"CRIMINOUS CLERGY&quot

In Thomas’s eyes, clause 3 of the Constitutions of Clarendon was the most inflammatory. It concerned “criminous clergy”—that is, members of the clergy who committed crimes. Even in the modern age, when entering the ministry is a voluntary act of adults, members of the clergy have been known to commit crimes. In the Middle Ages, a significant percentage of the population—it has been estimated as 2 percent—consisted of members of the clergy, and many of these men had taken clerical orders for reasons that had little to do with vocation or virtue. As noted, entry into the church was a way for serfs to escape a life of drudgery. The church was also used to place children for whom aristocratic parents had no other use. Sons were often put into monasteries when they were too young to have any say in the matter (as were daughters into nunneries) or were sent off to train to be priests when they were still young. All formal schools were church institutions, and all students in them were considered to be in minor clerical orders. Schooling was a way for ambitious parents to ensure that their sons would be able to make good careers in administration, church or lay, and in business. For all these and other reasons, the church was full of people who were no less likely to misbehave than the general population.

Yet the church’s rules about how to deal with members of the clergy who committed crimes were widely seen as inadequate, both as to proof and as to punishment. As to proof, the church used compurgation, which meant that an accused man was allowed to prove his innocence by swearing that he had not done the act and bringing with him a specified number of “oath-helpers” who also swore that he had not done it—that is, that they believed him when he swore. This was an age-old method of proof. It had been the principal method used by the Anglo-Saxons and had persisted, though it was supplemented after the Norman Conquest by the judicial duel, also known as trial by battle. Members of the clergy, however, could not be asked to fight to prove their innocence, so compurgation remained for them the chief method of proof. By the middle of the twelfth century, however, all the old-style methods of proof, whether compurgation, trial by battle, or trial by ordeal, were coming into disrepute. In an age when philosophers were busy reviving advanced human thought, the idea that the only way to prove something in court was to rely on God to point to culpability or right seemed outmoded. Moreover, in England there had recently been several scandals in which clerics alleged to have committed crimes, including murder and rape, had been acquitted by the old procedures even though “everyone knew” that they were guilty.

The other aspect of the treatment of criminous clergy that was objectionable to many by the middle of the twelfth century concerned punishment. The church was not supposed to shed blood, and members of the clergy were not supposed to be subject to corporal punishments, which made the use of the usual punishment for crimes—execution—impossible. Members of the clergy who were convicted of crimes were, therefore, usually imprisoned by their bishops, a punishment that seemed utterly inadequate to many laypersons of the time. Given how many clerics there were in society in the mid-twelfth century, it is not surprising that disputes about jurisdiction over their crimes were common. In 1163 alone, three separate cases aggravated the deteriorating relations between the king and the archbishop.

The third clause of the Constitutions of Clarendon attempts to deal with at least the problem of punishment. Its language is, probably deliberately, murky. Here are two translations of the clause:

Clergymen charged and accused of anything shall, on being summoned by a justice of the king, come into his court, to be responsible there for whatever it may seem to the king’s court they should there be responsible for; and [to be responsible] in the ecclesiastical court [for what] it may seem they should there be responsible for—so that the king’s justice shall send into the court of Holy Church to see on what grounds matters are there to be treated. And if the clergyman is convicted or [if he] confesses, the Church should no longer protect him. (Stephenson and Marcham, no. 30)

Clerks cited and accused of any matter shall, when summoned by the king’s justice, come before the king’s court to answer there concerning matters which shall seem to the king’s court to be answerable there, and before the ecclesiastical court for what shall seem to be answerable there, but in such a way that the justice of the king shall send to the court of holy Church to see how the case is there tried. And if the clerk

Be convicted or shall confess, the Church ought no longer to protect him.

(Douglas and Greenaway, no. 128)

What was Henry demanding here? If the language of the clause is deliberate, then it appears that the king’s court could determine which “matters” were “answerable” in which court. Moreover, if the case was to be tried in the church court, agents of the king would observe the trial in order to ensure that procedures were properly carried out. Although Henry does not seem to be requiring that some novel form of proof be used, the mere presence of lay overseers in a church court was an affront to the independence of the clergy. Even more outrageous in Thomas’s eyes was the last provision: that, if the accused was found guilty, he was to be turned over to the lay authorities to be punished as though he were a layman, which meant, in practice, to be executed. In the eyes of the clergy, priestly status could not be undone. A misbehaving priest might be “defrocked”—that is, ordered not to exercise his powers as a priest or to wear the clothing that denoted clerical status—but he was a priest nonetheless. The anointing of priests was as indelible as that of kings; indeed, it was the model for the anointing of kings. By extension, all clerical status was considered to be permanent, though those in lesser orders could be released from their status by higher clerical authorities. In the eyes of Thomas and his supporters, in short, no member of the clergy could be demoted to lay status—much less at the demand of a secular authority.

Clerical Orders

In the medieval Western church, there were seven levels of clerical orders. The four minor orders were porter, lector, exorcist, and acolyte (subdeacon). These orders could be conferred very early in life. For example, all students in schools at higher levels than the village were considered, during the course of their study, to be clerics in minor orders. Only receipt of the first of the major orders, deacon, committed the recipient to continue to live as a cleric for life. The two higher major orders were priest and bishop. Only these last two orders could exercise the cure of souls.

For whatever reasons, and they are mysterious, in all his arguments against the Constitutions Thomas chose to make his stand primarily on the issue of criminous clergy. He argued that expulsion from the ranks of the clergy was sufficient punishment for a cleric convicted of a crime, that to add on any additional punishment was to punish twice for the same crime, and, citing various biblical texts, that such double punishment was forbidden. Some of his arguments suggested that even a defrocked cleric could not be subjected to a corporal punishment. At other times he seemed to admit that once a man had been expelled from the clergy, he could, for a second or later offense, be treated as a layman.