Thursday, 2 October 2014

Clause 12 and the Regalian Rights of the Kings of England

Regalian Right [jus regalia, droit de régale, Regalienrecht, ]

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.

The king seized not only the former bishop's real property, that which he had been invested with as his "barony".

[Real property is land, and generally whatever is erected or growing upon or affixed to land. It also refers to rights issuing out of, annexed to, and exercisable within or about land, a general ter for lands, tenements, and hereditaments, property which, on the death of the owner intestate, passes to his heir.]

but also his personal property: jewels, gold, plate whatever, as an unmarried bishop had no direct heirs.

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 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 Corpus Corporum
Patrologia Latina (PL 190 1137D)
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.
Sed ecclesiae semper clamandum, semper obviandum et quatenus potest resistandum; et si sustineatur quod corrigi non potest, tamen consentiendum nunquam.
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.

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 [jus regaliae] was very lucrative to the king, adding significantly to his revenue.


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

Oxford DNB article- Flambard, Ranulf

Sally Harvey (2014). Domesday: Book of Judgement. Rannulf Flambard: Oxford University Press. ISBN 978-0-19-966978-3. p. 115-

Edmond Michelet (1900). Du droit de régale. Impr. Saint-Martin.

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.

Christopher Harper-Bill (1999). Anglo-Norman Studies XXI: Proceedings of the Battle Conference 1998. Emma Mason: William Rufus and the Benedictine Order: Boydell & Brewer. pp. 115–. ISBN 978-0-85115-745-0.

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.
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

E. Lesne
Nouvelle revue historique de droit français et étranger
Vol. 45 (1921), pp. 5-52
Published by: Editions Dalloz

Edmond Michelet (1900). Du droit de régale [Thesis]. Impr. Saint-Martin.

Sloane, C. (1911). Mortmain. In The Catholic Encyclopedia:

Edmond Michelet (1900). Du droit de régale [Thesis]. Impr. Saint-Martin.

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

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