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]

On S. Hilary’s day the proposed council met at the royal hunting-seat of Clarendon near Salisbury.[113] Henry called upon the archbishop to fulfil the promise he had given at Oxford and publicly declare his assent to the customs. Thomas drew back. As he saw the mighty array of barons round the king—as he looked over the ranks of his own fellow-bishops—it flashed at last even upon his unsuspicious mind that all this anxiety to draw him into such a public repetition of a scene which he had thought to be final must cover something more than the supposed papal envoys had led him to expect, and that those “customs” which he had been assured were but a harmless word might yet become a terrible reality if he yielded another step. His hesitation threw the king into one of those paroxysms of Angevin fury which scared the English and Norman courtiers almost out of their senses. Thomas alone remained undaunted; the bishops stood “like a flock of sheep ready for slaughter,” and the king’s own ministers implored the primate to save them from the shame of having to lay violent hands upon him at their sovereign’s command. For two days he stood firm; on the third two knights of the Temple brought him a solemn assurance, on the honour of their order and the salvation of their souls, that his fears were groundless and that a verbal submission to the king’s will would end the quarrel and restore peace to the Church. He believed them; and though he still shrank from the formality, thus emptied of meaning, as little better than a lie, yet for the Church’s sake he gave way. He publicly promised to obey the king’s laws and customs loyally and in good faith, and made all the other bishops do likewise.[114]

The words were no sooner out of their mouths than Thomas learned how just his suspicions had been. A question was instantly raised—what were these customs? It was too late to discuss them that night; next morning the king bade the oldest and wisest of the barons go and make a recognition of the customs observed by his grandfather and bring up a written report of them for ratification by the council.[115] Nine days later[116] the report was presented. It comprised sixteen articles, known ever since as the Constitutions of Clarendon.[117] Some of them merely re-affirmed, in a more stringent and technical manner, the rules of William the Conqueror forbidding bishops and beneficed clerks to quit the realm or excommunicate the king’s tenants-in-chief without his leave, and the terms on which the temporal position of the bishops had been settled by the compromise between Henry I. and Anselm at the close of the struggle for the investitures. Another aimed at checking the abuse of appeals to Rome, by providing that no appeal should be carried further than the archbishop’s court without the assent of the king. The remainder dealt with the settlement of disputes concerning presentations and advowsons, which were transferred from the ecclesiastical courts to that of the king; the treatment of excommunicate persons; the limits of the right of sanctuary as regarding the goods of persons who had incurred forfeiture to the Crown; the ordination of villeins; the jurisdiction over clerks accused of crime; the protection of laymen cited before the Church courts against episcopal and archidiaconal injustice; and the method of procedure in suits concerning the tenure of Church lands.