LIBRARY
OF THE
UNIVERSITY OF CALIFORNIA.
Class
THE
MAINTENANCE OF
DENOMINATIONAL
I TEACHING •
A NOTE UPON SECTION 7 (i) OF
THE EDUCATION ACT, 1902
BY
HAKLUYT EGERTON
h
OF THF
UNIVERSITY
OF
r
LONDON
GEORGE ALLEN, 156, CHARING CROSS ROAD
1905
[All rights rcscnred]
Printed by BALLANTYNB, HANSON <5r» Co.
At the Ballantyne Press
OF THF
UNIVERSITY
PREFACE
OCCASIONAL opportunities in a quiet life have
led me to devote the best attention that I have
at my command to the Education Act, 1902,
and the two important serils of Statutes — the
Education Acts and the Charitable Trusts Acts
— with which it is connected. I commenced
with an " open mind," without any preconception,
except a vague opinion that probably the Act
did not deserve either every word of Mr. Balfour's
praise or every word of Dr. Clifford's condemna-
tion. It was not long, however, before I found
myself compelled to conclude that in several
cardinal particulars the much -debated legislation
of three years ago had been widely misunder-
stood, and I so far gave reins to my ambition
as to form the purpose of writing a short series
of notes setting forth what I conceived to be
the true meaning and legal effect of the new
statute. I had no political object in view — my
interest was that of the interpreter, not of the
partisan — and I had no intention of appearing
on either side of the confused controversy that
ui
1 5 31 53
iv PREFACE
accompanied the passing of the Bill and attended
upon the administration of the Act. I knew,
of course, that some of the questions I proposed
to discuss had occasioned perduring displays of
rhetoric that could not always be called moderate
or helpful, but I hoped to keep myself as free
from party prepossessions as from partisan irre-
levance. I had, in fact, no more extravagant
wish than to do some small thing that might, if
Fortune favoured it, lift the discussion of those
questions out of the tumult of the hustings into
that serene air of academic inquiry where thought
is completely practical and reasoning unim-
passioned — save by love of truth.
I did not work methodically through the Act,
but followed the promptings of vagrant interest
and the invitation of chance opportunities. Con-
sequently, it was some time before I found myself
face to face with Section 7 and with the primary
question which that part of the Act suggests. I
knew the ordinary interpretation of the Section,
but my own inquiries led to a result so widely
different, and which seemed, if true, to be so
important, that I thought it best to lose no time
in submitting my conclusion to the judgment of
"those who know" — whose information might
supplement my knowledge or correct my in-
ferences.
This isolated note is, therefore, published in
PREFACE v
advance of the others. I dare not hope to
convince every one — indeed, it may be that the
only conversion wrought will be in my own
opinions, but, in the interests of clear thought
and sound administration, I beg that those who
read it and feel constrained to express dissent
will do me this one favour — will point out pre-
cisely where the negative argument breaks down.
The result that seems so urgently to invite
discussion is simply this :—
Local Education Authorities are not empowered by
the Act of 1902 to " maintain " religious instruction in
non-provided schools.
If this be true, several interesting conclusions
follow.
(1) Expenditure by a Local Education Autho-
rity, for the maintenance of religious instruction
in non-provided schools, is illegal expenditure.
(2) The maintenance of religious instruction in
non-provided schools is not one of the duties that
can be enforced by writ of mandamus under
Section 16 of the Education Act, 1902.
(3) Refusal by a Local Education Authority
to "maintain" religious instruction in a non-pro-
vided school would not be a "default" within
the meaning of the Act of 1904.
(4) A Local Education Authority cannot infer
vi PREFACE
from Section 7 (i) (b) of the Act power to inspect
the religious instruction in non-provided schools.
(5) It is not lawful for a Local Education
Authority
(a) to pay the teachers in non-provided schools for
their services (if any) in or towards the giving of re-
ligious instruction in those schools, or
(I) to prohibit the attendance of any of those
teachers at Church whenever their children are
lawfully at Church.
(6) Section 13 (i) of the Act of 1902 will not
transfer to a Local Education Authority any
charitable monies applicable in or towards re-
ligious instruction.
(7) Neither "Rome" or any other religious
body is — in Dr. Clifford's sense — " on the rates."
(8) As the "Welsh Revolt" is primarily against
the alleged obligation to spend " public money "
in the maintenance of an unpopular creed, there
may now — unless the "revolt" express a per-
manently intolerant intention — be hopeful pros-
pect of a better peace in Wales than Mr. Lloyd
George dreams of.
(9) As the Act of 1902 is, thus far, in un-
designed and unconfirming coincidence with the
political ideals that underlie " Passive Resist-
ance," there should no longer be any occasion
for that unedifying vindication of " law and order "
which, by embittering our religious differences,
PREFACE vii
has widened the intolerable breach between those
who ought to be at one.
(10) If, under Section (7) i (a) of the Act of
1902, Local Education Authorities can fix the
hours for secular instruction in non-provided
schools, that is the one remaining point of
dangerous contact between those Authorities and
denominational teaching.1
One word more, I am a Conservative, and
differ as widely as possible from the practical
policy of Mr. Lloyd George and from the poli-
tical philosophy of Dr. Clifford. In Utopia these
particulars would be irrelevant to the note which
these lines preface, but we are not in Utopia,
and, in the world wherein we have actually to
live, party allegiance so often depraves thought
— even upon matters which are not what is
ordinarily called political, — that I assume permis-
sion to mention them, lest silence should invite
the conjecture that I have been illogically helped
to my conclusions by sympathy with administra-
tive injustice, or by symbolism with those scrupu-
lous consciences that prove their loyalty to a
perversion of the Gospel by eloquently sub-
mitting to the gratifying pleasures of a trivial
martyrdom.
Yet another word as to the method of
1 Fortunately, however, another interpretation of Section 71 (a)
seems to be not improbable. See Appendix.
viii PREFACE
interpretation I have followed. I have presup-
posed
(1) that the primary provisions of a Statute
are ordinarily to be construed according to their
plain grammatical sense ;
(2) that accidental expressions in subordinate
sections cannot affect the meaning of primary
sections, if that meaning be clear, although they
may help us to resolve a doubt ;
(3) that the intention of individual legislators
is not the same thing as the " intention of Parlia-
ment," and can never override the plain utterance
of Parliament ;
(4) that the general structure of an Act is often
a valuable guide to the meaning of a particular
Section ;
(5) that no Act which affects a complex legal
and administrative system can safely be inter-
preted as though it stood alone ;
(6) that, ordinarily, we may not infer an im-
portant change from words incidental to another
purpose ;
(7) that a Statute ordinarily means no more
than it says, and accomplishes no more than the
work it defines.
These presuppositions, however, seem neces-
sarily constituent in the very basis of scientific
interpretation.
THE MAINTENANCE OF
DENOMINATIONAL
TEACHING
A NOTE UPON SECTION 7 (i) OF THE
EDUCATION ACT, 1902
Does the Education Act 0/1902 enable or compel
a Local Education Authority to " maintain "
religious instruction in a non-provided public
elementary school?
The opening words of Section 7 direct that
"the local education authority shall maintain
and keep efficient all public elementary schools
within their area which are necessary, and have
the control of all expenditure required for that
purpose, other than expenditure for which, under
this Act, provision is to be made by the
managers; . . ."
What is the effect of this enactment ? Does it
place " Rome" on the rates? Does it charge the
new Local Authorities with the cost of denomina-
tional teaching ?
These questions have usually been answered in
io DENOMINATIONAL TEACHING UNDER
the affirmative — sometimes with what seems to
be authority ; but, before examining the grounds
of this reply, I will set forth the arguments that
point towards a contradictory conclusion.
A. The negative answer rests ultimately upon
the contention that the words " public elementary
schools" in Section 7 not only indicate the
schools that are to be maintained, but also define
the range of "maintenance."
a. According to the still subsisting defini-
tion in Section 7 of the Elementary Education
Act, 1870, a public elementary school is an
elementary school "which is conducted in
accordance with the following regulations . . .
namely,"
"(i) It shall not be required, as a condition of any
child being admitted into or continuing in the school,
that he shall attend or abstain from attending any
Sunday school, or any place of religious worship, or
that he shall attend any religious observance or any
instruction in religious subjects in the school or else-
where, from which observance or instruction he may
be withdrawn by his parent, or that he shall, if with-
drawn by his parent, attend the school on any day
exclusively set apart for religious observance by the
religious body to which his parent belongs :
" (2) The time or times during which any religious
observance is practised or instruction in religious sub-
jects is given at any meeting of the school shall be
either at the beginning or at the end or at the be-
ginning and the end of such meeting, and shall be
inserted in a time-table to be approved by the Educa-
tion Department, and to be kept permanently and
THE EDUCATION ACT OF 1902 n
conspicuously affixed in every schoolroom ; and any
scholar may be withdrawn by his parent from such
observance or instruction without forfeiting any of the
other benefits of the school :
" (3) The school shall be open at all times to the
inspection of any of Her Majesty's inspectors, so,
however, that it shall be no part of the duties of such
inspector to inquire into any instruction in religious
subjects given at such school, or to examine any
scholar therein in religious knowledge or in any
religious subject or book :
"(4) The school shall be conducted in accordance
with the conditions required to be fulfilled by an
elementary school in order to obtain an annual
parliamentary grant." (Education Act, 1870, Sec-
tion 7.)
Therefore, under Section 7 of the Act of 1902,
every elementary school which is " conducted in
accordance with " these regulations is entitled to
" maintenance/' but, obviously, only because it is
so conducted, and, one may argue, only as so
conducted. The Statute uses the words " regula-
tions " and " conditions," but, if — for the sake of
simplicity — we use the one word " conditions " to
cover also " regulations," we may say that, ac-
cording to the Act of 1870, a public elementary
school is a school which fulfils certain prescribed
conditions, and that, under the Act of 1902, such
a school is entitled to " maintenance," but, we
may argue, it is entitled to " maintenance " only
because it fulfils those conditions, and only in
fulfilling those conditions. In other words, it is
12 DENOMINATIONAL TEACHING UNDER
the public elementary school as suck, and only
as suck, that the Local Education Authority is
directed to maintain. This does not mean that
the Authority cannot lawfully maintain a school
which, besides conforming to the regulations
which are normative for public elementary
schools, also does something more, but only that
the "something more" in such a school cannot
lawfully be "maintained" by the Authority. An
Act which directs a Local Education Authority
to maintain a public elementary school will, of
course, warrant the maintenance of everything
which, as an essential, is constituent in, or con-
tributory to, either the being or character of the
school as a public elementary school, but the
warrant will carry no farther. It will not cover
the maintenance of anything which is not, in one
or other of these ways, essential.
The public elementary school is a certain
complexus of regulated and, as we shall presently
see, defined activities.1 If Parliament direct that
1 The appelative " public elementary school " is an indication of
status, not of nature. When a Church school becomes a public
elementary school, we have no ground for assuming that all its
functions are, henceforth, functions of a public elementary school,
or that it has no other functions than those of a public elementary
school.
The word " barrister " is also a mark of status, but a man who is
a barrister is, and must inevitably be, more than a barrister. He
may be husband or brother, he is probably an elector, and certainly
he is an ethical personality, and, as such, has a vocation which not
even the most praiseworthy zeal in the courts can entirely fulfil.
THE EDUCATION ACT OF 1902 13
it be " maintained " by the Local Authority, that
Authority is authorised to maintain that corn-
plexus, but nothing more, unless the " something
more" be contributory, as an essential, to the
being or character of the complexus — a conditio
sine qua non.
Now, it is quite clear that, prior to the Act of
1902, religious instruction was not one of the
necessary services of a public elementary school.
Indeed, in one large class of schools — the Board
Schools, all of which were public elementary
schools — it might lawfully be omitted altogether.1
It is certain that, until the Act of 1902 came
into force, a non-provided school might give only
secular instruction, and yet fully satisfy the parlia-
mentary definition of a public elementary school.
It may be said that most non-provided schools
are subject to trusts which require religious
instruction to be given. True, but nothing in
the regulations that defined the character of a
public elementary school required those trusts to
be executed.
If a school subject to such trusts provided no
religious instruction, there would, indeed, have
1 The defining words in the Act of 1870 lay down certain regula-
tions which must be observed in a school that is a public elementary
school if religious instruction be therein given, but do not make
the giving of religious instruction constituent in the character of a
school as a public elementary school, nor did anything in the
Minutes of the Education Department make that instruction
obligatory.
i4 DENOMINATIONAL TEACHING UNDER
been a breach of trust, but that breach would not
have affected the standing of the school as a
public elementary school, and the remedy and
the penalty (if any) had to be sought under the
Charitable Trusts Acts, not under the Education
Acts.
The inference seems plain and inevitable.
Religious instruction was not among the ends
which Parliament proposed to compass by means
of public elementary schools. Had it been, Par-
liament would certainly have made the proper
execution of the religious trusts affecting a de-
nominational school constituent in the character
of that school as a public elementary school.
Nor is it sufficient to reply that, as the Chari-
table Trusts Acts and the practice of the Court
already adequately safeguarded the execution of
those trusts, there was no. need to extend the
encouragement of a parliamentary grant to this
part of school work. This may explain why
religious instruction is not grant - earning. It
does not explain why the religious instruction
given in a school which is a public elementary
school is not constituent in the character of that
school as a public elementary school.
Had religious instruction been among the ends
which Parliament hoped to achieve by means of
public elementary schools, it would certainly have
made the execution of the " religious-educational "
trusts impressed upon a denominational school
THE EDUCATION ACT OF 1902 15
" constituent in the character of that school as
a public elementary school," even though it had
still proceeded to enact, concerning the annual
parliamentary grant —
"Such grant shall not be made in respect of any
instruction in religious subjects " (Elementary Educa-
tion Act, 1870, Section 97).
From the indubitable fact that Parliament did
not do this, we may, and indeed must, infer that,
according to the definition of 1870 (Sections 7 and
97 Elementary Education Act, 1870), religious
instruction was not one of the ends of a public
elementary school.
ft The Act of 1902, however, makes the re-
ceipt of a parliamentary grant dependent upon
conditions not previously imposed.
" One of the conditions required to be fulfilled by
an elementary school in order to obtain a parlia-
mentary grant shall be that it is maintained under and
complies with the provisions of this section " (Educa-
tion Act, 1902, Section 7 (4)).
Now among the provisions of Section 7 is the
following : —
" (6) Religious instruction given in a public elemen-
tary school not provided by the local education autho-
rity shall, as regards its character, be in accordance
with the provisions (if any) of the trust-deed relating
thereto, and shall be under the control of the
managers."
1 6 DENOMINATIONAL TEACHING UNDER
Does this affect the administrative definition of
a public elementary school ? l
I. Clearly, the new condition of 1902 does not
directly and in virtue of its own words alter the
definition, and we could not a priori hold him
unreasonable who would argue that the definition
of 1870 subsists until Parliament formulates a
new definition, or enacts something that is mani-
festly intended to change the definition, or that
necessarily infers a change in it.
Section 7 (4) of the Act, 1870, provides, as we
have already seen, that a public elementary school
" shall be conducted in accordance with the condi-
tions required to be fulfilled by an elementary school
in order to obtain an annual parliamentary grant."
Those conditions, in their most general form,
are set out in Section 97 of the same Act —
" 97. The conditions required to be fulfilled by an
elementary school in order to obtain an annual par-
liamentary grant shall be those contained in the
minutes of the Education Department in force for the
time being and shall amongst other matters provide
that . . .
"(i) Such grant shall not be made in respect of
any instruction in religious subjects :
but such conditions shall not require that the
school shall be in connection with a religious
1 By " administrative definition," I mean the whole body of par-
ticulars—including the articles of the Code— that, at a given
moment, constitute and define our conception of a public elemen-
tary school.
