Ecclesiastical Jurisdiction in England

The conflict between Becket and Henry was essentially a conflict over the scope of ecclesiastical jurisdiction; it was thus a paradigm of the Papal Revolution, which established throughout the West two types of competing political-legal authority, the spiritual and the secular.

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In twelfth_century England, as in Europe generally, the ecclesiastical courts claimed jurisdiction (though they did not always get it) over: (1) all civil and criminal cases involving clerics, including all cases involving church property; (2) all matrimonial cases; (3) all testamentary cases; (4) certain criminal cases, such as heresy, sacrilege, sorcery, usury, defamation, fornication, homosexuality, adultery, injury to religious places, and assault against a cleric; and (5) contract, property, and other civil cases, where there was a breach of a pledge of faith (called "perjury," that is, violation of an oath). As far as the canon law was concerned, any case invo lving any of these matters could be instituted by filing a complaint in the court of the appropriate archdeacon or bishop, and an appeal could be taken by the losing party to the court of the appropriate archbishop and thence to the court of the pope in Rome. In fact, in the thirteenth century more cases heard on appeal by the papal court in Rome came from England than from any other country. The pope also exercised a universal original jurisdiction: the plaintiff could impetrate (procure) a writ from the papal curia nominating papal delegates to try any case locally.

At the same time, the church's jurisdictional claims were challenged -- and often successfully challenged -- by the secular courts. As Maitland has put it:

Never in England, nor perhaps in any other country, did the state surrender to the ecclesiastical tribunals the whole of that illimitable tract which was demanded for them by the more reckless of their partisans. Everywhere we see strife and then compromise, and then strife again, and at latest after the end of the thirteenth century the state usually gets the better in every combat. The attempt to draw an unwavering line between "spiritual" and "temporal" affairs is hopeless. Such it will always be if socalled "spiritual courts" are to exercise any power within this world of time. So ragged, so unscientific was the frontier which at any given moment and in any given country divided the territory of secular from the territory of ecclesiastical law that ground could be lost and won by insensible degrees... We have only to consider the incurable vagueness of such phrases as

"testamentary causes" and "matrimonial causes," and we shall understand how easily one small annexation might follow another without any pitched battle, any shout of triumph or wail of defeat. The rulers of the church, therefore, had to tolerate much that they could not approve, or at any rate much that they could not approve in the name of the church. They could give and take without any sacrifice of first principles. No doubt there were principles for which they would have professed a willingness to die after the fashion of St. Thomas; but they were not called upon to shed their blood for every jot and tittle of a complex and insatiable jurisprudence.

Popes, and popes who were no weaklings, had taught them by precept and example that when we are dealing with temporal power we may temporize. 13

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Here, then, was a highly uncomfortable situation: two sets of courts -- one ecclesiastical, the other royal -- both of which claimed jurisdiction over the same cases. How were these rival claims to be resolved? On the one hand, the king was a Christian and hence a subject of the pope; one would have thought that the pope, or his subordinate, the Archbishop of Canterbury, would only have had to admonish an English king that unless he yielded to Holy Church's jurisdictional demands he would be damned in hell. On the other hand, the church itself was the author of the concept of dual authority, two swords, the ecclesiastical and the secular, the spiritual and the temporal. Yet by the church's own definitions, much of what the ecclesiastical courts claimed for their jurisdiction was secular. As Maitland indicates, such phrases as "matrimonial causes" covered not only intimate spiritual questions of family relations but also questions of property relations that often had much to do with the economic and political order for which the crown was responsible.

And then-apart from concept and theory -- there were questions of power. The church, lacking armies of its own, was dependent upon the secular arm for enforcement of its wishes against recalcitrants; in addition, popes and archbishops were generally not named to office without secular support. But the church had a powerful, though unarmed, political corps, the clergy, who could enforce some very potent spiritual sanctions, including excommunication and interdict.

Excommunication meant deprivation of the right to receive the sacraments (including last rites and, consequently, a Christian burial) and, in extreme cases, expulsion from the church altogether, under anathema (a virtual ostracism). Interdict was a partial or total suspension of public services and sacraments; it could extend to one or more persons or to a whole locality or kingdom.

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Given, then, acute rivalry between powers armed with both theoretical and practical weapons, a resolution by legal means must have been greatly desired -- especially since both sides had a very high appreciation of the role of law in resolving conflict, and moreover, the particular conflict was itself a legal one, over jurisdiction.

With respect to clergy charged with serious crimes (felonies) the issue in England seemed to have been settled following Becket's martyrdom: secular jurisdiction even to punish, let alone to try, was excluded. Nevertheless, the king's courts eventually adopted the procedural device of trying the person before inquiring about his clerical status, and only then, if he was convicted, could he plead benefit of clergy and be remitted to the ecclesiastical court. Moreover, the issue of the secular liability of clergy for crimes less than felonies, and for civil offenses, was apparently not raised by Becket; in any event, there remained secular jurisdiction over the clergy in such matters in England. In France, on the contrary, the clergy were immune from secular prosecution for minor crimes, but not for the most serious ones, such as premeditated homicide, mutilation, highway robbery, and recidivism ("incorrigibility"), and not for "royal cases," which included treason and other crimes touching the prince or the dignity of his officers as well as crimes of public safety, such as holding forbidden assemblies and teaching idolatry, atheism, and other prohibited doctrines.

As for other matters dealt with in the Constitutions of Clarendon, Henry II renounced those provisions which were "offensive" to the papacy, but it was not specified which of them fell into that category. In fact, serious struggles took place in the thirteenth century between the crown and the clergy before the boundaries between the two jurisdictions were more or less settled.

With respect to purely ecclesiastical matters, the jurisdiction asserted by Henry II in the Constitutions of Clarendon was never asserted again until the English Reformation of the sixteenth century. Prior to Henry VIII, the king did not obtain appellate jurisdiction over decisions of the court of the archbishop (article 8). Also the clergy insisted on their right to depart the realm without the king's permission (article 4), though he often restrained them in fact. The king retained the right to be consulted before excommunication of his officers (article 7), but here the pope had the upper hand and could excommunicate the king himself.

With respect to matrimonial and testamentary causes -- matters not touched on in the Constitutions of Clarendon -- the ecclesiastical courts in England had an almost exclusive jurisdiction. However, "real property” could not be left by will, and in the thirteenth century the king's courts asserted exclusive jurisdiction over all realty.

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With respect to disputes between clerks concerning presentation to churches (article 1) and disputes between laymen over debts due under a pledge of faith (article 15), both the ecclesiastical courts and the royal courts asserted their respective jurisdictions. In both of these types of disputes the ecclesiastical courts exercised a very considerable voluntary jurisdiction.

A comparison of the boundaries between ecclesiastical and secular jurisdiction in England and in France reveals that the church held a less privileged positon in France than in England.