Tag Archives: Benefit of clergy

The Church, the State, and the Special Place of Religion

Over the last six weeks on Wednesday lunchtimes in Sheffield Cathedral, a range of speakers have taken us from Old Testament Israel to discussions taking place right now about the place of Sharia Courts in British society. In this sixth and final talk in the Religion and Law series, ‘Church Establishment in a Global Context’ by Prof. David McClean, many themes raised before emerged once again.

The established nature of the Church of England is often seen as an anomaly – something out of step with the rest of the world, and thus dated and in need of change. This criticism declares that the links between the Church and the crown are ill-suited to the diversity of religions which now form a part of the United Kingdom.

In England, these links between the Church and the crown go back to the Act of Supremacy in 1538. The Act made King Henry VIII the Head of the Church, so it was his right to elect bishops, deans and some vicars, and to ratify any decisions made at a general synod. Today, royal assent for Church appointments and new pieces of law is still needed. The ‘masterly inactivity’ of the Tudor monarchs in retaining the original settlement of the 1530s still has echoes in how the Church of England is run in the present.

But this relationship between church and crown is not entirely unique, nor only associated with England. David McClean highlighted a number of examples where the church and the state work together. The Danish Church, for instance, is so  entwined with the crown that it is effectively an arm of the state, run by a “Minister for Ecclesiastical Affairs”.

In Greece, although the Greek Orthodox Church is technically the ‘dominant’ and not the ‘established’ Church, it’s still heavily state funded. Even in France, where the relationship between the Church and the State is probably the most hostile, in some areas, such as Alsace-Lorraine, the Church still receives favourable tax benefits and direct financial support.

The nature of the established church, or rather the place of the church and religion across Europe, highlights a key theme across this series of talks: that of the often special relationship of religion in law.  The interlocking of the Church of England and the crown as described by David McClean recalls the close connection of Christianity with the Roman Empire and how their development became closely entwined; but also the special position of clerics within the law of England in the twelfth and thirteenth centuries and how this ‘benefit of clergy’ continued to have resonance throughout Europe into the modern era. Another example is the intrinsic nature of Islamic law to the life of Muslims and how it guides their lives and their communities, and thus becomes a part of secular laws and systems.

The relationship between religion and law, between religion and the state is thus an old one that echoes down the centuries, and remains an area of debate today over the place not only of the Church of England but of all religions and laws in the UK.

And that’s not surprising: because religion isn’t a static entity. Throughout history, it has worked alongside secular laws, as well as created its own rules. Different communities create their own laws to define them. It’s the interaction of individual religious groups and their laws with that of secular law which shapes the societies we have today: and the societies we’ll have in the future.

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Image: Sheffield Cathedral

Getting off the Hook

This month, debates over the UK government’s  plans to make troops exempt from human rights laws whilst on service have highlighted how not all groups are treated the same under the law in modern society.  But who has immunity from the law, and where does the concept come from?

In last week’s talk in the Religion and Law series, Dr Charles West discussed how clerics in the Middle Ages were exempted from the conventional laws which bound society.

The reign of King Henry II of England in the twelfth century led to the extension of royal power deep into the counties and shires. A key expression of this authority was the bringing of royal justice within reach of the English people. However, an impediment to this extension was the exemption, on paper anyway, of clerics from the king’s laws.  Rather than being treated by the kings’ judges for their crimes, they were to be tried by other clerics.

Henry II’s desire to remove clerical exemption led to arguments with the Archbishop of Canterbury, Thomas Becket. Becket argued for clerical exemption, stressing that it was the right of clerics, going back to the Roman Empire, to be tried by their own peers and not by the judges of the royal court.

The disagreement between the two contributed to Becket’s long exile. A tentative reconciliation was short-lived, for in 1170 Becket was assassinated by over-zealous royal followers. It was Becket’s death that forced Henry to make the compromise that allowed for clerical exemption from his laws.

The exemption of clerics from royal law had implications for the clerics who committed the crimes, but also for the system which ruled the land. The separation of the Church from the judicial system marked out the latter as secular, separate from ecclesiastical affairs – though twelfth-century government and kings could hardly be described as not being religious. The twelfth-century ‘benefit of the clergy’ then saw the institutionalisation of two separate systems – one for the laity and one for the clergy.

The ratifying of clerical exemption into English law was to remain influential until the nineteenth century, though by this point the ‘benefit of the clergy’ had come to be applied to many first time offenders rather than the clergy alone. Today the calls to prevent soldiers being accountable to the European Court of Human Rights (ECHR) would place them in a parallel system to that of conventional law. Exemption from the law still has implications in the present.

