children. Upon one occasion after mild treatment towards a little girl, of six or seven years of age had failed, the defendant whipped her with a switch, so as to cause marks upon her body, which disappeared in a few days. Two marks were also proved to have existed, one on the arm, and another on the neck, which were apparently made with a larger instrument, but which also disappeared in a few days. His Honor instructed the jury, that the right of the defendant to chastise the child, was co-extensive with that of a parent; and that they should be cautious in coming to a conclusion that excessive chastisement had been used. But as the child was of tender years, if they believed that she had been whipped by the defendant, with either a switch or other instrument, so as to produce the marks described to them, the defendant was guilty. A verdict was found for the State; and the defendant appealed No counsel for the defendant in this court appeared. GASTON, Judge. It is not easy to state with precision, the power which the law grants to schoolmasters and teachers, with respect to the correction of their pupils. It is analogous to that which belongs to parents, and the authority of the teacher is regarded as a delegation of parental authority. One of the most sacred duties of parents, is to train up and qualify their children, for becoming useful and virtuous members of society; this duty can not be effectually performed without the ability to command obedience, to control stubbornness, to quicken diligence, and to reform bad habits; and to enable him to exercise this salutory 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 offenses, 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 by reference to general principles. The welfare of the child is the main purpose for which pain is permitted to be inflicted. Any punishment, therefore, which may seriously endanger life, limbs 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, can not be so pronounced, since it may have been necessary for the reformation of the child, and does not injuriously affect 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. Where the correction administered is not immoderate, and therefore beyond the authority of the teacher, its legality or illegality must depend entirely, we think, on the qui animo with which it is administered. Within the sphere of his authority, the master is the judge when the correction is required, and of the degree of correction necessary; and like all others intrusted with a discretion, he can not be made penally responsible for error of judgment but only for wickedness of purpose. The best and wisest of mor tals are weak and erring creatures, and in the exercise of functions in which their judgment is to be the guide, can not be rightfully required to engage for more than honesty of purpose and diligence of exertion. His judgment must be presumed correct, because he is the judge, and also because of the difficulty of proving the offense, or accumulation of offenses, that called for correction; 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 pretense 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. We believe that these are the rules applicable to the decision of the case before us. If they be, there was error in the instruction given to the jury, that if the child was whipped by the defendant so as to occasion the marks described by the prosecutor, the defendant had exceeded her authority, and was guilty as charged. The marks were all temporary and in a short time all disappeared. No permanent injury was done to the child. The only appearances that could warrant the belief or suspicion that the correction threatened permanent injury, were the bruises on the neck and the arms; and these, to say the least, were too equivocal to justify the court in assuming, that they did threaten such mischief. We think that the instruction on this point should have been, that unless the jury could clearly infer from the evidence, that the correction inflicted had produced, or was in its nature calculated to produce, lasting injury to the child, it did not exceed the limits of the power which had been granted to the defendant. We think, also, that the jury should have been further instructed, that however severe the pain inflicted, and however in their judgment it might seem disproportionate to the alleged negligence or offense of so young and tender a child, yet if it did not produce or threaten lasting mischief, it was their duty to acquit the defendant; unless the facts testified induced a conviction in their minds, that the defendant did not act honestly in the performance of duty, according to her sense of right, but under the pretext of duty, was gratifying malice. We think that rules less liberal towards teachers, can not be laid down without breaking in upon the authority necessary for preserving discipline, and commanding respect; and that although these rules leave it in their power to commit acts of indiscreet severity, with legal impunity, these indiscretions will probably find their check and correction, in parental affection and in public opinion; and if they should zot, that they must be tolerated as a part of those imperfections and inconveniences, which no human laws can wholly remove or redress. PER CURIAM. Judgment reversed. § 73. Girl over Age but a Pupil by Fraud. And one who receives a punishment as an infant scholar can not set up that she is of age, when she obtained admission to the school by pretending she was under age.1 § 74. Presumption that Chastisement was Proper. - The proper rule is that where the relation of schoolmaster and scholar, parent and child, master and State v. Mizner, 45 Ia. 248. apprentice, or any similar relation