Henry the Second

by Alice Stopford Green

At Clarendon, however, after three days' conference, the archbishop hesitated and hung back, he had grievously sinned in yielding, and he now refused the promised oath. The bishops, finding courage in his firmness, declared themselves ready to follow him in his refusal. At the news the fury of the king burst forth, and "he was as a madman in the eyes of those who stood by." The court broke into wild disorder, the servants of the king, "with faces more truculent than usual," burst into the assembly of the prelates, and flinging aside their long cloaks, flourished their axes aloft, and threatened to strike them into the heads of the bishops. Two nobles were sent to warn Thomas that orders for his death were already given unless he would submit. The weeping bishops with lamentable voices besought him to save them; knights of the Hospital and the Temple from the king's household knelt before him, sighing and pouring forth tears. "In fear of death," says one chronicler, he yielded. "I am ready," he said, "to keep the customs of the kingdom." Hardly were the words out of his mouth, when Henry commanded him to order the bishops to give the same promise, and again the Primate obeyed. But the king was still unsatisfied. His temper had risen in the discussions of the last few months; his determination was fixed that the matter should be settled once for all. With the sharp decision of a keen and practical administrator, he ordered that the "customs of the kingdom" should be written down, so that no question might ever arise as to the laws which Thomas had sworn to observe; and "wise men" passed into the next room to write according to the king's will. They returned with a draft of sixteen articles, the famous "Constitutions of Clarendon." To these the king commanded that the Primate should set his seal; but Thomas, agitated by fear and anxiety, was no longer of the same mind. "By the omnipotent God," he cried, "while I live, I will never set my seal to it!" Whether he finally submitted it is impossible now to say. But he left the court with a last protest. A copy of the writing was torn down the middle, and one half, after the fashion of the "tallies" of the day, was given to Thomas in token of his promise, while the other was laid up in the royal treasury. "I take this," said the archbishop, "not consenting nor approving," and turning to the clergy: "By this we may know the malice of the king, and those things which we must beware of." He left the council and retired to Winchester, where in sackcloth and penance, shut out from the services of the Church, he condemned himself to wait in deepest humiliation till he should receive the Pope's absolution for his momentary betrayal of duty. For years to come a furious battle was to rage round the sixteen articles drawn up at Clarendon. According to Thomas, the Constitutions were a mere act of arbitrary violence, a cunning device of tyranny. He asserted that they were the sole deed of the justiciar De Lucy, and of Jocelyn de Bailleul, a French lawyer. In any case he frankly denied the authority of "custom," that tyrannous law of medieval times. "God never said," writes one of his defenders, "I am Custom, but I am Truth." Thomas rested his case not on the customary law of the land, but on the code of Rome; to English tradition he opposed the Italian lawyers. Henry, on his part, declared that the Constitutions were drawn up by the common witness of bishops, earls, barons, and wise men; that they were, in fact, part of a system actually in operation, and which had been administered by Thomas himself when he was chancellor. It was certainly a startling novelty to have the customs of the realm drawn up in a written code to which men were required to swear obedience; but still the "Constitutions" professed to be no new legislation, but to be simply a statement of recognized national tradition. The changes that had followed on the Conquest had modified older customs profoundly. The conditions, not only of England but of Europe, had changed with confusing rapidity, and it was no longer easy to say exactly what was "custom" and what was not. To Henry the Constitutions did fairly represent the system which had grown up with general consent under the Norman kings. Thomas, on the other hand, might argue with equal conviction that he was asked to sign as "customs" what was practically a new code; and he had neither the wisdom nor the temper to reconcile the dispute by a reasonable compromise.

