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A Draft of a Legal and Constitutional Account

James Kalb
Yale Law School
Supervised Analytic Writing — Charles Gray, supervisor
January 10, 1978

Prefatory Note

In the course of this draft I refer to a number of books and articles on the benefit of clergy and the privilege of sanctuary. While helpful to anyone wanting to understand these institutions, these sources tend to ignore or downplay the specific legal status of the immunities of the church as a constitutional compromise between the institutional needs of the medieval church and those of the royal government. Since an understanding of their status is necessary to an understanding of their great stability before the Act in Restraint of Appeals and their almost immediate disappearance afterwards, a paper covering this aspect of the subject seemed a worthwhile project.

Note on Notes

In this draft, most material that would ordinarily be in footnotes is inserted in the body of the text in parentheses. A few footnotes, indicated in the text with asterisks, can be found at the end of the draft. I have referred to sources by giving the author’s or editor’s name and the page number. The sources referred to are:

R. G. Bindschedler, Kirchliches Asylrecht (Immunitas ecclesiarum localis) und Freistaetten in der Schweiz (Stuttgart, 1906)

J. C. Cox, The Sanctuaries and Sanctuary Seekers of Mediaeval England (London, 1911)

G. R. Elton, England under the Tudors (2nd Ed.) (London, 1974)

L. C. Gabel, Benefit of Clergy in England in the Later Middle Ages, 14 Smith College Studies in History (Northampton, 1928)

A. J. Kempe, Historical Notices of the Collegiate Church of St. Martin- le-Grand (London, 1825)

F. W. Maitland, Roman Canon Law in the Church of England (London, 1898)

Makower, Constitutional History

T. J. de Mazzinghi, Sanctuaries (Stafford, 1887)

M. Ogden, Bases of Diplomatic Immunity (Washington, 1936)

A. F. Pollard, Wolsey (London, 1929)

I. D. Thornley, “The Destruction of Sanctuary” in Tudor Studies Presented by the Board of Studies in History in the University of London to Albert Frederick Pollard, R. W. Seton-Watson, ed. (London, 1924)

N. M. Trenholme, The Right of Sanctuary in England (Missouri, 1903)

Also:

Rymer’s Foedera

Statutes at Large

Letters and Papers, Foreign and Domestic, of the Reign of Henry VIII, James Gairdner, ed. (London, 1887)

Letters and Papers (Venice)

C. E. Wilson, Diplomatic Privileges and Immunities (Tucson, 1967)

To a modern observer, the benefit of clergy and the privilege of sanctuary are two of the most striking and puzzling features of the English system of criminal justice as it existed from medieval times through the first part of the reign of Henry VIII. Until their abolition or radical transformation at the time of Henry’s break with Rome, these ecclesiastical privileges were highly detrimental to the administration of justice. In accordance with the first, no literate person could be punished by the secular courts for any felony not touching the king; in accordance with the second, an estimated 1000 persons a year (Trenholme, pp. 69-70; Cox, pp. 33), most of them guilty of serious crimes, escaped the workings of the criminal justice system altogether. At first glance, this situation seems shockingly irrational. It is hard to see why it was allowed to continue for so long, or how a system of criminal law to the workings of which so many were immune could have been at all effective in repressing crime. Nor are any strong reasons for these privileges immediately apparent to one accustomed to the modern conception of a church as an association of individuals within a state. Accordingly, the religious basis of clergy and sanctuary might suggest to some simply that these institutions should be classified among the superstitious usages characterizing the Middle Ages which died out in a later and more sensible period on account of their intrinsic irrationality.

Such a classification would be wrong. If one puts aside the anachronistic notion of the sovereign territorial state, he can see that although there were abuses, the existence of some such privileges as clergy and sanctuary was justified, and indeed required, by the constitution of medieval society, and that it would have been impossible to abolish these privileges before the radical changes in the English constitutional order that accompanied the break with Rome.

It must be borne in mind that the medieval church was not a mere association within a state; it was itself a state with all the essential appurtenances of a state. It had laws, lawgivers, and law courts. Its laws were enforceable with sanctions up to and including death. Its members were in effect, if not in theory, born into it, and could not attempt to leave it without becoming liable to be burnt for heresy — a sort of treason. It was supported with taxes. (Maitland, p. 100) But if the medieval church was a state, it was a state of a special sort, with the same citizens as the secular states such as England. This circumstance rendered the dealings of the church and the secular states exceedingly complex and intimate. Accordingly, one would expect that the rules and institutions found necessary generally to govern the dealings of states with each other would have been found particularly necessary in medieval times to govern the dealings of the church and the royal government in England.

One such institution, found necessary in all times and places to govern certain aspects of the relationship of mutually independent states, is extraterritoriality — the immunity of certain persons and places associated with a foreign state or organization from the laws of a host state. The benefit of clergy and the privilege of sanctuary were forms of extraterritoriality and in their main features were justifiable as such.

