EXTENSION OF BENEFIT OF CLERGY TO WOMEN. 39

The extinction of slavery

The spread of education had destroyed the necessity of privilege. That was one thing. The other was the extinctionpartly through education, partly through plague and war and the failure of tenures-of another class. By Edward VI.'s reign the villein in gross was extinct, and there were only a few villeins regardant left-men attached to land that had been ecclesiastical1.

in England.

It

is true that villeinage was a legal fact as late at least as 16182, and base tenure was not swept away in so far as it involved personal slavery until the statute 12 Car. II. c. 24, whilst the copy hold tenure remains to this day as a memorial of the days of slavery. With the dawn of the Reformation, however, we learn that the learned free class and the unlearned slave class had vanished together, merged in the great mass of population to which letters conveyed a definite meaning and tenures conveyed none.

Sir William

Blackstone's summary of position in 1705.

The revival of the doctrine of the Benefit of Clergy after the establishment of a reformed Church was a meaningless and to some extent unconscious and ignorant anachronism to which Parliament not only gave its sanction: the Legislature actually extended the doctrine to women. Blackstone sums up the position as it was in 1705 as follows: "All women, all Peers of Parliament and Peeresses and all male Commoners who could read were discharged in all Clergyable offences; the males absolutely if Clerks in Holy Orders; and other Commoners, both male and female upon branding, and peers and peeresses without for the first offence; yet all liable (except peers and peeresses), if the Judge saw occasion to imprisonment not exceeding a year. And those men who could not read if under the degree of peerage were hanged. Afterwards indeed it was considered

1 Sir Thomas Smith's Commonwealth, Book III. Chap. 10.

2 See the case of Pigg v. Caley, reported in Noy. p. 27; 11 Hargrave's State Trials, p. 342.

40

ABOLITION OF THE BENEFIT OF CLERGY.

that education and learning were no extenuation of guilt, but quite the reverse, and that if the punishment of death for simple felony was too severe for those who had been liberally instructed, it was à fortiori too severe for the ignorant also. And thereupon, by the same statute 5 Anne, c. 6, it was enacted that the Benefit of Clergy should be granted to all those who were entitled to ask it, without requiring them to read by way of additional merit'." This general extension of the Privilegium clericale rendered it valueless as a privilege, since punishment soon fell on privileged and unprivileged alike with a rigour which, though not equal, was almost intolerable in both cases. Benefit of Clergy was not, however, abolished until 1826-7, when the statute 7 & 8 Geo. IV. c. 28, s. 6, swept away that fictional State protection of learning which had existed for nine centuries, and which was almost within one lustrum to be replaced by active State intervention on behalf of elementary education. Benefit of Clergy undoubtedly gave stalwart help to the cause of education in the Middle Ages, but it as certainly lowered the morale of the Church and added nothing to, if it did not detract anything from, the spiritual significance of letters in the history of a nation and in the eyes of the world.

Conflict between civil and spiritual jurisdiction.

12. We now turn back to the end of the fourteenth and beginning of the next century to deal with some of the most interesting portions of the sparse material at our command. We have seen in some detail the extent to which the Legislature and the Church had aided the growth of national education. We have also seen that the the Courts Christian-had a part to play. of that part will be seen later, but it will be convenient to refer here to a record that throws some light upon the strained relations that existed between the temporal and 1 Blackstone's Commentaries, Book IV. Chap. 28.

spiritual courtsThe development

PETITION FROM THE CLERGY.

41

spiritual courts on this very question. Later we shall see that tension revived, but it is certainly a matter of great interest to observe its existence in an acute form in the fourteenth century.

