Page:The English Reports v1 1900.pdf/1043

Mr. Baron Price, Mr. Baron Page, and Mr. Baron Hale; when, upon reading the charter of Edward VI. the grant of the 13th Eliz. and the indenture tripartite of the [405] 20th Eliz. with the several ordinances or bye-laws thereto annexed, and likewise an ancient book of entries of several letters, and other original letters from the Bailiffs, under their corporation seal, and hearing what was alledged by counsel on both sides; the Court declared the seventh and eighth ordinances or bye-laws to be just and reasonable, and made pursuant to the intent of the said charter of King Edward VI. and thereupon unanimously ordered, adjudged, and decreed, that the relators should elect a fit person, pursuant to the directions given by the said seventh and eighth ordinances; that Mr. Owen, the then Head Schoolmaster, not being chosen pursuant to the said ordinances and charter of King Edward VI. should be displaced; and that the Mayor and Corporation should proceed forthwith to a new election of a Head Schoolmaster, pursuant to the direction of the seventh and eighth ordinances or bye-laws; and ordered costs to be paid to the relators, to be taxed by the Deputy Remembrancer.

From this decree the corporation appealed, and on their behalf it was contended (C. Talbot. J. Willes), that by the letters patent of Edward VI. the sole power of appointing the Schoolmasters was granted to the Bailiffs and Burgesses, and their successors; and that the power thereby given them, with the advice of the Bishop of Litchfield and Coventry, to make ordinances and bye-laws, respected only the order, government, and direction of the school, the stipend and salary of the School-masters, and other things relating to the school, and the rents and revenues thereof; but not to the election or appointment of the Schoolmasters. That no alteration, as to this election or appointment, was made by the indenture of the 23d of May, 13th Eliz. but all that the appellants predecessors thereby covenanted to do, was to pay the several stipends therein mentioned, and to indemnify the Crown against the same, and to employ the residue of the revenues for the better maintenance of the school, according to such orders as should be taken by the said Thomas Ashton; or if he died before any such orders, then according to such as should be taken by the Bishop and the Dean of Litchfield. It was therefore insisted, that the power of appointing Schoolmasters, which, by the letters patent of Edward VI. was vested in the Bailiffs and Burgesses, still remained in the appellants; for this being a trust reposed by the Crown in the Bailiffs and Burgesses, and their successors, they could not divest themselves of such power, or transfer it to any other persons; consequently, that the seventh and eighth ordinances, which were endeavoured to be established by this decree, so far as they concerned the election of the Schoolmasters, were absolutely null and void; as not being warranted by the letters patent, but being repugnant thereto, and contrary to law.

On the other side it was argued (P. Yorke, T. Lutwyche), that the ordinances made by the Bailiffs and Burgesses, with the consent of the Bishop of Litchfield and Coventry, and those made by Mr. Ashton, were strictly pursuant to the tenor of the charter of King Edward VI. and were put into writing according to the directions of that charter; and that no alterations were therein made, save only, that the Queen [406] having by her grant given an additional revenue of £300 per ann. to the school and for other pious purposes; instead of two Masters mentioned in the first charter, the school was then enlarged, and another Master added thereto. That these ordinances had been strictly observed by all the Bailiffs and Burgesses for the time being, and since by the Mayors of Salop for 150 years and upwards; and the Bailiffs or Mayors constantly gave notice of the vacancy of a Head Schoolmaster, to the Master and Fellows of St. John's college, in order for them to elect a fit person, according to the seventh and eighth ordinances, as appeared by the entries of letters to and from the college for that purpose ever since; nor was there one instance of a Head Schoolmaster being otherwise elected, till the present. That Mr. Lloyd, the last Head Schoolmaster, was obliged, by a decree of the Court of Chancery, to surrender his place, for breach of the sixth ordinance, wherein it is ordained, "That no Head Master of the said school can be capable of having any cure of souls, and at the same time keep the said school;" which plainly shewed, that the Mayor and Corporation apprehended the ordinances to be just and still in force. That these ordinances had also received the sanction of the Court of Chancery, so long ago as the 11th of James I. when in a cause between the then Head Master of the school, and the Bailiffs of the town,