The Constitutions of Clarendon and the Becket affair

Becket murderIf anyone knows anything about the reign of Henry II, they know about the Beckett affair.

About the King’s argument with his Archbishop of Canterbury (and former Chancellor) Thomas Becket, over the punishment of ‘criminous clerks’.

About his impassioned plea “Will no-one rid me of this turbulent priest?” upon which four knights of his household upped and murdered him in Canterbury Cathedral.

And about how Becket was subsequently canonised, with the scene of his murder becoming a shrine and place of pilgrimage for many years, until Henry VIII did away with all that sort of thing.

In reality it was a bit more complicated than that.

At the heart of the problem is the conflict between the jurisdiction of the church and the King. The divine and the secular.

The church and the king in conflict

The story of the rise and consolidation of the pope’s power runs throughout this period of history. It is not the story of this blog but we need to touch upon it here.

In medieval times, the Church was the Catholic Church which had its centre in Rome and was headed by the Pope. Both the Church and the King were jealous of their rights.

The Normans had ensured that their grip remained strong on their own territory. During the reign of William I for example, if a letter were sent to a Bishop by the pope, the King had to read it first, and prelates had to ask his permission before attending a papal court or general council.

These customs remained during the reigns of Rufus and Henry I, but were compromised during the difficult reign of Stephen.

As we have seen before, Henry was keen to return to the rights and customs at the time of his grandfather Henry I. However in the intervening period customs had changed. Partly this was due to the inept handling of things by Stephen. Although Henry did not consider himself bound by anything Stephen (the unlawful) had done, he could not ignore other developments so easily.

Take developments in cannon law for instance. An important new book from about 1140, Concordia Discordantium Canonum, by Gratian (believed to be a canon lawyer from Bologna), a compilation of earlier cannon law, was hugely influential. One of the chief lessons it taught was ‘the justification and necessity for papal legislative sovereignty’.

As you can imagine, this was not something Henry was likely to sympathise with. However, despite his ferocious Angevin temper, Henry was a good negotiator and was usually prepared to compromise in difficult situations. As Warren puts it:

It seems clear that Henry II took the view the ecclesiastical and royal jurisdiction were complementary and should co-operate. He was not prepared to see the traditional rights of the Crown impugned and did not, for his part, wish to contest the authority of the Church.

He seems to have supposed that the troublesome competition which might be caused by the unclear line of demarcation between the two jurisdiction could be averted by sensible give and take, with neither side trying the claim an exclusive jurisdiction.

Henry’s first Archbishop, Archbishop Theobold, shared this view. Becket however had different ideas.

Criminous clerks

Then there was the vexed question of the trial and punishment of clerks and clerics.

A much larger proportion of the population came within the jurisdiction of the medieval church than is the case today.  Not only were there Bishops, Archbishops, chaplains and parish priests, together with the monks and canons in the numerous monasteries. There was also the ‘secular clergy’ of scribes, secretaries and teachers.

The only way ordinary people could get an education was through the church, so most educated men were clerics of one type or another. It is believed that clerics comprised some 5% of the male population.

As the times were violent, so too often were the clerks. But ‘criminous clerks’ had the right to be tried by the Church courts.  This protected them from the more rigorous punishment meted out to ill doers under the Kings Courts (which could include lopping off your hands, testicles, or (for more severe crimes) your head).

The trouble was though that the Church seemed to be incapable of dealing with the punishment of criminous clerks properly, and this frequently resulted in considerable injustice. There are several stories of known criminals who escaped any punishment at all for their crimes due to this rule.

The Constitutions of Clarendon

Henry was keen to restore his domains to the (comparative) law and order they had enjoyed under his grandfather, and this jurisdiction of the church over criminous clerks offended him. He tried to deal with this during the three days in Clarendon Palace in Wiltshire when he promulgated what is known as the Constitutions of Clarendon – a set of rules setting out the demarcation between secular and papal authority.

Knowing that the question of criminous clerks was a tricky one, Henry’s clause here was a bit vague, but in essence it provided that if an accused could prove he was a Clerk he could seek the jurisdiction of the Ecclesiastical Courts. However if then found guilty he would be divested of his clerical status and fall within the jurisdiction of the Kings courts.  Where he would be  subject to punishment.

This sounds reasonable (for the time) and accorded with what actually happened in many cases. Becket however opposed it vigorously. One reason being that the Clerks would already have been punished by being stripped of their clerical office, and anything else would be unfair.

In retrospect, the Constitutions of Clarendon was probably a mistake – one which that wily old fox his grandfather would never have made. Clear rules are a barrier to the fudging which is often an essential part of compromise. However the young King Henry was rather keen on written statements of his rights.

Exile, restoration and revenge

As a result of their argument, Becket was exiled for some six years. Their failure to resolve their dispute was partly down to the issues, but partly also due the intransigence of the parties.

Eventually though a reconciliation was reached and Becket returned. However he still proved infuriating, hence Henry’s unfortunate outburst against him and the unwanted action taken by the four murderous knights before they could be recalled by Henry’s men.

