Sacerdotium v. Regnum: the Central Issue raised during The Constitutions of Clarendon, Jan 1164

A Juridical and Historical Analysis of the Conflict over the Constitutions of Clarendon

Introduction: The Collision of Two Universes

The confrontation between King Henry II of England and Archbishop Thomas Becket in the mid-twelfth century remains one of the seminal moments in the constitutional history of the Western world. While often reduced in popular imagination to a clash of titanic personalities—the fiery, pragmatic Angevin monarch against the stubborn, ascetic prelate—the conflict was, at its core, a profound structural collision between two expanding legal universes: the emerging English Common Law (lex terrae) and the resurgent, universal Canon Law of the Latin Church (ius commune). This dispute, which culminated in the promulgation of the Constitutions of Clarendon in 1164 and the subsequent martyrdom of the Archbishop in 1170, centered fundamentally on the question of sovereignty and the administration of justice.1

The specific flashpoint of this struggle was the issue of "criminous clerks"—ordained members of the clergy accused of secular felonies such as murder, rape, or theft. The controversy over their treatment, enshrined in the infamous Clause 3 of the Constitutions, forced a confrontation between two mutually exclusive conceptions of the world. For Henry II, the "King's Peace" was a unitary concept; a crime committed within his realm was an offense against the Crown that demanded a deterrent, physical punishment, regardless of the perpetrator's status. For Becket and the Gregorian reformers, the Church was a societas perfecta, a divine state within a state, whose members were set apart by the sacrament of ordination and subject only to the jurisdiction of God's vicars, protected by the ancient principle of privilegium clericale (Benefit of Clergy).3

This report provides an exhaustive analysis of this conflict. It traces the legal antecedents in the "ancestral customs" of the Norman kings, particularly Henry I, and examines the intellectual heritage of the dispute in the texts of Gratian’s Decretum and the theological exegesis of the Bible. Furthermore, it explores the long-term evolution of the "Benefit of Clergy" from a point of high-stakes political contention into a bizarre but durable mechanism of English criminal law—a legal fiction that saved thousands from the gallows through the "Neck Verse" until its abolition in the nineteenth century. The analysis suggests that the dispute over the Constitutions of Clarendon was not merely a power struggle, but a sophisticated jurisprudential debate over the metaphysics of justice, the nature of punishment, and the boundaries between the spiritual and secular spheres.5

The Thesis of Divergence

The historiography of the Becket controversy, from the chronicles of William FitzStephen to the legal analysis of Maitland and Pollock, reveals a fundamental disagreement on the purpose of law. The King’s law was teleological in a secular sense: its end was the maintenance of public order through terror and retribution. The Church’s law was soteriological: its end was the salvation of the soul through penance and correction. When a priest committed a murder, these two ends came into direct conflict. The King demanded a corpse to deter others; the Church demanded a penitent to save a soul. The Constitutions of Clarendon were Henry II’s attempt to bridge this gap by force, subordinating the soteriological mission of the Church to the security needs of the State.7

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Part I: The Legal Landscape of Twelfth-Century England

To understand the ferocity of the dispute over the Constitutions of Clarendon, one must first contextualize the state of English law following the "Anarchy," the civil war that preceded Henry II’s reign. The legal environment of the twelfth century was not static; it was a period of intense creativity and formation, often described as the "Twelfth-Century Renaissance."

1.1 The Legacy of the Anarchy and the Restoration of Order

When Henry II ascended the throne in 1154, England had suffered nearly two decades of civil war under King Stephen (r. 1135–1154). The "Anarchy" had seen the collapse of royal authority and the fragmentation of justice. The "King's Peace"—the legal fiction that allowed the Crown to intervene in criminal matters—had retreated, replaced by the localized tyranny of robber barons and the expanded jurisdiction of the Church.1

Henry II’s primary objective upon his accession was the restitutio—the restoration of royal authority to the status it had enjoyed under his grandfather, Henry I. This was not merely a reactionary move; it was a sophisticated administrative project. Henry II, aided by capable administrators like Richard de Lucy and Glanvill, sought to centralize this authority. They utilized the Curia Regis (King's Court) and a system of itinerant justices (eyres) to project royal power into the shires. These justices carried the King’s law to the remote corners of the realm, ensuring that crimes were punished uniformly. This centralization was the genesis of the "Common Law"—a law common to the whole of England, superseding local custom and manorial courts.9

