23 JUNE 1888, Page 8


WE are glad to find that the jury in the Haileybury case, after a long and most patient investiga- tion of all the circumstances, have pronounced a verdict in favour of the innocence of young Mr. Hutt. No one, we think, who has read the testimony of the witnesses in detail, will be inclined to doubt the pro- priety of the decision. Very strong circumstantial evi- dence may have been producible which seemed to point to the boy's guilt ; but, at the same time, this evidence, when submitted to the test of a judicial inquiry, did not prove such as to justify a belief in his criminality. This being so, we are bound to acquiesce in the finding of the jury, and to declare that the character of the accused must no longer be considered to rest under any stigma whatsoever. But while thus finding the verdict satisfactory in clearing Mr. Hutt, we consider it equally a subject for con- gratulation in that it does nothing to weaken the discipline of the Public Schools. The fear, pretty widely entertained, that the result of the trial might be to deal a serious blow to the power of Head-Masters in regard to the conduct of their schools, has been proved to be baseless ; for the decision does nothing to weaken that authority, or to surround it with obligations such as might make its proper exercise impossible. Head-Masters are called upon to deal with moral problems more perplexing and difficult than even those which attend the work of legislator or the administration of justice. A school is suddenly invaded with a moral epidemic—such as theft— which will spread as rapidly and as surely as scarlet-fever or diphtheria, if something is not done to stamp it out. Undoubtedly the only successful plan is to get rid of any boy of vicious habits who may be acting as a centre of moral infection. The Head-Master, then, must do his best to find out who the boy is, and, if possible, to remove him. By the nature of the case, however, this removal cannot be carried out with the formalities by which the law attempts to obtain certainty in judicial decisions. All the Head-Master can do is to make as complete an investigation as he can, and risk the possibility of mis- take. Of course, if he does make a mistake, and acts on what turns out to be insufficient grounds —though he bond fide believed them to be sufficient—his decision must be reviewed and rescinded by proper judicial authority ; for no private person, however good his intentions, or however great the necessity of maintaining the authority he wields, can be placed above such ultimate supervision. If, however, it can be proved that he acted on reasonable grounds and in good faith, no tribunal, even if it disagrees with his decision, will in any way reflect upon his conduct. The facts of the case, as elicited by the trial, were briefly these. Mr. Hutt, the plaintiff in the action, had placed his son, Henry Hutt, at Haileybury. During the time of the son's residence at the school, a great number of cases of theft took place in the studies. In order to detect the criminal, marked money was placed in two of the studies by the school-marshal. This money soon after disappeared. Suspicion falling on Hutt, his desk was searched, and in the ordinary so-called secret-drawer was found some change, and amongst it one of the marked coins. On Hutt being charged with the offence by the house-master, Mr. Penning, and by the Head-Master, Mr. Robertson, he absolutely denied all knowledge of how the money had got into his desk, declared that he had not committed the theft, and resolutely refused to confess, though pressed to do so by the Head-Master, the house-master, and by his own elder brother, who for the time had been convinced of his guilt, owing to the house-master's assertion that the evidence was "overwhelming." After Hutt had been kept locked up in the "sick-house," under a kind of solitary confinement, from Saturday till Tuesday, he was expelled from the school. These being the facts, the boy's father brought an action against the Governors of the school to recover damages for an alleged breach of contract to retain his son at Haileybury " College, while young Hutt himself joined in the action by seeking damages for assault, false imprisonment, libel, and slander. The hearing of the case lasted five days, and concluded with an extremely able and thorough charge to the jury by Mr. Justice Field, in which the questions of fact—eleven in all—left to the jury were discriminated with the greatest nicety. The most important of these, with the answers given to them by the jury, we append :—" (2.) Did Mr.

