The business of the larger courts, too, was for the most part carried on in French under sheriff, or bailiff, or lord of the manor. The Norman nobles did not know Latin, they were but gradually learning English; the bulk of the lesser clergy perhaps spoke Latin, but did not know Norman; the poorer people spoke only English; the clerks who from this time began to note down the proceedings of the king's judges in Latin must often have been puzzled by dialects of English strange to him. When each side in a trial claimed its own customary law, and neither side understood the speech of the other, the president of the court had every temptation to be despotic and corrupt, and the interpreter between him and his suitors became an important person who had much influence in deciding what mode of procedure was to be followed. The sheriff, often holding a hereditary post and fearing therefore no check to his despotism, added to the burden of the unhappy freeholders by a custom of summoning at his own fancy special courts, and laying heavy fines on those who did not attend them. Even when the law was fairly administered there was a growing number of cases in which the rigid forms of the court actually inflicted injustice, as questions constantly arose which lay far outside the limits of the old customary law of the Germanic tribes, or of the scanty knowledge of Roman law which had penetrated into other codes. The men of that day looked too often with utter hopelessness to the administration of justice; there was no peril so great in all the dangers that surrounded their lives as the peril of the law; there was no oppression so cruel as the oppression wrought by the harsh and rigid forms of the courts. From such calamities the miserable and despairing victims could look for no help save from the miraculous aid of the saints; and society at that time, as indeed it has been known to do in later days, was for ever appealing from the iniquity of law to God,—to a God who protected murderers if they murdered Jews, and defended robbers if they plundered usurers, who was, indeed, above all law, and was supposed to distribute a violent and arbitrary justice, answering to the vulgar notion of an equity unknown on earth.

We catch a glimpse of a trial of the time in the story of a certain Ailward, whose neighbour had refused to pay a debt which he owed him. Ailward took the law into his own hands, and broke into the house of his debtor, who had gone to the tavern and had left his door fastened with the lock hanging down outside, and his children playing within. Ailward carried off as security for his debt the lock, a gimlet, and some tools, and a whetstone which hung from the roof. As he sauntered home, however, his furious neighbour overtook him, having heard from the children what had been done. He snatched the whetstone from Ailward's hand and dealt him a blow on the head with it, stabbed him in the arm with a knife, and then triumphantly carried him to the house which, he had robbed, and there bound him as "an open thief" with the stolen goods upon him. A crowd gathered round, and an evil fellow, one Fulk, the apparitor, an underling of the sheriff employed to summon criminals to the court, remarked that as a thief could not legally be mutilated unless he had taken to the value of a shilling, it would be well to add a few articles to the list of stolen goods. Perhaps Ailward had won ill-fame as a creditor, or even, it may be, a money-lender in the village, for his neighbours clearly bore him little goodwill. The crowd readily consented. A few odds and ends were gathered—a bundle of skins, gowns, linen, and an iron tool,—and were laid by Ailward's side; and the next day, with the bundle hung about his neck, he was taken before the sheriff and the knights, who were then holding a Shire Court. The matter was thought doubtful; judgment was delayed, and Ailward was made fast in Bedford jail for a month, till the next county court. There the luckless man sent for a priest of the neighbourhood, and confessing his sins from his youth up, he was bidden to hope in the prayers of the blessed Virgin and of all the saints against the awful terrors of the law, and received a rod to scourge himself five times daily; while through the gloom shone the glimmer of hope that having been baptized on the vigil of Pentecost, water could not drown him nor fire burn him if he were sent to the ordeal. At last the month went by and he was again carried to the Shire Court, now at Leighton Buzzard. In vain he demanded single combat with Fulk, or the ordeal by fire; Fulk, who had been bribed with an ox, insisted on the ordeal of water, so that he should by no means escape. Another month passed in the jail of Bedford before he was given up to be examined by the ordeal. Whether he underwent it or whether he pleaded guilty when the judges met is uncertain, but however this might be, "he received the melancholy sentence of condemnation; and being taken to the place of punishment, his eyes were pulled out and he was mutilated, and his members were buried in the earth in the presence of a multitude of persons."

Nor was there for the mass of the people any real help or security to be found in an appeal to the supreme tribunal of the realm where the king sat in council with his ministers. This still remained a tribunal of exceptional resort to which appeals were rare. There was one Richard Anesty, who, in these first years of Henry's reign, desired to prove in the King's Court his right to hold a certain property. For five years Richard, his brother, and a multitude of helpers, were incessantly busied in this arduous task. The court followed the king, and the king might be anywhere from York to the Garonne. The unhappy suitor might well have joined in a complaint once made by a secretary of Henry in search of his master: "Solomon saith there be three things difficult to be found out, and a fourth which may hardly be discovered: the way of an eagle in the air; the way of a ship in the sea; the way of a serpent on the ground; and the way of a man in his youth. I can add a fifth: the way of a king in England." The whole business now done by post had then to be carried on by laborious journeyings, in which we hear again and again that horses died on the road; if a writ were needed from king or queen, if the royal seal were required, or a certificate from a bishop, or a letter from an archbishop, special messengers posted across country; then the writ must be carried in the same way to York, Lincoln, or elsewhere to be examined by some famous lawyer, sometimes an Italian learned in the last legal fashions of the day; perhaps it was pronounced faulty, or it might be that the seal of justiciar or archbishop was refused on its return from the lawyer, and the same business had to begin all over again; twice messengers had to be sent to Rome, the journey each way taking at least forty days of incessant and dangerous travelling. When at last the appointed day for judgment by the justiciar came, friends, helpers, and witnesses had to be called together in the same laborious way, and transported at great cost to the place of trial, and there kept waiting till news was brought that the plea could not then be heard; and thus again and again the luckless suitor was summoned, each time to a different town in England. In every town he was forced by his necessities to borrow money from some Jew, who demanded about eighty-seven per cent for the loan; and when at last, as Richard was worn out with the delays of justiciars, Henry appeared on the scene, and, "thanks to our lord the king," the land was adjudged to the suitor, he had to raise fresh money to fee the lawyers, the bishop's staff, the officers of the King's Court, the king's physicians, the king and queen, besides the sums which must be given to his helpers and pleaders. The end of the story leaves him mournfully counting up a long list of Jewish creditors, who bid fair to exhaust the profits of his new possessions.

Such were in brief outline some of the difficulties which made order and justice hard to win. Society was helpless to protect itself: news spread slowly, the communication of thought was difficult, common action was impossible. Amid all the shifting and half understood problems of medieval times there was only one power to which men could look to protect them against lawlessness, and that was the power of the king. No external restraints were set upon his action; his will was without contradiction. The medieval world with fervent faith believed that he was the very spring and source of justice. In an age when all about him was changing, and when there was no organized machinery for the administration of law, the king had himself to be judge, lawgiver, soldier, financier, and administrator; the great highways and rivers of the kingdom were in "his peace;" the greater towns were in his demesne; he was guardian of the poor and defender of the trader; he was finance minister in a society where economic conditions were rapidly changing; here presented a developed system of law as opposed to the primitive customs of feud and private war; he was the only arbiter of questions that grew out of the new conflict of classes and interests; he alone could decree laws at his absolute will and pleasure, and could command the power to carry out his decrees; there was not even a professional lawyer who was not in his court and bound to his service.

Henry saw and used his opportunity. Even as a youth of twenty-one he assumed absolute control in his courts with a knowledge and capacity which made him fully able to meet trained lawyers, such as his chancellor, Thomas, or his justiciar, De Lucy. Cool, businesslike, and prompt, he set himself to meet the vast mass of arrears, the questions of jurisdiction and of disputed property, which had arisen even as far back as the time of Henry I., and had gone unsettled through the whole reign of Stephen, to the ruin and havoc of the lands in question. He examined every charter that came before him; if any was imperfect he was ready to draw one up with his own hand; he watched every difficult point of law, noted every technical detail, laid down his own position with brief decision. In the uncertain and transitional state of the law the king's personal interference knew scarcely any limits, and Henry used his power freely. But his unswerving justice never faltered. Gilbert de Bailleul, in some claim to property, ventured to make light of the charter of Henry I., by which it was held. The king's wrath blazed up. "By the eyes of God," he cried, "if you can prove this charter false, it would be worth a thousand pounds to me! If," he went on, "the monks here could present such a charter to prove their possession of Clarendon, which I love above all places, there is no pretence by which I could refuse to give it up to them!"