No question seems to have been raised as to some of the statutes which were certainly of recent growth, though they touched Church interests. One of these repeated unreservedly the assertion that bishops held a feudal position in all points the same as that of barons or direct vassals of the king, being bound by all their obligations, and entitled to sit with them in judgment in the Curia Regis till it came to a question of blood. Others dealt with disorders which had grown up from the mutual jealousy of Church and lay courts, and the difficulties thus thrown in the way of administering laws which were not disputed; rules were made for the securities to be taken from excommunicated persons; for the giving up to the king of forfeited goods of felons deposited in churches or churchyards; and forbidding the ordination of villeins without their lord's consent,—a provision which possibly was intended to prevent the withdrawal of an unlimited number of people from secular jurisdiction. Two other clauses touched upon the new legal remedies, the use of the jury in the accusation of criminals, and in the decision of questions of property; it was decreed that laymen should not be accused in Church courts save by lawful witness, or by the twelve legal men of the hundred—in other words, by the newly-developed jury of "presentation"; while the jury of "recognition" was ordered to be used in disputed titles to ecclesiastical estates.

The real strife was about the seven remaining statutes, which declared that an accused clerk must first appear before the king's court, and that the justiciar should then send a royal officer with him to watch the trial at the ecclesiastical court, and if he were found guilty the Church should no longer protect him; that the chief clergy might not leave the realm without the king's permission; that appeals might not be carried to the Papal Court without the king's consent; that no tenant-in-chief of the king might be excommunicated without the leave of the king; that the revenues of vacant sees should fall to the king, until a new appointment had been made in his court; that questions of advowsons or presentations to livings questions which at that time represented comparatively a vast amount of property—should be tried in the king's court; and that the king's judges should decide in matters of debt, even where the case included a question of perjury or broken faith, which was claimed as a matter for ecclesiastical jurisdiction. Such laws as these were no doubt in Henry's mind simply part of his scheme for establishing a general order and one undivided authority in the realm. But they opened very much wider grounds of dispute between Church and State than the mere question of how criminal clerks were to be dealt with. They boldly attacked the whole of the pretensions of the Church; they threatened to rob it of a mass of financial business, to wrest from its control an enormous amount of property, to deprive it of jurisdiction in the great majority of criminal suits, to limit its power of irresponsible self-government, and to prevent its absorption into the vast organization of the Church of Western Christendom. They defined the relations of the English Church to the see of Rome. They established its position as a national Church, and declared that its clergy should be brought under the rule of national law.

The eight months which followed the Council of Clarendon were spent in a vain attempt to solve an insoluble problem. Messengers from king and archbishop hastened again and again to the Pope, with no result. Henry set his face like a flint. "Verba sunt," he said to a mediating bishop; "you may talk to me all the days that we both shall live, but there shall be no peace till the archbishop wins the Pope's consent to the customs." Fresh cases arose of clerks accused of theft and murder, but as the personal quarrel between Henry and Thomas increased in bitterness, questions of reform fell into the background. "I will humble thee," the king declared, "and will restore thee to the place from whence I took thee." Thomas, on his part, knew how to awaken all Henry's secret fears. All Europe was concerned in the dispute of king and archbishop. The Pope at Sens, the French king, the "eldest son of the Church," the princes of the House of Blois, as steadfast in their orthodoxy as in their hatred of the Angevin, the Emperor, ready to use any quarrel for his own purposes, were all eagerly watching every turn of the strife. In August Henry was startled by the news that Thomas himself had fled to seek the protection of the Pope at Sens. He was, however, recognized by sailors, and carried back to English shores. Henry immediately dealt his counter-blow. The archbishop was summoned in September to London to answer in a case which John, the marshal, an officer of the Exchequer, had withdrawn from the Archbishop's to the King's Court. Thomas pleaded illness, and protested that the marshal had been guilty of perjury. The king retorted by calling a council for the trial of the archbishop on a charge of contempt of the royal summons. With the insolence of power and the bitter anger of outraged confidence, Henry heaped humiliations on his enemy. The Primate had a right, by ancient custom, to be summoned first among the great lords called to the king's council; he was now merely served with an ordinary notice from the sheriff of Kent to attend his trial. When he arrived at Northampton there was no lodging left free for himself and his attendants. The king had gone out hunting amid the marshes and streams, and only the next morning met the Primate roughly after mass, and refused him the kiss of peace.