However, during the Anarchy, the Church had stepped into the power vacuum. Ecclesiastical courts (Courts Christian) had expanded their jurisdiction significantly. They dealt not only with purely spiritual matters (doctrine, sacraments) but had encroached upon areas of civil litigation, including issues of inheritance, debt (under the guise of "pledge of faith"), and land disputes involving Church property. By 1154, the Church courts were thriving, efficient, and popular, often offering a more rational procedure than the ordeal-based secular courts. Henry II viewed this expansion as a usurpation of royal rights, a theft of jurisdiction that drained revenue from the Exchequer and undermined the unity of the King’s Peace.6

1.2 The "Ancestral Customs" of Henry I

Henry II did not frame his legal reforms as innovations. To do so would have been legally precarious in a society that revered tradition. Instead, he framed his program as a return to the avitae consuetudines—the "ancestral customs" of his grandfather, Henry I (r. 1100–1135). The Leges Henrici Primi, a legal treatise compiled c. 1115, provides a window into this pre-Anarchy world.12

Under Henry I, the separation of spiritual and temporal courts instituted by William the Conqueror was in effect, but the boundaries were porous and heavily policed by the King. The Norman kings exercised a "caesaropapist" control over the Church that would have shocked a Gregorian reformer.

• Appointment of Bishops: Henry I and his predecessors treated bishoprics almost as royal feoffments. They expected loyalty and service from their prelates.
• Jurisdiction: The Leges Henrici Primi suggests that while bishops judged spiritual crimes, offenses against the secular order by clerics were effectively punished by the secular arm. The text implies a cooperation where the bishop might degrade a clerk, but the King would then punish the man. There was no stark wall of separation preventing the King from acting against a "criminous clerk".6

Henry II’s claim at Clarendon in 1164 was that he was merely codifying these unwritten customs. He argued that under Henry I, a clerk who committed a felony was not shielded by his orders from the King’s justice. Becket’s counter-argument was that any such "customs" were abuses that had been forced upon the Church by tyrants, and that "Christ said 'I am the Truth', not 'I am the Custom'".7

1.3 The Rise of Canon Law and the Decretum

Simultaneously, the Church was undergoing its own legal renaissance. The mid-twelfth century saw the systematization of Canon Law, centered on the monumental work of the Bolognese monk Gratian. His Concordia discordantium canonum (Concordance of Discordant Canons), commonly known as the Decretum (c. 1140), provided the clergy with a sophisticated, dialectical legal arsenal that far outstripped the chaotic customary law of England.15

The Decretum was not just a code of laws; it was a political manifesto. It emphasized the Libertas Ecclesiae (Liberty of the Church), arguing that the clergy constituted a separate estate, free from secular control. It established a clear hierarchy of courts with the Pope as the supreme judge (judex ordinarius of all the faithful). Becket’s intellectual formation was steeped in this new jurisprudence. His household at Canterbury became a center for "eruditi"—canon lawyers trained in Bologna and Auxerre—who viewed the King’s "customs" through the lens of Gratian. To them, any secular jurisdiction over a cleric was a violation of the sacred order, a sacrilege that placed the hands of a layman on the anointed of God.7

The Decretum drew heavily on the "Pseudo-Isidorian Decretals," a set of forged documents from the 9th century that strongly asserted clerical immunity. For the canonists, the text was clear: "No cleric shall be brought before a secular judge" (Nullus clericus ad saecularem judicem pertrahatur). This principle of privilegium fori (privilege of the forum) was the bedrock of Becket’s resistance. It created a "jurisdictional apartheid" where the clergy lived under a different law, with different judges and different punishments, than the laity.6

1.4 The Demographic Reality of the "Clerk"

A critical factor in the conflict was the sheer number of people claiming clerical status. In the 12th century, the term "cleric" or "clerk" encompassed a much wider demographic than the modern priesthood. It included anyone who had been tonsured—the ritual shaving of the crown of the head. This included not just priests, deacons, and subdeacons (major orders), but also acolytes, exorcists, readers, and doorkeepers (minor orders).

Estimates suggest that clerics made up approximately one-sixth of the male population of England. This included students at the universities, parish clerks, and a vast army of unbeneficed clergy who drifted between jobs. Many of these men were indistinguishable from laymen in their daily lives; they did not wear clerical dress, they engaged in trade, and they carried weapons. Yet, legally, they were "clerks." If they committed a crime, they could claim the privilegium clericale. Henry II saw this as a massive loophole in public order. He famously complained that "clerks" had committed over a hundred murders since his coronation, for which they had received no secular punishment.1

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Part II: The Flashpoint – Criminous Clerks

The abstract conflict over jurisdiction was sparked by the specific problem of "criminous clerks." The divergence in punishment between the two systems created a crisis of justice that Henry II could not ignore.