It is hard to realise the amazing physical endurance and activity which was needed to do the work of a medieval king. Henry was never at rest. It was only by the most arduous labour, by travel, by readiness of access to all men, by inexhaustible patience in weighing complaint and criticism, that he learned how the law actually worked in the remotest corners of his land. He was scarcely ever a week in the same place; his life in England was spent in continual progresses from south to north, from east to west. The journeyings by rough trackways through "desert" and swamp and forest, through the bleak moorlands of the Pennine Hills, or the thickets and fens that choked the lower grounds, proved indeed a sore trial for the temper of his courtiers; and bitter were the complaints of the hardships that fell to the lot of the disorderly train that swept after the king, the army of secretaries and lawyers, the mail-clad knights and barons followed by their retainers, the archbishop and his household, bishops and abbots and judges and suitors, with the "actors, singers, dicers, confectioners, huxters, gamblers, buffoons, barbers, who diligently followed the court." Knights and barons and clerks, accustomed to the plenty and comfort of palace and castle, found themselves at the mercy of every freak of the king's marshals, who on the least excuse would roughly thrust them out into the night from the miserable hut in which they sought shelter and cut loose their horses' halters, and whose hearts were hardly softened by heavy bribes. They were often half-starved; if food was to be had at all, it was at the best stale fish, sour beer and wine, coarse black bread, and meat scarcely eatable, even with the rough appetite of travellers of that age. Matters were made ten times worse by Henry's mode of travelling. "If the king has proclaimed that he intends to stop late in any place, you may be sure that he will start very early in the morning, and with his sudden haste destroy every one's plans. It often happens that those who have let blood or taken medicine are obliged at the hazard of their lives to follow. You will see men running about like mad; urging forward their pack-horses, driving their waggons into one another, everything in confusion, as if hell had broken loose. Whereas, if the king has given out that he will start early in the morning, he will certainly change his mind, and you may be sure he will snore till noon. You will see the pack-horses drooping under their loads, waggons waiting, drivers nodding, tradesmen fretting, all grumbling at one another. Men hurry to ask the loose women and the liquor retailers who follow the court when the king will start; for these are the people who know most of the secrets of the court." Sometimes, on the other hand, when the din of the camp was silenced for a while in sleep, a sudden message from the royal lodging would again set all in commotion. A wild clatter of horsemen and footmen would fill the darkness. The stout pack-horses, probably borrowed from a neighbouring monastery to carry the heavy Rolls in which state business was chronicled, were hastily laden. Baggage of every kind was slung across the backs of horses, or stowed into cumbrous two-wheeled waggons made of rough planks, or of laths covered with twisted osiers, which had been seized from farmer or peasant for the king's journey. The forerunners pushed on in front to give notice of the king's arrival, and in the dim morning light the motley train of riders at last crowded along the narrow trackway, followed heavily by the waggons dragged by single file of horses, which too often foundered in the muddy hollows, or half-plunged into the torrents through rents and chasms in the low, narrow bridges that threatened at every instant to crumble away under the strain. But before the weary day's journey was over the king would suddenly change his mind, stop short of the town towards which all were toiling in hope of food and shelter, and turn aside to some spot in the woods where there was perhaps a solitary hut and food only for himself: "And I believe, if I dare to say so, that he took delight in our distresses," groans the poor secretary as he pictures the knights wandering by twos and threes in the thickets, separated in the darkness from their followers, and drawing their swords one against another in furious strife for the possession of some shelter for which pigs would scarcely have quarrelled. "Oh, Lord God Almighty," he ends, "turn and convert the heart of the king from this pestilent habit, that he may know himself to be but man, and that he may show a royal mercy and human compassion to those who are driven after him not by ambition but by necessity."

But at whatever inconvenience to his courtiers Henry carried out his own purposes, and kept pace with the enormous mass of business that came to him. In all his hurried journeys we see busy royal clerks scribbling away at each halt charters, grants, letters patent and letters close, the king too fighting, riding, dictating, signing, sometimes dating his letters from three places on the same day. A travelling king such as this was well known to all his people. He was no constitutional fiction, but a living man; his character, his look and presence, his oaths and jests, his wrath, all were noted and talked over; the chroniclers who followed his court with their gossip and their graver news spread the knowledge of his doings. A new sense of law and justice grew up under a sovereign who himself journeyed through the length and breadth of the land, subduing the unruly, hearing pleas, revising unjust sentences, drawing up charters with his own hand, setting the machinery of government to work from end to end of England. More than this, the king himself had learned to know his people. He had seen for himself the castles of the barons, the huts of the peasants, the little villages in the clearings; he had seen the sheriff sitting in the shire court, the lord of the manor doing justice in his "hall-moot," the bishop and archdeacon dispensing the law in the church courts. By his sudden journeys, his unexpected movements and rapid change of plans, he arrived at the very moment and the very place where no one looked for him; nothing was safe from his eye and ear; no false sheriff or rebellious lord could be sure when his terrible master might be at his doors. Foreigner as the king was, there was soon no Englishman who knew the affairs of his kingdom so well. His penetrating curiosity, his wide experience, his practised judgment, rapidly made him one of the most sagacious administrators and wisest legislators that ever guided England in a very critical moment of her history; and when he finally drew up his system of reform there was not a single point of principle in it from which he or his successors found it necessary afterwards to draw back.



CHAPTER IV

THE FIRST REFORMS

Henry began his work of reorganization by taking up the work which his grandfather had begun—that of replacing the mere arbitrary power of the sovereign by a uniform system of administration, and bringing into order the various conflicting authorities which had been handed down from ancient times, royal courts and manor courts, church courts, shire courts, hundred courts, forest courts, and local courts in special franchises, with all their inextricable confusion of law and custom and procedure. Under Henry I. two courts, the Exchequer and the Curia Regis, had control of all the financial and judicial business of the kingdom. The Exchequer filled a far more important place in the national life than the Curia Regis, for the power of the king was simply measured by the state of the treasury, when wars began to be fought by mercenaries, and justice to be administered by paid officials. The court had to keep a careful watch over the provincial accounts, over the moneys received from the king's domains, and the fines from the local courts. It had to regulate changes in the mode of payment as the use of money gradually replaced the custom of payments in kind. It had to watch alterations in the ownership and cultivation of land, to modify the settlement of Doomsday Book so as to meet new conditions, and to make new distribution of taxes. There was no class of questions concerning property in the most remote way which might not be brought before its judges for decision. Twice a year the officers of the royal household, the Chancellor, Treasurer, two Chamberlains, Constable, and Marshal, with a few barons chosen from their knowledge of the law, sat with the Justiciar at their head, as "Barons of the Exchequer" in the palace at Westminster, round the table covered with its "chequered" cloth from which they took their name. In one chamber, the Exchequer of Account, the "Barons" received the reports of the sheriffs from every county, and fixed the sums to be levied. In a second chamber, the Exchequer of Receipt, the sheriff or tax-farmer paid in his dues and took his receipts. The accounts were carefully entered on the treasurer's roll, which was called from its shape the Great Roll of the Pipe, and which may still be seen in our Record Office; the chancellor kept a duplicate of this, known as the Roll of the Chancery; and an officer of the king registered in a third Roll matters of any special importance. Before the death of Henry I. the vast amount and the complexity of business in the Exchequer Court made it impossible that it should any longer be carried on wholly in London. The "Barons" began to travel as itinerant judges through the country; as the king's special officers they held courts in the provinces, where difficult local questions were tried and decided on the spot. So important did the work of finance become that the study of the Exchequer is in effect the key to English history at this time. It was not from any philosophic love of good government, but because the license of outrage would have interrupted there turns of the revenue that Henry I. claimed the title of the "Lion of justice." It was in great measure from a wish to sweep the fees of the Church courts into the royal Hoard that the second Henry began the strife with Becket in the Constitutions of Clarendon, and the increase of revenue was the efficient cause of the great reforms of justice which form the glory of his reign. It was the fount of English law and English freedom.

