that schoolmasters teach the catechism, bring their scholars on holy and festival days to church, and examine them what they have borne away of the sermons, and at other times shall train them up with such sentences of the Holy Scriptures as shall be most expedient to induce them to all godliness; and if any schoolmaster offend he is [554] to be suspended (Canon 79). And the canons of the year 1640 further enforce the above provisions (1 Card. Syn. 396).

Passing over the period of the Commonwealth, during which Cromwell forbade the orthodox clergy, under great penalties, to teach schools; and directed (Scobell's Acts, Aug. 1654, c. 45) "scandalous, ignorant and insufficient ministers and schoolmasters to be ejected, such ministers and schoolmasters being to be deemed "scandalous in their lives and conversation" as (inter alia) "had publicly and frequently read or used the Common Prayer Book since the first of January 1654, or should at any time thereafter do the same, we come, in 1661, to the Act of Uniformity (13 & 14 Car. 2, c. 4), by which it is enacted that every schoolmaster of a public or private school shall subscribe a declaration, binding him, among other things, to conform to the liturgy of the Church of England as then by law established; and that any schoolmaster teaching before license obtained from the archbishop or Ordinary of the diocese, according to the laws and statutes of this realm, and before such subscription, shall, for the first offence, suffer three months' imprisonment. And, lastly, in 1665, persons who shall not frequent divine service established by the laws of the kingdom are forbidden (17 Car. 2, c. 2, s. 4) to teach any public or private school, upon pain of forfeiting £40 for every offence.

In the reign of William and Mary, and in subsequent reigns, Acts were passed for exempting Protestant Dissenters, and subsequently Romanists, from the stringency of some of the foregoing regulations; but the exemptions in no way apply to the case of a school like the present.

Thus a relaxation of the law as to attendance at church was introduced by the Act 1 Will. & Mary, c. 18, by which [555] it was enacted that the Act 1 Eliz. c. 2, s. 14, for attendance at church, should not be extended to Dissenters taking the oath mentioned in 1 Will. & Mary, c. 1. But all laws for frequenting divine service on Sundays were still to be enforced against all persons but such as came to some place of worship allowed by the Act. (1)

A relaxation as to teaching was made in 1779 by the Act 19 Geo. 3, c. 44, by which it was enacted that no Dissenting minister or other Protestant dissenting from the Church of England who should take the oath there set out and subscribe the declarations therein mentioned should be prosecuted in any Court for teaching and instructing youth as a tutor or schoolmaster. But it was still provided that no Dissenter should hold the mastership of any college or school of Royal foundation, or any other endowed college or school for education of youth, unless founded since the first year of William and Mary, for the immediate use and benefit of Protestant Dissenters. A relaxation in favour of Romanists was made by the Act 31 Geo. 3, c. 32, which enacted that no Roman Catholic taking the oaths appointed by the Act should be prosecuted for teaching as tutor or schoolmaster; but the same Act provided that Roman Catholics were not to hold the mastership of any college or school for the education of youth, nor to keep a [556] school in either of the Universities of Oxford or Cambridge; and that no schoolmaster professing the Roman Catholic religion should keep a school at all until recorded by the clerk of the peace. Notwithstanding this Act, it was determined by Sir William Grant in 1802 that a bequest for the

(1) 1 W. & M. c. 18, s. 16. And, subsequently, by the Act 12 Ann. st. 2, c. 7 (repealed 5 Geo. 1, c. 4), after reciting the Act of Uniformity, and contraventions of it, it was enacted that every person teaching school without declaration and license should suffer three months' imprisonment; that no license should be given without a certificate of the person having received the sacrament in the Church of England within one year; and that, if any person should teach any other catechism than that in the Common Prayer Book, the license should be void, and the person liable to penalties ; that it should be lawful for the bishop of the diocese, or the proper Ordinary, to cite any person keeping school or seminary, or teaching without license, and to proceed against and punish such person by ecclesiastical censures.

purpose of educating poor children in the Roman Catholic faith was void (Cary v. Abbott, 7 Ves. 490; and see Attorney-General v. Power, 1 B. & B. 145); and it was not until 1832 that Roman Catholics were placed on the same footing as Protestant Dissenters with respect to schools and places of worship. (2 & 3 Will. 4, c. 115.)