THE EDUCATION ACT OF 1902 17
denomination, or that religious instruction shall be
given in the school, and shall not give any prefer-
ence or advantage to any school on the ground that
it is or is not provided by a school board.
"Provided that no such minute of the Education
Department
• ••••••
shall be deemed to be in force until it has lain for
not less than one month on the table of both Houses
of Parliament."
These two sections taken together constitute
the 1870 definition of a public elementary school.
Does Section 7 (4) of the recent Act change that
definition ?
The affirmative answer seems an easy inference
from the legislation of 1870; but it has no ade-
quate statutory ground, and, if adopted, would
lead to at least one result contrary to the clear
intention of Parliament.
II. A statutory definition perdures until it be
ended or mended by Parliament, and the intention
of Parliament to end or mend is ordinarily ex-
pressed in some enactment which either
(a) formulates a new definition, or
(b) makes or infers some alteration in, or addition
to, the subsisting definition.
Less frequently
(c) we read an amending meaning into an obscure
enactment by gathering from other enactments a cor-
respondent intention to amend, or
B
1 8 DENOMINATIONAL TEACHING UNDER
(d) extend the grammatical meaning of an enact-
ment by constructively interpreting it as amending.
Now, it is clear that the Act of 1902 does not
formulate a new definition of a public elementary
school. Nor does Section 7 (4) of that Act
directly and in virtue of its own words alter the
definition. Its immediate effect is only to add
certain new particulars to the conditions that
must " be fulfilled by an elementary school in
order to obtain an annual parliamentary grant."
But does it infer an alteration ?
A public elementary school must " be conducted
in accordance with the conditions required to be
fulfilled by an elementary school in order to ob-
tain an annual parliamentary grant " (Elementary
Education Act, 1870, Section 7 (4)).
Does this compel us to infer that Section 7 (4)
of the later Act — which, in so many words, re-
quires a new condition to be fulfilled, — now forms
part of the administrative definition of a public
elementary school ? Must we perforce conclude
that a school, in order to be recognised as a public
elementary school, must now fulfil this new con-
dition— must be maintained under and comply
with the provisions enacted by Section 7 of the
Act of 1902 ?
Let us look once more at the primary definition
of 1870: —
" 7. Every elementary school which is conducted in
accordance with the following regulations shall be a
THE EDUCATION ACT OF 1902 19
public elementary school within the meaning of this
Act.
"(4) The school shall be conducted in accord-
ance with the conditions required to be fulfilled
by an elementary school in order to obtain an
annual parliamentary grant."
If we substitute "conditions from time to time
required" for "conditions required," the sug-
gested inference would, I think, be clear and
necessary.
But have we any warrant for making the sub-
stitution? We cannot pretend that the two
phrases are equivalent, or that the absence of
reference to the future in the actual text of the
Statute is, primd facie, insignificant.
The plain, grammatical sense of this Sub-
section does not compel us to infer that con-
ditions later than those of 1870 necessarily furnish
new particulars to the administrative definition of
a public elementary school. We may, indeed,
by a study of some later condition, be led to
believe that it does, in fact, furnish new parti-
culars to the definition ; but, if we reach this con-
clusion, it is not by inference from Sub-section 4,
but from the nature of the given condition and
from its context, — from its context, that is, as
determined, not merely by its place in the statute
which enacts it, but by its place in the general
body of the law. We then say either that
20 DENOMINATIONAL TEACHING UNDER
Sub-section 4 is patient of the change, or that it
has been constructively amended ; but the change
itself we infer, not from Sub-section 4, but from
the meaning and effect of the new legislation.
Section 7 (4) of the Act of 1870 enacts that a
public elementary school " shall be conducted in
accordance with the conditions required to be
fulfilled by an elementary school in order to
obtain an annual parliamentary grant.
In Section 97 of the same Act we have those
conditions stated in their most general form.
"The conditions required to be fulfilled by an
elementary school in order to obtain an annual parlia-
mentary grant shall be those contained in the minutes
of the Education Department in force for the time
being, . . . '
It seems reasonable to hold that Section 97 is
explanatory of Section 7 (4) — to read it, indeed, as
continuing the definition commenced in Section 7.
That section speaks of " conditions required to be
fulfilled," and Section 97 tells us what those con-
ditions are — says that the "conditions required
to be fulfilled " shall be those that it immediately
proceeds to indicate.
It is clear, then, that we have in Section 97 the
conditions referred to in Section 7 (4).
Look yet again at the wording of Section 97.
11 Minutes of the Education Department in force
for the time being." These words make Section
THE EDUCATION ACT OF 1902 21
97 not only definitive, but also regulative. Not
only does it express the then present mind of
Parliament as to the conditions then to be ful-
filled by the then existing schools : it legislates
also for the future. It is, as its grammatical
structure plainly shows, a general regulation
— general, not only for all public elementary
schools, but for all present and future time.
Indeed, it is only a general regulation, and the
administrators of thirty years ago could infer its
then present effect only from words that covered
the future as well. It contains precisely that
provision for future change which is absent from
Section 7 (4), but the provision is made by the
very same words that regulate the present. The
Section is temporally universal over everything
but the past, and legislates for a particular time —
be that time present or future — only by one
general rule.
Just, then, as Section 7 (4) of the 1870 Act
is the primary definition of a public elementary
school, so Section 97 is the primary determinant
of the conditions which a public elementary school
must fulfil "in order to obtain an annual parlia-
mentary grant." They are primary, not only in
time, but also in law.
It seems, then, perfectly reasonable to read
Sections 7 and 97 as constituting one definition —
the 1870 definition of a public elementary school.
In the text of the Act they are, it is true, widely
2^ DENOMINATIONAL TEACHING UNDER
separate, but this results from the structure of
the Act, and probably subserves nothing more
important than now a draughtsman's and now an
administrator's convenience.
The definition of a public elementary school
given in Section 7 is, clearly, an incomplete defini-
tion, for its last sub-section leaves unanswered a
question of the first importance. It says that a
public elementary school " shall be conducted in
accordance with the conditions required to be ful-
filled by an elementary school in order to obtain
an annual parliamentary grant." But what are
those conditions? Until we know them we can
do nothing. Section 7 is ineffectual unless and
until supplemented by Section 97. l It is difficult
to see how this relation between the two sections
could be more accurately expressed than by
describing them as co-efficient in one statutory
definition.
Now, in Section 97, Parliament legislates " by
reference." The conditions it thereby prescribes
are " those contained in the minutes of the Edu-
cation Department for the time being." In this
way it makes provision for future change. The
Minutes referred to constitute what has been
ordinarily called "The Day-School Code." But
that Code is not a finally-completed corpus of
regulations, — any permissible change can at any
1 And, of course, unless and until Section 7 be thus supple-
mented, other parts of the Act also must remain ineffectual.
THE EDUCATION ACT OF 1902 23
time be brought about by means of the Minute-
making power.1
The omission of such a provision for the future
from Section 7 (4) now becomes clearly intelli-
gible. Parliament did not enact a rigid definition ;
it provided for change, but it made the Minutes
of the Education Department the instruments of
change.
The omission also becomes significant. Accord-
ing to Section 7 (4), not every change in the " con-
ditions required to be fulfilled by an elementary
school in order to obtain an annual parliamentary
grant " affects the administrative definition of a
public elementary school, but only changes made
by Minute. It may well be that other changes —
statutory changes — also affect the definition ; but,
if they do, the result follows, not by inference
1 Suppose Parliament to enact a new condition, and that to be
afterwards embodied in a Minute. It will then be one of the con-
ditions " contained in the Minutes of the Education Department
in force for the time being" (Section 97). Will this new con-
dition, when thus embodied, add new particulars to the adminis-
trative definition of a public elementary school ? Apparently not.
The last clause of Section 97 provides that
"no such Minute of the Education Department . . . shall be
deemed to be in force until it has lain for not less than one month
on the table of both Houses of Parliament."
Evidently, when Parliament made provision for a change in the
definition of a public elementary school by departmental Minute,
it had in view only Minutes of a merely departmental authority,
not those that repeat its own enactments. Therefore, Article 77
of the Code — which virtually repeats Section 7 (4) of the Act of
1902— does not add new particulars to the administrative definition
of a public elementary school.
24 DENOMINATIONAL TEACHING UNDER
from Section 7 (4), but by inference, in each case,
from the principiant change.
We have already seen that Section 7 (4) of the
Education Act, 1902, does not itself directly add
new particulars to the administrative definition of
a public elementary school. We now conclude
that the numerically correspondent section of
the Elementary Education Act, 1870, affords no
ground for inferring such an addition from the
new condition of 1902.
III. But can we discover any other ground for
this inference, or can we discover any sufficient
and compelling reason for a constructive exten-
sion of the 1902 enactment?
(i) We must, in the first place, call attention
to an important distinction.
An inference of change grounded upon Section
7 (4) of the Act of 1870 would, in virtue of its
ground in the primary definition of a public ele-
mentary school, be immediately legislative — would
establish the change — unless we could somewhere
discover clear evidence that the change, if made,
would be contrary to the legislating intention of
Parliament. But an inference of change grounded
elsewhere would, ordinarily, not be authoritative
unless supported by a manifest or reasonably pre-
sumed intention. An amendment of a primary
enactment may not be inferred from a secondary
enactment or from an incidental expression, unless
the inference be thus supported.
THE EDUCATION ACT OF 1902 25
Now, in the present case, no such support
exists. On the contrary, Parliament has given
a clear indication that it did not intend the new
condition of 1902 (Section 7 (4), Education Act,
1902) to infer a change in the definition of a
public elementary school.
(2) Section 7 of the Education Act of 1902
consists of seven sub-sections.
The first commences as follows : —
"(i) The local education authority shall maintain
and keep efficient all public elementary schools within
their area which are necessary, and have the control
of all expenditure required for that purpose, other than
expenditure for which, under this Act, provision is to
be made by the managers ; but, in the case of a school
not provided by them, only so long as the following
conditions and provisions are complied with : "
Then follow certain clauses — a, b% c, dt e — in
which these conditions and provisions are set
forth.1
Sub-sections 2, 5, 6, and 7 relate, in various
ways, to the management of non-provided schools,
and to the duties and powers therein of the
Managers and the Local Education Authorities.
1 We have not even the slightest authority for interpreting " the
following conditions and provisions " in Sub-section I as including
the conditions and provisions in Sub-sections 2-7. In their gram-
matical sense — and this sense is always binding, unless sufficient
reason be shown to the contrary — these words refer only to the
conditions and provisions in Sub-clauses a-c, and the Act nowhere
sanctions another interpretation.
26 DENOMINATIONAL TEACHING UNDER
Sub-section 4, as we have already seen, enacts
that —
"(4) One of the conditions required to be fulfilled
by an elementary school in order to obtain a parlia-
mentary grant shall be that it is maintained under and
complies with the provisions of this section."
Obviously, if a non-provided public elementary
school cease to comply with the conditions and
provisions contained in the Sub-clauses (a, b, c, d, e)
of Sub-section i, it will lose its right to mainten-
ance by the Local Authority, and then — because
no longer maintained under and compliant with
the provisions of Section 7 — will also lose its
grant.
Failure to comply with the provisions of Sub-
sections 2, 5, 6, 7, entails, however, only loss of
grant, and, before our argument be ended, we
shall see that there is an entirely reasonable and
valid ground for this distinction.
But, if Sub-section 4 add new particulars to the
administrative definition of a public elementary
school, then a non-provided public elementary
school that fails to comply with the provisions
of Sub-sections 2, 5, 6, 7, will cease to be a public
elementary school, and suffer, not only loss of
grant, but loss of " maintenance."
This, however, would abolish the distinction
between " offences " under Sub-section i and
" offences" under the later Sub-sections. Now,
as this distinction is clearly made by Parliament,
THE EDUCATION ACT OF 1902 27
we presume — and are, we think, methodologically
bound to presume — that it expresses a corre-
spondent legislative intention. But an inference
that would import, through Sub-section 4, new
particulars into the administrative definition of
a public elementary school would, as we have
seen, lead to a result inconsistent with that
intention. As, however, that result follows
necessarily, if Sub-section 4 be construed as
adding new particulars to the administrative
definition of a public elementary school, we
conclude that Parliament — whose necessarily pre-
sumed intention is inconsistent with that result
— did not intend Sub-section 4 to be so construed.
No inference can override the legislative in-
tention of Parliament. Therefore, the suggested
inference, from secondary grounds,1 that Sub-
section 4 alters the administrative definition of
a public elementary school, if logically possible,
were legally inadmissible.2
1 That is, from secondary enactments and incidental provisions
and expressions. (See p. 24.)
2 We have seen that Section 7 (4) of the 1870 Act does not com-
pel us to infer that the numerically correspondent section of the
Act of 1902 enters into the administrative definition of a public
elementary school. But suppose that Section contained the words
"conditions from time to time required" instead of "conditions
required," how should we then interpret Section 7 of the Act of
1902 ? Precisely as we now interpret it.
There would still be the clear distinction between the "offences"
under Section 7 (i) and those under other parts of that Section,
and then, as now, we would be compelled to presume from this
distinction a correspondent legislating intention of Parliament.
This intention, being later than that of 1870, would override it,
28 DENOMINATIONAL TEACHING UNDER
(3) a. But may we not interpret Section 7 (4)
of the Act of 1902 constructively ? Undoubtedly
we may, if sufficient reason for such an inter-
pretation be shown.
A constructive interpretation that would make
that Section infer new particulars into the ad-
ministrative definition of a public elementary
school would, however, be an extensive inter-
pretation,— it would give to the words of the
Statute a meaning wider than that they gram-
matically possess.
Such interpretation should never be used in
judicial or administrative work unless the facts
be compelling — unless, for example, it be neces-
sary in order
(1) To make an enactment intelligible or practicable;
(2) To make plain a " legislative intention of Parlia-
ment " which has otherwise been rightly presumed ;
(3) To harmonise enactments which, without it,
were so discordant as to be abortive ; or
(4) To avoid an inadmissible conclusion.
It may, perhaps, be argued that the last of
these grounds would abundantly justify a con-
structive extension of Section 7 (4).
and would so far amend its resultant legislation as to prevent the
inference of Section 7 (4) of the Act of 1902 into the administrative
definition of a public elementary school.
The altered Section 7 (4) of the Act of 1870 would make this
inference logically necessary ; but the inference would, as we have
seen, be inconsistent with the legislating intention of 1902. There-
fore, although logically necessary, it would be legally inadmissible.
THE EDUCATION ACT OF 1902 29
The argument would run as follows : —
Before the recent legislation the two categories
"public elementary school" and "school in re-
ceipt of parliamentary grant " were co-terminous
and co-incident All public elementary schools
were participant in that grant, and no grant
was made to any school not a public elementary
school.
If, however, the administrative definition of
a public elementary school be not altered by
Section 7 (4) of the Act of 1902, there may
now be public elementary schools which are
not entitled to a grant. There is, however,
nothing in the Education Acts — outside the
Sub-section we are discussing — that suggests
the existence of the new category, nor could it
have concrete existence without entailing at least
one highly-inconvenient result
A non-provided public elementary school
might break all or any of Sub-sections 2, 5, 6,
and 7 — thereby forfeiting its claim to a parlia-
mentary grant — and yet still remain a public
elementary school.
The Local Authority would, therefore, be
bound to maintain it — for the Act does not
make the continuance of maintenance dependent
upon compliance with Sub-sections 2-7 — and
would have to make good, out of its general funds,
the deficit caused by loss of grant.
