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is entitled to the same protection as adults against every kind of assault and wrong, but owing to the peculiar relation between parent and child, the law allows, that there may be good reasons why corporal punishment should be inflicted on children as part of a wholesome discipline. Every parent, accordingly, is entrusted by the law with the power of moderate correction and chastisement, if the child be of tender years and is under his care. This power does not, however, strictly speaking, belong to the parent merely as such, since it is given for like reasons to every person, whether a relative or not, under whose care and custody for the time being a child of tender years is placed. It is because the parent is the natural guardian of the child when living with him that this power arises, and because the law takes notice that occasional correction is a necessary, or at least usual, part of education. It is solely on the ground, that education is necessary and proper for a child, that such power of correction is entrusted to the guardian; it is not for any intrinsic merit in the mere flogging. But it is essential in the exercise of the power, that the correction administered be in all cases moderate, and that any implement used be also of moderate power, and be used with moderate force. The law cannot, indeed, enter into the minute inquiry, how far this or that occasion for chastisement of a child is wise or judicious. The parent must be entrusted with a reasonable discretion to that extent. But whenever in the opinion of intelligent bystanders the moderation is exceeded, and paternal power is used as a cloak for mere unbridled passion and ferocity, then it is time for third parties to interfere, and if necessary to prosecute the offender. Whether a parent can justify correcting a child for saucy and contumacious conduct is only another form of the question, as to whether that education which a parent may be presumed to give includes all modes of decorous bringing up and good conduct.2

1 The Creek Indians, it is said, never beat their children, but with a needle or pin let blood on the legs or thighs.-5 Schoolcr. 273. The Spartans allowed a parent to chastise any other person's children as well as his own.-Montesq. b. 5, c. 7.

2 "A parent has not only the power, but it is his duty, to correct his child; but instead of inflicting five or six strokes with a few

In the case of excessive severity being used towards children, the appropriate remedy is not a civil action, but an indictment or a summary proceeding before justices: and the whole circumstances the alleged occasion-the weight of the blow-the nature of the instrument usedthe marks of violence discovered-and all other particulars must be taken into account by the justices or jury whose duty it will be to inquire into the case.

Schoolmasters correcting children. The same moderate power of correcting children when under instruction, which a parent or guardian possesses is impliedly delegated to the schoolmaster who is engaged to perform the office of instructor, and he can set up a like justification for moderately chastising his pupil. And the reasons which govern the conduct of a parent, as well as the bounds set to the exercise of his power, apply equally to the case of the schoolmaster, who is equally liable for any excess in the punishment. It seems to be universally assumed that corporal punishment is an indispensable ingredient in the education of young children, though some skilful teachers know how to dispense with it. Yet an excess of chastisement in any case will be unjustifiable, and the law will exact strict account of every blow from a schoolmaster, or from a parent, or any other person, under whose care a child is for the time placed.1

Assault in correcting apprentices.-The case of an apprentice differs considerably from that of children of tender years, for though adults as well as children may enter into such a contract, it is usual for apprentices to begin their term of service while they are still children. Apprenticeship is usually a double contract, including

birch twigs on that child, if he inflict five or six hundred, though the instrument be a legal instrument, and cannot be quarrelled with, yet the extremeness of the quantity may denote an intent to do mischief, not bridled by that which ought to bridle human actions. If again the instrument itself is improper, suppose that instead of five or six strokes with a rod, you give five or six blows with a cudgel, it may be said that was an instrument likely to kill the child, and would be an excess with respect to the instrument itself." -Per Macdonald, C. B., R. v Wall, 28 St. Tr. 145.

1 In 1823 Sir R. Peel told the House of Commons that flogging in public schools should be abolished by Act of Parliament, but this has not yet been done.-8 Parl. Deb. (2d) 1439.

service on the one hand, and teaching on the other hand. The apprentice is a servant as well as a pupil. The master is also a teacher as well as a master. And it is solely in virtue of the contract to teach that the master acquires any power whatever to correct or chastise an apprentice. The duty to serve is in no way qualified by any incidental power of the master to punish; for this would be only allowing a man to take the law into his own hands. Hence, whenever the apprentice is an adult or has arrived at an age of capacity to know right and wrong, an age to be punished for crime, the master ceases to have any authority to correct him by corporal pains. The master must then, according to his contract, still do his best to teach; yet if the apprentice is beyond correction and deaf to remonstrance, the master cannot call to his aid the parental power of chastisement, but can only rescind or abandon the contract, if the temper and disposition have arrived at a pitch of settled insubordination.

The law, it is true, has been somewhat loosely explained on this subject, and there are dicta, however vague, to the effect, that it is a defence for such assault or chastisement, that the apprentice was saucy. And correction of apprentices has been said to be justifiable, without defining the age or object.2 But on such a point as this, affecting the liberty of the subject, precedents and dicta ought to have little weight, seeing that the manners of a ruder age must always unconsciously influence the judgment.