The Curia Regis was composed of the same great officers of the household as those who sat in the Exchequer, and of a few men chosen by the king for their legal learning; but in this court they were not known as "Barons" but as "Justices," and their head was the Chief Justice. The Curia Regis dealt with legal business, with all causes in which the king's interest was concerned, with appeals from the local courts, and from vassals who were too strong to submit to their arbitration, with pleas from wealthy barons who had bought the privilege of laying their suit before the king, besides all the perplexed questions which lay far beyond the powers of the customary courts, and in which the equitable judgment of the king himself was required. In theory its powers were great, but in practice little business was actually brought to it in the time of Henry I; the distance of the court from country places, and the expense of carrying a suit to it, would alone have proved an effectual hindrance to its usefulness, even if the rules by which it was guided had been much more complete and satisfactory than they actually were.

The routine of this system of administration, as well as the mass of business to be done, effectually interfered with arbitrary action on the king's part, and the regular and methodical work of the organized courts gave to the people a fair measure of protection against the tyranny or caprice of the sovereign. But the royal power which was given over to justices and barons did not pass out of the hands of the king. He was still in theory the fount of all authority and law, and could, whenever he chose, resume the powers that he had granted. His control was never relaxed; and in later days we find that while judges on circuit who gave unjust judgment were summoned before the Curia Regis at Westminster, the judges of the Curia Regis itself were called for trial before the king himself in his council.

The reorganization of these courts was fast completed under Henry's great justiciar, De Lucy, and the chancellor Thomas. The next few years show an amount of work done in every department of government which is simply astonishing. The clerks of the Exchequer took up the accounts and began once more regular entries in the Pipe Roll; plans of taxation were devised to fill the empty hoard, and to check the misery and tyranny under which the tax payers groaned. The king ordered a new coinage which should establish a uniform system of money over the whole land. As late as the reign of Henry I. the dues were paid in kind, and the sheriffs took their receipts for honey, fowls, eggs, corn, wax, wool, beer, oxen, dogs, or hawks. When, by Henry's orders, all payments were first made in coin to the Exchequer, the immediate convenience was great, but the state of the coinage made the change tell heavily against the crown. It was impossible to adulterate dues in kind; it was easy to debase the coin when they were paid in money, and that money received by weight, whether it were coin from the royal mints, or the local coinages that had continued from the time of the early English kingdoms, or debased money from the private mints of the barons. Roger of Salisbury, in fact, when placed at the head of the Exchequer, found a great difference between the weight and the actual value of the coin received. He fell back on a simple expedient; in many places there had been a provision as old at least as Doomsday, which enacted that the money weighed out for town-geld should if needful be tested by re-melting. The treasurer extended this to the whole system of the Exchequer. He ordered that all money brought to the Exchequer should itself be tested, and the difference between its weight and real value paid by the sheriff who brought it. The burden thus fell on the country, for the sheriff would of course protect himself as far as he could by exacting the same tests on all sums paid to him. If the pound was worth but ten shillings in the market, no doubt the sheriff only took it for ten shillings in his court. Practically each tax, each due, must have been at least doubled, and the sheriff himself was at the mercy of the Exchequer moneyers. There was but one way to remedy the evil, by securing the purity of the coin, and twice during his reign Henry made this his special care.

In the absence of records we can only dimly trace the work of legal reform which was carried out by Henry's legal officers; but it is plain that before 1164 certain great changes had already been fully established. A new and elaborate system of rules seems gradually to have been drawn up for the guidance of the justices who sat in the Curia Regis; and a new set of legal remedies in course of time made the chances of justice in this court greater than in any other court of the realm. The Great Assize, an edict whose date is uncertain, but which was probably issued during the first years of his reign, developed and set in full working order the imperfect system of "recognition" established by the Norman kings. Henceforth the man, whose right to his freehold was disputed, need but apply to the Curia Regis to issue an order that all proceedings in the local courts should be stopped until the "recognition" of twelve chosen men had decided who was the rightful owner according to the common knowledge of the district, and the barbarous foreign custom of settling the matter by combat was done away with. Under the new system the Curia Regis eventually became the recognized court of appeal for the whole kingdom. So great a mass of business was drawn under its control that the king and his regular ministers could no longer suffice for the work, and new judges had to be added to the former staff; and at last the positions of the two chief courts of the kingdom were reversed, and the King's Court took the foremost place in the amount and importance of its business.

The same system of trial by sworn witnesses was also gradually extended to the local courts. By the new-fashioned royal system the legal men of hundreds and townships, the knights and freeholders, were ordered to search out the criminals of their district, and "present" them for trial at the Shire Court,—something after the fashion of the "grand jury" of to-day, save that in early times the jurors had themselves to bear witness, to declare what they knew of the prisoner's character, to say if stolen goods had been divided in a certain barn, to testify to a coat by a patch on the shoulder. By a slow series of changes which wholly reversed their duties, the "legal men" of the juries of "presentment" and of "recognition" were gradually transformed into the "jury" of to-day; and even now curious traces survive in our courts of the work done by the ancestors of the modern jury. In criminal cases in Scotland the oath still administered by the clerk to jurymen carries us back to an ancient time: "You fifteen swear by Almighty God, and as you shall answer to God at the great day of judgment, you will truth say and no truth conceal, in so far as you are to pass on this assize."

The provincial administration was set in working order. New sheriffs took up again the administration of the shires, and judges from the King's Court travelled, as they had done in the time of Henry I., through the land. The worst fears of the baronage were justified. They were disabled by one blow after another. Their political humiliation was complete. The heirs of the great lords who had followed the Conqueror, and who with their vast estates in Normandy and in England had inherited the arrogant pretensions of their fathers, found themselves of little account in the national councils. The mercenary forces were no longer at their disposal. The sources of wealth which they had found in plunder and in private coinage were cut off. Their rights of jurisdiction were curtailed. A final blow was struck at their military power by the adoption of scutage. In the Welsh campaign of 1157 Henry opened his military reforms by introducing a system new to England in the formation of his army. Every two knights bound to service were ordered to furnish in their place one knight who should remain with the king's army as long as he required. It was the first step towards getting rid of the cumbrous machinery of the feudal array, and securing an efficient and manageable force which should be absolutely at the king's control. In the war of Toulouse in 1159 the problem was for the first time raised as to the obligation of feudal vassals to foreign service, and Henry gladly seized the opportunity to carry out his plan yet more fully. The chief vassals who were unwilling to join the army were allowed to pay a fixed tax or "scutage" instead of giving their personal service. Henry, the chroniclers tell us, careful of his people's prosperity, was anxious not to annoy the knights throughout the country, nor the men of the rising towns, nor the body of yeomen, by dragging them to foreign war against their will; at the same time he himself profited greatly by the change. The new system broke up the old feudal array, and set the king at the head of something like a standing army paid by the taxes of the barons.

