Lectures on the constitution and laws of England / With a commentary on Magna Charta, and illustrations of many of the English statutes

by Francis Stoughton Sullivan

Henry II.’s dispute with Becket—The constitutions of Clarendon—The murder of Becket.

Having, in a general manner, run through the jurisdictions of the several great courts of the kingdom, which were divided from each other about the time I am now treating of, though the division was not compleated, nor the several limits exactly adjusted till some time after; I shall proceed, in a summary way, with the few remaining observations I have to make, with respect to the state of the law during the reign of Henry the Second. And the greatest and most remarkable of these was his dispute with Becket, archbishop of Canterbury; a contest attended with the most fatal effects, and which makes up a considerable part of the civil history of that reign. The particular circumstances that attended it, and the many turns it took, I shall not dwell on; but, as it arose from the clashing of contrary laws, I shall briefly lay open its source, and give an account of the events.

From the year of Christ one thousand, the popes had every day been encreasing their power, and extending their pretensions. They set themselves up, at first, as protectors of the clergy, who really had been oppressed by the temporal princes, and in order to attach them more firmly to their interests, they made canons in councils, and published decretal epistles, by their own sole authority; which, in those days of superstition, were too readily received as laws; all tending to depress the civil power, to raise the ecclesiastical on its ruins, and, in short, to pave the way for making the pope supreme monarch of the world, in matters temporal as well as spiritual. The emperors, however, stickled hard, on the other hand, to support their rights, and particularly to maintain to themselves the nomination of the popes, as well as of other bishops, which the popes had transferred to the people of Rome first, and afterwards to the clergy alone; so that, for a good part of this time, there was a schism in the church, and two popes in being, the one named by the emperor, and the other elected; and I observed before, William Rufus kept himself independent by acknowledging neither, and was absolute master of the church. However, the popes that were elected, generally gained ground. They had the majority of the clergy on their side, and indeed most of the sovereign princes of Europe, who were jealous lest the emperor, under pretence of being successor to the Romans, might arrogate a superiority over them.

It is surprizing, yet very true, that, in these contested times, the papal power was pushed very near its greatest height. The materials, indeed, were formed and collected some time before. A multitude of fictitious decretal epistles had been forged in the names of the antient popes, so early as from the year 800, all tending to exalt the bishop of Rome, as head over the church universal; but these were not as yet generally known and received as laws, the church being hitherto governed by collections of canons made by private persons, out of the canons of the general or provincial councils and sayings of the fathers. But in the reign of our Stephen, the mighty fabrick began to be reared, and to take a regular form. Gratian, a Roman courtier, undertook to make a new compilation of ecclesiastical laws, and published it under the name of Decretum, which is now the first volume of the canon law. This is a motely composition, digested under distinct heads or titles, of rules and decisions, collected from the sayings of the fathers, canons of the councils, and, above all, from the decretal epistles of the popes, (the modern ones real, the ancient ones forged), and was put together principally for the two great purposes, of aggrandising the See of Rome, and exempting the clergy from lay-jurisdiction. And, for that purpose, not only forged epistles and canons have been inserted in it, but the real canons and writings of the fathers have been, in many places, falsified by adding or omitting words as best served the purpose proposed; and that this is the case of Gratian’s work, the learned Papists themselves confess, in many instances. However, in that ignorant age, it passed easily all for genuine. But the popes, wisely considering, that, if it was canvassed, it would not bear a strict scrutiny, never chose to give it an authentic testimony of their authority, but contented themselves with authorising it to be read in universities. In the interval I have mentioned, the popes began to turn their spiritual arms of excommunication or interdict, that is, forbidding the administration of divine offices, except in articulo mortis, in a country or district, to temporal purposes, and the support of their grandeur[379].

