THE importance of this subject is a sufficient reason for attempting to explain it in a periodical publication which is extensively circulated, while the limits of this notice must be urged and accepted as an apology for an imperfect handling of the matter. Many erroneous notions prevail on the subject of endowments for education, some of which may be removed by a brief explanation of the nature of these foundations. It is also generally supposed that these establishments require to be considerably modified in order to suit the wants of the times; and the zeal of some persons, which is much greater than their wisdom, would even remodel them entirely. In order to understand how far such a remodelling is wanted, we must consider the nature of such foundations generally, we must form correct notions of their original constitution, and we should know what modifications have already been made in them, and what means exist at present for effecting any further changes. There are persons who would make quite a new appropriation of the bounty of our founders of places of education, and would apply it to objects different from those which they have pointed out. But some regard is due to the wishes and intentions of departed benefactors, simply because they are benefactors; and so long as the purposes for which they have given their property continue to be useful purposes, it seems difficult to find any sufficient reason for a different appropriation of their bounty. It is not enough to say that other purposes more useful might be effected by a different appropriation of these funds, for if this is urged to its full extent, it is a reason for a different appropriation of all property which an individual gives by testament or otherwise. The mere fact of a different appropriation than that directed by a donor being a better appropriation is no ground for legislative interference, for the same ground applies to all cases of gift where it can be shown that the gift might be better appropriated. It is a legal principle that a man may give his property as he pleases for all legal purposes, and it would be an application of a contradictory principle if the legislature were in any given case to apply such property to a different, simply because it is supposed to be a better, purpose. Nor does it make any difference that property given for purposes of education is not given, as in the ordinary case of a gift to an individual, for the benefit of any particular person or persons who are named, nor that it is intended to have a perpetual existence, and to be incapable of being disposed of like a gift to an individual; for it is of the essence of a charitable gift (in the legal sense of the word charity, which is hereafter explained) to be for the benefit of individuals not named, but only designated, and for that purpose to have a perpetual existence. If then the positive law of any country shall generally permit men to make gifts for charitable purposes, without any other restriction than that they shall be legal purposes, it is necessary, in order to consistency, that the law shall also allow donors to designate the objects of their bounty and to secure its perpetual existence. The law of this country does permit such gifts for charitable purposes without any restraint on the giver, except so far as certain forms of gift may be required, and except the condition always implied that the gifts shall be for legal purposes. Any interference then in any given instance which shall entirely change the purposes of such gift is an anomaly in legislation. Such change is not bad as law, for it is here supposed that the change is by virtue of a law, but it is bad as legislation, because it is a particular act of legislation

No. 23.

which contradicts an acknowledged general principle of law. The cases in which changes in the purposes of a charitable gift are not open to this objection are only two. The first case is when the purposes, though not direct violations of law, are clearly injurious to society, and indeed such purposes may, in a sense, be considered as violations of law. The second case is when the donor's particular intentions are or have become impracticable, owing to change of circumstances or other causes which he could not foresee, and yet his general intention is clearly declared. Here his general intention is a safe guide, and the purposes of his gift may be modified so as to come as near as may be to his expressed wish. But it must be remembered that a man's intentions can only be collected from his acts, and it is not safe to conjecture what he would have done with his bounty if he were living now, except from his declarations which accompanied the gift. In all cases where a foundation is now remodelled, either by legislative act or by schemes of the Court of Chancery, it is implied that the founder's intention is regarded, which means his intention as made known, and not what any person might suppose would be his intention if he were now living; for different persons would impute to him different probable intention, if he were now living; and it would be equally fair for a person to say that if he were now living he might have no intention at all to give his property to charitable purposes, seeing how often such property fails to do all the good that the donor contemplated, and seeing also the less need there is for such gifts now than there was formerly. A donor may have given his property, among other purposes, for the instructing and bringing up of children in certain religious doctrines, and in the practice of certain religious observances; and if such purposes are legal, there is no ground for altering them in any respect, because certain persons from religious scruples cannot, or for any other reasons do not choose to, partake of the donor's bounty on the terms which he has prescribed. The principle here insisted on is this: so long as there is no general rule of law, or no general law, which prevents a person from giving his property for charitable purposes on such terms as he pleases, it is an inconsistency in legislation, that is, it is bad legislation, to remodel any particular charitable gift in order that persons may enjoy the benefit of it who will not comply with the donor's terms. It is a consequence of this principle that there ought to be no legislative interference with any charitable foundation which shall enable any person to have the benefit of it whom the donor did not intend to benefit, until there shall first be some general enactment which shall limit the power of donors for charitable purposes in a different way, and to a greater extent, than such power is now limited.