2.1 The Jurisdictional Gap: Blood vs. Degradation

The central issue was the disparity in punishment. Canon Law, following the maxim Ecclesia non sitit sanguinem (The Church does not thirst for blood), forbade ecclesiastical courts from imposing "blood punishments"—death or mutilation. Therefore, the most severe penalty a Church court could impose was degradation (defrocking), effectively stripping the man of his clerical status and reducing him to a layman. He might also be sent to a monastery for penance, but he could not be hanged.6

In contrast, the secular courts of the 12th century relied heavily on capital and corporal punishment. Felonies such as murder, rape, arson, and grand larceny were punishable by hanging, blinding, or castration.

• The King's Grievance: Henry II argued that degradation was insufficient for murder. A layman who killed was hanged; a clerk who killed merely lost his job. This inequality, Henry argued, encouraged clerical crime. He believed that the lack of a physical deterrent meant that the "King's Peace" was not being kept.
• The Church's Defense: The Church argued that degradation was actually a more severe punishment than death, as it deprived the clerk of his spiritual status and his livelihood. Furthermore, they argued that a clerk was "civilly dead" to the world and lived only for God; to kill him physically was redundant and cruel.7

2.2 The Case of Philip de Brois (1163)

The tension came to a head in the summer of 1163 with the cause célèbre of Philip de Brois. Philip was a canon of Bedford, a man of noble lineage. He was accused of murdering a knight. In accordance with the custom of the time, he was tried in the ecclesiastical court of the Bishop of Lincoln. He purged himself of the charge—swearing his innocence with the aid of oath-helpers—and was acquitted.21

However, the rumor of his guilt persisted. Later, the King’s itinerant justice, Simon FitzPeter, attempted to reopen the matter in Dunstable. When Philip appeared before the royal justice, he was indignant. He reportedly insulted FitzPeter, abusing him with offensive language and asserting that as a clerk, he was not answerable to a lay judge.

Simon FitzPeter reported this insult to Henry II. The King was furious—not just at the alleged murder, but at the contempt shown to his royal representative (contemptus regis). Henry declared that an insult to his justice was an insult to his own person. He demanded that Philip be tried for the murder and the insult in a secular court.

Becket intervened swiftly. He asserted that Philip had already been acquitted of the murder in a valid court (res judicata) and could not be tried again. As for the insult, that was a sin of the tongue, punishable by the Church. Henry, sensing a test case, pressured the bishops. Philip was eventually brought before a mixed council. He confessed to the insult but denied the murder. Becket imposed a severe ecclesiastical penalty: Philip was to be publicly whipped, deprived of his prebend (income) for two years, and banished. However, Becket steadfastly refused to hand him over to the King’s justice for execution or mutilation.7

This case crystallized Henry’s resolve. He saw the Church’s protection of Philip de Brois not as justice, but as a partisan obstruction that threatened the sovereignty of the Crown. If a canon could insult a royal judge and escape with a whipping, the King’s authority was a mockery.

2.3 The Council of Westminster (October 1163)

In response to the de Brois case and others, Henry summoned the bishops to Westminster in October 1163. He demanded that they agree to a new procedure: that clerks convicted of serious crimes be degraded and then handed over to the secular arm for corporal punishment. He asked the bishops if they would observe the "customs of his ancestors."

Becket, sensing a trap, led the bishops in a qualified response. They answered that they would observe the customs "saving our order" (salvo ordine nostro). This qualification effectively nullified the promise, as the "order" of the clergy included the privilege of immunity. Henry, enraged by this evasion, stormed out of London, confiscating Becket’s honors. The lines of battle were drawn.2

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Part III: The Constitutions of Clarendon (1164)

In January 1164, Henry II made his decisive move. He summoned the archbishops, bishops, and barons to the royal hunting lodge at Clarendon in Wiltshire. His goal was to force the bishops to assent, unconditionally, to a written definition of the "ancestral customs." The result was the Constitutions of Clarendon, a document of sixteen clauses that sought to fundamentally restrict ecclesiastical privileges and subordinate the Church to the State.1