Interestingly, some have suggested that Becket welcomed death and martyrdom. It certainly appears from the records as if he could have escaped if he had wanted to, but it seems, he chose to stay and die.

The murder had a catastrophic effect on Henry, and his reputation never really recovered from it. He appears to have been genuinely devastated (they had after all once been close friends) and shut himself up in his room and refused all food, until they worried for his own safely.

Due no doubt, to his genuine remorse, Henry was not excommunicated by the pope (who was horrified by the murder) and the terms of agreement and penance imposed on him were not as bad as they could have been.

As a result of all this though, he had no choice but to abandon the criminous clerks to the ecclesiastical authorities, and those clauses in the Constitutions of Clarendon were revoked.  But the rest remained law. He also remained on reasonable working terms with the pope and his bishops for the remainder of his reign.

The Writ of Prohibition

The Becket affair ended Henry’s formal attempt to define in law the boundary line between secular and ecclesiastical jurisdictions. In future, conflicts of law were dealt item by item by means of a new writ, the royal Writ of Prohibition.

This could be issued to prevent a matter being decided in the ecclesiastical courts. However it would normally refused if the matter was something considered to be in the province of the church such as a marriage portion or the execution of a dead man’s testament.

So in future the boundary line between the state and ecclesiastical court jurisdictions was dealt with case by case, rather than by a once and for all law.
Lets leave the final comments with Warren:

The Writ of Prohibition was Henry’s major contribution to the avoidance of open conflict between Church ad State in the matter of competing jurisdictions. It produced what Maitland has called ‘a ragged and unscientific frontier’ between the courts, instead of the clear line which Henry had attempted to lay down in the Constitutions of Clarendon. This marked a retreat, but it was a retreat from his youthful distaste for ambiguity rather than from his basic objective. Henry had learned to be flexible …

It left the initiative in the hands of the King without forcing the clergy to the humiliation of abandoning established claims. Henry II was not accused of deviousness without cause; but the practice of prohibition, while undoubtedly vexatious to the clergy, stopped just short of being intolerable. Nothing indeed could be said to typify more clearly the policy and methods of Henry II than the Writ of Prohibition.

Canturbury Cathedral stained glass window picture is from Wikimedia

Towns in medieval England

Medieval towns and cities or boroughs, would have a charter from the King, Lord or Bishop/Abbot granting them certain freedoms.

Medieval slavery and unfree villeinage

Slavery was by no means absent from Medieval England. Whether villeins were the equivalent of slaves is another matter

The Kings courts and the start of the common law

Looking at how the rise of the Kings Courts lead to a reduction in the power of the lords to decide the identity of their tenants, and how the rise of the jury led to the development of the common law

The petty assizes and the development of the jury system

The petty assizes were the new forms of action designed to maintain the status quo – the writ of novel disessin and the writ of mort d’ancester. These were popular as they did not involve the more chancy ordeals

The General Eyre and the Court at Westminster

In my last post I said I was going to be looking the new forms of action developed by Henry II, but I think I ought to look first at his reforms of the Court System. We last looked at the courts system at the start of Henry’s reign when they were in a right…

The Writ of Right and the start of Henry II’s legal reforms

Henry II was responsible for many important legal innovations. For example land disputes now had to be resolved via the courts, and he also introduced new assizes

Battle Abbey v. Gilbert de Balliol

Here we have an example of actual 12th century litigation – the long drawn out case of the Abbey at Battle claiming back land from IGilbert de Balliol

The Norman Posts
What the Normans did for law in England

Looking back of over the Norman period and considering what impact they had on the English legal sys[more]

Westminster Hall

Westminster Hall has over the past 900 years held a central place in the life of the nation. It was [more]

Cadfael and law in the reign of Stephen

The Cadfael books cast a light on law in the reign of Stephen as well as the political history of th[more]

Oaths and Ordeals

Ordeals by fire and water and trial by battle - how they were used and descriptions of the events [more]

Sheriffs in Norman times

Introducing the office of Sheriff, an important one in English legal history. We will be looking at[more]

Writs, law and the nature of lawyer DNA

There is a big difference between law now and in Norman times which this post covers, along with som[more]

Custom and courts before and after the conquest

Looking at how England was divided for administration before the conquest and the three levels of co[more]

Henry I – The Lion of Justice

Taking a look at Henry I, what he was like and what his reign meant for the country. Henry I was a [more]

The Domesday Book

The Doomsday Book has been called Britain s greatest treasure. It is certainly unique and has been[more]

The Lord of the Manor

In this post, I am going to take a look at the lower end of the feudal system. The end that you and [more]

The Estates of Man in Norman England

Taking a quick look at the different levels of society and their names. If you want to know about K[more]

The Kings Demesne

‘Demesne’ is the word for land a lord keeps for himself. This post looks at the land kept by th[more]

Norman Barons: Writs and Relief

Here we look at the ‘head lessors’, the Barons. There was a massive change at this level of soc[more]

Landlord and tenure

This was the very first history post, and looks at the word ‘landlord’ and what it means, and al[more]

This blog was built in ...
Headway — The Drag & Drop Theme For WordPress

To find out more click the image above which will take you to the Headway site. It is an affiliate link.