Friday, 29 November 2013

The British Magazine (1833-4): Froude's Articles on Henry II's Plan to Unite Church and State in England


In 1833-4 a series of articles written by Richard Hurrell Froude appeared in the journal, The British Magazine: In these articles Froude proposed a theory that Henry II's appointment of Thomas Becket his favourite and chancellor to the post of archbishop of Canterbury, and Constitutions of Clarendon themselves, were part of a programme of his to bring the Church and the clerics under a single, his, the king's discipline, and were all steps in a greater reform plan of his to unite Church and State in England under his kingship. He nearly pulled it off. Only Becket stood alone against his project.




Editors: Hugh James Rose; Samuel Roffey Maitland (1834). The British Magazine and Monthly Register of Religious and Ecclesiastical Information, Parochial History, and Documents Respecting the State of the Poor, Progress of Education, Etc. J. Petheram. pp. 11–.

Editors: Hugh James Rose; Samuel Roffey Maitland (1834). The British Magazine and Monthly Register of Religious and Ecclesiastical Information, Parochial History, and Documents Respecting the State of the Poor, Progress of Education, Etc. J. Petheram. pp. 655–.
Earlier articles on Thomas Becket which are referred to in the above:

Editors: Hugh James Rose; Samuel Roffey Maitland (1832). The British Magazine. John Turrill. pp. 233–.

Editors: Hugh James Rose; Samuel Roffey Maitland (1832). The British Magazine. John Turrill. pp. 453–
Editors: Hugh James Rose; Samuel Roffey Maitland (1833). The British Magazine. John Turrill. pp. 31–.

Editors: Hugh James Rose; Samuel Roffey Maitland (1833). The British Magazine. John Turrill. pp. 140–.

Editors: Hugh James Rose; Samuel Roffey Maitland (1833). The British Magazine. John Turrill. pp. 399–411.

Editors: Hugh James Rose; Samuel Roffey Maitland(1833). The British Magazine. John Turrill. pp. 525–34.

References

 These articles were later assembled and published together in a single book, the following work:-

Richard Hurrell Froude; James Bowling Mozley (1839). Remains of the Late Reverend Richard Hurrell Froude: v. 2. History or the contest between Thomas à Becket, archbishop of Canterbury, and Henry II, king of England, chiefly consisting of translations of contemporary letters. History Of The Contest Between Thomas A Becket, Archbishop Of Canterbury, And Henry Ii., King Of England;. J. G. & F. Rivington.

The Church of England Quarterly Review. William Pickering. 1840. pp. 335–.
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Historical Notes on Clause 4: Restrictions on Travel Abroad for Clerics

Clause 4 of the Constitutions of Clarendon states:

Archiepiscopis episcopis et claris personis regni, non licet exire a regno absque licentia domini regis; et si exierint, si regi placuerit, securum eum facient quod nec in eundo nec in redeundo vel moram faciendo perquirent malum sive damnum domino regi vel regno.

It is not permitted the archbishops, bishops, and priests of the kingdom to leave the kingdom without the lord king's permission. And if they do leave they are to give security, if the lord king please, that they will seek no evil or damage to king or kingdom in going, in making their stay, or in returning.

This clause seems to have been lifted [repealed] in Magna Carta 1215


CHAPTER FORTY–TWO. - Misc (Magna Carta), Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction [1215]


Clause 42

Liceat unicuique de cetero exire de regno nostro, et redire, salvo et secure, per terram et per aquam, salva fide nostra, nisi tempore gwerre per aliquod breve tempus, propter communem utilitatem regni, exceptis imprisonatis et utlagatis secundum legem regni, et gente de terra contra nos gwerrina, et mercatoribus de quibus fiat sicut predictum est.

It shall be lawful in future for any one (excepting always those imprisoned or outlawed in accordance with the law of the kingdom, and natives of any country at war with us, and merchants, who shall be treated as is above provided) to leave our kingdom and to return, safe and secure by land and water, except for a short period in time of war, on grounds of public policy—reserving always the allegiance due to us.

However this clause was omitted from the re-issue of Magna Carta in 1216.