3.1 Clause 3: The Procedure for Criminous Clerks

The centerpiece of the Constitutions, and the focus of the conflict, was Clause 3. It proposed a hybrid procedure that Henry claimed was the ancient custom of Henry I. The text of Clause 3 is dense and technical, outlining a sophisticated three-step jurisdictional dance:

Step	Action	Jurisdiction	Purpose
1. Accusation (Preliminary)	The clerk is accused of a crime ("charged and accused of anything") and summoned by the King's Justice. He must appear in the King's Court to answer for his presence (unde debeat respondere).	Secular Court	To establish that the accused is indeed a clerk and to assert the King's initial seisin of the case.
2. Trial	The clerk is sent to the Ecclesiastical Court for trial. A royal officer attends the trial to watch the proceedings ("to see how the matter is dealt with").	Ecclesiastical Court	To try the guilt or innocence of the clerk according to Canon Law rules of evidence.
3. Punishment	If the clerk confesses or is convicted, the Church "ought not to protect him further." He is degraded (stripped of orders) and handed back to the secular arm.	Secular Court	To inflict the physical punishment (hanging/mutilation) that the Church cannot inflict.

Textual Evidence:

"Clerks charged and accused of anything, being summoned by the Justice of the king, shall come into his court... and in the ecclesiastical court for what it seems he should respond there... so that the Justice of the king shall send to the court of holy church to see in what manner the affair will there be dealt with. And if the clerk shall be convicted, or shall confess, the church ought not to protect him further." 24

Legal Interpretation: Henry’s logic was subtle. He did not claim the right to try the clerk; he conceded the trial to the bishop. However, he argued that the "clerk" ceased to be a clerk the moment he was degraded by the Church. Therefore, when the secular court took him to be punished, it was punishing a layman, not a priest. This avoided the prohibition on laying hands on the Lord’s anointed—the man was no longer anointed.6 The presence of the royal officer was a check against the Church’s notorious leniency; Henry wanted to ensure that guilty clerks were actually convicted, not just purged.

3.2 Becket’s Opposition: Nemo bis in idipsum

Becket rejected Clause 3 entirely. While he initially wavered under immense pressure (and the threats of the barons who were ready to use violence), he ultimately repudiated the Constitutions. His argument against Clause 3 was twofold:

1. The Argument from Immunity (Privilegium Fori): Becket argued that clerics were exempt from secular jurisdiction by right of their orders. Appearing in a secular court, even for a preliminary hearing (Step 1), violated this immunity. It was an act of submission to a temporal power that had no authority over the spiritual estate.4

2. The Theological Argument (Double Jeopardy):

Becket relied on a specific interpretation of Nahum 1:9 (from the Septuagint/Old Latin version): "God does not judge twice for the same thing" (Non iudicabit Deus bis in idipsum).

• The Logic: Becket argued that the degradation inflicted by the Church was a punishment in itself—indeed, for a priest, the loss of his orders was the spiritual equivalent of death. It deprived him of his livelihood, his status, and his sacramental power. To then hand him over to the secular arm for hanging would be to punish him twice for the single offense. This violated the divine nature of justice.
• Patristic Support: Becket’s scholars cited St. Jerome’s commentary on Nahum, which argued that God does not afflict the sinner with both tribulation in this life and the next for the same sin. Becket transposed this to the judicial sphere: the Church’s tribunal and the King’s tribunal could not both punish the same act.7

3.3 Other Contentious Clauses

While Clause 3 was the main battleground, other clauses struck at the heart of Papal power and the freedom of the Church, confirming Becket's view that Clarendon was a total assault on the Libertas Ecclesiae:

• Clause 4: Forbade archbishops and bishops from leaving the kingdom (i.e., attending Papal councils or appealing to the Pope) without the King's permission. This effectively severed the link between the English Church and Rome.24
• Clause 8: Established the final court of appeal as the King’s Court. It explicitly forbade appeals proceeding "further" (i.e., to the Pope) without the King’s consent. This challenged the universal appellate jurisdiction of the Papacy.24
• Clause 9 (Assize Utrum): Disputes over whether land was "alms" (Church land) or "lay fee" were to be decided by a jury of twelve laymen in the King’s court, not by the Church. This stripped the Church of jurisdiction over its own property disputes.24
• Clause 12: Gave the King the right to the revenues of vacant bishoprics and the right to influence the election of new bishops, confirming the King's feudal dominance over the prelates.24

3.4 The Collapse of the Council

The Council of Clarendon ended in disarray. Becket, after initially promising to observe the customs "in good faith" (omitting the "saving our order" clause), famously repented of his oath upon leaving the council. He suspended himself from saying Mass as penance for his weakness. The Pope, Alexander III, later condemned ten of the sixteen clauses, including Clause 3, as "repugnant to the statutes of the holy canons." This condemnation stiffened Becket’s resolve, leading to his trial at Northampton and his subsequent flight into exile in France.1

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Part IV: Canon Law vs. Common Law – A Deep Jurisprudential Divergence

The conflict over the Constitutions was not merely a political dispute; it was a collision of two developing legal sciences. The arguments used by both sides reveal the sophistication of 12th-century jurisprudence.

