170

LAY PATRONAGE AND CHURCH CONTROL.

slow national movement that culminated in the educational system of to-day.

Educational Law Cases, 1670-1702.

The series of law cases here dealt with are important, as they show clearly the position adopted both by Church and State towards education, and present the continuity of idea that inspired the Church in its claim of control over, and the courts in their bias towards freedom of, education. The first case was decided in 1670' in the King's Bench. It is William Bates's Case and is reported as follows: "A Prohibition was prayed to the Commissary of the Arch-Deacon of Richmond, to stay a Suit against Bates a Schoolmaster; who, as it was alledged, taught School without the Bishop's Licence; and it was granted, because they endeavoured to turn him out; whereas they could only censure him, he coming in by the Presentation of the Founder." This brief decision is important because it opened the way for freedom from ecclesiastical control. The nominee of a founder, or of a lay patron, could not be ejected by the Bishop. It is possible that this decision in some measure accounts for the vast number of educational endowments that were founded in the last quarter of the seventeenth and the first quarter of the eighteenth century.

Bates's Case, 1670.

The next case is Cory v. Pepper, decided in the year 1679 before the King's Bench. This case decided that the spiritual court could hold plea of a matter prohibited by statute if they proceeded upon the canons and not for the recovery of a statutory penalty. Where there was a suit in the spiritual court for teaching a school without licence in contempt of the

See

1 "Ventris's Reports, vol. 1. p. 41; Modern Reports, vol. 1. p. 3. the same case in Keble's Reports, vol. 11. pp. 538, 544, sub nomine Bales v. Kendall. There it was held that where patronage is in feoffees or other patrons and not in the ordinary he cannot eject a schoolmaster. As to such lay patronage see Withnell v. Gartham, Espinasse's Reports, vol. 1. p. 320, and The Bishop of Carlisle's case (1616), Modern Entries, vol. 2, p. 410. See also ibid. p. 403. As to licences see Wood v. Hill, Comberbach's Reports, p. 324. 2 Levinz's Reports, vol. II. p. 222.

THE LIMITS OF CHURCH CONTROL.

Cory v.

171

Pepper, 1679.

canons it seems to have been held that canons requiring a schoolmaster to be licensed by the Bishop of the diocese to the end that schoolmasters might be fit to instruct their scholars in the true principles of religion were neither contrary to the laws of the land nor derogatory to the King's prerogative. This decision, if it stood alone, would appear to give the Church complete licensing power derived from the canons over all schoolmasters. The case, however, is very shortly reported, the wording of the report is ambiguous, and its value must be estimated in connexion with later and fuller cases on similar points. This case is succeeded by that of Chedwick v. Hughes, decided in 1699'. In this case a prohibition was prayed to stay a suit in the ecclesiastical court against a schoolmaster for teaching a school without licence pursuant to the statute 1 Jac. I. c. 4, s. 9, "upon a Suggestion, that the said Statute gives a penalty of 40s. per diem against every such School-master, and that by Law nemo puniri debet bis pro uno & eodem delicto.

"Et per Curiam, A Prohibition was granted, and so it was in the case of Oldfeld versus Sir Richard Raines, upon the like Suggestion." The importance of this case is the decision by the court that where there is a civil remedy a suit in the ecclesiastical courts will not lie.

Cox's Case,

1700.

The fourth case is one of importance, as it shows the limit of ecclesiastical jurisdiction over schoolmasters. It is Cox's case, decided in the year 17003. Cox, a schoolmaster, had been libelled in the spiritual court at Exeter for teaching school without licence from the Bishop, and thereupon an application on behalf of Cox was made to the Lord Keeper for a prohibition. The report shows that even at this date a judge, though weak, was open to conviction. In answer to the application for a 1 Carthew's Reports, p. 464.

2 Peere Williams's Reports, vol. 1. p. 29.

172 THE CHURCH AND ELEMENTARY SCHOOLS.

prohibition Lord Keeper Wright said: "I always was, and still am of opinion, that keeping of school is by the old laws of England of ecclesiastical cognisance, and therefore let the order for a prohibition be discharged.

"Whereupon I [namely Peere Williams] moved, that this libel was for teaching school generally, without showing what school; and court christian could not have jurisdiction of writing schools, reading schools, dancing schools, etc.

66

'To which the Lord Keeper assented, and thereupon granted a prohibition as to the teaching of all schools, excepting grammar schools, which he thought to be of ecclesiastical cognisance'.

The resolution in Cox's Case is sufficiently remarkable. It decided that there was not and never had been any ecclesiastical jurisdiction over any schools save grammar schools— no jurisdiction over writing schools, or over reading schools }; no jurisdiction in fact over strictly elementary education. It will be remembered that in Scotland the Church in early times expressly claimed jurisdiction over elementary schools, and it is a matter for extreme surprise that we should find a decision in the last year of the seventeenth century -declaring that at common law the Church of England had no such jurisdiction. The importance of the decision lay at the time in the fact that throughout the country elementary schools for the poor could be started without invoking the express machinery of the Church.

In the next year, the freedom of elementary schools from control was even more strongly emphasised in the case of Rex v. Douse, decided in 1701. In this case the defendant was indicted under

Rex v. Douse, 1701.

1 In a side note in the 1826 edition of Peere Williams we find the statement" Salk. 672, the same point argued but no resolution." This was the case of Matthews v. Burdett, referred to infra, p. 175. Cox's case limited the wide area of Church control. A claim to license midwives had been rejected in 1634. See Benskin v. Crispe (Modern Entries, vol. 2, p. 410). 2 Lord Raymond's Reports, vol. 1. p. 672.

THE KING'S BENCH AND THE COURT CHRISTIAN. 173

statute 1 Jac. I. cap. 4, for having kept school without a licence of the Bishop of the diocese. It was argued for the defence that "this school was not within the act of James I. because the act extends but to grammar schools, and this school was for writing and reading." On this ground the indictment was quashed. We thus see that neither Church nor State had at this time any control over elementary education. The control of both the spiritual and the civil tribunal was limited to grammar schools.

Rex v. Hill, 1701.

In the same year (1701) was decided in the Easter Term, by Chief Justice Holt, the very important case of the King v. Hill'. From the two reports of this case it appears that the master of a grammar school, teaching without a licence from the ordinary, was excommunicated by the spiritual court for the non-payment of costs assessed against him in the spiritual court, "in quodam negotio puerorum educationis sive instructionis sine aliqua licentia in ea parte prius obtenta." The Court of King's Bench quashed the writ de excommunicato capiendo for uncertainty since the kind of teaching was not referred to in the writ and it might have been a teaching to dance or fence and not a teaching of letters. In the course of the case (as reported in the Modern Reports), Sir John Holt, Chief Justice, with reference to a doubt raised as to whether teaching even a grammar school without licence were punishable in the spiritual court, especially since 14 Car. II. c. 4 and other statutes inflicting the penalty of 40s. on such offenders', said:

1 The case is reported shortly in Salkeld's Reports, vol. 1. p. 294, under the heading of excommunicato capiendo; and it is also reported somewhat fully in Modern Reports, vol. xII. p. 518, case 867. There is apparently a third Report from which Lord Stanley quoted in the House of Commons in 1839, but this Report has not been traced.

2 See the case of The King and Patrick v. Queens' College, Cambridge, reported in Keble's Reports, vol. 1. pp. 289, 294, 298, 551, 610, 665, 833. This case was argued on eight occasions between 1661 and 1664. The question before the Court was whether a mandamus lay to the Senior Fellow from the King's Bench to swear and admit Dr Patrick to the

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.