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At the same time he is liable to the party injured for any abuse of a prerogative which is wholly derived from custom. (Supt. Common Schools Decisions, 102.) Many very well-informed and well-meaning people are, in these latter days, beginning to doubt whether corporal punishment is under any circumstances advisable or excusable. The Supreme Court of Indiana expresses itself on this subject as follows: The law still tolerates corporal punishment in the school-room. The authorities are all that way, and the legislature has not thought proper to interfere. The public seems to cling to a despotism in the government of schools which has been discarded everywhere else. Whether such training be congenial to our institutions, and favorable to the full development of the future man, is worthy of serious consideration, though not for us to discuss. In one respect the tendency of the rod is so evidently evil that it might perhaps be arrested on the ground of public policy. The practice has an inherent proneness to abuse. The very act of whipping engenders passion, and very generally leads to excess. Where one or two stripes only were intended, several usually follow, each increasing in vigor as the act of striking inflames the passions. This is a matter of daily observation and experience. Hence the spirit of the law is, and the leaning of the courts should be, to discountenance a practice which tends to excite human passions to heated and excessive action, ending in abuse and breaches of the peace. Such a system of petty tyranny can not be watched too cautiously, nor guarded too strictly. The tender age of the sufferers forbids that its slightest abuse should be tolerated. So long as the power to punish corporally in schools exists, it needs to be put under wholesome restrictions. Teachers should, therefore, understand that whenever correction is administered in anger or insolence, or in any other manner than in moderation and kindness, accompanied with that affectionate moral suasion so eminently due from one placed by the law “ in loco parentis”—in the sacred relation of parent—the court must consider them guilty of assault and battery, the more aggravated and wanton in proportion to the tender years and dependent position of the pupil. It can hardly be doubted but that public opinion will, in time, strike the ferule from the hands of the teacher, leaving him, as the true basis of government, only the resources of his intellect and heart. Such is the only policy worthy of the State, and of her otherwise enlightened and liberal institutions. It is the policy of progress. The husband can no longer moderately chastise his wife; nor, according to the more recent authorities, the master his servant or apprentice. Even the degrading cruelties of the naval service have been arrested. Why the person of the school-boy, “ with his shining morning face,” should be less sacred in the eye of the law than that of the apprentice or sailor, is not easily explained. It is regretted that such are the authorities, still courts are bound by them. All that can be done, without the aid of legislation, is to hold every case strictly within the rule; and if the correction be in
anger, or in any other respect immoderately or improperly administered, to hold the unworthy perpetrator guilty of assault and battery. The law having elevated the teacher to the place of the parent, if he is still to sustain that sacred relation," it becomes him to be careful in the exercise of his authority, and not make his power a pretext for cruelty and oppression.” (14 Johns. R. 119.) Whenever he undertakes to exercise it, the cause must be sufficient; the instrument suitable to the purpose; the manner and extent of the correction, the part of the person to which it is applied, the temper in which it is inflicted—all should be distinguished with the kindness, prudence, and propriety which become the station. (Cooper v. McJunkin, 4 Indiana R. 290.) This court has more sympathy for roguish youths and less for hectored teachers than any other, we believe, in the land. To our mind the reason why the law gives the teacher the right to punish is very clear and easily explained, but it does not seem to be so to this court.
SEC. 2. A parent is justified in correcting a child either corporally or by continement, and a school-master under whose care and instruction a parent has placed his child is equally justified in similar correction; but the correction in both cases must be moderate, and in a proper manner. A school-master stands in loco parentis in relation to the pupils committed to his charge, while they are under his care, so far as to enforce obedience to his commands, lawfully given in his capacity of school-master, and he may therefore enforce them by moderate correction. (Com. Dig. Pleader, 3, M. 19; IIawk. c. 60, sec. 23 ; and c. 62, sec. 2; c. 29, sec. 5.) To use the language of Chief Justice Holt, “A master may justify the beating of his scholar, if the beating be in the nature of correction only, and with a proper instrument." (Precedents of Pleas, 2 R. P. C. P. 47-51; Rastall's Ent. 613, pl. 18; 2 Chit. Pl. 553; 9 Wend. 355 ; Peterdorff, Index, 296.) The power allowed by law to the parent over the person of the child may be delegated to a tutor or instructor, the better to accomplish the purpose of education. (2 Kent Com. 205.) A school-master stands in loco parentis, and may in proper cases inflict moderate and reasonable chastisement. (The State v. Pendergast, 2 Dev. & Battle, 365.) Although a town (or common) school is instituted by the statute, the children are to be considered as put in charge of the instructor for the same purpose, and to be clothed with the same power, as when he is directly employed by the parent. The power of the parent to restrain and coerce obedience in children can not be doubted, and it has seldom or never been denied. The power delegated to the master by the parent must be accompanied, for the time, with the same right as incidental, or the object sought must fail of accomplishment. (Stevens v. Fassett, 27 Maine, 280.) The tutor or school-master has such a portion of the power of the parent to restrain and correct as may be necessary to answer the purposes for which he was employed. (1 Blackstone, 453.) The power must be temperately exercised, however, and no school-master should feel himself at liberty to administer chastisement coextensively with the parent, however much the infant delinquent might appear to have deserved it. (3 Barnwall & Alderson's R. 584.) If a person over twenty-one years of age voluntarily attend a town (or any) school, and is received as a scholar by the instructor, he has the same rights and duties, and is under the same restrictions and liabilities, as if he were under the age of twenty-one years. (27 Maine, 266.) This, it will be understood, is true generally, but there may, of course, be a special contract, which, when it exists and is legally made, may give unusual rights and privileges to either party. Where a scholar, in school hours, places himself (with or without permission) in the desk of the instructor, and refuses to leave it on the request of the master, such scholar may be lawfully removed by the master; and for that purpose he may immediately use such force, and call to his assistance such aid, from any other person, (or persons,) as may be necessary to accomplish the object; and the case is the same if the person removed is over twenty-one years of age, or not a scholar, but a person having no right in the school. The school-house is in the charge and under the control of the authorized teacher, so far as is necessary for the performance of his duties as teacher. The law clothes every person with the power to use force sufficient to remove one who is an intruder upon his possessions, and the school-house is for certain purposes the teacher's close, his kingdom, or his castle.