Henry had, indeed, won a signal victory over feudalism. But feudalism had no roots on English soil; it was forced to borrow Brabancons, and to work by means alien to the whole feudal tradition and system, and Henry had easily overthrown the baronage by the help of the Church. But in the process the ecclesiastical party had learned to know its strength, and the king had to meet a more formidable resistance to his will when, instead of a lawless baronage, he was confronted by the Church with its mighty organization, always vigilant and menacing. The clergy had from the first looked with a very jealous eye on his projects. A sharp quarrel as to the jurisdiction of the ecclesiastical courts had early arisen between Henry and Archbishop Theobald, but the matter had been compromised for a time. Thomas had taken office pledged to defend ecclesiastical interests, and he was so far true to his pledge, that while he was chancellor he put an end to the abuse of keeping bishoprics and abbeys vacant. He had, however, as was said at the time, "put off the deacon" to put on the chancellor; and in an ecclesiastical trial which took place soon after Henry's crowning, he appears as an energetic exponent of the king's legal views. A dispute had raged for years as to the jurisdiction of the bishops of Chichester over the abbots of Battle. On Henry's accession Bishop Hilary of Chichester vigorously renewed the struggle, and a great trial was held in May 1157 to decide the matter. Hilary failing after much discussion to effect a compromise, emphatically and solemnly declared in words such as Henry was to hear a few years later from another mouth, that there were two powers, secular and spiritual, and that the secular authority could not interfere with the spiritual jurisdiction, or depose any bishop or ecclesiastic without leave from Rome. "True enough, he cannot be 'deposed,'" cried the young king, "but by a shove like this he may be clean thrust out!" and he suited the action to the words. A laugh ran round the assembly at the king's jest; but Hilary, taking no notice of the hint, went on to urge that no layman, not even the king, could by the law of Rome confer ecclesiastical dignity or exemptions without the Pope's leave and confirmation. "What next!" broke in Henry angrily, "you think with your practised cunning to set yourself up against the authority of my kingly prerogative granted me by God Himself! I command you by the allegiance you have sworn to keep within proper bounds language against my crown and dignity!" A general clamour rose against the prelate, and the chancellor, louder than the rest, talked of the bishop's oath of fealty to the king, and warned him to take heed to himself. Hilary, seeing himself thus beset, obsequiously declared that he had no wish to take aught from the kingly honour and dignity, which he had always bent every effort to magnify and increase; but Henry bluntly retorted that it was plain to all that his honour and dignity would be speedily removed far from him by the fair and deceitful talk of those who would annul his just prerogatives. The bishop could not find a single friend. Chancellor and justiciar and constable rivalled one another in taunts and sharp phrases. When he went on to urge the revision of the Conqueror's charter to Battle by the archbishop, and to appeal to ecclesiastical custom, Henry's wrath rose again. "A wonderful and marvellous thing truly is this we hear, that the charters, forsooth, of my kingly predecessors, confirmed by the prerogative of the Crown of England, and witnessed by the magnates, should be deemed beyond our powers by you, my lord bishop. God forbid, God forbid, that in my kingdom what is decreed by me at the instance of reason, and with the advice of my archbishops, bishops, and barons, should be liable to the censure of you and such as you!" He broke short discussion by declaring that the question belonged to him alone to settle. The chancellor, in a long argument, crushed the already humbled bishop, and raised the king's anger to its utmost pitch by drawing attention to the fact that Hilary had appealed to Rome to the contempt of the royal dignity. The king, his countenance changed with fury, turned passionately to the bishop, who tremblingly swore, while Archbishop Theobald crossed himself in amazement at the audacious perjury, that it was the abbot who had got the bull of which Thomas complained. Theobald entreated that the matter might be settled according to Canon law, but this the king promptly refused. Finally Hilary was forced to complete submission, and the archbishop prayed that he might be pardoned for any imprudent words he had used against the king's majesty. Henry was ever ready to yield everything in form when once he had got his own way. "Not only," he answered, "do I now give him the kiss of peace, but if his sins were a hundredfold, I would forgive them all for your prayers and for the love I bear him;" and bishop and abbot and justiciar, all by the king's orders, joined in the kiss of peace.

But no kiss of peace given at Henry's orders could turn away the rising wrath of the Church. A general feeling of danger was in the air, and both sides, in preparing for the inevitable future, chose the same man to fight their battle,—Thomas, the disciple and secretary of Theobald, Thomas, the minister of the king's reforms. The young king had turned with passionate affection to his brilliant chancellor. In hall, in church, in council-chamber, on horseback, he was never separated from his friend. Thomas, like his master, was always ready for hunting, or for hawking, or for a game of chess. He was willing, too, to save the king the cost and burden of entertainment and display. He was careful to magnify his office. He held a splendid court, where Henry's son and a train of young nobles were brought up to knightly accomplishments. He was dressed in scarlet and furs, and his clothes were woven with gold. His table was covered with gold and silver plate, and his servants had orders to buy the most costly provisions in the shops for cooked meat, which were then the glory of the city. His household was the talk of London. The king himself, curious to see how things went on, would sometimes come on horseback to watch the chancellor sitting at meat, or, bow in hand, would turn in on his way from hunting, and, vaulting over the table, would sit down and eat with him. Henry lavished gifts on him, so that according to one of his chroniclers, "when he might have had all the churches and castles of the kingdom if he chose since there was none to deny him, yet the greatness of his soul conquered his ambition; he magnanimously disdained to take the poorer benefices, and required only the great things—the provostship of Beverley, the deanery at Hastings, the Tower of London with the service of the soldiers belonging to it, the castle of Eye with 140 soldiers, and that of Berkhampstead." or was the king's favour misplaced, for Thomas was an excellent servant. Business was rapidly despatched by him; and Henry found himself relieved of the most irksome part of his work. The chancellor surrounded himself by able men, looking even as far as Gaul for poor Englishmen who were distinguished for their talent; fifty-two clerks were employed under him in the Chancery. As he grew more and more important to his master, unlimited powers were put in his hand. There are even entries in the Pipe Roll of pardons issued by him, the first instance of such a right ever used by any save king or queen. It was said that those who had the king's favour might count it as a vain thing, unless they had also the friendship of the chancellor. "The king's dominions, which reach from the Arctic Ocean to the Pyrenees, he put into your power, and in this alone was any man thought happy, that he should find favour in your eyes," runs a letter written afterwards to Thomas.

To complete the king's schemes, however, one dignity yet remained to be conferred on Thomas. He was eager, in view of his proposed reconstruction of Church and State, to adopt the Imperial system of a chancellor-archbishop. The difficulties in the way were great, for ancient custom limited the technical supremacy of the king's will in the choice of the Primate. No archbishop since the Conquest had been chosen for other reasons than those of piety and learning; no secular primate had been appointed since Stigand, and before Stigand there had never been one at all; no deacon had ever been chosen for this high office; and never had a king's officer been made archbishop, however common it may have been to put chancellor or treasurer in less important sees. Amid the anxiety and questioning which followed the death of Theobald in 1161, Thomas himself clearly saw the parting of the ways: "Whoever is made archbishop," he said, "must quickly give offence to God or to the king." Henry alone knew no hesitation. Fresh from his triumphs abroad, master of his great empire, clear and decided in his projects for the ordering of his dominions, eager with the force and determination of twenty-eight years, recognizing no check to his imperious will and the dictates of his friendship, he chose Thomas as archbishop, "Matilda dissuading, the kingdom protesting, the whole Church sighing and groaning." The king, who was then in France, sent his envoy, Richard de Lucy, to Canterbury to press the essential problem home in plain words: "If," he said, "the king and the archbishop are joined together in affection, the state of the Church will still be quiet and happy; but if the thing should fall out otherwise, what strife may come from it, what difficulties and tumults, what loss and peril to souls, I cannot hide from you." The argument prevailed, and in London, in the presence of the king's little son Henry, then seven years old, Thomas was chosen archbishop, "the multitude acclaiming with the voice of God and not of man." The deacon-chancellor was ordained priest on the 2d of June 1162, and the next day consecrated archbishop by Henry of Winchester. Two months later John of Salisbury brought him the pall from Pope Alexander at Montpellier, and for the first time since the Norman Conquest, a man born on English soil was set at the head of the English Church.



CHAPTER V

THE CONSTITUTIONS OF CLARENDON

In the January of 1163 Henry once more landed in England. His absence off our and a half years had given time for dangers and alarms to spring up in the half-settled realm. Mysterious prophecies passed from mouth to mouth that the king would never be seen in the island again, and even Theobald, before his death in 1161, had sent urgent entreaties for his return. The king had, in fact, during the first eight years of his rule been mainly occupied in building up his empire, and providing for its defence against external dangers. He had only twice visited the kingdom, each time for little more than a year. He was now, however, prepared to take the work of administration seriously in hand. In the next eighteen years, from 1163 to 1180, he landed on its shores seven times, and spent altogether eight years in the country. Once he was busied with the conquest of Ireland; one visit of a month was spent in crushing a dangerous rebellion; but with these two exceptions every coming of the king was marked by the carrying out of some great administrative reform. In his half-compacted empire order was still only maintained by his actual presence and the sheer force of his personal authority, as he hurried from country to country to quell a rising in Gascony or a revolt in Galloway, to wage war in Wales, to finish the conquest of Britanny or of Ireland, to order the administration of Poitou or Normandy. But in the swift and terrible progresses of a king who visited the shires to north and south and west in the intervals of foreign war, a long series of experiments as to the best forms of internal government was ceaselessly carried out, and the new administration securely established.

Henry, however, was at once met by a difficulty unknown to earlier days. The system which the Conqueror had established of separate courts for secular and ecclesiastical business had utterly broken down for purposes of justice. Until the reign of Stephen much of the business of the bishops was done in the courts of the hundred and the shire. The Church courts also had at first been guided by the customary law and traditions of the early English Church, which had grown up along with the secular laws and had a distinctly national character. So long, indeed, as the canon law remained somewhat vague, and the Church courts incomplete, they could work peaceably side by side with the lay courts; but with the development of ecclesiastical law in the middle of the twelfth century, it was inevitable that difficulties should spring up. The boundaries of civil and ecclesiastical law were wholly uncertain, the scientific study of law had hardly begun, and there was much debatable ground which might be won by the most arrogant or the most skilful of the combatants. Every brawl of a few noisy lads in the Oxford streets or at the gates of some cathedral or monastic school was enough to kindle the strife as to the jurisdiction of Church or State which shook medieval society to its foundation.

The Church courts not only had jurisdiction over the whole clerical order, but exercised wide powers even over the laity. To them alone belonged the right to enforce spiritual penalties, to deal with cases of oaths, promises, anything in which a man's faith was pledged; to decide as to the property of intestates, to pronounce in every case of inheritance whether the heir was legitimate, to declare the law as to wills and marriage. Administering as they did an enlightened system of law, they profited by the new prosperity of the country, and the judicial and pecuniary disputes which came to them had never been so abundant as now. Henry was keenly alive to the fact that the archdeacons' courts now levied every year by their fines more money than the whole revenue of the crown. Young archdeacons were sent abroad to be taught the Roman law, and returned to preside over the newly-established archdeacons' courts; clergy who sought high office were bound to study before all things, even before theology, the civil and canon law. The new rules, however, were as yet incomplete and imperfectly understood in England; the Church courts were without the power to put them in force; the procedure was hurried and irregular; the judges were often ill-trained, and unfit to deal with the mass of legal business which was suddenly thrown on them; the ecclesiastical authorities themselves shrank from defiling the priesthood by contact with all this legal and secular business, and kept the archdeacons in deacons' orders; the more religious clergy questioned whether for an archdeacon salvation were possible. In the eight years of Henry's rule one hundred murders had been committed by clerks who had escaped all punishment save the light sentences of fine and imprisonment inflicted by their own courts, and Henry bitterly complained that a reader or an acolyte might slay a man, however illustrious, and suffer nothing save the loss of his orders.

Since the beginning of Henry's reign, too, there had been an enormous increase of appeals to Rome. Questions quite apart from faith or morals, and that mostly concerned property, were referred for decision to a foreign court. The great monasteries were exempted from episcopal control and placed directly under the Pope; they adopted the customs and laws which found favour at Rome; they upheld the system of appeals, in which their wealth and influence gave them formidable advantages. The English Church was no longer as in earlier times distinct from the rest of Christendom, but was brought directly under Roman influence. The clergy were more and more separated from their lay fellow citizens; their rights and duties were determined on different principles; they were governed by their own officers and judged by their own laws, and tried in their own courts; they looked for their supreme tribunal of appeal not to the King's Court, but to Rome; they became, in fact, practically freed from the common law.

No king, and Henry least of all, could watch unmoved the first great body which threatened to stand wholly outside the law of the land; and the ecclesiastical pretensions of the time were perhaps well matched by the pretensions of the State. The king had prepared for the coming conflict by a characteristic act of high-handed imperiousness in the election of the chancellor-archbishop to carry out his policy. But all such schemes of imperative despotism were vain. No sooner was Thomas consecrated than it became plain that his ecclesiastical training would carry the day against the influence of Henry. As rapidly as he had "thrown off the deacon" to become the chancellor, so he now went through the sharper change of throwing off the chancellor to become the archbishop. With keen political sagacity he at once sought the moral support of the religious party who had so vehemently condemned his appointment. The gorgeous ostentation of his old life gave way to an equally elaborate scheme of saintliness. He threw away with tears his splendid dress to put on sackcloth and the black cloak of the monk. His table was still covered with gold and silver dishes and with costly meats, but the hall was now crowded with the poor and needy, and at his own side sat only the most learned and holy among the monks and clergy. Forty clerks "most learned in the law" formed his household. He visited the sick in the infirmary, and washed the feet of thirteen poor men daily. He sat in the cloister like one of the monks, studying the canon law and the Holy Scriptures. He joined their prayers in the Church and took part in their secret councils. The monks who had suffered under the heavy hand of Theobald, when their dainty foods were curtailed and their cherished privileges sharply denied them, hailed joyfully the unexpected attitude of their new master. "This is the finger of God," men said, "this, indeed, is the work of the right hand of the Most High." "As he had been accustomed to the pre-eminence over others in worldly glory," commented another observer, "so now he determined to be the foremost in holy living."

Rumours spread that there were to be other changes besides that of "holy living." The see of Canterbury under the new primate was to win back all lands and privileges lost during the civil wars, at whatever cost to the interests of the whole court party, of barons who found their rights to Church appointments and Church lands questioned, and of clerks of the royal household who trembled for their posts and benefices. There was soon no lack of enemies at court, old and new, ready to carry to Henry whispers that would appeal most subtly to his fears,—whispers that the royal dignity itself was in danger; that he must look to himself and his heirs, or the story of Stephen's time would be told over again, and that man alone would in future be king, whom the clergy should elect and the archbishop approve. Henry's bitter anger was aroused when Thomas resigned the chancellorship, "not now wishing to be in the royal court, but desiring to have leisure for prayers, and to superintend the business of the Church." The king retorted by forcing Thomas to resign his archdeaconry with its rich fees; and at his landing in January 1163 he received the archbishop, who came to meet him, "with averted face." Thomas, on his part, added another grievance by refusing on ecclesiastical grounds to allow Henry to marry his brother to Stephen's daughter-in-law, the Countess of Warenne; and on the general question of the relations of Church and State, he hastened to define his views with sharp precision in an eloquent sermon preached before the king. "Henry observing it word by word, and understanding from it how greatly Thomas put the ecclesiastical before the civil right, did not receive this doctrine with an equal mind, for he perceived that the archbishop was far from his own view, that the Church had neither rights nor possessions save by his favour." The attitude of Thomas was yet further strengthened and defined when, in May 1163, he went to attend a great Council held at Tours, where he was brought more immediately under the influence of the ecclesiastical movement of the day. There he sought, with a meaning that Henry must clearly have understood, to procure the canonization of Anselm from Pope Alexander, who, however, was far too politic amid his own difficulties, and in his need for Henry's help, to commit himself either by consent or by refusal.

The inevitable controversy declared itself soon after the return of Thomas from Tours. Throughout July and August one question after another was hurried forward for settlement between king and primate. On July 1 the king proposed a change in the collection of the land tax, which would have increased the royal revenues at the expense of the revenues of the shire. Since the Conquest there had never been a single instance of an attempt to resist the royal will in matters of finance, but Thomas showed no hesitation. He flatly refused consent to an arbitrary act of this kind. He made no objection to the payment of the tax, but he was determined to prevent the local revenues being seized in this way by the king. His action seems to have been wise and patriotic, and his triumph was complete. Henry was forced to abandon the scheme. Having awakened the anger of the king, Thomas next alienated the whole party of the barons by pressing his demands for the recovery of lands belonging to his see. Tunbridge, Rochester, now in the custody of the crown itself, Hythe, Saltwood, and a number of other manors became the subjects of sharp contention. The archbishop urged a doubtful claim, which he had inherited from Theobald, to appoint the priest to a church on the land of William of Eynesford, a tenant of the king. William resisted, and Thomas made his first false move by excommunicating him. Henry at once appealed to the "customs" of the kingdom, which forbade such sentence on the king's barons without the royal consent, and Thomas had to withdraw his excommunication. "I owe him no thanks for it!" cried the angry king.