An Endowed School in England is a school which was established and is supported by funds given and appropriated to the perpetual use of such school, either by the king or by private individuals. Endowed schools may be divided, with respect to the objects of the founder, into Grammar-schools, and schools not grammar-schools. A Grammar school is properly a school in which the learned languages, the Latin and the Greek, are taught, as will hereafter be more fully explained. Endowed schools may also be divided, with respect to their constitution for the purposes of government, into schools incorporated and schools not incorporated. Incorporated schools belong to the class of corporations called eleemosynary,

which comprehends colleges and halls, and chartered hospitals or almshouses.

Endowed schools are comprehended under the general legal name of Charities, as that word is used in the act of the 43rd of Elizabeth, chap. 4, which is entitled 'An Act to redress the Misemployment of Lands, Goods, and Stocks of Money heretofore given to Charitable Uses.'

The charitable uses comprised in the statute are reduced, by Sir Edward Coke in his exposition of it, to twenty-one heads, of which the following relate to education: schools of learning, free schools, scholars in universities, education and preferment of orphans. The legal sense of the word Charity comprises many other things besides endowments for education; such, for instance, as gifts for the relief of aged, impotent, and poor people, and for repair of bridges and churches. The word charity has so far a technical meaning that a gift for benevolent purposes generally, or for purposes of liberality, is not such a gift as the Court of Chancery considers to be within the meaning of the Act of Elizabeth, or within the objects which that court has, from analogy to the purposes of the act, declared to be charitable.

Incorporated schools have generally been founded by the authority of Letters Patent from the crown, but in some cases by act of parliament. The usual course of proceeding has been for the person who intended to give property for the foundation of a school to apply to the crown for a licence. The licence is given in the form of letters patent, which empower the person to found such a school, and to make, or to empower others to make, rules and regulations for its government, provided they are not at variance with the terms of the letters patent. The patent also incorporates certain persons and their successors, who are named or referred to in it, as the first governors of the school. This was the form of foundation in the case of Harrow School, which was founded by John Lyon, in the fourteenth year of Elizabeth, pursuant to letters patent from the queen. St. Bees' School in Cumberland was also founded by letters patent of the 25th of Elizabeth, on the petition of Edmund Grindall, Archbishop of Canterbury: the letters patent, which are in Latin (as usual at that time), recite that The Right Reverend Father in God Edmund Archbishop of Canterbury had humbly supplicated the queen to erect, found, and establish a Grammar-school (una Schola Grammaticalis) in the vill of Kirby Beacock, otherwise St. Beghes, for the good education and instruction of the children and youths (puerorum et juvenum) there, and in the adjoining parts, inhabiting and dwelling," &c. Sometimes the master and usher are made members of the corporation, or the master only. In the instance of Berkhampstead School, which was founded by act of parliament (2 & 3 Edw. VI., reciting certain letters patent of Henry VIII.), the corporation consists of the master and usher only, of whom the master is appointed by the crown, and the usher is appointed by the master. The lands and other property of an incorporated school are vested in the corporation, whose duty it is to apply the rents, pursuant to the terms of the donation, in supporting the school, that is, in paying the master and usher such sums as they are entitled to receive, and for other purposes necessary for the support of the school. Many school endowments are of a mixed nature, the funds being appropriated both to the support of a free-school and for other charitable purposes. These other purposes are very various; but among them the union or connection of an hospital or almshouse with a free-school is one of the most common.

