Wednesday, 8 October 2014

Council of Clarendon (1164) according to Herbert of Bosham,

James Craigie Robertson. Materials for the history of Thomas Becket Vol. 3 pp. 278-89
Liber III Capitulae 28-9

Herbertus de Boseham (1845). Opera ... omnia (etc.). Parker. pp. 103–.

University of Zurich - Corpus Corporum
Patrologia Latina -Tomus 190 col 1136D 
http://goo.gl/e4zfej

Saint Thomas (à Becket); Herbertus (de Boseham); Jacques Paul Migne (1854). S. Thomae Cantuariensis archiepiscopi et martyris nec non Herberti de Boseham clerici ejus a secretis opera omnia. Migne. pp. 3–.

John Allen Giles (1846). The Life and Letters of Thomas à Becket: Now First Gathered from the Contemporary Historians. Whittaker and Company. pp. 217–.

Translation
Council of Clarendon by Herbert of Bosham
Book 3 Chapters 28-9
David Charles Douglas; George William Greenaway (28 December 1995). English Historical Documents, 1042-1189. EHD 127: Psychology Press. pp. 841–. ISBN 978-0-415-14367-7.

Fisher, M. Ann Kathleen, "An Annotated Translation of the Life of St. Thomas Becket By Herbert Bosham (Part Two)" (1947).
Master's Theses. Paper 171. pp. 66-81
http://ecommons.luc.edu/luc_theses/171

Fisher, M. Ann Kathleen, "An Annotated Translation of the Life of St. Thomas Becket By Herbert Bosham (Part Two)" (1947).
Master's Theses. Paper 171.
http://ecommons.luc.edu/luc_theses/171
28. ~ Archbishop Is Called To Clarendon - Page 66
29. ~ Demands of the Constitutions - Page 68
30. ~ The Sadness and Grief of the Archbishop - Page 81
31. ~ The Archbishop is Absolved By The Apostolic See Page 87



Some Additional References

John Allen Giles (1846). The Life and Letters of Thomas À Becket: Now First Gathered from the Contemporary Historians. Whittaker and Company. pp. 218–.

John Morris (1885). The Life and Martyrdom of Saint Thomas Becket. Burns and Oates. pp. 102–.

Richard Barber (2003). Henry Plantagenet. Chronology of the Council of Clarendon: Boydell Press. pp. 243–. ISBN 978-0-85115-993-5.

David Charles Douglas; George William Greenaway (1996). English Historical Documents, 1042-1189. EHD 127: Psychology Press. pp. 841–. ISBN 978-0-415-14367-7.

Hutton (1899)

James J. Spigelman (2004). Becket & Henry: The Becket Lectures. James Spigelman. pp. 127–. ISBN 978-0-646-43477-3.

Foliot Letter 194 Multiplic Nobis

Henry II's reissue of the Decrees of the council of Lillebonne, 1162

At the Council of Lillebonne [Concilium apud Julianbonam]  in Normandy presided over by Duke William the Bastard [aka the Conqueror] held at Whitsunday [Pentecost] in 1080 a long list of ecclesiastical canons applicable to the Duchy of Normandy were passed. These decrees pertain to the governing of the dukedom Normandy and define the respective rights of the Duke and the bishops. Many describe the limits to the legal powers of the bishops.

These are listed in Orderic Vitalis' Historia.

They were confirmed and re-issued by Henry I King of England [also Duke of Normandy] in 1107.

And again by Henry II on 25th  February 1162.


Raymonde Foreville writes about this latter

Raymonde Foreville (1943). L'église et la royauté en Angleterre sous Henri II Plantagenet (1154-1189). Bloud & Gay. p. 144.

...
Bref, certaines des coutumes de Clarendon reprennent des dispositions remontant à Henri Ier et même à Guillaume Ier, incontestablement éta­blies dans la pratique normande ; l'ensemble de la charte de 1164 s'inspire de l'idée de suprématie royale en germe dans les canons de Lillebonne et de la notion de paix du roi habilement substituée à celle de trêve de Dieu.
...

In short, some of the customs of Clarendon reproduce provisions which date back to Henry I and even William I, unquestionably the established practice in Normandy; the entire charter of 1164 [Constitutions of Clarendon] was inspired by the idea of ​​royal [ducal] supremacy which is to be found in embryonic form in the canons of Lillebonne and the concept of the King's Peace and the way in which this cleverly superseded the Truce of God.


