The lawyer in the school-room; comprising the laws of all the states on important eductional subjects

Front matter

THE

LAWYER YS THE SCHOOL-ROOM

COMPRISING THE

Chapter I

Of Schools, School Systems, and Governments. — Giving an explanation of the dif ferent plans that have been adopted for the diffusion of kndwledge in all countries ancient and modern, and showing the effect which governmental school systems have had upon the destiny of nations, , 1

Chapter II

The Law as to Religion in Schools.— This chapter contains the old English and colonial laws relative to the subject, and gives a succinct legal history (all taken from law books and court records) of the origin and progress of " religious liberty " in this country, 2S

CHAPTER IX. The Law sa to the Teacher's Morality, 136

" 'Tis best to make tlie law our friend, And patiently await : Keep your side good, and you are sure To conquer soon or late.'

Authors Preface.

To members of the legal profession who are at all interested in schools, this little work will be found convenient at least. To all others it will be found more or less instructive. It is sent out, however, on a higher mission, for which it has with great care been expressly prepared, and which is explained elsewhere. For giving to the public a handsome little volume full of useful and reliable information and at a low price, no apology is deemed necessary.

The school-girl gathers flowers in the garden or on the wayside, and makes a bouquet ; the author gathers facts wherever he can find them, and makes a book. If the bouquet is beautiful and the book useful, it is enough. Had the flowers been of the girl's own manufacture, the bouquet would have been without fragrance ; and had the book contained but the ideas, opinions*, and theories of the author, it might have been worthless. Theories that have been proved, facts that have been established, and laws that have been authoritatively explained — these are better material for a book, if properly arranged, than would be thoughts of the author's own coining, even though he may be " wise in his own conceit." Besides, to make use of the language of others is but to back opinion by authority.

New-Yoke, January, 1867.

J-Iear the Children Pleading.

i.

"Give us light amid our darkness, Let us know the good from ill ; Hate us not for all our blindness : Love us, lead us, show us kindness, You can make us what you uill."

We are willing, we are ready;

We would learn, if you would teach We have hearts that yearn to duty; We have minds alive to beauty ;

Souls that any height can reach."

THE

LAWYER IN THE SCHOOL-ROOM

Chapter I. Of Schools, School Systems, And Governments

Sec. 1. China. — In no country of the world is education so general as in China. The course of instruction begins in the family, where the boys are taught to enumerate objects, to count to the number of ten thousand, and to reverence their parents and ancestors by a minute ceremonial. At the age of five or six years they are sent to school. On entering the hall the pupil makes obeisance first to the holy Confucius, and then to his master. A lesson learned in grammar, history, ethics, mathematics, or astronomy, according to the proficiency of the student, is followed by the morning repast ; after which the day is spent in copying, learning by heart, and reciting select passages of literature. Before departure in the evening, a part of the pupils relate some events of ancient history, which are explained by the master ; others unite in singing an ancient ode, which is sometimes accompanied by a symbolic dance. They

8 VF SCHOOLS, SCHOOL SYSTEMS,

leave the hall with the same obeisances with which they enter it, and on reaching home, reverentially salute the domestic spirits, and their ancestors, parents, and relatives. A higher course of instruction is provided in universities under the surveillance of the state. One of these exists in most of the large cities, and the most advanced of them is the imperial college in Pekin. Though the government seems to foster directly only the higher branches, by supporting colleges in the large cities and provincial capitals, while the primary schools are sustained only by municipalities or individuals, the knowledge of reading, writing, and arithmetic is all but universal. The rules and regulations for the education of children and the prosecution of studies laid down in the book of rites are excellent, notwithstanding their great minuteness. Distinction in public life is attained only by scholarship. There are four literary degrees. The examinations which the asjrirants to public honors have to pass are very severe. The unsuccessful candidates are numbered by hundreds of thousands. The education of girls is neglected, but the daughters of the wealthy are generally taught to read, write, siug, and sometimes to make verses. Literary attainments, however, are considered creditable to a woman, and the number of authoresses is by no means small. The daughters of learned men are instructed in music, poetry, elocution, etc. No religion is taught in the common schools. The stress that is laid upon an education in China by the government can hardly be exaggerated. As has been

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stated, all persons who can not pass the several examinations and finally obtain the highest degree of scholarship attainable in the schools are forever shut out from participating in the public honors of the empire. But when this degree is once attained by a person, no matter how low may have been his origin, he is regarded with veneration by the people, and is eligible to the highest office in the state. It is easily seen, therefore, how so great a veneration for learning has come to be entertained by the people, and how the government contrives to secure the advantage of a common school education to all, without directly contributing toward their maintenance and support. (N. A. Cyc.)

