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 [330] 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 & 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 "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

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. § 8, 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.

examine a

[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 may 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 ter applying granting of it until the party would submit himself to be examined" touching his sufficiency in learning." Rex v. the Arch- his moralbishop of York, 6 Term Rep. 490.]

for a li

cence, as to

learning.

ity, reliAfter licence obtained; the schoolmaster must take the oaths gion, and and exhibit a certificate of his having received the sacrament, at 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 himself 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.

school-mas

ters.

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. § 2. 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

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 patronage is not in the ordinary, but in feoffees or other patrons; the ordinary cannot put a man out: and a prohibition was granted; the suggestion for which was, that he came in by election, and that it was his freehold. 2 Keb. 544.

Upon which Dr. Gibson justly observes, that if this be any 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.

Whether

the ordinary may proceed to

deprivation,

for teaching without

licence. (2)

shall have the prefer

ence in

teaching

schools.

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 otherwise well able to teach youth, and will willingly so do, for the better increase of his living, and training up of children in principles of true religion; we will and ordain, that a licence to 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 observed catechism, heretofore by public authority set forth. And as

therein.

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] 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. 1 P. 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 "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; "every where to be taught for the use of learners, and for avoid"ing the hurt in changing of schoolmasters."

Subject to a 8. By the 43 El. c. 4. 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 there is no or governors appointed by the founder; the lord chancellor may award commissions under the great seal to inquire and take order therein.

visitor.

Whether

the visitors' power is conclu

sive. (3)

9. Whether a mandamus lieth for restoring a schoolmaster or usher, when in fact they have been deprived by the local visitors, is doubtfully spoken of in the books of common law; and the

(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. 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.

Local