The Constitutions of Clarendon
The constitutions -- that is, decrees or enactments -- which were issued at Clarendon in 1164 purported to be a record of sixteen "customs, liberties, and privileges" of Henry II's grandfather ( Henry I), acknowledged by the leading clergy and nobles.
The first of these (article 1) provided that all disputes over the right of patronage of church offices -- called advowson -- were to be decided in the king's court, though the dispute arose between a laymen and a cleric or even between two clerics. The significance of attributing this custom to Henry I is that in Stephen's reign such disputes had often been tried in ecclesiastical courts. Another provision (article 9) established royal jurisdiction over (and jury trial of) the question whether or not particular land was church property (frankalmoign, "free alms"). For this custom, too, ancient authority was better than more recent, for under Stephen the church courts had-256-
asserted their own supremacy in determining their jurisdiction over church property. Other provisions prohibited archbishops, bishops, and other clergy from departing the kingdom without permission of the king (article 4); provided for appeals from the archbishop's court to the court of the king (article 8); imposed procedural safeguards on accusations of laymen in ecclesiastical courts (article 6); prohibited excommunication of a tenant_in_chief of the king (one who held land directly of him, as contrasted with a subtenant), or of an officer of the king's household, without the king's permission (article 7); reiterated the settlement reached in 1107 at Bec to the effect that elections of bishops and other beneficed clergy "ought to take place in the lord king's chapel with the assent of the clergy of the realm... And the clerk elected shall then no longer do homage and fealty to the lord kind...
before he is consecrated" (article 12); gave jurisdiction to the king's court for "pleas of debt due under pledge of faith" (article 15); and prohibited the ordaining of sons of villeins without the consent of the lord on whose land they had been born (article 16).Of these nine provisions (articles 1, 4, 6, 7, 8, 9, 12, 15, 16), all except the one on investiture (article 12) were in violation of the prevailing canon law of the church. 3_
It was the third article of the constitutions that ultimately became the most notorious. It provided, in effect, that any cleric accused of a felony (including homicide, arson, robbery, rape, mayhem, and certain other serious crimes) should be sent by the king's court to the ecclesiastical court for trial and, if convicted there, should be brought back to the king's court to be sentenced. This meant, in practice, to be executed or mutilated by exoculation or by the cutting off of hands or legs. A royal officer should attend the proceedings in the ecclesiastical court "to see how the case is there tried."
Historians of English law have analyzed the titanic conflict between Henry and Becket largely in terms of their respective positions in regard to article 3. In fact, however, other provisions of the constitutions were more significant. Article 8 would have made the king, rather than the pope, the supreme arbiter of canon law in England.
Historians have also placed much emphasis upon the psychological aspects of the conflict. It is usually said that the tragic end could have been avoided if either of the chief protagonists had been less stubborn. Indeed, each vacillated between insistence on extreme demands and poorly timed offers of compromise. One commentator argues that at a certain point Henry was "apparently" prepared to "jettison" the Constitutions of Clarendon and to "concede almost all for which Becket was fighting." 4 If that were so, then the failure to settle the dispute might indeed be blamed solely on Becket's personality.
This suggests, further, that his martyrdom (as one of his slayers argued in T.S. Eliot's play,-257-
Murder in the Cathedral) was really his own fault, a kind of suicide. (A contemporary historian calls Becket "an unreconstructed Gregorian intent upon martyrdom.") 5 Yet, even assuming that Henry was willing to renounce the constitutions as a document, the question remains whether he would have renounced his ambition to control the church in his territories. In fact, Henry did not respond to the death of Becket as though the archbishop had brought it upon himself. Of course, Henry's response may be explained at least in part by the enormous revulsion caused by the assassination. Yet that very revulsion, as well as the subsequent political and historical reverberations of Becket's death, make a purely psychological interpretation of the conflict seem inadequate. The two men represented not just themselves but two great competing forces in Western history, the ecclesiastical and the secular.
There remains the question -- important for one's understanding of the Western legal tradition -- who was right? Almost a century ago, Maitland argued that Henry was right, because the customs he asserted were in fact those practiced by his grandfather, Henry I. Maitland took one of Becket's arguments, "Christ said, not 'I am the custom,' but 'I am the truth,' " as a tacit admission that Henry was acting lawfully. In fact, the same argument was made by Tertullian (about 155-220 A.D.), and was used by Pope Gregory VII in answering Emperor Henry IV a century before; Gratian had repeated it only a generation before, as a basis for overturning unreasonable customs. Becket's argument was in effect a reference to historical precedent within the church and to the authority of ecclesiastical law. However, even assuming that (secular) custom has a higher legal force than (ecclesiastical) truth, Maitland's contention omits the possibility that the customs of Henry I were changed during the so-called anarchy of Stephen.
On this point Maitland only states: "For legal purposes Stephen's reign is to be ignored... because it was a time of war and of 'unlaw.' Sixty years later this doctrine still prevails; a litigant cannot rely on what happened in Stephen's reign, for it was not a time of peace. 6_"It is characteristic of English legal historians to treat a revolution as a mere interregnum: they have done the same with the Puritan Revolution under Cromwell. If, however, the reign of Stephen was the period when the Papal Revolution finally asserted itself in England, should not Henry II's claim to return to the customs of his grandfather be considered as counterrevolutionary? From this point of view, Becket was fighting for a cause that had already been won. In the matter of royal supremacy over the church, Henry was, on the one hand, at least a generation too late, and on the other hand, three and one-half centuries too early. 7_
The particular balance to be struck between the two powers, there being no question of simple supremacy of one over the other, remained always in question; and here the unique circumstances of Becket's martyrdom made a difference.
-258-