174 THE LICENCE LIMITED TO GRAMMAR SCHOOLS.

"If there were a canon prohibitory of this matter before the 25 Hen. VIII. c. 19, it is now confirmed by that statute; and there is a canon of Queen Elizabeth, 'De Ludi-magistris'; and without doubt school-masters are in a great measure intrusted with the instruction of youth in principles, and therefore it is necessary they should be of sound doctrine, and in order thereunto subject to the regulation of the ordinary. But prohibitions have deservedly gone to stop proceedings for teaching school without licence, because it is a point never yet determined." At the conclusion of the case Sir John Holt intimated that he had acquainted the Bishops with the matter and that he wished them to be more concise in their signicavits or else they could not have the aid of the King's Bench. It seems clear therefore that, in 1701, if the class of teaching had been specifically mentioned in the signicavit to the writ-and if the class of teaching were grammar school teaching the Court of King's Bench would have upheld the spiritual jurisdiction and would not have quashed the writ.

Mastership of Queens' College, to which he had been elected by a majority of the fellows. The issue of the mandamus depended upon the character of the corporation. If it was purely spiritual the King's Bench had no jurisdiction. It was argued that "mandamus's have been granted to restore Ushers, Schoolmasters, Churchwardens and Parish Clerks," and that the College was not more under the control of the Church than these persons. Mr Justice Kelyng moreover argued (p. 611): "Also all the Law is divided into Temporal and Ecclesiastick, and here is no pretense of suing in Spiritual Courts, but only to Visitors, which are set up as an intermediate Jurisdiction, from whom lieth no Appeal, which is derogatory to the Justice of the Nation: Every founder may make Laws, but the Common Law shall judge whether they be broken, or not, else it would set up an uncontrolable Jurisdiction against the King." Jones (p. 665) argued further that "a Free-School or WorkHouse is as much bound ad orandum as Colledge, and therefore by the Common Law this Court hath a proper Jurisdiction." And it was further argued that though a mandamus did not lie in the case of a licensed schoolmaster "but if uncorporated, it lieth well enough."

The judges were eventually equally divided in opinion, the mandamus did not issue and Dr Patrick had to give way to Dr Sparrow. In the same year (1662) it was held in Dr Widdrington's case (Levinz's Reports, vol. 1. p. 23) that a mandamus to restore a fellow of a college does not lie where there is a visitor to the college.

THE GLOUCESTER GRAMMAR SCHOOL CASE, 1410. 175

Matthews v. Burdett, 1702.

In 1702 in the Queen's Bench the case Matthews v. Burdett was argued. In this case, upon which no judgment was ever delivered, great efforts were made to establish the position that schoolmasters were not under the control of the Church. Dr Lake, a civilian, argued at length that "a School-master is a Lay-Employment, and was formerly under the Care of the Civil Magistrate: Stillingfleet's Orig. Brit. 210, 212, 213, That the Common Law takes no Notice of it but as Temporal. Vide 11 H. 4 Poph. 170; Reg. 35, And that the only Mention of it before the Reformation, is Anno Domini 1408, Per Lyndewode 282. That School-masters permit not their Scholars to dispute of Religion, under Penalty of being censured for Heresy, to which every Body was liable; which Provision was to prevent the spreading of Wickliffe's doctrine: That no law or Canon required a Licence till the Council of Lateran, Anno Domini 1215, Decret. 6, Tit. 5, cap. 1, 2, 3, and that is, That there shall be a Schoolmaster in every Cathedral, and that he shall be licensed by the Bishop. That the several Acts of Parliament which require the School-master's taking a Licence from the Bishop, shew it was not necessary before, nor was there any such Usage or Practice that can be made appear. Vide Stat. 23 Eliz. c. 2. 1 Jac. I. c. 4, 14 Car. II. c. 4." On the other side Cowper argued that it appeared by custom that the Bishop was to superintend the education of youth. No decision was given in this case, which however is important as showing that both civilians and common law advocates recognised the common law as ascertained in the Gloucester Grammar School Case. It is curious that neither side cited Cox's Case, decided two years before. That case, as we have seen, excluded all schools but grammar schools from spiritual

1 Salkeld's Reports, vol. 2, p. 672; ibid. vol. 3, p. 318.

2 Lyndwood, the statute 2 Hen. IV. c. 15, and immemorial usage were relied on by counsel in resisting this application for a prohibition: see p. 36 supra.

176

RELIEF FOR DISSENTING SCHOOLMASTERS.

control. Burdett's Case endeavoured without success to throw off such control from all schools whatsoever.

Eighteenth

Century

education

statutes.

