But in actual practice clerks were not often totally degraded.[[406]] To be deprived of orders was looked upon as a terrible punishment;[[407]] it was the final casting from the fold and was inflicted with great difficulty.[[408]] Three bishops were required to degrade even a deacon; six were necessary to unfrock a priest; and it took twelve prelates to adjudicate upon a bishop.[[409]]
When any were degraded, excommunicated, and sent to the seculars, the sanguinary lay penalties took their course.[[410]] The chief offence for which the Church withdrew all protection was obstinate or repeated heresy. In the earlier period those found guilty were branded on the forehead[[411]] and cast out[[412]] (as once from Oxford, to die of cold and starvation) excommunicate, or they might be imprisoned and have their property confiscated.[[413]] But with the rise and multiplication of militant sectaries, the Church urged the State to proceed to extremities.
Heretics were ruthlessly burned alive by popular custom[[414]] (and were sometimes “lynched” like negro criminals in the United States; vide Lea, Middle Ages, i. pp. 219, 222, 308), and in time this became formally recognised.[[415]] Pedro of Aragon in 1197, the Emperor Frederic II. by the Edict of Cremona in 1238, Louis IX. of France by his Établissements in 1270, and Henry IV.[[416]] of England in 1400, made burning at the stake the legitimate punishment of persistent or relapsed heretics.[[417]]
But it was not the severities of the Church that kept arousing the jealousy and opposition of the secular power. It was the immunity it afforded to those under its protection[[419]] which moved the State to attack clerical privileges, and, in the course of ages, to remove them entirely. In Saxon times lay and episcopal authorities acted closely together, but William of Normandy, doubtless continuing the Continental movement already alluded to, separated the ecclesiastical from the secular courts.
King Henry II. had succeeded to the throne after a period of civil war and devastating brigandage, in which the Church had fortified its position and extended its jurisdiction,[[420]] and was bent upon reasserting the power of the central government. He found that the clergy and the clerks[[421]] were outside his control, and in the middle ages they were a numerous body,[[422]] as many people were received into orders who had little or nothing to do in their own profession, and who were debarred by rule from obtaining a livelihood otherwise.[[423]] So the king employed all his efforts to place the clerks under his justices.
A crucial case arose in 1163. A certain Philip de Broi or de Brois,[[424]] who was probably an Archdeacon of Bedford and a Canon of Lincoln, had previously escaped personal punishment on a charge of manslaughter, but was afterwards denounced as a murderer by Simon FitzPeter, who was one of the king’s justices. On this he protested vehemently and abused the judge. There had been several other cases about that time, including a bad one of murder and rape by a cleric from Worcester,[[425]] and another of homicide out of Salisbury,[[426]] in which the offender escaped with imprisonment, and King Henry took action with great fury.[[427]] He claimed to have been insulted in the person of his delegate, and ordered that de Broi should be brought to trial, not only for this, but for the original manslaughter; he wished, in fact, to send him to the gallows. But the archbishop refused to reopen the matter already tried and decided, but for having insulted the king’s officer the rebellious priest was severely dealt with,[[428]] as he was stripped and flogged before the angry judge, and lost his office and stipend on being banished for two years.[[429]] The king was dissatisfied, desiring nothing less than the death of the canon, and vigorously proceeded towards the subjugation of the clergy.
In 1164 he promulgated the Constitutions of Clarendon, by which he desired that criminous clerks should incur the lay penalties. The offender was first to be accused in the temporal court;[[430]] then tried, convicted, and degraded by the ecclesiastical tribunal; thence sent back for sentence to the secular court, to receive the customary draconic punishments. But Archbishop Becket and the English hierarchy declared that to degrade a clerk and then remit him to the secular judges was to punish him twice for the same offence.[[431]] “Affliction,” they said, quoting a Hebrew prophet,[[432]] “shall not rise up a second time.” All they would concede was that if a clerk after being degraded[[433]] committed the offence again he might be handed over as an ordinary layman.[[434]]
The death of Archbishop Thomas stayed all Henry’s plans as regards the Church. “The temporal courts maintained their claim to bring the criminous clerk before them; they abandoned their claim to punish the degraded clerk.”[[435]] In the thirteenth century it had become the custom that the clerk[[436]] should first be indicted and inquired upon before he could claim his clergy;[[437]] by the reign of Henry VI.—1422–1461—he must first be convicted[[438]] before being passed into the hands of his bishop.[[439]]
In 1261 Archbishop Boniface[[440]] ordered that the clerks in their bishops’ custody for capital crimes should suffer perpetual imprisonment. In 1275 Edward I. expressly ordered that the bishops were to allow no clerks to depart without purgation.[[441]] In 1276,[[442]] the Bigami, i.e. the persons who had been twice married or those who had married widows[[443]] (highly respectable acts at the present time), were excluded from claiming clergy.[[444]] In 1279 Archbishop Peckham decreed in his Constitutions:[[445]] “Let not clerks that are in prison for their crimes, and afterwards delivered to the Church as convicts, be easily enlarged, or admitted to purgation upon too slight pretence, but with all solemnity of law and with such provident deliberation that it may not offend against the king’s majesty or any that have a regard to equity.”
In 1350 there came the statute Pro Clero.[[446]] Many persons had, it appears, been seized by the seculars. By this Act the Church’s privileges were reaffirmed,[[447]] and the offending clerks were ordered to be handed over to the spiritual courts. But for this grant the king demanded that the clerical convicts should thenceforth be safely kept and duly punished, “so that no clerk shall take courage to offend for default of correction.” Thus urged by the Crown, and perhaps fearful of other enactments, Simon Islip, Archbishop of Canterbury, endeavoured to make things harder for the Church’s prisoners. “They are,” he complains, “with so much backwardness and favour committed to gaol, and are so deliciously fed there, that the prison intended for a punishment for their crimes is turned into a refreshment and delicious solace, and they are pampered in their vices by ease and such inducements and yet make their escape out of custody as injurious to them.... And some notoriously infamous criminals, that are in truth wholly without excuse, are yet so easily admitted to their purgations, that every clerk thus delivered (by the secular judge) hath sure hopes of returning to his former evil life by one means or other.... Therefore we have thought fit thus to ordain concerning the imprisoned clerks[[448]] ... (they are) to be closely imprisoned with all proper care and expedition according to the quality of their persons and the heinousness of their crimes, that they may not to the scandal of the Church return to their former way of life from an imprisonment intended for a punishment.” Clerks guilty of bad offences are, on Wednesday, Friday, and Sabbath day, to have bread and water; on the other days, bread and small beer; “but on the Lord’s day, bread, beer, and pulse, for the honour and eminence of that day. And let nothing else be given them by way of alms or gratuity from their acquaintance and friends, or for any pretence or reason whatsoever; nor let any purgation be granted them.” These severe rules, which, coming from the archbishop,[[449]] were, of course, repeated by all the prelates, resembled the penal systems of discipline which reached their maximum of cruelty in the nineteenth century.