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Power of foundation,
W. and other good mitted to found revenues
urchase of ways conveneration, to
concerning schools doth not seem to have been considered as yet upon full and solemn argument. And therefore liberty of animadversion is taken in some of the following particulars which would not be allowable in matters finally adjudged and settled.
1. By the 7 & 8. W. c. 37. Whereas it would be a great hindrance to learning and other good and charitable works, if persons well inclined may not be permitted to found schools for the encouragement of learning, or to augment the revenues of schools already founded; it shall be lawful for the king to grant licences to aliene, and to purchase and hold in mortmain.
But by the 9 G. 2. c. 36. After June 24, 1736, no manors, lands, tenements, rents, advowsons, or other hereditaments, corporeal or incorporeal, nor any sum of money, goods, chattels, stocks in the public funds, securities for money, or any other personal estate whatsoever, to be laid out or disposed of in the purchase of any lands, tenements, or hereditaments, shall be given or any ways conveyed or settled (unless it be bona fide for full and valuable consideration, to or upon any person or persons, bodies politic or corporate, or otherwise, for any estate or interest whatsoever, or any ways charged or incumbered, in trust or for the benefit of any charitable uses whatsoever; unless such appointment of lands, or of money or other personal estate (other than stocks in the public funds,) be made by deed indented, sealed, and delivered in the presence of two witnesses, twelve calendar months at least before the death of the donor, and be enrolled in chancery within six calendar months next after the execution thereof; and unless such stock in the public funds be transferred in the public books usually kept for the transfer of stock, six calendar months at least before the
death of the donor: and unless the same be made to take effect [ 326 ] in possession for the charitable use intended, immediately from
the making thereof, and be without power of revocation. And any assurance otherwise made shall be void. (c)
Attorney-General v. Whiteley. In this case it appeared that certain funds had been given at several times towards the foundation and support of a free-grammar school at Leeds, for teaching grammatically the learned languages. Application was now made that part of the funds might be applied for the purpose of procuring masters to teach the French and German languages,
(c) For the exposition of this act with regard to schools, see Mortmain, vol.ii. p. 561. And note Ld. Hardwicke's opinion in Att. Gen. v. Middleton, 2 Ves. 330. That though a contrary policy prevailed at the time of the reformation, the poor had better now be trained to agriculture than to school; [and see Charitable Uges.]
and of promoting other objects with a view to commerce. It was alleged that the town of Leeds and its neighbourhood had of late years increased very much in trade and population, and therefore the learning of the French and other modern languages was become a matter of great utility to its merchants and inhabitants. The lord chancellor rejected the application on the ground that the nature of a charity could not be changed by transferring it to objects different from those intended by the founder merely on the notion of an advantage to the inhabitants of the place. 11 Ves. 241.; [and see Att. Gen. v. Hartley, 2 Jac. & Walk. 325.]
2. By Can. 77. No man shall teach either in public school Licence. or private house, but such as shall be allowed by the bishop of the diocese, or ordinary of the place, under his hand and seal; being found meet, as well for his learning and dexterity in teaching, as for sober and honest conversation, and also for right understanding of God's true religion; and also except he first subscribe simply to the first and third articles in the 36th canon, concerning the king's supremacy and the 39 articles of religion, and to the two first clauses of the second article concerning the book of common prayer, viz. that it containeth nothing contrary to the word of God, and may lawfully be used. · And in the case of Cory and Pepper, T. 30 Car. 2. a consultation was granted in the court of king's bench, against one who taught without licence in contempt of the canons; and (the reporter says) the reason given by the court was, that the canons of 1603 are good by the statute of the 25 Hen. 8. so long as they do not impugn the common law, or the prerogative royal. 2 Lev. 222. Gibs. 995.
But this is unchronological and absurd : and as the office of a schoolmaster is a lay office (for where it is supplied by a clergyman, that is only accidental, and not of any necessity at all): it is clear enough, that the canon by its own strength in this case is not obligatory.