The most familiar form of extraterritoriality is diplomatic immunity, in accordance with which persons sent by a sovereign state to represent it abroad are protected from the laws of foreign states. Immunity also attaches to places set aside for such representatives — embassies, ambassador’s residences, and the like. These places have become refuges for persons out of favor with the local government even in modern times, as the case of Cardinal Mindszenty illustrates. These principles are as near to being universal as any political principles can be. (Ogden)

The reasons for diplomatic immunity include the status of the diplomatic agent as “the personification of his ruler or of a sovereign state whose independence must be respected” (Wilson, p. 1) and the status of diplomatic premises as foreign territory (Wilson, p. 5). they also include the practical consideration that a certain degree of security is necessary for the performance of the diplomatic function. (Ogden, p. 175) These same consideration, operating with regard to church-state relations in the Middle Ages, necessitated something like the benefit of clergy and the privilege of sanctuary. There was thus nothing specifically religious about these ecclesiastical privileges. At the time they were institutional necessities. Clergymen, the representatives of the church, were considered in some respects to personify the head of the church, Jesus Christ (cf. the role of the priest in celebrating mass, 12 New Catholic Encyclopedia 718 ff. (New York, 1967)). The ancient belief that churches and similar places were holy ground subject to laws altogether different from those governing profane places was still very strong. And speaking practically, the broad powers of the church over the souls — and therefore, in an age of faith, the actions — of men could not be exercised effectively if the clergy were too much subject to the commands, enforceable by criminal penalties, of a secular power which also aimed to control men’s actions. Indeed, the use of the weapon of praemunire against the church during Tudor times is a good example of the dangers to the church posed by secular jurisdiction over criminous clerks. Thus the church had good cause to seek immunities for its clergy at least as extensive as those conferred by diplomatic immunity.

Privileges of extraterritoriality more general than those so conferred are likely to be sought by a state which considers its own legal system greatly superior to that of the other jurisdiction. They are likely to be conceded when, as in nineteenth century China, the state demanding the privileges is much stronger than the state conceding them. Since it had a distinctive legal system based on Roman law and a divinely sanctioned body of substantive law, the church doubtless thought its system superior to that of the temporal such as England, and in the early middle ages when the privileges were established it was no doubt right in so thinking. Therefore, it should not be surprising to find the church demanding quite broad immunities. It should also not be surprising that the ability of the church to make good on its claims varied according to its power in a particular time and place.

The claims of the church with regard to clergy and sanctuary were indeed quite broad. (Apparently, the church still has not given up these claims, although it no longer presses them — Maitland, p. 59; Bindschedler, p. 3,) Benefit of clergy was only a part of the privilegium fori claimed by the church. The church’s claim to this privilege, set forth in the Decretum Gratiani, was quite ancient. (Maitland, 140)

In accordance with it no criminal charge was to be made or personal action brought against a clerk in any temporal court. (Maitland, p. 59). The right of sanctuary was an aspect of the immunitas ecclesiarum localis and was a right of very ancient origin which the church began to claim as soon as Christianity became the state religion (Bindschedler, pp. 7-8) in the Roman Empire. Throughout the period under consideration, the claim of the church was that a person who had fled to a church or other sacred place could not be taken away by force for the infliction of corporal or capital punishment unless he was wanted for certain very serious crimes, i.e., as a murderer, a publicus latro, a nocturnus depopulator agrorum, a heretic, a relapsed convert from judaism, or one guilty of sacrilegious mayhem. (Bindschedler, pp. 20-21) Moreover, a person who had taken sanctuary could not be interfered with in any way. Specifically, he could not be placed under guard nor coerced to leave by cutting off his food supplies. (Bindschedler, pp. 23-24)

The breadth of these claims apparently resulted in part from the attitude of the church, already discussed, that it was superior to temporal jurisdictions, but also from the onesidedness of the situation. It is very difficult to say just how much immunity the representatives of a foreign state need to perform their function as representatives. (Ogden, p. 176) In the absence of a principled way of settling the matter, it must be settled by balancing advantages. Thus the chief limit on the breadth of the immunities each state asks for its own representatives is the necessity of conceding similar immunities to the emissaries of other states. Since the church did not have to consider what immunities it would have to grant the representatives of England and the other secular states in return for those it claimed, its claims were able to expand to their logical limits unhampered by any balancing of advantages and disadvantages.

These institutional considerations apply more strongly to the benefit of clergy than to the privilege of sanctuary. The broad claims regarding sanctuary can in part be best explained by the nature of the Christian religion itself, with its emphasis on forgiveness of sins and its opposition to retaliation against the sinner. In addition, the strong hold that the notion of sanctuary has always had on the minds of men certainly played a role. (Mazzinghi, pp. 1-5) The appeal of the notion of sanctuary to the imagination is reflected by the antiquity and ubiquity of the institution (Trenholme, pp. 2-7.), and by its astonishing durability. (Bindschedler) Even today children’s games such as hide-and-go-seek show the hold that the idea of a place of safety in a threatening world has over our minds.

Naturally, secular states, such as England, had completely different institutional interests and a completely different point of view. The secular states were very much aware of the practical disadvantages of such broad immunities, as well as of the lack of corresponding advantages for them. There was a struggle throughout the middle ages in each country over the extent of the immunities of the church, ending de jure with a concordat between the Church and the secular power, or de facto by the failure of the church to press its claims further. The extent to which the church was able to make good on its claims varied from claim to claim and from country to country. In France the church was able to secure virtually the entire privilegium fori (Maitland, p. 60); in England this privilege was confined within the unusually narrow bounds of the benefit of clergy. (Maitland, p. 59).