4.1 The Argument from Canon Law (The Gratianic View)

Becket’s legal team, the eruditi (including Herbert of Bosham and John of Salisbury), relied heavily on the Decretum of Gratian. However, the Decretum itself was ambiguous on the issue of double punishment, allowing for a "battle of texts."

• The Case for Immunity: Becket’s side cited Cause 11, Question 1 of the Decretum, which contains numerous canons forbidding clerics from being judged by laymen. They argued that the dignity of the sacrament of ordination placed the cleric outside the coercive power of the state. To judge a cleric was to judge God's own representative.15
• The Case for "Tradatur Curiae": Henry’s canon lawyers (he employed many, including the Bishop of Lisieux) pointed to texts in Gratian that seemed to support Clause 3. Specifically, the canon Tradatur curiae ("Let him be handed over to the court") suggested that a degraded cleric could be delivered to the secular power.

• Henry's Interpretation: The canon implies that degradation precedes secular punishment. Once degraded, the protection is gone.
• Becket's Interpretation: Becket’s lawyers argued that Tradatur curiae applied only to "enormous crimes" where the Church had specifically withdrawn its protection, or that it referred to a clerk who committed a second crime after degradation. They insisted that the act of degradation itself exhausted the judicial process for the original crime.7

Becket’s rigid stance on "double punishment" was arguably an innovation. Recent scholarship suggests that the "double jeopardy" argument was a novel construction by Becket’s circle, designed to provide a theological shield against Henry’s administrative reforms where clear canonical precedent was lacking.2

4.2 The Argument from Common Law (The Royal Prerogative)

Henry’s legal advisors were developing the early Common Law, a system based on precedent, writs, and the royal prerogative. Their argument was secular and functional:

1. The King's Peace: The King is the fount of justice. A murder breaks the King's peace, regardless of who commits it. The King has a duty to God to suppress violence. If the Church cannot execute a murderer, the King must, or else he bears the guilt of the unpunished crime.5
2. Feudal Obligation: Bishops and abbots held their lands as baronies from the King. They owed him counsel and were subject to his feudal jurisdiction in temporal matters. Henry argued that "criminous clerks" were often acting not in their spiritual capacity, but as temporal subjects breaking the temporal law.9
3. Custom: The practice of the Norman kings (William I and Henry I) established a precedent where the King ultimately controlled the punishment of felons. Henry II’s team produced witnesses—aged knights and barons—who swore that in the time of Henry I, clerks were regularly hanged for felonies. For Henry, custom was law; for Becket, custom was merely "ancient abuse".12

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Part V: The Resolution and the Survival of "Benefit of Clergy"

The murder of Thomas Becket in Canterbury Cathedral on December 29, 1170, by four royal knights, fundamentally altered the trajectory of the dispute. The revulsion of Christendom turned a tedious legal quarrel into a cosmic struggle. Henry II, facing excommunication and rebellion, was forced to capitulate on the specific clauses of Clarendon, though he retained much of their substance in practice.

5.1 The Compromise of Avranches (1172)

In May 1172, Henry II met the Papal legates at Avranches in Normandy to be absolved. As part of his penance and reconciliation, he agreed to the "Compromise of Avranches".17 The terms were carefully negotiated to allow both sides to claim a form of victory:

1. Abolition of "Evil Customs": Henry promised to abolish all customs introduced during his reign that were prejudicial to the Church. Crucially, he did not admit that the "ancestral customs" (like jurisdiction over clerks) were evil—only the "new" ones. This ambiguity allowed future royal lawyers to argue that the customs of Henry I were still valid.18
2. Appeals to Rome: Henry allowed appeals to the Pope (modifying Clause 8), but with a proviso: the King could exact security that the appellants would not seek to harm the kingdom or the King's person. This effectively kept the King as the gatekeeper of appeals.28
3. Criminous Clerks (The Great Concession): The King conceded that secular courts had no jurisdiction over the clergy for criminal offenses (crimen), with three specific exceptions:

• High Treason: A crime against the King's person was too great for the Church to shield.
• Forest Offenses: Poaching in royal forests remained under the harsh Forest Law.
• Civil Misdemeanors: Disputes over contracts, debts, and land remained in royal courts.28

The Outcome: Henry effectively surrendered Clause 3. Clerks accused of felonies (murder, theft, rape) would be tried and punished solely in ecclesiastical courts. This meant they escaped the death penalty. Becket’s principle of Nemo bis in idipsum had triumphed in the specific case of felony.

