William M. Lacy James Kent.

Commentaries on American law, Volume 2 online

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tained in enactments of the date of 1718 and 1736; and this system of public
instruction has elevated the German people to a high rank in the scale of in-
telligence. Many other states besides Prussia, such as Bavaria, Saxony,
Hesse-Cassel, Saxe-Weimar, and Nassau, have followed the same ct)ercive
system; and througli the exertions of M. Cousin^ the distinguished French
professor, the Prussian system of popular instruction, as digested by law in
1819, and especially the system of primary Normal schools, for educating
scthoolmasters, has been introduced, and essentially adopted in France, in
the beginning of 1833. These Normal schools have been found the most elfi-
cieut means of raising the standard of primary instruction in Prussia, Aus-
tria, Bavaria, Holland and Scotland. The former French law of 1816, on
the same subject, was wanting in means to give it effect. Rapport sur Vetai
de V instruction publique dans qwHques pays de VAllemagne et particulierement en
Prusse, par M. Victor CoT«i», Consdller d^Etaty Profeaseurde Philosophic^ Mewr
bre d' Institution, &c. This report was translated into English by Sarah Aus-
tin, and published in New York in 1835. It was made to the minister of
public instruction in 1831, and was followed by a supplementary report in
1833, affording fresh proofs of the prosperity of primary instmctiou in Prussia

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Lee. XXIX.] OF THE RIGHTS OF PERSONS. * 196

0.

Great pains have been taken, and munificent and noble proTis-
ion made, ii^ this coantry, to difiPase the means of knowledge, and
to render ordinary instruction accessible to all (a). Several of
the states (6) have made the maintenance of public schools an
article in their constitutions. In New England it has been a
steady and governing principle, from the very foundation of the
colonies, that it was the right and duty of government to provide,
by means of fair and just taxation, for the instruction of all the
youth in the elements of learning, morals, and religion. Each
town and parish was obliged, by law, to maintain an English-
school a considerable portion of the year, and the school was un-
der the superintendence of the public authority, and the poorest
children in the country had access to these schools (c). Select

nnder the coercive aystem. The work, as translated, is deemed so highly valu-
able, that it has beep, by the order of the legislature of some of these United
States, distributed in the school districts at the public expense. In France,
every commune is obliged to have a school, and it is stated that there are
28,196 communes which have school-houses, and only 8,991 which have not.
But parents are not compelled in France, as in Germany, to send their chil-
dren to school, and the inhabitants of the rural districts very greatly neglect
it.

{(C\ It has been uniformly a part of the land wffdem of the United States to
provide for public schools. By the ordinances of Congress under the articles
of confederation of May 2Qth, 1785. and of July l.^th, 1787, respecting the
territory of the United States north-west of the river Ohio; and by the acts
of Congress of March 30th, 1802, ch. 40, and of March 3d, 1803, ch. 74, for
the adroiasion oi Ohio; and the act of April 19th, 1816, ch. 57, for the admis-
sion of Indiana; and the act of April Idth, 1818, ch. 62, for the admission of
Illinois; and l^e act of March 6th, 1820, ch. 20, for the admission of Missouri
into the Union, it was made a specific condition, among other things, that a
section of each township should be permanently applied fortheuseof pablic
schools. So, the act of Februarjr 15th, 1811, ch. 81, relative to the territory
of Louisiana; and the act of March 3d, 1823, ch. 28, relative to the territory
of Florida; and the act of June 23d, 1^, ch. 120, relative to the admission
of Arkansas into the union, all provided for the appropriation of lands in each
township for the use of public sc^hools. This elevated policy of the federal
government, (and which applied equally to public roads and highways,) as
one of our American statesmen (Mr. Cushing) has justly observed, was *^a
noble and beaatiftil idea of providing wise institutions for the unborn mil-
lions of the West; of anticipating their good by a sort of parental providence;
and ol associating together the social and the territorial development of tiie
people, by incorporating these provisions, with the land titles derived from
the public domain, and making school reservations and road reservations es-
sential parts of that policy. "

(6) The States of Maine, Massachusetts, Vermont, Connecticut, New York,
Pennziylvania, Indiana, Michigan, Tennessee, Arkansas and Alabama.