But a common school education or even a collegiate education, which means only the acquisition of a certain amount of dry knowledge, and in which all the finer feelings of our nature are left undeveloped, is so much less than what ought to be accomplished in the process of educating that it is far from being satisfactory, to say the least. It is the business of education not only to transmit and interpret to the new generation the experience of the past, and thereby enable each successive generation to increase and improve this inheritance, and to bring up the citizens in the spirit of the government ; but there is a higher and nobler duty for. education to perform. It must enlarge the affections ; control, without smothering, the emotions ; subdue the passions ; and eradicate, so far as is in its power, the wrong propensities ; it must watch with ceaseless vigilance for the first appearance of pride, obstinacy, malice, envy, vanity, cruelty, revenge, anger, lying, and their kindred vices, and, by steadfast and unwearied assiduity, it must strive to extirpate them before they have gained firmness by age or vigor by indulgence. (Wayland.) Whether the Chinese system of education meets with commendable success in accomplishing these essential ends of every useful system of human development or not, it is hardly safe to say. Our knowledge of China and the Chinese is not by any means perfect as yet. A country seven times as large as France, containing nearly half the inhabitants of the globe, and having more densely crowded and populous cities than any other country on the face of the earth : a country, nevertheless, in which street-fights, assaults, and murders are almost unknown ; where the violent and gladiatorial sports of what are sometimes thought more civilized countries are held in contempt ; where duels are utterly unknown, and a resort to force is considered a proof of an inferior kind of civilization ; where women are not allowed to cast off the natural modesty of the sex and follow the brazen if not profligate life of the stage performer ; where some of the most excellent moral precepts known to modern times have been universally inculcated from a period far anterior to the Christian era ; where are found the oldest of all known books, and a literature the most ancient, most consistent, most varied, and most voluminous of all : a people with an uninterrupted history running back for nearly five thousand years, (2207 B.C.,) and an empire that would seem to have been founded so long ago as 2650 b.c, but which at all events has existed longer than any other empire, government, or principality since the world began : a country with such a history, and of such a character, ought not to be judged and condemned by the character and conduct of its cast-off adventurers who come to our distant shores perhaps as fugitives from justice.

Nor should we give credit to all the statements of those few learned Europeans who have had a glimpse of the edge of the Chinese character, and no more, but who have nevertheless assumed to tell us all about the Celestial Empire. Men of great learning are notoriously unfit for the freedom and familiarity which alone afford an acquaintance with the every-day manners and customs of a people. They can thoroughly examine manuscripts, books, libraries, systems of education, and forms of government, and on these subjects we may safely credit them ; but when they begin to speak of the Chinese mind, character, and habits, except as these appear in the laws and literature of their country, then it may be well to doubt, and to ask what facilities each individual writer had for observation, how well he was calculated by nature to improve these facilities, and how he did actually improve them. Most foreigners, especially if they do not understand our language, have to be in our country a long time before they can fully explain our government, our laws, our habits, our manners, our virtues, and our vices. It is an easy thing for some writers to imagine that they have seen all in seeing one, and there are those even who, seeing many, see none correctly. TVe have, therefore, come to the conclusion that our knowledge of China and the Chinese is as yet too imperfect to justify us in condemning the Chinese system of education, as some very learned men have heretofore done.

The Chinese are proud of their country and of their civilization, which was already flourishing at a time when the Christian nations were still hidden in the darkness of barbarism. This national pride comes, at least, as naturally to them as to those nations whom we are wont to call civilized. Considering that China contains nearly one half the population of the globe, and that the kingdoms or empires constituting the so-called "great powers " can, in point of territorial extent and population, scarcely compare with single provinces of the Chinese empire : considering, also, that with the exception of steam-engines and electric telegraphs, there is scarcely any great invention of modern times which has not been in use among the Chinese for many centuries ; that popular education is more general and the social structure more firmly settled there than in any other country: when these facts are duly considered, the apparent overbearing demeanor and narrow-mindedness of the Chinese in regard to foreigners may not appear in altogether so unfavorable a light, especially since we ourselves are so apt to assume a superiority over, and to regard with a certain kind of contempt, most foreigners who come among us. It is probable that a more intimate intercourse with the Chinese would materially modify the unfavorable impression of them which now so generally prevails among Christian nations. " Their civilization," says Ritter, "has been developed under peculiar forms and influences, and must be compared to, rather than be judged by, that of Europeans ; the dissimilarity is as wide, perhaps, as can possibly exist between two races of beinors havino; the same common nature and

