Henry appeals to
the ancient
customs.

In the process of his reforms he was startled by the absolute immunity accorded to the crimes of the clergy, or persons pretending to be clergymen, through the double jurisdiction of the lay and Church courts which was introduced by William the Conqueror. Any clerk who committed a crime could be demanded by his bishop from the officers of secular justice, and sentenced by him to ecclesiastical punishment, which, according to the law of William, was to be enforced by the secular arm. But, in fact, so much afraid were the bishops of any clerk being tried by the lay courts, and so jealous were the lay officers of being called on to enforce the ecclesiastical punishments, that the whole system broke down. Thieves and murderers who called themselves clerks were demanded by the bishops and sentenced to penances and deprivation of orders, two punishments at which they could afford to laugh. Henry proposed that, when such prisoners were taken and found guilty, they should be delivered to the bishops to be spiritually punished, and then to the secular officers, to have sufficient punishment, to be hanged, or blinded, or imprisoned as the mild laws of the period ordered. Thomas would not hear of this—one punishment was enough for one fault; if the clergyman was a thief, and proved so to be, let him be degraded—that was enough; if he broke the law again, the law might have him, for he was after degradation entitled to the privileges of a clergyman no more. Henry grew very angry at this foolish and imprudent proposal. Such, he said, had not been the law in the time of his grandfather, the great king Henry the Elder, the lion of righteousness. He would not submit, but would enforce the ancient rights and customs of the realm as his grandfather had done. But what, it was asked, were those customs? The reign of Stephen had witnessed a total abeyance of secular law, and had listened to very extraordinary assertions of ecclesiastical right and liberty. Let the ancient customs be first ascertained, and then it would be time to say whether or no the clergy and laity could act together. Becket allowed the bishops to promise to observe these customs ‘saving their order.’ Henry declared that that meant nothing. The assembly was broken up in wrath. The king ordered the manors of Eye and Berkhampstead to be surrendered, and the archbishop in two or three later interviews sought in vain for a reconciliation.

Henry’s
motives.

Whether in this Henry acted from passionate indignation, or because he saw that Becket had taken on himself the maintenance of the extreme views propounded by the canonists as to the immunity of spiritual men, we cannot now venture to determine. The breach between the two was never healed; both probably saw that it never could even be compromised. The dispute had its real basis in the difficulty of adjusting legal and spiritual relations, which even at the present day seems no nearer receiving a permanent settlement.

Council of
Clarendon,
1164.

Constitutions
of
Clarendon.

Becket’s
conduct.

Soon after Christmas another court was held, at Clarendon, one of those forest palaces at which, as at Woodstock, Henry and his sons used to call the counsellors together, and diversify business with sport. It was called for the purpose of finishing the business began at Westminster. The archbishop was asked whether he would accept the ancient customs; he declined to do it without making conditions. The king then ordered that the ‘recognition of the customs’ should be read. This was the report of the great committee appointed to ascertain and commit them to writing, a committee which nominally contained nearly all the bishops and barons, but which Becket declared to consist only of Richard de Lucy, the justiciar, and Jocelin de Bailleul, a French lawyer. This report was the celebrated Constitutions of Clarendon, a sort of code or concordat, in sixteen chapters, which included not merely a system of definite rules to regulate the disposal of the criminal clergy, but a method of proceeding by which all quarrels that arose between the clergy and laity might be satisfactorily heard and determined. Questions of advowsons, of disputed estates, of excommunication, the rights of the spiritual courts over laymen, and of lay courts over spiritual men, the rights of the crown in vacant churches and in the nomination to benefices, and the right of appeal in ecclesiastical causes, were all defined. No one was to carry a suit farther than the archiepiscopal court; that is, no one was to appeal to the Pope without the king’s leave. Prelates and parsons were not to quit the kingdom without license. The sons of rustics or villeins were not to be ordained without leave of the lords on whose lands they were born. Many similar customs were recorded which show that Henry had determined to set the jurisprudence of the kingdom, as touching laymen and clergy alike, on a just and equal basis; no unfairness towards the spiritual estate was intended, but simply the extinction or restriction of the immunities, the existence of which threw the whole system into disorder. An appeal to Rome must not be allowed to paralyze the whole ecclesiastical jurisdiction, any more than an assertion that the murderer or the murdered man—for the immunity told both ways—was a clerk, should be allowed to insure the escape and impunity of the murderer. Becket was perhaps, at the first sight of these Constitutions, inclined or, as he would have said, tempted to yield. He accepted the Constitutions. Almost as soon as he had done so he drew back; either he recalled his concession or refused to set his seal to the acceptance, or in some way recanted. We have no entirely trustworthy evidence; but it would seem he declared that he had sinned, that he would go to Rome, that he would resign his see, that he would not act as archbishop without first receiving special absolution.

Council of
Northampton,
1164.

Summons
of Becket.