In the year 1393-4 an extraordinary and rare petition was presented to the Crown'. It was a petition from the Archbishop of Canterbury, the Bishop Richard II. of London, the Dean of the Free Chapel of

Petition to

St Martin le Grand and the Chancellor of the Church of St Paul's, London, declaring that by the laws spiritual and by immemorial custom the ordinance, the disposition and examination of the masters of certain schools of the faculty of grammar within the City of London and the suburbs of the same belonged to the petitioners. Nevertheless, of late strange, unqualified masters of grammar (said the petition) held general schools in grammar in the said city to the deceit and illusion of the children, and to the great prejudice of the King's Lieges, and of the jurisdiction of Holy Church. The Petition then went on to inform the King that the masters of the three schools of St Paul's, the Arches, and St Martin's, had pursued their right against these strange masters in the Court Christian: and that, in reply to these proceedings, the strange masters had proceeded against the said three masters in the secular court in order that the said strange masters might hold their general schools without the assent of the Archbishop, the Bishop, the Dean and the Chancellor aforesaid. The petition therefore prayed the king to grant his gracious letters of the Privy Council directed to the Mayor and Aldermen of the said city, commanding them not to mix themselves up with the matter to the prejudice of the Holy Church, so that the matter might be settled in the Court Christian between the two parties according to law and custom. This petition is of great importance. The reader will

1 Rot. Parl. 324.

Courts Christian and secular.

42

SCHOOLS IN THE CITY OF LONDON.

naturally compare the facts contained in it with the dispute at Beverley nearly a hundred years earlier. We may assume that, during the century, the schoolmaster had been fighting for a position that the Church could not control. We shall see later that the Master of Paul's claimed exclusive educational powers in London, and here we see that in at least two suburban, or rather "peculiar," areas the same monopoly was claimed. But these monopolies must have been seriously threatened: nothing else could account for a direct petition to the King in support of the spiritual courts a petition made in the face of the fact that Richard II. had refused in 1391, in answer to a petition from the Commons, to place any limitation to the right of education. There must have been a severe and interesting tussle before the petition was presented. The appeal by the unlicensed schoolmasters to the secular court was a bold and formidable step, but was, as we shall see shortly, by no means a hopeless method of procedure.

Richard II. did not answer the petition, and this must have aided the King's Bench when the same question was raised before it in 1410'. Considering the important personages who promoted the petition, it is surprising that it should have remained unanswered. But it does not seem possible to find any answer or step on the part of the Crown in the proceedings of the Privy Council or in the published records of the City of London. We can only conjecture how the matter ended; the Church, there can be little doubt, suffered a check, for during the succeeding half-century 'many and divers persons" trespassed in the virgin fields of London. The obstinacy of the City is accountable enough. We have no reason to suppose that the City secular court regarded the Court Christian with any peculiar affection or respect and, though doubtless a City court would not

1 See pp. 50-53 infra.

FITZSTEPHEN'S DESCRIPTION OF LONDON SCHOOLS. 43

welcome "strangers," that is to say persons who were not Freemen of the City, with any special favour, yet it might also well be that a City that was ever liberal in its professions, and has always been interested in education both in London and out of London, would look with disfavour on the monopoly which was destined to be broken down by the Crown in 1447.

Schools in

1185.

13. This petition of 1393-4 calls attention to the general subject of education in London. Various early and interesting documents dealing with this London, circa question are fortunately extant. William Fitzstephen, who died about the year 1190, prefaced his life of Becket with a description of the London of his day'. This "descriptio nobililissimae civitatis Londoniae" contains a section describing the schools of London. Stow has printed the descriptio with a somewhat free translation. The section concerning the schools is as follows: "In London three famous schooles are kept at three principall Churches, which they retaine by priviledge and ancient dignity. Notwithstanding by favour of some persons, or Teachers, who are knowne and well reputed for their Philosophie; there are other Schooles upon good will and sufferance. Upon the Holydayes, assemblies flocke together about the Church, where the Master hath his abode. There the Schollers dispute; some use demonstrations, others topicall and probable arguments: Some practise Enthimems, others are better at perfect Syllogismes: Some for a shew dispute, and for exercising themselves, and strive like adversaries: Others for truth, which is the grace of perfection. The dissembling Sophisters turne Verbalists, and are magnified when they overflow in speech; some also are intrapt with deceitfull

1 "The curious preface, entitled 'Descriptio nobililissimae civitatis Londoniae' is by far the most graphic and elaborate account of London during the twelfth century yet remaining." National Dictionary of Biography, tit. William Fitzstephen.

2 Stow's Survey of London, 1632, pp. 703-714.