This result would be so inconvenient that
30 DENOMINATIONAL TEACHING UNDER
the interpretation which leads to it — the inter-
pretation, that is, which restrains Sub-section 4
from altering the administrative definition of a
public elementary school — is clearly inadmissible.
If, however, we constructively extend the
meaning of Sub-section 4, so as to make Sub-
sections 2-7 contributory to that definition, this
result would be prevented. A non-provided
public elementary school that did not comply
with those Sub-sections would not only lose its
grant — it would cease to be a public elementary
school, and, therefore, could no longer be main-
tained by the Local Authority. If maintained
at all, it would be by other than public monies.
The cardinal point in this argument is at the
words "so inconvenient." Undoubtedly, if the
inconvenience were great — if the Act or parts
of the Act were made unworkable, or if great
injustice were done — it would urgently invite a
constructive widening of Sub-section 4, for we
cannot suppose an intention in Parliament to
enact something unworkable, or to do wrong.
But would there, in fact, be " inconvenience " ?
In practical administration there would prob-
ably be none of any relevantly significant
importance.
The category, it is true, looks unfamiliar, but
its statutory grounds are clear, and the practical
differences which it connotes —
(i) the difference between "offences" under
THE EDUCATION ACT OF 1902 31
Sub-section i and those under Sub-sections
2-7.
(2) the difference between Sub-section i and
the other Sub-sections, in their relation to the
school as a teaching institution,
are, as we shall presently see, quite reasonable.
It is, moreover, so far from being in conflict with
" the principles of 1902," that, as we shall also pre-
sently see, it illustrates and defines one of the
fundamental principles of the Act — the principle,
that is, of public control over public elementary
education.
(b) The primary object of Part III. of the Act
is not, as some impassioned sophists would have
us think, to relieve churchmen's pockets, but to
give the new Local Authorities effective respon-
sibility for and control over public elementary
education. This responsibility and this control
are given, in general terms, by Section 5.
" The local education authority shall through-
out their area have the powers and duties of a
school board and school attendance committee
under the Elementary Education Acts, 1870 to
1900, and any other Acts, including local Acts, and
shall also be responsible for and have the control
of all secular instruction in public elementary
schools not provided by them, and school boards
and school attendance committees shall be abol-
ished."
Section 7 (i) makes the gift effectively opera-
tive in non-provided schools.
"The local education authority shall maintain and
keep efficient all public elementary schools within
32 DENOMINATIONAL TEACHING UNDER
their area which are necessary, and have the control
of all expenditure required for that purpose, other
than expenditure for which, under this Act, provision
is to be made by the managers ; but, in the case of a
school not provided by them, only so long as the fol-
lowing conditions and provisions are complied with : —
" (a) The managers of the school shall carry out any
directions of the local education authority as to the
secular instruction to be given in the school, including
any directions with respect to the number and educa-
tional qualifications of the teachers to be employed
for such instruction, and for the dismissal of any
teacher on educational grounds, and if the managers
fail to carry out any such^direction the local education
authority shall, in addition to their other powers, have
the power themselves to carry out the direction in
question as if they were the managers ; but no direc-
tion given under this provision shall be such as to
interfere with reasonable facilities for religious instruc-
tion during school hours ;
" (b) The local education authority shall have power
to inspect the school :
i((c) The consent of the local education authority
shall be required to the appointment of teachers, but
the consent shall not be withheld except on edu-
cational grounds ; and the consent of the authority
shall also be required to the dismissal of a teacher
unless the dismissal be on grounds connected with
the giving of religious instruction in the school ; . . ."
This enactment makes the new authorities more
than school boards and more than school attend-
ance committees, for it gives them powers over
non-provided schools which the earlier authorities
did not possess.1
1 For example, a School Board had no power either to control
the secular instruction or to organise the teaching staff in a deno-
minational school.
THE EDUCATION ACT OF 1902 33
The dualism of our educational machinery is,1
however, still maintained. Voluntary schools are
not transferred en masse to the new Authorities.
They still retain a distinctive character as "non-
provided," a separate ratio essendi, and indepen-
dent rights. But the Local Education Authorities
are given certain powers over them, and certain
rights in them. Those powers and rights are
conferred and defined by Section 7 (i) of the
Education Act, 1902, and, because non-provided
schools, even in their character as public ele-
mentary schools, pass only in part into the hands
of the Local Authorities, that clause is necessarily
distributive — it divides the powers and duties
of maintenance and management between the
Local Education Authorities and the Managers.
It requires the Local Education Authorities to
maintain non-provided public elementary schools,
but makes the continuance of maintenance de-
pendent upon the acceptance by Managers of
this distribution of powers and duties, and upon
the proper fulfilment by them of the obligations
that this distribution leaves with them. If, in
any individual case, Managers do not discharge
their own duties properly, and do not permit the
Local Education Authority to exercise the powers
expressly or by necessary inference conferred
1 " Dualism " because, since 1870, our national machinery for
elementary education has been constituted in part by " provided "
schools, and in part by " non-provided" schools.
C
34 DENOMINATIONAL TEACHING UNDER
upon it, in that case the right to maintenance
ceases.
In principle, this provision seems to be entirely
reasonable. Whether the distribution actually
effected by the clause be perfectly just is another
question, and one that does not, here and now,
concern us. It will be answered variously accord-
ing to the preconceptions and policies of men —
sometimes according to their various convictions
— but not even convictions upon such a matter
should be allowed to affect either the interpreta-
tion or the administration of the clause, for inter-
pretation and administration are ethical arts, and
not even a misinformed conscience can rightfully
corrupt them.
Now, the duties and powers distributed by
Section 7(1) are those that are essentially rele-
vant to the existence of a school as a public
elementary school. In the later Sub -sections
we have other matters regulated which, although
important, are not thus essential.
Section 7 (i) charges a Local Education
Authority with the duty of efficiently maintain-
ing all necessary non-provided public elementary
schools within its area.
It gives that authority
(1) The right of inspection,
(2) full control of all expenditure, " other than
expenditure for which . . . provision is to be
made" by Managers,
THE EDUCATION ACT OF 1902 35
and (3) effective control over
(a) the secular instruction,
(b) "the number and educational quali-
fications of the teachers to be employed
for such instructions,"
and (c) the appointment and dismissal of
teachers.
It secures to that Authority use of the school
premises, including "the teacher's dwelling-house
(if any)," and divides the cost of keeping the
school buildings efficient between the Managers
and the Local Authority. The things herein
dealt with — buildings, teachers, secular instruc-
tion— are the essential constituents of a public
elementary school : the powers and duties hereby
distributed are those essential to the continuance
of such a school as a teaching institution.
Turn now to the other Sub-sections : —
"(2) The managers of a school maintained but not
provided by the local education authority, in respect
of the use by them of the school furniture put of
school hours, and the local education authority, in
respect of the use by them of any room in the school-
house out of school hours, shall be liable to make
good any damage caused to the furniture or the room,
as the case may be, by reason of that use (other than
damage arising from fair wear and tear), and the
managers shall take care that, after the use of a room
in the schoolhouse by them, the room is left in a
proper condition for school purposes.
"(3) If any question arises under this section
between the local education authority and the
managers of a school not provided by the authority,
that question shall be determined by the Board of
Education.
36 DENOMINATIONAL TEACHING UNDER
"(4) One of the conditions required to be fulfilled
by an elementary school in order to obtain a parlia-
mentary grant shall be that it is maintained under and
complies with the provisions of this section.
"(5) In public elementary schools maintained but
not provided by the local education authority, assist-
ant teachers and pupil teachers may be appointed,
if it is thought fit, without reference to religious
creed and denomination, and, in any case in which
there are more candidates for the post of pupil teacher
than there are places to be filled, the appointment
shall be made by the local education authority, and
they shall determine the respective qualifications of
the candidates by examination or otherwise.
"(6) Religious instruction given in a public ele-
mentary school not provided by the local education
authority shall, as regards its character, be in accord-
ance with the provisions (if any) of the trust deed
relating thereto, and shall be under the control of
the managers: Provided that nothing in this sub-
section shall affect any provision in a trust deed for
reference to the bishop or superior ecclesiastical or
other denominational authority so far as such pro-
vision gives to the bishop or authority the power of
deciding whether the character of the religious instruc-
tion is or is not in accordance with the provisions of
the trust deed.
" (7) The managers of a school maintained but not
provided by the local education authority shall have
all powers of management required for the purpose
of carrying out this Act, and shall (subject to the
powers of the local education authority under this
section) have the exclusive power of appointing and
dismissing teachers."
Only three of these — 5, 6, and 7 — are, directly
or indirectly, incident upon the school itself —
upon the school as a teaching institution.
THE EDUCATION ACT OF 1902 37
Section 7 (6) relates only to religious instruc-
tion, and this, as we have seen, does not form
part of the constitutive work of a public elemen-
tary school.
The first part of Section 7 (5) is permissive,
and cannot be broken. The latter part does not
affect either the general organisation or the work
of the school, or the control of that organisation
and work. The function it regulates is not a
function of the school. The power it confers is
exercised, not within the school, but outside the
school, over persons who, as candidates, are also
outside the school. An offending school, if
efficient as a public elementary school before its
offence, would be no less efficient afterwards.
Why, then, should it not be maintained by the
Local Authority ?
It may be said that, although the function
regulated by the latter part of Section 7 (5) is
not a function of the school, it is a function which,
in its exercise, is constitutive of the school, no less
than the powers and functions of appointment
regulated by Section 7(1). We reply —
(1) that the case provided for by this part of Sec-
tion 7 (5) is one of small importance, and one, more-
over, that in practical administration would not be
frequent ;
(2) that, even if this provision were not complied
with, the Local Authority could still, under Section
7 (x)» giye directions as to the number and educational
qualifications of the pupil-teachers to be employed in
38 DENOMINATIONAL TEACHING UNDER
the school, and could refuse consent on educational
grounds to any particular appointment ;
(3) that the Local Education Authority could refuse
to pay the salary of any teacher improperly appointed,
or to recognise him as a member of the staff, whether
the impropriety resulted from an offence under Sub-
section i or Sub-section 5 ;
(4) that an appointment which disobeyed a direc-
tion under Section 7 (i) would entail loss of main-
tenance ;
(5) that an appointment not accordant with the
latter part of Section 7 (5) would not be a valid
appointment, and would, therefore, leave a deficiency
in the staff which
(1) might, under the Code, deprive the school
of its status as a public elementary school, and
thereby destroy or suspend its right to mainten-
ance, and
(2) would certainly involve disobedience to
whatever direction had been issued under Section
7 (i) regulating the number and constitution of
the school staff, and would thereby, also, entail
loss of maintenance ;
(6) that the offence could hardly be committed
unless the Manager or Managers representing the
Local Authority were negligent.
The second part of Sub-section 7 also regulates
a function which, although not a function of the
school, is constitutive of the school as a teaching
institution, and the practical conclusions which
seemed obligatory when, a moment ago, we were
considering the similar regulation in Sub-section 5,
seem obligatory in this case also.
We conclude, therefore, that reasonable grounds
can be shown for the difference, consequent upon
THE EDUCATION ACT OF 1902 39
our interpretation of Section 7 (4), between Sec-
tion 7(1) and the rest of Section 7, and for the
different penalty that we infer for offences against
Section 7(1) and for offences against Section 7
(5 and 6).
But if these offences be reasonable, then the cate-
gory of " a public elementary school not in receipt
of an annual parliamentary grant " is also reason-
able, for it is constituted by those differences.
(c) But not only is this new category reason-
able ; it illustrates and defines one of the funda-
mental principles of 1902 — the principle, that is,
of public control.
(i) It illustrates that principle because, in virtue of
Section 7 (i), a school falling within the category
would — in all the instructional work constitutive of
its character as a public elementary school — be com-
pletely under the control of the Local Authority.
£») It defines that principle by showing that,
ough public control extends over the whole of
secular instruction, a religious offence — if so we may
inaccurately but conveniently term offences under
Section 7 (6) — is not within the range of "public"
interest.
In this way it accurately illustrates the charac-
teristic dualism of our national machinery for
elementary education.
(d) There still, however, remains the clear
and inevitable inference that, if the definition of
" public elementary school " be not altered by
Section 7 (4), a Local Authority may, at any
time, be required to maintain a public elementary
40 DENOMINATIONAL TEACHING UNDER
school that is not grant-earning, and this con-
clusion may, at first sight, not unreasonably seem
anomalous.
But we suggest that the anomaly is only
apparent, and disappears upon a closer scrutiny
of the Act.
It has already been shown that the withdrawal
of maintenance is reasonably made the penalty
for a breach of the " conditions and provisions "
of Section 7 (i), a, b, c, d, e, and that it is, just as
reasonably, not made the penalty for a breach of
the subsequent clauses of Section 7.
Let us now look more closely at Section 7 (4).
It runs as follows : —
" One of the conditions required to be fulfilled by
an elementary school in order to obtain a parliamen-
tary grant shall be that it is maintained under and
complies with the provisions of this section."
It does not say —
"All the provisions and conditions of this section
must be complied with before a school can obtain a
parliamentary grant,"
but only —
"An elementary school in order to obtain a grant
must be maintained under and comply with the pro-
visions of this section."
Analysis may show that, in order to satisfy
this condition, all the provisions and conditions of
Section 7 must be complied with, but we cannot
assume this at the outset : there is nothing in the
wording of Section 7 (4) to compel or warrant
THE EDUCATION ACT OF 1902 41
the inference that the earning of a parliamentary
grant is dependent upon obedience to every pro-
vision and the fulfilment of every condition in
Section 7.
We notice immediately that the grant-earning
subject of the clause is "an elementary school,"
and it is also "an elementary school" that is to
be maintained under and to comply with the pro-
visions of Section 7. Here "elementary school "
must of necessity mean the school as an institu-
tion, not as bricks and mortar, for
(1) grants are earned and obtained only by
teaching institutions, not by buildings ;
(2) the school which is to be maintained under
Section 7 (i) is an institution, and not merely a
building ;
(3) and only a living institution can comply
with provisions, for buildings are quite indifferent
to our regulative contrivings, and even to the
precepts of Parliament.
Therefore, the provisions which, according to
Section 7 (4) cannot be broken without loss of
grant, must be provisions immediately relevant
to the life and work of the school as an institution
— must be provisions with which an institution
can make immediate compliance.
Now, obviously, the provisions of Section 7 (2)
are not provisions of this nature. They relate to
the use of the school buildings and school furni-
ture "out of hours" — that is, when the school, as
42 DENOMINATIONAL TEACHING UNDER
an institution, is only potentially existent, and
cannot comply with any provisions, or be subject
to any duty. Moreover, the earlier part of Sec-
tion 7 (2) merely declares a liability. That part
cannot be broken by any ingenuity of rebellion —
not even by the most energetic " passive resist-
ance"— for no man can be other than " liable" if
Parliament make him " liable."
The earlier part of Section 7 (5) probably re-
lates to the school as an institution, but it is only
permissive, and cannot be broken. The latter
part gives certain powers to the Local Authority,
but it is probably one of the provisions that con-
dition the right to a parliamentary grant. A
school in which pupil-teachers had been appointed
otherwise than in the manner prescribed by this
part of Section 7 (5) could not be said to comply
with the provisions of Section 7, for it would
violate one of those provisions in its very consti-
tution as a teaching organisation.
