Saturday, 9 May 2015


The Constitutions of Clarendon are about kingship, in this case the exertion of the rights of the king over the ecclesiastical in his kingdom. By the late twelfth century kingship in England was moving more or less in the direction of  the absolute and divine right of a king to rule in his land, that the will of the king was the law of the land. But this had not always necessarily been the case. Kingship under the prior Norman and Anglo-Saxon kings had begun the move in this direction. The later Anglo-Saxon kings had also been "absolute" monarchs in a sense, that is once they had been "elected" [chosen] to their positions they ruled over the land of England absolutely, but it seems they were may have been tempered in that rule by the counsel and advice of a Witan which elected [appointed/approved] them and which could also impeach them. In general weaker kings required more counsel, and conversely less weak kings less counsel. The Witenagemot itself, however, seems only to have had limited powers. The king in England was the military leader and feudal overlord in his land, and as such his subjects owed him fealty and paid him homage; and owed him service, both military and financial. And the king gave justice in the land.

Kingship as a system was always bolstered by the Church. It had Biblical precedence. As a model of rule it was simple, easily understood by the people generally without dissent. People always wanted to accept the rule of a king because he was God's anointed.  They still accept having a monarch today though it is tempered by being constitutional. The power of kingship lies in the magic of the coronation ceremony and the oath taken and promises made before his men and people. From the point of view of the Church, kings exist to serve the purposes of the Church. The Church was an essential part of the king-making process.

Kings derived their authority, power and strength from being able to prove a long past, in pagan times often descent from the gods. In affirmation of this kingship is ultimately a mystery. Under the Gelasian Two Swords Theory the Spiritual power [Sacerdotium] grants the Secular/Temporal ruler [Imperium] his authority to rule  from God during the mystical anointing in the coronation ceremony. Kings/Emperors are anointed: Dukes, Princes and others are not.

In its turn the Temporal power must use its sword to protect the Spiritual power, the Church. And in its turn Spiritual power must use its spiritual sword to protect the kingdom to fight against demons, Satan and heresies.

However, challenging the rights of kingship led to difficult and awkward situations.

Extract from Forgers of Law ... by O'Brien (2010)
Older English law was not, moreover, uniformly supportive of the power of English monarchs. especially considering the kind of monarchs that the English kings had become by the late twelfth century. Almost all of the older treatises portray laws as the product of the older style consultative kingship that was still the standard in the twelfth century, a kingship which placed the king under the law. Henry II's courtiers, on the other hand, were inclined to think of the king's relationship to the law in Roman terms, in which the  will of the king was the law [Hall 1993, 1-3]. Although perhaps outside the intentions of their authors, the post-Conquest treatises' traditional consultative picture would read in Henry and Becket's world as statements about the limitations of kingship. 

Richard fitz Nigel, author of the Dialogue Concerning the Exchequer, wrote that the king's power and authority derived from God, and therefore only God was able to judge the actions of kings.

See the Preface to the Dialogue of the Exchequer

It is necessary to subject one's self in all fear to the powers ordained by God, and likewise to serve them. For every power is from God the Lord. Nor does it therefore seem absurd or foreign to ecclesiastics, by serving kings who are, as it were, pre-eminent, and other powers, to uphold their rights; especially in matters which are not contrary to divine Truth or honesty. But one should serve them not alone in preserving those dignities through which the glory of the royal majesty shines forth, but also in preserving the abundance of worldly wealth which pertains to them by reason of their station: for the former cast a halo round them, the latter aid them. For indeed abundance of means, or the lack of them, exalts or humbles the power of princes. For those who lack them will be a prey to their enemies, to those who have them their enemies will fall a prey. But although it may come about that these accrue to kings for the most part, not by some right that has been thoroughly examined into, but at times through paternal customs, at times through the secret designs of their own hearts, or occasionally through the arbitrariness of their own sole will, nevertheless their acts are not to be discussed or condemned by their subjects. For the cause of those whose hearts and the motions of whose hearts are in the hand of God, and to whom by God Himself the sole care of their subjects has been committed, stands and falls before a Divine tribunal alone, not before a human one. Let no one, therefore, no matter how rich, flatter himself that he will go unpunished if he act otherwise, for of such it is written, " the powerful shall powerfully suffer torments."

