The contest at last commenced; and the first attack was made with great judgment against that quarter in which the spiritual courts were the most defenceless, their criminal jurisdiction. The canons had excluded clergymen from judgments of blood; and the severest punishments which they could inflict were flagellation, fine, imprisonment, and degradation. It was contended that such punishments were inadequate to the suppression of the more enormous offences; and that they encouraged the perpetration of crime by insuring a species of impunity to the perpetrator. As every individual who had been admitted to the tonsure, whether he afterward received holy orders or not, was entitled to the clerical privileges, we may concede that there were in these turbulent times many criminals among the clergy; but, if it were ever said that they had committed more than a hundred homicides within the last ten years, we may qualify our belief of the assertion, by recollecting the warmth of the two parties, and the exaggeration to which contests naturally give birth.
In the time of Theobald, Philip de Brois, a canon of Bedford, had been arraigned before his bishop, convicted of manslaughter,[29] and condemned to make pecuniary compensation to the relations of the deceased. Long afterward, Fitz-Peter, the itinerant justiciary, alluding to the same case, called him a murderer in the open court at Dunstable. A violent altercation ensued, and the irritation of Philip drew from him expressions of insult and contempt. The report was carried to the King, who deemed himself injured in the person of his officer, and ordered De Brois to be indicted for this new offence in the spiritual court. He was tried and condemned to be publicly whipped, to be deprived of the fruits of his benefice, and to be suspended from his functions during two years.
It was hoped that the severity of the sentence would mitigate the King's anger; but Henry was implacable: he swore "by God's eyes" that they had favored De Brois on account of his clerical character, and required the bishops to make oath that they had done justice between himself and the prisoner (A.D. 1163). In this temper of mind he summoned them to Westminster, and required their consent that, for the future, whenever a clergyman had been degraded for a public crime by the sentence of the spiritual judge, he should be immediately delivered into the custody of a lay officer to be punished by the sentence of a lay tribunal. To this the bishops, as guardians of the rights of the Church, objected. The proposal, they observed, went to place the English clergy on a worse footing than their brethren in any other Christian country; it was repugnant to those liberties which the King had sworn to preserve at his coronation; and it violated the first principle of law, by requiring that the same individual should be tried twice and punished twice for one and the same offence. Henry, who had probably anticipated the answer, immediately quitted the subject, and inquired whether they would promise to observe the ancient customs of the realm. The question was captious, as neither the number nor the tendency of these customs had been defined; and the Archbishop with equal policy replied that he would observe them, "saving his order." The clause was admitted when the clergy swore fealty to the sovereign; why should it be rejected when they only promised the observance of customs? The King put the question separately to all the prelates, and, with the exception of the Bishop of Chichester, received from each the same answer. His eyes flashed with indignation: they were leagued, he said, in a conspiracy against him; and in a burst of fury he rushed out of the apartment. The next morning the primate received an order to surrender the honor of Eye and the castle of Berkhamstead. The King had departed by break of day.
The original point in dispute was now merged in a more important controversy; for it was evident that under the name of the customs was meditated an attack not on one, but on most of the clerical immunities. Of the duty of the prelates to oppose this innovation no clergyman at that period entertained a doubt; but to determine how far that opposition might safely be carried was a subject of uncertain discussion. The Archbishop of York, who had been gained by the King, proposed to yield for the present, and to resume the contest under more favorable auspices; the undaunted spirit of Becket spurned the temporizing policy of his former rival, and urged the necessity of unanimous and persevering resistance. Every expedient was employed to subdue his resolution; and at length, wearied out by the representations of his friends and the threats of his enemies, the pretended advice of the Pontiff, and the assurance that Henry would be content with the mere honor of victory, he waited on the King at Woodstock, and offered to make the promise and omit the obnoxious clause. He was graciously received; and to bring the matter to an issue, a great council was summoned to meet at Clarendon after the Christmas holidays.
In this assembly, January 25, 1164, John of Oxford, one of the royal chaplains, was appointed president by the King, who immediately called on the bishops to fulfil their promise. His angry manner and threatening tone revived the suspicions of the Primate, who ventured to express a wish that the saving clause might still be admitted. At this request the indignation of the King was extreme; he threatened Becket with exile or death; the door of the next apartment was thrown open, and discovered a body of knights with their garments tucked up, and their swords drawn; the nobles and prelates besought the Archbishop to relent; and two Knights Templars on their knees conjured him to prevent by his acquiescence the massacre of all the bishops, which otherwise would most certainly ensue. Sacrificing his own judgment to their entreaties rather than their arguments, he promised in the word of truth to observe the "customs," and required of the King to be informed what they were.
The reader will probably feel some surprise to learn that they were yet unknown; but a committee of inquiry was appointed, and the next day Richard de Lucy and Joscelin de Baliol exhibited the sixteen Constitutions of Clarendon. Three copies were made, each of which was subscribed by the King, the prelates, and thirty-seven barons. Henry then demanded that the bishops should affix their seals. After what had passed, it was a trifle neither worth the asking nor the refusing. The Primate replied that he had performed all that he had promised, and that he would do nothing more. His conduct on this trying occasion has been severely condemned for its duplicity. To me he appears more deserving of pity than censure. His was not the tergiversation of one who seeks to effect his object by fraud and deception: it was rather the hesitation of a mind oscillating between the decision of his own judgment and the opinions and apprehensions of others. His conviction seems to have remained unchanged: he yielded to avoid the charge of having by his obstinacy drawn destruction on the heads of his fellow-bishops.
After the vehemence with which the recognition of the "customs" was urged, and the importance which has been attached to them by modern writers, the reader will naturally expect some account of the Constitutions of Clarendon. I shall therefore mention the principal:
I. It was enacted that "the custody of every vacant archbishopric, bishopric, abbey, and priory of royal foundation ought to be given and its revenues paid to the king; and that the election of a new incumbent ought to be made in consequence of the king's writ, by the chief clergy of the church, assembled in the king's chapel, with the assent of the king, and with the advice of such prelates as the king may call to his assistance." The custom recited in the first part of this constitution could not claim higher antiquity than the reign of William Rufus, by whom it was introduced. It had, moreover, been renounced after his death by all his successors, by Henry I, by Stephen, and, lastly, by the present King himself. On what plea therefore it could be now confirmed as an ancient custom it is difficult to comprehend.
II. By the second and seventh articles it was provided that in almost every suit, civil or criminal, in which each or either party was a clergyman, the proceeding should commence before the king's justices, who should determine whether the cause ought to be tried in the secular or episcopal courts; and that in the latter case a civil officer should be present to report the proceedings, and the defendant, if he were convicted in a criminal action, should lose his benefit of clergy. This, however it might be called for by the exigencies of the times, ought not to have been termed an ancient custom. It was most certainly an innovation. It overturned the law as it had invariably stood from the days of the Conqueror, and did not restore the judicial process of the Anglo-Saxon dynasty.
III. It was ordered that "no tenant-in-chief of the king, no officer of his household, or of his demesne, should be excommunicated, or his lands put under an interdict, until application had been made to the king, or in his absence to the grand justiciary, who ought to take care that what belongs to the king's courts shall be there determined, and what belongs to the ecclesiastical courts shall be determined in them."