As it existed at the beginning of the Tudor period, the benefit of clergy may be described as the exemption of clerks from secular punishment for felonies, except for those touching the king. Upon conviction by the secular courts. of a felon, the offender could plead his clergy, and, if found by the ordinary to be a clerk, would be handed over to the ecclesiastical authorities for a trial ab initio by the procedures of the canonical courts. As a result of this trial the clerk would either be found innocent and restored to “good fame” (Gable, p. 95), or found guilty, degraded, and assigned penance, usually life imprisonment. This system fell far short of what the church claimed. Much of the claim to immunity to criminal prosecution was rejected, since clerks could be punished by the secular power for misdemeanors and for treason. The claims of the church for immunity to personal civil actions was rejected altogether. The trial and conviction of a clerk for a felony by a secular court, even though not followed by punishment, went beyond what the church considered to be the jurisdiction of such courts. (Gabel, p. 92). Furthermore, the king’s courts sometimes handed clerks convict who were notorious and habitual criminals over to the ecclesiastical authorities absque purgatione, that is, without the right to establish their innocence by the procedures of the canonical courts. (Gabel, p. 60)

This system was a durable constitutional compromise resulting from a severe struggle in the twelfth and thirteenth centuries. This struggle had begun in earnest with the Constitutions of Clarendon of Henry II, in accordance with which a criminous clerk was to be accused and required to plead in the temporal court, tried, convicted and degraded in the ecclesiastical court, and sentenced as a layman in the temporal court. (Maitland, p.135). Henry had been forced to abandon the Constitutions and make great concessions after Beckett’s assassination, of course, but some of the lost ground had been regained in the thirteenth century against vigorous clerical opposition. (Maitland, pp. 60-62) The compromise finally established recognized the king’s interest in self- preservation, in settling his subjects’ civil disputes, and, to the degree permitted by the independence of the church, in punishing clerks who had violated public order. At the same time it protected the clergy from the ambition of kings and the possible injustice of secular tribunals by reserving the punishment of the general run of serious crimes carrying the death penalty to the ecclesiastical courts.

The institution of sanctuary as it existed in England also differed from that claimed by the church. The differences, however, were not so great as in the case of benefit of clergy, and never gave rise to any great struggle between church and state. The absence of a strong conflict of institutional interest may account for this comparative peacefulness. There were certain restrictions placed on the institution in England. A person taking sanctuary was ordinarily allowed to stay only forty days. At the end of that time he had either to stand trial for his offense or to abjure the realm — that is, to swear to leave England and never come back. If he refused to do either, the secular power would force him out of sanctuary. Since actually entering the holy place and dragging him out would have been sacrilege, and since the church was generally uncooperative, indirect means had to be used. Usually the accused would be starved out by cutting off his food, but occasionally enthusiasts would use faster methods, such as setting the sanctuary on fire. (Trenholme, p. 39)

In other respects, however, sanctuary was a more extensive privilege than the church claimed. It extended to more offenses. murderers, publici latrones and nocturni depopulatores agrorum could claim it. The major reason for the greater scope of the privilege with respect to offenses was probably the peculiarly English (Cox, pp. 11-12) institution of abjuration. Persons who had abjured were given safe conduct to a port or to the Scottish border and were allowed to embark for foreign parts, but otherwise they were outlaws, and if they returned to England after abjuring they would be put to death and were not eligible for sanctuary again. Their land escheated and their goods and chattels were forfeit to to the king. (Trenholme, pp. 42-43) The kingdom of England was thus rid of them almost as effectually as if they had been hanged. The lord had his escheat, the king had his forfeitures, and no one (except possibly some foreigners) was the worse off for the breadth of the privilege. Additional reasons for the broad scope of sanctuary may have included the difficulty of determining the crime committed (Cox, p. 4) and a feeling that refusing to recognize sanctuary, even if the offender was not strictly entitled to it, would violate the sanctity of a holy place.

Although privileges like those enjoyed by the church were made necessary by the basic constitutional arrangements of medieval society, not all aspects of clergy and sanctuary were justifiable on that ground. In addition to the immunities outlined above, which represent the constitutional balance struck during the middle ages between the claims of the church and the willingness of the king to grant these claims, the benefit of clergy and the privilege of sanctuary were extended during the middle ages in various ways which bore no relation to the claims of the church.

This extension came about in various ways. The benefit of clergy was extended to all literate men as a result of changes in the manner in which the ordinary determined whether a person pleading his clergy was in fact a clerk. At first, the duty of the ordinary was to determine whether the person pleading his clergy was in fact in orders, or had at least received first tonsure. (Gabel, pp. 63 ff.) The ability to read was evidence of the ultimate fact, but no more. (Gabel, pp. 66-67) The convenience of the reading test, which could be administered on the spot, and the general illiteracy of laymen led to increased dependence on the literacy test, until in the middle of the fourteenth century it became regarded as sufficient proof. (Gabel, p. 69)

To the general right of sanctuary was added the rights of the so-called chartered sanctuaries. These rights varied from place to place, but always included the right of permanent protection to fugitives. They also extended, in practice if not in theory, to a wider range of crimes. Abjuration was not permitted to traitors, for example, (Trenholme, p. 42) but they were often granted protection by chartered sanctuaries with or without legal right. These rights originated in theory in royal grant, but in fact in a “mixture of law and custom, grant and prescription, forgery and usurpation.” (Thornley, i p. 183) Important chartered sanctuaries were found at Westminster, St. Martin le Grand, Glastonbury, Beaulieu, Colchester and Culham in the south of England (Thornley, p. 184), and at Durham, Tynemouth, Hexham, York, Ripon and Beverly in the north (Forster, p. 119). Some of the chartered sanctuaries were quite extensive, and able to afford sanctuary men an opportunity to be absorbed in the life of the town. At Beverly, for example, frithmen could live where they wanted, could practice their trades, and could be members of trade guilds. (Cox, p. 144) At other sanctuaries, however, the life of the sanctuary men seems to have been expensive for the rich and miserable for the poor.