5.2 The Evolution of Benefit of Clergy (13th–19th Century)

The concession at Avranches created a legal anomaly that persisted for centuries. The "Benefit of Clergy" (privilegium clericale) evolved from a protection for priests into a bizarre loophole for the literate class of England.

The "Neck Verse"

By the 13th and 14th centuries, the definition of a "clerk" loosened. The Church, eager to protect its jurisdiction, claimed anyone who could read as a clerk. The secular courts, often eager to avoid the mandatory death penalty for minor felonies, began to accept a literacy test as proof of clergy.

• The Mechanism: A defendant convicted of a felony would claim "Benefit of Clergy." The judge would hand him a Bible (usually the Latin Vulgate). If he could read a specific verse, he was declared a clerk.
• Psalm 51:1: The standard text became Psalm 51:1 (Miserere mei, Deus, secundum magnam misericordiam tuam... "Have mercy upon me, O God, according to thy lovingkindness").
• The Result: Any defendant who could read this verse (or memorize it) was saved from the gallows. This verse became known in popular culture as the "Neck Verse" because it saved the neck from the hangman’s noose.30

Secularization and Reform

Over time, the Crown sought to limit this loophole without directly violating the Church’s rights. The history of Benefit of Clergy is a history of the State slowly clawing back jurisdiction:

• 1275 (Statute of Westminster I): Confirmed that a clerk convict must be delivered to the Ordinary (bishop) but insisted he must undergo "Purgation" (swearing innocence).32
• 1489 (Henry VII): A statute addressed the abuse of laymen claiming the benefit repeatedly. It ordered that laymen claiming the benefit should be branded on the thumb ("M" for murderer, "T" for thief) so they could only claim the privilege once. Actual priests were exempt from branding.31
• 1576 (Elizabeth I): The practice of handing clerks over to the bishop for purgation was abolished (as Purgation was seen as a Catholic abuse). Instead, the secular court would grant the benefit (sparing the life) but could imprison the offender for a year. The "Benefit" became a secular sentencing alternative.31
• 1706 (Queen Anne): The literacy test was abolished. The benefit became available to all first-time offenders for lesser felonies, effectively functioning as a "first offender" statute.
• 1827: Benefit of Clergy was finally abolished by the Criminal Law Act 1827, removing the last vestige of the Becket controversy from English law.29

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Part VI: Comparative Analysis of Legal Mechanisms

To fully grasp the mechanism of the conflict, we must contrast the two legal systems that operated in 1164 and how they handled the concept of the "Criminous Clerk."

6.1 Table: The Conflict of Laws

Feature	Henry II's Common Law	Becket's Canon Law
Source of Authority	The King (Crown), Ancestral Custom (Avitae Consuetudines), Leges Henrici Primi.	The Pope, Gratian's Decretum, The Bible (Nahum 1:9), Pseudo-Isidore.
Philosophy of Justice	Retributive & Deterrent: "The King's Peace" must be kept. Felony requires physical punishment (hanging/mutilation) to deter others.	Restorative & Sacramental: The goal is the salvation of the sinner. "Nolo mortem peccatoris" (I do not wish the death of a sinner).
Procedural Role of Clause 3	Secular accusation  Ecclesiastical trial  Secular punishment.	Ecclesiastical accusation  Ecclesiastical trial  Degradation (Final punishment).
View on "Clerks"	Subjects of the King first, clerics second. Subject to feudal law.	Subjects of God, separate "Estate." Immune from secular judgment (Privilegium Fori).
Punishment for Murder	Death (Hanging).	Degradation (Defrocking), Penance, Monastic confinement.

6.2 The Paradox of "Double Jeopardy"

One of the most profound insights from this conflict is the fluidity of the concept of "Double Jeopardy" (Non bis in idem).

