established, and their authority was afterward enlarged; but among the
Anglo-Saxons the limits of the two judicatures were intermixed and
undefined. When the Imperial government ceased in other countries, the
natives preserved many of its institutions, which the conquerors
incorporated with their own laws; but our barbarian ancestors
eradicated every prior establishment, and transplanted the manners of
the wilds of Germany into the new solitude which they had made. After
their conversion, they associated the heads of the clergy with their
nobles, and both equally exercised the functions of civil magistrates.
It is plain that the bishop was the sole judge of the clergy in
criminal cases: that he alone decided their differences, and that to
him appertained the cognizance of certain offences against the rights
of the Church and the sanctions of religion; but as it was his duty to
sit with the sheriff in the court of the county, his ecclesiastical
became blended with his secular jurisdiction, and many causes, which
in other countries had been reserved to the spiritual judge, were
decided in England before a mixed tribunal. This disposition continued
in force till the Norman Conquest; when, as the reader must have
formerly noticed, the two judicatures were completely separated by the
new sovereign; and in every diocese "Courts Christian," that is, of
the bishop and his archdeacons, were established after the model and
with the authority of similar courts in all other parts of the Western
Church.
The tribunals, created by this arrangement, were bound in the terms of
the original charter to be guided in their proceedings by the
"episcopal laws," a system of ecclesiastical jurisprudence, composed
of the canons of councils, the decrees of popes, and the maxims of the
more ancient fathers. This, like all other codes of law, had in the
course of centuries received numerous additions. New cases perpetually
occurred; new decisions were given; and new compilations were made and
published. The two, which at the time of the Conquest prevailed in the
spiritual courts of France, and which were sanctioned by the charter
of William in England, were the collection under the name of Isidore,
and that of Burchard, Bishop of Worms.
About the end of the century appeared a new code from the pen of Ivo,
Bishop of Chartres, whose acquaintance with the civil law of Rome
enabled him to give to his work a superiority over the compilations of
his predecessors. Yet the knowledge of Ivo must have been confined to
the Theodosian code, the institutes and mutilated extracts from the
pandects of Justinian. But when Amalphi was taken by the Pisans in
1137, an entire copy of the last work was discovered; and its
publication immediately attracted, and almost monopolized, the
attention of the learned. Among the students and admirers of the
pandects was Gratian, a monk of Bologna, who conceived the idea of
compiling a digest of the canon law on the model of that favorite
work; and soon afterwards, having incorporated with his own labors the
collections of former writers, he gave his "decretum" to the public in
1151. From that moment the two codes, the civil and canon laws, were
deemed the principal repositories of legal knowledge; and the study of
each was supposed necessary to throw light on the other. Roger, the
bachelor, a monk of Bec, had already read lectures on the sister
sciences in England, but he was advanced to the government of his
abbey; and the English scholars, immediately after the publication of
the decretum, crowded to the more renowned professors in the city of
Bologna. After their return they practised in the episcopal courts;
their respective merits were easily appreciated, and the proficiency
of the more eminent was rewarded with an ample harvest of wealth and
preferment.
This circumstance gave to the spiritual a marked superiority over the
secular courts. The proceedings in the former were guided by fixed and
invariable principles, the result of the wisdom of ages; the latter
were compelled to follow a system of jurisprudence confused and
uncertain, partly of Anglo-Saxon, partly of Norman origin, and
depending on precedents, of which some were furnished by memory,
others had been transmitted by tradition. The clerical judges were men
of talents and education; the uniformity and equity of their decisions
were preferred to the caprice and violence which seemed to sway the
royal and baronial justiciaries; and by degrees every cause, which
legal ingenuity could connect with the provisions of the canons,
whether it regarded tithes, or advowsons, or public scandal, or
marriage, or testaments, or perjury, or breach of contract, was drawn
before the ecclesiastical tribunals. A spirit of rivalry arose between
the two judicatures, which quickly ripened into open hostility. On the
one side were ranged the bishops and chief dignitaries of the Church,
on the other the King and barons; both equally interested in the
quarrel, because both were accustomed to receive the principal share
of the fees, fines, and forfeitures in their respective courts.
Archbishop Theobald had seen the approach, and trembled for the issue
of the contest; and from his death-bed he wrote to Henry, recommending
to his protection the liberties of the Church, and putting him on his
guard against the machinations of its enemies.