References

Louis Ellies Du Pin; William Wotton (1698). A new history of ecclesiastical writers. The Council of Lillebonne 1080 AD: Printed for Abel Swalle and Tim. Childe. pp. 119–.


Ordericus Vitalis (trans Thomas Forester 1853 The ecclesiastical history of England and Normandy Volume II p. 124

Ordericus Vitalis; François Guizot (1826). Histoire de Normandie. Lillebonne 1080: Mancel. pp. 306–.

Pierre Chaplais
Journal of the Society of Archivists
Vol. 4, Iss. 8, 1973


Archives nationales (France); Alexandre Teulet; Joseph de Laborde; Élie Berger, Henri-François Delaborde (1863). Layettes du Trésor des chartes. H. Plon. pp. 101–.

Further References

Marjorie Chibnall (1996). The World of Orderic Vitalis: Norman Monks and Norman Knights. Boydell & Brewer. pp. 192–. ISBN 978-0-85115-621-7.

Christopher Nugent Lawrence Brooke (1976). Church and Government in the Middle Ages: Essays Presented to C. R. Cheney on His 70th Birthday. Cambridge University Press. pp. 15–. ISBN 978-0-521-21172-7.

Michael Gervers (2002). Dating Undated Medieval Charters. Boydell & Brewer Ltd. pp. 105–. ISBN 978-0-85115-924-9.

Pierre Chaplais (1981). Essays in medieval diplomacy and administration. Hambledon Press. ISBN 978-0-9506882-2-0.

Christopher Nugent Lawrence Brooke (1976). Church and Government in the Middle Ages: Essays Presented to C. R. Cheney on His 70th Birthday. Cambridge University Press. pp. 26–. ISBN 978-0-521-21172-7.

W. L. Warren (1977). Henry II. University of California Press. pp. 95–. ISBN 978-0-520-03494-5.


A Collection of Anglo-Norman Councils
Brett, Martin
The Journal of Ecclesiastical History
Volume 26 / Issue 03 / July 1975, pp 301-308
http://dx.doi.org/10.1017/S0022046900046315




Sunday, 5 October 2014

Richard of Ilchester


References

Richard of Ilchester (DNB00) - Wikisource

Richard of Ilchester - Wikipedia

Richard of Ilchester, Royal Servant and Bishop
Charles Duggan
Transactions of the Royal Historical Society
Fifth Series, Vol. 16, (1966), pp. 1-21
http://www.jstor.org/stable/3678792


Richard of Ilchester - DNB

Everett U. Crosby (2013). The King's Bishops: The Politics of Patronage in England and Normandy, 1066-1216. Palgrave Macmillan. pp. 162–. ISBN 978-1-137-35212-5.

B. Tierney (19 July 2012). Authority and Power. Cambridge University Press. pp. 66–. ISBN 978-1-107-40456-4.


Actes Du Colloque International de Sedieres. Charles Duggan: Bishop John and Archdeacon Richard of Poitiers. Their roles in the Becket Dispute and its Aftermath: Editions Beauchesne. pp. 71–.












Friday, 3 October 2014

Have the Constitutions of Clarendon ever been repealed?

Technically and legally the Constitutions of Clarendon might still have the force of law in England. The Constitutions of Clarendon was a medieval statute drawn up under royal authority in the Kingdom of England before Parliament was formally established as the principal central consultative/legislative body of the country. They are not strictly an Act of Parliament, but they do have every attribute of being an Act of Parliament, like the statutes of a later period: they were compiled in written form, they were submitted in consultation and for approval to a Great Council, an assembly of all the magnates and prelates of the Kingdom held at Clarendon and in the presence of the King. And they did become law of the land enforceable by the king's justices, in his courts and thus became judge-made common law, even if Becket denounced them and the Pope condemn many of the clauses. It seems, however, they have never been formally repealed. That is, under the principle that only Parliament can undo what Parliament has enacted, they have never been brought before any subsequent Parliament, or assembly of the Great Council for repeal. In consequence they are still law of the land. And indeed many laws passed by Parliament in the subsequent centuries seem only to re-inforce many of the clauses in the Constitutions of Clarendon anyway.