When there is no charter of incorporation, which is the case in a great number of school endowments, the lands and other property of the school are vested in Trustees, whose duties as to the application of the funds are just the same as in the case of an incorporated school. If the founder has declared that there shall always be a certain number of Trustees, or that the original number shall always be filled up whenever it is diminished by death to a certain amount, it is necessary from time to time for the actual trustees to add to their numbers by such legal modes of conveyance as shall vest the school property in them and the

new trustees jointly. These conveyances sometimes cause a considerable expense; and when they have been neglected, which is often the case, and the estates have consequently become vested in the heir-at-law of the surviving trustee, some difficulty is occasionally experienced in finding out the person in whom the school estates have thus become vested by operation of law. When the school property consists of money, the same kind of difficulty arises; and money is also more liable to be lost than land.

Every Charity, and Schools amongst the rest, seems to be subject to Visitation. We shall first speak of incorporated schools.

The founder may make the persons to whom he gives the school property on trust also the governors of his foundation for all purposes; and if he names no special visitor, it appears that such persons will be visitors as well as trustees. If he names a person as visitor, such person is called a special visitor; and it is a general rule that if the founder names no special visitor, and does not constitute the governors of his foundation the visitors, the heir-at-law of the founder will be visitor; and if there is no heir-at-law, the crown will visit by the lord keeper of the great seal. The king is visitor of all schools founded by himself or his ancestors. The duties of trustees and visitors are quite distinct, whether the same persons are trustees and visitors, or the trustees and visitors are different. It is the duty of trustees to preserve the school property, and to apply it to the purposes intended by the founder. In respect of their trust, trustees are subject to the jurisdiction of the Court of Chancery, like all other trustees; and of course they are answerable for all misapplication of the funds. It is the visitor's duty to inquire into the behaviour of the master and usher in their respective offices, and into the general conduct of the school. He must judge according to the founder's rules, which he cannot alter unless he is empowered by the terms of the donation to do so. There seems to be no reason for supposing that the king, in respect of royal foundations, has any further power than other persons, and consequently he cannot alter the terms of the donation, unless this power was originally reserved to the founder and his successors; but on this matter there may be some difference of opinion. The visitor, or those who have visitorial power, can alone remove a master or usher of an endowed school. The Court of Chancery never removes a master or usher when they are part of the corporate body, on the general principle that this court has no power to remove a corporator of any kind; and when there is a visitor, or persons with visitorial power, the Court never attempts directly to remove a master or usher, even if they are not members of the corporation.

This is the law on the subject. But law does not always regulate the decrees of a court of equity, as will appear from the following case :*-The grammar-school of Tideswell was founded by Robert Pursglove, suffragan bishop of the see of Hull, under letters patent of Queen Elizabeth. The letters patent made the master of the school and his successors, with the vicar and wardens of Tideswell parish, a corporate body; and lands were conveyed to the corporation in trust for the school, and for other charitable purposes. One Brown, the master of the school, had also been collated to the vicarage of Tideswell, upon which an information was filed in the Court of Chancery, alleging that it was not the intention of the founder that one person should fill both places, and also alleging that this union had led to an improper application of the funds. The information further suggested that the master should either give up the vicarage or be removed from the school. A decree was made by Sir John Leach, by which, among other things, it was ordered that Brown should either give up the mastership of the school, or resign the vicarage. This case is only worth citing for the purpose of showing distinctly that the powers of the Court of Chancery are not so great as a man might infer from such a decree being made. As to the vicarage, the Court

*This case, which is entitled the Attorney-General v. Brown, is not reported, so far as the writer knows.

of Chancery has no jurisdiction to deprive a spiritual person of his benefice. And it is clearly laid down by higher authority than that of Sir John Leach, that the Court of Chancery "has no jurisdiction with regard either to the election or amotion of corporators of any description. Corporators, constituted trustees, have indeed sometimes been, by decree of the court, divested of their trust for an abuse of it, as any other trustees would have been; but that is very different from divesting a person of his corporate character and capacity." (Sir W. Grant, Attorney-General, v. the Earl of Clarendon, 17 Ves. 498.)