On this state of affairs happened the quarrel between the archbishop and Henry, which embroiled him with the pope, embittered his life, and was attended with consequences that brought him to the grave with sorrow. At this time there were two popes, Victor, confirmed by the emperor, and Alexander, the most enterprising pope the world had yet seen, supported by the king of France. Had Henry followed the example of William, and acknowledged neither, he might have kept both in awe, and vindicated the rights of his crown with success. But he was prevailed upon by Lewis of France to recognize Alexander, who was afterwards made an instrument of humbling Henry, of whose power that monarch was jealous. For his extreme partiality and severity is, in part, to be ascribed to the influence of his protector, as well as to his zeal for ecclesiastical immunities. These immunities had grown to an excessive height, and, under the pretence that no man should be twice punished for one offence, the bishops took care to inflict penance on ecclesiastical offenders, and then refused to suffer them to be tried by the laws of the land; so that the most profligate ruffians crowded into the lower order, and committed with impunity (except penance, or rather, a pecuniary commutation for it) what murders, rapes, and robberies, they thought fit. Henry was sensible of those enormities, and, in hopes of curing them, by the assistance of one highly obliged to him, got Becket, who was lord chancellor, his favourite, and indebted to him for his grandeur, promoted to the See of Canterbury. But he soon found how much he was mistaken in his man. Becket had been bred in his youth in the study of the ecclesiastical laws, and, though he had in all things hitherto complied with the king for his advancement, was, at the bottom, strictly attached to his order and its privileges, and resolved, at whatever price, rather to extend than diminish them.

To dazzle the people, he threw aside the pomp and expensive life of a courtier, and assumed the character of mortification and sanctity. He began by reclaiming the estates belonging formerly to his see, though they had been aliened by his predecessors, with the consent of their chapters, and upon valuable consideration; and this under pretence of a canon, made a year or two before by Pope Alexander, in a packed council at Troyes in France; which was plainly saying, that an ecclesiastical canon might repeal the laws of any country, and subvert its constitution. He made an attempt likewise on the patronages of laymen, and appointed a parson to a church, which belonged to one of his own tenants, and afterwards excommunicated the tenant for turning this person out, altho’ he was the king’s tenant in capite; and such, by a law of the conqueror, were forbid to be excommunicated without the king’s leave, under the penalties of treason. This was a very necessary law; as otherwise a bishop might, by his sentence, deprive the king of his service, and that of as many of his military tenants as he pleased. However, in this point, when he found he was in danger of being prosecuted on the law, he relented, and absolved the gentleman[380].

His screening of criminals was excercised also in the most shameful manner. A lewd clerk had debauched a young lady, and afterwards publickly murdered her father, and this criminal was refused to be given up to be tried. Another was guilty of sacrilege, in stealing a silver chalice out of a church, and Becket would not suffer him to be tried by the laws of the land. However, as the offence concerned the church, and was therefore of a very heinous nature, he tried him himself; and having found him guilty, branded him with a hot iron, in defiance both of the English and canon laws, neither of which allow such punishments to an ecclesiastical judge. But he knew he was too faithful a servant to the Pope, to be called to an account even for making free with his own law.

Henry, finding it necessary to stop the prelate’s career, summoned an assembly of the bishops, and demanded of them that they should degrade all ecclesiastical murderers, and deliver them over to the secular arm. At first the majority seemed to think this a reasonable proposal, as they must, in the first place, find them guilty before they were to be given up. But Becket brought them over, by representing, that, by the canon law, they were not to be concerned in matters of blood, and that their delivering over any criminal to capital punishment would be infringing thereof. They therefore refused the king. He then demanded whether they would observe the laws and customs of the kingdom. Their answer was, in all things that did not interfere with the rights of their order. The king left the assembly in wrath, and at length, Becket was, by the intreaties of the other bishops, and even of the Pope’s legate, who knew his master, being embroiled with the antipope, was not able, at this time, to support him, prevailed with to wait on the king, and promise to observe the laws of the land without any reservation[381].

Henry, sensible that such a general promise, when particular facts arose, might be explained and evaded, was resolved that the limits of the ecclesiastical jurisdiction should be ascertained in such a manner as would leave no room for subterfuges; and to that end called a parliament at Clarendon, wherein Becket and the bishops swore to observe the laws there made, called constitutions, as new laws, but declared to be the old laws of the realm. These constitutions were in number sixteen. I shall mention a few of the principal, in order to give a notion of the points of jurisdiction then contested between the spiritual and lay courts. First, then, it was declared, that suits about presentations to livings belong to the king’s courts; that clergymen should be tried for temporal crimes in the temporal courts; and that, if they pleaded guilty, or were convicted, they should lose the ecclesiastical privilege; that no clergyman should quit the realm without the king’s licence, nor attain it, without giving security to attempt nothing to the prejudice of the king or kingdom; that no immediate tenant, or officer of the crown, should be excommunicated without the king’s licence; that appeals in ecclesiastical causes should be made from the arch-deacon to the bishop, from the bishop to the archbishop, from the archbishop to the king.