Section 7 (6) claims careful scrutiny. It does
not make religious teaching compulsory in all
non-provided public elementary schools. Nor is
this surprising, for some of those schools are not
subject to any trusts for religious education. But
where religious instruction is given in such a
school, it must, "as regards its character, be in
accordance with the provisions ... of the trust
deed relating thereto." Further, it must be under
the control of the Managers. Obviously, all this
THE EDUCATION ACT OF 1902 43
affects the school as a teaching institution. A
school in which the religious teaching did not
accord with the relevant provisions of the Trust
Deed governing the school, or was not under
the control of the Managers, would not, as a
teaching institution, comply with the provisions
of Section 7.
The first part of Sub-section 7 is probably only
enabling. It creates no new competence, but
simply makes it certain that no earlier rights
shall intervene to obstruct the lawful action of
the new Managers.
The second part, however, is of a different
character, and probably constitutes one of the
conditions with which an elementary school must
comply " in order to obtain a parliamentary grant"
(Section 7 (4)). It is not directly incident upon
the school, but, nevertheless, a school in which
teachers were appointed or dismissed otherwise
than in accordance with it would not comply with
the provisions of Section 7.
In these Sub-sections, then, there are certain
provisions which, by Section 7 (4), are made pro-
visions conditioning the right to a parliamentary
grant. If a non-provided public elementary school
fail to comply with these provisions, or with any
one or more of them, it cannot obtain a grant.
But, unless disqualified under the Code, it will
continue to be a public elementary school, and, as
such, so long as if complies with the provisions and
44 DENOMINATIONAL TEACHING UNDER
conditions of Section 7 (/), it will be entitled to
maintenance.
But, if such a school continue entitled to main-
tenance, "the Local Authority will be compelled
to make up, out of its general funds, the deficiency
of income caused by the loss of the grant. The
school, therefore, would not suffer because of its
nonconformity. Is this result tolerable ? Does
it not make the penal inference from Section
7 (4) practically ineffective ?
Once more, why should a school suffer from
such nonconformity? If efficient as a public
elementary school prior to its disobedience, there
will be nothing in its disobedience to affect its
efficiency, and, if it continue efficient, why should
it not also continue to receive maintenance?
Cessation of maintenance would entail cessation
of control, and it surely cannot be counted to
us for unrighteousness that our interpretation
of Section 7 (4) would retain public control —
exercised in virtue of Section 7 (i) — over every
public elementary school that is doing efficient
work.
But let us look more closely at the four possible
offences against Sub-sections 5-7, and we will
turn first to Sub-section 6.
Two offences seem possible under this Sub-
section.
Religious instruction in a non-provided public
elementary school might
THE EDUCATION ACT OF 1902 45
(a) be under other control than that of the statu-
tory Managers, and
(b) might not be, " as to its character," in accord-
ance with the Trust Deed.
Neither of these offences are relevant to the
work of a public elementary school, and, there-
fore, loss of maintenance would be an incongruous
penalty.
It might conceivably be argued that, after
" the appointed day," the control of the religious
instruction in a non-provided public elementary
school would, in virtue of Section 7 (6), actually
and immediately pass into the hands of the
statutory Managers, and could not be elsewhere.
If this were so, whoever gave that instruction,
and whatever the instruction given, the control of
the Managers would be omnipresent — exercised
even in abstention. Were this interpretation
valid, the first provision of Sub-section 6 could
not be broken, and where there is no offence,
there cannot be penalty.
It seems, however, the more probable opinion
that the control of the Managers must be prac-
tically and deliberately exercised, even though
exercised only to continue an existing arrange-
ment. If this opinion be valid, it follows that
if the religious instruction be controlled other-
wise than by, or according to the decision of, the
statutory Managers, the penalty inferred from
Section 7 (4) may become incident.
46 DENOMINATIONAL TEACHING UNDER
In fact, however, the Managers' power of
control can hardly remain unexercised if the
representative Managers be vigilant.
If Foundation Managers be obstructive, they
can, if they be Foundation Managers by virtue
of a Trust Deed, easily be removed from office
by an order under the Charitable Trusts Acts,
or if they be Foundation Managers, by virtue
of an order issued by the Board of Education
under Section n of the Act of 1902 they can
be directly or indirectly dealt with under Section
ii (8).
It seems probable that offences against this
part of Section 7 (6), if they ever occur, will be
exceedingly rare, and will always imply negli-
gence on the part of the representative Managers,
for, however obstructive or negligent the Foun-
dation Managers, the non-Foundation Managers
could always take steps that would, at least in-
directly, make the new control of religious in-
struction effectively real.1
If they fail in this duty, the penalty will be
incurred, and, if it be imposed, will fall upon
the Local Authority. But if the Local Authority
1 Section 7 (6) amends the Trust Deeds of all non-provided
public elementary schools — not indelibly, but for so long as they
continue to be public elementary schools. Therefore, if any person,
other than a statutory Manager, exercised control over the religious
instruction, he would be acting contrary to the terms of the Trust,
and, under the ordinary law relating to charitable trusts, could be
restrained from that interference.
THE EDUCATION ACT OF 1902 47
rest content with Managers who will not perform
their duties, it must also rest content — according
to its disposition — with the loss of grant con-
sequent upon their default, and must commit
itself, in resignation or in hope, to the justice or
forgetfulness of its constituents.
It seems probable that offences against the first
enactment in Section 7 (6), although not likely to
be frequent, will also arise most frequently from
the representative Managers, — from non-Founda-
tion Managers who make themselves the agents of
conciliar decrees or the instruments of a conciliar
policy. Individual Managers could probably be
restrained from depraving or corrupting religious
instruction, but the necessary legal process would
be slow and costly, and might easily arouse
passions and prejudices that a legislator were
wise to leave slumbering. Moreover, if success-
ful against particular offenders, A and B, it could
not prevent Councils appointing new Managers
who would repeat the offence. Parliament has,
therefore, created a safeguard which ought to be
effectual. It has made the offence penal, and
the penalty is one that reasonably falls upon the
Local Authority, — reasonably, because the offence
would not ordinarily be committed without the
initiating approval of the Local Authority, or
persisted in without its continued countenance.
As to Sub-sections 5 and 7, we have already
seen that offences against these would probably
48 DENOMINATIONAL TEACHING UNDER
entail loss of maintenance, as well as of grant —
not by inference from Section 7 (4), but by in-
ference from the Code or from Section 7 (i).
If, then, we look at practical rather than
theoretical results,1 we shall conclude that our
suggested interpretation of Section 7 (4) would
entail upon a Local Authority the cost of main-
taining a non-provided public elementary school
not in receipt of an annual parliamentary grant
only where the Authority itself, because of its own
impropriety, might fairly and without anomaly be
held subject to penalty.3
(e) We conclude, therefore, that no ground can
be shown for a constructive widening of Section
7 (4) of the Act of 1902 in such a way as to make
it alter the administrative definition of a public
elementary school.
But we have already seen that Section 7 (4)
does not itself directly make a change in the
1 Nor in thus limiting our outlook shall we depart from sound
principles of interpretation, for legislation is a practical art, and
the legislative intention of Parliament is always practical — is an
intention to regulate practical affairs, not to cover the theoretical
possibilities of a situation.
2 We are now in a position to take a general view of the penalties
inferred from Section 7.
If a school cease to be a public elementary school, or if— con-
tinuing to be a public elementary school — it offend against Section
7 (i), it loses both grant and maintenance.
If, continuing a public elementary school, it offend against any
one or more of Sub-sections 5-7, it loses the grant, and, prob-
ably, an offence against Sub-section 5 or Sub-section 7 will
indirectly entail loss of maintenance as well.
THE EDUCATION ACT OF 1902 49
definition, and that no statutory or other grounds
can be shown for inferring such a change from it.
We further conclude, therefore, that the de-
finition is not changed, that Section 7 (4) of the
Education Act, 1902, does not alter the adminis-
trative definition of a public elementary school.
y. Thus far we have argued —
(1) that, according to the administrative definition
of a public elementary school derived from the Act of
1870, religious instruction is no part of the work of such
a school, and
(2) that Section 7 (4) of the Act of 1902 does not add
to this definition.
Even, however, if — ambitious, like Mr. Ben-
jamin Kidd, to be supra-rational — we admit that
Section 7 (4) modifies the administrative defini-
tion of a public elementary school by adding to
it, we must also admit
(1) that the new legislation does not make religious
instruction compulsory, even in schools governed by
Trust Deeds which require that instruction to be given,
and
(2) that it does not alter the legal incidence of the
primary religious obligations of our Trust Deeds.
(i) Nothing in the Act of 1902 places any con-
straint upon any one to cause religious instruction
to be given in a non-provided public elementary
school.
If religious instruction be given in a school,
that instruction must be, "as to its character," in
accordance with the relevant provisions of the
D
50 DENOMINATIONAL TEACHING UNDER
Trust Deed governing the school. But Section
7 (6) does not make religious instruction compul-
sory. Even if a public elementary school be
governed (subject to the Education Acts) by a
Trust Deed that requires religious instruction to
be given, there is nothing in Section 7 (6) that
makes the giving of that instruction obligatory.
The opening words of that Sub-section only re-
quire that, if religions instruction be actually
given in such a school, it shall be instruction of
the kind given indicated by the Trust Deed.
If the provisions of the Trust Deed be
neglected, and no religious instruction of any
kind be given, the school will not thereby cease
to be a public elementary school, nor will it
incur the penalty inferred from Section 7 (4) of
the Act of 1902. There will then undoubtedly
be a breach of trust, but it is a breach for which
the Act of 1902 does not provide either remedy
or penalty.
If, however, religious instruction be given, and
it be not in character accordant with the govern-
ing provisions of the Trust Deed — if, for instance,
Roman Catholic or Swedenborgian teaching be
given, per impossibile, in a Church of England
school — then, under Section 7 (4), the offending
school will lose its grant, and if it be true — as it
is not — that Section 7 (4) adds certain particulars
to the administrative definition of a public ele-
mentary school, it will cease to be a public
THE EDUCATION ACT OF 1902 51
elementary school, and will thereby lose its claim
on the Local Education Authority for "main-
tenance." This punishment, however, will be a
punishment for giving the wrong kind of religious
instruction, and would not be incurred by failure
to provide religious instruction. That also would
be an offence, but an offence not punished by the
Act of 1902.
But if Section 7 (4) add new particulars to the
administrative definition of a public elementary
school, does it make religious instruction one of
the permissible functions of such a school — a
function which, under Section 7 (i), a Local
Authority is bound to "maintain"? Apparently
not. Immediately, it does no more than this : it
determines the character of the religious instruc-
tion in a denominational non-provided school, if
there be, in fact, any religious instruction given
therein. We can, indeed, hardly say that it does
even this, for in such a school the character of
the religious instruction lawfully permissible
therein is determined primarily by the Trust
Deed. Immediately, Section 7 (6) only con-
firms this primary determination. Mediately,
however, through Section 7 (4), it enforces this
determination by one of the most severe threats
that our statutory machinery for elementary edu-
cation enables Parliament to make : " If the reli-
gious instruction actually given be, in character,
other than that prescribed by the Trust Deed,
52 DENOMINATIONAL TEACHING UNDER
the Board of Education will refuse to recognise
the school as grant-earning." x
And the moment it was resolved to place the
religious instruction in non-provided schools under
the control of the new bodies of statutory Mana-
gers, this — or some equally effective safeguard of
religious trusts — became, if not necessary, at least
pre-eminently desirable.
Probably we could not hold the opening words
of Section 7 (6) to be necessary — in the strict
sense that, had they not been enacted, the reli-
gious teaching in denominational non-provided
schools would have been left shelterless, for that
teaching was already under the strong protection
of the law relating to charitable trusts.
The Trustees of a denominational school derive
from their Trust Deed power to use their trust
property, or to permit it to be used, for certain
defined purposes. Without the express authority
of Parliament or of some Court of competent
jurisdiction, or of the Board of Education, " as
Charity Commissioners," they have not ordi-
narily any lawful power to use or permit the use
1 If it be true that Section 7 (4) is now integral in the adminis-
trative definition of a public elementary school, the threat is even
more severe.
" If the religious instruction actually given be, in character, other
than that prescribed by the Trust Deed, the school will cease to be
a public elementary school, and will lose both grant and main-
tenance."
But we have no statutory ground for inferring this degree of
severity.
THE EDUCATION ACT OF 1902 53
of the premises for any purpose that is not one
of the purposes thus defined, nor, if the deed con-
tain any provisions regulating the constitution or
conduct of the school, have they, without similar
authority, any lawful power to depart therefrom.
They could be restrained from any unlawful use,
or any exercise of unlawful powers, and, through
the intervention of the Court, they themselves
can restrain from offence any other person or
persons misusing the trust-property, even though
the culprits were statutory Managers under the
Act of 1902.
Parliament has, indeed, more than once, made
a general grant of " enabling powers," and thereby
removed, in individual cases, certain restrictions
arising out of a charitable trust. For instance, in
1870 it enacted that
"The managers of every elementary school shall
have power to fulfil the conditions required in pur-
suance of this Act to be fulfilled in order to obtain a
parliamentary grant, notwithstanding any provision
contained in any instrument regulating the trusts or
management of their school, . . ." (Elementary Edu-
cation Act, 1870, Section 99) ;
and a similar gift of competence has since been
made for " the fulfilment of any conditions, the
performance of any duties, and the exercise of any
powers " under the Act of 1902 (Education Act,
1902, Schedule III. (7)).
Again, Section 23 of the Act of 1870 permits
a denominational school to be transferred to a
54 DENOMINATIONAL TEACHING UNDER
Local Authority upon such terms as suspend the
trust completely.1
But Parliament has done nothing to weaken
the legal constraint of those provisions of a
Trust Deed which determine the character of
the religious instruction in a denominational
school.
This constraint, however, is immediately a
constraint upon the executants of a Trust Deed
— upon Trustees and upon Managers who hold
office under a Trust Deed. But Managers
under the Act of 1902 are, primarily, Managers
of a public elementary school. They constitute
a statutory body which exists only in virtue of a
parliamentary enactment, and they are, primarily,
executants, not of a Trust Deed, but of an Act
of Parliament. Therefore, as statutory Mana-
gers, they are not, in any case, bound by the
denominational provisions of the Trust Deed
governing their school. In some cases, it is true,
individual members of the statutory body are also
Trustees or Managers under the Trust Deed,
but, as statutory Managers^ they are neither con-
strained nor bound by the religious provisions ot
the Deed. As statutory Managers, their powers
are derived from Parliament, their duties are de-
termined by Parliament, and nothing that Parlia-
ment has done makes them immediately subject,
1 Because of the provisions for re-transfer in Section 24, it is
probably more accurate to say " suspend " than " terminate."
THE EDUCATION ACT OF 1902 55
as statutory Managers, to the denominational
obligations or restrictions of the Trust Deed
governing their school. They are indeed — as
statutory Managers — Managers " for the purpose
of the Trust Deed," but only " so far as respects
the management of the school as a public ele-
mentary school" (Education Act, 1902, Section
1 1 (6) ). This definition of function leaves de-
nominational teaching beyond the range of their
competence as statutory Managers, for the pro-
vision and " management " of denominational
instruction is neither integral in nor essentially
ancillary to the management of their school as
a public elementary school.
To these Managers Parliament has given the
control of the religious instruction in non-provided
public elementary schools, and by the opening
words of Section 7 (6) has made each body of
statutory Managers subject to the denominational
trusts governing their school — not necessarily to
those trusts in their entirety, but in so far as
they determine the character of the religious
instruction to be given.
Had those opening words not been enacted,
the powers of the new Managers — as to religious
instruction — would, it is true, have been no
greater. The character of the religious instruc-
tion would, in each case, still have been deter-
mined by the provisions of the Trust Deed.
