SECTION V.

LIMITATIONS ARISING FROM THE RELATION OF MASTER AND APPRENTICE.

This relation is a contract of service for a term of years, to learn some art or trade, which owing to the temptation and abuse to which it is liable has been made the subject of special legislative regulation in the several states.

The operation of the contract is local. The apprentice cannot be taken out of the state unless such removal is provided for in the indenture, or arises from the nature of the contract, as in the case of seafaring men. Commonwealth v. Edwards, 6 Binn., 202; Commonwealth v. Deacon, 6 Serg. & Rawle, 526.

In both of these cases the apprentices, brought from other states, one from Virginia and one from England, were discharged on habeas corpus.

"The relation of master and apprentice was in its original spirit and policy an intimate and interesting connection, calculated to give the apprentice a thorough trade and education, and to advance the mechanic arts in skill, neatness and fidelity of workmanship, as well as in the facility and utility of their application. The relationship if duly cultivated under a just sense of the responsibility attached to it, and with the moral teachings which belong to it, will produce parental care, vigilance and kindness on the part of the master, and a steady, diligent, faithful and reverential disposition and conduct on the part of the apprentice." 2 Kent, 266.

"A master may by law correct his apprentice for negligence or other misbehavior, so it be done with moderation." 1 Black., 428. But he cannot depute another to give such correction. 1 Wheeler, Crim. Cas., 159.

As in the case of parent and child there is also a power to impose temporary confinement, subject to similar limitations.

SECTION VI.

LIMITATIONS ARISING FROM THE RELATION OF MASTER AND SERVANT.

This relation rests altogether upon contract. The one is bound to render the service and the other to pay the stipulated price. Notwithstanding passages which may be found in the books apparently to the contrary, 1 Hawk. P. C. C., 29, § 5; 3 Salk., 47; 4 Burns' J., 119, it is the opinion of a late English writer upon the subject that no master would be justified by the laws of England, even in moderately chastising a hired servant of full age, for dereliction of duty; and that when the books speak of a master being justified in moderately chastising his servant or apprentice, they must be taken to apply only to the case of a servant or apprentice under age.

It is stated in Viner. Abr, tit. Master and Servant, K, that if a servant departs from his master he cannot put his hands upon him nor bring him back by force.

There are numerous provisions in the English statutes for the regulation of laborers, domestic ser

says: "This power

vants, and servants in husbandry, prescribing certain duties, regulating wages and inflicting corporeal and other punishments, which would seem to be unnecessary if the power of corporeal chastisement existed in the master or employer. Chancellor Kent does not grow out of the contract of hiring, and its lawfulness has been questioned on the ground that it is not agreeable to the genius and spirit of the contract. And, without alluding to seamen in the merchant service, it may safely be said to be confined to apprentices and menial servants while under age, for then the master is to be considered as standing in loco parentis." 2 Kent, 258.

It may be doubted whether this limitation is sufficiently restricted. Should not the power be limited to cases where the master contracts with the parent, or other person legally representing him for that purpose, for the service of the child under circumstances to afford ground to presume a delegation of the parental power of chastisement? At least ought not the power to be denied to the master in cases where servants have reached years of discretion, are emancipated from parental control and assume to and do contract for themselves?

SECTION VII.

LIMITATIONS ARISING FROM THE RELATION OF MASTER AND SCHOLAR.

The schoolmaster, also, is invested with a portion of parental authority. Whether his authority is derived from the parent, or, in case of public schools maintained at the public expense, from the state, is a matter of little consequence, as he stands in all cases for the time being in loco parentis; and is authorized to direct the application, regulate the conduct and require the obedience of his pupil to reasonable rules.

This authority does not ordinarily extend beyond the limits of the premises appropriated to the use of the school; nor does it attach to the pupil before the time appointed for opening the school or continue after it is dismissed. It is competent, however, for the parents, and perhaps in public schools for the officers charged by law with their management, to extend the authority of the master over the pupil on his way to and from school, and, out of school hours, over the school premises; but in the absence of special stipulations to this effect the child is in the parent's custody until it arrives at school and as soon as he leaves it.

Obedience to all proper rules and requirements may be enforced by stripes in moderation, as a last resort; or, within school hours, by temporary confinement. And, perhaps, in the absence of special and agreed regulations, a delinquent may be detained after the school is dismissed to complete a reasonable

task which might with proper application have been accomplished in the regular hours of school; provided the time of such detention embrace only such period as would be given to play or idleness. In most cases parents require the services of their children morning and evening, and the right to exact them will not be presumed to have been waived or surrendered by the mere sending of the child to an ordinary day school. The power of the master to inflict punishment upon the pupil came under review in the case of The State v. Pendergrass, 2 Dev. and Bat., 365, and the rules of law governing the relation were fully considered. With the exception of the test of responsibility, an "actual wicked motive" which it approves, the case exhibits satisfactorily the law upon this point.

The defendant was indicted for an assault and battery. She kept a school for small children. On 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 also were found to have existed, one on the arm and one on the neck, which were apparently made with a larger instrument, but they also disappeared in a few days. The court below had instructed the jury "that as the child was of tender years, if they believed the defendant had whipped her with either a switch or other instrument so as to produce the marks described to them, she was guilty." The Supreme Court held that this instruction was erroneous, and that the correction was not immoderate. Gaston J., delivered the opinion of the court "It is not easy," says the judge, "to state, with precision,

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