^e) Common schools for each town were instituted in Alassachusetts in the
early settlemept of the colony, and the general instruction of children was
made a public charge and duty. The colony, as the United States have since
done, incorporated public instruction and improvement with her land titles;
and in assigning townships to settlers, it was the practice to reserve one lot
for schools and another for jKirochial uses. The first legal provision for en-

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* 196 OP THE RIGHTS OP PERSONS. [Part lY.

men in each town were to see, that in every family, children and
apprentices were taught to read, and taught a knowledge of the
capital laws, and were catechised weekly. In Massachusetts, hy
statute in 1647, each town, consisting of fifty householders, was
directed to maintain a school to teach their children to read and
write, and every town of one hundred families was t<% maintain a
grammar school to fit youth for the college (a). The common
schools in Massachusetts have been kept up to this day, by direct
tax and individual subscription, and no where, in a population of
equal extent, has conmion elementary education been more imi-
versally difiPused. In the early history of Connecticut we meet
with similar provident provisions for the maintenance of public
schools. In the colony of New Haven, in 1656, and in the colony
of Connecticut, in the years 1650, 1672, 1677, 1690, and 1700,
laws were enacted for the establishment and maintenance of com-
mon schools ; and in that last year, their common schools were
placed upon a permanent foundation (6).

forcing this daty, and sustaining the system of common schools, was in 1647;
and Massachusetts has the honour of taking the lead, in this country, in this
great and wise policy. Winthrop^s History of Neyj England^ vol. ii. p. 215.
This compulsory system upon parents and masters to teach their children and
servants to read, and with some knowledge of the scriptures, and of the cap-
ital laws, and to be brought up in some lawitil employment, was enforced hy
fine in Massachusetts by the act of 1642, and in the Plymouth Colony Laws,
1671. Brigham^a edit, 1836, p. 270. The compulsory system of supporting com-
mon and grammar schools 'in each town, is sustained to this day in Massa-
chusetts, and enforced by indictment. In 1818, the inhabitants of the town
of Dedbam were indicted, tried and convicted under a statute of 1789, of the
offence of neglecting for a year to keep and support a grammar school to in-
struct children in the Greek, Latin and English languages. 16 Mass, Sep,
141.

(a) See Statvtes of Massachusetts^ published in 1675. The Plymouth Colony
Laws confined the necessity of the Latin school, to the county towns. See
Plymouth Colony Laws, edit. 1836, p. 300.

{b) TrumbulVs History of Connecticut, vol. i. p. 303. JV: A, Review, N. S. vol.
vii. p. 380, 381. Pitkin's History of the United States, vol. 1. p. 151. Beviaed
Statutes of Connecticut, 1821, p. 3&7, note. One of the early statutes of Con-
necticut, contained in the revised -code of 1702, p. 16, declared, that **the
education of children was of singular behoof and benefit to any people,'' and
it was made a duty in the selectmen and grand-jurymen of the several towns,
to see that all children and apprentices were taught to read the English
tongue, with a knowledge of the capital laws. This law was in force in 1784,
and by capital laws was meant the criminal code, so far as related to crimes
punishable with death. Every town ot 70 householders was to be constantly
provided with a sufficient schoolmaster to teach children to read and wiite;
and schoolmasters were maintained by a public tax. Statute Laws ofConnee-
tieut, 1784, p. 215. The digest ot the system of school societiesand common
schools in 1821 declared, that all parents, and those who have the care of
children, were bound to bring them up to some honest and lawtul callingor
employment, and to have them taught to read and write, and cypher as £w

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Lee XXIX.] OP THK RIGHTS OF PEB80N8. * 196

The State of Connectioat hafl a very large school fond, econo-
mically and jadicionsly managed, and appropriated essentially to
the support of common schools; and ordinary edncation is so far
enforced in that state, that if parents will not teach their chil-
dren the elements of knowledge, by causing them to read the
English tongue well, and to know the laws against capital offences,
the select men of the town are enjoined to take the children from
8Qch parents, and bind them out to proper masters, to be taught
some useful employment, and to read and write, and the rules of
arithmetic necessary to transact ordinary business (a).'

as the first four rales of arithmetic. Eevised Statutes of Oonnedieui, 1821, p.
107, 396. Pennsylvania went Airther than the New England colonies as to
teaching the laws, for one of its earliest provincial acts declared, ^at the
laws of the province ** shonld he one of the hooks tanght in the schools of the
jvovinoe." 8ach a provision, however, could only he practicable in an early
state of society, when the statute laws were few and simple. It would be
idle and absurd to introduce as text books into our common schools, if not
into our academies, the bulky and complicated statute codes.