Anglo-Saxon kings did have a powerful, though not a certainly decisive voice, in the selection of their successors. Any successor, however, would have to be confirmed by the Witan. Edward the confessor publicly chose his successor: because of his pro-Norman inclinations it would be Duke William of Normandy.  William fully believed he had "inherited" the English throne. In his mind Harold was a usurper. He declared that he had received from Edward the Confessor a promise and had papal support for his invasion to enforce his claim. After the Battle of Hastings, after the conquest he put down all rebellions, sometimes ruthlessly, and disinherited and banished, or outlawed those Anglo-Saxon lords who did not swear fealty to him. Their job in life was to serve the king and his kingdom.  Soon afterwards William I replaced nearly all the landed aristocracy in England with his own men, those Northern French who had supported his invasion.  Along with the kingship the Norman kings of England inherited from the Anglo-Saxon kings a comprehensive system of shires and sheriffs exercising a large degree of control over the the kingdom's military and fiscal resources, together with ultimate control over the hundred and shire courts. The law in England? it would be the laws of his predecessor Edward the Confessor. To enforce his rule there was major programme of castle building across the whole land. Stigand was removed as archbishop of Canterbury to be replaced by Lanfranc.

Three central concepts about the supremacy of the king in England were reinforced by the Normans: that the king was the Lord Paramount in the kingdom; that the Crown was the Fount of all Honour and Justice and could do no wrong in a legal sense; that the king was the ultimate proprietor of all the land of the kingdom - all land was held either directly from or indirectly by the Crown. These principles became enshrined in the Common Law of the Land. They were part of a new natural social order derived from and ordained by God.

It is significant that William refused to do homage to Pope Gregory VII for his kingdom, but allowed Peter's Pence to be collected and paid over to the Holy See. 

In the pagan world the State was secular, in the Christian world the State is the Catholic Church ; but in both cases the spiritual came to the support of the temporal — ancient Rome deified the State by making it the subject of the Roman piety ; Christian Rome shaped religion into a citizenship, and the Church became a civitas -this is a social body of citizens, united by law. It is the law that binds them together, giving them responsibilities on the one hand and rights of citizenship on the other.

"Civis romanus sum" (I am a Roman citizen), has never ceased to be the all-embracing formula of Roman orthodoxy, Roman citizenship for every free born subject. Christ himself it was claimed he was a Roman citizen subjecting himself to judgement by the Roman authorities.  Pope Gregory VII (Hildebrand) in particular was to claim the throne of Rome and in effect to claim the right that every member of the Roman Catholic clergy was a kind of citizen of Rome, subject to its jurisdiction and laws [Canon Law] with a right of appeal to Rome.

Lanfranc supported papal sovereignty and protected the church from secular influences. He also helped William establish relative independence for the English church.

Under Lanfranc's influence King William gave partial recognition to this theory, and allowed the church in England to have its own separate courts. He issued an ordinance in 1076 prescribing that in the future cases "quae ad regimen animarum pertinent" [matters pertaining to the spiritual world] were to be tried not in the king's or temporal court but in the ecclesiastical or bishop's court. A summons to the ecclesiastical court was compulsory and if need be it would be enforced by the secular power.

In 1136 King Stephen granted the following liberties to the Church
I allow and confirm that jurisdiction and authority over ecclesiastical persons and over all clerks and their property and the disposal of ecclesiastical honours will be in the hands of the bishops. I grant and concede that the liberties of the church confirmed by their charters, and their customs that have been observed from antiquity, will remain inviolate. 

The Constitutions of Clarendon represent the struggle between Canonism [the Supremacy of Canon Law] and the Royal Prerogative.  The Constitutions of Clarendon were an attempt to define  in writing the Royal Prerogative [Praerogativa Regis] in ecclesiastical matters and fairly represent the state of the royal prerogative in those matters down to the date of Magna Carta.

England by the time of Magna Carta England had become the most logical feudal kingdom to be found in Christendom. That the jurisdiction of the king in council was the origin of all justice in the realm.

One of the significant problems with kingship is that it was a precursor for the advance of nationalism within a geographically well-defined area.

However many historians of this period attribute the right of absolute power and authority to kings of these times. But it is properly the job of the historian to validate, to examine and prove those rights truly exist. The king is on trial for his rights just as much as Becket was on trial at Northampton for his.