According to Matthew Hale the Constitutions of Clarendon are considered to be a Statute or Act of Parliament, that was made before the "Time of Memory". That is there are no strict authenticated records of its enactment, but only transcripts of the proceedings, as recorded by ancient chroniclers, or other books and manuscripts.  Being a Thing done before the "Time of Memory", The Constitutions of Clarendon obtain at this Day no further than as by Usage and Custom they are, as it were, engrafted into the Body of the Common Law [of England], and made a Part thereof.

Reconciliation with the church at Avranches 1172:
In the year 1172, Henry makes certain concessions to the pope, five in number, apparently, though Lord Lyttleton seems to think not in reality, contrary to the “ Clarendon Constitutions," and is thereupon reconciled and absolved for whatever part he might have taken in the murder of the archbishop.
He swore an oath

He also made oath that he would utterly abolish the customs
which had been introduced in his time to the prejudice of the
churches of his kingdom.
He seems not to have kept this oath, beyond not applying or using the Constitutions of Clarendon in any case. while he was alive



Extract from a letter written just after the Compromise of Avranches

Materials for the history of Thomas Becket, Vol. 7 pp. 522
Epistola 775: Quoniam desiderare vos
Albert and Theodwin, cardinals to William, archbishop of Ravenna
Gilbert Foliot (1845). Epistolæ. J. H. Parker. pp. 125–
...
Relaxavit praeterea episcopos de promissione, quam ei fecerant de consuetudinibus et promisit quod non exiget in futurum.
...
...
He [Henry II] has also released the bishops from the promise which they made to him as to observing the customs, and has promised that he will not exact this in
future.

In

George Payne Rainsford James (1841). A History of the Life of Richard Cœur-de-Lion, King of England. Saunders and Otley. pp. 382–.

These are distinctly the terms and conditions which were proposed by the legates, and accepted by Henry; and it will be remarked, that therein there is not one word in regard to the abolition of anything but the new customs which had been introduced in that monarch's own time. * Now the constitutions of Clarendon, had been declared by the Parliament of England, the Bishops, Abbots, and the Barons of the kingdom, to be the ancient laws of the land, and Henry had always maintained that they were the same which had been in force in the time of his grandfather, Henry the First. By this agreement, therefore, he gave up not one single point of that policy to which he had invariably adhered.

Footnote 

*It is distinctly stated, in the letter of the Cardinals themselves, and in all the contemporary historians, I believe without more than one exception, that the only customs which Henry promised to abolish, were the new customs which had been introduced in the Church in his own times. Hoveden, who seems from the way in which he describes the document, to have seen it, if not to have been present when the act took place, distinctly marks, that they were only the new customs introduced in his own time; Gervase has the same clause distinctly; and Diceto, who was present at very many of the acts which I have detailed, though he varies the language, keeps the meaning quite clear. The only one who differs from this account, is the Monk Alanus, who represents Henry as promising unreservedly to repeal the constitutions of Clarendon.

In 


a correspondent, E.C. Harrington of St. David's Exeter wrote

Reeves, in his "History of English Laws," says, that "none of the concessions made by Henry to the pope were enacted by authority of parliament, during any part of his reign; nor did he himself observe them, except in not compelling criminal clerks to appear before a lay judge, and in exempting them in all cases from the trial by duel.  In fact, as we shall see, in considering "the Clarendon Constitutions," the article above alluded to was annulled by the council at Northampton four years after, A.D. 1176, by the renewal and confirmation of the "Constitutions of Clarendon."

In other words do the laws enacted by a properly constituted Parliament of the time held at Clarendon summoned by the King to Clarendon in January 1164 still stand as part of the Laws of England?  Henry II and no subsequent king seems ever to have submitted any of the concessions that Henry II made to the Pope or to his legate to a Parliament of his magnates and prelates for scrutiny, to consider or act upon.


James Anthony Froude (1885). Life and Times of Thomas Becket. C. Scribner. p. 149
states:-
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 in which Becket himself would have defined them".
But Magna Carta has itself largely been repealed. Clause 1 is still law, but does not define specifically what the "liberties of the church" are.

Indeed the Republic of Ireland deemed it necessary specifically to repeal these "Laws" recently in their own legislation.





Thus we see the Constitutions of Clarendon, drawn up to the disadvantage of the Clergy, were all Repeal'd. If 'tis Objected they were Enacted in Parliament, and voided only by the Royal Authority, To this it may be answer'd, such single Authority seems sufficient: For then, as Glanvil Reports, who was Chief Justice in that Prince's Reign, the King's Pleasure was a Law, and the whole Legislature lay in the Crown.

and

Jeremy Collier (1840). An Ecclesiastical History of Great Britain, W. Straker. pp. 325–.