It was chiefly as a result of these extensions of the ecclesiastical immunities, and of the inability of the medieval church to keep its own house in order, that the benefit of clergy and the privilege of sanctuary had such a deleterious effect on the ability of society to control crime. There was nothing essentially unworkable in the medieval constitution in this regard: its abuses, however, helped to doom it.**

Benefit of clergy caused the greatest problems. The extension of this privilege to all literate persons was no doubt a serious matter in an era in which literacy was rising in all classes of society (see Gabel, pp. 78 ff.), but if the canonical trial had been an effective instrument for determining guilt or innocence, the chief result of the extension of the privilege would have been that a larger and larger proportion of convicted felons would have been imprisoned for life by the church rather than hanged by the king. Unfortunately, the canonical trial was not such an instrument. It was generally possible for the clerk convict to establish his innocence by compurgation, a mode of trial that Hobart justly described as “a ceremonious and formal lye.” (Gabel, p 95: Reports, p. 291) Procedures for a preliminary inquest into the life, fame, and guilt or innocence of the accused seem to have been ineffective, as were procedures by which injured parties and others could oppose the clerk’s purgation. (Gabel, pp. 96 ff.) The result was that the clerk convict, even though usually guilty in fact, was generally able to establish his innocence at the canonical trial and get off scot free.

The problems caused by the chartered sanctuaries were less serious and less widespread, but could nonetheless be locally acute in places like the vicinity of St. Martin le Grand, where the sanctuary men frequently left the sanctuary, especially in times of public disorder, to plunder the neighborhood and return with their spoils to the safety of the sanctuary. (See Thornley, pp. 187 ff.; Kempe, passim) Here again the chief problem seems to have been the inability or disinclination of the ecclesiastical authorities to keep their own house in order; in this instance, to govern the sanctuary men adequately. At St. Martin le Grand, for example, the canons were generally non-resident, and the discipline among the vicars notoriously irregular (Cox, pp. 80-81) An additional problem may have been the poverty of the sanctuary men and the difficulty of getting enough to live on in sanctuary by honest means.

In the years before the accession of Henry Tudor to the throne, the abuses of the ecclesiastical immunities, particularly of the benefit of clergy, produced complaints and popular demand for reform. These demands got nowhere, however, because constitutional obstacles blocked action by the state, and inertia blocked action by the church. It is instructive to consider the reform proposals made at the time. These proposals shed light on the problems created by the privileges of the church, and by the variety of the means attempted to get around the constitutional stature of these privileges, show how firmly established that stature was.

In 1449 the House of Commons petitioned the king, complaining of an increase in crime mostly attributable to “the persons that been clerks and can read.” Such persons had been getting money by robbery, leaving it with their friends, and sending for it when they had been arrested, tried, and convicted of their crimes, and handed over to the church as clerks convict. They would then use the money to make their purgation, apparently by hiring compurgators, bribing church officials, and similar corrupt means. Habitual criminals would repeat this process again and again,

“in final destruction of your said people of this your noble realm; insomuch that though persons that have been so robbed or ravished, nor the friends of them, neither the friends of them that have been slain and murdered, daren take upon them to labor against such felons, for dread of death, or other inconveniences… ”

These complaints suggest the existence of organized groups of habitual criminals who cooperated to add practical immunity to punishment by the church to their legal immunity to punishment by the state. As long as there was money to bribe inquisitors and hire compurgators, and friends to terrorize anyone inclined to oppose purgation, the danger of any sanctions being imposed by the courts christian must have been remote indeed.

The commons proposed to deal with this situation by expanding the use of a remedy the king’s courts had already been using on occasion. A clerk who had once been committed to an ordinary for murder, manslaughter, robbery or theft, and who had made his purgation, would be committed absque purgatione the next time he was convicted of any felony. The king rejected this proposal, however. Apparently, what was permissible as an exceptional measure was unacceptable as a general rule. The king commented that the problem was a matter pertaining to the spiritualty, and that a remedy was in the sole discretion of the church hierarchy. (Rot. Parl. V 151, no. 22)

In so saying the king may have been constitutionally right, but since the church did not in fact solve the problem, Commons remained dissatisfied. Six years later they tried again. This time the proposal was to remedy the situation by stretching the category of treason beyond all recognition. After a preamble similar to that of the previous petition, commons proposed that if a person who has once gotten clergy for murder, manslaughter, rape, robbery or theft should again be indicted or appealed of any felony, that felony should be treated as high treason, except with respect to escheat. (Rot. Parl. V 333, no. 10) The effect of this proposal would have been to eliminate the benefit of clergy for anyone who had once pled it for the enumerated felonies and to increase the penalties imposed on such offenders. Existing rights to escheats would have been preserved.

This approach to the problem had two advantages (aside, of course, from any appeal the imposition of especially severe penalties on criminous clerks may have had from commons’ point of view). It would maintain formal constitutionality, in that all clerks found guilty of “felonies” would still be permitted to make their purgations, and it would avoid the necessity of direct conflict between the secular and the ecclesiastical jurisdictions. The earlier proposal would have put the king’s courts in the position of regularly issuing instructions to the church courts on how to deal with clerks in their control. This problem would be obviated by treating subsequent felonies as treasons, since traitors would never come under the control of the church. Of course, the new definition of treason is rather strange, but one must remember that commons was dealing with the problem of changing the practical effect of firmly established constitutional doctrine, and such problems are often solved by giving terms (such as “regulation of commerce” or “due process”) strange new definitions. In any event, this second attempt failed. The royal response was “Le Roy s’advisera.