(a) During the twenty-seven years that Chief Justice Heeve was in ex-
tensive practice in Connecticut as a lawyer, he informs us, he never met with
bat one person in that state who could not write. The Connecticut school
fund is by the constitution of that state declared to be inviolate and perpe-
tual. In 1831 it amounted to $1,902,057, yielding a yearly income of $78,-
074. The whole number of scholars was 85,000; nnd as the entire population
was short of 300,000 souls, this public charitable ftind for the support of the
common schools, when considered in the ratio of the population, was, in point
of extent, without a parallel. But a good judge and zealous writer on this
sabject, Mr. J. OrvUle Taylor, author of the valuable treatise entitled, ^'The
District School," is of opinion, that the Connecticut school fund has operated
iiguriously, by reason of its very magnitude. It does too much for the peo-
ple, or it does not do enough. It damps all individual effort for the common
schools, and the establishment cannot do without individual effort. It de •
frays the expense of the district schools for six months in the year, and then
for the residue of the year the common schools a/e sadly neglected, and the
school-houses closed. See his Prefeux to the American edition of if. (huain^s
rtpmi on puJblie instrvction in Prusna, Every provision of the kind must
undoubtedly be pernicious, if it extinguishes stimulus, and leaves the in-
habitants contented with the provision, and careless and indifferent to all
further exertion.

Since the lost edition of this work, we learn from the report of Seth P.
Beers, Esq., the commissioner of the Connecticut school ftind, made to the
legislature in May, 1839, that the capital of the state school fund amounted
in April 1838, to $2,028,531 ; and the number of children between 4 and
16 years of age, returned to the comptroller in 1838, from 211 school societies,
was 83,977; and the dividends from the school fund, for the year ending i;i
March, 1839, was $104,906, being $1.25 to each child. In addition to this
aoDual distribution, there were society and local school funds — ^town de-
pQsite fVind — school society tax— district tax — and the tax on parents of chil-
dren attendingachool. These subordinate funds are stated by other authority

* In Connecticut it is obligatory upon parents to educate their children in
certain subjects and to an honest calling. See the statute of 1849, title 7,
ch. 4, Ik 22, 23 and see sects. 24 and 25. See the Revised Statutes of Mas-
sachusetts, 1849, ch. 220, and subsequent statutes. Upon this sabject see
the statutes of the different states.

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19d OP THE RIGHTS OF PERSONS. [Part 11

Massaohnsetts had not, until recently, any permanent 6cbo<
ind, yet liberal donations were made for the sapport of gran
\&T schools, ordainefi by law, in every town of the state of a cei

