Assize of Clarendon

Assize of Clarendon, The.—A name improperly applied to the Council held at Clarendon, January 25, 1164, where Henry II required St. Thomas Becket and the English bishops to subscribe sixteen "Constitutions", alleging them to be customs of the realm. One gave into the King's hands the custody of vacant sees and abbeys and made election to them dependent on his license and assent. The second and seventh provided that the King's justices should, in every suit to which an ecclesiastic was a party, determine whether the cause was spiritual or secular; if the former, that a royal officer should be present in the bishop's court where it was tried; and that on conviction the defendant, in a criminal action, should be handed over to the secular arm for punishment. By the third no King's officer was to be excommunicated, or his lands interdicted, without application to the Crown. The fourth required royal leave before any Church dignitary might pass beyond sea, i.e. to Rome. The fifth allowed no appeals to the Pope except the King suffered them. All causes, however spiritual, were to be terminated in England. Of these enactments, the first violated Henry I's Charter, King Stephen's confirmation of the Church's liberties, and Henry II's own previous statutes. That one which relates to "criminous clerks" has been variously interpreted, but its meaning is not doubtful. Henry II was aiming at a systematic encroachment on the popular and religious jurisdiction. In Saxon times the Archdeacon sat in the same court with lay judges. William the Conqueror forbade this custom and established separate "Courts Christian", which, however, neither derived their authority from the civil power nor went by its rules. They dealt with all cases involving clerics, i.e. persons who had received the tonsure. They could not pronounce a sentence of blood. Their penalties were "for the salvation of souls", and the most severe for an ecclesiastic was to be degraded from his order. Abuses followed this milder jurisdiction. Henry II, it appears, was intent on setting up in his kingdom a procedure which the old imperial law exhibited, and which Gratian's "Decretum" quotes (C. II, q. I; c. 18, c. 31). "Curia traderet puniendos", said an edict of the Emperor Arcadius received into the Theodosian Code, touching unworthy clerics. To similar effect Innocent III: after degradation, certain clerks were to be given up for punishment to the secular power (Regesta Innoc. III, i, 574; II, 268; ed. Baluze). But such a practice had never been the English custom. St. Thomas argued that deprivation was penalty sufficient, however grave the offense; and that no man ought to be punished twice, as he would be if the civil magistrate took in hand the guilty party after he was condemned. Henry did not affect to be God's Vicar in spirituals. Yet his constitutions infringed the liberties which English clerks (clerics) had enjoyed, as well as sometimes abused. By cutting off appeals to Rome he was anticipating the Tudor legislation. The Church courts were superior to the royal in matters of learning, procedure, and justice. Their popularity was not undeserved. Excommunication of great officers in an age of violence was often the sole weapon against tyranny. St. Thomas, in resisting the constitutions, had precedent on his side. But Henry never can have meant to abolish the privilegium fori, even where a clerk had broken the criminal law. Such a clerk was to plead (respondere) before lay judges; to be tried, condemned, degraded in the spiritual court; and then to be chastised by royal authority. Hence Alexander III's hesitation to support the Archbishop becomes intelligible. The Pope did, it is true, in 1166, confirm his action; and in 1176, when St. Thomas had been canonized, a partial agreement took place at Northampton between the King and the Holy See, represented by Cardinal Pietroleone. Clerks who broke the Forest Laws, or held feudal tenures, were made subject to the lay courts. The Constitutions of Clarendon were not directly repealed. But in Magna Charta the first article guarantees, without specifying them in detail, the liberties of the Church, "almost in the form", says J. A. Froude, "in which Becket himself would have defined them". It may be added that the real Assize of Clarendon, in 1166, laid down instructions for judges on circuit and instituted trial by jury, but was altogether distinct from the assembly at which St. Thomas underwent his great temptation. (See Immunities, Clerical; Thomas Becket, St.)

Wilkins, Leges Saxonorum, 321; Lingard, Hist. Eng., II; Stubbs, Hist. Appendix to Ecclesiast. Courts Commission; Freeman, Norman Conquest; Froude, Life and Times of Thomas à Becket, in Short Studies, II; Maitland, Roman Canon Law in Ch. of England (London).

William Barry