Finally, in 1467-8 the commons proposed that certain forms of sacrilegious robbery be treated as high treason punishable by burning, except that the right to bring an appeal would be preserved. (Rot. Parl. v 632, no. 40) Two reasons for such a proposal suggest themselves. The first is that as the preamble suggests there may have been a rash of such robberies and commons may have been outraged. The second is that commons may have singled out a crime particularly outrageous to persons favorable to the liberties of the church to be the first crime redefined as treason, in the hopes of setting a useful precedent. Whatever the reason, the king rejected the proposal with a “Le Roy s’advisera.”

During this period complaints relating to the right of sanctuary were much more limited in their scope. The controversies that arose related to particular abuses and were resolved by particular solutions. Cooperation between church and state seems to have been reasonably effective, perhaps because the interests of the two powers were not seriously inconsistent in this matter. Disorders due to the sanctuary men of St. Martin le Grand during the 1450’s were apparently largely repressed after the King’s Council in the Star Chamber enacted articles for the better governance of the sanctuary. These articles referred to “misruled persons” who had come out of the sanctuary to commit “riots, robberies, manslaughters and other mischiefs”, but nonetheless fully recognized the legitimacy of sanctuary rights, and aimed only to prevent their abuse. (Kempe, pp. 145 ff.) Other instances of corrective action against sanctuary abuses are the attempts of Edward IV to check crime among the sanctuary men at Westminster in cooperation with the archdeacon there, and a bill passed by parliament but rejected by Edward IV, which was intended to deal with crimes committed by sanctuary men outside their boundaries. (Thornley, p. 196) In addition, the common law judges followed a policy during this period of construing sanctuary privileges strictly. (Thornley, p. 197) The small scale of the complaints am against sanctuary at this time are illustrated by the same Parliamentary Rolls, which were full of proposals for major changes in the benefit of clergy. In 1474 certain creditors in London complained that their debtors had been making fraudulent transfers and then fleeing to sanctuary. (Rot. Parl. VI 110, no. 6) And three years later a disclaimer was added to a private act that nothing in the act was to be prejudicial to any sanctuary privileges. (Rot. Parl. VI 182, no. 26)

It is not hard to find reasons for the much lesser degree of dissatisfaction with the institution of sanctuary. The first is the relatively small number of sanctuary men. Those who took temporary sanctuary would soon leave the country permanently, and the number of persons in permanent sanctuary was not high. In 1532, for example, the number of such persons at Westminster, one of the great sanctuaries, was fifty, and of this number 18 had taken refuge as debtors, leaving a criminal population of 32. (Cox, pp. 72 ff.) Six years later when the abbey of Beaulieu:, another of the great sanctuaries, was suppressed, there were only 32 sanctuary men in residence, including debtors. (Cox, p. 188) Secondly, sanctuary men were under a fair degree of control, and were confined on the whole to the narrow limits of the sanctuary. Thus, occasional outbreaks aside, they did not constitute such a continuing threat to society as criminous clerks did.

In addition, sanctuaries served a valuable function in moderating the cruelties of civil war during this period. The vicissitudes of the Wars of the Roses forced many persons, eminent and otherwise, to take refuge in sanctuary. Elizabeth Woodville, the (Queen of Edward IV, resorted to Westminster twice during this period, and her son, the future King Edward V, was born there in 1471. (Cox, pp. 60-62) Beaulieu provided shelter for many distinguished Lancastrians. (Cox, pp. 185-186) Owen Tudor, the uncle of Henry VII, took shelter at Westminster while the Yorkists were in power and became a monk there. (Cox, p. 70)

The demands for reform that had been barren during the Wars of the Roses finally had some effect after Henry VII came to power. As might have been expected, Henry’s major reform measures were aimed at the most serious abuses, those related to the benefit of clergy. The most important of these was the statute of 4 Henry VII, c. 13, enacted shortly after Henry came to power. For an important reform measure, this was a remarkably conservative and cautious enactment which achieved its end by means of a minimal change in existing law. This caution may be explained by Henry’s character, by the continuing fragility of his hold on the government, or by his view of his duty as that of establishing justice, where justice is understood as the recognition of established privileges and the established constitutional order. In any event, the abuses of the benefit of clergy were so great that even a cautious enactment could do a great deal of good.

The statute did not infringe at all on the claims of the church. It was aimed only at laymen who were habitual criminals. The preamble observed that

“upon trust of the privilege of the church, divers persons lettered have been the more bold to commit murder, rape, robbery, theft, and all other mischievous deeds, because they have been continually admitted to the benefit of the clergy as oft as they did offend in any of the premises.”

It was therefore enacted that persons not actually in orders should be entitled to benefit of clergy only once, and that after being admitted to the privilege, each such person be branded on the thumb. The statute further provided that the branding was to “be made by the gaoler openly in the court before the judge, before that such person be delivered to the ordinary.” This provision apparently reflects the ability of the criminal class to corrupt the criminal law system, especially in the ecclesiastical courts.

It is interesting to reflect that the entire history of the benefit of clergy subsequent to the elimination of the special immunities of the church by Henry VIII derives from the retention in this statute of a limited benefit of clergy for persons not in orders, a retention not dictated by the claims of the church, nor by logic, nor, apparently, by any particular political considerations, but chiefly by caution.