> amount to another million of doflars, and of which the town deposits fui
as a capital of $764,670. But the system of common schools, so beautifi
I theory, was in no correspondent degree efficient in practice. The repo
r the board of 'Commissioners of Common Schools, instituted in 1838, bt
lade to the legislature of (Connecticut in May, 1839, was accompanied I
le report to that board of Henry Barnard 2d, secretary to the boanl, contaii
ig a laborious and thorough examination of the condition of the commc
^hools in every part of the state. It is a bold and startling documei
funded on the most pains-taking and critical inquiry, and contains a minut
jcurate, comprehensive and instructive exhibition of the practical couditic
ad operation of the common school system of education.
In pointing out the defects in the organization and administration of tl
jhool system, his object was to have them met and removed, and to establii
higher and more vigorous standard in the education, examination and ei
>uragement of teachers. He stated that the school system had fallen in
leble and irregular action, and a wide-spread apathy prevailed in regard
le condition, and prospects of common schools; that the reliance on the pa
c funds had led to the almost entire abandonment of property taxatioi
lat private schools, supported by men of property, had operated most ii
iriously to the public schools, by reducing their means, drawing away tl
est teachers and the best patronage, and leading to the abandonment of a
iterest in them by some of the most intelligent families; that there we
ot less than 10,000 children under 16 in private schools, at an aggregate e:
snse of not ^ess than $200,000 for tuition alone, and more than was paid f
lachera' wages in all the public schools of the state. This alarming fact w:
inclusive evidence of the low condition of the common schools, and teud<
» degrade them into the character of charity schools — that those paren
ho abandon the patronage of common schools, avoid thereby all the e;
?nse of supporting them beyond the avails of the public money — that tl
Lstribution of the school fund dividends had not been in a way to exci
cal exertion, as was the policy in the States of New York, Ohio and Peni
'Ivania — ^that there were 211 school societies, and 1700 school districts i
le state, and yet, in 10 of the largest of the school societies, not above ]
irsons attended the election of school officers, though these societies i
uded 10,000 electors, who voted at the state election — that there was a noi
;tendance of the proper children of the common schools, to 17,000, and
as a frightful fact, showing the want of general interest in those institi
ons — that in the cities and populous districts, school money was drawn c
jarly twice the number of children who attended the public schools — th
ore than one-eighth of all the children are sent to private schools, and on
xth of all the children are in no school, public or private — that the scho
Lstricta were injuriously multiplied, and school houses generally badl
lilt, badly arranged, and badly located; — that the great defects of the sy
m, and the inadequate compensation to teachers, and their short time
uployment in the year, and the forbidding and discouraging circnmstano
gainst the entrance of competent teachers into common schools, and tl
-eat inducements to enter private schools and academies, especially of fema
achers, have contributed to this degradation of common schools — he pr
)sed that one-half of the dividends of the school fund should be proportionc
I the amount of money raised by the school societies, or to the number
lildren, and their actual attendance for any given period — he further pr
)8ed that the expense of the schools should be made to fall, not exclusive
pon those who send their children, but upon the property of the school a
ety, or town;— he stated that the great instrumentality to the prosperity

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Lee XXIX.] OP THE RIGHTS OP PKKSuNS. * 196

taia size; and common schools in each town were supported by a
town tax, required by law to be raised. In 1834 provision was
made by law for a permanent school fund, to be limited to a mil-
lion of dollars (a). Further efforts were made by Jaw in Massa-
chusetts, in 1837 and 1838, to elevate the standard of common
ochooi education, by the establishment of a board of educatioD,
and the gradual formation of district school libraries (b). Com-
mon schools are established throughout all the New England
states, and they are supported by a town tax, together with some
auxiliary l^slative provisions and permanent fund^. It is com-
puted that in the six New England states, there are not less than
balf a million of children who receive elementary instruction
yearly in the common schools.
The legislature of Netv Jersey y by statutes in 1816, 1817, 1818,

the common school system, was good teachers, and that they could be pro-
cared only by education for the very employment and by higher wages — he
u:ged that a seminary for teachers, especially for females, with a model
school annexed, ought to be endowed by the state and private contribution,
and be pressed, in an animated manner, the necessity of the establishment
of Normal schools ior the education of teachers, male and female, qualified
to conduct the schools, and be held out the example of the efforts, not only
in Prussia, Austria, Bavaria, Holland, France and Scotland, but of New York,
Massachusetts, Ohio and Pennsylvania, as well worthy of imitation.

The above report was so impressive, that it led, in 1839, to further legis-
lative provision '^concerning schools,'' and in the annual reports of the com-
missioners of common schools, and of the secretary of the board, in May, 1840,
it appears that the spirit of improvement in the system of common schools,
and in attention to their support has been sensibly excited. This is encour-
aging information; we cannot rely on the efficacy of compulsory legislation,
respecting the education of children. The essential means of snccess, are
the zealous co-operation of parents, with good teachers, well educated for
the purpose, and with good book.s. The object of popular education should
be to improve, not only the intellectnal, but the moral condition of children,
ior knowledge withont practical morality, lends to evil. The teachings on
this latter subject, should rest for their basis on the Bible, as containing the
only solid foundation of religious belief.