Those provisions ordinarily make religious
56 DENOMINATIONAL TEACHING UNDER
instruction of a certain kind obligatory. That kind
must be given, and no other kind can lawfully be
given. The giving of any other kind could be
stopped by process at law. Now, the gift of
control carries with it no power to change the
nature of that which is controlled. Therefore,
had the opening words of Section 7 (6) not been
enacted, the powers of the statutory Managers
over religious instruction would have been strictly
limited, — not only by the nature of those powers
(which are merely powers of control), but, also,
by the nature of that (a special kind of religious
teaching) which was made subject to those
powers.
But had Section 7 (6) not bound each body of
statutory Managers to observe the denomina-
tional provisions of the Trust Deed governing
their school — in so far, that is, as those pro-
visions determine the character of the instruction
to be given in the school — it would, as we have
seen, have been difficult to enforce the denomina-
tional provisions of a Deed upon a body of
Managers resolved to deprave or corrupt the
teaching they controlled. Parliament has, there-
fore, in Section 7 (4) and Section 7 (6) created a
safeguard which ought to be effectual, and may
fairly be called, if not a legal, at least an
administrative necessity.
(2) But upon whom are the primary denomina-
tional obligation of our Trust Deeds now incident?
THE EDUCATION ACT OF 1902 57
Before the Act of 1902 religious instruction
in a denominational public elementary school
governed by a Trust Deed was provided by the
Managers or by the Trustees. The school
premises were held upon trusts which made
a certain kind of religious teaching obligatory,
and Trustees or Managers who neglected or
refused to discharge the obligation legally in-
cumbent upon them as executants of the trusts
could be removed from office by a simple and
inexpensive procedure under the Charitable
Trusts Acts.
When the Act of 1902 was passed, what
changes did it make in this legal and adminis-
trative system ? At first sight, only two : —
Section 7 (6) placed the religious instruction under
the control of the new body of Managers constituted
by Section 6 (a).1
Section 7 (4), by its inference of penalty, created a
new safeguard for the essential religious trusts.
But the legal obligation which aforetime
admittedly rested upon Trustees or Managers,
I " (2) All public elementary schools not provided by the local
education authority shall, in place of the existing managers, have a
body of managers consisting of a number of foundation managers
not exceeding four appointed as provided by this Act, together
with a number of managers not exceeding two appointed —
II (a) where the local education authority are the council of a
county, one by that council and one by the minor local authority ;
and
"(£) where the local education authority are the council of a
borough or urban district, both by that authority."
58 DENOMINATIONAL TEACHING UNDER
or both, to fulfil their Trusts, by causing religious
instruction of a specified kind to be given in their
schools, still remained with them. It was not
transferred, either expressly or by inference, to
the Local Education Authorities or to the new
bodies of Managers. There is nothing in the Act
of 1902 that enforces, or can, by inference, be
held to enforce, this initial obligation. The
incidence of the opening words of Section 7 (6)
is not upon the Local Education Authorities, but
upon the new Managers. It does not require,
or even permit, a Local Authority to provide
religious instruction : it only imposes upon each
body of statutory Managers the duty of so exer-
cising their control of that instruction as to keep
the instruction accordant, "as regards its char-
acter," with the provisions of the Trust Deed
governing it.
Each Local Authority is required to " maintain
and keep efficient all public elementary schools "
within its area that are necessary (Education Act,
1902, Section 7 (i)), but it is impossible to derive
from these words any duty to provide or maintain
religious instruction.
That instruction forms no part of the constitutive
work of a public elementary school.
If a school be an efficient public elementary school,
the religious instruction given in the school — if any
be given — does not form one of the regulated activities
that make it an efficient public elementary school, and,
if no religious instruction be given, the absence of that
instruction does not detract from efficiency.
THE EDUCATION ACT OF 1902 59
If a school that is a public elementary school be a
subject to trusts which require religious instruction to
be given, it can still be perfectly efficient as a public
elementary school even though, in breach of trust, no
religious instruction be given.
It follows, therefore, that a Local Authority
could completely and perfectly discharge its duties
under Section 7 (i) — could "maintain and keep
efficient all public elementary schools " within its
area which are necessary — without spending one
penny upon religious instruction. Certainly the
" maintenance-duty " of a Local Authority towards
the denominational schools in its area does not
go beyond the meaning of the words just quoted,
and, if the duty imposed by those words can be
perfectly and completely fulfilled without the
maintenance of religious instruction, an Authority
has, under Section 7 (i), no obligation to main-
tain that instruction.
But, as its power of maintenance under Section
7 ( i ) is strictly correlative to its duty of mainten-
ance under that Section, — co-extensive with it
and co-terminous, — if it have no duty to maintain
religious instruction in non-provided schools, it
has no power to maintain that instruction in those
schools.
Therefore, expenditure by a Local Authority upon
religious instruction in non-provided public elemen-
tary schools is illegal expenditure.
We conclude, then, that the primary denomina-
tional obligations of our Trust Deeds are now
60 DENOMINATIONAL TEACHING UNDER
incident where they were aforetime incident, —
upon the Trustees and Trust- Managers of our
denominational schools.
S. I. It may, perhaps, be suggested that
Article 17 of the Code makes religious teaching
a " legitimate function " of a public elementary
school. But this Article is confessedly based upon
Section 97 (i) of the Elementary Education Act,
1870, and we must, I think, regard its effective
meaning as determined exclusively by the mean-
ing of that Section.
In Section 7 of the same Act, Parliament
sets forth " Regulations for Conduct of Public
Elementary Schools''
"Every elementary school which is conducted in
accordance with the following regulations shall be a
public elementary school within the meaning of this
Act.
" (4) The school shall be conducted in accord-
ance with the conditions required to be fulfilled
by an elementary school in order to obtain an
annual parliamentary grant."
In Section 97 Ave have " Conditions of Annual
Parliamentary Grant''
"The conditions required to be fulfilled by an
elementary school in order to obtain an annual par-
liamentary grant shall . . . provide that
"(i) Such grant shall not be made in respect of
any instruction in religious subjects :
THE EDUCATION ACT OF 1902 61
" but such conditions shall not require that the school
shall be in connection with a religious denomina-
tion or that religious instruction shall be given in the
school, and shall not give any preference or advan-
tage to any school on the ground that it is or is not
provided by a school board."
Obviously, in these Sections Parliament has
declared the functions of a public elementary
school only vid negationis. A public elementary
school, as such, is entirely secular. Religious
instruction may, indeed, be given in a school
which is a public elementary school, but that
instruction, if it be given, makes no direct con-
tribution to the character of the school as a
public elementary school, nor does a school
possess that status either more or less securely
or more or less completely if religious instruc-
tion be not given in it. The presence and the
absence of religious teaching are both utterly
irrelevant to the status of a school as a public
elementary school. If, however, religious teach-
ing be given, the school must be conducted in
accordance with the first and second Regulations
of 1870.
"(i) It shall not be required, as a condition of any
child being admitted into or continuing in the school,
that he shall attend or abstain from attending any
Sunday-school, or any place of religious worship, or that
he shall attend any religious observance or any instruc-
tion in religious subjects in the school or elsewhere,
from which observance or instruction he may be with-
drawn by his parent, or that he shall, if withdrawn by
62 DENOMINATIONAL TEACHING UNDER
his parent, attend the school on any day exclusively
set apart for religious observance by the religious
body to which his parent belongs :
"(2) The time or times during which any religious
observance is practised or instruction in religious
subjects is given at any meeting of the school shall
be either at the beginning or at the end or at the
beginning and the end of such meeting, and shall
be inserted in a time-table to be approved by the
Education Department, and to be kept permanently
and conspicuously affixed in every school-room ; and
any scholar may be withdrawn by his parent from
such observance or instruction without forfeiting any
of the other benefits of the school : " (Elementary
Education Act, 1870, Section 7 (i)(2)).
An elementary school may be selective : it
may confine its work within certain social or
denominational lines, but a public elementary
school may not be guarded by any shibboleth, —
it must be open to all. This, then, is the prac-
tical problem solved by the Conscience Clause :
" How can an elementary school, established
and conducted for the children of a particular
religious denomination, be made a public elemen-
tary school? — How can it be thrown open? —
How can its educational utility be made
catholic?"
And, of this problem, the Conscience Clause,
although we have now grown used to it, may well
have been thought, in 1870, the least obvious
solution. It would certainly have illustrated a
simpler theory had Parliament excluded religion
altogether from our schools. On the other hand,
THE EDUCATION ACT OF 1902 63
many would have found in the universal establish-
ment of " simple Bible-teaching " or of undeno-
minationalism, an edifying proof of political and
religious progress. But Parliament neither pros-
cribed an old religion nor created a new one.
It neither suppressed nor modified the religious
functions of non-provided elementary schools. It
said nothing more than this : "You must admit
all children. You may continue your own reli-
gious observances and teaching for your own
children, but you may not compel dissentients
to take part in the one, or to receive the other."
In this way, the denominational elementary
school, without ceasing to be denominational, has
become a public elementary school, but it is public
only in so far as it is secular. It retains all its
old functions, and some of these are outside
everything that is constitutive of its character
as a public elementary school. As a teaching
institution it has a nature wider than anything
denoted by its character as a public elementary
school. In that character it is entirely secular.
It is as an instrument for secular instruction,
and only as such, that it is regulated by Acts
of Parliament and Minutes of the Board of
Education. Every reference in these — else-
where than in the Kenyon-Slaney Clause — to
its additional religious activities is only for the
purpose of establishing and safeguarding its
"public*' character, and it is "in respect" of
64 DENOMINATIONAL TEACHING UNDER
its secular instruction alone that Parliament
makes a grant.
Clearly, then, Article 17 of the Code must be
construed, not as declaring a function of a public
elementary school, but as continuing to denomina-
tional schools their old liberty to be denomina-
tional,— as recognising in the teaching institution
which is a public elementary school, a range of
function wider than that denoted by its character
as a public elementary school. If the Article
were otherwise construed, — if it were under-
stood to make religious instruction a " legitimate
function " of a public elementary school, — it
would be inconsistent with the Statute upon
which it is based, and would bring us face to
face with the conclusion that a purely secular
voluntary school — one in which religious teaching
was neither given nor permitted — would not be
a public elementary school. But this conclusion
no one could accept, for it would be entirely
without statutory authority.
Article 17, however, does more than permit
denominational schools to continue denomina-
tional : it also permits provided schools to be
religious, and herein it but re-affirms the liberty
prospectively recognised by the Cowper-Temple
Clause (Elementary Education Act, 1870, Sec-
tion 14). But if a provided school give reli-
gious teaching, that school, also, has " a range
of function wider than that denoted by its char-
THE EDUCATION ACT OF 1902 65
acter as a public elementary school." Nothing
in the Statutes or in the Code compels to think
that a provided school must be merely a public
elementary school. That, also, if its governing
Authority so will, may, as a teaching institution,
be more than a public elementary school, — may
have a nature wider than its status as a public
elementary school, and exercise at least one
function not constituent in its character as a
public elementary school. Parliament — influ-
enced by a false theory of the State which, un-
fortunately, has dominated English politics for
many years, and is mistakenly regarded by many
earnest people as the chief secular safeguard of
religious liberty, — has endeavoured to give pro-
vided schools a more than denominational range
of religious usefulness by establishing for them a
new religion that no one believes. Fortunately,
the Conscience Clause rules in provided no less
than in non-provided schools. No child is com-
pelled by the State to accept the vague and half-
articulate credenda of Undenominationalism. The
provided school, no less than the non-provided
school, is " public " only in so far as it is secular.
In so far as it is religious, it is not "public" but
sectional. Although it be ordinarily called un-
denominational, it is no less truly denominational
than the ordinary Church School, and neither
in the one case nor the other does the deno-
minational work become constituent in the
E
66 DENOMINATIONAL TEACHING UNDER
character of the school as a public elementary
school.
Article 17, then, does not make religious teach-
ing a " legitimate function " of a public elemen-
tary school.
In so far as a school that is a public elementary
school — be it provided or non- provided — is a
religious instrument, it is not a "public," but a
denominational school. Its religious teaching lies
outside the regulations that make its secular work
genuinely public. It is a public elementary school,
not in any degree or way because of its religious
work, but because only of its secular work — in
spite of its religious work, we may say, if it be
for once permissible to use the crude emphasis of
popular speech.
II. Other Articles in the Code make the
purely secular character of the public elementary
school as such, clearly apparent.
The Annual Grant is, ordinarily, a per capita
grant based upon the average attendance.
" Except where it is specially provided otherwise,
the sum mentioned is the amount of a year's grant
for each unit of average attendance " (Article 96).*
1 Cp. The Free Education Act, 54 & 55 Viet. c. 56 :—
"I. (i) After the commencement of this Act, there shall be
paid, out of moneys provided by Parliament, and at such times
and in such manner as may be determined by regulations of the
Education Department, a grant (in this Act called a fee grant)
in aid of the cost of elementary education in England and Wales
THE EDUCATION ACT OF 1902 67
By Article 12 an "attendance" is defined as
attendance at "secular instruction."
Ordinarily, a public elementary school must
meet not less than 400 times in a year (Article
83), but the Code nowhere lays down either
the initial or terminal hours of meeting. In
Article 12 it defines the "minimum time con-
stituting an attendance," but this minimum time
is to be devoted solely and exclusively to secular
instruction. It is evident from Section 7 of
the Act of 1870 that a school which is a public
elementary school may be open for religious
instruction before the secular instruction begins,
and may continue open for religious instruction
after the secular instruction has ceased.1 But,
except by the necessity which it creates of
devoting a defined minimum time to secular
instruction (Article 12) "at each morning and
afternoon meeting" of the school (Minute, 7th
February 1871), the Board of Education leaves
at the rate of ten shillings a year for each child of the number
of children over three and under fifteen years of age in average
attendance at any public elementary school in England and Wales
(not being an evening school), the managers of which are willing
to receive the same and in which the Education Department are
satisfied that the regulations as to fees are in accordance with the
conditions in this Act."
1 " The time or times during which any religious observances
practised or instruction in religious subjects is given at any meet-
ing of the school shall be either at the beginning or at the end
or at the beginning and the end of such meeting " (Elementary
Education Act, 1870, Section 7 (2)).
? ^^
OF THf
UNIVERSITY 1
nr /
68 DENOMINATIONAL TEACHING UNDER
the duration of the religious instruction — not
only in non-provided, but also in provided schools
— quite unregulated.
Again, consider Article 86.
" 86. The school or infant class must be efficient.
A school or class is regarded as satisfying this Article
if the inspector does not recommend the withholding
of the grant under Article 98 or Article 101 (a). The
grant will not be withheld under this Article until the
following conditions have been fulfilled : —
"(i) The inspector must report the school or
class inefficient and state specifically the grounds
of such judgment, and the Board must, with the
report, give formal warning that the grant may
be withheld under this Article, if the inspector
again reports the school or class to be inefficient.
"(2) The inspector must, not less than twelve
months later, and after a visit paid with due
notice, again report the school or class inefficient,
and again state specifically the grounds of such
judgment.
"(3) If within fourteen days after the receipt
of the second adverse report of the inspector
appeal is made by the managers or by the local
authority against his decision, the school must
be visited and such adverse report must be con-
firmed by another inspector."
We have already seen that it is no part of
the duty of His Majesty's Inspectors "to inquire
into any instruction in religious subjects " given
in a school which is a public elementary school,
"or to examine any scholar therein in religious
knowledge or in any religious subject or book/'
and, because the powers of an Inspector are
THE EDUCATION ACT OF 1902 69
precisely correlative to his duties, it is evident
that an Inspector has no power to inspect what
it is not his duty to inspect. We might there-
fore securely infer that Article 86 is normal only
for secular instruction.
