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have resigned the chancellorship. He comes to England, and is met by the primate at Southampton. Henry now knows that the predictions of his mother were not altogether vain. He calls up that lightning of his eyes which Peter de Blois describes, and requires the archbishop to give up his archdeaconry, which he had continued, illegally, to retain. Becket is obliged to yield. The old friendship is gone.

The next year the archbishop, with most of the other dignitaries of the church, proceeded to a great council at Tours, to meet Pope Alexander and his cardinals. It was here determined that a severe canon should be made against all who usurped the goods of the Church. Upon his return to England the archbishop demanded from several barons, and even from the crown, the restoration of manors and castles which had belonged to the see of Canterbury. The claim of resumption went back to the time of William I., Becket maintaining that no length of possession could establish the property of the church as a lay fee. Henry was not deterred, by this spirit in him who had been the creature of his bounty, and upon whom he had reckoned as the most effective minister of his will, from proceeding in a course which he knew was essential to the well-being of his people.

The separation of the secular and the ecclesiastical jurisdictions, which had been effected in the reign of William I., had made an important revolution in the administration of justice. That great innovation was announced by William as having been made in the common council with the advice of the archbishops, bishops, and abbots, and of all the chief men of the kingdom.* From the period of this separation, the administration of civil justice had been gradually becoming more essentially connected with the kingly office; whilst under the Saxons no man was to apply to the king in any suit, unless he at home might not be law-worthy, or could not obtain law. By "at home" was meant the local courts, whether of the manor or the county. The Curia Regis, the Court of King's Bench,-is held to have been "confirmed and fully established by Henry II., if not originally instituted by that prince." ↑ There were itinerant justices of assize, with occasional commissions, in the reign of Henry I.; but in the 22nd year of Henry II. they regularly went their circuits. When this active and sagacious king had been on the throne ten years, he had, in a great degree, brought all his lay subjects under the equal rule of the laws. The country was rapidly recovering from the miseries of the time of Stephen, and the people were increasing in numbers as their profitable industry also increased. The old Saxon principle of "bot," or pecuniary compensation for crime, had, for the most part, been superseded by criminal laws, administered with stern severity. At this period, Trial by Jury, although the duties of a juror were, in many respects, different from those of modern times, was coming into general use; and in 1176 a precise enactment established the jury as the usual mode of trial: "The justices, who represented the king's person, were to make inquiry by the oaths of twelve knights, or other lawful men, of each hundred, together with the four men from each township, of all murders, robberies, and thefts, and of all who had harboured such offenders, since the king's accession to the throne."‡ But these twelve knights, or other lawful men, were not before the king's

* Allen, in "Edinburgh Review," vol. xxxv. p. 15.

Sir F. Palgrave, "English Commonwealth."

† Ibid., p.

8.

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[1163.

justices to decide upon the credibility of evidence, or to hear questions of law and fact discussed and argued. They were often called "recognitors." They were essentially witnesses. Mr. Hallam, speaking of the learned investigations of Sir F. Palgrave on this question, says, "This theory is sustained by a great display of erudition, which fully establishes that the jurors had such a knowledge, however acquired, of the facts, as enabled them to render a verdict without hearing any other testimony in open court than

We

that of the parties themselves, fortified, if it might be, by written documents adduced."* Mr. Hallam points out that several instances of recognition-that is, of jurors finding facts of their own knowledgeoccur in the "Chronicle of Jocelin of Brakelond." give one instance, in 1191, upon a question whether certain lands were the frank fee of the church or not: "And when there was summoned an inquest of twelve knights to make inquest in the king's court, the inquest was taken in the court of the abbot of Harlow, by the licence of Ranulf de Glanville; and the recognitors swore that they never knew that land at any time to be separated from the church." It is unnecessary to pursue this subject to show, at this point of our history, how the administration of justice, criminal and civil, was undergoing many important changes connected with the changes of society, and was approaching, by gradual steps, to that state in which the "inquest by the country" became the great safeguard of life and property. Mr. Hallam has truly said, "In its rudest and most imperfect form, the trial by a sworn inquest was far superior to the impious superstition of ordeals, the hardly less preposterous and unequal duel, the unjust deference to power in compurgation, when the oath of one thane counterbalanced those of six ceorls, and even to the free-spirited but tumultuous and unenlightened decisions of the hundred or the county." That the recognitors were generally very ignorant, and too frequently corrupt, was unavoidable, in an age when knowledge was chiefly confined to "Middle Ages," vol. ii. p. 393; ed. 1855.

Tower, Bury.

The original of this Latin Chronicle of the Monk of Bury was published by the Camder Society, and is translated by T. E. Tomlins, Esq. "Middle Ages," vol. ii. p. 405.

+

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the clergy, and oaths, as we have often seen, were held of light account. Jocelin de Brakelond gives a curious instance. Five knights came to the abbot of Bury, having been summoned upon an inquest respecting an advowson, and "tempting the abbot," asked what it was they ought to swear. But the abbot would neither give, nor promise them anything, but said,-" When the oath shall be administered, declare the right according to your consciences." The honest abbot of course lost his suit.

We have thus indicated, without attempting to enter upon any elaborate examination of controverted points, the general state of the English secular law in the time of Henry II. We have done so to show that, however imperfect were the securities against the escape of the guilty or the oppression of the innocent, justice was systematically administered under the royal authority; and that the barbarous violence of the early days of feudal tenures was passing rapidly away. The position of the Church presented an insuperable obstacle to the equal administration of the laws. The clergy claimed an exemption from all secular judicature. Whilst the murderer and the robber were punished with death if tried in the courts of the crown, the vilest offender, if a clerk, escaped the extreme penalty of his offence, and was often freed from all consequences except that of pecuniary compensation. The number of persons in holy orders was enormous. The vast extension of religious houses, and the general increase of the revenues of the ecclesiastics, had opened the doors of the Church even to the Saxon serf; and to many the profession of a clerk, if it brought no endowment or regular provision, offered a security against want in the alms of the pious, and a protection against the oppressions of the lay-barons. Called upon for knight-service, the bishops and abbots had men in their retinues who were half-priest and half-soldier; and whose habits of life had little of the purity and peacefulness that belonged to the more educated and better principled of the order. It has been stated that in the first years of Henry II. there were reckoned nearly one hundred homicides that had been perpetrated by priests then living. After the appointment of Becket to the primacy, a priest of Worcestershire committed the infamous crime of murdering a father, that he might be undisturbed in a guilty intercourse with his daughter. Even such a crime would not, under any circumstances of atrocity, have been punished with death in the church-tribunals. This offender was required to be delivered up for trial in the king's courts. Becket interposed the shield of the Church between the criminal and the outraged laws; and passed upon him a sentence of degradation only, contending that the degraded priest could not be a second time brought to trial for the same offence. Henry called an assembly of prelates at Westminster, and earnestly asserted the public necessity of putting an end to such hideous compromises as the archbishop had maintained. He asked them, "whether they were willing to submit to the ancient laws and customs of the kingdom ?" The reply, framed by Becket, was that they would observe them "saving the privileges of their order." The king was indignant; and immediately deprived the archbishop of the temporal appointments which he held at the pleasure of the crown. Some of the friends of Becket counselled his submission; but he said that if an angel should come from heaven, and advise him to abandon the saving clause, he would anathematise him. Yet the passionate man, at the instance, it is

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[1164.

stated, of the pope's almoner, ultimately went to the king and gave his unconditional assent to the demand. But Henry required a more formal assertion of the principle which he maintained, of the equality of the clergy and the laity before the law, than he could obtain from the personal submission of the dangerous archbishop. He called a great council at Clarendon, near Salisbury; and thither came the eminent men of the realm, whether lay or ecclesiastic, who ordinarily sat with the king in this incipient parliament. A series of resolutions were proposed which have since been known as "The Constitutions of Clarendon." These, when passed, were essentially