This statement of the law is illustrated and confirmed by the decisions of the Courts of law and Equity. In the year 1677 it was held that the Act 13 Car. 2, giving a penalty for teaching without license, does not take away the jurisdiction of the Ecclesiastical Court on the canons; and that the canons require a schoolmaster to be licensed by the bishop of the diocese, to the end that schoolmasters may be fit to instruct their scholars in the true principles of religion: Cory v. Pepper (2 Lev. 222). In 1700 it was held by the Lord Keeper Wright that the keeping of schools is, by the old laws of England, of ecclesiastical cognisance: Cox's case (1 P. Wms. 29). In 1701 Holt, C.J., said, "If there were a canon prohibitory of teaching without license before 25 Hen. 8, c. 19, it was confirmed by that statute; and there is a canon of Queen Elizabeth, 'de Ludi-magistris,' and without doubt schoolmasters 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" Rex v. Hill (12 Mod. 517). In 1734 it was laid down that it is the duty of the Ordinary to examine into the necessary qualifications [557] of the person who requires the license: Rex v. The Bishop of Lichfield (7 Mod. 217; S. C. 2 Strange, 1022; and Com. Rep. 448), and the same rule was held in 1795 in Rex v. The Archbishop of York (6 T. R. 490), where Lord Kenyon affirmed the doctrine that keeping of schools is of ecclesiastical cognisance; and, lastly, Lord Eldon held, in 1819, In re The Masters, &c., of the Bedford Charity (2 Swanst. 528), and again, in 1826, in The Attorney-General v. Lord Mansfield (2 Russ. 521, 522, 526, 527), going more fully into the subject, that the scholars in grammar schools ought to be educated in the doctrines of Christianity according to the principles of the Church.

It follows that it is imperative upon the present school to give to all the scholars instruction in the Holy Scriptures, the Church catechism and the liturgy, doctrine and discipline of the Church of England.

Mr. Wickens, for the Attorney-General. Under the Act 3 & 4 Vict. c. 77, the Court has full power to carry out the proposal of the Attorney-General, relative to the appointment of a board of management; and the present case is one in which that power will be exercised. Independently of the objection, which is always recognised by the Court in similar cases, that the administration of a charity ought not to be confided to so small a number of trustees as the number in this case appointed by the charter, the governing body, as constituted by the charter, has not that identity of interest with the class of persons the school is designed to instruct, which is essential to the success and usefulness of the school. The Court has power by the Act, if not entirely to change the constitution of a chartered school like the present, at least to impose whatever safeguards, restrictions and regulations it may, in its discretion, deem advisable; and it has exercised that power in many [558] instances. In the case of the Free School of King Edward the Sixth, at Great Berkhampstead, the regulation and management of the estates of the charity, which by the charter were vested in the master and usher, were transferred to eleven trustees, of whom the master and usher were to be two(1)—a change which certainly did not less affect

(1) By the order of the Lord Chancellor, dated the 9th of August 1841, confirming the Master's report in the matter of the Great Berkhampstead school, it was ordered that the master and usher should execute a deed for resigning their offices; and that afterwards the regulation and management of the estates, revenues and goods of the charity and school should be placed in the hands of or vested in eleven governors, of whom the master and usher for the time being should be two; and that the master and usher of the school for the time being should permit the governors to receive and take the rents and profits of the real estates vested in the master and usher for the purposes of the school and charity, and from time to time to manage, let and set the same, and to use, order and dispose of the goods and personal estate held by the master and usher for the purposes of the school and charity, in such manner as the governors should in their discretion think best for the benefit of the school and

the constitution of the school than that proposed in the present case by the AttorneyGeneral.

[Mr. Kenyon. In 1813 Lord Eldon, C., upon a petition relating to the same school, expressly held that the internal management of the charity was the exclusive subject of visitatorial jurisdiction: Ex parte Berkhampstead Free School (2 V. & B. 134).]

As regards the proviso for exempting the children of [559] Dissenters from receiving instruction in the doctrines of the Church of England, the scheme of the Attorney-General is almost in terms the same as that which was approved by the Court in The Attorney-General v. Cullum (1 Y. & C. C. C. 411), where, although the Court held "that any scheme of education without religion would be worse than a mockery," and that the religious instruction (if any) to be given "must be according to the doctrines and principles of the English Church," the religious instruction directed to be given on weekdays was expressly confined to the reading and explanation of the scriptures, and boys whose parents were not in communion with the Church of England were not required to receive instruction in the liturgy, catechism or articles of that Church. [THE VICE-CHANCELLOR. There was a positive direction in that case that the master should give religious instruction to all the scholars, such master being required to be a member of the Church of England; but here the Attorney-General proposes that, to a class of the children, no religious instruction shall be given at all.] Still, the case is an authority for exempting the children of persons conscientiously objecting thereto from receiving instruction in the distinctive teaching of the Church of England.

