Lapas attēli

The temptations to imposition and abuse to which this contract is liable, have rendered legislative interposition especially necessary. While these regulations upon the one hand protect the master from the interference of other persons with the duty the apprentice owes to him, it also protects the apprentice against misconduct and abuse from his master; by a forfeiture of the claim of the master upon his services, to be adjudged by two justices of the peace upon complaint. a So on the other hand, if the apprentice misbehave, by refusing to serve according to the terms of his indenture, and the law in that regard, he may, upon the complaint of the master to certain officers named in the statute, and if he persists in such refusal to obey, &c., be committed to a house of correction, bridewell, or common jail of the city or county, there to remain until he will consent to serve according to law; b and in case he shall wilfully absent himself from such service without leave of the master, he may be compelled in like manner to serve double the time of such absence, even after his majority, not exceeding three years after the end of the original term.c Blackstone says, d that a master may correct his apprentice for negligence or other misbehavior, so it be done with moderation. And so it seems it was laid down by Hawkins; e and in the reign of Charles I, it was declared of an apprentice, "if he misbehave himself, the master may correct him in his service, or complain to a justice of the peace to have him punished according to the statute;"ƒ but in the thirty-fifth year of the reign of Charles II, Lord Saunders, before whom a trial was had against one Keller for immoderate beating of Brotherwaite, an apprentice; said the apprentice might be discharged by justices of the peace; but upon the authority of Lord Hale, he still held the defendant responsible, and he was convicted. g This right of moderate correction by the master, in case of an offending apprentice, seems to be adopted as common law in this country, though this power does not arise out of the statute provisions. h

a 2 Rev. Stat. 159, § 30.

b Id. § 29.

e Id. § 28.

e 1 Hawk. P. C. 130.

d 1 Com. 428.

f Cro. Car. 179, Gilbert v. Fletcher.

g Dominas, Rex v. Keller, 2 Show. 289.

h 2 Kent Com. 264; Commonwealth v. Baird, 1 Ashmead Penn R. 267.

5. The power of the master over the servant he employs. As I do not see in this relation, any power that the master can rightfully exert over the personal liberty of the servant, I have not copied the views of the author, or discussed at much length, this relation.

A few unsupported dicta may be found in the old English books apparently justifying moderate chastisement of a hired servant by the master or employer, for dereliction of duty, a but no respectable modern authority can be found, bold enough to assert that such a power exists even in England. And in America, where equality of rights of its citizens is announced as the basis of sovereign authority, such an assertion would be too much in conflict with the genius and spirit of our system of government, and with the acknowledged rights of equality of citizenship and freedom, to exist for a single moment as law. It may be that there is an exceptional case; as for instance, where a parent should contract with a master, the service of a minor child, and expressly delegate to the master the parental power of chastisement, or confinement by way of correction for dereliction of duty; but where the servant has arrived at his majority, he has become an emancipated citizen of the government; with unalienable rights to freedom, to liberty, and to an equality of rights before the law, and in which, he has no superior; and over him, no master can exert the humiliating and tyranous power of chastisement and correction.

6. "The relation of teacher and scholar places the former more nearly in the place of the parent than either of the two preceeding relations places the master. While the pupil is under his care, he has the right to enforce obedience to his commands, lawfully given in his capacity as teacher, even to the extent of bodily chastisement or confinement. And in deciding questions of discipline, he acts judicially, and is not to be made liable either civilly or criminally, unless he has acted with express malice, or been guilty of such excess in punishment that malice must be implied. All presumptions are in favor of the correctness of his action."

Technically, where there is no special understanding between parent and teacher, this is the implied legal relation between tea

a 3 Salk. 47; 1 Hawk, P. c. c. 29, § 5; 4 Burns Inst. 119: Bac. Abr. N. Master and Servant.

cher and scholar. Modern theories do not accord to this rule all the force of law, as thus laid down. Our duty, however, is not to discuss the wisdom of the different theories.