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wants. A people by whom some of the most important inventions of modern Europe were anticipated, (such as the compass, porcelain, gunpowder, paper, printing,) and were known and practiced many centuries earlier ; who probably amount to more than 400,000,000, united in one sj^stem of manners, letters, and policy ; whose cities and capitals rival in numbers the greatest metropolises of any age ; who have not only covered the earth but the waters with towns and streets ; such a nation must occupy a conspicuous place in the history of mankind, and the study of their character and condition commends itself to every well-wisher of his race." There is no nation of Europe that is any thing more than a pigmy by the side of China. England leads all other European nations in commerce ; but there is a greater amount of tonnage belonging to the Chinese than to all other nations combined. Prussia is supposed to have one of the best educational systems in Europe; but there is no school system in Europe that has stood the test of two hundred years even, and the Chinese system has stood the test of more than two thousand years. The Chiuese are not a fighting people, and consequently in the Christian art of killing men they are doubtless behind the age. Although our knowledge of them is not perfect, we think it safe to attribute to their system of education their great adhesiveness, prosperity, and importance as a people, and their wonderful stability, antiquity, and consistency as a nation.

Sec. 2. Ancient Egypt, the land of luxury, letters, and libraries, was a government good in many respects, but without a system of schools for the people, and it long since passed away. Persia, the land of flowery fancy and princely profligacy, occasionally had a ruler who placed great stress upon the proper education of his own children, and thus a Cyrus was given to history; but the Persian empire was a government without a system of education for the people, and it fell to pieces so longago that it is hardly mentioned now except in ancient history. Even the Hebrew nation, God's chosen people, notwithstanding all that has been said and written about " the schools of the prophets," had, as a nation, no schools and no school system worthy of the name. The " stiff-necked " fathers were indeed commanded to teach the law to their children ; but so far as we know, they did this without supervision and in their own way, if at all. So from generation to generation, notwithstanding the good men God sent among them, they were a " stiff-necked and rebellious people." And the illustrious throne upon which sat David and Solomon, even this fell because it was not supported by a system of national education for the peopie. There were in Greece great philosophers and schools, but they were entirely independent of and separate from the machinery of government. The spirit of inquiry and the thirst for knowledge that might have been turned to the state's advantage and secured its stability was left to individual enterprise ; so there was no harmony of thought, no unanimity of purpose, and the Grecian republics have long since disappeared from the catalogue of nations. Even the once mighty and j)owerful Rome was left to the same chance, and her " decline and fall " may be attributed to the same cause. In no country of antiquity, except China, was there any governmental scheme for the education of all classes. Sparta under Lycurgus came near to it, but the education imparted by the state was mainly physical, and did not reach the peasant classes. The bishops and clergy were the first in Europe to recognize the duties of the authorities to educate the young. The Council of Vaison (a.d. 529) recommended the establishment of public schools. In 800 a synod at Mentz ordered that the parochial priests should have schools in the towns and villages, that "the little children of all the faithful should learn letters from them." A council at Rome in 836 ordered that there should be three kinds of schools throughout Christendom. The Council of Lateran in 1179 ordained the establishment of a grammar school in every cathedral, for the gratuitous instruction of the poor. This ordinance was enlarged and enforced by the Council of Lyons in 1245. Thus originated the

European and American popular or common schools a? an outgrowth of the Christian Church. Martin Luther, amid his arduous and anxious labors, found time to do good service to the cause of popular education. In 1524, he wrote " an address to the common councils of all the cities of Germany in behalf of Christian schools," in which occurs the following passage : " It is a grave and serious thing, aflecting the interest of the kingdom of Christ, and of all the world, that we apply ourselves to the work of aiding and instructing the young. If so much be expended every year for weapons of war, roads, dams, and countless other things of the sort for the safety and prosperity of a city, why should not we expend as much for the benefit of the poor, ignorant youths to provide them with skillful teachers ?" In 1526, he wrote to the Elector of Saxony as follows : " Since we are all required, and especially the magistrates, above ail other things, to educate the youth who are born and are growing up among us, and to train them up in the fear of God and in the ways of virtue, it is needful that we have schools. If the parents will not reform, they must go their way to ruin ; but if the young are neglected and left without education, it is the fault of the state ; and the effect will be that the country will swarm icith vile and lawless people ; so that our safety no less than the command of God requireth us to foresee and ward off the evil." He asserts, also, that the government, " as the natural guardian of all the young," has the right to compel the people to support schools. " What is necessary

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to the well-being of a state," said he, " should be supplied by those who enjoy the privilege of such state. Now, nothing is more necessary than the training of those who are to come after us and bear rule." The magnificent organization of schools to which Germany owes so much of her present fame is clearly the legitimate result of the labors of Luther.

