Imatges de pàgina
PDF
EPUB

THE EXTIRPATION OF LOLLARDY.

49

of younge peple, not oonly borne and brought forthe in the same Citee, but also of many other parties of this lond, som for lake of Scole maistres in thier oune Contree, for to be enfourmed of gramer there, and som for the grete almesse of Lordes, Merchauntz and other, the which is in London more plenteuossly doon, than in many other places of this Reaume, to such pouere Creatures as never shuld have be brought to so greet vertu and connyng as thei have, ne hadde hit ben bi the meane of the almes abovesaid; Wherefore it were expedient, that in London were a sufficeant nombre of Scoles, and good enfourmers in gramer, and not for the singuler availl of II or III persones, grevoussly to hurte the multitude of yonge peple of all this Lond; For where there is grete nombre of Lerners, and fewe Techers, and all the Lerners be compelled to goo to the same fewe Techers, and to noon other, the Maisters wexen riche in money, and the Lerners pouere in connyng, as experience openly shewith, aynst all vertue and ordre of well puplik." Hence these four 'poor persons' of London prayed that they in their respective parishes might "ordeyne, create, establish and sette, a person sufficiantly lerned in gramer, to hold and exercise a Scole in the same science of gramer, and it there to teche to all that will lerne," and with powers for themselves and their successors to remove and substitute schoolmasters. The Responsio of the Crown ran as follows:The Kyng wille, that it be do as it is desired; so that it be doone by thadvyse of the Ordinarie, otherelles of the Archebisshope of Canterbury for the tyme beyng.”

This petition proves that there had been a large falling off in the number of schools throughout the country, and the only feasible explanation of this fact seems to be the successful attempt to stamp out Lollardy--an attempt that could only have been successful by means of a crusade against unlicensed schoolmasters and masters of grammar of doubtful orthodoxy and by the closing of schools. The extirpation of Lollardy must have involved a widespread destruction of

50

THE KING'S BENCH AND EDUCATION.

the means of education in England, and the work of those who preferred to see England Catholic to England educated was completed by the political organisers of the Reformation, who, in their successful and mercenary attack on the strongholds of Roman Catholicism, destroyed, by one of the strangest ironies of history, many of the remaining strongholds of education.

The Common Law right to teach.

14. At the date of the conflict in London between the secular and the spiritual courts as to the right to teach, the doctrine of the common law on the subject had not yet been authoritatively declared. But the declaration was at hand and the conception was certainly in the air. It will be convenient to pass, therefore, to the case which asserted once and for ever the common law right of all to teach who possessed the capacity. As yet we have not heard the voice of the King's Bench on the question of education nor any of the views of the king's judges. In the fifteenth century we must look for such views in the Year Books. No other nation, probably, possesses so remarkable a record of the personal affairs and daily life of the units of a people as is contained in the English Year Books. These records are a series of official annual law reports produced by the prothonotaries or chief scribes of

The Year

Book 1307-1537.

the courts at the expense of the Crown. They are extant in almost continuous succession from the year 1307 to the year 1537. This extraordinary record of the affairs of men contains unfortunately few cases dealing with education. Educational law cases were chiefly dealt with in local secular or spiritual courts.

There appear to be only some three cases in the Year Books that directly deal with the subject of education and only one of importance. This case belongs to the year 1410 and is fully reported in the Year Book 11 Henry IV.' It

1 "Les Reports del cases en ley, que furent argues en le temps de tres Haut et Puissant Princes les roys Henry le IV. et Henry le V. London,

THE GLOUCESTER GRAMMAR SCHOOL CASE.

51

was referred to with an imperfect citation by Lord Stanley, afterwards Lord Derby, in the House of Commons on June 14, 1839'; this citation was repeated by Earl Russell in the House of Lords on December 2, 18672. The case is in many ways so interesting that a somewhat full note of it from the Year Book may be given with advantage. The action was what was technically known as an Action of Trespass on the Case. From the report it appears that two masters of the Gloucester Grammar School brought an action of trespass against the master of another school; they alleged that the appointment to the Grammar School had immemorially belonged to the Prior of Lanthony near Gloucester; that the said Prior had appointed them in pursuance of his power for the government of the scholars of the school, and for the teaching of infants and others and for other purposes; that the defendant had raised a school in the same town so that where the plaintiffs had been wont to take of a child forty pence a quarter or two shillings a quarter they now took only twelve pence; for which they claimed damages. It was evidently a test case. Horton for the defendant pleaded full defence. Thomas Tickill (Attorney General) said that the plaintiff's writ was bad. Skrene for the plaintiffs argued that it was a good action on the case and that the pleadings showed sufficient substance as to damage.

