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months' imprisonment without bail; and for every second, and other such offence, shall suffer three months' imprisonment without bail, and also forfeit to the king the sum of 51. 98, 9, 10, 11.
M. 9 G. 2. The King against The bishop of Litchfield and Coventry. A mandamus issued to the bishop, to grant a licence to Rushworth a clergyman, who was nominated usher of a free grammar school within his diocese. To which he returned, that a caveat had been entered by some of the principal inhabitants of the place, with articles annexed, accusing him of drunkenness, incontinency, and neglect of preaching, and reading prayers; and that the caveat, being warned, he was proceeding to inquire into the truth of these things when the mandamus came: and therefore he had suspended the licensing him. And without entering much into the arguments, whether the bishop hath the power of licensing; the court held, that the return should be allowed as a temporary excuse: for though the act of the 13 & 14 C. 2. c. 4. obligeth them only to assent to and subscribe the declaration, yet it adds, according to the laws and statutes of this realm which presupposeth some necessary qualifications, which [ 331 ] it is reasonable should be examined into. Str. 1023.
[The ordinary may also examine the party applying for a The ordilicence to teach a grammar school, as to his learning, as well as nary
examine a his morality and religion; and it is a good return to a mandamus schoolmasto the ordinary to grant a license, to state that he suspended the terapplying granting of it until the party would submit himself to be exa- for a li
cence, as to mined “ touching his sufficiency in learning.” Rex v. the Arch- his moralbishop of York, 6 Term Rep. 490.]
ity, reli. After licence obtained ; the schoolmaster must take the oaths glor and exhibit a certificate of his having received the sacrament, at
learning. the quarter sessions, as other persons qualifying for offices (g)
And by Can. 137. Every schoolmaster shall, at the bishop's first visitation, or at the next visitation after his admission, exhibit his licence, to be by the said bishop either allowed, or (if there be just cause) disallowed and rejected.
3. By the 11 & 12 W. c. 4. If any papist, or person making Roman profession of the popish religion, shall keep school, or take upon catholic
school-mashimself the education or government or boarding of youth ; he shall be adjudged to perpetual imprisonment, in such place within
(g) He must also take the oaths, and sign such of the oaths and declarations required by the 13 & 14 Car. 2. c. 4. & 8. and 25 Car. 2. c. 2. $ 2. as are not abolished, and the new oaths, or oaths substituted in lieu thereof; and receive the sacrament within three months after admission; the oaths seem to be the oaths of allegiance, abjuration, and supremacy. If not qualified, he is ipso facto deprived, notwithstanding a peremptory mandamus had been granted for restoring him. Serjt. Hill's MSS.
this kingdom, as the king by advice of his privy council shall appoint. § 3.
[But by 31 G. 3. c. 32. § 13–17. No ecclesiastic or other person professing the Roman catholic religion who shall take and subscribe the oath of allegiance, abjuration, and declaration thereby prescribed (for which see Daths, 20. B.), shall be prosecuted in any court whatsoever for teaching and instructing youth as a tutor or schoolmaster. But before any person shall be permitted to keep a school for the education of youth, his or her name as a Roman catholic schoolmaster or schoolmistress shall be recorded at the quarter or general session of the peace for the county or other division or place where such school shall be situated, by the clerk of the peace of the said court, who is to record such name and description, and to give a certificate thereof on demand. Provided that nothing in that act contained, shall make it lawful to found, endow, or establish any religious order or society of persons bound by monastic or religious vows, or any school, academy, or college, by persons professing the
Roman catholic religion, within these realms, or the dominions [ 332 ] thereunto belonging; and that all uses, trusts, and dispensations,
whether of real or personal property, which immediately before the 24th June 1791, shall be deemed to be superstitious or unlawful, shall continue to be so deemed and taken. Provided also that no person professing the Roman catholic religion shall obtain or hold the mastership of any college or school of royal foundation, or of any endowed college or school for the education of youth, or shall keep a school in either of the universities, or shall receive into his school for education the child of any protestant father.]