Henry II's Kingship

In Henry II's time a king was primarily a feudal lord, a feudal monarch. The state was a patrimonial one: the kingdom was the monarch's own personal patrimony. The relationship between the king and his tenants-in-chief was much the same as that between a lord and his vassals, an essentially private one. Where there was a difference kings were anointed and crowned, and had special duties which he declared as promises in his regnal manisfesto, namely his coronation charter, sworn to uphold on oath. The king was anointed and crowned by the leading churchman in the country, usually the archbishop of Canterbury. He could not crown himself that was the privilege of the Church. And in his coronation charter he promised to defend the Church and uphold its customary liberty. Indeed Becket reminded king Henry II of his oath in this respect at his coronation  [Materials Thomas Becket vol. 5 p. 282 Epistola MTB 154].

When the king was assigning advowsons [ecclesiastical benefices] and/or nominating or making bishops, the king was exerting his personal rights, rights "pertaining to the Crown and his dignity". This was the king's special "regality". In matters of justice this "regality" expressed itself in terms of "pleas which pertain to the king's crown", or "pleas of the crown", trials and cases which belonged to the king's court.

 The Crown was the physical object which symbolised the regality of the king. Many of the Norman kings held special "crown-wearing" ceremonies three times a year, to re-inforce their rights and overlordship of the kingdom, and their special relationship with God and their kingdom. At these ceremonies the bishops and archbishops jealously guarded their right to oversee this ritual and perform the act of crowning. Henry II only underwent this ceremony once during his reign, and never bothered to continue the practice of his forebears in this matter.

Clear Dei' (A, 16, 22; B, 2). The titles 'vicarius Dei' and 'imago
 Dei ' were obviously avoided by the Fathers; 1 within the patristic
 literature they occur only 2 in the anonymous Quaestiones veteris
 et novi testamenti 3 and in the pseudo-Ambrosian Commentary in
 epistulam ad Romanos. In later times they became gradually
 more familiar even in ecclesiastical circles,5 but from the times
 of Gregory VII (1073-85) they were denied to the secular power
 by the popes and their rigorous partisans. For these circles
 there exists only one ' vicarius Dei ' or ' imago Dei ', viz. the pope,
 the emperor being regarded as ' vicarius papae .6 Imperialistic
 writers, however, continued to use the old titles.7 In particular
 the famous legists in Bologna rejected the papal theory of the
 two swords,8 and accordingly did not scruple to call the emperor
 (but him only) the vicar of God.9 Ecclesiastical writers of the
 twelfth century like Hugh of Fleury and John of Salisbury avoided
 the term ' vicarius Dei ' but did not object to using the term
 'imago Dei '.1
'imago Dei '.1


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Raymonde Foreville (1973) Actes Du Colloque International de Sedieres. Aryeh Grabois - L'Idéal De La Royauté Biblique Dans La Pensée de Thomas Becket: Editions Beauchesne. pp. 103–.

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Fritz Kern, Kingship and Law in the Middle Ages, trans. S. B. Chrimes (Oxford:
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King above Law? "Quod Principi Placuit" in Bracton 
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Source: Speculum, Vol. 39, No. 2 (Apr., 1964), pp. 240-269 
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Bracton on Government 
Author(s): Brian Tierney
Source: Speculum, Vol. 38, No. 2 (Apr., 1963), pp. 295-317
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Bracton on Kingship
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Cary J. Nederman
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The Camera Regis under Henry II (Continued)
J. E. A. Jolliffe
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Le Roi d'Angleterre et ses Parlements au Moyen Age
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The Anglo-Saxon Courts of Law
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Lisi Oliver (2012). The Beginnings of English Law. University of Toronto Press. ISBN 978-1-4426-6922-2

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R. G. Collingwood; J. N. L. Myres; F. M. Stenton; Austin Lane Poole, Maurice Powicke, May McKisack, E. F. Jacob, J. D. Mackie, J. B. Black, Godfrey Davies, Basil Williams, J. Steven Watson, Llewellyn Woodward, R. C. K. Ensor, A. J. P. Taylor, Richard Raper (1975). The Oxford history of England: Anglo-Saxon EnglandISBN 978-0-19-821716-9.

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Stephen's Shaftesbury Charter: Another Case against William of Malmesbury
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