In the council which opened in Northampton Castle on Wednesday, 7th October, we see the Curia Regis in the developed form which it had taken under Henry and his justiciar, De Lucy, carrying out an exact legal system, and observing the forms of a very elaborate procedure. The king and his inner council of the great lords, the prelates, and the officers of the household, withdrew to an upper chamber of the castle; the whole company of sheriffs and lesser barons waited in the great hall below till they were specially summoned to the king's presence, crowding round the fire that burned in the centre of the hall under the opening in the roof through which the smoke escaped, or lounging in the straw and rushes that covered the floor. For seven days the trial dragged on, as lawyers and bishops and barons anxiously groped their way through baffling legal problems which had grown out of legislation new and old. Even the king himself, fiery, imperious, dictatorial, clung with a kind of superstition to the forms of legal process. The archbishop asked leave to appeal to the Pope. "You shall first answer in my court for the injury done to John the marshal," said Henry. The next day, Thursday, this matter was decided. Bishops and barons alike, lacking somewhat of the king's daring, shrank at first from the responsibility of pronouncing judgment. "We are laymen," said the barons; "you are his fellow-priests and fellow-bishops, and it is for you to declare sentence." "Nay," answered the bishops, "this is not an ecclesiastical but a secular judgment, and we sit here not as bishops but as barons; if you heed our orders you should also take heed of his." The dispute was a critical one, leading as it did directly to questions about the jurisdiction of the Curia Regis over ecclesiastical persons, and the obligation asserted in the Constitutions of Clarendon, that bishops should sit with barons in the King's Court till it came to a question of blood. The king was seized with one of his fierce fits of anger, and the discussion "immediately ended." The unwilling Bishop of Winchester was sent to pronounce sentence of fine for neglect of the king's summons. Matters then moved quickly. A demand was made for £300 which Thomas had received from Eye and Berkhampstead when he was chancellor; and in spite of his defence that it had been spent in building the palace in London and repairing the castles, judgment went against him. The next day a further demand was made for money spent in the war of Toulouse, and this, too, Thomas agreed to pay, though it was now hard to find sureties. Then the king dealt his last blow. Thomas was required to account for the sums he had received as chancellor from vacant sees and abbeys. "By God's eyes," the king swore, when the Primate and the bishops threw themselves in despair at his feet, he would have the accounts in full. He would only grant a day's delay for Thomas to take counsel with his friends.

By this time there was no doubt of the king's purpose to force upon Thomas the resignation of his archbishopric. The courtiers and lay barons no longer thought it expedient to visit him, and the prelates gave counsel with divided hearts. "Remembering whence the king took you," said Foliot, "and what he has bestowed on you, and the ruin which you prepare for the Church and for us all, not only the archbishopric but ten times as much, if it were possible, you should yield to him. It may be that seeing in you this humility he may yet restore all." To this argument Thomas had curt answer. "Enough—it is well enough known how you, being consulted, would answer!" "You know the king better than we," urged Hilary of Chichester; "in the chancery, in peace and war, you served him faithfully, but not without envy. Those who then envied now excite the king against you. Who dare answer for you? The king has said that you can no longer both be at one time in England—he as king, you as archbishop." Henry of Winchester took his stand on the side of Thomas. "If the authority of the king was to prevail," he argued, "what remains but that nothing shall henceforth be done according to law, but all things shall be disturbed for his pleasure—and the priesthood shall be as the people," he concluded, with a stirring of the churchman's temper. The Bishop of Exeter added another plea to induce Thomas to stand firm: "Surely it is better to put one head in peril than to set the whole Church in danger." Not so, thought the Bishop of Lincoln, "a simple man and of little discretion;" "for it is plain," he said, "that this man must yield up either the archbishopric or his life; but what should be the fruit of his archbishopric to him if his life should cease, I see not." The Bishop of Worcester, son of the famous Robert of Gloucester, and Henry's own cousin and playmate in old days took an eminently prudent course. "I will give no counsel," he said, "for if I say our charge of souls is to be given up at the king's threats, I should speak against my conscience, and to my own condemnation; and if I should advise to resist the king, there are those here who will bring him word of it, and I shall be cast out of the synagogue, and my lot shall be with outlaws and public enemies." At last, by the advice of the politic Henry of Winchester, Thomas offered to pay the king 2000 marks, but this compromise was refused. He urged that he had been freed at his consecration from all secular obligations, but the plea was rejected on the ground that it was done without the king's orders. An adjournment over Sunday was again granted; but on Monday Thomas was ill, and unable to attend the Council. Three days had now passed in fruitless negotiations, and the rising wrath of the king made itself felt. Rumours of danger grew on all sides, and the archbishop prostrated himself before the altar in an agony of prayer, "trembling in his whole body," as he afterwards confessed, less from fear of death than from the more terrible fear of the savage blinding and cruel punishments of those days.