By the 1 W. c. 18. commonly called the act of toleration; neither the 17 C. 2. c. 2. (against dissenters teaching public or private schools on 40s. penalty, now repealed by 52 G. 3. C. 155. $ 1.] nor the before-recited act of the 23 Eliz. c. 1., nor any other made against papists or popish recusants (except as therein excepted), shall extend to protestant dissenters qualified according to that act.
And by the 19 G. 3. c. 44. 92. No dissenting minister, nor any other protestant dissenting from the church of England, who shall take the oaths and subscribe the declaration directed by the said act of 1 W., and another declaration injoined by this present act (for which see title Dissenters), shall be prosecuted in any court whatsoever for teaching and instructing youth as a tutor or schoolmaster. $ 3. Provided that this shall not extend to the enabling any person dissenting from the church of England to hold the mastership of any college or school of royal foundation, or of any other endowed college or school for the education of youth, unless the same shall have been founded since the first
ich see another de declaration England, hor
year of William and Mary, for the immediate use and benefit of protestant dissenters.
5. In Bales's case, M. 21 C. 2., it was held, that where the pa- Whether tronage is not in the ordinary, but in feoffees or other patrons; the ordi
nary may the ordinary cannot put a man out: and a prohibition was . granted; the suggestion for which was, that he came in by deprivation, election, and that it was his freehold. 2 Keb. 544.
without Upon which Dr. Gibson justly observes, that if this be any licen bar to his being deprived by ordinary authority; the presentation to a benefice by a lay patron, and the parson's freehold in that benefice, would be as good a plea against the deprivation of the parson by the like authority. And yet this plea hath been always rejected by the temporal courts. And in one circumstance at least, the being deprived of a school, notwithstanding the notion of a freehold, is more naturally supposed, than deprivation of a benefice; because the licence to a school is only during pleasure, whereas the institution to a benefice is absolute and unlimited. Gibs. 1110.
6. By Can. 78. In what parish church or chapel soever there In what is a curate, which is a master of arts, or bachelor of arts, or is case curates
shall have otherwise well able to teach youth, and will willingly so do, for:
for the preferthe better increase of his living, and training up of children in ence in principles of true religion; we will and ordain, that a licence to teaching
schools. teach youth of the parish where he serveth, be granted to none by the ordinary of that place, but only to the said curate; provided always, that this constitution shall not extend to any parish or chapel in country towns, where there is a public school founded already; in which case, we think it not meet to allow any to teach grammar, but only him that is allowed for the said public school.
7. By Can. 79. All schoolmasters shall teach in English or Order to be Latin, as the children are able to bear the larger or shorter
con i hortos observed
therein. catechism, heretofore by public authority set forth. And as often as any sermon shall be upon holy and festival days, within the parish where they teach, they shall bring their scholars to the church where such sermon shall be made, and there see them quietly and soberly behave themselves, and shall examine them at times convenient after their return, what they have borne away of such sermons. Upon other days, and at other times, they shall train them up with such sentences of holy scriptures, as shall be most expedient to induce them to all godliness. And they shall teach the grammar set forth by king Henry the eighth, and continued in the times of king Edward the sixth and queen 334 7 Elizabeth, of noble memory, and none other. And if any school
(2) As to election of schoolmaster under deed of founder, see With ell, clerk, v. Gartham, clerk, 1 Esp. N. P. C. 322.
master, being licensed, and having subscribed as is aforesaid, shall offend in any of the premises, or either speak, write, or teach against any thing whereunto he hath formerly subscribed, if upon admonition by the ordinary he do not amend and reform himself, let him be suspended from teaching school any longer.
The larger or shorter catechism] The larger is that in the book of common prayer : The shorter was a catechism set forth by king Edward the sixth, which he by his letters patents commanded to be taught in all schools; which was examined, reviewed, and corrected in the convocation of 1562, and published with those improvements in 1570, to be a guide to the younger clergy in the study of divinity, as containing the sum and substance of our reformed religion. Gibs. 374.
Shall bring their scholars to the church] E. 10 & 11 W. Belcham and Barnardiston. The chief question was, whether a schoolmaster might be prosecuted in the ecclesiastical court for not bringing his scholars to church, contrary to this canon. And it was the opinion of the court that the schoolmaster, being a layman, was not bound by the canons. 1P. Will. 32.
