Human Rights and the Defence of Chastisement

DOI10.1350/jcla.2007.71.4.308
AuthorSimon Parsons
Publication Date01 Aug 2007
SubjectComment
COMMENT
Human Rights and the Defence of
Chastisement
Simon Parsons*
Parents have the common law right to inf‌lict moderate and reasonable
physical punishment upon their children. Historically a person in loco
parentis had the same right, so that a parent would have to rule out
expressly the right of chastisement when giving lawful control of his or
her child to another. However, Parliament has now intervened to limit
the common law right and who may make use of it. This comment
outlines the common law and the statutory interventions with partic-
ular reference to human rights.
The common law
Cruel Dickensian1schoolmasters still existed in the middle decades of
the 19th century for, on 21 April 1859, Reginald Cancellor, when aged
13 or 14, was beaten to death by a sadistic schoolmaster called Hopley at
a school in Eastbourne. In R v Hopley2the facts of what happened were
revealed. On 18 April Hopley had written to Cancellor’s father saying
that Cancellor was obstinate and that he wished to subdue his obstinacy
by chastising him severely; that, if necessary, he should do it again and
again and ‘continue it at intervals, even if he held out for hours . . . I
therefore write this to know your wishes’.3On 20 April the father
replied ‘I do not wish to interfere with your plan’.4The very next day
Hopley beat Cancellor for about two-and-a-half hours with a stick,
which was at one end an inch thick, so severely that Cancellor was
unlawfully killed: ‘The prisoner and his wife were for sometime going up
and down stairs engaged in washing out the stains of blood’.5Hopley was
charged with manslaughter. Lord Cockburn CJ, when summing up to
the jury, set out the common law defence of reasonable chastisement:
By the law of England, a parent or a schoolmaster (who for this purpose
represents the parent and has the parental authority delegated to him),
may for the purpose of correcting what is evil in the child inf‌lict moderate
and reasonable corporal punishment, always, however, with this condi-
tion, that it is moderate and reasonable. If it be administered for the
gratif‌ication of passion or of rage, or if it be immoderate and excessive in its
* Senior Lecturer, Southampton Solent University; e-mail:
Simon.Parsons@solent.ac.uk.
1Nicholas Nickleby was published in 1837 and gave a damning critique of the
treatment of children in ‘Yorkshire Schools’ and was an example of the constant
theme in Dickens’s novels of how badly children were treated in the 19th century.
2 (1860) 2 F & F 202.
3 Ibid. at 203.
4 Ibid.
5 Ibid.
308

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