And when the Constitutions of Clarendon were repealed, which was done soon after Becket's death ...

But

Europe During the Middle Ages: 1. Baudry's european library. 1840. pp. 431–.

States that that reference to Glanvil was a "false quotation". 

Bracton states the following

See

Ernst Hartwig Kantorowicz (1997). The King's Two Bodies: A Study in Mediaeval Political Theology. Princeton University Press. pp. 152–. ISBN 0-691-01704-2.

[What has please the Prince is Law] -that is, not what has been rashly presumed ny the [personal] will of the king, but what has beem rightfully defined by the consilium of his magnates, by the king's authorization, and after deliberation and conference concerning it. ...


References





John Reeves; William Francis Finlason (1869). Reeves' History of the English law. Reeves & Turner. Chapter II: pp. 131–.
John Reeves; William Francis Finlason (1869). Reeves' History of the English law. Reeves & Turner. Chapter II: pp. 125–.


Woodrow Wilson Woodrow Wilson: Essential Writings and Speeches of the Scholar-president. NYU Press. pp. 295–. ISBN 978-0-8147-1984-8.


Brinton Coxe. An Essay on Judicial Power and Unconstitutional Legislation: Being a Commentary on Parts of the Constitution of the United States. The Lawbook Exchange, Ltd. pp. 137–. ISBN 978-1-58477-534-8.

===========
Were the Constitutions of Clarendon "unwritten law"?

Christopher Harper-Bill; Nicholas Vincent (2007). Henry II: New Interpretations. Boydell Press. pp. 228–9. ISBN 978-1-84383-340-6.
"The significance of Statute Law as opposed to Common Law was that it was written."

Glanvill talks of "English laws" as being promulgated 'by the advice of the magnates and the authority of the prince (procerum quidem consilio et princeps accente auctoritate}.'


==========



===========
Clause 1 of Magna Carta [1297] is still on statute in Great Britain and New Zealand.
...
The freedom of the English Church
1. FIRST, We have granted to God, and by this our present Charter have confirmed, for Us and our Heirs for ever, that the Church of England shall be free, and shall have all her whole Rights and Liberties inviolable.
...
============
Glanvill "Assisa Regni" (liber xiii 1) "constitutio regni quae assisa nominatur."

Glanvill mentions an "Assisa Regni," (lib. x. c. 12) forbidding suits concerning the debts or tenements of laymen to be decided in a court Christian "ratione fidei interpositae." This Assisa Regni is the Constitutions of Clarendon, c. 15. 3 Lib. viii.


============ 


Sir Edward Coke informs us, that the Writ, so applying to an Ecclesiastic, was expressly founded on the Constitutions of Clarendon, which, as we have already had occasion to remark, related in this respect to the Clergy only.1 If Sir Edward Coke's assertion be correct, it follows, that the Magna Charta of John was by some course of reasoning, which it would at this distance of time be difficult to discover, considered as not repealing or affecting the Constitutions of Clarendon.

============

Extract from

Sir Matthew Hale (1820). The History of the Common Law of England: And An Analysis of the Civil Part of the Law. H. Butterworth. pp. 1–.
The history of the common law of England - Hale, Matthew, Sir

I. Concerning the Distribution of the Law of England into Common Law, and Statute Law. And First, concerning the Statute Law, or Acts of Parliament

The Laws of England may aptly enough be divided into two Kinds, viz. Lex Scripta, the written Law: and Lex non Scripta, the unwritten Law: For although (as shall be shewn hereafter) all the Laws of this Kingdom have some Monuments or Memorials thereof in Writing, yet all of them have not their Original in Writing; for some of those Laws have obtain'd their Force by immemorial Usage or Custom, and such Laws are properly call'd Leges non Scriptae, or unwritten Laws or Customs.