Therefore we must seek out some other foundation of the ecclesiastical jurisdiction : and there are many quotations for this purpose fetched out of the ancient canon law (Gibs. 1099.); which although perhaps not perfectly decisive, yet it must be owned they bear that way.
The argument in Cox's case, seemeth to contain the substance of what hath been alleged on both sides in this matter; and concludeth in favour of the ecclesiastical jurisdiction. Which was thus: M. 1700. In the chancery; Cox was libelled against in the spiritual court at Exeter, for teaching school without licence from the bishop: And on motion before the lord chancellor, an order was made, that cause should be shewn why a prohibition 3277 should not go, and that in the mean time all things should stay. On shewing cause, it was moved to discharge the said order,
cande part. having usurpelesiasticool withitted,
alleging, that before the reformation this was certainly of ecclesiastical jurisdiction; and in proof thereof, was cited the 11th canon of the council of Lateran held in the year 1215, which canon hath been received by custom in this kingdom, and so made part of our ecclesiastical laws; that the statute of the 1 Eliz. c. 1. having restored the spiritual jurisdiction to the crown, which had been usurped by the pope, immediately thereupon the queen set forth ecclesiastical injunctions, one of which was, that no man should teach school without being allowed thereto by the ordinary; that it must be admitted, these injunctions were not confirmed by any act of parliament, but their being referred to and mentioned in the 5 Eliz. C. l. was an argument that the legislature did approve them; that in the 12th year of that queen, the said injunctions (and amongst them, this of teaching school without licence from the ordinary) were, by the convocation then sitting, turned into canons; that afterwards the statute of the 23 Eliz. c. 1. was the first statute that prohibited it; since which, two others had followed; but none of them tended to destroy the ecclesiastical jurisdiction, only, by making the offence punishable in both courts, gave a remedy where there was none before; that in the first year of king James, the convocation met, which reduced all the canons into one body, and then particularly made this canon, that none should teach school without licence from the ordinary: and though it might be difficult to prove that these canons were directly confirmed by act of parliament, yet there was a sort of confirmation of them in the statute of the 4 Ja, c. 7. for the founding and incorporating a free grammar school at North Leech in the county of Gloucester; whereby the provost and scholars of queen's college in Oxford were to nominate the schoolmaster and usher of the said school, and to make such ordinances for the government thereof as they should see meet, so that the same were not repugnant to the king's prerogative, to the laws and statutes of the realm, or to any ecclesiastical canons or constitutions of the church of England. But on the other side, it was answered, that there could not be one canon or precedent before the reformation cited to prove the keeping of school to be of ecclesiastical cognizance; for that supposing the council of Lateran to have been in every part thereof received in England, yet the canon cited did not prove the point for which it had been produced, that canon only appointing schoolmasters in every cathedral church, and such schoolmasters to be licensed by the bishop; which was but reasonable, namely, that he who taught in the bishop's church, should be approved of by the bishop; that the teaching of school was not in the nature thereo. spiritual; and it would be hard to affirm, that it was of ecclesiastical jurisdiction, or cognizable by the old ecclesiastical laws of the kingdom received by common use, at the same time that
not one single precedent of any such law or usage before the reformation was to be found ; and that as to the canons made since, they did not bind a layman (as Cox was suggested to be) because the laity was not represented in convocation; neither could a reference to the canons in a private act of parliament add any greater weight to them than they had before, that this was a case which deserved great consideration, having before been in the other courts at Westminster-hall, where several prohibitions had been granted on this very same point, in order that it might receive a judicial determination, but the other side would never venture to go on; as in Oldfield's case, M. 9. W., the case of Belcham and Barnardiston, E. 10 W. (d), Chedwick's case, M. 10W., Scorier's case, T. 11 W., and one Davison's case, T. 12 W. (e), that supposing it to have been originally a spiritual crime, yet being now made temporal by several acts of parliament, it was thereby drawn from the spiritual to the temporal jurisdiction. By Wright lord keeper: Both courts may have a concurrent jurisdiction; and a crime may be punishable both in the one and in the other: the canons of a convocation do not bind the laity without an act of parliament: but I always was, and still am of opinion, that keeping of school is by the old laws of England of ecclesiastical cognizance: and therefore let the order for a prohibition be discharged. Whereupon it was moved, that this libel was for teaching school generally, without shewing what kind of school; and the court christian could not have jurisdiction of writing schools, reading schools, dancing schools, or such like. To which the lord keeper assented, and thereupon granted a prohibition as to the teaching of all schools, except grammar schools, which he thought to be of ecclesiastical [ 329 ] cognizance. 1 P. Will. 29.