• Becket's view: Degradation + Hanging = Two punishments for one crime. The spiritual death (degradation) is sufficient.
• Henry's view: Degradation is merely the removal of a privilege (status), returning the man to the state of a layman. Hanging is the punishment for the crime committed by the man.
• Modern Legal View: Henry's procedure resembles modern administrative discharge followed by criminal trial (e.g., a police officer fired for misconduct and then tried for the crime). Becket's view, while victorious in 1172, was arguably less "modern" in its refusal to acknowledge the state's right to punish violence. However, Becket’s defense of "due process" and the rights of the accused against the arbitrary power of the King is a foundational concept in the Western legal tradition.25

6.3 Pollock and Maitland's Assessment

The great legal historians Frederick Pollock and F.W. Maitland, in their History of English Law (1895), analyzed this conflict with a pro-royalist lens. They argued that:

1. Henry was Right: The "ancestral customs" were real. Henry I had indeed punished clerks. Becket was the innovator, bringing in "new" Canon Law to disrupt established English custom.8
2. Canon Law was Dangerous: Maitland viewed the immunity of criminous clerks as a "cancer" in the legal system that allowed thousands of murderers to escape justice. He argued that the "Benefit of Clergy" retarded the development of a rational criminal code in England for centuries.8
3. The Victory of Common Law: Despite the concession at Avranches, Henry won the war. The royal courts expanded relentlessly, using the writ system and the jury to marginalize the Church courts. By the 13th century, the "Assize Utrum" (Clause 9) had turned into a mechanism for the King to decide land disputes, and the Church courts were confined to marriage and wills.

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Part VII: Conclusion

The conflict between Henry II and Thomas Becket over the Constitutions of Clarendon was the defining moment of English legal history in the 12th century. It was not a simple battle between "Law" and "Religion," but a battle between two rival systems of Law—Canon and Common—each claiming universal jurisdiction over the subject.

Henry II failed to implement Clause 3 in 1164. The martyrdom of Becket ensured that for centuries, English law would contain a "state within a state," where literate men (and later women) could escape the full rigor of royal justice. However, Henry won the longer war. By forcing the issue, he established the principle that the "Customs of the Realm" were a distinct body of law, separate from Canon Law. The Compromise of Avranches halted the political expansion of Church courts into secular affairs (contracts, land), ensuring that the Common Law would become the dominant legal system of England.

Ultimately, the "Benefit of Clergy" survived not as a tribute to clerical immunity, but as a necessary safety valve in a Common Law system that was often too rigid and too bloody. It was a bizarre legacy of a saint who died defending the right of priests not to be hanged, creating a legal loophole that would eventually save the lives of Ben Jonson, various peers of the realm, and countless common thieves who had learned to memorize a single verse of a Psalm.

The "Core Conflict" was thus a paradox: a struggle for the "Liberty of the Church" that resulted in the strengthening of the State, and a struggle for "Royal Justice" that resulted in the institutionalization of mercy for the literate.