A more serious strife was raised when Thomas came into direct collision with Henry on the inevitable question of the punishment of clerks for crime against the common law. If the king was determined to bring about a fundamental reform in the administration of justice, the Primate was equally resolute that as archbishop he would have nothing to do with reforms which he might have countenanced as chancellor. He prudently sought at first to divert attention from the real issue by increasing the severity of judgments in the ecclesiastical courts. A clerk had stolen a chalice; he insisted on his trial in the Church Court, but to appease the king ordered him to be branded,—a punishment condemned by ecclesiastical law which considered all injury to the person as defiling the image of God. Such devices, however, were thrown away on Henry. When another clerk, Philip de Broc, who had been accused of manslaughter, was set free by the Church courts, the king's justiciar ordered him to be brought to a second trial before a lay judge. Philip refused to submit. The justiciar then charged him with contempt of court for his vehement and abusive language to the officer who summoned him, but the archbishop demanded that for this charge, too, he should be tried by ecclesiastical law. Henry was forced to content himself with sending a detachment of bishops and clergy to watch the trial. They returned with the news that the court had refused to reconsider the charge of manslaughter, and had merely condemned Philip for insolence; he was ordered to make personal satisfaction to the sheriff, standing (clerk as he was) naked before him, and submitting to a heavy fine; his prebend was to be forfeited to the king for two years; for those two years he was to be exiled and his movable goods were confiscated.

The punishment might seem severe enough, but Henry would accept no compromise. With a burst of fury he declared that just judgment for murder was refused because the offender was in orders. Resolute that the question should once for all be settled, he summoned a council at Westminster on October 1. There he demanded, "for love of him and for safety of the kingdom," that accused clerks should be tried by the common law, and that if proved guilty, they should be degraded by the bishops, and given up to the executioner for punishment. He complained of the exactions of the ecclesiastical courts, and urged that in all matters concerning these courts or the rights of the clergy, the bishops should return to the customs of Henry the First. Such a course would have left them at the king's mercy, and the prelates wavered in their sore distress. The king's friends contended that a guilty clerk deserved punishment double that of a layman, and urged the need of submission at this moment when the Church was torn asunder by schism; and the bishops frankly admitted a yet more pressing consideration: "For if we do not what the king wishes," they said, "flight will be cut off from us, and no man will seek after our souls; but if we consent to the king, we shall own the sanctuary of God in heredity, and shall sleep safely in the possession of our churches." On the other hand, the archbishop had no mind to resign without a contest all the results of the great tide of feeling which had swept the Church onward far past its old landmarks. For him there was no going back to a traditional past from which the Church had shaken itself free, and in which, though king and barons might see the freedom of the State, he saw the enslaving and degradation of the clergy. He vehemently asserted that the "customs" of the Church were of greater authority than any "customs" of the kingdom, that its canon law claimed obedience as against all traditional national law whatever; and with keen political insight he insisted on the dangers that would follow if once they allowed the charm of prescription to be broken, or the ecclesiastical liberties to be touched. He boldly led the way in his answer to the king: "We will obey in all things saving our order;" and as the bishops were asked one by one, they took courage to follow, and "one voice was in the mouth of all of them." Such a phrase had never been heard in England before, and Henry, with ready indignation, at once demanded the withdrawal of the words. When Thomas refused, he broke up the council in a burst of anger, and suddenly rode away from London, instantly followed by the whole body of trembling bishops, who hurried after him in abject terror, "lest before they should be able to catch him up, they should already have lost their sees." Thomas was left alone—"there was not one who would know him,"—while the prelates, coming up in time with their terrible lord, agreed henceforth to guide their words by his good pleasure.

From this moment all the elements of strife were prepared, and there was but outer show of harmony when king and archbishop, a few days later, joined at Westminster to celebrate with solemn pomp the translation of the remains of the sainted Confessor. In declaring war upon local jurisdictions, whether of clergy, or nobles, or burghers, or independent shire courts, Henry was defying all the traditions and convictions of his age,—an age when local feeling was a force which we are now quite unable to measure. The nobles, the guilds, and the rising towns had already won long before, or were now seeking to win as their most cherished privilege, the right to their own justice without interference from any higher power. They naturally looked with sympathy on the rights exercised by the clergy within their own body; they felt that whatever had been won by one class might later be won by another, and that liberties which were enjoyed by so enormous a body as the clerical order were a benefit in which the whole people had a share. If the king was determined to wage war on "privilege," clergy and people were equally resolute to defend "liberty." Moreover, in attacking the special jurisdiction of the Church, Henry had to encounter a force to which there is no parallel in our own time. An English king had doubtless less to fear from the Church than had any continental ruler. Abroad the bishop-stool, the abbey, the Church, were oases in the midst of perpetual war,—the only spots where peace and law and justice spoke in protest against the chaos of the world. But England was, in comparison with the rest of the western world, a country of peace and law. There the Church was less powerful against the State because the State had never handed over its duty of maintaining justice and law and right to the exclusive guardianship of the Church. None the less it was a formidable matter to rouse the hostility of a body which included not only all the religious world, but all the educated classes, and penetrated even to the despised villeinage and the poor freemen whose sons pressed into its lower ranks. The Church with which Henry had to deal was no longer the same that the Conqueror had easily bent to his will. It had received its training and felt its strength in political action; it had developed a close corporate spirit; it had an admirable organization; it possessed the most advanced as well as the most merciful legal system of the age. Its courts had strong claims to popular regard. Their punishments were more merciful than the savage sentences of the lay courts; and they held out great advantages to the rich, since the penances they inflicted could be commuted for money. Their system of law, moreover, was far in advance of the barbarous rules of customary law; and they were backed by all the authority of the Roman Curia and of the religious feeling of the day.

Henry had, however, peculiar advantages in the contest. He was master of a disciplined body of ministers and servants, in whom he could confidently trust. He was sure, in this matter at least, of the support of the lay baronage, who had long arrears of jealousy to make up against their hereditary opponents the clergy, and who were not likely now to forget that no party in the Church had ever made common cause with the feudal lords. He could count on the obedience of the secular clergy. In France or Germany the bishops were members of the great houses, and as powerful local rulers wielded a vast feudal authority. In England their position was very different. They were drawn from the staff of the king's chapel, and had their whole training in the administration of the court; and they formed an official nobility who were charged, in common with the secular nobility, with the conduct of the general business of the realm. They were appointed to their places by the king for services done to him, and as instruments of his policy. Neither Pope nor people had any share in their election. Their estates were granted them by the same titles, and with the same obligations as those of feudal barons; the king could withhold their temporalities, sequestrate their lands, confiscate their personal goods, and burden them with heavy fines; they lay absolutely at his mercy without appeal. Every tie of feudal duty, of official training, of prudent self-interest, forced them into subjection to the Crown. Their Roman sympathies were quenched as they watched the growing independence of the monasteries, and saw Church endowments taken to enrich the new religious houses of every kind which were springing up all over England. They feared the new authority claimed by legates, which threatened to withdraw the clergy, if they chose to assert their claims, from regular episcopal jurisdiction. They were thrown on the side of the king in ecclesiastical questions, drawn together by a common cause, both alike found their interest in the defence of national tradition as opposed to foreign custom.

Their leaders too looked coldly on the cause of the Primate. The Archbishop of York, Roger of Pont l'Eveque, once the companion of Thomas in Theobald's household, was now his personal enemy and rival. The two prelates inherited the secular strife as to which see should have the precedence. Moreover, while Canterbury represented the papal policy and always looked to Rome, York preserved some faint traditional leanings towards the liberties of the Irish and Scotch churches from whence the Christianity of the north had sprung. The Bishop of London, Gilbert Foliot, who, with the approval of Thomas, had been translated from Hereford only five months before, was, by his mere position, marked out as the chief antagonist of the archbishop, for St Pauls was at the head of the whole body of secular clergy throughout southern England, and to its bishop inevitably fell the leadership of this party against Canterbury, which was in the hands of a monastic chapter. The Bishop of Winchester, Henry of Blois, could well remember the struggle between Church and Crown under a far weaker king twenty six years before, when the bishops had wisely withdrawn from a contest where they had "seen swords unsheathed and knew it was no longer a joking matter, but a struggle of life and death," and with the prudence born of long political experience he was for moderate counsels. The Bishop of Chichester, Hilary, doubtless remembered the inconvenient part which Thomas as chancellor had played in his own trial a few years before, and might gladly recognize a poetic justice in seeing Thomas's old doctrines of the supremacy of the State now applied to himself. "Every plant," he once said with taunting reference to the king's part in Thomas's election, "which my heavenly Father has not planted shall be rooted up." Thomas bitterly added another verse as he heard of the saying, "This man had among the brethren the place of Judas the traitor." There seems to have been a general impression that the position of the Primate was extremely critical, and he was besieged by advisers who urged submission, by messengers from pope and cardinals, by panic-stricken churchmen. Beset on all sides the Primate wavered, and at last promised to swear obedience to the "customs of the kingdom." Immediately the king summoned prelates and barons to witness his submission, and the famous Council of Clarendon met for this purpose in 1164.