It is doubtless the law, and should be, that in the public school, for the time being, that is, during school hours, the schoolmaster is invested with all the authority of a parent; he ought to be possessed of the power to make rules for the regulation of the conduct; to direct the studies; to order the application; as to the manner of recitations, reading, writing or other exercises; and to keep order and silence; prevent disturbances; and require obedience to all his reasonable rules; obedience to all such proper rules, and known requirements; may be enforced by reasonable and moderate correction, as an established and necessary resort, to this end; and this correction, may doubtless be, by temporary confinement, if, in the judgment of the teacher, that kind of chastisement is most effective in producing obedience to rules, or, in securing diligence and application to studies, or as a punishment for delinquencies. This power of the teacher for the time, is analogous to that which belongs to parents; and the authority of the teacher is regarded as a delegation of parental authority. Indeed the authority is supposed to proceed from a delegation of the parent; it is implied from the very necessity of the case, and need not be conveyed by express agreement. Blackstone says, "that by such delegation to the tutor or schoolmaster of the child, the tutor or schoolmaster is then in loco parentis, and has such a portion of the power of the parent committed to his charge, viz., that of restraint and correction, as may be necessary to answer the purposes for which he is employed." a And Chancellor Kent was of the same opinion, b that he may inflict moderate and reasonable chastisement, and he refers with approbation to a case decided in North Carolina, c in which the Supreme Court of that state held the same rule. On a reference to that case, we find the Supreme Court, among other things said: "One of the most sacred duties of parents is, to train up and qualify the children for becoming useful and virtuous members of society. This duty cannot be effectually performed, without the ability to command obedience; to control stubbornness; to

a 1 Black. Com. 453.

b 2 Kent. Com. 205. Note.

e State v. Pendergrass, 2 Dev. and Batah.

quicken diligence; to reform bad habits; and to enable him to exercise this salutary sway, he is armed with the power to administer moderate correction when he shall believe it to be just and necessary. The teacher is the substitute of the parent; is charged in part with the performance of his duties, and in the exercise of these delegated duties, is invested with his power. The law has not undertaken to prescribe stated punishments for particular offences, but has contented itself with the general grant of the power of moderate correction, and has confided the graduation of punishments within the limits of this grant, to the discretion of the teacher."

"The line which separates moderate correction from immoderate punishment, can only be ascertained from general principles. The welfare of the child is the main purpose for which the pain is permitted to be inflicted. Any punishment therefore which may seriously endanger life, limb or health, or shall disfigure the child, or cause any other permanent injury, may be pronounced in itself immoderate, as not only being unnecessary for, but inconsistent with the purpose for which correction is authorized. But any correction however severe, which produces temporary pain only, and no permanent ill, cannot be so pronounced, since it may have been necessary for the reformation of the child, and does not affect injuriously its future welfare.”

We hold, therefore, that it may be laid down as a general rule, that teachers exceed the limits of their authority, when they cause lasting mischief; but act within the limits of it, when they inflict temporary pain only. When the correction administered is not in itself immoderate, and therefore beyond the authority of the teacher, its legality or illegality must depend entirely, we think, on the quo animo, with which it was administered. Within the sphere of his authority, the master is the judge, where correction is required, and the degree of correction necessary; and like others, entrusted with a discretion, he cannot be made penally responsible for error of judgment, but only for wickedness of purpose. The best and wisest of mortals are weak and erring creatures; and in the exercise of functions in which their judgment is to be the guide, cannot be rightfully required to engage for more than honesty of purpose, and diligence of execution. His judgment must be pre

sumed to be correct, because he is the judge, and also because of the difficulty of proving of the offence, or the accumulation of offences that called for the correction; and of showing the peculiar temperament, disposition and habits of the individual corrected; and of exhibiting the various milder means, that may have been ineffectually used before correction was resorted to.

But the master may be punishable when he does not transcend the powers granted, if he grossly abuse them. If he use his authority as a cover for malice, and, under the pretence of administering correction, gratify his own bad passions, the mask of the judge shall be taken off; and he will stand amenable to justice as an individual not invested with judicial power.

It is perhaps a questionable and unsettled question in the law upon this relation, as to the precise point of time when the parental authority ceases, and that of the master begins; that is, whose authority actually exists when the scholar is on his way to, and on his return from school; that of the parent, or that of the master. Naturally, it is to be presumed, it is that of the parent; the masters dominion is the school-room, and its appurtenances, during school hours. But if there be special regulations understood by the parent to be the rules of the school; regulating the deportment of the scholar while on his way to, and from school; then the implication of law would be, that the parent consents, to the masters authority to correct for violations of such rules. So too, doubtless, under the authority of the master to discipline, correct and compel obedience to duty and diligence in study; he may detain a delinquent scholar after the school generally is dismissed, to compel him to complete a lesson or duty which might have been accomplished with due application in the regular hours of school, provided the time of such detention extend only to such reasonable time as is sufficient to perform the task, or had been spent by the scholar in play or idleness, which caused the delinquencies. But in the absence of all school rules regulating the conduct of the scholar on the way, and known to the parent, the legal presumption is, that as parents desire the services of their children at home, except the usual school hours, that they surrender their authority over the child, only, during the regular school hours, and that as the parent and not the teacher is somewhat responsible for the

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