Sect. 15. school, the exemption of such scholar from attending prayer or religious worship, or from any lesson or series of lessons on a religious subject, and that such scholar shall be exempted accordingly, and that a scholar shall not by reason of any exemption from attending prayer or religious worship, or from any lesson or series of lessons on a religious subject, be deprived of any advantage or emolument in such endowed school or out of any such endowment to which he would otherwise have been entitled, except such as may by the scheme be expressly made dependent on the scholar learning such lessons.

As to religious education

They shall further provide that if any teacher, in the course of other lessons at which any such scholar is in accordance with the ordinary rules of such school present, teaches systematically and persistently any particular religious doctrine from the teaching of which any exemption has been claimed by such a notice as is in this section before provided, the governing body (g) shall, on complaint made in writing to them by the parent, guardian, or person having the actual custody of such scholar, hear the complainant, and inquire into the circumstances, and, if the complaint is judged to be reasonable, make all proper provisions for remedying the matter complained of.

(a) Where a scheme gives the governing body power to make regulations as to religious instruction, it must provide for a year's notice of any alteration in such regulations: End. Schools Act, 1873, s. 11, post.

(b) Sect. 19 of this Act, post. The provisions of this section must be embodied in the scheme, unless the case falls within sect. 19: Re Free Grammar School, &c. at Hemsworth, 12 App. Cas. at p. 447.

(c) Defined by sect. 6 of this Act, ante.

(d) Defined by sect. 5 of this Act, ante.

(e) The Charity Commissioners: End. Schools Act, 1874, ss. 1 and 10, post.

(ƒ) As to the service of notices, see sect. 56 of this Act, post.

(g) Defined by sect. 7 of this Act, ante.

16. In every scheme (except as hereinafter mentioned) (b) relating to an endowed school the Commisin boarding sioners (e) shall provide that if the parent or guardian of,

schools (a).

or person liable to maintain or having the actual custody Sect. 16. of, any scholar who is about to attend such school, and who but for this section could only be admitted as a boarder, desires the exemption of such scholar from attending prayer or religious worship, or from any lesson or series of lessons on a religious subject, but the persons in charge of the boarding houses of such school are not willing to allow such exemption, then it shall be the duty of the governing body (d) of such school to make proper provisions for enabling the scholar to attend the school and have such exemption as a day scholar, without being deprived of any advantage or emolument to which he would otherwise have been entitled, except such as may by the scheme be expressly made dependent on the scholar learning such lessons. And a like provision shall be made for a complaint by such parent, guardian, or person as in the case of a day school (e).

(a) See note (a) to the last section.

(b) Sect. 19 of this Act, post. See note (b) to the last section.

(c) The Charity Commissioners: see sects. 1 and 10 of the End. Schools Act, 1874, post.

(d) Defined by sect. 7 of this Act, ante.

(e) See the last section.

body not

qualified on

religious

17. In every scheme (except as hereinafter men- Governing tioned) (b) relating to any educational endowment the to be disCommissioners (c) shall provide that the religious opinions ground of of any person, or his attendance or non-attendance at any opinions (a). particular form of religious worship, shall not in any way affect his qualification for being one of the governing body of such endowment.

(a) By sect. 6 of the End. Schools Act, 1873, post, it is provided that where, under the express terms of the original instrument of foundation, the holder of any particular office is a member of the governing body, nothing in the present section is to prevent the holder for the time being of such office from being retained as such member.

Under this section "it has been decided by her Majesty in Council that the holder for the time being of an ecclesiastical office in the Church of England cannot lawfully be made an ex officio member of the governing body of an educational endowment; the commissioners being by that section required to provide, in every scheme to which it is applicable, that the reli

Sect. 17

gious opinions of any person shall not in any way affect his qualification for (a), (b), (c). being one of the governing body.' The ground of that decision may be presumed to have been that particular religious tenets are implied in, and are necessary conditions of, the tenure of an ecclesiastical office, and must therefore 'affect the qualification' consisting in the incumbency of such an office": per Lord Selborne in Re Hodgson's School, 3 App. Cas. at pp. 865, 866.

Masters not to be required to be in holy orders (a).

Schools excepted from provisions as to religion.

(b) Sect. 19 of this Act, infra. See note (b) to sect. 15 of this Act, ante.

(c) Now the Charity Commissioners: see sects. 1 and 10 of the End. Schools Act, 1874, post.

18. In every scheme (except as hereinafter mentioned) (b) relating to an endowed school the Commissioners (c) shall provide that a person shall not be disqualified for being a master in such school by reason only of his not being or not intending to be in holy orders.

(a) Schemes must also provide that masters need not be licensed by the ordinary sect. 21 of this Act, post. By sect. 18 of the End. Schools Act, 1873, post, a graduate of any university in the United Kingdom is to be deemed qualified to be a master, notwithstanding that the statutes require him to be a graduate of Oxford or Cambridge.

(b) Sect. 19 of this Act, infra. See note (b) to sect. 15 of this Act, ante. See, also, Ross v. Charity Commissioners, 7 App. Cas. 463, cited in note (b) to sect. 19, post.

(c) The Charity Commissioners: End. Schools Act, 1874, ss. 1 and 10, post.

