The origin of this difficulty was in the separation—needful perhaps, but none the less disastrous in some of its consequences—made by William the Conqueror between the temporal and ecclesiastical courts of justice. In William’s intention the two sets of tribunals were to work side by side without mutual interference save when the secular power was called in to enforce the decisions of the spiritual judge. But in practice the scheme was soon found to involve a crowd of difficulties. The two jurisdictions were constantly coming into contact, and it was a perpetual question where to draw the line between them. The struggle for the investitures, the religious revival which followed it, the vast and rapid developement of the canon law, with the increase of knowledge brought to bear upon its interpretation through the revived study of the civil law of Rome, gave the clergy a new sense of corporate importance and strength, and a new position as a distinct order in the state; the breakdown of all secular administration under Stephen tended still further to exalt the influence of the canonical system which alone retained some vestige of legal authority, and to throw into the Church-courts a mass of business with which they had hitherto had only an indirect concern, but which they alone now seemed capable of treating. Their proceedings were conducted on the principles of the canon law, which admitted of none but spiritual penalties; they refused to allow any lay interference with the persons over whom they claimed sole jurisdiction; and as these comprised the whole clerical body in the widest possible sense, extending to all who had received the lowest orders of the Church or who had taken monastic vows, the result was to place a considerable part of the population altogether outside the ordinary law of the land, and beyond the reach of adequate punishment for the most heinous crimes. Such crimes were only too common, and were necessarily fostered by this system of clerical immunities; for a man capable of staining his holy orders with theft or murder was not likely to be restrained by the fear of losing them, which a clerical criminal knew to be the worst punishment in store for him; and moreover, it was but too easy for the doers of such deeds to shelter themselves under the protection of a privilege to which often they had no real title. The king’s justiciars declared that in the nine years since Henry’s accession more than a hundred murders, besides innumerable robberies and lesser offences, had gone unpunished because they were committed by clerks, or men who represented themselves to be such.[82] The scandal was acknowledged on all hands; the spiritual party in the Church grieved over it quite as loudly and deeply as the lay reformers; but they hoped to remedy it in their own way, by a searching reformation and a stringent enforcement of spiritual discipline within the ranks of the clergy themselves. The subject had first come under Henry’s direct notice in the summer of 1158, when he received at York a complaint from a citizen of Scarborough that a certain dean had extorted money from him by unjust means. The case was tried, in the king’s presence, before the archbishop of the province, two bishops, and John of Canterbury the treasurer of York. The dean failed in his defence; and as it was proved that he had extorted the money by a libel, an offence against which Henry had made a special decree, some of the barons present were sent to see that the law had its course. John of Canterbury, however, rose and gave it as the decision of the spiritual judges that the money should be restored to the citizen and the criminal delivered over to the mercy of his metropolitan; and despite the justiciar’s remonstrances, they refused to allow the king any rights in the matter. Henry indignantly ordered an appeal to the archbishop of Canterbury; but he was called over sea before it could be heard,[83] and had never returned to England until now, when another archbishop sat in Theobald’s place.

That it was Thomas of London who sat there was far from being an indication that Henry had forgotten the incident. It was precisely because Henry in these last four years had thought over the question of the clerical immunities and determined how to deal with it that he had sought to place on S. Augustine’s chair a man after his own heart. He aimed at reducing the position of the clergy, like all other doubtful matters, to the standard of his grandfather’s time. He held that he had a right to whatever his ancestors had enjoyed; he saw therein nothing derogatory to either the Church or the primate, whom he rather intended to exalt by making him his own inseparable colleague in temporal administration and the supreme authority within the realm in purely spiritual matters—thus avoiding the appeals to Rome which had led to so much mischief, and securing for himself a representative to whom he could safely intrust the whole work of government in England as guardian of the little king,[84] while he himself would be free to devote his whole energies to the management of his continental affairs. He seems in fact to have hoped tacitly to repeal the severance of the temporal and ecclesiastical jurisdictions, and bring back the golden age of William and Lanfranc, if not that of Eadgar and Dunstan; and for this he, not unnaturally, counted unreservedly upon Thomas. By slow degrees he discovered his miscalculation. Thomas had given him one direct warning which had been unheeded; he had warned him again indirectly by resigning the chancellorship; now, when the king unfolded his plans, he did not at once contradict him; he merely answered all his arguments and persuasions with one set phrase:—“I will render unto Cæsar the things that are Cæsar’s, and unto God the things that are God’s.”[85]

