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and control them, by directing what precise laws they shall make. The provision, that it shall be the duty of legislatures an magistrates to cherish the interests of literature and the sciences, especially the university at Cambridge, public schools, and grammar schools, in the towns, is precisely of this charac ter. Had the legislature failed to comply with this injunction, and neglected to provide public schools in the towns, or should they so far fail in their duty as to repeal all laws on the subject, and leave all education to depend on private means, strong and explicit as the direction of the constitution is, it would afford no remedy or redress to the thousands of the rising generation, who now depend on these schools to afford them a most valuable education, and an introduction to useful life.

We must then resort to the law, to ascertain what are the rights of individuals, in regard to the schools. By the Rev. Sts. c. 23, the general system is provided for. This chapter directs what money shall be raised in different towns, according to their population; provides for a power of dividing towns into school districts, leaving it however at the option of the inhabitants to divide the towns into districts, or to adininister the system and provide schools, without such division. The latter course has, it is believed, been constantly adopted in Boston, without forming the territory into districts.

The statute, after directing what length of time schools shall be kept in towns of different numbers of inhabitants and families, provides (§ 10) that the inhabitants shall annually choose, by ballot, a school committee, who shall have the ge neral charge and superintendence of all the public schools in such towns. There being no specific direction how schools shall be organized; how many schools shall be kept; what shall be the qualifications for admission to the schools; the age at which children may enter; the age to which they may continue; these must all be regulated by the committee, under their power of general superintendence.

There is, indeed, a provision (§§ 5 and 6,) that towns may and in some cases must provide a high school and classical school, for the benefit of all the inhabitants. It is obvious

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how this clause was introduced; it was to distinguish such classical and high schools, in towns districted, from the district schools. These schools being of a higher character, and designed for pupils of more advanced age and greater profi ciency, were intended for the benefit of the whole of the town, and not of particular districts. Still it depends upon the com mittee, to prescribe the qualifications, and make all the reasonable rules, for organizing such schools and regulating and conducting them

The power of general superintendence vests a plenary anthority in the committee to arrange, classify, and distribute pupils, in such a manner as they think best adapted to their general proficiency and welfare. If it is thought expedient to provide for very young children, it may be, that such schools. may be kept exclusively by female teachers, quite adequate to their instruction, and yet whose services may be obtained at a cost much lower than that of more highly-qualified male instructors. So if they should judge it expedient to have a grade of schools for children from seven to ten, and another for those from ten to fourteen, it would seem to be within their authority to establish such schools. So to separate male and female pupils into different schools. It has been found necessary, that is to say, highly expedient, at times, to establish special schools for poor and neglected children, who have passed the age of seven, and have become too old to attend the primary school, and yet have not acquired the rudiments of learning, to enable them to enter the ordinary schools. If a class of youth, of one or both sexes, is found in that condition, and it is expedient to organize them into a separate school, to receive the special training, adapted to their condition, it seems to be within the power of the superintending committee, to provide for the organization of such special school.

A somewhat more specific rule, perhaps, on these subjects, might be beneficially provided by the legislature; but yet, it would probably be quite impracticable to make full and precise laws for this purpose, on account of the different condi tion of society in different towns. In towns of a large terri

tory, over which the inhabitants are thinly settled, an arrange. ment or classification going far into detail, providing different schools for pupils of different ages, of each sex, and the like, would require the pupils to go such long distances from their homes to the schools, that it would be quite unreasonable. But in Boston, where more than one hundred thousand inha bitants live within a space so small, that it would be scarcely an inconvenience to require a boy of good health to traverse daily the whole extent of it, a system of distribution and clas sification may be adopted and carried into effect, which may be useful and beneficial in its influence on the character of the schools, and in its adaptation to the improvement and advancement of the great purpose of education, and at the same time practicable and reasonable in its operation.

In the absence of special legislation on this subject, the lav has vested the power in the committee to regulate the system of distribution and classification; and when this power is reasonably exercised, without being abused or perverted by colorable pretences, the decision of the committee must be deemed conclusive. The committee, apparently upon great deliberation, have come to the conclusion, that the good of both classes of schools will be best promoted, by maintaining the separate primary schools for colored and for white children, and we can perceive no ground to doubt, that this is the honest result of their experience and judgment.

It is urged, that this maintenance of separate schools tends to deepen and perpetuate the odious distinction of caste, founded in a deep-rooted prejudice in public opinion. This prejudice, if it exists, is not created by law, and probably cannot be changed by law. Whether this distinction and prejudice, existing in the opinion and feelings of the commu nity, would not be as effectually fostered by compelling colored and white children to associate together in the same schools, may well be doubted; at all events, it is a fair and proper ques tion for the committee to consider and decide upon, having in view the best interests of both classes of children placed under their superintendence, and we cannot say, that their de cision upon it is not founded on just grounds of reason aud

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experience, and in the results of a discriminating and honest judgment.

The increased distance, to which the plaintiff was obliged to go to school from her father's house, is not such, in our opi nion, as to render the regulation in question unreasonable, still less illegal.

On the whole the court are of opinion, that upon the facts stated, the action cannot be maintained.

Plaintiff nonsuit.


One who signs a subinission to arbitration, as agent, without disclosing the name of his principal, or the name of the principal being known to the other party, is personally bound by the submission.

It is no objection to an award, that the arbitrator, after the hearing, received a pay 9: relating to the case from one of the parties, with the assent of the other.

THIS was an action of assumpsit on an award, to which the defendant specified in defence, among other things: 1st. That he was not a party to the submission; 2d, That the award was void, because evidence was received by the arbitrator in the absence of the defendant; and 3d, Because the award was made before the hearing was closed.

At the trial, before Bigelow, J., in the court of common pleas, the plaintiff's produced the submission, the signatures to which were admitted. The defendant signed the same "George Griggs, Agent"; and it did not appear, that he dis closed, or that the plaintiffs knew, the name of his principal. The plaintiffs produced the award, and called the arbitrator, as a witness, to prove the same, who testified that it was the a ward signed by him, and sent by him to the parties.

The arbitrator was then examined by the defendant, and testified as follows: "The hearing took place at the defendant's office, and when it was closed, the defendant was told, in my presence, by Winsor, one of the plaintiffs, that there was a particular document in existence, which the defendaut


(36 Indiana 389 (1871))

CRIMINAL LAW.-Marriage Between Whites and Negroes.-Fourteenth Amend ment.-Civil Rights Bill.-Neither the Fourteenth Amendment to the Constitution of the United States nor the Civil Rights Bill passed by Congress has impaired or abrogated the laws of this State on the subject of the marriage of whites and negroes. Such a union between members of the different races is a criminal offense by the statutes of this State.

APPEAL from the Vanderburg Criminal Court.

BUSKIRK, J.—It appears of record in this cause, that appellee was charged by indictment in the court below with having unlawfully and knowingly married, in the county and State aforesaid, one Jennie Williams, a white woman of this State, he then and there having one-eighth part or more of negro blood.

The indictment was, upon the motion of the appellee, quashed, and the State, by her prosecuting attorney, excepted and prosecutes this appeal to obtain a reversal of the judg


The indictment was based upon the forty-seventh section of the act defining felonies, which reads as follows:

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