To this William Hankeford (Justice of the Common Pleas) replied: "Dampnum may be absque injuria. Thus if I have a mill and my neighbour raises another mill whereby the profit of my mill is diminished, I have no action against him although it is damage to me." To this Chief Justice Thirning agreed, and said that "the information of children is a thing spiritual, and if a man retain a master in his house

1679. De termino Hillarii. Anno xI. Henrici IIII. page 47, case 21. Trespas. Action sur le case."

1 Hansard, III. Series, vol. 48, col. 238.
2 Hansard, III. Series, vol. 190, col. 484.

52

THE RIGHT TO TEACH AT COMMON LAW.

to teach his children he damages the Common Master of the town. Yet I believe that he has no action." Skrene replied that the masters of Paul's claimed that there should be no other master in the whole of the City of London except themselves. Then Horton asked judgment if the Court had jurisdiction. Skrene submitted that he could not be heard. And then Horton for the defendant demurred that the writ did not lie.

Skrene replied: "Inasmuch as we can aver the title of the Prior, as above, and that we are suffering damage by his action in drawing away our scholars-for we were wont to take from a scholar 40d. or 2s. a quarter whilst we now take but 12d.-we demand judgment and pray damages."

Hill, J.: "There is a fundamental failure in the case to maintain action inasmuch as the plaintiffs have no estate but merely an uncertain ministry like any other person who, being as well qualified as the plaintiffs are, comes to teach youth. It is a virtuous and charitable thing to do, helpful to the people, for which he cannot be punished by our law."

Thirning, C. J.: "Whether the Prior can prove his right to appoint to the school or not this Court can know nothing of it since the teaching and instruction of the children is a spiritual thing and, since the plaintiffs have claimed the scholars through the appointment of the Prior and upon that have founded their action, which is accessory and dependent on the title of the Prior-which is the principal and spiritual thing, it seems that this action cannot be tried in this Court."

Skrene argued further: "If a market be raised to the prejudice of my market I shall have an assize of nuisance, and, in a common case, if purchasers at my market are disturbed or beaten so that I lose my toll, I should have a good action of Trespass on the Case; and so in this case."

Hankeford, J., replied: "It is not in point, because in your case you would have a freehold and inheritance in the market,

THE GLOUCESTER GRAMMAR SCHOOL.

53

but here the plaintiffs have no estate in the schoolmastership, etc., save for a time uncertain, and it would be contrary to reason that a master could be disturbed from holding school where he pleased save in the case of a university corporation or a school of ancient foundation. And in the case of a mill (as I said before), if my neighbour raise a mill and others who used to grind at my mill go to the other mill whereby my toll is lessened, for this cause I have no action: but if a miller prevent water running to my mill or create any similar nuisance, I shall have such action as the law gives." And the opinion of the Court was that the writ did not lie wherefore it was adjudged that the plaintiffs should take nothing.

There is considerable matter for comment in this case. First as to the school itself. In the portion of Rudder's History of Gloucestershire' relating to the town of Gloucester there is clearly a reference to this school in the following passage. "There was a grammar-school in old Smith-street, on this account called the School-house-lane, given, as appears by the Monasticon, by King Henry II. to the Priory of Lanthony; the masters wherof antiently received 40 den. per quarter, or 2 sol. for each child. But 11° H. 4 only 12 den. In 1535, this house lay void." Haymo Glocestrius was possibly master of this school in 1160 A.D. Andrew Horn, the author of Speculum Justitiaciorum who died in 1328, was a scholar at Gloucester Grammar School.

Value of the 1410 case.

The report of the case is full of suggestions and is of direct and indirect value. The seeming reference by Hankeford, Justice of the Common Pleas, to Thirning's judgment before it was delivered suggests that the various judgments were reserved or considered judgments. Hankeford bases his opinion on the principle of law that a man may be damnified without suffering legal injury, and he relies on the instance, so much

1 A New History of Gloucestershire, printed by Samuel Rudder, 1779, p. 127.

« AnteriorContinua »