According to that Article the condemnation
of a school as inefficient must be based upon
the Inspector's Report. An Inspector can, how-
ever, report upon — what ? Only upon matters
which are subject to his powers of inquiry and
examination. Religion, however, is not one of
those matters (Elementary Education Act, 1870,
Section 7 (3)). Therefore defective religious
teaching cannot be a ground of "inefficiency,"
nor can sound religious teaching be constituent
in "efficiency." The only instruction that, by
its quality, determines the character of a school
as "efficient," within the meaning of the Code,
or that entails the penalty consequent upon
" inefficiency," is secular instruction.
In other words, it is only as purely secular that
a school is subject to Article 86.
We shall be confirmed in this conclusion if
we refer to Articles 98 and 101 (a). A school
or class is regarded as efficient (Article 86) " if
the Inspector does not recommend the with-
holding of the grant under Article 98 or Article
101
Article 98. — " Grants are made for infant
schools and classes under this Article ; and every
70 DENOMINATIONAL TEACHING UNDER
school or class for which a grant is made under
this Article is an infant school or class.
"A principal grant of 175. or i6s. is made for
infants' schools and classes.
"The Board shall decide which, if either, of
these grants shall be paid after considering the
report and recommendation of the inspector
upon each of the following four points : —
"(a) The suitability of the instruction to the
circumstances of the children and the
neighbourhood.
" (b] The thoroughness and intelligence with
which the instruction is given.
" (c) The sufficiency and suitability of the staff.
"(d) The discipline and organisation.
"The inspector will recommend the higher
grant, unless he is unable to report favourably
upon the school under these heads.
" The course of instruction for infant schools
and classes is given in Article 15 (a).
Article 101. — "Grants are made for schools for
older scholars under this Article, and every school
for which a grant is made under this Article is a
school for older scholars."
"Principal Grant"
"(a) A principal grant of 22S. or 2is. is made
for schools for older scholars.
" (i.) The Board shall decide which, if either, of
these grants shall be paid, after considering the
report and recommendation of the inspector upon
each of the following four points : —
" (a) The suitability of the instruction to the
circumstances of the children and the
neighbourhood.
"(b) The thoroughness and intelligence with
which the instruction is given.
THE EDUCATION ACT OF 1902 71
"(c) The sufficiency and suitability of the
staff.
" (d) The discipline and organisation.
"The inspector will recommend the higher
grant unless he is unable to report favourably
upon the school under these heads.
" The course of instruction for schools for
older children is given in Article 15 (b).
" (ii.) The instruction should be in accordance
with a syllabus, which must be produced to the
inspector at his visit. The inspector may dis-
approve any portion of the syllabus which he
considers unsuitable.
"Specimen schemes of instruction suited to
schools in various circumstances may be obtained
on application to the Board.
"(iii.) In reporting upon the sufficiency and
suitability of the staff, the inspector will have
regard to the fitness of each teacher for the work
allotted to him (or her).
"(iv.) In reporting upon the discipline and or-
ganisation the inspector will have special regard
to the moral training and conduct of the children,
to the neatness and order of the school premises
and furniture, and to the proper classification of
the scholars, both for teaching and examination.
But he will not interfere with any method of
organisation adopted in a training college, if it is
satisfactorily carried out in the school. To meet
the requirements respecting discipline, the in-
spector must be satisfied that all reasonable care
is taken in the ordinary management of the school,
to bring up the children in habits of punctuality,
of good manners and language, of cleanliness and
neatness, and also to impress upon the children
the importance of cheerful obedience to duty, of
consideration and respect for others, and of hon-
our and truthfulness in word and act."
72 DENOMINATIONAL TEACHING UNDER
The courses of instruction given in Article 1 5
(a b) are purely secular •, and if the curriculum of
a school be in accordance with this Article, and
be approved by His Majesty's Inspector, it com-
pletely satisfies the relevant requirements of the
Board of Education (Article 85 b).
According to Article 101 (#), iv., an Inspector,
" in reporting upon the discipline and organisa-
tion" of a school, is to have " special regard to
the moral training and conduct of the children,"
but, clearly, the range of his official interest in
the matters is to be distinctively secular.
"To meet the requirements respecting disci-
pline, the inspector must be satisfied that all
reasonable care is taken, in the ordinary manage-
ment of the school, to bring up the children in
habits of punctuality, of good manners and lan-
guage, of cleanliness and neatness, and also to
impress upon the children the importance of
cheerful obedience to duty, of consideration and
respect for others, and of honour and truthfulness
in word and act."
III. We conclude, then, that the public elemen-
tary school, as such) is entirely secular — we have,
indeed, found reason to believe that it is called
" public " because it is secular. If a school which
is a public elementary school have functions other
than those which, in their regulated exercise, con-
stitute it a public elementary school, those other
functions are — so far as we have seen — neither
controlled nor assisted by Parliament. No grant
THE EDUCATION ACT OF 1902 73
is made " in respect of any instruction in religious
subjects " (Elementary Education Act, 1870, Sec-
tion 97 (i)). It is no part of the duty of His
Majesty's Inspectors "to inquire into any instruc-
tion in religious subjects," or to examine any
scholar " in religious knowledge or in any religious
subject or book" (Elementary Education Act,
1870, Section 7 (3)). " The time or times during
which any religious observance is practised or
instruction in religious instruction is given at any
meeting of the school'1 must, indeed, be "in-
serted in a time-table to be approved " by the
Board of Education, and, under a Minute dated
7th February 1871, the approval of the Board is
given by the signature of the Inspector. But in
that same Minute it is laid down
"(3) That the inspector may approve any time-
table which, while conforming to Section 7 (2) of the
Education Act, in respect of the time or times ap-
pointed for religious observances or instruction, sets
apart for instruction in secular subjects at least two
consecutive hours at each morning and afternoon
meeting, and one hour and a half at each evening
meeting of the school.
" (4) That the inspector shall not express any
opinion as to the time or times appointed for religious
observances or instruction, or as to the nature of such
instruction, but shall confine himself to seeing that
the prescribed amount of time is secured for secular
instruction."
That the Board's approval of a time-table so
signed is not general, but limited, is clearly shown
74 DENOMINATIONAL TEACHING UNDER
by a supplementary " Circular to Her Majesty's
Inspectors," dated 3ist May 1871.
" I am directed to remind you that before approving
a time-table under the minute of 7th February 1871,
you must ascertain that it conforms to Section 7 of
the Elementary Education Act.
" This is all that is essential in order that you should
affix your signature.
"To prevent any misunderstanding on this point, I
am to request that you will enter on time-tables which
satisfy the prescribed conditions, ' Approved on be-
half of the Education Department as fulfilling the
requirements of Section 7 of the Elementary Education
Act, 1870."'
Before approving the time-table of a denomina-
tional school, the Inspector satisfies himself that
the " public " character of the school is properly
safeguarded, according to the provisions of Sec-
tion 7 of the Act of 1870, and, until Circular 512 1
was issued, it was only at this point and in this
way that he came into contact with the religious
functions of the school.
e. " But," we may be asked, " if the public
elementary school, as such, be purely secular,
how can you explain the existence of the Kenyon-
Slaney Clause?" If religious instruction in a
non-provided school were a " legitimate function "
ot that school as a public elementary school, it
1 An examination of Circular 512 would not fall within the scope
of the present note. The argument in the Circular, however, is
not immediately directed to the question now before us.
THE EDUCATION ACT OF 1902 75
might well appear persuasively reasonable to place
it under the control of the statutory Managers.
But, if religious instruction be not constituent
in the character of the school as a public elemen-
tary school, and if it be not, save incidentally-
through its accord with certain conditioning regu-
lations—^ contributory to that character, upon
what ground could the statutory Managers —
who, primarily, are only Managers of the school
in so far as it is a public elementary school —
claim to control it ?
The question is an interesting one, but it should
be addressed to the legislator, not to the expositor.
If the jurist or administrator be at all bound by
the presuppositions of a clause, he is bound only
by those that are logical, not by those that are
merely historical — by its presuppositions in the
order of thought, not by its presuppositions in
the order of genesis. Now, it cannot be con-
tended that the Kenyon-Slaney Clause logically
presupposes more than a secular character in the
public elementary school as such.1 It presup-
poses only an adequate ground, and a capacity in
the Managers adequate to the new work com-
mitted to them. And " adequate ground" can
1 The non-provided public elementary school in which religious
instruction is given is, of course, not merely secular, but, as we have
already seen, that school is more than a public elementary school,
and in this fact we have the ground of its wider character.
76 DENOMINATIONAL TEACHING UNDER
easily be discovered without supposing a doctrine
that is inconsistent with the Code and with the
primary enactments of Parliament.
For example, it might be represented
•
(1) that, here in England, the State has never been
indifferent to religion ;
(2) that the Church of England — ever since the
ambiguous Reformation gave to its catholicity that
distinctively insular expression which some find so
satisfying — has been largely subject to a control
which (in fact, if not always in law) has been lay
control ;
(3) that, because the political, or, as some would
say, the civic results of religious teaching are so im-
portant, no considerable religious denomination can
rightly claim to be wholly private, and, therefore,
exempt from measures intended primarily to safe-
guard the moral interests of the Commonwealth ;
(4) that the clause is, in fact, an effective instrument
for dealing with difficulties that — so people say — are
not adequately met by the Conscience Clause.
Fortunately, neither jurist nor administrator
would be bound by these representations. He
would notice them only because they effectually
exclude the suggested inference from the Kenyon-
Slaney Clause of a religious character in the public
elementary school as such. They disclose a ratio
essendi for the clause which is quite adequate, and
does not infer that character. Therefore, that
character is not a logical presupposition of the
clause, and, therefore, the clause does not affect
our conception of a public elementary school. It
THE EDUCATION ACT OF 1902 77
is perfectly consistent with the opinion that the
public elementary school as such is wholly secular.
K. It may perhaps be said
(1) that the opening words of Section 7 (6)—-" Re-
ligious instruction given in a public elementary school
not provided by the Local Education Authority "
imply
(a) that religious instruction may be given in a
non-provided public elementary school ;
(b) that, if it be given in such a school, it is a
function of a public elementary school ;
and
(2) that, if this be so, religious instruction in such a
school must, under Section 7 (i), be maintained by the
Local Education Authority.
Of course, religious instruction may be given
in a non-provided public elementary school, if
the Trust Deed of the school prescribe it, but,
if given, it is given — according to the argument
we are setting forth — because the school is a
non-provided school subject to certain trusts,
not because the school is a public elementary
school. It is the non-provided school that is
the instrument of the religious instruction, not
the public elementary school. But, nevertheless,
the non-provided school which is thus instru-
mental is a public elementary school, and may
conveniently be spoken of as such. As a non-
provided school it has a nature which, according
78 DENOMINATIONAL TEACHING UNDER
to our interpretation of the Education Acts, is
not wholly expressed in or denoted by its status
as a public elementary school, but — this not-
withstanding— it is a public elementary school.
There are not two institutions — a non-provided
school and a public elementary school — but only
one institution, the non-provided school that is
a public elementary school.
Therefore, although " religious instruction may
be given in a public elementary school," it is not
— if given — "a function of a public elementary
school."
Therefore, because not constituent in the
character of the school as a public elementary
school,1 it cannot be maintained under Section
7 (i) by the Local Authority.
X. It may, perhaps, be urged that Parliament
has nowhere recognised the distinction here
shown between nature and status, — between, let
us say, the denominational school, in the fulness
of its concrete reality, and that distinguishable
but not, in fact, separate part or aspect of it
which is a public elementary school. Possibly
this is true, but Parliament has done more than
recognise the distinction, — it has created it. The
distinction was made, even though not named,
when Parliament, in 1870, permitted schools
which were not merely secular to receive the
1 Nor, as we shall presently see, contributory, as an essential^ to
the being of the school as a public elementary school.
THE EDUCATION ACT OF 1902 79
status of public elementary schools as purely
secular. The actual national school is, in fact —
primarily, as some would say — a religious in-
stitution, but, if recognised as a public elementary
school, that public elementary school (which is
narrower in its range of function than the national
school), is wholly secular, regulated and safe-
guarded by the Code, made " public" by the
Conscience Clause.
When Parliament created the status of " public
elementary school," and permitted denominational
schools to receive that status^ and to continue
denominational, it created also the distinction
upon which we insist.
But, when once the distinction was made,
Parliament had, until 1902, no occasion to advert
to it. The Act of 1870 created the "public
elementary school " as the administrative unit
for public elementary education, and, in legislat-
ing for that education, Parliament had, until 1902,
no occasion to concern itself with whatever teach-
ing functions were exercised, beyond the defini-
tion implied in the Code and the Conscience
Clause, by schools which were public elementary
schools. Ordinarily, those other functions were
religious, and in most denominational schools
they were governed by Trust Deeds or instru-
ments of a similar nature. In each individual
case they were subject to the Charitable Trusts
Acts, and in a large number of cases they were
80 DENOMINATIONAL TEACHING UNDER
subject also to the laws ecclesiastical, or to the
domestic tribunal of some religious denomination.
They were, thus, already under adequate control,
and, as they did not contribute to public elemen-
tary education, the Elementary Education Acts
made no attempt to regulate them.
Because the distinction, when once made,
ceased to invite practical interest, it has not
always been remembered. Even Parliament has
sometimes veiled the awful majesty of its omni-
competence in the language of human frailty,
and has made our legislators seem less remote
from " the ordinary of Nature's workmanship "
by condescending to express its will through
homely infelicities.
Thus, as we have already seen, in Section 7 (6)
of the Education Act, 1902, it uses the words
"a public elementary school," when "a school
which is a public elementary school " had been
more accurate, but, as we have also seen, no
practical inconvenience results from this, nor
does it modify our interpretation of the Act.
Section 20 of the Elementary Education Act,
1876, presents a more serious difficulty.
"The conditions required to be fulfilled by schools
in order to obtain annual parliamentary grants shall
provide that the income of the schools shall be applied
only for the purpose of public elementary schools."
If it be true
THE EDUCATION ACT OF 1902 81
(1) that religious instruction is not a "purpose of
public elementary schools," and
(2) that " income " means the whole income of the
school as a teaching institution,
then, it would follow that no part of the income
of a school that is a public elementary school
could lawfully be spent Jin the "maintenance" of
religious teaching.
But this conclusion would be absurd. There-
fore, either
(1) religious instruction is a "purpose of public
elementary schools," or
(2) " income " does not here mean the whole income
of the school as a teaching institution.
The primary enactments of Parliament and the
principal provisions of the Code make it clear,
however, that the public elementary school, as
such, is purely secular.
Therefore, religious teaching is not a " purpose
of public elementary schools."
Therefore, " income " cannot mean the whole
income of the school as a teaching institution.
What, then, does it mean ? Apparently this—
the whole income of the school as the "grant-
earning subject," — the whole income pertaining to
or arising out of that distinguishable but not in
fact separate part of a school's life which, if
Section 20 be complied with, is grant-earning.
However we interpret " the purpose of public
elementary schools," we must, I think, take the
F
82 DENOMINATIONAL TEACHING UNDER
reference to "income" in this sense. It covers
only the income of the school as "the grant-
earning subject." If a school have other income,
that other income may and, indeed, must be
applied otherwise than to " the purpose of a
public elementary school," but Parliament, in
legislating for public elementary education, is not
interested to control the expenditure of it. Parlia-
ment is, however, most practically interested to con-
trol the expenditure of "the grant-earning subject."
For instance, it could not rightly permit its
grants to be spent otherwise than in public ele-
mentary education — that is, " for the purpose of
elementary schools," and, as " The Law of Public
Education " 1 reminds us, it may rightly prevent
Managers from reckoning expended capital monies
as " grant-earning income."
