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?
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.
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.