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Of Kings and Popes and Law Of Kings and Popes and Law: An Examination of the Church and State Relationship in England During the High Middle Ages and the Influence of that Relationship on the Structure and Processes of English Law by Jan Katherine Clark B.A., University of Calgary, 1976 M.Sc., University of Calgary, 1986 LL.B., University of Calgary, 1989 A Thesis Submitted in Partial Fulfillment of the Requirements for the Degree of MASTER OF LAWS in the Faculty of Law © Jan Katherine Clark, 2012 University of Victoria All rights reserved. This thesis may not be reproduced in whole or in part, by photocopy or other means, without the permission of the author. ii Supervisory Committee Of Kings and Popes and Law: An Examination of the Church and State Relationship in England During the High Middle Ages and the Influence of that Relationship on the Structure and Processes of English Law by Jan Katherine Clark B.A., University of Calgary, 1976 M.Sc., University of Calgary, 1986 LL.B., University of Calgary, 1989 Supervisory Committee Professor Emeritus John McLaren, Co-Supervisor (Faculty of Law) Professor Hamar Foster, Q.C., Co-Supervisor (Faculty of Law) iii Abstract Supervisory Committee Professor Emeritus John McLaren, Co-Supervisor (Faculty of Law) Professor Hamar Foster, Q.C., Co-Supervisor (Faculty of Law) During the latter half of the 11th century through to the end of the 13th century, Europe was experiencing what is considered by some historians as “the” medieval renaissance, otherwise referred to as the European Renaissance of the Twelfth Century. The time appears to have been ripe for an explosion of cultural and intellectual advancement and change. Two fields that experienced significant development during that period were law and governance, both secular and ecclesiastical. In England, the period which most legal historians consider to be the key formative years of the common law was the reign of King Henry II. Indeed, Sir William Holdsworth credits Henry II for “substituting one common law for that confused mass of local customs of which the law of England had formerly consisted”. But as R.H. Helmholz said, “legal history, like any other, is a history of winners, and the history of the losing side is often overlooked. That we only hint of the history of the canon law by reference to the common law is a fact of life and not to be lamented”. However, he admonishes us not to ignore the intrinsic importance of the jurisdiction once exercised by the courts of the Church in the development of the law of England. I take up Helmholz’ challenge in this thesis and examine the relationship that developed between the English royal authorities and the Latin (Western) Christian Church from the beginning of the reign of Edward the Confessor to the end of the reign of King John. Through a review of cases reported by the Selden Society from the royal courts of Henry II, Richard I and John, I then focus my research on the 62 year period between the beginning of the reign of Henry II and the death of John, and consider the influence of the Church and State relationship on the structure and processes of the developing English royal law and its scope. iv Table of Contents Supervisory Committee ii ii Abstract iii iii Table of Contents iv iv Acknowledgements v vi Dedication vi vii Introduction 1 1 Chapter 1: Christianity and Kingship 13 13 The King and the Church in Anglo Saxon England 13 William is a Divine King 20 Henry is not a Divine King 24 King Henry is Dead, Long Live Queen Matilda! 31 Chapter 2: Conflict and Cooperation 35 35 A Time of Change 35 Church Reform and the Papacy 36 1. The Drivers of Change 36 2. The Case for Change 38 3. The Challenges 39 4. Implementation of the Process 40 The Reign of Henry II: The Early Years (1154-1164) 44 1. The Drivers of Change 44 2. The Challenges 46 3. Implementation of the Process 48 Cases Touching the Church in the Reign of King Henry II 57 1. The Early Years of Henry’s Reign (1154-1164) 57 2. Henry and Thomas 68 3. The Constitutions of Clarendon 80 v Chapter 3: The Maturing of the Law 84 84 The Later Years of Henry’s Reign (1165-1189) 84 Cases Touching the Church in the Reign of King Henry II 88 1. The Later Years of Henry’s Reign (1165-1189) 88 Innocent III and the Papal Reforms 95 The Reigns of Richard I and King John 100 Cases Touching the Church in the Reign of Richard I (1189-1199) 105 Cases Touching the Church in the Reign of John (1199-1216) 106 1. Court Christian and Other ‘Church’ Courts 106 2. Writ of Prohibition and Other Acts of Aggression! 