society. This duty cannot 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 salutary 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 offences, 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 59] which correction is authorized. But *any correction, however severe, which produces temporary pain only, and no permanent ill, cannot 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 only. When the correction administered is not in itself immoderate, and therefore beyond the authority of the teacher, its legality or illegality must depend entirely, we think, on the quo animo with which it was adminis

tered. Within the sphere of his authority, the master is the judge when correction is required, and of the degree of correction necessary; and like all others entrusted with a discretion, he cannot be made penally responsible for error of judgment, but only for wickedness of purpose. The best and the wisest of mortals are weak and erring creatures, and in the exercise of functions in which their judgment is to be the guide, cannot be rightfully required to engage for more than honesty of purpose and diligence of execution. His judgment must be presumed to be correct, because he is the judge, and also because of the difficulty of proving the offence or accumulation of offences 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 [60 malice, and, under the pretence of administering correction, gratify his own 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.""

The rule seems to be that in inflicting punishment upon a pupil, the teacher must not go beyond the limit of a moderate castigation. If he is guilty of any unreasonable and disproportionate violence or force he is liable for such excess in a criminal prosecution. In such case it is immaterial whether there was an actual wicked motive or not, as the unlawful intent, which it is necessary to show in a criminal prosecution, is always inferred from the unlawful act. Where the teacher acts maliciously or wantonly and from an actual wicked motive then he is liable, and it matters not how moderate the punishment may be. The legality or illegality of the act depends entirely upon the animum with which the punishment is inflicted. Com. v. Randall, 4 Gray (Mass.), 36; Anderson v. The State, 3 Head (Tenn.), 455; Lander v. Searer, 32 Verm. 114; Starr v. Liftchild, 40 Barb. 543. See also Fitzgerald v. Northcote, 2 F. F. 663, n. In the note (which is a very valuable one) it is said while the relation of master and scholar exists, it seems that either moderate chastisement, or reasonable restraint-either to prevent running away or to punish breaches of disciplinemay be justified.

SECTION VIII.

LIMITATIONS ARISING FROM THE RELATION OF PRINCIPAL AND

SPECIAL BAIL.

The relation of principal and bail is created where a party arrested or in prison on civil or criminal process procures sureties who undertake by bailbond or recognizance for his return or appearance at a place and on a day certain.'

A man's bail are looked upon as his gaolers, of his own choosing; and the person bailed is in the eye of the law, for many purposes, esteemed to be as much in the prison of the court by which he is bailed, as if he were in the actual custody of the proper gaoler.'

The term "bail" as used in this connection does not extend to all cases of suretyship. It imports a delivery of the person arrested or imprisoned out of public into private custody for safe keeping. Nor does it extend to all cases of imprisonment. It does not apply to the case of "a surety for the gaol liberties, which is not matter of record, but exists only in pais.'

993

It is said it did not include the case of mainpernors at 61] common law. "Every bail," says Coke," "is mainprize (for those that are bail take the person bailed into their hands and custody), but every mainprize is not bail, because no man is bailed but he that is arrested, or in prison: for he that is not in custody or prison cannot be delivered out, as before it appeareth. But a man may be mainperned which never was in prison, and therefore mainprize is more large than bail.”

"These words, 'mainpernors and bail,'" says Peters

dorf, in his work on Bail, 7, "have been used indiscriminately without attending to the distinction, that bail have the power of imprisoning the principal, or surrendering him before the stipulated day of appearance; and that mainpernors can do nothing, but are barely and unconditionally sureties for his due attendance in court on the day mentioned in the writ. Bail are only sureties that the party will be answerable for the special matter for which they stipulated. Mainpernors are bound to produce him to answer all charges whatsoever."

The law relating to this distinction has become a matter rather of speculative curiosity than of practical interest. It is practically unknown with us, and the reasons assigned for it would seem to require the rejection of the distinction if the writ of mainprize was still in use.

This species of bailment is called a "living prison," and the bail have the power, of their own motion, to detain or surrender the principal. They are his keepers and are said to have him always in a string, which they may pull whenever they please, render him in their discharge; and this *"because the court of justice [62 doth deliver him unto them to be safely kept."

A doubt seems to be intimated in Ex parte Bagley,' whether bail in a criminal case have power to surrender the principal. The case is briefly reported; but if the doubt be meant of the general rule it seems to be without foundation.'

The principal may be taken on Sunday. The dwelling-house ceases to be a castle to defend him, and if the door should not be opened the bail may break it down and drag him from his bed at midnight.*

This power of the bail is not limited to the territorial

! 4 Inst. 178.

27 Cow. 472.

2 Hawk. P. C. 140; Com. Dig. tit. Bail, Q. 2; Petersdorf on Bail, 515; Harp v. Osgood, 2 Hill, 216; Withrow v. Commonwealth, 1 Bush (Ky.), 17; Commonwealth v. Webster, Id. 616; State v. Lazarre, 12 La. An. 166; State v. Mahon, 3 Harring. (Del) 568; 1 Bishop's Crim. Procedure, secs. 695-6.

• Commonwealth v. Bricket, 8 Pick. 138.

jurisdiction of the court before which the relation is contracted; but is at least coextensive with the limits of the

state.

If, however, after the letting to bail, other rights attach against the principal, the right of the bail may be ⚫ suspended until those are determined: As where a debtor is in the jail bounds in one district and an applicant there for the benefit of the insolvent debtor's act, he cannot be taken by his bail out of that district to be surrendered in another; nor will a habeas corpus be granted at the instance of the bail for that purpose. For the court, it was said, never grants a habeas corpus for an illegal purpose. And in such a case it would be an escape, would make sureties on the prison-bounds-bond liable; would prevent the prisoner from obtaining his discharge under the insolvent debtor's act where he 63] *applied for it and where he was entitled to have it.'

The question as to the power of the bail to arrest the principal beyond the state in which the bailment is made, is one of practical importance, though not of very frequent occurrence since the general abolition of impris onment for debt. It is interesting also as it involves questions of state sovereignty and comity. There is a remarkable concurrence of judicial opinion in favor of its extra-territorial exercise.

In New York the question has twice been before the Supreme Court and the power sustained.

In the case of Nicolls v. Ingersoll,' it appeared that Pierpont Edwards was special bail for the plaintiff in Connecticut; that by a letter of attorney on the back of a copy of his recognizance he empowered Asa Morgan to call all necessary aid and in his behalf to arrest the plaintiff and surrender him in discharge of his recognizance; that Morgan, with the defendant, at midnight broke into the house of the plaintiff in the state of New York, seized him under the authority of the bail-piece

1 Breeze v. Elmore, 4 Rich. 436.

27 Johns. 144.