Those Laws therefore, that I call Leges Scriptae, or written Laws, are such as are usually called Statute Laws, or Acts of Parliament, which are originally reduced into Writing before they are enacted, or receive any binding Power, every such Law being in the first Instance formally drawn up in Writing, and made, as it were, a Tripartite lndenture, between the King, the Lords and the Commons; for without the concurrent Consent of all those Three Parts of the Legislature, no such Law is, or can be made: But the Kings of this Realm, with the Advice and Consent of both Houses of Parliament, have Power to make New Laws, or to alter, repeal, or enforce the Old. And this has been done in all Succession of Ages.
Now, Statute Laws, or Acts of Parliament, are of Two Kinds, viz. First, Those Statutes which were made before Time of Memory; and, Secondly, Those Statutes which were made within or since Time of Memory; wherein observe, That according to a juridical Account and legal Signification, Time within Memory is the Time of Limitation in a Writ of Right; which by the Statute of Westminster 1. cap. 38. was settled, and reduced to the Beginning of the Reign of King Richard I or Ex prima Coronatione Regis Richardi Primi, who began his Reign the 6th of July 1189, and was crown'd the 3d of September following: So that whatsoever was before that Time, is before Time of Memory; and what is since that Time, is, in a legal Sense, said to be within or since the Time of Memory.
And therefore it is, that those Statutes or Acts of Parliament that were made before the Beginning of the Reign of King Richard I and have not since been repealed or altered, either by contrary Usage, or by subsequent Acts of Parliament, are now accounted Part of the Lex non Scripta, being as it were incorporated thereinto, and become a Part of the Common Law; and in Truth, such Statutes are not now pleadable as Acts of Parliament, (because what is before Time of Memory is supposed without a Beginning, or at least such a Beginning as the Law takes Notice of) but they obtain their Strength by meer immemorial Usage or Custom.

And doubtless, many of those Things that now obtain as Common Law, had their Original by Parliamentary Acts or Constitutions, made in Writing by the King, Lords and Commons; though those Acts are now either not extant, or if extant, were made before Time of Memory; and the Evidence of the Truth hereof will easily appear, for that in many of those old Acts of Parliament that were made before Time of Memory, and are yet extant, we many find many of those Laws enacted which now obtain merely as Common Law, or the General Custom of the Realm: And were the rest of those Laws extant, probably the Footsteps of the Original Institution of many more Laws that now obtain meerly as Common Law, or Customary Laws, by immemorial Usage, would appear to have been at first Statute Laws, or Acts of Parliament.

Those ancient Acts of Parliament which are ranged under the Head of Leges non Scriptae, or Customary Laws, as being made before Time of Memory, are to be considered under Two Periods: Viz. First, Such as were made before the coming in of King William I commonly called, The Conqueror; or, Secondly, Such as intervened between his coming in, and the Beginning of the Reign of Richard I which is the legal Limitation of Time of Memory.
The former Sort of these Laws are mentioned by our ancient Historians, especially by Brompton, and are now collected into one Volume by William Lambard, Esq; in his Tractatus de priscis Anglorum Legibus, being a Collection of the Laws of the Kings, Ina, Alfred, Edward, Athelstane, Edmond, Edgar, Ethelred, Canutus, and of Edward te Confessor; which last Body of Laws, compiled by Edward the Confessor, as they were more full and perfect than the rest, and better accommodated to the then State of Things, so they were such whereof the English were always very zealous, as being the great Rule and Standard of their Rights and Liberties: Whereof more hereafter.

The second Sort are those Edicts, Acts of Parliament, or Laws, that were made after the coming in of King William, commonly named, The Conqueror, and before the beginning of the Reign of King Richard I and more especially are those which follow; whereof I shall make but a brief Remembrance here, because it will be necessary in the Sequel of this Discourse (it may be more than once) to resume the Mention of them; and besides, Mr Selden, in his Book called, Janus Anglorum, has given a full Account of those Laws; so that at present it will be sufficient for me, briefly to collect the Heads or Divisions of them, under the Reigns of those several Kings wherein they were made, viz.
First, The Laws of King William I. These consisted in a great Measure of the Repetition of the Laws of King Edward the Confessor, and of the enforcing them by his own Authority, and the Assent of Parliament, at the Request of the English; and some new Laws were added by himself with the like Assent of Parliament, relating to Military Tenures, and the Preservation of the publick Peace of the Kingdom; all which are mention'd by Mr Lambert, in the Tractate before-mentioned, but more fully by Mr Selden, in his Collections and 
Observations upon Eadmerus.