109 Chapter 4: Conclusions and Thoughts 116 116 Bibliography 137 137 vi Acknowledgements My completion of this thesis is in a very large part due to the guidance, council and encouragement of Professor John McLaren. John’s love of legal history and his knowledge of that field of law are both immense. For the past three years he has taught me, questioned me, listened to me, humoured me, gently steered me and even made me the odd cup of tea. For all of that and a great deal more, my heart-felt thanks, John. Professor Hamar Foster was parachuted into this project part way through and did a yeoman’s job of getting up to speed and running with it. Thank you for your insights, your humour and your enthusiasm during our review sessions, and for sharing your knowledge and thoughts on this area of the law. It is evident you truly love the history of the law and your passion for legal history helped get me to the finish line. Dr. Tim Haskett introduced me to the development of the law in Europe during the early Middle Ages. Thank you for introducing me to Gratian, Aquinas, Brother William, Wormald, Berman and a host of other legal historians. You are an inspiring teacher. I also want to thank Lorinda Fraser, Graduate Assistant for the Faculty of Law for all her help, guidance and assistance throughout the past three years. But most of all, thank you for the wonderful way you deal with all of the graduate students; you have the patience of Job and are always so kind to each of us. I have to mention the confidence both Dr. Arthur Limbird and Professor Alastair Lucas must have had in me, to agree to provide letters of academic reference 25 years after I was either of their students. You both obviously know my capabilities better than I do, to show such support for me. Thank you so much. Finally, thank you to my husband, Carey Johannesson. I lost track of the number of times you read every Chapter, listened as I worked out every idea or theory and prodded me along whenever I hit the wall. I promise never to put you through this again. vii Dedication To my dear friends Patti and Richard Riegert, Carpe diem, my friends, carpe diem. And to my husband, Carey Johannesson, for all of your help, love, patience and humour. INTRODUCTION: The year was 1157. The setting was King Henry II’s royal court. The players were the King and his elite inner-circle of barons and bishops. The bishop of Chichester rose, and, at a nod from the king’s chancellor, Thomas Becket, began his case: “Jesus Christ, my lord King!”; he repeated, “Jesus Christ, our Lord!”; and then a third time, “Hear all and understand! Jesus Christ our Lord has established two abodes and two powers for the governance of the world: one is the spiritual, the other the material.” The bishop then proceeded to lecture Henry II on the “devolved” authority Jesus had placed on each pope from the Apostle Peter forward, to superintend the governance of the Church of God. It was, he concluded, impossible for any layman, indeed even for a king, to depose a bishop without the judgment and permission of the pope. “Very true”, said the King, “a bishop may not be deposed”. Then he made a gesture of pushing with his hands. “But, see, with a good push he could be ejected.” Everyone at court broke out laughing - except the bishop of Chichester.1 The bishop’s speech was actually his opening argument in a dispute with the abbot of Battle Abbey over the Abbey, its lands and its privileges. What is interesting about the scenario is that it was a matter involving two Church officials and Church lands being decided in the secular court of King Henry II - or was it just a secular court? And why the affected lecture on the “two abodes and two powers for the governance of the world” when the issue at hand was a simple land dispute? Five years on, in1162, a member of the clergy had seduced a girl and killed her father. It was a breach of the king’s peace that had occurred within the kingdom of England and therefore, according to Henry II, should be adjudicated in the king’s royal courts by his justices. In May of that year, Henry had appointed his good friend Thomas Becket as the archbishop of Canterbury; nevertheless, on behalf of the Church, Thomas challenged the King’s claim of jurisdiction. A scribe in the king’s court noted that it was the first “estrangement” between Henry and his archbishop. The king demanded that the cleric be examined by his judges in a lay court and judgment passed on him there.
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