Henry visited Thomas’s tomb in the crypt of Canterbury cathedral in July 1174 and, once again, confessed to inadvertently causing his death. He underwent public penance that included flagellation and a full day and night of fasting, as well as making lavish presents to the church. Then, in 1176, in a further series of definitions of the rights of the king and the church that were arrived at by the king in discussion with a papal legate, Henry conceded the following: First, he would not keep churches vacant for more than a year except for great necessity, another concession that made little difference as it was the king who determined when there was necessity to keep a church vacant for more than a year. Second, he would allow the church to discipline members of the clergy when they committed crimes. There was a significant exception: clergy accused of forest offenses were to be treated like anyone else. Nonetheless, Henry’s concession on the matter of criminous clergy created a special privilege for clerics, known as “benefit of clergy,” which survived until the early nineteenth century. For a few decades, indeed, it looked as though the whole church might adopt the principle that members of the clergy who were accused of crimes could be tried and punished only in church courts, not by lay courts, but that did not turn out to be the case.
The Later History of Benefit of Clergy
As benefit of clergy functioned at first, if a man (the privilege did not apply to the only women who could be considered clergy—that is, nuns) who was brought into court on criminal charges claimed to be a cleric, the authorities would send a message to the bishop of his diocese, asking if his claim was true. If the bishop recognized the accused as a cleric, he would be turned over to the bishop for trial and, if convicted, punishment. The punishment would include defrocking, so that for any second offense the accused could be treated as a layman. This procedure proved cumbersome, however, and relatively soon a quicker method of deciding whether someone was a cleric was devised: namely, asking the accused to read. This worked because in the Middle Ages almost the only persons who could read (especially in Latin) were members of the clergy. One verse of the Bible, the beginning of Psalm 51 ("Have mercy on me, O God, according to your steadfast love; according to your abundant mercy blot out my transgressions"), was chosen so often that it became known as the "neck verse" because if an accused man read it successfully— including, presumably, one who memorized it beforehand rather than actually being able to read—he saved his neck. Moreover, it became the habit of the courts to release anyone who successfully read what was put before him, rather than actually shipping the alleged cleric off to a bishop for trial. Benefit of clergy therefore functioned as a first offender's privilege: it could be claimed only once, and, at least from the sixteenth century on, anyone who successfully claimed it was branded on the thumb so that he could not claim it a second time. Letting first offenders off with a warning made quite a lot of sense in a period when the punishment for all but the most minor offenses was execution and the confiscation of all property.
Basing the determination of clerical status on a man's ability to read had complicated implications as more and more people became literate in later centuries. To cope with the ramifications of this, the most serious crimes were eventually excluded by statute from the privilege, first treason and later murder, rape, arson, witchcraft, and so on. There was, in effect, a tripartite division of crimes: non-clergiable felonies (those for which one could not claim clergy) were the most serious; in the middle were clergiable felonies, and the least serious infractions were mere misdemeanors. By a statute in 1547, the privilege was extended to illiterate members of the House of Lords. In 1575, a statute provided that the benefit should be pled after conviction rather than at the start of the trial and that the convict could be imprisoned for a year even if he successfully pled clergy. A statute of 1624 extended the privilege to women, and a statute of 1706 abolished the reading test, which made the privilege available to everyone, literate or not. In 1770, John Adams, counsel for the defendants in the Boston Massacre case, pled the clergy of the two soldiers who were convicted, thereby saving them from execution. By then, however, changes in the criminal law had made the privilege obsolescent. Benefit of clergy was one of the first medieval oddities to go when modernization of the Common Law began: a statute of 1827 abolished it, six and a half centuries after Henry II first granted it.
All in all, therefore, and with the exception of appeals to the pope and benefit of clergy, the years of conflict between Henry II and Thomas of Canterbury made very little difference to church-state relations in England. The monarchs of England retained and, indeed, retain to this day, at least on paper, a great deal of control over the church. Throughout the rest of the Middle Ages and for centuries beyond, great churchmen were figures of importance in secular government as well as in the church itself, and appointing them gave the mon-archs the control they needed over their servants as well as a great source of patronage with which to assuage the cravings of the great families of England for wealth and power.
World History
