Constitutions of Clarendon
The Constitutions of Clarendon were a set of legislative procedures passed by Henry II of England in 1164. The Constitutions were composed of 16 articles and represent an attempt to restrict ecclesiastical privileges and curb the power of the Church courts and the extent of Papal authority in England. In the anarchic conditions of Henry II's predecessor, Stephen (reigned 1135–54), the church had extended its jurisdiction by taking advantage of the weakness of royal authority. The Constitutions were claimed to restore the judicial customs observed during the reign of Henry I (1100–35) and in predecessor English law (which in turn had incorporated some aspects of the Danelaw) prior to the Catholicism-based Norman Conquest. Predecessor English law was being contemporaneously compiled in the Tractatus of Glanvil.
The Constitutions' primary goal was to deal with the controversial issue of "criminous clerks", or clergy who had been accused of committing a serious secular crime but were tried in ecclesiastical courts by "benefit of Clergy". Unlike royal courts, these ecclesiastical courts were strictly limited in the punishments to which a convicted felon could be subjected; in particular the spilling of blood was prohibited. An ecclesiastical case of murder often ended with the defendant being defrocked (dismissed from the priesthood). In a royal court, murder was often punished with mutilation or death.
The Constitutions of Clarendon were Henry II's attempts to deal with these problems (and conveniently increase his own power at the same time) by claiming that once the ecclesiastical courts had tried and defrocked clergymen, the Church could no longer protect the individual, and convicted former clergy could be further punished under the jurisdiction of secular courts.
It was formerly supposed that Henry wanted all clerks accused of crimes to be tried in the King's Courts. But this impression, as F. W. Maitland showed, is certainly wrong. A rather complicated arrangement was proposed by which cognizance of the case was first to be taken in the King's Court.
If the culprit proved to be a clerk, the case was to be tried in the ecclesiastical court, but an officer of the King's Court was to be present. The officer, if the accused was found guilty, was to conduct him back to the King's Court after degradation, where he would be dealt with as an ordinary criminal and adequately punished.
The king's contention was that flogging, fines, degradation, and excommunication, beyond which the spiritual courts could not go, were insufficient as punishment. The archbishop urged that, apart from the principle of clerical privilege, to degrade a man first and to hang him afterwards was to punish him twice for the same offence. Once degraded, he lost all his rights, and if he committed another crime, he might then be punished with death like any other felon.
Thomas Becket, the Archbishop of Canterbury (1162–1170), resisted the Constitutions, especially the clause concerning "criminous clerks". As a result, Henry put Becket up for trial at Northampton. Becket fled into exile with his family. Bishops were in agreement over the articles until the Pope disapproved and then Becket repudiated his arguments. The controversy resulted, becoming so bitter that Becket was murdered on 29 December 1170. After this Henry felt compelled to revoke the two controversial clauses, which went against canon law. However, the rest stayed in effect as law of the land.
The forces at the back of St. Thomas represented not only the respect which men feel for a bold fight for principle, but also that blind struggle against the hideous punishments of the age, of which the assertion of ecclesiastical privilege, covering widows and orphans as well as clerks and those that injured them, was a natural expression.
- F. W. Maitland, Roman Canon Law in the Church of England: six essays (London, 1898), pp. 132–147.
- W. H. Hutton, Social England, vol. I, p. 394.
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