Benefit of Clergy and Double Jeopardy
Was Becket right in considering article 3 of the Constitutions of Clarendon to be a violation of the principle against double jeopardy? "God does not punish twice for the same offense" ( ne bis in idem.) These words used by Becket go back to a mistranslated Biblical text (Nahum 1:9) and were sometimes applied in the twelfth century by canonists as authority for excluding double jeopardy in the ecclesiastical courts.
Becket seems to have been the first to apply the phrase to justify the privilege of the clergy to be punished -- for certain offenses -- solely in the ecclesiastical forum. 8_Yet total clerical immunity from secular jurisdiction was never claimed. It is true that in both the Byzantine and Frankish empires, bishops -- though not those below them -- were generally to be tried and sentenced only by their clerical peers. 9_At that earlier time, however, no sharp distinction existed between clerical and secular courts; clergy sat in both. In any event, in England as elsewhere, it was quite common before the twelfth century for clerics who had been condemned and deposed or otherwise disciplined in ecclesiastical proceedings to be turned over to local or feudal or royal courts to be tried and punished for the same act. It was only with the establishment of the new system of ecclesiastical jurisdiction in the late eleventh and early twelfth centuries that benefit of clergy became a crucial issue.The arguments against Becket's position have been forcefully stated by Maitland. Becket's doctrine that the state must not punish the criminous clerk for that crime for which he has already been deposed or degraded "had neither been tolerated by the state nor consecrated by the Church." The canonists did not support the rule urged by Becket, and it was not law elsewhere in Europe; had it been followed, Maitland pointed out, "no deposed or degraded clerk would ever have been handed over to the lay power [to be executed] as a heretic or a forger of papal bulls." Further, Maitland contended that at the time of the Becket controversy, trial in the church courts in criminal cases "was already becoming little better than a farce." At that time, ecclesiastical procedure in cases of felonies was by compurgation.
"Bishop Jocelin of Salisbury," Maitland stated, "cleared himself of complicity in the murder of Becket with four or five oath-helpers. Hubert Walter, sitting as archbishop, forbade that more compurgators than the canonical twelve should be demanded." Furthermore, even if the clerk failed in his purgation and was convicted, the ecclesiastical punishments were relatively mild: the bishop "could degrade the clerk from his orders, and, as an additional punishment, relegate him to a monastery or keep him in prison for life. A whipping might be inflicted... This then was the punishment due to-259- felonious clerks; we fear that but few of them suffered it." Benefit of clergy was "an invidious and mischievous immunity." 10
Maitland's argument, which has been adopted by George Greenaway, W.L. Warren, and others, proves too much. Was the ecclesiastical trial more farcical than trial by battle or by ordeal in the secular courts? Were the sanctions of the royal courts -- hanging or mutilation -- a more fitting punishment for a first offense than confinement in a monastery or prison? Moreover, Maitland omits the most subtle of the ecclesiastical penalties: the bishop could order that penance be done -- on pain of excommunication -- in the form of reimbursement of the victim or his family, charitable works, and other good deeds. Further, the penalty of excommunication itself could be very severe, since in its extreme form it was in effect an outlawry from the church, involving virtual ostracism.
Greenaway states that the principle of double jeopardy was not violated by the Constitutions of Clarendon, since Henry was not proposing a second trial but only a sentence. 11This is a strong point, but by no means answers all the questions. What is it that makes double jeopardy abhorrent? Is it merely the fact of two trials, or may it not also be the fact of condemnation by two jurisdictions? Moreover, can the second tribunal impose a sentence without, in fact, some sort of trial, or at least some characterization of the offense? What might be burglary in the king's courts, punishable by death, might be a minor offense in the ecclesiastical courts if motivated, for example, by need and followed by voluntary surrender and return of the stolen goods.
Contemporary legal systems have no difficulty in permitting prosecution of a man for embezzlement even though he has already been discharged by his employer for the offense, since the discharge is viewed not as an official condemnation but as an act of a private organization within the state. Was this, then, the issue for Becket: whether the church was an organization within the state -- or the state an organization within the church? 12