However,  ‘benefit of clergy’ shouldn’t just be thought of as a dry legal principle. It had real consequences for people in the Middle Ages,  as one woman in Lincoln in 1202 was to discover. Mabel was an ordinary woman who wanted justice for the murder of her husband, Godwin. However, with the disappearance of the murderer, Alred, Mabel was left to accuse Alred’s family (whom she was then forced to admit had nothing to do with her husband’s murder), and the cleric William, who had held her husband down as he was killed.

William did not deny having played a role in Godwin’s murder. But he did not have to, as because of Becket’s death some thirty years before, he was exempt from the laws of the secular royal court. The worst punishment he faced for his crime was being defrocked – that is, losing his clerical status. So, William was passed over to the bishop’s officials,  and that is the last we hear of him (the records for clerical trials have not survived).

Mabel’s situation was tragic, but not unusual. The summer of 1202 in Lincoln saw well over 500 cases brought before the king’s judicial envoys. Many of the cases brought before the court were violent in nature – 75 of them being murders. This violence was not simply carried out by the laity but by clerics as well – it was only the law that treated them as separate, not society.

So Mabel and William’s story reminds us of how the law and its relationship with religion can have an effect upon everyday people. The development of religion and law in the last three talks has shown us the pathways that religion and law have taken in different ways, but Mabel, the murder of her husband, and the favourable treatment of one of his murderers reminds us of the very human impact of law’s intersection with religion.

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The next talk in the series is on Wednesday 26th October at 1:15pm in Sheffield Cathedral, where Prof. Anthony Milton will discuss Religion and Law in Early Modern England. For the full programme of talks see here.

1066 and the other papal banner

In 1066, the Norman Duke William persuaded Pope Alexander II to send him a papal banner, signifying his approval of William’s cross-Channel enterprise (this banner may even be depicted in the Bayeux Tapestry, in the image above).

But the fall of Anglo-Saxon England wasn’t the only major upheaval taking place in western Europe that year, and nor was William the only person to be sent such a banner. For the pope sent another one to a man named Erembald, who was involved in a conflict of arguably equal importance in European history to that of the Norman Conquest.

That conflict was taking place in what was probably by this date the largest city in the Latin west, many times larger than London: Milan. Defining precisely what it was about isn’t entirely straightforward, not for lack of sources but because it was complicated. What is clear is that a large group of Milanese inhabitants, led by two minor clerics called Ariald and Landulf Cotta, and later the layman Erembald, were attempting to impose a stricter lifestyle on the wider Milanese clergy, against the Milanese archbishop’s wishes: a ban on marriage, above all.

The emergence of this group, known as the Pataria, led to large-scale civil unrest in Milan – this is the period when the ‘crowd’ starts to make its appearance in western history after a long hiatus, and perhaps the first time when the authorities really lost control of a major political centre. For months – years – no one really controlled this city, with its tens of thousands of inhabitants, at all.

The Patarine movement enjoyed intermittent support from the papacy, which is why Alexander sent Erlembald the banner. After all, one of the objectives of popes in this period was to separate out clergy from the laity more sharply, which was what the Pataria were trying to do too, so the Pataria and the popes had a shared interest. But in 1067, Pope Alexander sent two legates to Milan to try to calm things down, and it’s the edict or Costituzioni (full Latin text available here) they jointly produced that interested me in the episode. That’s because two central clauses concerned legal clerical exemption:

But we set out how one of these [corrupt clerics] should lose his office and benefice for inequity of his order, or variety of sin: we wish every ecclesiastical office to remain in the dignity of its status, and we permit no cleric for the sin of whatever offense of his office in some way offensive to God to come before the judgement of laymen, but rather we prohibit this in every way.

And

[Let the archbishop] have the power of canonically judging and punishing all his clergy, both in the city and outside it, in all parish churches and chapels, so that safe from secular judgment, they may stand quietly in divine service and the authority of the canons, and devoutly obey their archbishop.

In this respect, then, the views of Pataria and Papacy diverged: the former prioritised moral standing, and saw clerical privilege as potentially protecting sinful clerics; the latter was determined to confer some institutional rigour on the separation between clerics and laity (in fact a Roman council of 1059 had previously made a similar decree). Erlembald seems to have taken it upon himself to pass judgement on clerics; banner or not, for the papacy this was a step too far.

Admittedly, the papal banner had as much or as little impact in Milan as it did at Hastings, and it’s safe to say that the Pataria paid little if any attention to the Costituzioni of 1067: their battles were fought on the streets as much as through pages of solemn canon law. But it’s a reminder – if reminder were needed – that ‘reform’ in the 11th century was a coalition of interests, much like William’s Norman expedition.

It’s a reminder too that not every element of church reform was new – for (as is becoming clearer to me) the legal dimension of a separation between clerics and laymen, crucial to the reforming papacy, was a late antique theme that had been already been revived anew in the 9th century.  To what extent should we think about the Gregorian Reform as a messy culmination of thinking and attitudes developed in the ninth century?

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