Secondly, We find little of new Laws after this, till the Time of King Henry I, who besides the Confirmation of the Laws of the Confessor, and of King William I brought in a new Volume of Laws, which to this Day are extant, and called the Laws of King Henry I. The entire Collection of these is entered in the Red Book of the Exchequer, and from thence are transcribed and published by the Care of Sir Roger Twisden, in the latter End of Mr Lambart's Book before-mention'd; what the Success of those Laws were in the Time of King Steven, and King Henry 2 we shall see hereafter: But they did not much obtain in England, and are now for the most Part become wholly obsolete, and in Effect quite antiquated.
Thirdly, The next considerable Body of Acts of Parliament, were those made under the Reign of King Henry 2 commonly called, The Constitiutions of Clarendon; what they were, appears best in Hoveden and Mat. Paris, under the years of that King. We have little Memory else of any considerable Laws enacted in this King's Time, except his Assizes, and such Laws as related to the Forests; which were afterwards improv'd under the Reign of King Richard I. But of this hereafter, more at large.
And this shall serve for a short Instance of those Statutes, or Acts of Parliament, that were made before Time of Memnory; whereof, as we have no Authentical Records, but only Transcripts, either in our ancient Historians, or other Books and Manuscripts; so they being Things done before Time of Memory, obtain at this Day no further than as by Usage and Custom they are, as it were, engrafted into the Body of the Common Law, and made a Part thereof.

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".

Thursday, 2 October 2014

Clause 12 and the Regalian Rights of the Kings of England

Regalian Right

The right of the king of England to seize the property of a vacant see, its revenues and profits [the temporalities] for the benefit of his exchequer, and to hold it vacant at his pleasure, for as long as he wished, it was so-called his "Regalian Right" as the property of a bishop was called his Regalia.


In England in the 12th Century, legally the king was considered to be the ultimate owner of all land in the kingdom, and it was from his estate lesser estates were created and held by individuals, known as barons (tenants in chief), including land occupied by the Church, and held by bishops as their temporality, themselves barons.

From the king's point of view the temporal properties of a vacant see belonged to him and were in his gift, given upon the elevation of a candidate bishop or archbishop to his baronage, just before his consecration, and for which he was required to swear fealty and do homage to the crown, and provide knights for military service in times of war. The bishop was therefore his man, as was his land. And after the death of a bishop these properties and their profits reverted to the crown, until the next bishop was selected and installed.

An ecclesiastical crown fief, vacated by the death of the occupant, was regarded as a knight's fee, which in default of an heir reverted to the crown. This was lige lord's right of usufructuary adminstration during a vassal's minority. As a fief held by a vassal who was underage, this was subject to the liege lord's right to use and derive profit from property, presumably as the underage vassal could not bear arms in servitum debitum: the underage vassal was his liege lord's ward.


From the Church's point of view the filling of vacant sees by payment by the candidates was seen as simoniacal. Indeed the First and Second Lateran Councils, the first canon at each refer to the heinous sin of simony. The ordination of simoniacal bishops was considered invalid, and archbishop Anselm refused to consecrate those who had been invested by the king. In England, the Council of 1102 cursed simony as a heresy. This council decreed the removal of nine abbots from office because of it. Later councils formally prohibited simony and at another council in 1127 the buying of benefices, holy orders, and admission to religious houses were all banned by the Church in England. 

The holding of a see unnecessarily vacant for too long was also condemned by the Church as it denied the flock their pastor. The guardianship of the spiritualities of a vacant see was in the hands of the cathedral's chapter. It was they who should elect a new bishop to the post as soon as was feasible. But the kings of England had usurped this right, appointing their own candidates.

The first time the king's Regalian Right seems to have been asserted as a significant source of revenue to the Crown was during the reign of William Rufus, under his chancellor Ranulf Flambard, the notorious bishop of Durham. William does not seem to have acquired this "tradition" from his father and very likely they were quite illegal extensions of the royal power. Flambard seems to have invented Regalian Right and transformed what was originally only probably a kind of royal trust, a royal guardianship, into a very profitable royal right.

After William Rufus' death Henry I, in his Charter of Liberties [Coronation Charter] 1100 promised not to do this

...
and because the kingdom had been oppressed by unjust exactions, I, through fear of God and the love which I have toward you all, in the first place make the holy church of God free, so that I will neither sell nor put to farm, nor on the death of archbishop or bishop or abbot will I take anything from the church's demesne or from its men until the successor shall enter it. And I take away all the bad customs by which the kingdom of England was unjustly oppressed.
...


It seems, however, that Henry I, broke his promise, and did continue the practice of "farming" vacant sees. For example, after the death of Ranulf Flambard, bishop of Durham, two executors, probably barons of the exchequer, were appointed to be its custodians. During the first two years of its vacancy the Pipe Roll accounts for 1130 record that over £900 was paid by the custodians into the king's treasury.
 (Howell, 1962, p. 25 : Pipe Rolls 31 Henry I. 1130, pp. 130-3.)

Henry I, in the sixteenth year of his reign, had in his hands one archbishopric, five bishoprics and six abbeys.

Stephen

Stephen seems to have renounced collecting the income from vacant sees but retained the right to administer them.


Henry II

Becket, in his role as Chancellor of the Exchequer knew intimately about the right to collect monies in this fashion, as it was one of the primary functions of this post.

Hugh M. Thomas (2014). The Secular Clergy in England, 1066-1216. Oxford University Press. pp. 76–. ISBN 978-0-19-870256-6.

For instance, Thomas Becket as chancellor had charge of a large assortment of custodies and vacant honors, and William fitz Stephen wrote that he employed many of the fifty-two clerics in his retinue to oversee them.
[Materials Vol 3:29, Barlow Thomas Becket 52-54]
 


B. M. S. Campbell (1991). Land, Labour, and Livestock: Historical Studies in European Agricultural Productivity. Manchester University Press. pp. 100–. ISBN 978-0-7190-3171-7.

Henry II spoiled the vacant see of Winchester 1171-2 for 1 year of 31,101 shillings
[Pipe Rolls 18 Henry II].

The archiepiscopal see of York was deliberately kept vacant by Henry II for eight years raising between £1100-£1800 per year for the Royal Exchequer.


When Becket left England and went into exile in France, technically the archbishopric of Canterbury became vacant. King Henry took this opportunity to farm the See. He appointed Ranulf de Broc of Saltwood as his land agent.
[Ranulf de Broc - Wikipedia Adminstrator of Canterbury]

Everett U. Crosby (2013). The King's Bishops: The Politics of Patronage in England and Normandy, 1066-1216. Palgrave Macmillan. pp. 18–. ISBN 978-1-137-35212-5.

Between 1170 and 1174 eight bishoprics were vacant: Canterbury, Bath, Chichester, Ely, Hereford, Lincoln and Winchester.

Constitutions of Clarendon 

In clause (12) of the Constitutions of Clarendon the king defined and claimed his "customary right of the kingship of England", his Regalian Right to levy the resources of a vacant bishopric.

...
Cum vacaverit archiepiscopatus vel episcopatus, vel abbatia, vel prioratus de dominio regis, debet esse in manu ipsius, et inde percipiet omnes redditus et exitus sicut dominicos.
...
When an archbishopric, a bishopric, an abbey, or a priory within the realm of the king is vacant, it ought to be in his hand, and he shall receive from it all the revenues and proceeds, as of his domains.
...

The clause does not state that the vacantsee was to be taken into custody [custodia] for safekeeping till the next bishop was appointed, but instead Henry was asserting that it was his customary, ancestral and absolute royal right to take possession of the revenues [redditus] expenses/proceeds [exitus] of the vacant see as belonging automatically to the royal demesne [sicut dominicos].

"This unequivocal clarity, which is characteristic of the Constitutions of Clarendon, has been much criticized. Henry has been accused of committing a tactical blunder in putting the customs of his ancestors in writing. But the king himself thought otherwise. Sir Maurice Powicke has written in another but similar connection that, 'law in the long run must be met by law'. Possibly Henry II grasped this truth. The clash between the king and Becket over the Constitutions of Clarendon was a clash between two sophisticated legal and administrative systems. Between these two systems, between church and state, there was a disputed territory. The canonists had for some time been engaged in defining their own claims to that territory; and to define a position was one step towards occupying it. The church was articulate in its demands, and Henry may well have been aware of the challenge which this presented to the state; law had to be met by law. The king committed himself to a definition, a very precise definition of ancient customs. He forced the issue, and his ensuing gains were considerable."  (Howell, 1962, p. 33)

Becket responded

http://mlat.uzh.ch Corpus Corporum
Patrologia Latina (PL 190 1137D)
DE VOCATIONE ARCHIPRAESULIS APUD CLARENDUNE.
De consuetudinibus exactis.

James Craigie Robertson . Materials for the History of Thomas Becket. Volume 3. Herbert of Bosham Liber III Cap. 29: Cambridge University Press. p. 283. ISBN 978-1-108-04927-6.
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Sed ecclesiae semper clamandum, semper obviandum et quatenus potest resistandum; et si sustineatur quod corrigi non potest, tamen consentiendum nunquam.
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Fisher, M. Ann Kathleen (1947). "An Annotated Translation of the Life of St. Thomas Becket By Herbert Bosham (Part Two)" .