is established in defence of a prosecution of this sort the legal presumption is that the chastisement was proper; this must be rebutted by showing on the part of the State or the proof before the jury that it was excessive or without proper cause. To hold a parent bound to prove that he had good cause to whip his child or be subject to a conviction upon indictment would be monstrous. The same rule applies to the relation under consideration.1 § 75. Schoolmaster and Pupil — Right of Former to Enforce Rules. - So the teacher of a school has a right to require a scholar, who was guilty of insubordination and misconduct, to leave the school, and if the scholar refuse to do so upon being requested, a third person will, upon the request of the teacher, be justified, as his agent, in using the necessary force to remove him; and will not be guilty of assault.2 § 76. - Seamen and Captains of Vessels.-The same right exists in the captain of a vessel, and hence to chain a seaman to keep him from escaping or as a punishment for an offense is not an assault.3 1 Anderson v. State, 3 Head, 455 (1859). 2 State v. Williams 27 Vt. 755 (1885). 3 U. S. v. Turner, 2 Wheeler, 615 (1824). CHAPTER IV. PRINCIPAL AND AGENT. OFFICERS-WARDEN OF PRISON MURDER-LIABILITY FOR ACTS OF DEPUTY. R. v. HUGGINS. [2 Strange, 882.] In the Court of King's Bench, Michaelmas Term, 4 George II. A Warden of a Prison is not liable for the murder of a prisoner, killed by the cruel treatment of a deputy. The defendant stood indicted before the judges of Oyer and Terminer at the Old Bailey, and the indictment set forth, that John Huggins, 1st October, 12 George I., and long before, and until 1st January following was warden of the Fleet, and had the care and custody of the prisoners committed thither. That James Barnes was his servant employed by him in taking care of the prisoners. That Barnes being a person of a cruel nature, and disposition, did 1st November, 12 George I., make an assault upon Edward Arne, then a prisoner in the Fleet, and feloniously took him against his will, and carried him to a new built room in the prison, where he kept him six weeks without fire, chamber-pot, or close stool; the walls being damp and unwholesome, and the room built over the common shore. That at the time of such imprisonment Barnes and Huggins knew the room to be as before described. That Arne, by reason of his imprisonment in the said room, sickened, and by duress thereof died; and that Huggins was aiding and abetting Barnes in committing the said felony and murder. The defendant Huggins only was taken, and having pleaded not guilty, the jury found this special verdict. That Queen Anne, by letters patent under the great seal, dated 22d July, twelfth of her reign, constituted Huggins warden of the Fleet during his life, to be executed by himself or his sufficient deputy or deputies. That from the date of the letters patent until 1st January, 12 George I., the defendant was warden and Thomas Gibbon all the said time his deputy, and acted as such. That James Barnes was the servant of Gibbon, and acted in care of the prisoners and particularly of Edward Arne. That Barnes, September 7th, 12 George I., assaulted Arne, and feloniously put him into a room (which is found to be as described in the indictment), and kept him there forty-four days without fire, chamber-pot, or close stool, or such like utensil. That Barnes knew the room to be as situate in the indictment, and that it was unwholesome; and that for fifteen days at least before the death of Arne, Huggins knew the condition of the room, but whether he knew it before, penitus ignorant. That by duress of the imprisonment, Arne 10th September became sick, and languished till 20th October following, upon which day he died by duress of the said imprisonment in the said room. That fifteen days at least before his death Huggins was once present at the said prison, and saw Arne under duress of the said imprisonment, and turned away, and at the same time he so turned away Barnes shut the door, and Arne continued in the room till he died. That during the time that Gibbon was deputy, Huggins sometimes acted as warden. But whether he be guilty of the murder of Edward Arne is the doubt of the jury, on which they pray the advice of the court, et si pro Rege, pro Rege, et si defendente, pro defendente. This verdict was removed at the prayer of Mr. Attorney to R. R. and there argued by Mr. Willes and Serjeant Eyre; after which it was argued at Serjeants' Inn-hall in chancery lane before all the judges, by Serjeant Cheshyre, Mr. Attorney, Mr. Solicitor and Mr. Willes, for the king; and by Serjeant Darnall, Serjeant Eyre, Serjeant Hawkins, Mr. Pere Williams, Mr. Strange and Mr. Foster, for the prisoner. But as every thing insisted upon by either side is taken notice of in the opinion delivered by the Chief Justice, it will not be necessary to state the arguments of counsel. RAYMOND, C. J., after stating the heads of the special verdict, went on, as follows: The general question in this case, is whether upon the facts as found in the verdict, the prisoner at the bar is guilty of the murder of Edward Arne. For that purpose it will be necessary to consider these two things: 1st, what offense is in James Barnes; and 2d, whether the prisoner is guilty in the same degree. And as to the first point, we are all of opinion that if Barnes was now before the court, and the facts as found in this verdict were proved against him, he would undoubtedly be guilty of murder. It is certain, there is no particular way of killing another, that is necessary to constitute a murder; but the committing of murder is as various as the several ways of putting an end to life. In the case of a prisoner there |