbrokers of the
(Sanborn and Salerno, 2005). This status remained mostly unchanged until 1967 when, in In re
U.S. Supreme Court finally extended a few constitutional rights to defendants in juvenile court.
the most interesting and intriguing aspect of the Gault decision is its characterization of parens
The Latin phrase proved to be a great help to those who sought to rationalize
the exclusion of juveniles from the constitutional scheme; but its meaning is murky
and its historical credentials are of dubious relevance…. (Gault at 16, emphasis added)
Accordingly, the highest motives and most enlightened impulses led to a
peculiar system for juveniles unknown to our law in any comparable context. The
constitutional and theoretical basis for this peculiar system is—to say the least—
debatable. (Gault at 17, emphasis added)
Of course, the meaning of parens patriae is not murky. It meant a financial guardianship
noble orphans until Ex parte Crouse took the concept in a very different direction. Its historical
credentials are not of dubious relevance; parens patriae had had no historical relevance to what
happening in either Houses of Refuge or juvenile courts. Nevertheless, inasmuch as it relies
parens patriae as its legal foundation, it is very true that the constitutional (if not the theoretical)
for juvenile court is debatable. Most likely what the U.S. Supreme Court was attempting to do is
juvenile court officials that it was aware of the actual history and meaning of parens patriae, but
not be completely honest about it without threatening the survival of juvenile court. To claim that
parens patriae truly had no relevance to juvenile court operation would be to rip out the
the system. Rather than risk that calamity, the U.S. Supreme Court decided to perpetuate the
begun by the Pennsylvania Supreme Court in Ex parte Crouse. At the same time, the U.S.
seemed to be saying that it was not unaware of the true origins and context of the parens
doctrine (Sanborn and Salerno, 2006). By the time of the Gault decision, the Crouse version of
parens patriae doctrine was 128 years old. It had nearly earned the interpretation given it by Ex
Crouse by virtue of age alone.
Ex parte Crouse, 4 Wharton 9 (Pa. 1839).
Commonwealth v Fisher, 62 A. 198 (Pa. 1905).
In re Gault, 387 U.S. 1 (1967).
People ex rel. O’Connell v. Turner, 55 Ill. 280 (Ill. 1870).
House of Refuge
Quid Pro Quo exchange
Cogan, Neil H. 1970. “Juvenile Law, Before and After the Entrance of ‘Parens
Patriae”.” 22 South Carolina Law Review 147.
Pickett, Robert S. 1969. House of Refuge: Origins of juvenile Reform in New York State,
1815-1857. Syracuse, N.Y. Syracuse University Press.
Rendleman, Douglas R. 1971. “Parens Patriae: From Chancery to the Juvenile
Court.” 23 South Carolina Law Review 205.
Sanborn, Jr., Joseph B. and Anthony W. Salerno. 2005. The Juvenile Justice System:
Law and Process. Los Angeles: Roxbury Publishing Company.
Schultz, J.L. and Fred Cohen. 1976. “Isolationism in Juvenile Court Jurisprudence.” In
M.K. Rosenheim (Ed.) Pursuing Justice for the Child, pp. 20-42. Chicago:
University of Chicago Press.
Venable, Gilbert T. 1966. “The Parens Patriae Theory and Its Effect on the Constitutional
Limits of Juvenile Court Powers.” 27 U. Pittsburgh Law Review
Total Words: 2994
Joseph B. Sanborn, Jr. PhD
Department of Criminal Justice
University of Central Florida