(1772) 2 Paton 277
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND.
House of Lords,
Subject_Public Office — Schoolmaster in Burgh — Appointment.—
A schoolmaster, appointed by the Magistrates and Town Council of Campbelton, without any mention being made as to whether his office was for life or at pleasure: Held that it was a public office, and that he was liable to be dismissed for a just and reasonable cause, and that acts of cruel chastisement of the boys were a justifiable cause for his dismissal; reversing the judgment of the Court of Session.
June 4, 1760.
Aug. 18, 1767.
The respondent was engaged as rector and head-master of the grammar school of Campbelton, which, belonging to
In consequence of all these, the scholars were taken away from the school, and the school fell off.
The respondent brought an action of reduction to set aside his act of dismission, on the ground that the magistrates and town-council had no jurisdiction, as a court, to try the question, and therefore their proceedings were incompetent. The Lord Ordinary offered him a proof of his reasons and grounds of reduction; but this he declined, choosing, rather to stand on the incompetency of the procedure, upon which informations were ordered to be lodged.
Jan. 18, 1710.
The respondent contended, that being formally admitted, without any limitation as to the pleasure of the magistrates, council, or heritors, the grant of his office was simple and absolute, and he must be considered to have held it ad vitam aut culpam. 2dly, That the town-council of Campbeltown are not competent, in a matter of this kind, having no jurisdiction civil or criminal. 3dly, That some of the members of the town-council had been admitted as witnesses against him, though they afterwards came to judge in his dismission. That it was not clear who were his prosecutors, the complaint being made in the name of gentlemen only, without mentioning who were meant to be comprehended under the word others, and perhaps the magistrates themselves, for aught that appeared, might be included under that term. The appellants answered, that he was appointed to the office of schoolmaster by the magistrates and town-council. He was subject to their control, as a public servant of the burgh, and consequently could be dismissed by them at pleasure. His act of admission neither bore the office to be for life, nor for any definite period. In removing him they have only exercised a just control over the sacred interest intrusted to their care. Had they done so without reason or cause, then the respondent might have
Magistrates of Edinburgh v. Sir William Thomson, Feb. 14, 1665. Foulis, Nov. 10, 1747. Harvey v. Kirk-Session of Glasgow, 1750.
Nov. 15, 1770.
The Court, of this date, (29th June 1769,) repelled the objections to the competency of the proceedings, and remitted to the Lord Ordinary to proceed in the cause.
A discussion then took place before the Lord Ordinary, chiefly on the effect and import of the proof.
Of this date, the Court pronounced this interlocutor:—
“Upon report of Lord Pitfour, and having advised the memorials, the Lords repel the reasons of reduction, and assoilzie the defendants, and decern.”
Jan. 22, 1771.
A reclaiming petition being presented, pleading compassion, and praying the Court to take a middle course, and repone him to his office, with the punishment of being three years deprived of his salary, which would sufficiently atone for his errors. Whereupon the Lords, of this date, “reduce the decret of deposition, and repone the petitioner to the office of schoolmaster of Campbeltown: But, in respect of some irregularities in his conduct, find he is not entitled to the bygone salaries of his office since his deposition, and decerns and declares accordingly, and find no expenses due.” The appellants having reclaimed against this interlocutor, the Lords refused the prayer of the same, “and adhere to their former interlocutor reclaimed against.”
It was against these two last interlocutors that the present appeal was brought.
Pleaded for the Appellants.—The frivolous objections stated by the respondent against the proceedings before the
Pleaded for the Respondent.—His engagements in trade and farming, which were so trifling, could not afford a just and reasonable cause for his dismissal, unless it led to the consequential neglect of the school, and his scholars; but, in place of this, when the school was examined by the clergy, it received the warm approbation of the examinators. And as to chastisement, it must be admitted that a schoolmaster ought to be allowed a certain power and control of chastisement for the purpose of discipline. Without it no school could exist; and the question is, how far this power ought to be exercised in cases of ferocious and rebellious behaviour on the part of the boys. In the present case, no excess was resorted to,—no inhuman barbarity inflicted; but when pupils, as in this case, turn round, and swear and curse at the master, and wrestle with him, some latitude must be allowed for smart correction on such occasions. Unless the discipline of a school is maintained by some means, the authority and usefulnes of a master are gone. He can no longer be a teacher of youth, and all learning will give place to insubordination and misrule. A schoolmaster, it is true, must not be a barbarian—must not maim his scholars, or treat them with heartless cruelty; yet, without corporal punishment to a a certain extent, no school can possibly exist. The respondent
After hearing counsel, it was
Ordered and adjudged, that the interlocutors complained of be reversed.
Counsel: For Appellants,
For Respondent, Andrew Crosbie, James Boswell.