According to section 30, existing schools are to be taken into account in considering the supply of school accommodation, and this section gives power to School Boards and the Board of Education to call upon a variety of public functionaries for any information required. Section 38 deals with the question of the Transference to School Boards of existing schools erected or acquired and maintained by contributions for the promotion of education. The General Assembly and Sessional Schools, Episcopalian and Free Church Schools, &c. &c., may be given as examples. Though there is nothing in the Act compelling a transfer of these schools, it is expected that they will be handed over in large numbers to the School Boards. The School Boards have power to accept the transference of such schools, but they cannot purchase them. The transference may be effected by a disposition by those vested with the title, and then recorded. No stamp or other duty is required.


Parish Schools are dealt with under section 23. In regard to these, the heritors and minister are to be superseded by the School Boards as soon as they are elected; and

Burgh Schools (section 24) are to be vested in the School Boards of the burghs, and the Town Councils, or other authorities, are to be superseded accordingly.

Section 40 contains provisions in reference to Evening and Infant schools, the former for scholars above thirteen, and the latter for children under seven years of age. Such schools, when established and kept up by School Boards, are to be considered public schools. Certified Industrial Schools also may be established and maintained by School Boards, with consent of the Board of Education (section 41).

Section 62 contains provisions in reference to higher-class public schools; notably those in regard to the qualifications of teachers, the revenues, fees, and examinations. The School Board of any burgh or parish may resolve, at a meeting specially called, that any school under its charge shall be deemed a higher-class public school. The whole funds and revenues of a higher-class public school are to be administered exclusively for the purposes thereof; the full amount of the fees are to be distributed among the teachers of the school as the School Board may determine (sub-section 3).

It may be observed that it is stated in section 66, that "it is not the duty" of any of H.M.'s Inspectors to inquire into any instruction in religious subjects. It does not say that he shall not make such inquiry, even in his private capacity, but simply that if he does it will be work outside of his duty as Her Majesty's Inspector. He must take care not to examine on religious subjects within the hours set apart for elementary secular instruction. VOL. XVIL NO. CXCIII.-JAN. 1873.



Under section 69 parents are bound to provide elementary secular education for their children between the ages of five and thirteen. Although the speeches of certain members of Committee of the House of Commons implied that their understanding of this section was that the children were to be kept at school for the whole period between the ages of five and thirteen, the Act does not so express it, and a comparison of section 72 with that under consideration, leads to the inference that all that a parent is bound under the Act to do is to secure an elementary education to his children, sufficient to satisfy Her Majesty's Inspectors, between the ages of five and thirteen.

Any one who after due warning from a School Board continues to employ a child under thirteen who has not attended school, and is unable to read and write, shall be deemed to undertake the duty of a parent with respect to such child, and is liable to be proceeded against if he fails to provide it with an elementary education (section 72).

According to section 70 Defaulting Parents will be reported to the School Boards by an officer appointed for the purpose: and the School Boards may (it is left to their discretion) summon such parents before them, and may certify to the Procurator-Fiscal, or to some other person appointed by the School Board, that the parent has been failing in his duty to his children, and he shall prosecute him before the Sheriff. The fine = 20s., or term of imprisonment = fourteen days.


The Conscience Clause (section 68) provides that any child may be withdrawn by his parents from any instruction in religion and from any religious observance. There may be religious instruction and observance at the beginning or end, or, at the beginning and end, of each meeting of the school for secular elementary instruction.

The children need not be withdrawn from the school, but (where the premises admit of it) only from that part of it in which said instruction or observance is going on.

The Fees (section 53) in public elementary schools are to be fixed by the School Boards, and are not to be paid to the teachers, but to the treasurers of the School Boards. They form part of the "School Fund." If the School Boards see fit, they have power to hand them over to the teachers of the schools from which they are derived. In the case of a higher-class public school (such as the High School of Edinburgh), the School Board must distribute the full amount of the fees derived from it among the masters of said school, as said School Board may determine (section 62, sub-section 3).


The Powers of School Boards are large as well as numerous.
A few of the principal of these may be mentioned.

The Power to impose School-Rate (section 44).-The imposition, collection, and recovery of school-rate is to be effected, as a general rule, by means of the Poor-Law machinery existing at the time. Whoever and whatever is liable in poor-rates is equally liable in schoolrate, and whoever and whatever is exempt from the former is also exempt from the latter.

When there is an assessment for the poor, and when it is laid half on owners and half on occupiers, that assessment is to be the measure for the school-rate, which the parochial board will lay on, assess, and collect along with the poor-rates; but when there is no assessment for the poor, or where it is not laid half on owners and half on occupiers, then school-rate is to be assessed for and levied directly by the School Board.

The Power to Borrow is contained in section 45. School Boards may borrow (with consent of the Board of Education) on the security of the school fund and school-rate, with the view of building or enlarging a school-house. School Boards cannot delegate the power of raising money to managers of schools, though they may invest them with all their other powers (section 22).