[In short, the reason why before the reformation there are no canons to be found, asserting the jurisdiction of the ordinary over schoolmasters, except among the clergy in their own cathedrals, seems to be, that in fact they discouraged learning every where else, thereby exalting their own superiority in knowledge.]
By act of parliament the case stands thus:
By the 23 Eliz. c. 1. If any person or persons, body politick or corporate, shall keep or maintain any schoolmaster which shall not repair to some church, chapel, or usual place of common prayer, or be allowed by the bishop or ordinary of the diocese where such schoolmaster shall be so kept; he shall upon conviction in the courts at Westminster, or at the assizes or quarter sessions of the peace, forfeit for every month so keeping him 101.; one third to the king, one third to the poor, and one third to him that shall sue: and such schoolmaster or teacher, pre
suming to teach contrary to this act, and being thereof lawfully convict, shall be disabled to be a teacher of youth, and suffer imprisonment without bail or mainprize for one year.
The following case seemeth to have happened upon this statute; which in the adjudication, by some oversight, hath not been attended to: viz. E. 13 W. K. and Douse. The defendant was indicted for having kept a school without licence of the bishop of the diocese, against the form of the statute. Upon which it was moved to quash the indictment (being removed into the king's bench by certiorari), and the exceptions taken to the indictment were, 1. That there was no statute that prohibited keeping school without licence, but the 1 J. c. 4. $9. and the said act prescribed another method of proceeding. 2. This indictment was found before the justices of the peace at the quarter sessions; and they have no power by the act, and therefore it was void. 3. This school was not within the act of the 1 Ja. because the act extends but to grammar schools; and this school was for writing and reading. And afterwards, after a rule made to shew cause, the indictment was quashed. L. Raym. 672.
Further : By the 1 Ja. c. 4. $9. No person shall keep any school or be a schoolmaster out of any of the universities or colleges of this realm, except it be in some public or free grammar school, or in some such nobleman's or gentleman's house as are not recusants, or where the same schoolmaster shall be specially licensed thereunto by the archbishop, bishop, or guardian of the spiritualties of that diocese; upon pain that as well the schoolmaster, as also the party that shall retain or maintain any such schoolmaster, shall forfeit each of them for every day so wittingly offending 40s.; half to the king and half to him that shall sue.
And by the 13 f. 14 C. 2. c.4. Every schoolmaster keeping any publick or private school, and every person instructing or teaching any youth in any house or private family as a tutor or schoolmaster, shall before his admission subscribe the declaration following, viz. “ I A. B. do declare, that I will conform to the 6 liturgy of the church of England as it is now by law established.” Which shall be subscribed before the archbishop, bishop, or ordinary of the diocese; on pain that every person so failing in such subscription shall forfeit his school, and be utterly disabled and ipso facto deprived of the same, and the said school shall be void as if such person so failing were naturally dead.
And if any schoolmaster, or other person, instructing or teaching youth in any private house or family as a tutor or schoolmaster, shall instruct or teach any youth as a tutor or schoolmaster, before licence obtained from the archbishop, bishop, or ordinary of the diocese, according to the laws and statutes of this realm, (for which he shall pay 12d. only) and before such subscription as aforesaid; he shall for the first offence suffer three