{a) The Massachusetts laws concerning common schools were re-digested
in 1826, and incorporated into the Revised Statutes of 1835. In 1836, there
were in Massachusetts, 2517 school districts, and 4970 male and female
teachera; and 146,539 children between four and sixteen years of age attended
in that year. The common schools were supported by a tax levied by the
towns and cities respectively, amounting to $391,993, and by voluntary con-
tributions to $47,593. The towns had also, all of them, their share of the
120,000 interest of the state school fund. And in addition to all this, the
amount of tuition in private schools and academies was estimated for that
year at $326,642, and the number of scholars attending those latter institu-
tions was rated at 28,752. Bigelow's Abstract for 1836. In 1839 the Massa-
chusetts school fund amounted to $437,592.

(ft) The necessity of better educated teachers, and a more thorough moral
education, and of a deeper interest to be taken in the success of common
schools, was eloquently enforced in the North American Review for October
1838, art 1.

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96 OF THB RIQUTS OF PERSONS. [Part I)

19,. 1821, and 1828, made provision for the establishment ao
idnal increase of a fand for the support of free schools; and i
B8, thej organised and reduced to practice the system of con
tn schools. The trustees of the school fund, (and which, i
B5, amounted to $344,000,) were directed to appropriate ai
ally out of the income of that fund, $30,000 for the support <
blic schools, and the same was to be apportioned among tl
inties and towns in a ratio to their tax list The school ooii
ttee in each town were to divide th^ same into school district
i trustees for the several districts were to be chosen to can
> law into effect The money for each school district was to \
portioned in the ratio of the number of children between fii
i sixteen years of age, and the monies might be appropriate

building, renting, and repairing school rooms, purchasis
>1, furniture, and books, and paying teachers. Each town wi
thorized at its annual town meeting to raise, by tax, such fu
»r sum, not exceeding twice the amount received from the scho(
id, as might be deemed proper for the support of publ
iools (a).

This is a feeble system, inasmuch as it leaves the annuity to I
}ropriated to buildings, fuel, &a, which the school districts c
rn should supply out of their own resources, and by whic

compensation to competent teachers must greatly su£Fei
i it makes no provision for the education of teachers, and on
3 no compulsory duty upon the towns to raise, by taxatioi
nies in aid of the school fund, but leaves the schools to rei
)n this provision. The colony law. of East New Jersey, i
^3, was at least as efficient, when it authorized each town t
iblish and levy a rate for the maintenance of a schoolmastei
)se defects in the New Jersey system are noticed and urge
;he annual report of the trustees for 1839.
The first eminent lawgiver of Pennsylvania took care to incoi
ate, with the frame of government prepared for that provinc
L682, the important truth, that '* men of wisdom and virtue
-e requisite to preserve a good constitution, and that thee
ilities did not descend with worldly inheritance, but were t
carefully propagated by a virtuous education of youth." .

was passed a very few years after the colonists, under Wil
n Penn, first landed upon the soil, declaring that " instructio
(a) Elmer's Diffeat, 497—502.



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Lee XXIX.] OF THE RIGHTS OF PERSONS. * 196

in good and oommendable learning, is to be preferred before
wealtL" And the law enjoined it as a duty npon the several
coantj coortSy to see that all the children in the province, werd
instructed in reading and writing, so that they might be able, at
leasts to read the scriptures, and. it imposed a penalty of £5 upon
every parent, guardian, or overseer, of sufficient estate and ability,
for every child not thus educated. This compulsory provision
was afterwards departed from, but how it happened we cannot
now ascertain (a). The present constitution of Pennsylvania,
enjoins it npon the legislature as a duty, to provide by law for
the establishment of schools throughout the state, and in such
manner, that the poor may be taught gratia. In 1881, the
legislature established a school fund with the means x>f its pro-
gressive enlargement, and the interest, when amounting to $100,-
OOOannaally, was to be applied to the support of common schools.
In 1888 there were about 230,000 children in the common schools,
and which were kept open about seven months in the year. The
state appropriation for schools in 1889, was $850,000, and a like
sam was to be raised by taxes, in 840 school distriqts (&).*'

The State of O/tto, in 1825, commenced the establishment of a
sjBtem of free schools, and lands to the estimated amount of half
a million of acres had been previously set apart for that pur-
pose (c). In 1889, the Ohio school fund amounted to $1,424,-
175. In Maryland a law in favour of primary schools was passed
io 1825, and the fund provided for that purpose amounted, in



Online LibraryWilliam M. Lacy James KentCommentaries on American law, Volume 2 → online text (page 33 of 108)