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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 anöl 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 Icave 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, accord. ing 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 adıninister 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 general charge and superintendence of all the public schools in ou ch 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 (99 5 and 6,) that towns may and in sume cases must provide a high school and classical school, for the benefit of all the inhabitants. It is obvious
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 comi• mittee, to prescribe the qualifications, and make all the rea. sonable 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, qnite 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 neces. sary, 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 condi. tion, 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 law: for this purpose, on account of the different condi. tion of society in ditlerept towns. In towns of a large torri. tory, over which the inhabitants are thinly settled, an arrangement 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 froin 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 ad. vancement 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 la:v 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 color. able pretences, the decision of the committee must be deemned conclusive. The .comnittee, 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 asp?lectually fostered by compelling colored and white childi:n to associite 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 and experience, and in the results of a discriminating and honest judgment.
The increased distance, tu which the plaintiff was obliged to go to school from her father's house, is not such, in our opi. nion, is 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.
EDWARD W1xsor & another t's. GEORGE GRIGGS.
(ne who signs a subinission to arbitration, as agent, without disclosing the namo
of his principal. or the name of the priucipal being knowu to the other party, is
personally bound by thic submission. Ji is no objection to an awarid, that the arbitrator, after the hearing, received a
pap 9: relating to the case from one of the partics, with tho assunt 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 subinission ; 20, That the award was void, because evidence was received by the arbitrator in the absence of the defendant; and 3d, Because the award was niade before the hearing was closed.
At the trial, before Bigelow, J., in the court of co!limon 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 diso closed, or that the plaintiffs knew, the name of his principal. The plaintiffs produced the award, and called the arbitrator, is a witness, to prove the same, who testified that it was the award signed by hiin, and sent by hiin to the parties.
The arbitrator was then examined by the defendant, and testified as follows: “The hearing took place at the defend. ant's office, and when it was closed, the defendant was told, in my presence, by Winsor, one of the plaintilfs, that there was a particular document in existence, which the defendant
THE STATE v. GIBSON.
(36 Indiana 389 (1871)) CUMMINAL LAW.-Marriage Between Whites and Negroes.-Fourteenth Amendo
ment.-Civil Rights Bill.-Neither the Fourteenth Amendment to the Con. stitution 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 differ. ent 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
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 judgment.
The indictment was based upon the forty-seventh section of the act defining felonies, which reads as follows: