The bishops were, to put it mildly, rocked back on their heels by what they read. Many of the statements of the Constitutions of Clarendon violated their understanding of the proper relations of church and state. It should be noted, however, that not all of the provisions were controversial. Even Thomas found a few innocuous: in 1166 at Vezelay when he formally declared the whole document quashed, he explicitly condemned only half of its provisions. When, in 1165, he presented the document to Pope Alexander III for his condemnation, the pope declared that some of the provisions were bearable. Later he specified six clauses that could be tolerated.
The clauses of the Constitutions of Clarendon can be grouped under a number of rubrics. Two clauses concern communications between the church in England and the church as a whole, specifically, with the pope. Clause 4 forbids archbishops, bishops, and priests from leaving the kingdom without the king’s permission and provides that the king can require them to give sureties that their travels would in no way result in harm to the king or the kingdom. Clause 8 provides that cases in church courts may be appealed from the archdeacon’s court to the bishop’s court and thence to the archbishop’s court but can not go any further—that is, can not be appealed to the pope; instead, such cases should be sent to the king for him to settle. From Henry’s point of view, it was only sensible to maintain oversight over contacts between churchmen in England and the wider church, especially the pope. To members of the clergy, however, these restrictions were a gross interference with the freedom of the church to manage its own affairs and with the ability of the church in England to participate in the governance of the larger institution. It is no wonder that the pope was perhaps even more offended by these two clauses than Thomas was.
A second set of clauses concerned areas of law in which the question was whether a case should be tried in a church court or the king’s court. Under the Anglo-Saxons, both ecclesiastical cases and lay cases had been heard in the same courts. When a lay case was before a court, laymen presided and decided the outcome. When the matter was ecclesiastical, a bishop presided.
By the later eleventh century, such a situation seemed wrongheaded to the reforming papacy and its supporters. It was one of the reasons that Pope Alexander II supported William of Normandy’s attempt to conquer England. In recompense for that support, shortly after 1066 William issued an order separating church courts from lay courts. As a result, by the mid-1160s, despite or perhaps because of nearly a century of attempting to work out where the line should be drawn, questions involving which kinds of cases should be tried by church courts and which by lay courts were often very hard to answer. William I had insisted that all cases involving land be tried in lay courts, even if both parties were clerics; and he and later kings recognized certain issues as belonging to the church courts, not only allegations of sins but such matters as the validity of marriages and the legitimacy of children. Nonetheless, a large gray area remained, and several clauses of the Constitutions of Clarendon attempt to address them.
Clause 11 baldly states the rule established by William the Conqueror: ecclesiastics who hold land directly from the king hold their lands as baronies, and disputes about those lands are to be decided in the king’s court. Moreover, the great men of the church are to take part with the lay barons in judgments of the king’s court unless a judgment involves execution or mutilation as a punishment. This was one of the clauses to which the pope did not object. Equally categorically, clause 15 maintains that all cases involving debt belong in the king’s court. To the laity, debt was a matter of property. Because debts were normally secured by oaths, however, and oaths were promises to God, the church regarded violations of such oaths, like all oaths, as matters of sin, justiciable in church courts. Thomas specifically condemned both these clauses at Vezelay.
In contrast, clause 9 modifies William’s rule in one particular respect. It assumes that, if a case arises about land held by a member of the clergy by the typical clerical tenure, known as free alms because it required no secular services, the case should be tried in the church court rather than a lay court. The clause explicitly contemplates the situation in which the suit is between a layperson and a member of the clergy and the layperson alleges that the land is held not in free alms but by one of the types of tenure characteristic of laypeople (“lay fee”). In those circumstances, the court that is to try the case cannot be determined until the question of the type of tenure is settled. What clause 9 says is that, if such a dispute arises, the sheriff is to empanel a jury, put its members on oath, and ask them whether (utrum in Latin) the land was held in lay fee or free alms. The jury’s verdict would determine which court tried the case. This “assize utrum” is generally recognized as the earliest known of the four “petty assizes” in existence by the end of Henry II’s reign—and the creation of the petty assizes is one of the reasons why Henry II is often accorded the honor of inventing the common law of England. In this instance, of course, if the Constitutions of Clarendon are right in what they claim—that the practices they describe were in fact the practices of Henry I’s reign—the honor for creating the “assize utrum” belongs to Henry I or an even earlier king.
Clause 1 provides that cases involving patronage (“advowson”) over churches should be tried in the king’s court even if both parties to the dispute were clergymen. In the eyes of the king and other laypersons, advowson was a valuable property right like any other income-producing aspect of owning land, and cases about it properly belonged in the same court that tried other cases involving property. To the church, however, advowson was a spiritual matter. It included the right to nominate the priest of the church, subject to the bishop’s approval, and the priest exercised the cure of souls and ministered to the needs of parishioners. Therefore, to churchmen, disputes about advowson should be adjudicated in the same court that tried other spiritual cases. This is one of the clauses Thomas specifically condemned at Vezelay.
Clauses 13 and 14 require the two jurisdictions to help and not to interfere with each other. Clause 13 provides that the king will punish any lay magnate who interferes with a prelate’s ability to administer justice and requires the prelates to assist the king against anyone who tries to prevent the king from administering justice. Clause 14 forbids the practice whereby people whose goods had been forfeited to the king prevented them from being seized by moving them to a church or churchyard. Pope Alexander III found both these clauses tolerable, and Thomas did not specifically mention either one at Vezelay.
A third set of clauses of the Constitutions concerned instances in which the church might be seen as interfering between the king and his vassals. Clause 2 provides that churches on lands held directly from the king could not be permanently granted away without the king’s permission. It was common practice in the twelfth century for a layperson who controlled a church on his or her estate to give the church to a neighboring abbey as a pious act, a practice the church encouraged because it both enriched the church and solved the problem of laypersons interfering in church affairs by exercising control over individual churches. Any such grant permanently diminished the value of the estate, however, since the lord or lady who had given away the church no longer enjoyed lucrative rights over it. Henry did not want his tenants impoverishing themselves in this way, at least not without his permission. Alexander III found this clause acceptable, and Thomas did not specifically mention it at Vezelay.
The other clauses that concern relations between the king and his vassals concern excommunication and interdict. Excommunication was the church’s power to exclude misbehaving individuals from the community—to put them out of communion with good Christians—as a method of pressuring them into conforming to the strictures of the church. No good Christian was to have anything to do with an excommunicated person: he or she was literally to be shunned. Moreover, the excommunicate could not attend Mass or receive any other sacrament or be buried in consecrated ground. Interdict
Was a method the church used to put pressure on a recalcitrant person by depriving everyone living on that person’s lands of most of the consolations of the church: church bells were not be rung; no processions could be held; only minimal church services could be performed; no burials could be performed in consecrated ground. Clause 7 provides that no major tenant of the king should be excommunicated, nor should his or her land be interdicted, without the king’s or the chief justiciar’s permission. Clause 10 allows minor tenants of the king, residents of towns and peasants on his manors, to be put under interdict without permission but requires the permission of the king’s agent in the town or manor before such persons could be excommunicated. It continues that, if the king’s agent fails to act, the king will punish him and the bishop may use all ecclesiastical methods of coercion against the original miscreant. Clause 5 provides that in order to receive absolution and thereby be restored to the fold, an excommunicate should only have to provide surety that he or she would abide by the judgment of the church, not take an oath or provide surety covering all his or her actions for the rest of time. Thomas specifically condemned the first two of these clauses at Vezelay but did not mention the last.
In addition, the Constitutions included a few miscellaneous but not unimportant items. Thus, clause 16 requires that any serf who wishes to become a member of the clergy get his lord’s permission to do so. This was necessary because all members of the clergy were, by definition, free men, and entering the church was, therefore, a way for ambitious and able, or simply rebellious, young serfs to escape their inherited condition. Neither the pope nor Thomas objected to this requirement. Clause 6 concerns accusations against laymen in the courts of archdeacons: to ensure that false accusations are not brought there, the clause requires that the accusations be supported either by the testimony of reliable witnesses or, if witnesses are too scared of the potential accused to bear witness, by oath of 12 reliable men empaneled as a jury by the sheriff. This clause is, incidentally, one of the earliest pieces of evidence from England of an institution like the grand jury that Henry was to introduce into English criminal procedure two years later. Thomas specifically condemned it at Vezelay, but Alexander III declared it unobjectionable.
To Thomas, the two most offensive clauses undoubtedly were clauses 3 and 12. Clause 12 addressed the basic issue that had roiled relations between church and state over the preceding century—namely, how important churchmen were to be selected for their offices. It provided that when a prelate—archbishop, bishop, abbot, or prior—died and his office thereby became vacant, the king was to take the estates into his own hands and thereby acquire all the revenues of the position. He was then to assemble the “greater persons” of the church and hold an election for the new prelate in his own chapel, in his presence and the presence of all the “greater persons” of the church. Not only that, but the newly elected prelate was to do homage and fealty to the king for the estates of the church before he was consecrated as bishop or abbot or prior. This set of provisions benefited the king in two ways. First, while the church was vacant he collected its revenues, and the bishoprics and abbeys of England were richly endowed with estates. Their revenues could greatly swell the king’s coffers. Second, these rules, while paying lip service to the idea that prelates should be elected by the clergy, gave the king a great deal of control over who became a bishop, abbot, or prior in England. He would be present on his own ground for the election and could, at least when the king at issue was Henry II, expect to be able to overawe the assembled clergy into choosing the person he wanted. Not only that, but the new prelate was expected to swear his fidelity and subordinate himself to the king by homage before he was consecrated: by implication, if the king refused to accept the fealty and homage, the elect could not be consecrated. This last provision had been the subject of a fierce dispute between Henry’s grandfather and Saint Anselm, archbishop of Canterbury, which was settled in 1107 when Henry I agreed that he would require only fealty (an oath of loyalty), not homage, which could be seen as demeaning because it was a recognition of subordination, and also that he would not require that fealty be sworn before the elect was consecrated into his position. Henry II was now choosing to regard his grandfather’s concessions as merely personal and not binding on his successors.
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