In July occurred a typical case which brought matters to a crisis. A clerk named Philip de Broi had been tried in the bishop of Lincoln’s court for murder, had cleared himself by a legal compurgation, and had been acquitted. The king, not satisfied, commanded or permitted the charge to be revived, and the accused to be summoned to take his trial at Dunstable before Simon Fitz-Peter, then acting as justice-in-eyre in Bedfordshire, where Philip dwelt. Philip indignantly refused to plead again in answer to a charge of which he had been acquitted, and overwhelmed the judge with abuse, of which Simon on his return to London made formal complaint to the king. Henry was furious, swore his wonted oath “by God’s Eyes” that an insult to his minister was an insult to himself, and ordered the culprit to be brought to justice for the contempt of court and the homicide both at once. The primate insisted that the trial should take place in his own court at Canterbury, and to this Henry was compelled unwillingly to consent. The charge of homicide was quickly disposed of; Philip had been acquitted in a Church court, and his present judges had no wish to reverse its decision. On the charge of insulting a royal officer they sentenced him to undergo a public scourging at the hands of the offended person, and to forfeit the whole of his income for the next two years, to be distributed in alms according to the king’s pleasure. Henry declared the punishment insufficient, and bitterly reproached the bishops with having perverted justice out of favour to their order.[86] They denied it; but a story which came up from the diocese of Salisbury[87] and another from that of Worcester[88] tended still further to shew the helplessness of the royal justice against the ecclesiastical courts under the protection of the primate; and the latter’s blundering attempts to satisfy the king only increased his irritation. Not only did Thomas venture beyond the limits of punishment prescribed by the canon law by causing a clerk who had been convicted of theft to be branded as well as degraded,[89] but he actually took upon himself to condemn another to banishment.[90] He hoped by these severe sentences to appease the king’s wrath;[91] Henry, on the contrary, resented them as an interference with his rights; what he wanted was not severe punishment in isolated cases, but the power to inflict it in the regular course of his own royal justice. At last he laid the whole question before a great council which met at Westminster on October 1.[92]

The king’s first proposition, that the bishops should confirm the old customs observed in his grandfather’s days,[93] opened a discussion which lasted far into the night. Henry himself proceeded to explain his meaning more fully; he required, first, that the bishops should be more strict in the pursuit of criminal clerks;[94] secondly, that all such clerks, when convicted and degraded, should be handed over to the secular arm for temporal punishment like laymen, according to the practice usual under Henry I.;[95] and finally, that the bishops should renounce their claim to inflict any temporal punishment whatever, such as exile or imprisonment in a monastery, which he declared to be an infringement of his regal rights over the territory of his whole realm and the persons of all his subjects.[96] The primate, after vainly begging for an adjournment till the morrow, retired to consult with his suffragans.[97] When he returned, it was to set forth his view of the “two swords”—the two jurisdictions, spiritual and temporal—in terms which put an end to all hope of agreement with the king. He declared the ministers of the Heavenly King exempt from all subjection to the judgement of an earthly sovereign; the utmost that he would concede was that a clerk once degraded should thenceforth be treated as a layman and punished as such if he offended again.[98] Henry, apparently too much astonished to argue further, simply repeated his first question—“Would the bishops obey the royal customs?” “Aye, saving our order,” was the answer given by the primate in the name and with the consent of all.[99] When appealed to singly they all made the same answer.[100] Henry bade them withdraw the qualifying phrase, and accept the customs unconditionally; they, through the mouth of their primate, refused;[101] the king raged and swore, but all in vain. At last he strode suddenly out of the hall without taking leave of the assembly;[102] and when morning broke they found that he had quitted London.[103] Before the day was over, Thomas received a summons to surrender some honours which he had held as chancellor and still retained;[104] and soon afterwards the little Henry was taken out of his care.[105]

The king’s wrath presently cooled so far that he invited the primate to a conference at Northampton. They met on horseback in a field near the town; high words passed between them; the king again demanded, and the archbishop again refused, unconditional acceptance of the customs; and in this determination they parted.[106] A private negotiation with some of the other prelates—suggested, it was said, by the diplomatist-bishop of Lisieux—was more successful; Roger of York and Robert of Lincoln met the king at Gloucester and agreed to accept his customs with no other qualification than a promise on his part to exact nothing contrary to the rights of their order. Hilary of Chichester not only did the same but undertook to persuade the primate himself. In this of course he failed.[107] Some time before Christmas, however, there came to the archbishop three commissioners who professed to be sent by the Pope to bid him withdraw his opposition; Henry having, according to their story, assured the Pope that he had no designs against the clergy or the Church, and required nothing beyond a verbal assent for the saving of his regal dignity.[108] On the faith of their word Thomas met the king at Oxford,[109] and there promised to accept the customs and obey the king “loyally and in good faith.” Henry then demanded that as the archbishop had withstood him publicly, so his submission should be repeated publicly too, in an assembly of barons and clergy to be convened for that purpose.[110] This was more than Thomas had been led to expect; but he made no objection, and the Christmas season passed over in peace. Henry kept the feast at Berkhampstead,[111] one of the castles lately taken from the archbishop; Thomas at Canterbury, where he had just been consecrating the great English scholar Robert of Melun—one of the three Papal commissioners—to succeed Gilbert Foliot as bishop of Hereford.[112]