356

CONSTITUTION OF THE CHURCH COURTS.

it at pleasure; and thus had a certain check upon the royal officers. Henry wished these charges to be exchanged for a certain tax, and paid into the treasury. Becket was now able to take his stand on the old usages of the realm. With characteristic intrepidity, he stood forward and denounced the proposal in council. Henry swore "by God's eyes" that it should become law. Becket answered with the same oath that not a penny should be paid from his lands. He carried his point, and is the first Englishman on record who defeated an unjust tax.

There was now open war between the old friends, and Henry determined to define the relations of church and state. When William I. and Lanfranc concurred in a policy which dissolved the old union of the two bodies politic, they had unavoidably placed them in a condition of suppressed antagonism. If the priest was no longer to judge the layman, it could not be expected that he should be judged by him. If lay tribunals had usurped the moral cognizance of crime, the usurpation must at least be limited to their own body: they must not lay impure hands on those who daily offered up the body of Christ. To draw a simile from natural history, the separation had been like that of some zoophytes: each dismembered part had given itself a new and complete organization. But the simile fails in one important particular: church and state were not homogeneous; for the church was framed on a different conception of life and directed by different laws. Death and mutilation, the ordinary punishments which deterred men from crime in the twelfth century, could not be inflicted by clerical tribunals, as the canons forbade a priest to shed blood. Again, an appeal lay from the ecclesiastical courts to the pope in Italy; a criminal might thus delay punishment indefinitely, perhaps evade it. The strongest penalty known

1 Vitæ Beck., vol. i., pp. 113, 114.

Archbishop Richard mentions a case in which one William and his wife had killed a priest, and declared themselves quite ready to go to Rome for trial: "intendit (G. Freschet) prospere procedere et de lenocinio uxoris in viâ, præter absolutionis beneficium, fructus uberioris manipulos reportare."-Trivet, p. 84.

CHARGES AGAINST THE CLERGY.

357

in the canons was degradation; the unfrocked priest would of course be amenable to lay tribunals in future, but he could not be tried again for his first offence. These privileges filled England with disorder. Osbert, archdeacon of York, was charged with poisoning his archbishop in the sacramental chalice; he escaped on a technical point in an appeal to Rome. At this very time, several of the clergy were on their trial for murder, sacrilege, or other heinous crimes. Becket was abundantly willing to inflict severe punishment on the offenders: he even went beyond all bounds where the king's majesty had been insulted; and punished a priest, who had spoken angrily to a royal justice, with two years' sequestration and exile. But Henry refused to be satisfied; and his counsellors, with great reason, shared his anxiety to change the law. It is probable that the crimes of the clergy have been exaggerated; examination constantly showed that their wealth was not so great nor their lives so corrupt as men thought. But it is certain that nothing could be worse for the country than to have two jurisdictions, and a belief current among the people, that those who ought to guide them were privileged to sin without restraint.

The contest began in council at Westminster, (October, 1163 A.D.) Henry claimed that men in orders taken red-hand in a felony should be first degraded, and then handed over for punishment to lay tribunals. The proposal saved the honour of the church, except so far as it impugned the maxim that degradation from the priesthood was worse than death. The bishops were willing to consent; Becket refused. Henry then asked if they would take the old customs of the realm as the basis of a concordat. Becket at first stipulated for the insertion of a clause, "saving the rights of our order," but, after the council had broken up, was prevailed on to go to the king at Oxford and promise unreserved acquiescence. A second more formal council was accordingly held at Clarendon (January,1164 A.D.), in which the respective rights of church and state were to be stated and codified. The articles drawn up by the crown lawyers were eighteen in number. The principal points were that prelates and abbots should do homage to the king as their

358

ARTICLES OF CLARENDON.