Before the kingdom of Prussia existed, except as the Mark of Brandenburg, (1540,) visitors were appointed to inspect the town schools of the electorate, with express directions to report in relation to the measures deemed necessary for their improvement. Other action was taken afterward in the same direction; and when the kingdom of Prussia was established, the duty of the state to take care of and provide for the education of its rising generation became one of the main foundation principles of the government. Prussia, we believe, was the first government in Europe founded on this principle, which has since been adopted by all of them, except, perhaps, England. The schools in Austria are sectarian, and consequently not more than half the children in the empire attend them. In Sweden, for nearly two hundred years, the ability to read and write has been indispensable to the assumption of the functions of citizenship. Elementary education is universal in Sweden. England i3 well supplied with institutions for secondary and superior education, and for the promotion of science, literature, and the arts ; but all these are supported chiefly by tuition fees, private contribution, or ancient endowments.

There is a dense mass of popular ignorance upon which these institutions shed no light, except to make the darkness more visible by contrast. The neglect of the government to provide schools for the masses has filled England with the most brutal and ignorant populace in Europe. In 1851, the returns of 708 schools were signed by the master or mistress with a mark, the teacher not knowing how to write ; these were what are called " inferior schools.'* But the same strange, fact occurred in the returns of thirty-five public schools, most of them having endowments.

Sec. 3. The various plans adopted by governments for fostering education are reducible into four general classes, which we will call the Chinese, the Hebrew, the Prussian, and the American. I. The Chinese plan consists in establishing a system of excellent graded schools, and making it necessary to pass through all the grades with honor in order to acquire eligibility to office in the state. The direct results of this plan are : (1.) to make a thorough education absolutely necessary to every one who would share in the honors and emoluments of the government; (2.) to secure for government officials men who are all highly and similarly educated ; and (3.) to make education a high honor in itself, and an acknowledged badge of superiority as well as a social and political advantage. The Chinese educational system embraces a most complete course of eminently national instruction, and is made to stand out in bold prominence, so that it may strike the minds of all in such a way as to leave a definite, forcible, and lasting impression. It carefully avoids all vexed questions, such as religion, for example ; and without taking upon itself the championship of any thing that might prejudice any class against it, it marshals all its forces and advances only for the accomplishment of its own purposes. It does not choose to lessen its importance or waste its energies by dividing its honors and multiplying its objects, but adheres faithfully to its legitimate aims ; and the result is the most stable government, and perhaps the greatest, that has ever appeared upon the face of the earth.

II. The Hebrew plan was to establish a government without a system of education, or to establish a religion and apply the whole force of the government to the support of it. Some of the Hebrews were unquestionably learned, and others of them may have been ; but there was nothing in their laws or government, and there is nothing in their history, to lead us to suppose that their government as such, or they as a people, gave any prominence to education, in the sense in which the term is now used. They seem to have left the science of human development to take care of itself, or to " private enterprise" or "free competition," as in England. The most liberal and comprehensive minds of England, seeing a warning in the history of other nations, have for a long time been urging upon the government the importance of a national system of public schools. But what these men desire and demand is a system of schools which shall be free from sectarianism ; a thing which is certainly most desirable, but which is not to be easily obtained from a government with an established church. III. The Prussian educational system is purely governmental, emanating solely from a minister of instruction immediately dependent on the crown. The universities, the gymnasia, and the primary schools are all under laws and regulations which proceed respectively from the crown, from the provincial government, and from the communes. Every child in the kingdom is obliged, under pains and penalties, to attend school at least from the age of seven to that fourteen ; and the result is, that the Prussian people are efficiently educated throughout the entire community, and that the universities send forth a large body of highly educated men.