The second enactment of the reign of Henry VII dealing with clergy was the act of 12 Henry VII, c. 7. This statute was inspired by a shocking recent crime involving the murder of a gentleman by a yeoman, his servant. It deprived the particular yeoman of his benefit of clergy, so that he could be properly punished, It also provided that in the future any layman prepensedly murdering his lord, master, or other “immediate sovereign” should not get clergy. This again was a very conservative enactment, which did no more than extend to petty treason the traditional inapplicability of the benefit of clergy to high treason, and that only in the case of laymen, who had no rational entitlement to clergy anyway.

There was no legislation regarding the privilege of sanctuary during the reign of Henry VII, even though the reign was not devoid of provocation from sanctuary men. (See, e.g., Calendar of State Papers (Venice), I, no. 519 for a letter from Henry to Innocent VIII describing the depredations of the Westminster sanctuary men while Henry and his army were away from London putting down a rebellion.) This lack seems to have been due to a belief that the royal government lacked legislative jurisdiction over the privilege of sanctuary. That Henry had such a belief is implied by his activity in securing a papal bull, twice confirmed by successive popes, which somewhat restricted the privilege of sanctuary by denying it to sanctuary men who offended a second time, and by permitting royal officers to guard traitors in sanctuary. (Rymer xii, 541; xiii, 104) Henry himself generally observed the privilege: he twice spared the life of the rebel and impostor Peter Perkin on its account. (Mazzinghi, pp. 67-69) On occasion, however, he could be provoked beyond endurance. In 1495, for example, he had four men accused of seditiously libeling him dragged out of St. Martin’s and put on trial. Three were hanged: the fourth, who had the sense to plead for restoration to sanctuary, was apparently restored to St. Martin’s. (Cox, pp. 92-93)

The reign of Henry VII was thus marked by reform aimed at abuses of the ecclesiastical immunities but marked by respect for the existing constitutional older. This comparative caution reflects in part the character of the monarch and the political situation at the time. However, it also reflects the fundamental status of these immunities. After Henry was succeeded by his son, both the monarch and the situation changed. In addition, the limit was reached of the ability of the royal government to reform abuses of clergy and sanctuary while keeping within the bounds of the old constitution. Accordingly, the type of reform that was attempted changed. These attempts were to remain unsuccessful until the revolution in the English constitution brought about by the break with Rome.

In 1512, shortly after Henry VIII came to the throne, parliament enacted 4 Henry VIII, c. 2. This act, although only a temporary measure, was a break with the past and a foretaste of the coming revolution in the English constitutional order. It was intended by the terms of its preamble to deal with the increase of robbery, murder and other felonies attributed to immunity conferred on many criminals by the benefit of clergy. It denied clergy to anyone who committed murder or robbery on the king’s highway, in a hallowed place, or in the victim’s house, unless the offender was in holy orders (that is, a priest, a deacon, or a sub-deacon). Since there were four lower orders of clergy who were deprived of the benefit of clergy by this act (Pollard, p. 30), it was a clear violation of the centuries-old English compromise between the claims of the church and of the king regarding the privilegium fori.

The initial response to this enactment is said to have been favorable, at least among lawyers and at least some of the clergy. (Pollard, p. 31) However, events were to turn the attempt to renew the act into a pitched battle between the clergy on the one hand, and the commons and king on the other, the first such battle over the benefit of clergy since the thirteenth century. On May 5, 1514, Leo X declared in the Lateran council that according to the law of God as well as the law of men laymen have no power over churchmen (Maitland, pp. 88-89), thus greatly reducing the chances of voluntary compromise on the part of the clergy. And on December 4, 1514, the body of Richard Hunne was found hanging in the Lollards’ tower, thus precipitating the notorious Hunne case, which greatly exacerbated anticlerical feeling among the English laity.

Clergy and laity rallied around the benefit of clergy issue. In early 1515 Richard Kidderminster, abbot of Winchcombe, preached a famous sermon in which he set forth the view of the church that the act of 1512 was contrary to the law of God. Not satisfied with that, he also asserted that all the parties to its passing had incurred ecclesiastical censures. (Pollard, p. 44) Some of the clergy, inspired by this sermon, called for reopening the whole of the old question of the amenability of the clergy to the jurisdiction of the secular courts. (Maitland, p. 87)

At the request of some members of parliament, the king called a special meeting at Blackfriars to consider the question. There Dr. Henry Standish, one of the king’s spiritual counsel and warden of the mendicant friars of London, defended the act of 1512 on the basis of the articuli cleri of Edward II and of the nonreception in England of papal decrees asserting the privilegium fori. (Pollard, p. 46)

This defense enraged the clergy. Toward the end of 1515 heresy proceedings were initiated against Standish before Convocation for his defense of his opinions in a series of public lectures. Standish appealed to the king for protection, and at an extraordinary assembly attended by the judges, all the king’s counsel, and some of the commons, the clergy present at Standish’s citation were found guilty of praemunire. The benefit of clergy bill, however, died in the House of Lords, where the clergy were in a majority, after having twice been passed by commons. (Pollard, pp. 47-49)

Thus the battle over the benefit of clergy ended with the clergy victorious on the immediate issue. The cost of the victory, however, had been loss of support among the commons, the temporal lords, and the king, and the development and popularization of a theoretical answer to the claims of the church which would eventually support the total rejection in England of Papal authority. Nor was the church ignorant of the dangers of the situation. In response to the need for some sort of reform, Wolsey obtained from Leo X a bull suspending clerical ordinations into the four lower orders for five years.(Pollard, p. 54; Rymer xiii 52Z-3) The intent, never carried through, seems to have been the gradual elimination of the four lower orders, and along with them the majority of criminous clerks. In addition, Wolsey made an attempt to deal with the abuse of sanctuary by having sanctuary men swear to commit no more crimes. This attempt was unsuccessful, however, both because many sanctuary men did not stick at perjury and because there was some question whether such an oath could legally be administered. (Pollard, p. 53)