The cases of The Warwick Grammar School (In re The King's Grammar School, Warwick, 1 Ph. 564) and The Kidderminster School (The Attorney-General v. The Bishop of Worcester, 9 Hare, 328) have been considered as, in some measure, in conflict with The AttorneyGeneral v. Cullum. It is true that, in the former, Lord Lyndhurst, C., struck out a clause precisely similar to that in The Attorney-General v. Cullum, holding it better to leave everything relating to religious instruction to the discretion of the headmaster: and in the case of the Kidderminster school Sir G. Turner, V.-C., followed Lord Lyndhurst's decision, [560] as being the best to be adopted in schools where Dissenters were admitted; but he did so on the express ground that it tended "to prevent those feelings of offence which are too apt to arise on such a subject." (9 Hare, 367.) It is clear, from the report, that the Vice-Chancellor expected the effect of his decision would be to exempt the children of Dissenters, the master of the school having stated that the regulations of the scheme had not been enforced as against the children of parents dissenting from the doctrine of the Church of England, and that he was not desirous of excluding Dissenters from the benefit of education at the school. (Id. 349.)

The possibility, however, that a master, himself a member of the Church of England, may adopt a different course is an obvious reason for preferring the form of the scheme in The Attorney-General v. Cullum. Left to his own discretion the master might adopt a course far more exclusive than any clause ever yet proposed to the Court.

[He cited also The Attorney-General v. Lord Carrington (cited, 1 Ph. 567), the scheme in the case of The Queen's Free School at Basingstoke (approved, 11th June 1852), The Attorney-General v. The Governors, &c., of the Sherborne Grammar School (18 Beav. 256), and the proceedings on the petition to Lord Cranworth, C., as visitor, in the case of the same school (Id. 285), where the charter was in the same words as that of the present school.]

Mr. Rolt, Q.C., in reply.

Feb. 22. THE VICE-CHANCELLOR Sir W. PAGE WOOD. With regard to the first part of the scheme which the Attorney-General suggests for the consideration of the

charity; and that, for the purposes aforesaid, the master and usher should, in their corporate capacity, make and execute all such deeds, leases and other instruments, and do and perform all such acts as the said governors should require; and the said governors should be at liberty to use the corporate name of the master and usher for the purpose of bringing such actions and suits at law and in equity as the governors for the time being should think proper, and for the benefit of the school and charity, the master and usher being saved harmless and indemnified therein out of the said

estates.

Court which relates to the appointment of a board of [561] management, and by which it is proposed to appoint, under the name of trustees, certain persons, who would meet together as one board with the four governors of the school, and have, in fact, the sole control (for that is what it really results in) of the whole school, as well as of all its revenues and income-it appears to me that the effect of the scheme would be a most undue interference with the powers vested by the charter in the governors as a corporate body, who, by that charter, have the sole conduct of the school and its revenues, and power to make, with the sanction of the bishop, statutes and ordinances which are to regulate and govern the school. It seems to me very doubtful whether this Court would have jurisdiction to constitute a board of that kind, having equal authority with the chartered body in the administration of the property vested in that body; and, certainly, in the present instance, no case has been made out for introducing so violent an alteration, even if the Court has such jurisdiction, as to which I should entertain very considerable doubt, notwithstanding the case which has been cited of the Berkhampstead school. There the governing body, as constituted by the charter, was of a most unsatisfactory character; for the master and usher were appointed a corporation, having the sole management and direction of the school: and, even in that case, as I understand it, the management of the property was not in any way divested from the governors; they were left to manage the property with such checks and control as the Court was competent to place upon their due administration of that part of their trust. But, since that decision, the Legislature has passed the Act for the better administration of charitable trusts (16 & 17 Vict. c. 137); and now under that Act matters stand in a somewhat different position to that in which they stood when the order was made in the case of the Berkhampstead school. With regard to all the property of a charity, ample opportunities now exist for putting any check which may be required upon the ma-[562]-nagement of that important part of the trust vested in the governors. They are now obliged by the statute to present annual accounts to the Charity Commissioners, and those accounts have a certain degree of publicity provided for them by the statute; so that any person having the slightest reason to complain of mismanagement with regard to charity property is able to bring it in due and proper form before the Court. Under these circumstances I do not think it necessary, for the purpose of the administration of the property of this charity, to have any additional body or check placed over the governors. What might be the case if the revenues were of as large and ample a description as they are in some other charities it is not necessary to consider. The property here does not exceed some £500 or £600 a year, and there is no reason to suppose that the four gentlemen who may be appointed from time to time, pursuant to the provisions of the charter, with the checks there provided, will not be fully competent duly and properly to administer that trust.