And

In 1352 Edward III. had it proclaimed throughout every county of England that no earl, baron, knight, man of religion, archer, or labourer, should depart the realm under pain of arrest and imprisonment. 
[Close Roll of 25 Edward III]

Also 5 Ric. II (1381/2) st.1 c 2 enacts that no one, of laity or clergy, upon pain
of confiscation of property, may go forth from the realm without the king's
leave, excepting seigneurs et autres grantz persones del roialme, great mer-
chants and king's soldiers.Also Cf.further 12 Ric. II (1388) c 15, which, however, is
only directed against leaving the land to obtain papal provisions : Item qe nulle
liege du Roy de quel estat ou condicion q'il soit greindre ou meindre passe le
meer nenvoie hors du roialme Dengleterre par licence ou sanz licence, sans
especial congie du Roy mesmes, por soy providre ou purchacer ascun benefice.

Also 25 Hen. VIII (1533/4) c 21 s 14: Nor that any, person religious or other
resiant in any the Kynges Domynyons shall fromvhensforth departe out of the
Kynges Domynyons to or for any visitacion congregacion or assemble for Re-
ligeon, but that all suche visytacyons congregatyons and assembles shal be
within the Kynges Domynyons. 

Nottingham Law Journal 2011 Volume 20 p. 26
www.ntu.ac.uk-nls-document_uploads-112698.pdf

In 20 Nottingham L.J. 14 (2011)
Abolishing Obsolete Crown Prerogatives relating to the Military by Graham McBain.
 
Prerogative To Prohibit Subjects From Going Abroad
...
the Crown can still prohibit subjects from leaving the UK, and that it need give no reason. Further, that it is a crime – contempt of the sovereign – for a subject to disobey
...

And

Sir Edward Coke in 1669 called the assembly at Clarendon a Parliament and this clause a declaration of part of the Common Law of the Land.

References

Great Britain (1762). "5 Rich II (1381/2) st.1 c.2". Statutes at Large. p. 236.

Great Britain (1870). "12 Rich II (1388) c. 15". The Statutes. Eyre & Spottiswood. p. 238.

Great Britain (1817). The Statutes of the Realm. Dawsons of Pall Mall. pp. 469–.

Makower, Felix, (1895) The constitutional history and constitution of the Church of England 
http://archive.org/details/cu31924029446584
Pages 239-40

Charles Henry Alexandrowicz (1970). Grotian Society Papers 1968: Studies in the History of the Law of Nations. Professor Daniel Turack: Early English Restrictions To Travel: Brill Archive. pp. 136–.

 Sir Edward Coke (1669). The Third Part of the Institutes of the Laws of England: Concerning High Treason, and Other Pleas of the Crown, and Criminal Causes. A. Crooke. pp. 178–81.

Robert Henry; Malcolm Laing (1788). The History of Great Britain, from the First Invasion of it by the Romans Under Julius Cæsar. Supremacy of William I over Church: A. Strahan; and T. Cadell. pp. 278–.

Everett U. Crosby (2013). The King's Bishops: The Politics of Patronage in England and Normandy, 1066-1216. Archbishop Theobald in 1148: Palgrave Macmillan. pp. 30–. ISBN 978-1-137-35212-5.


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Wednesday, 27 November 2013

Historical Notes on Clause 8: Appeals to the Pope

Clause 8 states

De appellationibus si emerserint, ab archidiacono debent procedere ad episcopum, ab episcopo ad archiepiscopum, et, si archiepiscopus defuerit in justitia exhibenda, ad dominum regem perveniendum est postremo, ut praecepto ipsius in curia archiepiscopi controversia terminetur, ita quod non debet ultra procedere absque assensu domini regis.

As to appeals which may arise, they should pass from the archdeacon to the bishop, and from the bishop to the archbishop. And if the archbishop fail in furnishing justice, the matter should come to the lord king at the last, that at his command the litigation be concluded in the archbishop's court; and so because it should not pass further without the lord king's consent.