Trustees of endowed schools which are not incorporated are accountable in a court of equity for the management of the school property. But the internal management of the school still belongs to the special visitor, if there is one; and if there is no special visitor, it belongs to the founder's heir. Trustees of endowed schools, simply as such, are merely the guardians of the property, as already observed; and it is their duty to take care of it, and to apply the income according to the founder's intention. It has however happened that in schools not incorporated the jurisdiction of the Court of Chancery and the visitorial jurisdiction have not been kept quite distiuct; and cases have arisen in which it has been found very difficult to determine what ought to be the proper mode of proceeding. It will perhaps be difficult to find an instance (except that of the Attorney-General v. Brown, and even the effect of that was only to put the master to his election) where the Court of Chancery has affected to remove a master even of a school not incorporated, though there are cases in which it has been attempted indirectly.

In the case of Atherstone school, which was founded by letters patent of Elizabeth, 1593 (Reports of Charity Commissioners, 29th Rep., part ii., p. 955), no express power was given to the governors to remove the master. On an information being filed by the master of the school, the chancellor thought that the power of suspension and amotion of the master ought to have been vested in the governors and the bishop of the diocese concurrently; and he referred it to the Master in Chancery to approve of some convenient form of such joint regulation. But this and other similar cases are of very doubtful authority. Properly, the removal of a master is only effected by a person appointed as visitor by the founder; and if there is no such visitor, and no founder's heir, the proper mode of proceeding in such case is to apply by petition to the keeper of the great seal as visitor on behalf of the crown, and not to the chancellor by bill, or by bill and information. There is no doubt that a special visitor, who receives the proper power for that purpose from the founder, can remove the master of a school; and it is equally certain that, if the founder has appointed no special visitor, the visitorial power belongs to his heir-at-law, if one can be found. It may however be true, as it is sometimes asserted, that it would be difficult to find an instance in which the founder's heir has exercised such visitorial power.*

A free grammar-school is an endowment for teaching the learned languages, or Greek and Latin, and for no other purpose, unless the founder has prescribed other things to be taught besides grammar. This legal meaning of the term grammarschool has been fixed by various judicial decisions, and it is quite established that, if the founder merely expresses his intention to found a grammar-school, the school must be a school for teaching Latin and Greek only. If it should happen that the endowment has for a long time been perverted from its proper purposes, this will not prevent the Court of Chancery from declaring a school originally designed for a grammar-school to be still a grammar-school, and it will give the proper directions for carrying into effect the founder's intentions, whatever may be the length of time during which they have been disregarded. This was the case with the grammar-school of Highgate, in the county of Middlesex, which was founded by Sir Roger Cholmeley, underl etters patent of Queen Elizabeth, under the title of the Free Grammar-school of

See page 66 of Observations on Grammar-schools,' by Daniel Finch, hereafter referred to.

Roger Cholmeley, knight. The statutes were made in 1571 by the wardens and governors, with the consent of the Bishop of London, under the authority of the letters patent. The first statute ordered that the schoolmaster should be a graduate, and should teach young children their A B C, and other English books, and to write, and also in their grammar as they should grow up thereto. An information which was filed against the governors charged that the school had been converted from a free grammar-school into a mere charity-school, and that the governors had in other ways abused their trust. The facts of the abuse were established, but it was shown that so far back as living memory could go, the school had been merely a place of instruction in English, writing, and arithmetic; and also that in other respects the statutes had not been observed as far back as the year 1649. Notwithstanding this, it was declared by the chancellor (Eldon) that this was a school originally intended for the purpose of teaching grammar, and a decree was made for restoring the school according to the intention of the founder. The school was accordingly restored, and is now in active operation as a grammar-school under a scheme of the Court of Chancery. (Att.-Gen. v. Earl of Mansfield, 2 Russ. 501.)

