These

a consequence of the offence is not thus taken away. views substantially exhaust the subject of pardon, as it stands on the American decisions, and on those doctrines of the English books which seem to be applicable in this country.

1 Rex v. Castlemain, T. Raym. 379; Anonymous, 3 Salk. 155; Common wealth v. Fugate, 2 Leigh, 724; 1 Greenl. Ev. § 378, and note. See Rex v. Crosby, 2 Salk. 689; ante, § 85, 714, note.

VOL. I.

62

[733]

§ 716. THE previous discussions of the present volume have completed the general outline originally intended. But, on preparing the second volume, which finished the work, some topics appeared better adapted to this volume than to that. And those topics are now to be considered. ·

Parent and Child.

§ 717. As the parents, says Chancellor Kent, "are bound to maintain and educate their children, the law has given them a right to such authority, and, in support of that authority, a right to the exercise of such discipline, as may be requisite for the discharge of their sacred trust." But per

12 Kent Com. 203.

haps a better view of the right of the parent to correct his child may be drawn from the fact, that nature has left the young being helpless on his hands. And this helplessness is not merely physical; it is mental and moral helplessness also. The effect of parental discipline, rightly understood, is to assist the strivings and aspirations of the better nature of the child. And the child, needing this assistance, is therefore entitled to it. The question, of what help of the kind now under consideration shall be given to the child, is better left to the parent than to any other person; because the parental affection prompts more strongly than any other to the exercise of a merciful judgment. But as parents are sometimes unmerciful, the law itself casts over the child such protection as it can, and visits them with punishment for any flagrant abuse of this trust.

§ 718. The general proposition is, that the parent may inflict moderate correction, such as is reasonable under the circumstances of the case.2 If he goes beyond this, he is indictable for assault and battery, and, if the child dies, for a felonious homicide. But obviously differences of opinion must arise, as to what correction is moderate and reasonable in a particular instance. Perhaps it is well that no definite rule can be laid down on this point; for, after all which might be said, the instincts of court and jury will usually be found to be the best guide.

§ 719. At the same time, though a jury will not often fail to do justice in a case between parent and child, there may be a propriety in admonishing the men of the panel, that they are to consider the different opinions which an honest parent

1.2 Kent Com. 204; 1 Russ. Crimes, Grea. Ed. 645; Vol. II. § 604.

3

2 1 Hawk, P. C. 6th ed. c. 60, § 23; Bac. Ab. tit. Assault and Battery, C. 3 Greenl. Ev. § 63.

* Vol. II. § 592, 596, 604, 619; Grey's case, J. Kel. 64; Rex v. Cheeseman,

7 Car. & P. 455; Anonymous, 1 East P. C. 261; Rex v. Hazel, 1 Leach, 4th ed. 368, 1 East P. C. 236; Rex v. Conner, 7 Car. & P. 438.

may entertain of his duty, from those which they themselves hold. In a civil case between master mariner and seamen, Ware, J., observed: "When it is apparent that punishment has been merited, I have never been in the habit of attempting to adjust very accurately the balance between the magnitude of the fault and the quantum of the punishment. Unless unusual or unlawful instruments have been used, or there have appeared clear and unequivocal marks of passion on the part of the captain, or the punishment has been manifestly excessive and disproportionate to the fault, I have not thought myself justified in giving damages." 1 Yet the doctrine of law seems in cases of the sort now under consideration to be, that the jury are to pass upon the question generally stated thus, whether the chastisement was, under the circumstances, reasonable and proper.2

§ 720. The doctrine under discussion visits the parent criminally who refuses or neglects to provide his child with food and clothing, or exposes the child to the physical elements, or imprisons the child, abandons the child, or the like.1 In these cases, however, unlike those of chastisement inflicted for faults, there is no right in the parent to proceed in a moderate way; and no point of inquiry presents itself,

1 Butler v. McLellan, Ware, 219, 230.

* Commonwealth v. Randall, 4 Gray, 36.

Ante, § 413; Vol. II. § 600, 621, 623, 645; Reg. v. Troy, 1 Crawf. & Dix C. C. 556; Reg. v. Waters, Temp. & M. 57, 1 Den. C. C. 356, 13 Jur. 130, 18 Law J. N. s. M. C. 53; Reg. v. Phillpot, Dears. 179, 20 Eng. L. & Eq. 591; Rex v. Saunders, 7 Car. & P. 277.

Ante, § 413; Vol. II. § 35; Gibson's case, 2 Broun, 366; Beal's case, 1 Leon. 327; Reg. v. Pelham, 8 Q. B. 959, 15 Law J. N. s. M. C. 105, 10 Jur. 659; Rex v. Ridley, 1 Russ. Crimes, Grea. Ed. 752, 2 Camp. 650, 653; Rex v. Squire, 1 Russ. Crimes, Grea. Ed. 490; Reg. v. Renshaw, 2 Cox C. C. 285, 11 Jur. 615, 20 Eng. L. & Eq. 593; Reg. v. Morris, 2 Crawf. & Dix C. C. 91; Reg. r. Hogan, 2 Den. C. C. 277, 15 Jur. 805, 20 Law J. N. s. M. C. 219, 5 Eng. L. & Eq. 553; Reg. v. Mulroy, 3 Crawf. & Dix C. C. 318; Reg. v. Chandler, Dears. 453, 24 Law J. N. s. M. C. 109, 1 Jur. N. s. 429, 29 Eng. L. & Eq. 551.

whether the fault of the child justified the act. But the principles governing these cases are sufficiently discussed elsewhere in our present work..:

§721. The guardian does not always have the custody of the person of the ward; and, when he has not, no legal reason appears why he should possess the right to chastise. Sometimes, however, he has such custody; and, when he has, the rule of reason places him in the position of a parent. But the subject is not illustrated in the books; and so we can only leave it as it stands on the general principles of the law.1 Besides, the relation of guardian and ward differs greatly under the statutes of the several States, and under the diverse circumstances of cases.

Teacher and Pupil.

§ 722. The relation of teacher to pupil is assumed in the books to stand on the same footing, in respect of chastisement, as that of parent to child. That it does substantially so is clear beyond doubt; yet reasons will occur to the reader, why the teacher may, under many circumstances, be restrained by the law from proceeding to the same degree of punishment which is lawful for the parent. On this subject, however, we have little direct authority.3

1

1 See also Pulton de Pace, 7 b; Rex r. Cheeseman, 7 Car, & P. 455; Armstrong v. Walkup, 12 Grat. 608.

1 Hawk. P. C. 6th ed. c. 60, § 23; Bac. Ab. tit. Assault and Battery, C; Pulton de Pace, 6 b.

See Commonwealth v. Randall, 4 Gray, 36.