For almost fifteen years, until the eve of the break with Rome, the issue of the benefit of clergy rested. However, the king made it clear during this period that he did not view the privileges of the church with favor. In 1519, in another Star Chamber proceeding relating to the sanctuary privileges of St. John’s and of Westminster, Henry made clear his disregard for the legal arguments and proofs advanced in support of these privileges. Ignoring such technical matters, he gave as his view that the kings and popes who initiated the privilege of sanctuary never intended that it be used by willful murders or by sanctuary men committing crimes outside the sanctuary in the hope of returning, and that abuses must be reformed. (Thornley, p. 201).

The first concrete sign of the changes that were to transform the two privileges came in 1529, when a statute was enacted making the system of abjuration more efficient. A person abjuring the realm was to be branded on his thumb, thus making enforcement of the prohibition against returning to England after abjuration easier. (21 Henry VIII, c. 2) In 1530 the attack on the institution of sanctuary as it had existed in England for centuries began in earnest. In that year a statute entitled “For Abjurations and Sanctuaries.” (22 Henry VIII, c. 14) This act abolished the ancient custom of abjuring the realm. Instead, each abjured person was to be conveyed to a place of permanent sanctuary within England. Of course, the problem with this provision was that England would no longer be rid permanently of the abjurer, who might well be a dangerous criminal. Accordingly, it was also enacted that the privilege of sanctuary was to be forfeited by any subsequent felony.

The reasons for this statute given in the preamble are rather strange. The first reason was that the “strength and power of this realm” had been “greatly minished” by the loss of potential military manpower. It is hard to take this reason seriously. The other reasons given were that abjured persons had been teaching archery to foreigners, and otherwise disclosing “the commodities and secrets of this realm.” It is not clear whether these reasons were any stronger than the first, or whether there was a hidden reason for the act, such as an intention eventually to abolish sanctuary altogether.

Another statute of the same year, 22 Henry VIII, c. 9, foreshadowed Henry’s attack on the benefit of clergy. It abolished clergy for willful poisoning by declaring it to be high treason, a maneuver which, as we have seen, had often been proposed but never adopted.

The next year saw the enactment of 23 Henry VIII, 2 c. 1, essentially a strengthened version of 4 Henry VIII, c. 2. The preamble recited the history of the problem of too-easy purgation by clerks convict. In spite of promises from the church, “manifest thieves and murderers” were still being set at large by “corruption and lucre,” or allowed to “make their purgations by such as nothing know of their misdeeds,” thus “mak[ing] void all the good and proveable trial that is used against such offender by the King’s laws … ” It is noteworthy that this preamble not only sets forth practical problems, such as the still unreformed corruption and inefficiency of the church courts and the resulting threat to public safety, but also in the last part quoted above suggests that in principle trial by the king’s laws is the proper way of proceeding against all offenders.

The act, however, did not go as far as its theory might have carried it. Like the 1512 act, it affected only clerks below the rank of sub-deacon. Such persons lost the benefit of clergy for petty treason, willful murder of malice prepensed, church-robbing, robbery of a person in his dwelling, and arson. Moreover, subdeacons, deacons and priests were to be allowed to make purgation for the enumerated felonies only if they could find sureties. It was to be in the discretion of the ordinary to degrade the clerk convict and send him back to the secular courts to be hanged. A supplementary enactment of the same year provided that escaping from the prison of an ordinary was an unclergiable felony without the privilege of sanctuary for clerks convict below the order of sub-deacon. The same offense would deprive clerks of the higher orders of all right to make purgation. Again, the ordinary had the power to degrade a higher order clerk and turn him over to the secular authorities for hanging. (23 Henry VIII, c. 11)

Thus, even before Henry’s final break with Rome changes which had been impossible for centuries had been made in the benefit of clergy and the privilege of sanctuary. Nevertheless, these privileges remained as extensive as was necessary for the as yet unchanged constitutional status of the church as a state in itself. All clergy of the level of sub-deacon or above were still immune to secular punishment for felonies, and those who had broken the king’s laws could still escape punishment by fleeing to church sanctuary. The final destruction of the old institutions of sanctuary and clergy had to await a change in the constitutional status of the church.

That change took place in 1532. Although that year saw no legislation specifically touching clergy or sanctuary, it saw something much more important: the passage of the Act in Restraint of Appeals. The preamble of this act, viewed as a declaration of English constitutional law, utterly destroyed the foundation for the immunities of the church. It stated that

“England is an empire … governed by one supreme head and king … unto whom a body politic … divided in terms and by names of spiritualty and temporalty, been bounden and owen to bear, next to God, a natural and humble obedience; he also being institute and furnished, by the goodness and sufferance of almighty God, with plenary, whole, and entire power, preeminece, authority, prerogative, and jurisdiction, to render and yield justice, and final determination to all manner of folk, resiants, or subjects within this his realm, in all causes, matters, debates and contentions …”

The immediate purpose of these words, of course, was to justify royal jurisdiction over a single matrimonial action. If taken at all seriously, however, they are easily broad enough to justify, even to necessitate, royal jurisdiction over all criminal actions against clerks. Moreover, if England is indeed an empire, it is hard to see how certain parts of it can be immune to royal power.*** The preamble is thus inconsistent with sanctuary as well as with the old institution of the benefit of clergy.