It has been argued that the appointment of a board of management, if not necessary with a view to the administration of the school property, is, at all events, of importance with a view to the better government and management of the school. Now, there may be in some cases an advantage in putting a check over persons in this fiduciary position with reference to their administration of the school property; but I have very great doubt whether any useful or salutary result can be obtained by placing as a check in the management of a school a series of two authorities who may be brought into conflict the one with the other. It is extremely undesirable for those receiving education in a school to know that those who are placed over them in authoritywho are entrusted with their regulation and government-are themselves a body of individuals acting the one in conflict with the other; and to have their respect [563] shaken with regard to those to whom they are to look for the due conduct and regulation of all matters connected with the school. Still less perhaps on the point which constitutes the second question which in this case I have to consider the question, namely, as to the character of the religious instruction to be given-is it desirable that any such conflict should arise. It seems to me much better, if unhappily any differences should arise of the character which so constantly do arise, and which perplex, and have perplexed for a great length of time, the mind of the Legislature with regard to this subject of education, that such differences should be speedily settled by some competent tribunal; and I think it far more conducive to this object

that there should be but one body who should have under its control this special and delicate subject, and, having it so under its control, should be left to the check, if check be required, which now exists under the constitution of this charity, namely, a check, first, on the part of the bishop, and, next, on the part of the Lord Chancellor, who, as visitor of the school, would be able to control any indiscreet or improper exercise of authority on that subject. It is true the authority of the visitor would not extend to making statutes, and all that he could do would be to control any statute which he might consider improper; but admitting that to be so, I should still say, supposing I had jurisdiction to act in the matter, I would far rather these trustees should be trusted, unless it were shewn that the trust can no longer be confided to them, than attempt to put over them a body which might be placed in conflict with them. If a conflict must arise I should prefer that it should be external rather than internal; and that the inhabitants of Chelmsford should be left to their remedy, through the Attorney-General or otherwise, for correcting any impropriety they may think to exist in the conduct of the persons entrusted with the government and management of the school.

[564] The second question, viz., that respecting the religious instruction to be given in this school, is the question which has been argued at most length before me, and is one of very serious importance with regard to all schools of this description.

Mr. Rolt. Allow me to say that what we submit on that subject is that anything fundamental should be inserted in the scheme, and we should not have power to alter it. We think it fundamental that there should be education in religion according to the doctrines of the Church of England, and that provisions on that subject should be inserted in the scheme. But if the Court prefers to abstain from making any such express provision in the scheme, and leaves the matter to us, we are content.

THE VICE-CHANCELLOR. In my opinion it would be improper to say nothing in the scheme about a subject of such importance as that of religious instruction. The question is one that has come before the Court in various shapes, and is likely to come before it again in other shapes as various. Mr. Wickens has most ably and correctly brought before me the present state of the authorities upon this subject, and they seem, as he says, to resolve themselves into two classes: the one class, of which I take the Warwick school, before Lord Lyndhurst-followed by Lord Justice Turner, when Vice-Chancellor, in the case of the Kidderminster school-as an example, in which this question, one of considerable difficulty, being before the Court, whether a religious scheme should be fixed, and any regulation made by which Dissenters would be exempted from the operation of peculiar religious teaching, the Lord Chancellor thought it was better to let it pass sub silentio, and leave it to the discretion of the headmaster to deal with it as he thought fit. The other class, which followed the example of The Attorney-General v. Cullum, in which the [565] Court, holding it absolutely essential in all schools of this character that there should be religious teaching, and holding, as I hold, that such religious teaching must, so far as it goes, be the religious teaching of the Church of England, after directing that all children shall be taught by the master, that master being a member of the Church of England, has, nevertheless, in respect of the more distinguishing portion of the church teaching, such as the catechism, the articles and the like, given to parents who conscientiously dissent from the doctrine of the Church of England the power of signifying their desire that their children should not be so instructed, and has allowed such children to be withdrawn; but in each case distinctly providing that there shall be instruction in the scriptures, and that such instruction shall be according to the doctrines of the Church of England. I am not aware that any case has yet gone beyond that; and I cannot help feeling that the cases to which I have last referred have carried the jurisdiction of the Court of Equity as to charities such as this before me to the extreme limit.

After the argument I have heard, and looking to the whole scheme, frame and general foundation of charities of this description, it appears to me impossible to hold that any school, founded, as this has been, by one of the sovereigns of this country, for the purpose of teaching grammar, could be other than a school not only for teaching grammar, but also for sound religious education; and looking to the period at which these schools were founded, such education must have been education according