By the statute Pro Clero of 1350,[[331]] “all manner of clerks, as well secular as religious, which shall be from henceforth convicted before the secular justices aforesaid for any treasons or felonies touching other persons than the King himself or his royal majesty, shall from henceforth freely have and enjoy the privilege of Holy Church, and shall be, without any impeachment or delay, delivered to the ordinaries demanding them.” This came to mean immunity for all who could read.[[332]]
A man who claimed clergy was examined as to his scholarship, being required to read a passage,[[333]] usually from the 51st Psalm, which was called his “neck verse.”[[334]] Then said the lay Court to the bishop’s representative, “Legit ut clericus?” and the examiner replied, “Legit,” or “Non legit”;[[335]] and the person would either be remitted to the ordinary or sentenced by the judge, although it was forbidden to teach an accused person his letters[[336]] while he awaited trial (and he might have to lie five or six years in the bishop’s prison until he could be presented at the assizes—Pollock and Maitland, Hist. Eng. Law, p. 442); yet foreigners might read from books in their own language,[[337]] and the blind could claim clerkship if they could speak in the Latin tongue.
Clearly, to be tried by the Ecclesiastical Courts was looked upon as being a privilege and an advantage by the person accused.[[338]] He had every chance of acquitting himself[[339]] by means of the Canonical Purgation (see Compurgation, ante);[[340]] and even if he happened to be condemned by bishop or abbot,[[341]] in case he failed to obtain the necessary compurgators, or were delivered over absque purgatione (i.e. not allowed to make his purgation),[[342]] or even if, from religious fears, he refused to swear innocence,[[343]] the ecclesiastical punishments were generally merciful, except for such deadly sins as heresy or witchcraft.
The clergy were forbidden by the Canons to impose sentences of death or mutilation;[[344]] the injunction was repeated by Archbishop Ecgberht.[[345]] “We threaten anathema,” wrote Archbishop Richard in the year 1175,[[346]] “to that priest who takes the office of sheriff or reeve.” Again in 1215 were the clergy forbidden the judgment of blood.[[347]] They were not, said a Council of Toledo,[[348]] to sit as judges, even at the command of a ruler, in cases of treason, unless he first promised to remit the red penalties. At the Council of Auxerre[[349]] the clergy were prohibited from witnessing the usual torturing, of the prisoners, or from lingering round the trepalium when it was in progress. In fact, except for acts or thoughts which it considered to be high crimes against the soul, the Church was milder than the mediæval State.
The Church being debarred from the employment of the swift and sanguinary penalties of those times, had to resort to other methods of disapproval, and it evolved the penitential discipline. At first it wielded only spiritual weapons—none the less terrible in those days because they were ghostly—and by refusing access to Church or Communion, and thereby (as all concerned fully believed) closing on kings the everlasting doors, it sometimes brought the mightiest to their knees to implore pardon from the priests of God.[[350]] On confessing a crime, or upon being condemned, all manner of tasks and toils were laid upon the penitent. Sometimes they were capricious and poetic; thus if a man had slain his near kindred,[[351]] the weapon with which the deed was committed could then be forged into a penal chain, and, bound therewith, arrayed in the sclavinia,[[352]] or, it might be, naked, he would have to trudge away, staff in hand, to his destination, which might be some local shrine, or that of St. Thomas of Canterbury; but which might be far off, across and beyond the seas, to Compostela, Rome, or Palestine.[[353]] The ordinary penitent wore no chains, but he was usually required to go unarmed, to eat no flesh, to take no strong drink, and to abstain from warm baths, and sometimes he had to fulfil weird and painful conditions particularly imposed by his penitentiary;[[354]] as, for instance, when Robert, called the Devil, was ordered by a certain hermit[[355]] to eat only bones and scraps which had been thrown to dogs, and to be dumb and act like one insane. Our own King Edgar[[356]] was condemned not to wear his crown for seven years. Examples could be multiplied indefinitely. A much-employed form of correction consisted in imposing penitential fasts,[[357]] during which the offender was to subsist upon bread and water,[[358]] and was subject to many disabilities and restrictions.[[359]] These sentences might be for any period ranging from a single day to twenty years, and even longer, and all the while the penitent was supposed to drag out his existence in shame and disgrace, making prayers for deliverance.[[360]]
The Church allowed class distinctions in several ways;[[361]] offences might be punished according to the rank of the aggrieved party, so that the penance for the murder of a bishop was for twelve or fourteen years, or longer, upon bread and water, while the slaying of a deacon could be atoned for by seven or ten years’, and of a layman by four, five, or seven years’ discipline.
On the other hand, people, and especially the clergy, were liable to be sentenced more severely in proportion to their rank.[[362]] Thus for homicide, where a layman would get four or five years’ penance from the ordinary,[[363]] a clerk would receive six years, a priest ten, and a bishop as much as twelve years (seven on bread and water).[[364]] These long-enduring penances sound severe, and doubtless were for devout believers. But the Roman Church, always a marvel of organisation, allowed its bishops very great latitude, both in imposing and removing penances. “I require not the continuance of time,” said Chrysostom, “but the correction of the soul; demonstrate your contrition, demonstrate your reformation, and all is done.” By the authority of the Councils[[365]] they could increase or mitigate sentences,[[366]] so that the infirm and the over-sensitive might have their tasks modified.[[367]]
But they dealt gently with the men of might;[[368]] the wind was tempered to the woolly lamb.[[369]] In spite of Cuthbert’s Canons at Cloves-Hoo in the eighth century,[[370]] the rich were generally enabled to perform their pilgrimages vicariously (whereby there had arisen a class of professional pilgrims; Thrupp, p. 239, etc.), and to atone for sins by almsgiving and payment.[[371]] “Thou hast money, buy off thy sin,” Ambrose had written in the fourth century.[[372]] “The Lord is not for sale, but thou thyself art for sale. Restore thee by thy works. Buy thyself back by thy money.”
This exhortation was followed and given the lowest possible interpretation in the Canons made (by Dunstan, probably) in the reign of King Edgar in the year 963.[[373]] When a great man had been condemned to fast, say seven years, he was to lay aside his weapons, and take his staff in his hand and walk barefoot, clad in wool or haircloth, and he was not to go to bed or banquet for three days.
He was to take to his assistance twelve men, and they were to fast three days on bread, raw herbs, and water: thus thirty-six fasts were kept. He was to get together seven times 120 men and set them to fast three days; thus he secured 7 × 120 × 3 + 36 fasts, or 2556, which meant as many fasts as there were days in seven years, counting a leap year! And thus his penance was done, or rather evaded.[[374]]