But he showed no signs of yielding when on Tuesday morning, the last day of the Council, the bishops again gathered round him beseeching him to yield to the king's will. With a fierce outbreak of passionate reproaches he solemnly forbade them to take part in any further proceedings against him, and gave formal notice of an appeal to Rome. Then kneeling before the altar of St. Stephen he celebrated mass, using the service for St. Stephen's Day with its psalm, "Princes sat and spake against me,"—"a magical rite," said Foliot, "and an act done in contempt of the king"-and commended himself to the care of the first Christian martyr, and of the martyred Archbishop of Canterbury, Aelfheah. Still arrayed in his pontifical robes, he set out for his last ride to the castle. Of the forty clerks "most learned in the law," who formed his household, only two ventured to follow him; but "an innumerable multitude" of people thronged round him as he passed bearing his cross in his right hand, and followed him to the castle doors with cries of lamentation, weeping and kneeling for his benediction, for it was spread abroad that he should that day be slain. The gates were quickly closed in the face of the tumultuous crowd, and Thomas passed up the great hall, while the king, hearing of his coming in such dress and fashion, hastily withdrew to the upper chamber to take counsel with his officers. "A fool he was, and a fool he always will be," commented Foliot as Thomas entered with his uplifted cross. "Lord archbishop, thou art ill-advised to enter thus to the king with sword unsheathed—if now the king should take his sword, we shall have a well-armed king and a well-armed archbishop!" —"That we will commit to God," said Thomas. Thus he passed to his seat, the troubled and perplexed bishops "sitting opposite to him both in place and in heart."

Meanwhile the king and his inner council, to which the bishops were now summoned, were busy discussing what must be done. Henry's position was one of extreme difficulty, suddenly called on as he was to deal with a legacy of difficulties which had been left from the unsettled controversies of a hundred years. By coming to the court in his pontifical dress Thomas had raised a claim that a bishop could only be tried dressed in full pontificals by his fellow-bishops also in full dress. He had thrown aside the king's jurisdiction by his appeal to Rome; and by his orders to the bishops to judge no further with the barons in this suit he had further violated the "customs" of the realm to which he had himself commanded the bishops to swear obedience at Clarendon. None of the questions raised by Thomas indeed were raised for the first time. William of St. Carileph, when charged by Rufus with treason, had asserted the privilege of a bishop to be tried in pontifical dress, and to be judged only by the canon law in an ecclesiastical court, and had claimed the right of appeal to Rome. But such doctrines were in those days new and somewhat doubtful, not supported in any degree by the Church and quite outside the sympathy of nobles and people, and Lanfranc had easily eluded the Bishop of Durham's claims. Anselm himself had accepted a number of points disputed now by Thomas. He frankly admitted the king's authority in appointing him to the see of Canterbury; he submitted to the jurisdiction of the King's Court; he made no claims to clerical privileges or special forms of trial. He had indeed given the first example of a saving clause in his oath to keep the customs of the kingdom; but the clause he used, "according to God," was radically different from that of Thomas, and asserted no different law of obedience for clerk and for layman. In the reign of Stephen the question of ecclesiastical jurisdiction ad been raised at the trial of Bishop Roger of Salisbury; but in this case too the difficulty had been evaded by a temporary expedient, and the real principle at issue was left untouched. Thomas had in fact taken up a position which had never been claimed by any great churchman of the past. The rising tide of ecclesiastical feeling had swept him on far beyond any of his predecessors. Not even in Anselm's time had the people in an ecstasy of religious fervour pressed to the gate of the judgment hall and knelt for the blessing of the saint with a passion of sympathy and devotion. No problem of such proportions in the relations of Church and State had ever before presented itself to a king of England.