Masters assaulting servants.-Though the general rule is, that a blow for a word is not to be allowed, yet it is singular that, as between master and servant, the notion has long been countenanced, that a master is at liberty to give emphasis to his views, feelings, and commands by supplementing them with a blow, or even with many. Such a notion, no doubt, has come down from before the dark ages, when slaves could be kicked and beaten at the master's or owner's discretion; and though personal service is now a free contract, yet the ancient taint is not wholly obliterated. Cato the censor, after a dinner-party, used to correct with leathern thongs those slaves who had been inattentive, or had suffered any Ward, 2 C. M. & R. 338. 23 Salk. 46.

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thing to spoil. And our own law for many centuries back has been too indulgent in its practice towards masters in this respect. It seems that in the time of Henry VIII. it was thought legitimate, and a matter of course, for lords and masters to strike their servants with their hands or fists and any small staff or stick, for correction and punishment; and this was expressly saved out of the category of murders and offences done within the king's household. And in the time of James I., when stabbing was made felony, it was thought necessary to save from the statute those who, in chastising children and servants, chanced to commit manslaughter.3 Hale says the law allowed a master to use moderate correction. Holt, C. J., says more than once, that a master has a right to strike his servant by way of correction. And Lord Raymond, C. J., said the master might correct a servant in a reasonable manner for a fault.5 that Blackstone says is, that a master may correct his apprentice for negligence or misbehaviour. But notwithstanding all these dicta and assumptions, which are the reflection of more coarse and barbarous habits, nothing seems more clear than that the contract of service in the present day gives no such implied authority to one party to enforce his views by breaking the peace; and whether this view arises out of a higher tone of morality, or a growing consciousness of the complete repertory of remedies which the law has elaborated for every kind of wrong, few judges would repeat or act on the sayings and practices on this point of the most admired oracles of the law, even a century old. It is true, that when provocation is listened to as an excuse, the provocation of masters must have some weight; but this at best can be an uncertain resource, seeing that every class of mankind have about equal provocations to tempt them to acts of violence.

Husbands assaulting wives.-The same views and habits, out of which grew the dictum, that masters may at discretion beat their servants, at least for what they consider faults. has led to the popular belief that a husband could beat his wife, or, as it was called, correct her; and the same tainted origin of slavery and slavish 1 Plut. Cato Cens. 2 33 Hen. VIII. c. 12, § 6. 3 1 Jas. I. 5 17 St. Tr. 54. 6 1 Bl. Com. 428.

c. 8.

4 17 St. Tr. 67.

notions may account for such doctrine. This arbitrary power of husbands began to be doubted in the time of Charles II.1 The difference between modern and ancient practice on the subject consists chiefly in this, that courts and juries will now attribute more weight to even trifling assaults or ill-usage, than would be allowed to these in former times. A wife has for centuries enjoyed the remedy of binding a husband over to keep the peace, and she has a remedy for cruelty in the Divorce Court; and with these remedies it may be taken now as a fixed rule, that the contract of marriage in no sense implies any licence or authority to the husband to beat or correct his wife, though such offences may be more difficult to prove, and thus may appear to be to some extent without redress.

Churchwarden assaulting persons misbehaving in church. -There is one case in which an assault is said to be justified by reason of an official duty. Thus a churchwarden, who is deemed by law bound to see that decorum shall be observed in church, may remove the hat of a person in the church, if the latter fails to do so on request; 2 and he may whip boys misbehaving in the churchyard for a like reason. But when shorn of these high prerogatives, a churchwarden seems to be only as other men in respect to the present subject. It has indeed been said, that a person who is struck in a churchyard, cannot justify striking again in his own defence.s The ground was said to be, that it was a sanctified place,* and it was like striking one in court or within view of the courts. But this last proposition has been narrowed to striking in the court while sitting, for then the party may be punished by the court then and there. And there is nothing now to support the doctrine, that self-defence in a churchyard is less allowable than elsewhere.5 It is however to be borne in mind, that to assault, arrest for civil process, or obstruct a clergyman in performing his duties in a church or during burial in a churchyard is of itself a misdemeanour. And three centuries ago one, who struck another in a churchyard, was liable to be excom

1 1 Sid. 113; 3 Keb. 433. Burton v Henson, 10 M. & W. 105; W. 781. 3 1 Hawk. P. C. 139.; 4 2 Ed. 6. 52 Wynne, Eun. 256.

2 Hawe v Planner, 1 Wms. Saund. 10; Worth v Terrington, 13 M. & Cro. Jas. 367, 373; 1 Lev. 106. 6 24 & 25 Vic. c. 100, § 36.

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