B. This, then, is the argument for a negative
answer to the question with which we started :
"Does the Education Act of 1902 enable or
compel a Local Education Authority to * main-
tain ' religious instruction in a non - provided
public elementary school ? "
It is contended
(a) that nothing in the Act of 1902 either expressly
or by inference transfers the duty of maintaining that
instruction to the Local Education Authorities,
(b) that the duty of maintenance imposed by Sec-
tion 7 (i) is limited to those particulars which are
1 " The Law of Public Education in England and Wales," by
G. Edwardes Jones and J. C. G. Sykes, pp. 292, 293.
THE EDUCATION ACT OF 1902 83
constituent in or contributory, as essentials, to the
character of a school as a public elementary school,
(c) that religious instruction in a non - provided
public elementary school is not thus constituent or
contributory,
and it is inferred that,
therefore, a Local Education Authority is neither
compelled nor empowered to "maintain'1 religious
instruction in such a school
The affirmative answer may be more briefly
dealt with.
It is usually presented as a direct inference
from the opening words of Section 7(1) of the
Education Act, 1902, and, ordinarily, the inference
is unreasoned. We may assume that it is thought
to be inevitable and self-evident, for no attempt
is made to analyse the statutory premiss, and to
show precisely the constituent elements of mean-
ing that constrain the advance of thought from
the words of the Statute to the administrative con-
clusion that is held to be a necessary conclusion.
Section 7 (i) of the Act of 1902 opens in this
way : —
" The local education authority shall maintain and
keep efficient all public elementary schools within
their area which are necessary, . . ."
The inference —
"Therefore, denominational teaching in a non-
provided public elementary school must be main-
tained by the Local Education Authority "
84 DENOMINATIONAL TEACHING UNDER
appears to presuppose either
(I.) that "the public elementary school/' as a legal
and administrative entity, is identical and co-terminous
with " the school that is a public elementary school " —
that the words "all public elementary schools" are
precisely equivalent to "all schools that are public
elementary schools," or
(II.) that religious instruction is
(1) constituent in or contributory, as an essen-
tial, to the character of a public elementary
school, or
(2) is a " legitimate function " of a public ele-
mentary school.
I. The argument implying this presupposition
may be set forth as follows : —
Section 7 of the Act of 1870 makes no distinc-
tion between nature and status.
The school as a whole is called a public elementary
school.
»•• Therefore, it is the school as a whole that, under
the Act of 1902, is to be maintained by the Local
Education Authority.
Therefore, if denominational teaching be a con-
stituent function of the school, that teaching, not less
than the secular teaching given in the school, is to be
maintained by the Local Authority.
To this we reply : —
1. Section 7 creates the distinction between nature
and status.
2. The apparent designation of the whole school as
a public elementary school is an accident of verbal
expression, and does not compel the inference that a
Local Authority has to maintain all the functions of
a denominational public elementary school.
THE EDUCATION ACT OF 1902 85
1 i ) This point has already been demonstrated.
(2) Section 7 of the Act of 1870 commences
in this way : —
"Every elementary school which is conducted in
accordance with the following regulations shall be a
public elementary school within the meaning of this
Act."
Therefore, in a given individual case, we may
say—
This elementary school — because it is conducted in
accordance with the relevant statutory provisions, — is
a public elementary school.
But this proposition does not require us
to believe that the words " public elementary
school," although applied to the school as a whole
— that is, to the school as an institution — denote
all the constitutive functions of the school.
Take another case. The proposition " This
man is a barrister" does not constrain us to
believe that he is only a barrister. Because he
is a man, he is necessarily more than a barrister.
So it is with the denominational public elemen-
tary school. Just as the achievements which make
a man a barrister do not exhaust the constituent
functions of his life, or express every constituent
in his nature, so the regulated activities which,
by enactment of Parliament, make a denomina-
tional school a public elementary school do not
exhaust the constituent functions of its life or
express every constituent in its nature.
86 DENOMINATIONAL TEACHING UNDER
The name public elementary school has its
ground in the nature of denominational school
as a teaching institution, but that ground is not
co-extensive with that nature.
A public elementary school is a teaching insti-
tution that does a given kind of work in accord-
ance with certain prescribed regulations. It is,
in fact, a certain defined complexus of regulated
activities, and, if it be a denominational school,
that complexus is integral in a larger complexus.
A direction to maintain a public elementary
school has its term in the defined complexus of
regulated activities. If, in a given case — in the
case, for example, of a denominational school —
there be other activities not constituent in that
complexus, those other activities will not be
included in the term of the direction to main-
tain, unless it can be shown that they are con-
tributory, as essentials, to the esse of the defined
complexus.
But we have already seen that the religious
work of a denominational public elementary school
is not thus contributory. Therefore, Section 7
(i) of the Act of 1902 neither empowers nor com-
pels a Local Authority to maintain that work.
II. i. The earlier course of our argument has
already demonstrated that religious instruction is
not constituent in that complexus of regulated
activities which constitutes a public elementary
school. Neither is it in any way contributory, as
THE EDUCATION ACT OF 1902 87
an essential, to the character of a school as a
public elementary school. Religious instruction
in accordance with the Trust Deed is constituent
in the esse of the ordinary denominational school,
which is an institution governed by specific trusts
and existent only in virtue of and, primarily, as
the instrument of those trusts, and if religious
instruction were, in some like manner, necessary
to the very existence of a school as a teaching
institution for the purposes of public elementary
education, one might, perhaps, not unreasonably
claim maintenance for that teaching from the
Local Education Authority. But if, for any
reason, religious instruction can no longer be
given in a non-provided school, or the school
itself continued as non-provided, Sections 19
and 23 of the Elementary Education Act, 1870,
afford wide facilities for continuing the school as
a public elementary school wholly maintained by
the Local Authority without charging that Auth-
ority with the duty of maintaining denomina-
tional teaching therein.
Besides, the primary duty of the Local Educa-
tion Authority, towards a denominational school
is to maintain and keep efficient a public elemen-
tary school in premises provided by the Managers.
But the Managers of a denominational school
governed by trusts can " provide " the premises
only if they be able to continue the use of them
— subject to the Education Acts — in accordance
88 DENOMINATIONAL TEACHING UNDER
with the terms of their trust. If they cannot,
their school has reached the legal term of its
existence, and application should be made to the
Board of Education for a Scheme, under the
Charitable Trusts Acts,
(a) to give the school a new start by removing re-
strictions that the Managers cannot remove, or
(b) to make some other use of the Trust property.
If a denominational school cease to fulfil its
religious obligations, then — unless re-started under
more favourable trusts — it comes to an end. The
Managers no longer have a school that they can
provide. Indeed, they themselves cease to exist
as Managers — although, happily, not as individuals.
II. 2. An examination of the Statutes and the
Code has led us to conclude that religious instruc-
tion is not a " legitimate function " of the public
elementary school as such, — it forms no part of
that denned complexus of regulated activities
which constitutes a public elementary school. It
may be, and ordinarily is, a " legitimate function "
of the school that is a public elementary school —
but it is not constituent in the activities that make
that school a public elementary school, nor is it
contributory, as an essential, to the esse of those
activities. From what statutory words, then, can
we infer that the cost of it must be borne by the
Local Authority ?
III. It may, perhaps, be said that the adminis-
trative conclusion we are now discussing is
THE EDUCATION ACT OF 1902 89
actually inferred, not from the bare letter of
statutory words, but from those words interpreted
according to the well-understood and manifest
intention of Parliament
But what is meant by " the intention of
Parliament"? It is easy to say what is not
meant — or, at least, what ought not to be meant.
The intention of Parliament is not identical with
the intentions of individual legislators, — with the
intentions declared to constituents, or expressed
in Parliamentary debates, — nor are these equiva-
lent to it. It does not denote even the intentions
of Ministers. These are sometimes quite admir-
able, but they determine the legal effect of a
Parliamentary enactment only when a Minister
has done his work so badly that the unsupple-
mented text of his legislation bears no probable
meaning. A draughtsman's intention is, of course,
even less frequently determinant.
It is sometimes half-forgotten
(1) that the explicandum in juristic interpretation is
a law — not a policy or a purpose ;
(2) that the method of juristic interpretation is
grammatical and logical, not historical or pragmatist.
Meaning is determined by content, not by
genesis, and legal effect is determined by mean-
ing and by systematic position in the corpus
legum — not by some antecedent intention.
If a Minister's legislative work be so bad that
9o DENOMINATIONAL TEACHING UNDER
we can make it reasonably effectual only by in-
ferring a meaning from his antecedent intention,
that intention becomes determinant of meaning,
not virtute sua, but because, in the circumstances,
we make use of it as indicating the intention of
Parliament. It is from this latter intention, and
from no other, that we can properly infer a
meaning for an obscure or defective text.
But this interpretative intention of Parliament
is not an actual prius in the order of history. It
is a logical postulate, and when we suppose it as
existent we do so by a necessary convention of
juristic methodology.
It were strictly true to say that all juristic and
administrative interpretation of the law aims, if it
be not abnormal, at nothing more than this —
giving true effect to the intention of Parliament.
It is this legislating intention that creates law —
that gives to written words the force of law.
Where a Statute, taken in its plain, grammatical
sense, has a clear and practicable meaning, we
ordinarily take that meaning to be the true
meaning of the Statute, and make no attempt to
discover the intention of Parliament — although
according to juristic methodology the chosen mean-
ing is made law only by that legislating intention.
But when the enacted text will not yield, even to
our most patient study, a probable meaning,
then we must essay discovery of " intention,"
in order to infer from it, when found, a meaning
THE EDUCATION ACT OF 1902 91
that will make the refractory text reasonably
effectual.
Legislation is an entirely practical art : it
always aims at doing something. A law is not
an opinion : it is a practical precept. It always
prohibits, commands, or permits. Indeed, it is
essential in the very idea of law that, in one or
other of these ways, something be done.
Now, as jurists and administrators we have to
interpret the laws. They are our data, and we
cannot for a moment entertain the thought that
any one of them is not a law — i.e. does nothing.
Our first postulate — and it seems inevitable — is
this : — Parliament never legislates in vain : its
every utterance has some practical result, — some
result in enlarging, controlling, or defining the
activities of men, — and the object of our interpre-
tation is to ascertain that result. Behind every
enacted sentence we presume a legislating in-
tention which makes that sentence law and
determines its meaning. If that meaning be
clear we do not ordinarily advert to the presumed
intention, but sometimes the obscurity of our text
makes that advertence necessary. How do we
then infer that intention which, when we have
found it, we make interpretative? We infer it,
if possible, from something that Parliament has
done, and, primarily, from other parts of the
Statute in which the obscure text occurs. If
we say that the antecedent intention of a Minister
92 DENOMINATIONAL TEACHING UNDER
enters into the ground of this inference, we illus-
trate the ultimate resources of our methodology,
but the induction we point to is one that can
very rarely be necessary.
It follows from this that the " intention of
Parliament" cannot set aside the plain, gram-
matical meaning of an enactment, if that meaning
be clearly shown, by the relevant context of law,
to be the true meaning. In the meaning thus
known to be true we have the "intention of
Parliament." Indeed, that intention exists only
as a presupposition of that meaning : it has no
other content or end than that meaning, and no
other power than power to make that meaning
law. Clearly, then, it cannot set aside that
meaning.
We ordinarily infer a meaning from the intention
of Parliament only when enacted words remain
ambiguous or obscure, even when read in connec-
tion with their full context of law, or when they
yield a meaning which, upon statutory grounds, we
cannot believe to be their intended meaning.
Now, the negative conclusion — that the cost
of denominational teaching in non - provided
schools is not thrown upon the Local Authori-
ties— rests upon grammatical meaning and statu-
tory definition. It is reached by exact and
necessary inference from enacted words precisely
interpreted^ and it does not entail any results
that suggest error.
THE EDUCATION ACT OF 1902 93
Therefore, the canons of scientific interpreta-
tion compel us to accept it as truly expressing
the legislative intention of Parliament — that is,
as binding law.
Therefore, neither " Rome," nor any other
religious denomination, is, in Dr. Clifford's sense,
"on the rates."
APPENDIX
HOURS OF SECULAR INSTRUCTION
A further Note on Section 7 ( i ) (a) of the
Education Act, 1902
Section 7 (i) (a) of the Education Act, 1902,
provides that the Managers of a non-provided
public elementary school
" shall carry out any directions of the local educa-
tion authority as to the secular instruction to be given
in the school, including any directions with respect to
the number and educational qualifications of theteachers
to be employed for such instruction, and for the dis-
missal of any teacher on educational grounds, . . ."
Does this section enable a Local Authority to
fix the initial and terminal hours of the secular
instruction in a non-provided public elementary
school ?
(a) From the words of the section it is appa-
rent that directions " as to the secular instruction
to be given in the school " must have their term
in the instruction itself.
Now, a direction thus determined must, when
carried out, make some change in the instruction
94
THE EDUCATION ACT OF 1902 95
— in the instruction itself. After it has been car-
ried out, the school — as a teaching institution —
will " function differently." In other words, its
instructional work will be different — different in
one or more of the particulars that make its work
instructional and, in co-ordination one with the
other, constitute its teaching activity.
But a direction altering the limiting hours of
secular instruction — a direction, for example, to
commence and finish that instruction half-an-hour
earlier — would leave the instruction untouched.
The school would " function " precisely as before.
No constituent in its instructional work would be
in any way or in the least degree affected. There-
fore, such a direction as to hours — because its
term would not be in the instruction itself — could
not be given under Section 7(1) (a). It might,
perhaps, be said, with sufficient accuracy, to have
its term in the giving of secular instruction, but a
direction as to the giving of secular instruction in
the school is not identical with a direction as to
the secular instruction to be given in the school,
and cannot be subsumed under it.
The relation indicated by the words "as to"
seems, indeed, very vaguely defined, but it must
be a relation between " direction " and " in-
struction." However we interpret "as to" we
cannot interpret it otherwise than as determin-
ing "direction " to "instruction" — as making
" instruction " the term of " direction." We cannot
96 DENOMINATIONAL TEACHING UNDER
argue that, because the relation is vaguely de-
fined, any direction can be subsumed under it
that has the least reference to or connection
with instruction, — that is incident, not upon
the instruction itself, but only upon something
ancillary or circumstantial to the instruction, or
upon some extrinsic incident or characteristic
of it. In one particular the relation is not
vaguely defined. It precisely fixes the term of
" direction." Nothing can be subsumed under
it that is not determined to " instruction," — to
instruction itself.
If we so interpret the words "as to," their
seeming vagueness disappears. They are not
vague, but catholic, and admit every direction
and every kind of direction that has its term
in secular instruction.
Thus interpreted, the first condition in Section
7 (i) (a) becomes a beautifully precise instrument
for placing the instructional work carried on
by the " secular side " of a non-provided public
elementary school completely under the control
of the Local Authority, and for thus far accom-
plishing one of the primary purposes of the
Act. It is, indeed, difficult to see what better
words Parliament could have used. It was im-
possible to foresee every kind of direction that
might become necessary or desirable. The
legislative intention of Parliament was to give
" control " and attach responsibility. Therefore,
THE EDUCATION ACT OF 1902 97
it says, in effect, to the Local Authorities :
" You may give whatever direction you at any
time will to give, provided only that it be
direction having its term in secular instruction."
What better words could have been chosen
than those actually used? Directions "as
to the secular instruction to be given in the
school" — the term of the direction is precisely
indicated, but any and every direction hav-
ing that term can, upon proper occasion, be
issued. Could the definition of authority be
more accurate, or the gift of control more
complete ?