Section 23 invests the School Boards with all the powers which formerly belonged to the heritors and minister, in regard to parish schools existing at the passing of the Act, viz., 6th August 1872; and in the case of burgh schools (section 24) the School Boards supersede the Town Councils or other authorities, and are invested with all the powers which belonged to the latter. School Boards have power also

To acquire sites for schools (section 37).

To buy or lease all schools existing at 6th August 1872, except those erected or acquired and maintained by subscription or donation (section 37).

To accept the transference of schools existing at 6th August 1872, erected or acquired and maintained by subscriptions or donations (section 38).

To discontinue or change the sites of schools, and to sell land or buildings connected with schools so discontinued (section 36). To commit the management of any school under their charge to managers (section 22).

To fix public elementary school fees (section 53).

To appoint teachers to hold office during their pleasure, and to fix their salaries (section 55).

To appoint their own officers, such as their treasurer (section 48), clerks (section 52), officers to report defaulting parents (section 70), all to hold offices during the pleasure of the School Board.

To summon (though this is left to the discretion of School Boards) defaulting parents and have them prosecuted (section 70). To combine (with consent of the Board of Education) for any purpose relating to public schools (section 42).

To detach (with consent of the Sheriff) parts of parishes, and therewith to form a separate school district (section 17). To establish Infant, Evening, (section 40), and Industrial schools (section 41), and in order to do so to exercise all the powers conferred (by section 37) on School Boards for providing schools.

Parliamentary Grants (section 67) may be made

1. To School Boards, for the public schools under their control. 2. To the managers of any school which the department considers to be efficiently contributing to the secular education of the district.

This section provides that grants shall not be made for1. Instruction in religion.

2. A school (not being a public one), established after the 6th of August 1872, unless the department is satisfied that it is specially required.


Subject to the provisions contained in section 60, teachers in office previous to the 6th August 1872, will not be prejudiced by any of the provisions of the Acts (section 55).

After 6th August 1872, the right to appoint teachers of public schools is with the School Boards. Any vacancy occurring between that date and the election of a School Board for the locality can be filled up only temporarily by those who, under the old law, had the right of appointment.

The principal teacher in a public school must now be the holder of a certificate of competency, or he must have qualifications which are, under section 56, to be considered equivalent.


A teacher appointed previous to the 6th of August 1872 cannot be summarily dismissed by a School Board. If he has been guilty of improper treatment of the scholars, the School Board may lodge a complaint with the Sheriff, before whom the teacher must appear. If the Sheriff finds the complaint proved, he shall deprive the teacher of his office. His sentence is final.

If a School Board consider any teacher incompetent or insufficient they may require a special report on said teacher and his school from one of H.M.'s Inspectors, on which, if they see cause, they may remove him from office: provided that, before judgment, the teacher get a copy of such report, and that said judgment is confirmed by the Board of Education; provided also that parish teachers in office previous to 6th August 1872, who may be so removed, shall have the same rights to retiring allowances as they had under the "Parochial and Burgh Schoolmasters Acts, 1861," in the case of parish teachers dismissed or removed from office (section 60).


A School Board may permit any teacher of a public school to resign on condition of receiving a retiring allowance.

The School Board may assign him out of the School Fund what allowance they think fit. Rights to such allowances under the existing law must be recognised in the case of those appointed under any of the Acts recited in the preamble (section 61). The recited Acts are repealed (section 78).



SINCE the prohibition of wager policies by 19 Geo. II. c. 37, the simplest way of making a handsome profit out of the loss of ships and their cargoes has been by means of valued policies; and it is a question of some moment whether such policies should not be made illegal. In an open policy the assured must prove the actual value of the subject insured in the event of loss; under a valued policy such proof is unnecessary, because the policy is conclusive, unless there be fraud. But where a loss has occurred, it is extremely difficult to prove such excessive valuation as will suffice to defeat the claim under the policy on the ground of fraud. Phillips (s. 2080) says, “That evidence of an excessive representation of the value, and of an overvaluation of the subject, is admissible as a ground of inference of fraud "a definition so vague as to show the difficulty of the proof undertaken by an underwriter defending himself against such a claim. The illustrations to be found in the English books, of cases where such defences have succeeded, show for the most part exorbitant and glaring over-valuation, supported by other circumstances of fraud, and cannot be said to afford much encouragement to state a defence of fraud in ordinary circumstances.

Apart however from fraud, it must be observed that the character of a contract of marine insurance as a contract of indemnity, is changed as soon as a fixed value is put upon the subject insured. In Barker v. Janson, L. R., 3 C. P. 305, 37 L. J. C. P. 105, it was argued that a valuation ought not to stand if it does not carry out the intention of parties, and Arnould and Benecke were quoted for opinions that the question of value might be re-opened in case of enormous over-valuation, even apart from fraud. In that case a ship was insured at a certain value, in ignorance of an accident that had befallen her, on account of which the underwriters asked an abatement in respect that her value had been greatly deteriorated. Mr. Justice Willes said, "I never heard of underwriters claiming such a deduction, nor can I see that it would be equitable, because it would be contrary to the contract." Had it been an open policy, the underwriters could not have been asked to pay more than the ship was worth in her state of repair at the time of the insurance.


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