a statute, and had the force of law. They were earnestly debated for three days; and were ultimately carried, even with the consent of Becket. That some force was used to compel his submission is unquestionable. We are scarcely, in our times, in a temper to judge of the exact nature of the particular clauses to which the archbishop, feeling himself in the position of the assertor of the rights of the Church, might honestly object. Taken altcgether, they were a formidable attack upon the power of the clergy at home, as well as upon the interference of the papal see with the affairs of the English Church. The preamble to the "Constitutions" declares that they were a record and recognition of the ancient laws and customs which ought to be observed in the kingdom. By this statute, the great point of contest,-that of clerical exemption from the secular arm,-was thus decided: "Ecclesiastics arraigned and accused of any matter, being summoned by the king's justiciary, shall come into his court, to answer there, concerning that which it shall appear to the king's court is cognisable there; and shall answer in the ecclesiastical court, concerning that which it shall appear is cognisable there; so that the king's justiciary shall send to the court of holy Church, to see in what manner the cause shall be tried there: and if an ecclesiastic shall be convicted, or confess his crime, the Church ought not any longer to give him protection."* Pleas of debt, also, whether they were due by faith solemnly pledged, or without faith so pledged, were to belong to the king's judicature. Rights of advowson, and questions of the tenure of property between ecclesiastic and layman, were to be heard before the king's justice and twelve lawful men. These were the most important conditions that related to the great questions in which the body of the people were interested. It would be difficult to understand the opposition of a strong and cultivated mind like that of Becket to such reasonable propositions, if we did not consider how zealously men, in times of more established principles, will battle for points in which the interests of their order, as well as their personal pride, are involved. Equally reasonable appears the clause that no dignified ecclesiastic should leave the realm without licence of the king, who might demand security that he would not procure any evil to the crown or kingdom. Nor are those unreasonable which regulate the excommunication of the king's chief tenants or officers. The clauses which enabled the king to send for the principal clergy of a Church, upon the vacancy of a bishopric or abbacy, and, with the advice of such prelates as he should choose, should give his assent or otherwise to the election, and receive homage, was a distinct assertion of the

It is singular that Lord Campbell should mis-state this well-known clause, which, as Mr. Hallam truly says, "is gently expressed,"-by vaguely saying of the Constitutions, "they provide that clerks accused of any crime should be tried in the king's courts."

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principle for which Henry I. had contended against Anselm; and we may believe that the prelates who regarded the pope as their spiritual head would be indignant at such a claim. Yet, in spite of Henry's subsequent abandonment of some of the enactments of the Council of Clarendon, we have distinct evidence that his consent to the election of the great ecclesiastics was no idle assertion of authority. We turn to the "Chronicle of Jocelin of Brakelond," and read how the prior of Saint Edmundsbury, with twelve of his brethren, stood before Henry II. at Waltham, in 1182, who commanded that they should nominate three members of the convent, as candidates for the election; and afterwards that they should nominate three members of other convents; as well as three more of their own. Then the lists were gradually reduced to two of Saint Edmund's, the prior and Sampson. After much hesitation, the bishop of Winchester saw that the good fathers preferred the active and clever subsacrist, to the somewhat indolent prior. "Sampson was then named to the king, and, after a brief consult with those about him, we all of us were called in; then the king said, ' Ye present to me Sampson-I know him not; had ye presented to me your prior, I should have accepted him, because I have known and am well acquainted with him: but now I will do as you desire. Take heed to yourselves: by the very eye of God, if ye act unworthily, I shall call you to severe account.' And he inquired of the prior, whether he assented to this choice, and agreed thereto; who replied, that he was well content it should be so, and that Sampson was much more worthy of the dignity. Sampson being thus chosen, and falling down at the king's feet, and kissing him, hastily arose, and forthwith went towards the altar, singing, 'Miserere mei Dominus,' together with his brethren, erect in gait, and with unmoved countenance. The king observing this, said to the bystanders, 'By the eyes of God, this one that is chosen seems to himself worthy of keeping the abbacy.'"*

The great questions at issue in the memorable controversy connected with the Constitutions of Clarendon must be steadily kept in view, however absorbing may be our interest in the personal conflict between Henry and Becket. On one side was an energetic, determined, and sagacious king, bent upon establishing the regal authority without respect of persons, and enforcing this authority by an assertion of absolute power, founded, in reality, upon physical force. On the other side was a primate, endued with surpassing ability, of a temper as unbending as that of the king, and resolved to establish the domination of the Church over the secular power. The contest was not so unequal as it at first appears. Becket ran the risk of being struck down by some outbreak of rage on the part of the king, or by some tumultuous assault of the men at arms, who were leagued against him. The vacillation which first induced him to accept the Constitutions of Clarendon, and then to withhold his seal from them, was a natural result of the alternations of confidence and alarm. So was his subsequent oath to observe them, and then his selfimposed penance for having taken that oath. The Constitutions were sent to the pope for confirmation, and Alexander refused his consent to ratify them. Then began a course of determined hostility on the part of the archbishop that appeared to shut out all hope of a compromise. He twice

"Jocelin de Brakelond," translated by Tomlins, p. 7.