liege lord, for life, limb, and earthly honours, saving the rights of their order; that they should not leave the country without the king's consent, and should give pledge, if required, to contrive no hurt to the realm; and that, like other tenants-inchief, they should assist the king in council and in giving judgement, except in cases where life and limb were involved. This last article would have restored the partial union of synod and witenagemot, as in some sort it anticipated the constitution of our modern House of Lords. On the assumption that the king's council would henceforth have this double organization, it was provided that all cases in which advowsons were contested between clergy, should come for decision before the royal council. In questions of property, the secular courts were to decide by what tenure the land in dispute was held, and to refer it accordingly to the lay or ecclesiastical courts, unless both parties agreed on the same judge. In criminal cases, the king's justiciary was to have notice of the pleadings, to watch the case, and finally to sentence the accused, if he were found guilty; in other words, the church was to decide the question of fact, the state that of law. Laymen tried in the bishop's court were to have the benefit of English rules as to evidence; but if witnesses could not be found to appear against a powerful man, the sheriff was to impanel and swear twelve trustworthy men of the district, as witnesses to character. Tenants-in-chief were not to be excommunicated, or their lands put under interdict, till the king had been informed, and his intervention requested. Similarly, the nearest crown officer was to be applied to in the case of tenants on the crown estates; if he failed to do right, he would forfeit the protection of the crown, and might himself be sentenced by the church. The king should see right done to the lords spiritual, and the lords spiritual should aid the king with the whole powers of the church. The church should have no claim on escheats to the crown. The church jurisdiction on questions of good faith should not extend to debts, which covered so wide a portion of secular business, but only to questions of marriage and dowry, in which the church had been witness, so to speak. Lastly, the sons of serfs were not to

be admitted to orders without the consent of the lord on whose land they were born.

This last enactment, something like a fugitive slave bill, shutting out the poor from their one refuge upon earth, did not touch the conscience of any prelate in the council. But most of them, and especially Becket, were indignant at the general tenour of the articles, moderate and reasonable as these must now seem to any man who does not exalt the mitre above the crown. It was said that Christ's church was being trampled under foot. It was said, and truthfully, that these were no customs of England; in fact, new laws had become necessary with new circumstances. "Even were they customs," says one biographer of Becket, "Christ has nowhere said, I am a custom, but, I am the truth." It is a pity that Henry did not perceive this. By resting his claim too much on prescription and usage, he left the vantage-ground of theory to his opponents. All the kings of Britain, from Woden and Brutus downwards, could not legitimate a lie. In the ever-recurring battle between parchments and ideas, it takes something more than royal power and armies to give victory to diplomatic unrealities. Henry fought his battle as if he were resolved to discredit the constitutional cause. It is probable that Becket was taken by surprize, and that neither he nor his colleagues had understood the extent of the concessions required. During three days they deliberated together; once armed men broke into their council, and threatened them with violence. A party among the bishops, among them Henry of Winchester and Gilbert Foliot of London, stood firm. Others implored Becket to yield. He himself was terrified by the storm he had conjured up, wavered, and gave way. "My lord is determined that I shall perjure myself; I must do it, and repent as I can hereafter." Nevertheless, Becket declined to give more than a verbal promise; which redeemed the pledge he had given before the council, and cleared his account with the past. To have set his seal, would have been to add the most

1 Fitz-Stephen, Vitæ Beck., vol. i., p. 217.

360

BECKET'S S PENITENCE AND RECANTATION.

binding formality of the times, and to make a fresh concession.! A copy of the charter was given him, and he rode away with his train. "What virtue has he retained, who has betrayed conscience and good name?" said Llewellyn, who bore his cross to him. Becket was bowed to the ground with the consciousness of his sin. But he had the manliness to feel that his life was not ruined by a single day of weakness. It was his duty to rescue the church from the ruin he had brought upon it. A man of more sensitive honour would have felt that he could not violate his own promise, however given; would have resigned the primacy, and left the event to God. Becket, perhaps, knew that he was the only man who could cope with Henry. He did penance, suspended himself from offering up mass, and wrote to the pope, who had already promised him the support of the holy see, for counsel and absolution. He received both.

The feud between king and primate was now deadly. Becket tried to quit the country, in violation of the constitutions, without the king's leave; he was twice driven back by contrary winds. Henry summoned a fresh council at Northampton, intending to crush his enemy. The first case brought against the primate involved the double charge of denying justice to a suitor in his court, and refusing to appear to the king's writ, when summoned to Westminster. It seems to have been a strong case of contempt of court, but it was interpreted to be treason, and Becket was declared to be "at the king's mercy," that is to say, his personal property was forfeit

I believe this to be the fair view of Becket's conduct. He had promised at Oxford, after the council of Westminster, to sign the customs, of which the draught had not yet been made. There was nothing unusual in this; long afterwards it was the custom to leave to the crown lawyers the work of expressing the sense of Parliament in statutes. On this occasion, Becket was startled to find that his concessions had been larger than he thought; he was divided between his promise to the king and his oath to the church. It is probable Henry's lawyers had some warrant for all they did, but the word "old customs" was terribly vague; it might mean Saxon laws, or Norman state-maxims, or legitimate inferences from either of these.

2 Becket, Epist. 200, dated October 24, 1163 A.D.