But there seems good reason to believe that the Church’s treatment of its prisoners remained, on the whole, mild and humane. The clergy were not hardened prison officials; their calling was spiritual rather than military. They were dealing with men belonging more or less to their own order, and were prone to class loyalty.[[450]]
In the light of subsequent criticism and legislation,[[451]] it seems that even after Islip’s ordinance the Church’s convicts were much better treated than were the laymen in the common gaols. Moreover, either (or both) from a sense of humanity,[[452]] or because the bishops disliked having to pay for the keep of their prisoners,[[453]] long sentences were avoided and life sentences were inflicted as rarely as possible; the prisoners would be pardoned[[454]] on jubilees and special occasions, and sometimes released on their friends paying ransom (apparently of such sums as £20 or £40; vide Lea, Studies in Church History, p. 202, and the statute 23 Hen. VIII. c. 1). The State all along appeared on the side of severity, and, from the thirteenth century, was in the habit of sending clerks to their bishop absque purgatione, who, in theory at least, were to be life prisoners. Indeed, if the ordinary should attempt to release such persons, he could be restrained from doing so by a writ out of the Chancery.[[455]]
So early as 1238 a Bishop of Exeter[[456]] was in trouble for having sent a certain clerk to purgation. Later on an Abbot of St. Albans[[457]] was accused of allowing some prisoners to escape; and there are doubtless other instances. But evidently the prisoners of the bishops were continually being released, for we find a special statute[[458]] passed in the year 1402 forbidding that clerks found guilty of treason (of less degree than plotting against the king himself), or who were known to be common thieves, should be allowed any sort of purgation. In 1485 an Act[[459]] was passed by which the bishops might commit priests, clerks, and religious men to ward and prison for advowtry (i.e. adultery), fornication, incest, or any other fleshly incontinence, and they were not to be liable for actions for wrongful imprisonment.
In 1487 a severe blow was aimed at immunity. By this Act,[[460]] clerks (i.e. such as could read, but who were not actually within orders) were to enjoy their privilege only once; and to ensure that they should no longer be “continually admitted as oft as they did offend,” it was ordained that clerks not within orders, who should hereafter be convicted of murder, should be forthwith branded[[461]] by the gaoler in open court with the letter M upon the brawn of the left thumb, and, if found guilty of theft,[[462]] with the letter T, before being handed over to the ordinary’s officer.
An ordained priest could appeal to his Church again, but if he should claim his clergy a second (or other) time, he was to have his letters of ordination ready at hand, though he might be allowed one day’s grace in which to obtain them—or equivalent evidence from the nearest bishop—and if they were not forthcoming he forfeited all clerical privileges.[[463]] In 1496 lay persons who should murder their lord, master, or sovereign immediate were deprived of their clergy; and in the fourth year of the following reign more exceptions were made, and clergy was taken from all, not actually within orders, who committed a felony in a church, or upon the king’s highway, or who slew anybody in his own house.[[464]]
We have already seen with what exceeding difficulty a clerk, and more especially a priest, could be degraded and cast out of orders. To remedy this. Cardinal Wolsey, Archbishop of York, obtained a Bull[[465]] (as regarded England) from Pope Clement VII. in 1528, by which a single bishop, assisted by two abbots or other high dignitaries, could perform the ceremony.[[466]]
The statute 23 Hen. VIII. c. 1 (1531) alludes to the monition of Edward I. (1275), to the effect that no Church prisoners should depart without strict purgation, on which Henry VIII. observes that, nevertheless, they were released very easily. It cites the statute of Henry IV. (1402), which ordered that notorious criminals should make no purgation, and goes on to say that the ordinaries kept releasing offenders speedily and hastily “for corruption and lucre,” or because the clergy will in no wise consent to take charge of prisoners. The law then proceeds to take away the benefit of clergy from the various petit treasons previously referred to, and also for arson, from all clerks—subdeacons and the grades above them still excepted. The clergy within orders were to have lifelong imprisonment for these crimes,
By the fourth Canon at the thirteenth session of the Council of Trent in 1551, it was decreed that a bishop or his vicar-general could condemn, and even degrade criminous clergy, with the assistance of as many mitred abbots, or, in default of them, as many high ecclesiastics as there would have been bishops under the old system. Lecourayer, i. p. 550; Luzio, Cath. Ency. iv. p. 678.] unless they could find guarantees for good conduct—the accused to the extent of £40, with two substantial sureties in £20 apiece. By this statute it was also intended to relieve the bishops of the burden of maintaining their prisoners, and they were empowered to degrade such offending clerks, and to hand them over “in sure and safe keeping into the King’s Bench,” with a certificate certifying their degradation—now so much easier—upon which the king’s judges were to pass such sentences (usually of death) as would have been passed upon the convicted if, at the time of their accusation, they had been laymen and not clerks of any kind.
Nor was this all, for in the same year (1531) an Act[[467]] was passed by which escapes from the bishop’s prison were made felony for the clerks; those within orders were to be sent back to their prison, to abide there without release. In 1533[[468]] clergy was taken away from all who refused to plead, or who challenged above twenty jurymen peremptorily. In 1536[[469]] clergymen within orders were to be placed on the same footing with other clerks, but this law only lasted about a decade. But now the immunity of the clergy began to be taken away by a long series of statutes exempting particular crimes from any indulgence.[[470]]
In 1576 convicted clerks ceased to be handed over to the bishops to make purgation.[[471]] For all “clergyable” felonies, Lords of Parliament[[472]] (even when they could not read) and the clergy in orders were immediately released. The rest who could read were discharged for a first offence upon being branded, but the Court might also order their detention in prison for not more than a year; the captives who could not read were speedily hanged.[[473]]