At Clarendon, however, after three days' conference, the archbishop hesitated and hung back, he had grievously sinned in yielding, and he now refused the promised oath. The bishops, finding courage in his firmness, declared themselves ready to follow him in his refusal. At the news the fury of the king burst forth, and "he was as a madman in the eyes of those who stood by." The court broke into wild disorder, the servants of the king, "with faces more truculent than usual," burst into the assembly of the prelates, and flinging aside their long cloaks, flourished their axes aloft, and threatened to strike them into the heads of the bishops. Two nobles were sent to warn Thomas that orders for his death were already given unless he would submit. The weeping bishops with lamentable voices besought him to save them; knights of the Hospital and the Temple from the king's household knelt before him, sighing and pouring forth tears. "In fear of death," says one chronicler, he yielded. "I am ready," he said, "to keep the customs of the kingdom." Hardly were the words out of his mouth, when Henry commanded him to order the bishops to give the same promise, and again the Primate obeyed. But the king was still unsatisfied. His temper had risen in the discussions of the last few months; his determination was fixed that the matter should be settled once for all. With the sharp decision of a keen and practical administrator, he ordered that the "customs of the kingdom" should be written down, so that no question might ever arise as to the laws which Thomas had sworn to observe; and "wise men" passed into the next room to write according to the king's will. They returned with a draft of sixteen articles, the famous "Constitutions of Clarendon." To these the king commanded that the Primate should set his seal; but Thomas, agitated by fear and anxiety, was no longer of the same mind. "By the omnipotent God," he cried, "while I live, I will never set my seal to it!" Whether he finally submitted it is impossible now to say. But he left the court with a last protest. A copy of the writing was torn down the middle, and one half, after the fashion of the "tallies" of the day, was given to Thomas in token of his promise, while the other was laid up in the royal treasury. "I take this," said the archbishop, "not consenting nor approving," and turning to the clergy: "By this we may know the malice of the king, and those things which we must beware of." He left the council and retired to Winchester, where in sackcloth and penance, shut out from the services of the Church, he condemned himself to wait in deepest humiliation till he should receive the Pope's absolution for his momentary betrayal of duty. For years to come a furious battle was to rage round the sixteen articles drawn up at Clarendon. According to Thomas, the Constitutions were a mere act of arbitrary violence, a cunning device of tyranny. He asserted that they were the sole deed of the justiciar De Lucy, and of Jocelyn de Bailleul, a French lawyer. In any case he frankly denied the authority of "custom," that tyrannous law of medieval times. "God never said," writes one of his defenders, "I am Custom, but I am Truth." Thomas rested his case not on the customary law of the land, but on the code of Rome; to English tradition he opposed the Italian lawyers. Henry, on his part, declared that the Constitutions were drawn up by the common witness of bishops, earls, barons, and wise men; that they were, in fact, part of a system actually in operation, and which had been administered by Thomas himself when he was chancellor. It was certainly a startling novelty to have the customs of the realm drawn up in a written code to which men were required to swear obedience; but still the "Constitutions" professed to be no new legislation, but to be simply a statement of recognized national tradition. The changes that had followed on the Conquest had modified older customs profoundly. The conditions, not only of England but of Europe, had changed with confusing rapidity, and it was no longer easy to say exactly what was "custom" and what was not. To Henry the Constitutions did fairly represent the system which had grown up with general consent under the Norman kings. Thomas, on the other hand, might argue with equal conviction that he was asked to sign as "customs" what was practically a new code; and he had neither the wisdom nor the temper to reconcile the dispute by a reasonable compromise.

No question seems to have been raised as to some of the statutes which were certainly of recent growth, though they touched Church interests. One of these repeated unreservedly the assertion that bishops held a feudal position in all points the same as that of barons or direct vassals of the king, being bound by all their obligations, and entitled to sit with them in judgment in the Curia Regis till it came to a question of blood. Others dealt with disorders which had grown up from the mutual jealousy of Church and lay courts, and the difficulties thus thrown in the way of administering laws which were not disputed; rules were made for the securities to be taken from excommunicated persons; for the giving up to the king of forfeited goods of felons deposited in churches or churchyards; and forbidding the ordination of villeins without their lord's consent,—a provision which possibly was intended to prevent the withdrawal of an unlimited number of people from secular jurisdiction. Two other clauses touched upon the new legal remedies, the use of the jury in the accusation of criminals, and in the decision of questions of property; it was decreed that laymen should not be accused in Church courts save by lawful witness, or by the twelve legal men of the hundred—in other words, by the newly-developed jury of "presentation"; while the jury of "recognition" was ordered to be used in disputed titles to ecclesiastical estates.

The real strife was about the seven remaining statutes, which declared that an accused clerk must first appear before the king's court, and that the justiciar should then send a royal officer with him to watch the trial at the ecclesiastical court, and if he were found guilty the Church should no longer protect him; that the chief clergy might not leave the realm without the king's permission; that appeals might not be carried to the Papal Court without the king's consent; that no tenant-in-chief of the king might be excommunicated without the leave of the king; that the revenues of vacant sees should fall to the king, until a new appointment had been made in his court; that questions of advowsons or presentations to livings questions which at that time represented comparatively a vast amount of property—should be tried in the king's court; and that the king's judges should decide in matters of debt, even where the case included a question of perjury or broken faith, which was claimed as a matter for ecclesiastical jurisdiction. Such laws as these were no doubt in Henry's mind simply part of his scheme for establishing a general order and one undivided authority in the realm. But they opened very much wider grounds of dispute between Church and State than the mere question of how criminal clerks were to be dealt with. They boldly attacked the whole of the pretensions of the Church; they threatened to rob it of a mass of financial business, to wrest from its control an enormous amount of property, to deprive it of jurisdiction in the great majority of criminal suits, to limit its power of irresponsible self-government, and to prevent its absorption into the vast organization of the Church of Western Christendom. They defined the relations of the English Church to the see of Rome. They established its position as a national Church, and declared that its clergy should be brought under the rule of national law.

The eight months which followed the Council of Clarendon were spent in a vain attempt to solve an insoluble problem. Messengers from king and archbishop hastened again and again to the Pope, with no result. Henry set his face like a flint. "Verba sunt," he said to a mediating bishop; "you may talk to me all the days that we both shall live, but there shall be no peace till the archbishop wins the Pope's consent to the customs." Fresh cases arose of clerks accused of theft and murder, but as the personal quarrel between Henry and Thomas increased in bitterness, questions of reform fell into the background. "I will humble thee," the king declared, "and will restore thee to the place from whence I took thee." Thomas, on his part, knew how to awaken all Henry's secret fears. All Europe was concerned in the dispute of king and archbishop. The Pope at Sens, the French king, the "eldest son of the Church," the princes of the House of Blois, as steadfast in their orthodoxy as in their hatred of the Angevin, the Emperor, ready to use any quarrel for his own purposes, were all eagerly watching every turn of the strife. In August Henry was startled by the news that Thomas himself had fled to seek the protection of the Pope at Sens. He was, however, recognized by sailors, and carried back to English shores. Henry immediately dealt his counter-blow. The archbishop was summoned in September to London to answer in a case which John, the marshal, an officer of the Exchequer, had withdrawn from the Archbishop's to the King's Court. Thomas pleaded illness, and protested that the marshal had been guilty of perjury. The king retorted by calling a council for the trial of the archbishop on a charge of contempt of the royal summons. With the insolence of power and the bitter anger of outraged confidence, Henry heaped humiliations on his enemy. The Primate had a right, by ancient custom, to be summoned first among the great lords called to the king's council; he was now merely served with an ordinary notice from the sheriff of Kent to attend his trial. When he arrived at Northampton there was no lodging left free for himself and his attendants. The king had gone out hunting amid the marshes and streams, and only the next morning met the Primate roughly after mass, and refused him the kiss of peace.