19. A scheme relating to

(1.) any school which is maintained out of the endowment of any cathedral or collegiate church (a), or forms part of the foundation of any cathedral or collegiate church; or

(2.) any educational endowment (b), the scholars educated by which are, in the opinion of the Commissioners (c) (subject to appeal to her Majesty in Council as mentioned in this Act) (d), required by the express terms of the original instrument of foundation or of the statutes or regulations made by the founder or under his authority, in his lifetime or within fifty years after his death, (which terms have been observed down to the commencement of this Act,) to learn or to be

instructed according to the doctrines or formu- Sect. 19. laries of any particular church, sect, or denomi

nation,

is excepted from the foregoing provisions respecting religious instruction, and attendance at religious worship(e), (other than the provisions for the exemption of day scholars from attending prayer or religious worship, or lessons on a religious subject, when such exemption has been claimed on their behalf,) and respecting the qualification of the governing body (f) and masters (g) unless the governing body, constituted as it would have been if no scheme under this Act had been made (h), assents to such scheme.

And a scheme relating to any such school or endowment shall not, without the consent of the governing body thereof, make any provision respecting the religious instruction or attendance at religious worship of the scholars, (except for securing such exemption as aforesaid,) or respecting the religious opinions of the governing body or masters (i).

(a) With regard to cathedral schools, see note (e) to sect. 14 of this Act, ante.

(b) Defined by sect. 5 of this Act, ante.

charities.

By sect. 7 of the End. Schools Act, 1873, post, this sub-section is Denomiextended to educational endowments originally given to charitable uses, national since the Toleration Act (1 Will. & M. c. 18), if, by the express terms of the original instrument of foundation, or of the statutes or regulations made by the founder, or under his authority in his lifetime, or within fifty years after his death, it is directed that the majority of the governing body, or persons electing the governing body, or the principal teachers or scholars, shall be members of a particular denomination.

This sub-section requires the denominational purpose to be manifested by Must be the express terms either of the original instrument of foundation, or of some manifested in express statutes or regulations. It is clear that the words "original instrument of terms. foundation," and "statutes," cannot be satisfied without some instrument in writing. It is, perhaps, not necessary to say that "regulations" within the meaning of the clause could not be oral, but there would be great difficulty in the proof of any such oral regulations, even if they were binding. It would be necessary to find, by proper evidence, the express terms of some regulations made by the founder, or by his authority, and if by his authority, then not later than fifty years after his death. Not only every uncertain, but also every merely probable, implication from practice alone is excluded. "There is all the difference in the world between a practice for

Sect. 19 (b).

Charities

not denominational.

Original subscribers founders.

the time being, and statutes or regulations expressly requiring that such a practice should always be observed. The clause in the Act would not be satisfied without statutes or regulations in express terms; and the manifest purpose of the clause would be defeated as to almost every school in the kingdom, not of very recent origin indeed, if it were held that mere practice should be taken as sufficient evidence of there having been, at some time or other, regulations made under the authority of the founder expressly requiring that practice always to be observed": per Lord Selborne, in Re St. Leonard, Shoreditch, Parochial Schools, 10 App. Cas. at pp. 307, 309.

In Ross v. Charity Commissioners, 7 App. Cas. 463, the original foundation made no provision for the religious education of scholars, but by a scheme approved by the Court of Chancery in 1867, it was provided that the masters should be members of the Church of England, and that the instruction to be given should "include the principles of the Christian religion according to the doctrine of the Church of England." It was held that the case did not fall within this clause, that sect. 18 of this Act consequently applied, and that a clause in a proposed scheme that "no person shall be disqualified for being a master in such school by reason only of his not being, or not intending to be, in holy orders," was in accordance with the Act. And their Lordships said (at p. 470), "The words of the Act clearly apply to the original foundation by the founder or donor of the property for charitable uses, and to statutes and regulations made by him, and cannot be held to comprehend a scheme of the Court of Chancery appropriating to educational purposes property which had been already given for charitable uses."

In Re Free Grammar School, &c. at Hemsworth, 12 App. Cas. 444, a scheme established by the Court of Chancery in 1861, which was the instrument by which the endowment was then governed, provided that religious instruction according to the Church of England should be given "to such of the boys whose parents, or persons standing to them in loco parentis, shall be in communion with that Church, and to such other boys whose parents, or other persons standing to them in loco parentis, shall not object in writing to their receiving such instruction." It was held, that the endowment was not one the scholars educated under which were required to be instructed according to the doctrines of any particular church; and that whether, under the original statutes, the charity was denominational or not was immaterial, because the effect of the scheme was that the terms of the original statute had not "been observed down to the commencement of this Act."

In Re St. Leonard, Shoreditch, Parochial Schools, 10 App. Cas. 304, a charity school had been founded by subscriptions in 1705 and 1706, and had no instrument of foundation or statute, and there was no evidence that there had ever been regulations within this clause, except certain entries in books, showing that, as a matter of fact, the children were taken to church, and probably instructed in the catechism, and, except certain regulations made seventy years after the foundation, as to which there was no evidence that they were made by the authority of the founders. It was held that the charity was not denominational within this clause.

Where a charity is established by subscription the original subscribers only are the founders, and subsequent subscriptions do not constitute a new foundation, but are accretions to the original foundation: Re St. Leonard, Shoreditch, Parochial Schools, supra.