"To this the archbishop responded briefly that the property of the poor ought by no means to be applied to the treasury, and that this would be, as it were, contrary to royal mercy and magnificence; also that these riches of another are in no wise the redemption of the soul of a prince.  Although this sacrilege has sometimes been committed by those before us we ought not extend it to its limit. Rather this (encroachment upon the rights) of the Church ought always be proclaimed, always opposed, and, as far as possible, resisted. And if what cannot be corrected be tolerated, yet we ought never agree to it."

Later the Pope condemned this clause.

Becket pointed out in a letter to the Pope the following

MTB 331 [CTB 150 ca 11 Dec 1167] Becket to Pope Alexander III
James Craigie Robertson (15 November 2012). Materials for the History of Thomas Becket, Archbishop of Canterbury (Canonized by Pope Alexander III, AD 1173). Volume 6 Cambridge University Press. pp. 253–4. ISBN 978-1-108-04930-6.

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Lord Otto -who we believe is moved by the Spirit of God- will tell you what he saw and learned about the church and province of tours, what he heard about the English Church, what he experienced in Normandy, and we believe that you will say with tears that 'there is no pain like this one'. In our province and the province of Rouen, to say nothing about the churches of Canterbury and Tours, which he treats as you have heard, and we hope will hear more full, he is keeping seven vacant bishoprics in his own hands, which he has already held for a long time, nor will he suffer any bishops to be appointed in them.
...

Later,  In 1176 Henry promised the pope that in future he would not keep sees vacant for more than a year; but he carefully left himself a loophole:

Concedo etiam quod archiepiscopatus, episcopatus et abbatiae non teneantur in manu mea utra annum, nisi urgente necessitate et evidenti de causa quae propter hoc non fuerit inventa ut diutius teneantur.

The Regalian Right was very lucrative to the king, adding significantly to his revenue.

References

Margaret Howell (1962). Regalian Right in Medieval England. University of London, Athlone Press.  p. 33-4.


Everett U. Crosby (2003). Bishop and Chapter in Twelfth-Century England: A Study of the 'Mensa Episcopalis'. Cambridge University Press. pp. 94–. ISBN 978-0-521-52184-0.

R. J. A. White (1 August 1967). A Short History of England. Cambridge University Press. pp. 59–. ISBN 978-0-521-09439-9.

George Lyttelton Baron Lyttelton (1769). The History of the Life of King Henry the Second: And of the Age in which He Lived. J. Dodsley. pp. 141–.
George Lyttelton Baron Lyttelton (1769). The History of the Life of King Henry the Second: And of the Age in which He Lived. J. Dodsley. pp. 476–.

William Stubbs. The Constitutional History of England, in Its Origin and Development. Paragraph 107: Cambridge University Press. pp. 300–. ISBN 978-1-108-03629-0.

Medieval Sourcebook:




Thomas N. Bisson (2009). The Crisis of the Twelfth Century: Power, Lordship, and the Origins of European Government. On Jus Spolii: Princeton University Press. pp. 81–. ISBN 0-691-13708-0.


David Charles Douglas (1964). William the Conqueror: The Norman Impact Upon England. University of California Press. pp. 326–. ISBN 978-0-520-00350-7.
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Bishops and abbots were at once involved more closely than ever before in secular affairs, and in the case of the abbeys a division was normally made between the land of the abbot and that of the monastery, so that the abbot as a great feudal lord became removed from the life of his monks.

...


Corruption and Controversy: Simony, lay investiture, and clerical marriage and celibacy in the Catholic Church during the eleventh and twelfth centuries 
Andrea Hakari
University of Wisconsin - Milwaukee
Spring 1999

Constitutions of Clarendon- The Lateran Councils of the 12th Century

B. Tierney (2012). Authority and Power. Cambridge University Press. pp. 69–. ISBN 978-1-107-40456-4.


Sloane, C. (1911). Mortmain. In The Catholic Encyclopedia: http://www.newadvent.org/cathen/10579a.htm


Mortmain in Medieval England
Sandra Raban
Past & Present
No. 62 (Feb., 1974), pp. 3-26
Published by: Oxford University Press on behalf of The Past and Present Society