Robertson come to the conclusion upon reasonable grounds that Hutt had committed the theft, and honestly believe that he had ? Answer : Yes, he did. (3.) And did such reasonable grounds exist in fact ? Answer : No. (4.) Did Henry Hutt, in fact, steal the money out of the cash- box of study No. 17? Answer : No. (5.) Had Robert- son and Penning reasonable grounds for suspecting Henry Hutt ? Answer : Yes ; after March 12th, 1887, and the discovery of the money in Ilutt's box." Practically, the moral result of the trial is, then, to clear the boy Hutt from the stain on his character, and at the same time to relieve the Head-Master and his subordinate from the charge of having acted wrongly or in bad faith. The exact legal effect of the findings—whether tney amount to a verdict for the plaintiff or the defendant—remains, however, in dispute, and will have to be re-argued before the learned Judge. Though the finding of the jury may thus be considered satisfactory on the whole, we cannot help expressing our feeling that the masters did not by any means act wisely. Such an investigation as they attempted to make, by means of espionage, marked - money, and the seizing and ransacking of a boy's desk, is not an operation to be lightly entered into. It may be neces- sary, but if adopted should be carried out with far greater caution and circumspection than was practised at Halley- bury. Indeed, it is clear from the evidence of the house- master, Mr. Feuning, that owing to some mismanagement in the plans, the seizure of the desk took place prematurely. Mr. Penning said in the witness-box :—" Some time after this, Campbell [the school-marshal who was acting as detec- tive] came and told me that one of the marked coins placed in study No. 17 had been found in Mutt's desk in his dormitory. I first went and consulted one of the senior masters as to taking the responsibility in the Head-Master's absence. I then went with Campbell to Mutt's cubicle, and was shown what Campbell had found. I consulted with him if it would be possible to replace everything as it had been, and then watch and see if Hutt would go to his desk. I came to the conclusion that there would not be time, as the boys would soon be out and would see us.. I gave Campbell the desk to take to my room, and told him then to go and fetch Hutt." Evidently it would have been much more satisfactory to have waited to see what was Mutt's action in regard to the money in his desk, as such action might have thrown a very strong light on the question of his guilt or innocence. In yet another point the conduct of the masters is to be blamed. They evidently endeavoured to some extent to force or persuade Hutt to con- fess. Though they did this, no doubt, with the best inten- tions, their behaviour in the matter was neither politic nor quite fair. Their visits to the boy in his solitary confine- ment, and their appeals to him to confess, partook too much of the nature of the methods of a French Judge to be quite palatable to the English sense of justice. They did not, too, seem very much inclined to help and encourage the boy to make what defence he could, but rather assumed his guilt from the beginning. No doubt the evidence was apparently very strong, but that should not have prevented them from maintaining a more judicial attitude in their investigations. We cannot leave our consideration of the trial without noticing one or two points of interest in Mr. Justice Field's judgment. His general statement as to a Head-Master's powers seems to us as good common-sense as it no doubt is good law. There is no such absolute discretion in masters of schools as that originally claimed by the Governors, declared the Judge :—" Such a power would be far too great and dangerous—viz., that any boy at school should be liable to be branded for life by expulsion simply because a master on his sole authority and discretion—however distinguished he may be—had come to the conclusion that such a course was necessary for the well-being of his school. Such an absolute discretion could never be permitted. All large bodies must, of course, be governed in the public in- terest, and in some cases such absolute discretion is necessary, but not in such a case as this." The stimming-up contained also an interesting passage in regard to the manner in which the pairia potestas is re- garded by the law of England. Though the common law gives no powers so extensive as those conferred by the- Roman law, which included life and death, it recognises a very considerable amount of parental authority. It is thus that Mr. Justice Field states the position of the English father. He may use whatever means he considers neces- sary for a child's correction, but he must act reasonably and honestly. "In a case of a mere childish fault, for a.

parent to use weapons would be, for instance, so unreason- able as to destroy a parent's right. The law, however, does justify a parent in a case where he honestly considers correction necessary in administering blows in a reasonable and proper manner. But then this power is not limited to corporal punishment, but extends to detention and restraint. I think that the father parts with all these powers and delegates them to the master under whose charge he places his child. Therefore, unless limited by special contract, I think that the master has the power of judging when a punishment is required, and also to what extent." The Judge continued by pointing out how this power in the hands of the Head-Master becomes to some extent altered; for he has delegated to him the patria potestas of perhaps three or four hundred fathers. At home, the child's interests are the same as those of its fellows ; when, however, it enters a Public School, these interests are, of course, extended, "and the master must take into consideration the interests not only of the one boy, but those of the whole school." The passages we have quoted seem to us to constitute a most excellent statement of the nature and degree of a schoolmaster's authority, and we are well satisfied that it should have been put forward by so high a legal authority as Mr. Justice Field.