No appeals could be made to the pope out of England before the reign of king Stephen, when they were first introduced by Henry de Blois, bishop of Winchester, the pope's legate. Before that time any such attempt was rigorously opposed by the king. For example, a complaint was made by the pope to Henry I that he did not allow any appeals to be made to him. Before then, during the time of William Rufus  the bishops and barons strongly advised Anselm against doing it - to go to Rome without the king's consent on an appeal to the pope [see below].

Appeals were ceded during the reign of king Stephen, but the ban was resumed again under his successor, Henry II, by the Constitutions of Clarendon by the procedure described in clause 8, which provided that all causes could be settled within the kingdom.

Later on, during the reigns of Edward the First, the Second and Third a number of persons were imprisoned for making such appeals to Rome without the king's consent.

It was believed in the later Middle Ages that England was an independent sovereign nation with a monarch answerable only to God, in medieval parlance an empire, self-contained and sovereign.

Later on, during the reign of Henry VIII, various Acts of Parliament were passed absolutely forbidding any appeals to the pope in Rome, thereby upholding the general principle laid down in the Constitutions of Clarendon. The King was now the final legal authority for all religious matters in England and Wales.

References
Richard Burn (1763). Ecclesiastical Law. Appeals to the Pope in Rome: H. Woodfall and W. Strahan, and sold by A. Millar. pp. 41–.

Richard Burn (1788). Ecclesiastical Law. A. Strahan and W. Woodfall. pp. 52–9.

William Stubbs. Chronicles of the Reigns of Edward I and Edward II. Cambridge University Press. pp. 37–. ISBN 978-1-108-05142-2.

It was believed in the later Middle Ages that England was an independent sovereign monarchy answerable only to God: in mediaeval parlance an empire, self-contained and sovereign.
Noel Cox (2013). Constitutional Paradigms and the Stability of States. Ashgate Publishing, Ltd. pp. 119–. ISBN 978-1-4094-9797-4. "Footnote 108" 




Statutes of the Realm
https://archive.org/stream/statutes00britgoog#page/n358/mode/1up

Great Britain (1762). "Statue of Carlisle 1307: Forbidding the Sending of Monies to the Foreign Parent Institutions of Religious Establishments". The Statutes at Large: From the Magna Charta, to the End of the Eleventh Parliament of Great Britain, Anno 1761 [continued to 1806]. J. Bentham. pp. 326–.
The Law Library. J.S. Little. 1840. p. 27.

Waugh, W.T. (1922). "The great Statute of Praemunire". English Historical Review 37: 173–205.


Studies in the History of the Law of Nations
1970, pp 136-165
Early English Restrictions to Travel
Prof. Daniel Turack


 Anselm

In 1097, after William had put down a Welsh rebellion Anselm was charged with having not sent sufficient knights from his barony for the campaign and tried to fine him. Anselm wanted to appeal to Rome about this and seek the pope's advice because William had not fulfilled his promise of Church reform, but William did not assent. Either Anselm submiitted totally to the king's will on this or he faced exile.

When pressed in court to surrender his right of appeal to Rome, Anselm answered with the following: "You wish me to swear never, on any account, to appeal in England to Blessed Peter or his Vicar; this, I say, ought not to be commanded by you, who are a Christian, for to swear this is to abjure Blessed Peter; he who abjures Blessed Peter undoubtedly abjures Christ, who made him Prince over his Church."


Thomas Flanagan (1857). "Chapter XX :Anselm's Contest with king William Rufus". A History of the Church in England: From the Earliest Period, to the Re-establishment of the Hierarchy in 1850. Dolman. pp. 275–.


Henry de Blois

Henry of Blois, bishop of Winchester had objected to king Stephen for having arrested bishops and confiscating their property, as this was in breach of canon law. As papal legate to England Henry summoned a church council in 1139, to Winchester for Stephen to explain his behaviour. Both sides threatened excommunication and each stated they would appeal to Rome and the papacy for support.

Henry de Blois Oxford DNB


Appeals to Rome
John Inett (1855). Origines Anglicanæ: or, A history of the English Church, from the first planting of the Christian religion amongst the English Saxons (till the death of king John), 2 vols. 2 vols. [in 3].. pp. 241–.
...
 And so far was the church of England from allowing the bishops of Rome to rehear a cause which had been determined in its provincial councils, much less to remove a cause from thence by appeal, that it appears from the council of Clarendon, that there was no appeal from the archbishops but in some cases to the courts of the kings; but on the contrary it was received as a part of the law of England, that no bishop could go out of England without the king's leave, and that the bishop of Rome could send no legate into England but upon the king's particular desire. And this was so manifest, that at the agreement betwixt Henry the First and pope Calixtus at Gisors in France that prelate consented to this as the right of the crown of England. And if the bishop of Rome had no power to call a bishop to Rome, nor send a legate to take cognizance of any matter in England, it will be past a doubt that the aforesaid canons of Sardice were never received in England, at least not in that sense which is pretended to by some men. And as this shows us how steadily the church of England acted up to the council of Nice without suffering any foreign power to break in upon it, so the long controversy about the legatine power will in its proper place lead us to consider when and how these measures came to be changed.

Legatine Council of London c. 18th March 1151

Charles Purton Cooper (1850). Pamphlets. Stevens. pp. 2–.

Henry of Huntingdon (1879). Historia Anglorum. The History of the English from AC 55 to AD 1154: In Eight Books. Cambridge University Press. pp. 282–. ISBN 978-1-108-05141-5.
Rolls Series 74 ed Thomas Arnold

Chronicler Henry of Huntingdon [Archdeacon] writes

In Anglia namque appellationes in usu non erant, donec eas Henricus wintoniensisl dum legatus esset, malo suo crudeliter intrusit. ln eodem namque concilio ad Romani pontificis audientiam ter appellatus est. 

"appeals to Rome had not been the custom in England before the legateship of Henry of Winchester."

This Council was the occasion of three appeals to Rome.



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Tuesday, 26 November 2013

Republic of Ireland Statute Law Revision Act, 2007

It is significant to note that the Republic of Ireland passed a law in 2007 revoking and repealing the entire set of laws enacted in the Constitutions of Clarendon of 1164, among others of ancient standing

See Republic of Ireland: Statute Law Revision Act 2007


List of Repeals

1154 (1 Hen. 2)
Charter on confirmation of liberties
1164 (10 Hen. 2) Constitutions of Clarendon [1]
Observance of customs, liberties and privileges of the realm
1164 (10 Hen. 2) Constitutions of Clarendon [2]
Prohibition on churches being granted in perpetuity
1164 (10 Hen. 2) Constitutions of Clarendon [3]
Jurisdiction of King's courts and ecclesiastical courts
1164 (10 Hen. 2) Constitutions of Clarendon [4]
Absence from the realm for clergy
1164 (10 Hen. 2) Constitutions of Clarendon [5]
Excommunications and the chance of absolution
1164 (10 Hen. 2) Constitutions of Clarendon [6]
Laymen not be accused save by accredited and lawful accusers and witnesses in the presence of the bishop
1164 (10 Hen. 2) Constitutions of Clarendon [7]
Application to the lord King if any of his officials are to be excommunicated
1164 (10 Hen. 2) Constitutions of Clarendon [8]
Excommunication appeals
1164 (10 Hen. 2) Constitutions of Clarendon [9]
Disputes between clerks and laymen
1164 (10 Hen. 2) Constitutions of Clarendon [10]
Applications to the chief officer of the lord King in that town before excommunication
1164 (10 Hen. 2) Constitutions of Clarendon [11]
Archbishops, bishops and all beneficed clergy to observe and perform all royal rights like barons
1164 (10 Hen. 2) Constitutions of Clarendon [12]
Vacancies in archbishoprics or bishoprics
1164 (10 Hen. 2) Constitutions of Clarendon [13]
Bringing magnates of the realm to justice
1164 (10 Hen. 2) Constitutions of Clarendon [14]
Chattels under forfeiture to the King may not be retained by any church
1164 (10 Hen. 2) Constitutions of Clarendon [15]
Pleas of debt to lie in the justice of the King
1164 (10 Hen. 2) Constitutions of Clarendon [16]
Sons of villeins ought not to be ordaine
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Monday, 25 November 2013