As to teaching something besides Latin and Greek in an endowed school, Lord Eldon observes (Att.-Gen. v. Hartley, 2 J. & W., 378), “if there was an ancient free grammar-school, and if at all times something more had been taught in it than merely the elements of the learned languages, that usage might engraft upon the institution a right to have a construction put upon the endowment different from what would have been put upon it if a different usage had obtained." When the founder has only intended to establish a grammar-school, and has applied all the funds to that purpose, none of them can be properly applied to any other purpose, however useful it may be, such as teaching the modern languages or other branches of knowledge. This legal position cannot be disputed. When the funds of a school have increased so as to be more than sufficient for the objects contemplated by the founder, the Court of Chancery will direct a distribution of the increased funds, but it will still apply the funds to objects of the same kind as those for which the founder gave his property. If then a founder has given his property solely for the support of a grammar-school, it is inconsistent with his intention to apply any part of the funds to other purposes, such for instance as paying a master for teaching writing and arithmetic; and yet this has been done by the Court of Chancery in the case of Monmouth School (3 Russ. 530), and in other cases. The foundation of Monmouth school consists of an almshouse, a free grammar-school for the education of boys in the Latin tongue, and other more polite literature and erudition, and a preacher. The letters patent declared that "all issues and revenues of lands to be given and assigned for the maintenance of the almshouse, school, and preacher, should be expended in the sustentation and maintenance of the poor people of the almshouse, of the master and under-master of the school, and of the preacher, and in repairs of the lands and possessions of the charity." Notwithstanding this, the Court of Chancery appointed a writing-master at a salary of 607. per annum, to be paid out of the issues and revenues, and thus it took away 607. per annum from those to whom the founder had given it. This was done on the authority of a case in the year 1797, which was itself a bad precedent, and notwithstanding that Lord Eldon, during the long time that he held the great seal, had constantly opposed such application of funds which were appropriated solely to grammar

purposes.

Lord Eldon's decision in the case of Market Bosworth School (Attorney-General v. Dixie, 3 Russ. 534) established an usher in the school, whose sole occupation was to be to instruct the scholars in English, writing, and arithmetic, and it gave the usher a salary of 901. per annum out of the school-funds. But in doing this Lord Eldon merely did what the donor intended. Market Bosworth is one of those grammar-schools in which the founder has directed that other things should be taught besides

Latin and Greek. According to the statutes, the school was to be divided into two branches, the lower school and the upper, and "in the first form of the lower school shall be taught the A B C, Primer, Testament, and other English books." In the upper school the instruction was confined to Latin, Greek, and Hebrew. It is therefore in this case as clear that the founder's intention was carried into effect by the decree of the court, as it is clear that in the case of the Monmouth School such intention was violated. The case of Monmouth School however furnished a precedent, which has been followed in other cases; and Sir J. Leach, in the case of Sherburn School and Hospital (Att.-Gen. v. Gascoigne, 2 M. & K., 647), said that "he was glad of an opportunity of holding, upon the authority of the case before Lord Lyndhurst (the Monmouth School case), that the teaching of writing and arithmetic might be well introduced into a scheme for the management of a free grammarschool."

There are many grammar-schools, probably a considerable majority of the whole number, in which nothing is provided for or nothing intended by the founder except instruction in grammar, which, as the term was then understood, appears to have meant only the Latin and Greek languages. Where provision is made for other instruction in addition to, or rather as preparatory to, the grammar instruction, similar modes of expression have often been used by the founder or the makers of the statutes. In the founder's rules for the grammar-school of Manchester, which has now an income of above 40007. per annum, it is said, "The high-master for the time being shall always appoint one of his scholars, as he thinketh best, to instruct and teach in the one end of the school all infants that shall come there to learn their A B C, Primer, and sorts, till they being in grammar," &c. In all cases of grammar-schools. where this instruction is to be given, it was evidently intended as a preparation for and not as a substitute for grammar. was therefore clearly an abuse in the case of the Highgate School to have converted it into a mere school for reading, writing, and arithmetic; but it is equally an abuse in the case of the Manchester School to make the following regulation as to the admission of pupils, which was in force at the time of the Charity Commissioners' Inquiry: "All boys who are able to read are admitted on application to the head master into the lower school, where they are instructed in English and the rudiments of Latin by the master of that school. They are so admitted about the age of six or seven."