This scheme has given to Prussia some prominence as a nation, and it has to a considerable extent nationalized the people. But there would seem to be something still wanting; for, notwithstanding their vast and powerful machinery for popular instruction, the Prussians have not taken a leading part in civilization. Horace Mann supposed that this partial want of success in the Prussian school system arose from the fact that when the children once leave school they have few opportunities of applying the knowledge or exercising the faculties which have been acquired and developed there. This, however, is only the result of the cause, and not the cause itself. A government that reserves its highest honors for a privileged aristocracy, and at the same time forces the young to attend its schools, not for their advantage, but for the advantage of the government and its favorites, may be able to boast that all its people can read, write, and cipher; but at the same time it must admit that, while bestowing this limited amount of knowledge, it carefully smothered or crushed in them all their hopes, so natural to youth, for distinction. In a government having an hereditary aristocracy, people of humble origin are pur posely kept in obscurity ; and they have, and can have, but few, if any, incentives for distinguished zeal. In such a government, those who have the misfortune to be born lowly can by no efforts of theirs change their status, unless, indeed, it be from bad to worse, for ambition there is treason.

A people with their natural instincts and ideas thus dwarfed, and thus forbidden to give birth to new hopes or new aspirations, could hardly be expected to take a leading part in civilization. Nor could they be expected to carry out of the school-room any particular fondness for the education which they may have received there. The Prussian system of education is defective because it does not impart new hopes and desires to the young ; and because it is defective in this respect the Prussians have not taken a leading part in civilization. IV. The plan which we have called the American plan is that system of education which has been generally adopted in the United States. It is quite different from any thing that has yet been explained. There is no other country in the world which contains a population composed of such heterogeneous elements as this. The character of the original settlers has left its impress to a certain extent upon their descendants, though in manyparts of the country all such distinctive traces have been obliterated by the streams of subsequent immigration from all parts of the world. The form of government, too, is peculiar. There are really as many governments as there are separate States ; but these for certain purposes are bound together, by a perpetual league, into one general government. " The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people." (Const, of IT.

S. art. 10, Amend.) The general government does not seem to have been charged or intrusted with the education of the people. It is, however, authorized "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." (Const, of U. S. art. 1, sec. 8, subd. 8.) But the very first principle of many which was enunciated by the delegates of the American people, when they met to take the first step toward forming a general government, and the one which seems most likely to control the action and shape the destiny of the republic, was, that " all men are created equal." Afterward, in forming a constitution for their government, the people, mindful of the history of other nations, refused to permit the general government to constitute or establish a privileged class among them. " No title of nobility shall be granted by the United States." (Const, of U. S. art. 1, sec. 9, subd. 1.) Thus secured in their reserved rights, the people of each State have a government of their own, a State legislature, for the enactment of such laws as they may deem necessary for the full enjoyment of their rights, and as are not in conflict with the constitution of the general government. The right to educate the people was not delegated to the general government, consequently this right remains with the people of the several States, and is exercised by them, if at all, in their legislatures. There has been much legislation in the several States on this subject.

All of them have felt it their duty to encourage education in some way. In many of them a most liberal and efficient system of free schools is established, and this will doubtless soon be the case in all. These schools are in the main well conducted, and kept entirely free from sectarianism. The attendance is rarely compulsory, as in Prussia; nor can the teachers incite their pupils to greater exertion by reminding them that, if they pass through all the degrees with honor, the government will reward and the people will venerate them, as in China. But in all these schools the pupils are taught that a good education is its own reward ; that with it happiness, wealth, honor, and political preferment are all possible ; while without it a person labors under a thousand disadvantages, no matter what he undertakes, all his life long; and he will be fortunate indeed if he is not often the object of ridicule and contempt. The pupils are reminded that, if they will but make themselves competent and worthy to hold office, even the highest offices and honors in the government may be enjoyed by them. In a word, the teachers take the young minds as they find them, and fill them with the hopes, the desires, and the asj)irations of educated and refined gentlemen, or at least such is what they are expected to do. The girls are trained and taught similarly. They are filled with all the ideas, tastes, and aspirations that are becoming to a true womanhood. Both boys and girls are taught not that they must go to school because the state wants to nationalize them, as in Prussia, but that they ought to go to school for their own good, as well as for the honor and prosjDerity of the state. Except in one or two States, they are not warned that they will be deprived of exercising the functions of citizens, as in Sweden, unless they have a certain amount of education ; but their education is liberally provided for by the State, and they are sent by fond parents to intelligent teachers, whose duty it is to awaken their young minds to a proper sense of their several duties, and to a full realization of what they may by zealous efforts reasonably hope to achieve.