This enactment extends the power of the court over grammar schools very considerably, as will appear from what has been said ; not eo much however, if we view what the court has done, as if we take the declarations of the most eminent equity judges as to what the court can do. The power however of changing a grammar-school into one not a grammar-school, which is given by this act, is a considerable extension of authority; hut the power is limited to cases (§ 3) where the necessity of such a change arises from insufficiency of the revenues of a grammar-school for the purpose of such school. But this provision as It has properly been remarked, will be of very difficult applica tion ; for in many successful grammar-schools the revenue is small, and in some which are not successful it is large. Smallness of revenue, therefore, will not of itself prove " insufficiency of revenues " in the sense intended by the act. The same section contains also a provision, that except in this case of insufficient revenues, the court shall not by this act be authorised to dispense with any statute or provision now existing, so far as relates to the qualification of any schoolmaster or under-master, The dispensing power then which the court has often assumed, as shown in seine Instances above mentioned, remains as it was; that is, it does not exist at all.
When a grammar-school shall have been made into another kind of school under the provisions of this net, it is still to be considered a grammar-echool, and subject to the jurisdiction of the ordinary as heretofore.
In case there shall be in any city, town, or place, any grammar school or granunarstchoola with insufficient revenues, they may be united, with the content of the visitor, patron, and governor of school to be affected thereby. The legal meaning of city and town (township) is sufficiently precise, but " place" has no legal meaning, and the framers of the act have forgotten to give it one in their 25th section, which treats of the construction of terms In that act.
The court is also empowered (§ 14) to enlarge the powers of those who have " authority by way of visitation or otherwise in respect of the diaclipinc of any grammar-school ;" and where no authority by way of visitation is vested in any known person, the bishop of the diocese may apply to the Court of Chancery, stating the facts, and the court may, if it so think fit, give the bisliop liberty to visit and regu late the said school in respect of the discipline, but not otherwise. This provision, for various reasons, will prove completely inoperative.
The act gives a summary remedy against masters who hold the premises of any grammar-school after dismissal, or after ceasing to be masters. Such masters are to be turned out in like manner as is pro vided in the case of other persons holding over, by the Act of the 1 & 2 Viet., entitled " An Act to facilitate the Recovery of l'ossession of Tenements after duo Determination of the Tenancy."
All applications to the court under this act may be (not must) made by petition only, and such petitions are to be presented, heard, and determined according to the previsions of the 52 Geo. III. c. 101.
The act saves the rights of the ordinary. It is also declared not to extend " to the universities of Oxford or Cambridge, or to any college or hall within the same, or to the university of London, or to any colleges connected therewith, or to the university of Durham, or to the colleges of St. David's or St. Bees, or the grammar-schools of West minster, Eton, Winchester, Harrow, Charter-House, Rugby, Merchant Tailors, St. Paul's, Christ's Hospital, Birmingham, Manchester, or Macclesfield, or Lowth, or such schools as form part of any cathedral or collegiate church." But the exemption does not extend to the grammar-schools of which the universities of Oxford or Cambridge, or the colleges and halls within the tame, are trustees, though these schools were excepted from the Commissioners' inquiry by the 5 & 6 Wm. IV. c. 71.
It appears from the rules of many gnunmar-echools that religious instruction according to the principles of the Church of England, as established at the Reformation, is a part of the instruction which the founder contemplated ; and when nothing is said about religious instruction, it is probable that it was always the practice to give such instruction in grammar-schools. That it was part of the discipline of such schools before the Reformation cannot be doubted, and there is no reason why it should have ceased to be so after the Reformation, as will presently appear. It is generally asserted that in every grammar school religious instruction ought to be given, and according to the tenets of the Church of England ; and that no person can undertake the office of schoolmaster in a grammar-school without the licence of the ordinary. This letter question was argued in the case of Rex r. the Archbishop of York. (6 T. R.,' 490.) A mandamus was directed to the archbishop directing him to license It. W. to teach in the grammar-school at Skipton, in the county of York. The return of the archbishop was that the licensing of schoolmasters belongs to the archbishops and bishops of England ; that R. W. had refused to be examined ; and he relied as well on the ancient canon law as upon the canons confirmed in 1603 by James I. (`The Constitutions and Canons Ecclesiastical,' " Schoolmaster," 77, 78, 79.) The return was allowed ; and consequently it was determined that the ordinary has power to license all schoolmasters, and not merely masters of grammar-schools. As to schoolmasters generally, the practice is discontinued, and probably it is not always observed in the cane of masters of grammar schools.