Excommunications at Clairvaux April-May 1169

Becket once again used his favourite, but fierce spiritual weapon, drawing the sword of St. Peter, on those parties who were acting against his cause and the Church. This was the way that he considered best for conducting his campaign whilst he was in exile. This time, whilst at Clairvaux, on Palm Sunday 1169 he excommunicated the following ten persons

Gilbert Foliot, bishop of of London for disobedience and contumacy

and others:

Bishop Jocelin of Salisbury, Earl Hugh, Ranulf de Broc, Thomas FitzBernard, Robert de Broc, clerk, Hugh of St. Clare, Letard, clerk of Norhfleet, Nigel de Sackville, Richard brother of William of Hastings.

As it was necessary to publish the names of the excommunicates in their home dioceses in order for the punishment to take effect, Becket used a messenger to smuggle his letters ordering these excommunications into England past the king's special guards at the channel ports. The king had posted several watchmen at all the major ports. These were on the outlook for just such letters. That messenger, who was called Berengar, was assisted by a William Bonhart who acted as witness to the publication of the excommunications. Berengar took an extremely grave risk when doing this, as his deed would have been considered by the king as nothing short of treason.

References

Materials for the History of Thomas Becket. Volume 6 p. 583
Excommunication of Gilbert Foliot and Others, Palm Sunday 13th April 1169
https://archive.org/stream/materialsforhist06robe#page/557/mode/1up
MTB 488 [CTB 195]

 Materials for the History of Thomas Becket, Volume 6, p. 601
Names of the Excommunicates, ca 25 Dec 1169
https://archive.org/stream/materialsforhist06robe#page/601/mode/1up
MTB 507 [CTB 262, Giles 386]

Materials for the History of Thomas Becket, Volume 7, p. 111
Archbishop Thomas to Richard, Bishop of Coventry, after 18th November 1169
https://archive.org/stream/materialsforhist07robe#page/n134/mode/1up
MTB 578 [CTB 253]

John Morris (1859). The life and martyrdom of saint Thomas Becket archb. of Canterbury. Longman, Brown. pp. 204–6.

James Craigie Robertson; Thomas Becket (st., abp. of Canterbury.) (1859). Becket, archbishop of Canterbury, a biography. pp. 218–23.

 Historical Introduction to the Rolls Series. Ardent Media. pp. 61–2.

W.H. Hutton (1899) Thomas Becket, Archbishop of Canterbury pp. 199-202
https://archive.org/stream/sthomascanterbu02huttgoog#page/n213/mode/1up

W.H. Hutton (1910) Thomas Becket, Archbishop of Canterbury pp. 217-21
https://archive.org/stream/thomasbecketarch00huttuoft#page/217/mode/1up

Michael Staunton (7 December 2001). The Lives of Thomas Becket. Manchester University Press. pp. 164–. ISBN 978-0-7190-5455-6.

Saint Thomas (à Becket) (2000). "Letter 195: Archbishop Thomas of Canterbury  to Dean, Archdeacon and Clergy and People of London. Clairvaux April 1169". The Correspondence of Thomas Becket, Archbishop of Canterbury, 1162-1170: Letters 176-329. Volume 2. Oxford University Press. pp. 851–. ISBN 978-0-19-820893-8.

 The Correspondence of Thomas Becket, Archbishop of Canterbury, 1162-1170: Letters 176-329. Volume 2. CTB 262 Nomina Excommunicatorum c 25th December 1169: Clarendon Press. 2000. pp. 1128–. ISBN 978-0-19-820893-8.

 Frank Barlow (1990). Thomas Becket. University of California Press. pp. 184–7. ISBN 978-0-520-07175-9.

 James J. Spigelman (2004). Becket & Henry: The Becket Lectures. James Spigelman. pp. 196–9. ISBN 978-0-646-43477-3.
Court, household, and itinerary of King Henry II. R. W. Eyton (
https://archive.org/stream/cu31924083944029#page/n139/mode/1up

Excommunication




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