The next few weeks were occupied with litigation over the alienated lands of the metropolitan see. A crowd of claims put in by Thomas and left to await the king’s return now came up for settlement, the most important case being that of Earl Roger of Clare, whom Thomas had summoned to perform his homage for Tunbridge at Westminster on July 22. Roger answered that he held the entire fief by knight-service, to be rendered in the shape of money-payment,[75] of the king and not of the primate.[76] As Roger was connected with the noblest families in England,[77] king and barons were strongly on his side.[78] To settle the question, Henry ordered a general inquisition to be made throughout England to ascertain where the service of each land-holder was lawfully due. The investigation was of course made by the royal justiciars; and when they came to the archiepiscopal estates, one at least of the most important fiefs in dispute was adjudged by them to the Crown alone.[79]

Meanwhile a dispute on a question of church patronage arose between the primate and a tenant-in-chief of the Crown, named William of Eynesford. Thomas excommunicated his opponent without observing the custom which required him to give notice to the king before inflicting spiritual penalties on one of his tenants-in-chief.[80] Henry indignantly bade him withdraw the sentence; Thomas refused, saying “it was not for the king to dictate who should be bound or who loosed.”[81] The answer was indisputable in itself; but it pointed directly to the fatal subject on which the inevitable quarrel must turn: the relations and limits between the two powers of the keys and the sword.

Almost from his accession Henry seems to have been in some degree contemplating and preparing for those great schemes of legal reform which were to be the lasting glory of his reign. His earliest efforts in this direction were merely tentative; the young king was at once too inexperienced and too hard pressed with urgent business of all kinds, at home and abroad, to have either capacity or opportunity for great experiments in legislation. Throughout the past nine years, however, the projects which floated before his mind’s eye had been gradually taking shape; and now that he was at last freed for a while from the entanglements of politics and war, the time had come when he might begin to devote himself to that branch of his kingly duties for which he probably had the strongest inclination, as he certainly had the highest natural genius. He had by this time gained enough insight into the nature and causes of existing abuses to venture upon dealing with them systematically and in detail, and he had determined to begin with a question which was allowed on all hands to be one of the utmost gravity: the repression of crime in the clergy.

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]