43. At this point it will be convenient to refer to various Acts that affected education in its relation to the Established Church. An Act that throws some light on the rapid creation of educational foundations in the early Eighteenth Century was passed in 1695-61. In order to encourage learning and to augment the revenues of schools and colleges already founded the King was empowered by this Act to grant licences to alienate land and to hold it in mortmain. The chief question, however, that was in the mind of Parliament was as to the expediency of allowing Dissenters and Roman Catholics to exercise their religion and to teach their children. The Acts of Toleration secured to Dissenters the right to practise their religion upon specified terms, and another statute3 passed in 1714 to some extent relieved Dissenters from the disabilities of teaching.

We may quote certain portions of this Act for the purpose of exhibiting the relief granted. Whereas ran the preamble "notwithstanding the said Act [14 Car. II. c. 4], sundry Papists and other Persons dissenting from the Church of England have taken upon them to instruct and teach Youth as Tutors or School-masters and have for such Purpose openly set up Schools and Seminaries whereby if due and speedy Remedy be not had great Danger might ensue to this Church." Consequently the Act re-enacted and further provided that no licence should be granted unless Sacrament Certificate was produced and the oaths of Allegiance and Supremacy were taken, and the Declaration of 25 Car. II. c. 2, was subscribed. Persons attending any meeting or assembly for the exercise of religion "where Her Majesty (whom God long preserve) and the Elector of Brunswick or such others 1 W. & M., c. 18, and 10 Anne, c. 6 (1711). 3 13 Anne, c. 7.

1 7 & 8 W. III. c. 37.

2

ROMAN CATHOLIC AND DISSENTING SCHOOLMASTERS. 177

as shall from time to time be lawfully appointed to be prayed for shall not be there prayed for in express words....shall from thenceforth be incapable of teaching any publick or private School or Seminary or instructing any Youth as Tutor or Schoolmaster." All licensed persons were obliged to teach the Church Catechism. The Ordinary might cite and proceed against persons keeping school without licence; but persons might, after conformacy for a year, receive the licence to teach.

The Act did not extend to any person who as a tutor or schoolmaster should instruct youth in reading, writing, arithmetic, or any part of mathematical learning, so far as such mathematical learning related to navigation, or any mechanical art only, and so as such reading, writing, arithmetic, or mathematical learning should be taught in the English tongue only. This Act was repealed in 1719'.

It was not till sixty-five years later that any further relief by statute was granted to dissenting schoolmasters. By a statute of 17792, an Act still in force, it is provided by section 2 that "No Dissenting Minister, nor any other Protestant dissenting from the Church of England, who shall... make and subscribe...the Declaration herein before mentioned, shall be prosecuted in any Court whatsoever, for teaching and instructing Youth as a Tutor or School-Master; any Law or Statute to the contrary notwithstanding." Section 3 is as follows: "Provided always, That nothing in this Act contained shall extend, or be construed to extend, to the enabling of any Person dissenting from the Church of England to obtain or 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 the reign of their late Majesties King William and Queen Mary, for the immediate Use and Benefit of Protestant Dissenters."

1 5 Geo. I. c. 4, s. 1.

2 19 Geo. III. c. 44.

178

THE COURTS AND CHURCH CONTROL.

The same relief was granted in 1790-1 to Roman Catholics by a statute' which enacted That no Ecclesiastick or other Person professing the Roman Catholic religion, who shall take and subscribe the Oath of Allegiance, Abjuration and Declaration herein before mentioned and appointed to be taken and subscribed as aforesaid, shall be prosecuted in any Court whatsoever, for teaching and instructing Youth, as a Tutor or Schoolmaster, any Law or Statute to the contrary notwithstanding." This provision as to taking certain oaths has since been repealed, but it is still necessary for schoolmasters who are not Roman Catholics and are not members of the Church of England to take the declaration of 1779. Section 14 of the Act of 1790 provides 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 other endowed College or School for the Education of Youth or shall keep a School in either of the Universities of Oxford and Cambridge." So much of this section as related to the Universities of Oxford and Cambridge and Durham was repealed by an Act of 18723. Considering the general drift of public opinion, it is sufficiently remarkable that at the present day Protestant Dissenters should still be under an obligation to make the declaration contained in the Act of 1779 while no obligation of this kind attaches to Roman Catholics.

Educational Law Cases (1734-1837).

44. We may now deal with certain important law cases which will show the views of the judges as to the educational position. In the case of The King v. The Bishop of Lichfield, decided in 1734, Lord Hardwicke, Chief Justice, took up a doubting position as to ecclesiastical authority over even grammar

1 31 Geo. III. c. 32, s. 13.

3 34 & 35 Vict. c. 26, s. 8.

2 34 & 35 Vict. c. 48.

4 Modern Reports, vol. vII. p. 217 (The Universities Tests Act, 1871); Strange's Reports, vol. 1. p. 1023.