It

Grammar-schools have now for a long time been mainly regulated by the Court of Chancery, which, though affecting merely to deal with them in respect of the trusts and the application of the trust-moneys, has in fact gone much further. On the whole it has perhaps done as much against the intention of founders and therefore wrongfully, its professed doctrine being to carry the founder's intentions into effect-as it has for furthering the intentions of founders. In saying this, it is not meant to say that it has done more harm than good.

The court may be applied to for the purpose of establishing a school where funds have been given for the purpose, and the object cannot be effected without the aid of the court. It may also be applied to for the purpose of correcting such a misapplication of the funds as in the case of the Highgate School, which in that instance was equivalent to establishing it. The court may also be applied to, which is a common case, in order to sanction the application of the school funds when they have increased beyond the amount required for the purposes indicated by the founder. In this last case, however, if the school is a grammar-school, though the court will apply part of the funds to other purposes than grammar, as appears by the case of the Monmouth School, still it keeps mainly in view the fact of such school being for grammar, in directing the application of surplus funds. Accordingly such surplus funds are often applied in establishing exhibitions or annual allowances to be paid to meritorious boys, who have been educated at the school, during their residence at college. The master's scheme for the regulation of Tunbridge School in Kent, which was con

firmed by the Court of Chancery, established 16 exhibitions of 1001. each, which are tenable at any college of either university, and payable out of the founder's endowment. It also extended the benefits of the school beyond the limits fixed by the founder, and made various other regulations for the improvement of the school, having regard to the then annual rents of the school estates; as hereafter is more particularly. mentioned.

When the application has been an honest one, the schemes sanctioned by the Court of Chancery may generally be considered as aiming at least to carry the founder's intention into effect, and as calculated on the whole to benefit the school. But in some cases decrees have been obtained by collusion among all the parties to the suit, against which it is no security that the attorney-general is a necessary party to all bills and informations about charities. The founder of a school and hospital in one of the midland counties, among other things appointed that "the schoolmaster should be a single person, a graduate in one of the universities of Oxford or Cambridge," &c.; and he did "further will that if any schoolmaster so to be chosen should marry or take any woman to wife, or take upon him any cure of souls, or preach any constant lecture, then in every of the said cases he should be disabled to keep or continue the said school." The trustees dispensed with these restrictions and qualifications, but afterwards finding that they could not do this, they applied to the Court of Chancery, conceiving that the court had full power, or would at least assume the power, to alter the founder's rules. And they judged right. The court ordered, among other things, that a clergyman should be the head master, though the founder did not intend to exclude laymen; and that the head master was not to be restricted from marrying or taking upon him the cure of souls, &c. This mode of dealing with a founder's rules has not much appearance of an attempt to carry them into effect. If the court can dispense with the restriction as to marriage in such case, there seems no reason why it might not assume a similar dispensing power in the case of fellowships in colleges.

This clause about marrying occurs in the rules of several grammar-schools, for instance in those of Harrow School. John Lyon, the founder of Harrow School, had a wife himself, but he ordered and ruled that the head master and usher of his school shall be "always single men unmarried ;" if the master or usher marry, they are to be deprived. John Lyon's reasons for the rule are not stated, but the reasons may be the same as those for imposing celibacy on fellows of colleges, whatever those reasons are. The rule may be wise or unwise; but it was once observed, and it ought to be observed still until it is altered.

It remains to mention another matter that concerns the management of grammar-schools and the qualification of the masters. It appears from the rules of many grammar-schools 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 latter question, it is supposed, was decided in the case of Rex v. the Archbishop of York. (6 T. R., 490.) A mandamus was directed to the archbishop ordering him to license R. W. to teach in the grammar-school at Skipton in the county of York, to which he had been nominated and appointed. The return of the archbishop was, that the licensing of schoolmasters by the ancient canon law used and practised in England,