Grammar] Compiled and set forth by William Lilly and others specially appointed by his majesty : in the preface to which book it is declared, that “ as for the diversity of grammars, “ it is well and profitably taken away by the king's majesty's 66 wisdom; who foreseeing the inconvenience, and favourably “ providing the remedy, caused one kind of grammar by sundry “ learned men to be diligently drawn, and so to be set out only; 6 every where to be taught for the use of learners, and for avoid
6 ing the hurt in changing of schoolmasters.” Subject to a 8. By the 43 El. c.8. Where lands, rents, annuities, goods, commission of pious or money, given for maintenance of free schools or schools of uses, where learning, have been misapplied, and there are no special visitors
or governors appointed by the founder; the lord chancellor may visitor.
award commissions under the great seal to inquire and take order
therein. Whether 9. Whether a mandamus lieth for restoring a schoolmaster or the visitors'
usher, when in fact they have been deprived by the local visitors, power is conclu- is doubtfully spoken of in the books of common law; and the sive. (3)
(3) Where the king is founder, the crown is always visitor : but where a private person is founder, his heirs are visitors : but the founder may vest a visitatorial power in any other person or his heirs. Eden v. Foster, case of Birmingham school, 2 P.W.325. Gilb. Rep. 178. Sel. Ch. Ca. 36. And in the latter case the visitor being local, the court cannot interpose by granting a commission. Att. Gen. v. Price, case of Berkhampstead school, 3 Atk. 196. Local visitors only visit every three years, but may hear complaints in the meantime, and it was said that if a visitor's reward is too small, the court may augment it. S. C.
pleadings upon them seem not to touch the present point, but to turn chiefly upon this, whether they are to be accounted offices of a public or private nature. Gibs. 1110.
Thus in the case of The King against the bailiffs of Morpeth. A [ 335 ] mandamus was granted, to restore a man to the office of underschoolmaster of a grammar school at Morpeth, founded by king Edward the sixth : the same being of a public nature, being derived from the crown. Str. 58.
And the distinction seemeth to be this: If they shall be deemed of a public nature, as constituted for public government; they shall-be subject to the jurisdiction of the king's courts of common law; but if they be judged matters only of private charity, then they are subject to the rules and statutes which the founder ordains, and to the visitor whom he appoints, and to no other. L. Raym. 5.
In the case of colleges in the universities, whether founded by the king or by any other, it seemeth now to be settled, that they are to be considered as private establishments, subject only to the founder, and to the visitor whom he appointeth; and it doth not seem easy to discern any difference between schools and colleges in this respect. (h)
10. H. 1725. Eden and Foster. The free grammar school of Governors Birmingham was founded by king Edward the sixth, who endowed
are not vithe said school, and by his letters patent appointed perpetual go- sitors. vernors thereof, who were thereby enabled to make laws and ordinances for the better government of the said school; but by the letters patent no express visitor was appointed, and the legal estate of the endowment was vested in these governors. After a commission had issued under the great seal to inspect the management of the governors, and all the exceptions being already heard and over-ruled, it was now objected to this commission, that the king having appointed governors, had by implication made them
The founder of Woodbridge Free school directed the heirs male of his feoffees to appoint a master; and on their default, that the right of election should be in the curate and churchwardens, and six chief inhabitants. The chief inhabitants at the time of the foundation, and the heir of the last surviving feoffee, could not be discovered, so that the lord Chancellor became visitor in right of the crown. Two persons were elected at the last vacancy; and on petition the chancellor declared both elections void. He doubted the visitor's power to elect a master, but directed a reference to the attorney-general, to report what directions or alterations would be proper, as to the mode and right of election, and in the orders, &c. of the school ; and what to him should seem most conducive to the interests of the objects of the charity and the furtherance of the donor's intentions. Atto. Gen. v. Black, 11 Ves. 191.
(h) For the general power and jurisdiction of a visitor, see Colleges, 6,7.; and Hospitals, 3.; Charitable Uses.