Henry's first step was to send orders to the archbishop to withdraw his appeal to Rome and his prohibition to the bishops to proceed in the trial, and to submit to the King's Court in the matter of the chancery accounts. Secret friends in the Council sent the archbishop strange warnings. Henry, some said, was planning his death; according to others the royal officers were laying plots for it secretly, "the king knowing nothing." A new access of panic seized the bishops. "If he should be captured or slain what remains to us but to be cast out of our offices and honours to everlasting shame!" With faces of abject terror they surrounded Thomas, and the Bishop of Winchester implored him to resign his see. "The same day and the same hour," he answered, "shall end my bishopric and my life." "Would to God," cried Hilary, "that thou wert and shouldst remain only Thomas without any other dignity whatever!" But Thomas refused all compromise; he had not been summoned to answer in this cause; he had already suffered against law for men of Kent and of the sea-border charged with the defence of the coast might be fined only one-third as much as the inland men; at his consecration, too, he had been freed from any responsibility incurred as chancellor; he asserted his right of appeal; and he had meanwhile forbidden the bishops to judge him in any charge that referred to the time before he was Primate. Silently the king's messenger returned with his answer. "Behold, we have heard the blasphemy of prohibition out of his mouth!" cried the barons and officers, and courtiers turning their heads and throwing sidelong glances at him, whispered loudly that William who had conquered England, and even Geoffrey of Anjou, had known how to subdue clerks.

On hearing the message the king at once ordered bishops and barons to proceed to the trial of the Primate for this new act of contempt of the King's Court. "In a strait place you have put us," Hilary broke out bitterly to Thomas, "by your prohibition you have set us between the hammer and the anvil!" In vain they again entreated Thomas to yield; in vain they begged the king's leave to sit apart from the barons. Even the Archbishop of York and Foliot sought anxiously for some escape from obeying Henry's orders, and at the head of the bishops prayed that they might themselves appeal to Rome, and thus deal with their own special grievances against Thomas, who had ordered them to swear and then to forswear themselves. To this Henry agreed, and from this time the prelates sat apart, no longer forced to join in the proceedings of the lay lords; while Henry added to the Council certain sheriffs and lesser barons "ancient in days." The assembly thus remodelled formally condemned the archbishop as a traitor, and the earls of Leicester and of Cornwall were sent to pronounce judgment. But the sentence was never spoken. Thomas sprang up, cross in hand, and passionately forbade Leicester to speak. "How can you refuse to obey," said Leicester, "seeing you are the king's man, and hold your possessions as a fief from him?" "God forbid!" said Thomas; "I hold nothing whatever of him in fief, for whatever the Church holds it holds in perpetual liberty, not in subjection to any earthly sovereignty whatever…. I am your father, you princes of the palace, lay powers, secular persons; as gold is better than lead, so is the spiritual better than the lay power…. By my authority I forbid you to pronounce the sentence." As the nobles retired the archbishop raised his cross: "I also withdraw," he said, "for the hour is past." Cries of "Traitor!" followed him down the hall. Knights and barons rushed after him with bundles of straw and sticks snatched up from the floor, and a clamour rose "as if the four parts of the city had been given to flames and the assault of enemies." He made his way slowly through the weeping crowd outside to the monastery of St. Andrews. That night he fled from Northampton. The darkness was "as a covering" to him, and a terrible storm and pelting rain hid the sound of his horse's feet as he passed at midnight through the town, and out by an unguarded gate to the north. At dawn of day the anxious Henry of Winchester came to ask for news. "He is doing well," Thomas's servant whispered in his ear, "for last night he went away from us, and we do not know whither he has gone." "By the blessing of God!" cried the bishop, weeping and sighing. When the news was brought to the king he stood speechless for some moments, choked by his fury, till at last catching his breath, "We have not done with him yet!" he exclaimed.