The contest at last commenced; and the first attack was made with
great judgment against that quarter in which the spiritual courts were
the most defenceless, their criminal jurisdiction. The canons had
excluded clergymen from judgments of blood; and the severest
punishments which they could inflict were flagellation, fine,
imprisonment, and degradation. It was contended that such punishments
were inadequate to the suppression of the more enormous offences; and
that they encouraged the perpetration of crime by insuring a species
of impunity to the perpetrator. As every individual who had been
admitted to the tonsure, whether he afterward received holy orders or
not, was entitled to the clerical privileges, we may concede that
there were in these turbulent times many criminals among the clergy;
but, if it were ever said that they had committed more than a hundred
homicides within the last ten years, we may qualify our belief of the
assertion, by recollecting the warmth of the two parties, and the
exaggeration to which contests naturally give birth.
In the time of Theobald, Philip de Brois, a canon of Bedford, had been
arraigned before his bishop, convicted of manslaughter,[29] and
condemned to make pecuniary compensation to the relations of the
deceased. Long afterward, Fitz-Peter, the itinerant justiciary,
alluding to the same case, called him a murderer in the open court at
Dunstable. A violent altercation ensued, and the irritation of Philip
drew from him expressions of insult and contempt. The report was
carried to the King, who deemed himself injured in the person of his
officer, and ordered De Brois to be indicted for this new offence in
the spiritual court. He was tried and condemned to be publicly
whipped, to be deprived of the fruits of his benefice, and to be
suspended from his functions during two years.
It was hoped that the severity of the sentence would mitigate the
King's anger; but Henry was implacable: he swore "by God's eyes" that
they had favored De Brois on account of his clerical character, and
required the bishops to make oath that they had done justice between
himself and the prisoner (A.D. 1163). In this temper of mind he
summoned them to Westminster, and required their consent that, for the
future, whenever a clergyman had been degraded for a public crime by
the sentence of the spiritual judge, he should be immediately
delivered into the custody of a lay officer to be punished by the
sentence of a lay tribunal. To this the bishops, as guardians of the
rights of the Church, objected. The proposal, they observed, went to
place the English clergy on a worse footing than their brethren in any
other Christian country; it was repugnant to those liberties which the
King had sworn to preserve at his coronation; and it violated the
first principle of law, by requiring that the same individual should
be tried twice and punished twice for one and the same offence. Henry,
who had probably anticipated the answer, immediately quitted the
subject, and inquired whether they would promise to observe the
ancient customs of the realm. The question was captious, as neither
the number nor the tendency of these customs had been defined; and the
Archbishop with equal policy replied that he would observe them,
"saving his order." The clause was admitted when the clergy swore
fealty to the sovereign; why should it be rejected when they only
promised the observance of customs? The King put the question
separately to all the prelates, and, with the exception of the Bishop
of Chichester, received from each the same answer. His eyes flashed
with indignation: they were leagued, he said, in a conspiracy against
him; and in a burst of fury he rushed out of the apartment. The next
morning the primate received an order to surrender the honor of Eye
and the castle of Berkhamstead. The King had departed by break of day.
The original point in dispute was now merged in a more important
controversy; for it was evident that under the name of the customs was
meditated an attack not on one, but on most of the clerical
immunities. Of the duty of the prelates to oppose this innovation no
clergyman at that period entertained a doubt; but to determine how far
that opposition might safely be carried was a subject of uncertain
discussion. The Archbishop of York, who had been gained by the King,
proposed to yield for the present, and to resume the contest under
more favorable auspices; the undaunted spirit of Becket spurned the
temporizing policy of his former rival, and urged the necessity of
unanimous and persevering resistance. Every expedient was employed to
subdue his resolution; and at length, wearied out by the
representations of his friends and the threats of his enemies, the
pretended advice of the Pontiff, and the assurance that Henry would be
content with the mere honor of victory, he waited on the King at
Woodstock, and offered to make the promise and omit the obnoxious
clause. He was graciously received; and to bring the matter to an
issue, a great council was summoned to meet at Clarendon after the
Christmas holidays.
In this assembly, January 25, 1164, John of Oxford, one of the royal
chaplains, was appointed president by the King, who immediately called
on the bishops to fulfil their promise. His angry manner and
threatening tone revived the suspicions of the Primate, who ventured
to express a wish that the saving clause might still be admitted. At
this request the indignation of the King was extreme; he threatened
Becket with exile or death; the door of the next apartment was thrown
open, and discovered a body of knights with their garments tucked up,
and their swords drawn; the nobles and prelates besought the
Archbishop to relent; and two Knights Templars on their knees conjured
him to prevent by his acquiescence the massacre of all the bishops,
which otherwise would most certainly ensue. Sacrificing his own
judgment to their entreaties rather than their arguments, he promised
in the word of truth to observe the "customs," and required of the
King to be informed what they were.
