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. 
 
i 4 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- 
 ticularsincluding 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, d t 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 ) gi ye 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 
 
9 o 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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