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Constitutions of Clarendon, Clause 3, and Henry Ii's Reforms of Law And

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Constitutions of Clarendon, Clause 3, and Henry Ii's Reforms of Law And CONSTITUTIONS OF CLARENDON, CLAUSE 3, AND HENRY II’s REFORMS OF LAW AND ADMINISTRATION John Hudson The conflict between Henry II and Archbishop Thomas Becket over crim- inal clerks inspired comment from many writers at the time and from numerous historians since. Many have been interested in the relative strength of the parties’ arguments, their basis in Canon Law and in earlier practice.1 My purpose is more modest: I assess the relationship between clause 3 of the 1164 Constitutions of Clarendon, often referred to as the provision concerning criminal clerks, and the practices and reform of the administration of justice in the 1160s. I argue that a key purpose of the provision was to bring at least important cases of clerical crime not just to lay courts but specifically to the king’s court, and suggest that the measure placed particular reliance on the king’s chief justiciars. I will take particular care to distinguish the limited amount of strictly contemporary evidence from the larger amount produced after 1170, par- ticularly the Lives of the now martyred archbishop. The latter do not record 1 The starting point here must be Frederic William Maitland, Roman Canon Law in the Church of England (London, 1898), chapter 4 (‘Henry II and the criminous clerks’), who argued for the strength of the king’s position in terms of Canon Law. For a good recent summary of the issues, see Anne Duggan, Thomas Becket (London, 2004), pp. 48–58, who concludes (p. 55) that ‘Becket and the bishops were in line with current thinking about clerical immunity’ and (p. 56) that ‘clause 3 was indeed skilfully designed to avoid the prescriptions of canon law.’ On the latter point, see also below, p. 14. For debate amongst canonists on these issues between the time of Gratian and 1164, see also Charles Duggan, ‘The Becket dispute and criminous clerks’, Bulletin of the Institute of Historical Research 35 (1962), 1–28, at 18–20; Richard M. Fraher, ‘The Becket dispute and two Decretist traditions: the Bolognese masters revisited and some new Anglo-Norman texts’, Journal of Mediaeval History 4 (1978), 347–368. Henry’s use of advisers expert in the learned law in the context of the Becket dispute is clear; see also the comments of Herbert of Bosham on advisers with knowledge of ‘both laws’, that is Roman and Canon; James C. Robertson, ed., Materi- als for the History of Thomas Becket, 7 vols, (Rolls Series 67) (London, 1875–85), 3:266–267. The possibility that such advisers had particular and perhaps exceptional influence on other legal measures of the mid-1160s, most notably novel disseisin, would require another article. The use of the word ‘crime’ with reference to this period raises difficulties, some of which are discussed in my Oxford History of the Laws of England, 871–1216 (Oxford History of the Laws of England 2) (Oxford, 2012), chapter 27, but here I follow common usage with reference to the Becket dispute. I would like to thank Anne Duggan and Rob Bartlett for their comments on the present piece. 2 john hudson the thoughts and events of the early to mid-1160s; rather they indicate the arguments arising largely from the Constitutions and justifying Thomas’s position.2 In addition, they were composed after significant changes in the administration of justice, most notably the Assize of Clarendon of 1166 and subsequent judicial eyres, changes that increased the hagiographers’ distortion of earlier events. Let us begin with the problem of clerical crime before 1164. For accounts of cases we rely upon the Becket Lives. Brief mentions are made of par- ticularly notorious instances: a cleric in the region of Worcester who was alleged to have slept with a girl and killed her father; a priest in the dio- cese of Salisbury who committed homicide; a cleric who stole a chalice in St Mary le Bow, London.3 But by far our most extended accounts concern a clerk named Philip of Broi, and this case will now be examined in detail. According to the earliest account, by Edward Grim writing in 1171–72, one aspect of the escalation of tensions between Henry II and the arch- bishop was the re-opening of a previously settled case concerning Philip.4 Grim gives no date for the original case, but the re-opening occurred between June 1162 and the end of 1163, giving a clear terminus ante quem for the earlier dispute.5 Philip had been appealed concerning the death of an unnamed knight. According to Grim, he cleared himself by eccle- siastical right (ecclesiastico jure purgatur) in a hearing (audientia) of the bishop of Lincoln, where the case was raised; this probably indicates an ecclesiastical court, although the bishop of Lincoln also had significant 2 For the Lives, and also the inter-relationship between some of the texts, see Anto- nia Gransden, Historical Writing in England, c. 550 to c. 1307 (London, 1974), pp. 296–308; Michael Staunton, Thomas Becket and his Biographers (Woodbridge, 2006). For a work clearly distinguishing sources from before and after the martyrdom, and the consequences of this distinction for interpretation, see Stefanie Jansen, Wo ist Thomas Becket? (Husum, 2002). 3 Raoul Charles van Caenegem, ed. and trans., English Lawsuits from William I to Rich- ard I, 2 vols, (Selden Society 106, 107) (London, 1990–91), 2:nos 409, 410, 416; Materials for the History of Thomas Becket, 3:45–46, 264–265. Note also how limited and possibly untrust- worthy is our knowledge on many matters. For example, only in Herbert of Bosham’s Life of Becket, written in the 1180s, do we hear of a decree of the archbishop, in accordance with Canon Law, that clerks should be punished by spiritual, not corporal, punishment, without mutilation or deformation of limbs: English Lawsuits from William I to Richard I, 2:no. 416; Materials for the History of Thomas Becket, 3:265. 4 English Lawsuits from William I to Richard I, 2:no. 411B; Materials for the History of Thomas Becket, 2:374–376. For a useful table of the dates of writing of the Becket Lives, see Staunton, Becket, p. 4. 5 I.e. after the consecration of Becket and before the Constitutions of Clarendon; Eng- lish Lawsuits from William I to Richard I, 2:no. 411, suggests about July 1163..
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