The reader will probably feel some surprise to learn that they were
yet unknown; but a committee of inquiry was appointed, and the next
day Richard de Lucy and Joscelin de Baliol exhibited the sixteen
Constitutions of Clarendon. Three copies were made, each of which was
subscribed by the King, the prelates, and thirty-seven barons. Henry
then demanded that the bishops should affix their seals. After what
had passed, it was a trifle neither worth the asking nor the refusing.
The Primate replied that he had performed all that he had promised,
and that he would do nothing more. His conduct on this trying occasion
has been severely condemned for its duplicity. To me he appears more
deserving of pity than censure. His was not the tergiversation of one
who seeks to effect his object by fraud and deception: it was rather
the hesitation of a mind oscillating between the decision of his own
judgment and the opinions and apprehensions of others. His conviction
seems to have remained unchanged: he yielded to avoid the charge of
having by his obstinacy drawn destruction on the heads of his
fellow-bishops.
After the vehemence with which the recognition of the "customs" was
urged, and the importance which has been attached to them by modern
writers, the reader will naturally expect some account of the
Constitutions of Clarendon. I shall therefore mention the principal:
I. It was enacted that "the custody of every vacant archbishopric,
bishopric, abbey, and priory of royal foundation ought to be given and
its revenues paid to the king; and that the election of a new
incumbent ought to be made in consequence of the king's writ, by the
chief clergy of the church, assembled in the king's chapel, with the
assent of the king, and with the advice of such prelates as the king
may call to his assistance." The custom recited in the first part of
this constitution could not claim higher antiquity than the reign of
William Rufus, by whom it was introduced. It had, moreover, been
renounced after his death by all his successors, by Henry I, by
Stephen, and, lastly, by the present King himself. On what plea
therefore it could be now confirmed as an ancient custom it is
difficult to comprehend.
II. By the second and seventh articles it was provided that in almost
every suit, civil or criminal, in which each or either party was a
clergyman, the proceeding should commence before the king's justices,
who should determine whether the cause ought to be tried in the
secular or episcopal courts; and that in the latter case a civil
officer should be present to report the proceedings, and the
defendant, if he were convicted in a criminal action, should lose his
benefit of clergy. This, however it might be called for by the
exigencies of the times, ought not to have been termed an ancient
custom. It was most certainly an innovation. It overturned the law as
it had invariably stood from the days of the Conqueror, and did not
restore the judicial process of the Anglo-Saxon dynasty.
III. It was ordered that "no tenant-in-chief of the king, no officer
of his household, or of his demesne, should be excommunicated, or his
lands put under an interdict, until application had been made to the
king, or in his absence to the grand justiciary, who ought to take
care that what belongs to the king's courts shall be there determined,
and what belongs to the ecclesiastical courts shall be determined in
them."
Sentences of excommunication had been greatly multiplied and abused
during the Middle Ages. They were the principal weapons with which the
clergy sought to protect themselves and their property from the
cruelty and rapacity of the banditti in the service of the barons.
They were feared by the most powerful and unprincipled, because, at
the same time that they excluded the culprit from the offices of
religion, they also cut him off from the intercourse of society. Men
were compelled to avoid the company of the excommunicated, unless they
were willing to participate in his punishment. Hence much ingenuity
was displayed in the discovery of expedients to restrain the exercise
of this power; and it was contended that no tenant of the crown ought
to be excommunicated without the king's permission, because it
deprived the sovereign of the personal services which he had a right
to demand of his vassal. This "custom" had been introduced by the
Conqueror, and, though the clergy constantly reclaimed, had often been
enforced by his successors.
IV. The next was also a custom deriving its origin from the Conquest,
that no archbishop, bishop, or dignified clergyman should lawfully go
beyond the sea without the king's permission. Its object was to
prevent complaints at the papal court, to the prejudice of the
sovereign.
V. It was enacted that appeals should proceed regularly from the
archdeacon to the bishop, and from the bishop to the archbishop. If
the archbishop failed to do justice, the cause ought to be carried
before the king, that by his precept the suit might be terminated in
the archbishop's court, so as not to proceed further without the
king's consent. Henry I had endeavored to prevent appeals from being
carried before the Pope, and it was supposed that the same was the
object of the present constitution. The King, however, thought proper
to deny it. According to the explanation which he gave, it prohibited
clergymen from appealing to the pope in _civil_ causes only, when they
might obtain justice in the royal courts. The remaining articles are
of minor importance. They confine pleas of debt and disputes
respecting advowsons to the cognizance of the king's justices; declare
that clergymen who hold lands of the crown hold by barony, and are
bound to the same services as the lay barons; and forbid the bishops
to admit to orders the sons of villeins, without the license of their
respective lords.