And the words of the preamble to the Act in Restraint of Appeals were taken seriously. As Elton states in reference to this act, “Cromwell’s conservative revolution … was therewith really accomplished; it only remained to work out its detailed application.” (p. 133) The history of the benefit of clergy and the privilege of sanctuary for the remainder of Henry’s reign was, as Elton’s view would suggest, merely a matter of working out the detailed application of the principles of the Act in Restraint of Appeals.

The first enactments covered minor details indeed; Henry, no doubt, had more important worries. In 1533, 25 Henry VIII, c. 3 filled in certain loopholes in 23 Henry VIII, c. 1 by providing that if a crime had been deprived of clergy by the former act, an offender should not be able to get clergy by standing mute or challenging peremptorily more than 20 jurors. 25 Henry VIII, c. 6 made buggery a felony without benefit of clergy. Previously it had not been a secular crime. A statute enacted the year after with the apparent purpose of defending Henry’s revolution by creating an array of new treasons (26 Henry VIII, c. 13), pursued the same goal by ousting high treason of the treason of the privilege of sanctuary. The year after that piracy and embezzlement of 40 shillings or more lost both the benefit of clergy and the privilege of sanctuary. (27 Henry VIII, cc. 4, 17) Also in 1535 a statute was enacted establishing certain regulations for the governance of sanctuary men, a necessity if they were to be kept in England. (27 Henry VIII, c. 19)

Finally, in 1536 the principles of the Act in Restraint of Appeals were brought squarely to bear on the benefit of clergy. In that year it was enacted that the clergy should get no more benefit from the benefit of clergy than anyone else. (28 Henry VIII, c. 1) This act transformed the benefit of clergy from a special ecclesiastical right to an automatic one-time pardon for certain felons and certain felonies. In 1540, 32 Henry VIII, c. 3 made Henry’s legislation relating to the benefit of clergy perpetual, and from that time the abolition of the old benefit of clergy remained one of the most durable of Henry’s reforms. As Makower says,

“These enactments, with immaterial alterations, remained in force during all the vicissitudes of the reformation period and were, as to the major part, expressly repeated in statutes not only of Edward VI’s reign, but also of Mary’s.” (p. 448)

During this period it was one of Cromwell’s projects to do away with the privilege of sanctuary altogether. (L. & P. x, no. 254; vii, 1669; xv, 438) The suppression of the monasteries, which included many of the chartered sanctuaries, did much to advance this project. (See, e.g. Cox, p. 188) However, even in the absence of any political reason for maintaining the privilege, the hold of the idea of sanctuary on men’s imaginations was too strong for this scheme to be realized in toto. The final major enactment of Henry’s reign regarding sanctuary came in 1540. This act extinguished sanctuary altogether for murder, rape, burglary, arson, and robbery in a house, church, or highway. Otherwise, temporary sanctuary was available in churches, and permanent sanctuary in eight named cities of sanctuary with a capacity of 20 sanctuary men each. (32 Henry VIII, c. 12) The privilege was thus continued, although greatly reduced in scope and importance. The cities of sanctuary were new in English law and were apparently suggested by the cities of refuge in the Old Testament. (Deuteronomy 19) The scheme was apparently not an unqualified success. A year after its establishment, an act of parliament transferred the sanctuary of Manchester to Chester in the midst of complaints that the sanctuary men by the ill example of their idle life were destroying the cloth industry. (33 Henry VIII, c. 15) Shortly thereafter the sanctuary was transferred again, this time by royal proclamation, to Stafford. (Cox, p. 328)

The history of clergy and sanctuary during the remainder of Tudor times can be told quite briefly. The divorce of the benefit of clergy from the church was finally completed in 1576. An act of that year “for the avoiding of sundry perjuries and other abuses” abolished now totally outmoded procedure of delivering the clerk convict to the ordinary for purgation. Instead, the offender was liable to be jailed for up to a year, in the discretion of the secular court. (18 Elizabeth I, c. 7) In the reign of Edward VI, the privilege of sanctuary was widened slightly as to crimes, but narrowed as to places. 1 Edward VI, c. 12 maintained the abolition of sanctuary only for treason, willful murder and aggravated forms of theft, thus by implication restoring the privilege to rape and arson. However, all of the cities of refuge except Westminster disappear from the records. (Thornley, p. 205n) It is not clear why this happened. What is clear is that without recognized permanent places of refuge, sanctuary became an unimportant privilege in English law. The subject of sanctuary disappeared from the statutes until after Tudor times, when statutes declaring all privileges of sanctuary abolished were enacted. (1 James I, c. 25; 21 James I, c.28)

Footnotes

*See Kempe, p. 24, for a 1469 letter complaining of the expense of living in sanctuary: “God knoweth I lie in sanctuary at great costs and among right unreasonable askers.” Also interesting in this connection is a stanza in Wars of the Barons, by Michael Drayton (1563-1631):

“Some few themselves in sanctuaries hide
In mercy of that privileged place,
Yet are their bodies so unsanctified,
As scarce their souls can ever hope for grace;
Whereas they still in want and fear abide,
A poore dead life that draweth out a space;
Hate stands without, and horror sits within,
Prolonging shame, but pardoning not their sin!”

**For the ineffectuality of reform measures during the middle ages, see Trenholm, p. 119.

***For the significance of the term “empire”, see Elton, p. 161.

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