In the council which opened in Northampton Castle on Wednesday, 7th October, we see the Curia Regis in the developed form which it had taken under Henry and his justiciar, De Lucy, carrying out an exact legal system, and observing the forms of a very elaborate procedure. The king and his inner council of the great lords, the prelates, and the officers of the household, withdrew to an upper chamber of the castle; the whole company of sheriffs and lesser barons waited in the great hall below till they were specially summoned to the king's presence, crowding round the fire that burned in the centre of the hall under the opening in the roof through which the smoke escaped, or lounging in the straw and rushes that covered the floor. For seven days the trial dragged on, as lawyers and bishops and barons anxiously groped their way through baffling legal problems which had grown out of legislation new and old. Even the king himself, fiery, imperious, dictatorial, clung with a kind of superstition to the forms of legal process. The archbishop asked leave to appeal to the Pope. "You shall first answer in my court for the injury done to John the marshal," said Henry. The next day, Thursday, this matter was decided. Bishops and barons alike, lacking somewhat of the king's daring, shrank at first from the responsibility of pronouncing judgment. "We are laymen," said the barons; "you are his fellow-priests and fellow-bishops, and it is for you to declare sentence." "Nay," answered the bishops, "this is not an ecclesiastical but a secular judgment, and we sit here not as bishops but as barons; if you heed our orders you should also take heed of his." The dispute was a critical one, leading as it did directly to questions about the jurisdiction of the Curia Regis over ecclesiastical persons, and the obligation asserted in the Constitutions of Clarendon, that bishops should sit with barons in the King's Court till it came to a question of blood. The king was seized with one of his fierce fits of anger, and the discussion "immediately ended." The unwilling Bishop of Winchester was sent to pronounce sentence of fine for neglect of the king's summons. Matters then moved quickly. A demand was made for L300 which Thomas had received from Eye and Berkhampstead when he was chancellor; and in spite of his defence that it had been spent in building the palace in London and repairing the castles, judgment went against him. The next day a further demand was made for money spent in the war of Toulouse, and this, too, Thomas agreed to pay, though it was now hard to find sureties. Then the king dealt his last blow. Thomas was required to account for the sums he had received as chancellor from vacant sees and abbeys. "By God's eyes," the king swore, when the Primate and the bishops threw themselves in despair at his feet, he would have the accounts in full. He would only grant a day's delay for Thomas to take counsel with his friends.

By this time there was no doubt of the king's purpose to force upon Thomas the resignation of his archbishopric. The courtiers and lay barons no longer thought it expedient to visit him, and the prelates gave counsel with divided hearts. "Remembering whence the king took you," said Foliot, "and what he has bestowed on you, and the ruin which you prepare for the Church and for us all, not only the archbishopric but ten times as much, if it were possible, you should yield to him. It may be that seeing in you this humility he may yet restore all." To this argument Thomas had curt answer. "Enough—it is well enough known how you, being consulted, would answer!" "You know the king better than we," urged Hilary of Chichester; "in the chancery, in peace and war, you served him faithfully, but not without envy. Those who then envied now excite the king against you. Who dare answer for you? The king has said that you can no longer both be at one time in England—he as king, you as archbishop." Henry of Winchester took his stand on the side of Thomas. "If the authority of the king was to prevail," he argued, "what remains but that nothing shall henceforth be done according to law, but all things shall be disturbed for his pleasure—and the priesthood shall be as the people," he concluded, with a stirring of the churchman's temper. The Bishop of Exeter added another plea to induce Thomas to stand firm: "Surely it is better to put one head in peril than to set the whole Church in danger." Not so, thought the Bishop of Lincoln, "a simple man and of little discretion;" "for it is plain," he said, "that this man must yield up either the archbishopric or his life; but what should be the fruit of his archbishopric to him if his life should cease, I see not." The Bishop of Worcester, son of the famous Robert of Gloucester, and Henry's own cousin and playmate in old days took an eminently prudent course. "I will give no counsel," he said, "for if I say our charge of souls is to be given up at the king's threats, I should speak against my conscience, and to my own condemnation; and if I should advise to resist the king, there are those here who will bring him word of it, and I shall be cast out of the synagogue, and my lot shall be with outlaws and public enemies." At last, by the advice of the politic Henry of Winchester, Thomas offered to pay the king 2000 marks, but this compromise was refused. He urged that he had been freed at his consecration from all secular obligations, but the plea was rejected on the ground that it was done without the king's orders. An adjournment over Sunday was again granted; but on Monday Thomas was ill, and unable to attend the Council. Three days had now passed in fruitless negotiations, and the rising wrath of the king made itself felt. Rumours of danger grew on all sides, and the archbishop prostrated himself before the altar in an agony of prayer, "trembling in his whole body," as he afterwards confessed, less from fear of death than from the more terrible fear of the savage blinding and cruel punishments of those days.

But he showed no signs of yielding when on Tuesday morning, the last day of the Council, the bishops again gathered round him beseeching him to yield to the king's will. With a fierce outbreak of passionate reproaches he solemnly forbade them to take part in any further proceedings against him, and gave formal notice of an appeal to Rome. Then kneeling before the altar of St. Stephen he celebrated mass, using the service for St. Stephen's Day with its psalm, "Princes sat and spake against me,"—"a magical rite," said Foliot, "and an act done in contempt of the king"-and commended himself to the care of the first Christian martyr, and of the martyred Archbishop of Canterbury, Aelfheah. Still arrayed in his pontifical robes, he set out for his last ride to the castle. Of the forty clerks "most learned in the law," who formed his household, only two ventured to follow him; but "an innumerable multitude" of people thronged round him as he passed bearing his cross in his right hand, and followed him to the castle doors with cries of lamentation, weeping and kneeling for his benediction, for it was spread abroad that he should that day be slain. The gates were quickly closed in the face of the tumultuous crowd, and Thomas passed up the great hall, while the king, hearing of his coming in such dress and fashion, hastily withdrew to the upper chamber to take counsel with his officers. "A fool he was, and a fool he always will be," commented Foliot as Thomas entered with his uplifted cross. "Lord archbishop, thou art ill-advised to enter thus to the king with sword unsheathed—if now the king should take his sword, we shall have a well-armed king and a well-armed archbishop!" —"That we will commit to God," said Thomas. Thus he passed to his seat, the troubled and perplexed bishops "sitting opposite to him both in place and in heart."

Meanwhile the king and his inner council, to which the bishops were now summoned, were busy discussing what must be done. Henry's position was one of extreme difficulty, suddenly called on as he was to deal with a legacy of difficulties which had been left from the unsettled controversies of a hundred years. By coming to the court in his pontifical dress Thomas had raised a claim that a bishop could only be tried dressed in full pontificals by his fellow-bishops also in full dress. He had thrown aside the king's jurisdiction by his appeal to Rome; and by his orders to the bishops to judge no further with the barons in this suit he had further violated the "customs" of the realm to which he had himself commanded the bishops to swear obedience at Clarendon. None of the questions raised by Thomas indeed were raised for the first time. William of St. Carileph, when charged by Rufus with treason, had asserted the privilege of a bishop to be tried in pontifical dress, and to be judged only by the canon law in an ecclesiastical court, and had claimed the right of appeal to Rome. But such doctrines were in those days new and somewhat doubtful, not supported in any degree by the Church and quite outside the sympathy of nobles and people, and Lanfranc had easily eluded the Bishop of Durham's claims. Anselm himself had accepted a number of points disputed now by Thomas. He frankly admitted the king's authority in appointing him to the see of Canterbury; he submitted to the jurisdiction of the King's Court; he made no claims to clerical privileges or special forms of trial. He had indeed given the first example of a saving clause in his oath to keep the customs of the kingdom; but the clause he used, "according to God," was radically different from that of Thomas, and asserted no different law of obedience for clerk and for layman. In the reign of Stephen the question of ecclesiastical jurisdiction ad been raised at the trial of Bishop Roger of Salisbury; but in this case too the difficulty had been evaded by a temporary expedient, and the real principle at issue was left untouched. Thomas had in fact taken up a position which had never been claimed by any great churchman of the past. The rising tide of ecclesiastical feeling had swept him on far beyond any of his predecessors. Not even in Anselm's time had the people in an ecstasy of religious fervour pressed to the gate of the judgment hall and knelt for the blessing of the saint with a passion of sympathy and devotion. No problem of such proportions in the relations of Church and State had ever before presented itself to a king of England.