As the Primate retired he meditated in silence on his conduct in the
council. His scruples revived, and the spontaneous censures of his
attendants added to the poignancy of his feelings. In great agony of
mind he reached Canterbury, where he condemned his late weakness,
interdicted himself from the exercise of his functions, wrote to
Alexander a full account of the transaction, and solicited absolution
from that Pontiff. It was believed that, if he had submitted with
cheerfulness at Clarendon, he would have recovered his former
ascendency over the royal mind: but his tardy assent did not allay the
indignation which his opposition had kindled, and his subsequent
repentance for that assent closed the door to forgiveness. Henry had
flattered himself with the hope that he should be able to extort the
approbation of the "customs" either from the gratitude of Alexander,
whom he had assisted in his necessities, or from the fears of that
Pontiff, lest a refusal might add England to the nations which
acknowledged the antipope.
The firmness of the Pope defeated all his schemes, and the King in his
anger vowed to be revenged on the Archbishop. Among his advisers there
were some who sought to goad him on to extremities. They scattered
unfounded reports; they attributed to Becket a design of becoming
independent; they accused him of using language the most likely to
wound the vanity of the monarch. He was reported to have said to his
confidants that the youth of Henry required a master; that the
violence of his passions must and might easily be tamed; and that he
knew how necessary he himself was to a king incapable of guiding the
reins of government without his assistance. It was not that these men
were in reality friends to Henry. They are said to have been equally
enemies to him and to the Church. They sighed after the licentiousness
of the last reign, of which they had been deprived, and sought to
provoke a contest, in which, whatever party should succeed, they would
have to rejoice over the defeat either of the clergy, whom they
considered as rivals, or of the King, whom they hated as their
oppressor.
The ruin of a single bishop was now the principal object that occupied
and perplexed the mind of this mighty monarch. By the advice of his
counsellors it was resolved to waive the controversy respecting the
"customs," and to fight with those more powerful weapons which the
feudal jurisprudence always offered to the choice of a vindictive
sovereign. A succession of charges was prepared, and the Primate was
cited to a great council in the town of Northampton. With a misboding
heart he obeyed the summons; and the King's refusal to accept from him
the kiss of peace admonished him of his danger.
At the opening of the council, October 13th, John of Oxford presided;
Henry exercised the office of prosecutor. The first charge regarded
some act of contempt against the King, supposed to have been committed
by Becket in his judicial capacity. The Archbishop offered a plea in
excuse; but Henry swore that justice should be done him; and the
obsequious court condemned Becket to the forfeiture of his goods and
chattels, a penalty which was immediately commuted for a fine of five
hundred pounds. The next morning the King required him to refund three
hundred pounds, the rents which he had received as warden of Eye and
Berkhamstead. Becket coolly replied that he would pay it; more,
indeed, had been expended by him in the repairs, but money should
never prove a cause of dissension between himself and his sovereign.
Another demand followed of five hundred pounds received by the
Chancellor before the walls of Toulouse. It was in vain that the
Archbishop described the transaction as a gift. Henry maintained that
it was a loan; and the Court, on the principle that the word of the
sovereign was preferable to that of a subject, compelled him to give
security for the repayment of the money. The third day the King
required an account of all the receipts from vacant abbeys and
bishoprics which had come into the hands of Becket during his
chancellorship, and estimated the balance due to the Crown at the sum
of forty-four thousand marks. At the mention of this enormous demand
the Archbishop stood aghast. However, recovering himself, he replied
that he was not bound to answer: that at his consecration both Prince
Henry and the Earl of Leicester, the justiciary, had publicly released
him by the royal command from all similar claims; and that on a demand
so unexpected and important he had a right to require the advice of
his fellow-bishops.
Had the Primate been ignorant of the King's object, it was
sufficiently disclosed in the conference which followed between him
and the bishops. Foliot, with the prelates who enjoyed the royal
confidence, exhorted him to resign; Henry of Winchester alone had the
courage to reprobate this interested advice. On his return to his
lodgings the anxiety of Becket's mind brought on an indisposition
which confined him to his chamber; and during the next two days he had
leisure to arrange plans for his subsequent conduct. The first idea
which suggested itself was a bold, and what perhaps might have proved
a successful, appeal to the royal pity. He proposed to go barefoot to
the palace, to throw himself at the feet of the King, and to conjure
him by their former friendship to consent to a reconciliation. But he
afterward adopted another resolution, to decline the authority of the
court, and trust for protection to the sacredness of his character.