If, however, we venture to depart from this
accuracy of interpretation, and (indifferent to
the sovereign proprieties of speech and thought)
permit ourselves to think that directions "as
to the secular instructions to be given in the
school " can have their term elsewhere than
in the instruction itself, then we degrade a
splendidly-adjusted instrument into a crude and
illiterate expedient.
ft. (I.) But does this interpretation of "direc-
tions . . . as to the secular instruction to be
given in the school" permit us to take the im-
mediately following word "including" in its
natural sense?
At first sight, more than one explanation
seems possible of the clause in which this word
is initial.
G
98 DENOMINATIONAL TEACHING UNDER
We may say —
(1) that it defines the range rather of the
Managers' obedience, than of the directions as to
secular instruction,
(2) that it adds to the powers of Local Education
Authorities by enabling those Authorities to give
directions concerning matters which, had the clause
not been enacted, would have been beyond their
competence,
(3) that it makes plain part of the denotation of
the immediately precedent words — "as to the secular
instruction to be given in the school."
(1) We can say that Section 7 (i) (a) defines
the range of the Managers' obedience only
because that obedience is the necessary cor-
relate of the directive powers given or recognised
by the section. The immediate subject of
definition is "range of powers," not "range of
obedience."
This explanation does not take account of
the fact that the relation indicated by the word
"including" is a relation between two groups
of directions, nor does it make clear how the
second group is included in the first. What is
the character common to the two groups which
enables us to subsume directions "with respect
to" teachers under directions "as to" secular
instruction ?
(2) That which is added to another thing
cannot be said to be included in that other
thing — even after the addition — unless the word
" included " be used in a quite non-natural sense.
THE EDUCATION ACT OF 1902 99
(3) This explanation accurately preserves the
natural sense of " including." But if the words
"directions ... as to the secular instruction to
be given in the school " denote, among other
things, directions u with respect to " teachers,
what is the meaning that gives to those words
a denotation so extensive ? Either of two mean-
ings will suffice. The phrase, "directions . . .
as to the secular instruction to be given in the
school" will cover directions "with respect to"
teachers equally well whether it mean only, as
we suggest it does, "directions that have their
term in the secular instruction " or whether it
denote also directions concerning matters in any
way relevant to or connected with the secular
instruction. But the second of these interpre-
tations has already been rejected, and we cannot
establish it by presuming it from a clause to
which it is not necessary.1
There remains, then, the explanation that the
words " directions ... as to the secular instruc-
tion to be given in the school " denote, among
other things, directions " with respect to "
teachers, because these latter directions are
directions as to secular instruction.
We have already seen that "as to the secular
instruction" means "determined to the secular
instruction " —to the secular instruction itself.
1 Not necessary, because there is another and better explanation
of the clause — namely, the one given in the next paragraph.
ioo DENOMINATIONAL TEACHING UNDER
4 * Directions ... as to the secular instruction"
are directions that have their term in the secular
instruction. But that is where directions " with
respect to " teachers have their term. Therefore,
directions as to secular instruction constitute a
group which includes directions "with respect
to" teachers.
It must not be forgotten that the term of a
direction is something more than merely verbal.
A direction which, when carried out, alters the
instructional work of a school — makes it, in some
particular or particulars, different from what it
was before — has its term in the instruction, even
though instruction be not mentioned in the verbal
form of the direction. We are dealing with con-
crete things — not with mere words — with Local
Authorities, on the one hand, and the instructional
work of schools, on the other, — and any direction
which alters that work is a direction that has
its term therein. Once more — because we are
dealing with concrete things, not with mere words
— we may not separate the instructional work of
a school from the teaching organism by which
that work is carried on. That work is, indeed,
the organism in action — nothing more, and noth-
ing less. We cannot say that, therefore, any
direction which has its term in the teaching
organism is a direction " as to " — that is, deter-
mined to — instruction, but we can and must say
that a direction which so affects the teaching
THE EDUCATION ACT OF 1902 101
organism as to modify its functioning — alter its
work — has its term in instruction. Now, because
"instructional work" is but a name for the work
done by the school through its teaching staff, direc-
tions that affect the constitution of that staff —
" directions with respect to the number and educa-
tional qualifications " of its constituent members
— will affect, in some way or ways, and in some
particular or particulars, the instructional work of
the school. Better teachers will teach better,
and a school will do better work if it have an
adequately large staff than if it be under-manned.
Therefore, "directions with respect to the
number and educational qualifications of the
teachers to be employed for" secular instruc-
tion, "and for the dismissal of any teacher on
educational grounds," are directions that have
this practical term in secular instruction.
Therefore, they are directions " as to " secular
instruction, and form part of — are included in —
the general body of those directions.
Therefore, in Section 7 ( i ) (a) the word " in-
cluding " bears its natural meaning, and in no
way suggests even the slightest departure from
the strictly logical meaning and use of the earlier
words "as to/'1
1 Our inquiry into the second clause of Section 7 (i) (a) sug-
gests, however, the propriety of qualifying our conclusion as to
"hours." Under that Section any Local Authority can give a
direction "as to" the initial and terminal hours of the secular
instruction in any non- provided public elementary school or
102 DENOMINATIONAL TEACHING UNDER
But, if " directions ... as to the secular in-
struction to be given in the school " include
directions "with respect to teachers," why are
the latter separately mentioned ? The answer
must, I think, be — ex abundanti cauteld. Nor
can we regret this careful providence of the
Legislature. Had this separate mention not
been made, we could, indeed, have inferred the
true extension of the words immediately ante-
cedent, but, in the work of practical administra-
tion, we might have sought too curiously for and
attached too great importance to the verbal term
of a direction " as to " secular instruction, and
have been less than properly mindful of the
sovereign fact that, because a direction is prac-
tical, its term must also be practical, and should
be sought primarily in the actual or foreseen
results, not in the mandatory words.
II. Suppose, per impossibile, that we found
reason to reject the foregoing account of the
relation between the two sets of directions men-
tioned in Section 7(1) (a), and were compelled
to think that the second clause of that Section
"adds to the powers of Local Authorities, by
enabling them to give directions concerning
matters which, had that clause not been enacted,
schools within its area, if it can show that the direction, when
carried out, would alter the instructional work of the school or
schools affected by it. But, in ordinary cases, this could not be
shown.
THE EDUCATION ACT OF 1902 103
would have been beyond their competence."
This interpretation would constrain us to "de-
naturalise" the word "including," but it would
not affect our interpretation of the words " as to."
If "directions with respect to" teachers be
additional, the words of the first clause ("direc-
tions ... as to the secular instruction to be
given in the school ") do not cover them.
But, if " directions ... as to the secular in-
struction to be given in the school " denote, not
only directions having their term in the instruc-
tion itself, but, also, all other directions that deal
with matters in any way relevant to or connected
with that instruction, then "directions ... as to
the secular instruction to be given in the school "
would cover directions "with respect to" teachers.
But, ex hypothesis these latter directions are
additional.
Therefore, the relation established by the words
" as to " does not include other directions than
those indicated by the logical meaning of the
relating words.
We reach the same result if we say that Clause 2
"extends" the range of Clause i, by making it
include certain specified directions which, ex hypo-
thesi, are not directions determined to " the secular
instruction to be given in " a non-provided school.
This does not denaturalise " including," but, if
the extension be indeed an extension, then the
words in Clause i cover the directions " with
104 DENOMINATIONAL TEACHING UNDER
respect to " teachers only in virtue of the ex-
tension.
Their denotation, indeed, is altered, but only so
far as to make it include the additional particulars
of Clause 2. The relation " as to" now includes
those additional particulars, but nothing has hap-
pened to bring within it any other directions not
determined to the instruction itself.
But a direction " as to " hours is neither a
direction falling within the additional particulars
of the second clause, nor is it one of the direc-
tions included within the unextended relation
established by the words " as to."
Therefore, a direction as to " hours " cannot be
given under Section 7(1) (a).
y. Section 7 (i) (a) concludes with this
proviso : —
11 no direction given under this provision shall be
such as to interfere with reasonable facilities for
religious instruction during school hours ; "
It may, perhaps, be argued —
(1) that this provision is intelligible only if the
Local Authority would, were the provision absent,
have power to give directions that would restrict
" reasonable facilities for religious instruction ; "
(2) that, ordinarily, only a direction as to " hours "
could restrict those facilities, and, because we cannot
suppose Parliament to have legislated without a prac-
tical end, the conclusion may be drawn ;
(3) that, therefore, " directions . . . as to the
secular instruction to be given in the school " must
cover directions as to " hours."
THE EDUCATION ACT OF 1902 105
Now, if it were true —
(1) that directions as to the hours of secular in-
struction are the only directions that could interfere
with reasonable facilities for religious instruction, and
(2) that the Local Authority, if without power to
regulate hours, could not think itself competent to
give other directions that would restrict those reason-
able facilities,
this inference might be probable.
But would the proviso indeed be without ade-
quate ground if the Local Authorities could not
direct when secular instruction should begin and
end ? In a denominational school religious in-
struction and secular instruction are, or may be,
so widely in contact and so variously related — for
they are functions of one teaching institution and,
in ordinary cases, are given by the same staff —
that it is impossible to say beforehand what
"directions ... as to secular instruction" would
or might interfere with religious liberty. There-
fore, Parliament wisely made no attempt to
enumerate or classify directions, but it enacted
a general prohibition of interference. In effect,
it said to the Local Authorities : " We will not
endeavour to make a list of the powers already
given by the earlier clauses of Section 7 (i) (a\
but we warn you that those clauses do not confer
any power to give directions that would ' in-
terfere with reasonable facilities for religious
instruction in school hours.' We cannot
settle beforehand what directions as to secular
io6 DENOMINATIONAL TEACHING UNDER
instruction would or might interfere with those
facilities, but we enact the general prohibition."
It follows from this that the proviso which
concludes Section 7 (i) (a) does not presume the
existence of this or that particular power. It
only presumes that powers exist or might be
thought to exist, which, if left unrestricted, would
or might have interfered with reasonable facilities,
and this presumption is valid even if the Local
Authorities have not power to give directions as
to hours.
Therefore, we cannot infer this power to the
Authorities from the terms of the proviso. If
they possess this power, it must be inference
from the antecedent enabling clauses of the sec-
tion, and not from its terminable prohibition.
S. The following passage is from " The Law
of Public Education in England and Wales " : —
" It was stated on behalf of the Government in the
House of Commons, on the 8th December 1902, that
this power to give directions included a power to direct
that fees should be abolished in the school, . . ."
This interpretation of the " power to give
directions" supposes that the words "as to"
have a meaning wider than their logical mean-
ing. Had they this wider meaning, they might
suffer or compel the inference that directions " as
to " initial and terminal hours of secular instruc-
tion would be a direction " as to" secular
instruction.
THE EDUCATION ACT OF 1902 107
Now, statements "on behalf of the Govern-
ment " are sometimes of sovereign importance, —
when, for example, they declare or explain a
policy, — and even for the scientific interpretation
of law they are not always quite valueless. It
may sometimes happen that such a statement
discloses grounds for a probably valid inference
of meaning, or at least directly indicates, not the
legislating intention of Parliament — certainly not
that — but the historically antecedent intention of
the legislating Ministers, and sometimes — very
rarely, but sometimes — this temporal prius is
contributory to interpretation. In the present
case, however, the interest of the statement— as
a statement " on behalf of the Government "
— appears to be principally psychological : —
(i) In the first place, a direction to abolish school
fees is not a direction that has its term in secular in-
struction. If given and carried out, it would not, in
any particular, alter the instructional work of the
school or schools subject to it.
Therefore, a power to abolish school fees could
be inferred from the words that permit a Local Autho-
rity to give directions 'as to ' secular instruction, only
if 'as to' were taken in the depraved sense already
rejected, and this departure from logical precision of
interpretation could be justified only by a legislative
intention of Parliament, somewhere sufficiently ex-
pressed, to convey that power by those enabling
words.
That intention is, however, nowhere disclosed.
Therefore, we may not and cannot infer the depraved
meaning that would, in its turn, infer the power.
io8 DENOMINATIONAL TEACHING UNDER
(2) Parliament has, indeed, elsewhere clearly dis-
closed an intention to enable the Local Authorities to
abolish school fees, but the words that disclose the
intention are themselves sufficient to confer the
power, and, therefore, reference to Section 7 (i) (a)
is unnecessary, and, if made, would be ineffectual and
improper.1
The disclosure is made in Section 14, which
clearly presumes the competence of the Local
Authorities to abolish school-fees, and, therefore,
is sufficient to effectively create it.
"Where before the passing of this Act fees have
been charged in any public elementary school not
provided by the local education authority, that autho-
rity shall, while they continue to allow fees to be
charged in respect of that school, pay such proportion
of those fees as may be agreed upon, or, in default of
agreement, determined by the Board of Education, to
the managers."
" So long as they allow fees to be charged. " The
matter is clearly recognised as falling within the
administrative discretion of the Local Authority.
But a discretion recognised by Parliament must
be a real discretion — for the Legislative Power
does not play with words. Therefore, under
Section 14, the Local Authority has power to
permit or to terminate the payment of fees in
non-provided public elementary schools.2
1 Ineffectual, because only an interpretative necessity could
warrant the degradation of "as to." An unnecessary reference
would be entirely without result.
Improper, because, if the intention be otherwise accomplished,
the reference would be merely arbitrary.
2 But not to impose them — at least, not under Section 14.
THE EDUCATION ACT OF 1902 109
We conclude, therefore,
(1) that the power of the Local Authorities to
abolish fees is not derived from Section 7 (i) (a ) ;
(2) that the existence of that power will not warrant
— because it does not compel — a depraved widening
of the cardinal enactment in that section ;
(3) that, as no ground has been shown for thus
enlarging the extension of the words "as to," those
words must be interpreted with logical precision.
If, however, they be so interpreted, they will
not, in ordinary cases, confer on the Local
Education Authorities power to give directions
"as to" to initial and terminal hours of the
secular instruction in non-provided schools.1
i If the main argument of this Appendix be valid, it is quite clear
that a Local Authority cannot derive any power from Section 7 (i) (a)
to issue "Regulations as to Religious Instruction," such as the
2nd and 4th of those issued by the Education Committee of the
Northants County Council.
"2. TIME OF RELIGIOUS INSTRUCTION.
"Secular instruction in all Schools shall commence not later
than 9.45 A.M., and occupy the School hours for the rest of the
day."
"4. PLACE OF RELIGIOUS INSTRUCTION.
" In consideration of the answer given in the House of Commons
by Sir W. Anson to Mr. Halsey, on Friday, the loth June last,
religious instruction of children attending an Elementary School
shall not be given in any place other than the School during the
hours in which the School is open, unless it be in connection with
the withdrawal of children under the Conscience Clause."
Primed by BALLANTYNB, HANSON 6* Co. j
Edinburgh*. London UNIVERSITY
same ^Author
READY EARLY IN OCTOBER 1905
Crown 8vo, 336 pages. Cloth, 53. net
PATRIOTISM
BY HAKLUYT EGERTON
CONTENTS
CHAP.
I. WHAT is PATRIOTISM?
II. THE NATION AS A MORAL ORGANISM.
III. NATIONAL VOCATION.
IV. NATIONAL AUTONOMY.
V. INTERNATIONAL LAW.
VI. THE NATIONAL IDEAL.
VII. THE EXPANSION OF PATRIOTISM.
APPENDIX I
NATURALISM AND PATRIOTISM.
APPENDIX II
CONSERVATISM AND SOCIAL DEMOCRACY.
APPENDIX III
THE GOVERNMENT OF SUBJECT RACES.
LONDON: GEORGE ALLEN
UNIVERSITY OF CALIFORNIA LIBRARY,
BERKELEY
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