Works cited

1. Constitutions of Clarendon | Henry II, Church-State Relations, Royal, accessed on February 5, 2026, https://www.britannica.com/event/Constitutions-of-Clarendon
2. Becket controversy - Wikipedia, accessed on February 5, 2026, https://en.wikipedia.org/wiki/Becket_controversy
3. accessed on February 5, 2026, https://avalon.law.yale.edu/medieval/constcla.asp#:~:text=Churches%20of%20the%20fee%20of,3.
4. Thomas Becket Archbishop and Martyr The quarrel between Henry II, accessed on February 5, 2026, https://echa.org.uk/wp-content/uploads/2024/11/2ii-Thomas-Becket-Archbishop-and-Martyr.pdf
5. Thomas Becket and Clerical Immunity - CORE, accessed on February 5, 2026, https://core.ac.uk/download/pdf/217158281.pdf
6. Benefit of Clergy--A Legal Anomaly - UKnowledge, accessed on February 5, 2026, https://uknowledge.uky.edu/cgi/viewcontent.cgi?article=4977&context=klj
7. THOMAS BECKET AND HIS BIOGRAPHERS, accessed on February 5, 2026, https://politicayderechoenlaedadmedia.wordpress.com/wp-content/uploads/2016/07/staunton-thomas-becket-and-his-biographers-cap-9.pdf
8. The Learned Laws in 'Pollock and Maitland' - The British Academy, accessed on February 5, 2026, https://www.thebritishacademy.ac.uk/documents/3940/89p145.pdf
9. the understanding of the conflict between henry ii and thomas ..., accessed on February 5, 2026, https://dialnet.unirioja.es/descarga/articulo/9019728.pdf
10. Courts, Pleas and Kings in the Early Twelfth Century, accessed on February 5, 2026, https://www.cambridge.org/core/services/aop-cambridge-core/content/view/C60605828E2330E8CA8268928A31D824/stamped-9781787448896c6_p152-174_CBO.pdf/courts_pleas_and_kings_in_the_early_twelfth_century.pdf
11. The Courts Christian in Medieval England, accessed on February 5, 2026, https://scholarship.law.stjohns.edu/cgi/viewcontent.cgi?article=2399&context=tcl
12. Constitutions of Clarendon - Wikipedia, accessed on February 5, 2026, https://en.wikipedia.org/wiki/Constitutions_of_Clarendon
13. Leges Henrici Primi - Wikipedia, accessed on February 5, 2026, https://en.wikipedia.org/wiki/Leges_Henrici_Primi
14. The Reign of Henry I - History - Britain Express, accessed on February 5, 2026, https://www.britainexpress.com/History/Reign-of-Henry-I.htm
15. Criminal Law (Chapter 26) - The Cambridge History of Medieval ..., accessed on February 5, 2026, https://www.cambridge.org/core/books/cambridge-history-of-medieval-canon-law/criminal-law/76028B5B222F45784E7333657CAE5CE8
16. Gratian and His Book: How a Medieval Teacher Changed European, accessed on February 5, 2026, https://academic.oup.com/ojlr/article/10/1/1/6271403
17. Constitutions of Clarendon | In Custodia Legis, accessed on February 5, 2026, https://blogs.loc.gov/law/2014/12/constitutions-of-clarendon/
18. 2025 TD 2 The Murder of Thomas Becket | PDF - Scribd, accessed on February 5, 2026, https://www.scribd.com/document/948076516/2025-TD-2-the-Murder-of-Thomas-Becket
19. Assize of Clarendon | Catholic Answers Encyclopedia, accessed on February 5, 2026, https://www.catholic.com/encyclopedia/assize-of-clarendon
20. A Primer on the Origins and Implications of The Thomas Becket Affair, accessed on February 5, 2026, https://digitalcommons.lmunet.edu/cgi/viewcontent.cgi?article=1031&context=lmulrev
21. The case of Philip de Brois , about July 1163, accessed on February 5, 2026, http://conclarendon.blogspot.com/2013/01/the-most-renowned-case-concerning.html
22. Henry II - Brill, accessed on February 5, 2026, https://brill.com/downloadpdf/display/title/13735.pdf
23. The Constitutions of Clarendon - Courses, accessed on February 5, 2026, https://courses.kvasaheim.com/common/docs/clarendon.pdf
24. Constitutions of Clarendon. 1164. - The Avalon Project, accessed on February 5, 2026, https://avalon.law.yale.edu/medieval/constcla.asp
25. 13 - The Abbess, the Empress and the 'Constitutions of Clarendon', accessed on February 5, 2026, https://www.cambridge.org/core/books/english-legal-history-and-its-sources/abbess-the-empress-and-the-constitutions-of-clarendon/7F8BDA438774C8EAA6C512A37677BE89
26. Nahum 1:9 Commentaries: Whatever you devise against the LORD, accessed on February 5, 2026, https://biblehub.com/commentaries/nahum/1-9.htm
27. King Henry II and Thomas Becket: the beginnings of a reconciliation?, accessed on February 5, 2026, https://ianstone.london/2020/01/19/king-henry-ii-and-thomas-becket-the-beginnings-of-a-reconciliation/
28. Compromise of Avranches - Wikipedia, accessed on February 5, 2026, https://en.wikipedia.org/wiki/Compromise_of_Avranches
29. Benefit of clergy - Wikipedia, accessed on February 5, 2026, https://en.wikipedia.org/wiki/Benefit_of_clergy
30. Case study 1 - the influence of the Church in the 13th century ..., accessed on February 5, 2026, https://www.brainscape.com/flashcards/case-study-1-the-influence-of-the-church-6941398/packs/10741612
31. Benefit of Clergy | Middle Ages, American & English Law - Study.com, accessed on February 5, 2026, https://study.com/academy/lesson/benefit-clergy-overview-origin.html
32. Statute of Westminster, The First (1275) - Legislation.gov.uk, accessed on February 5, 2026, https://www.legislation.gov.uk/aep/Edw1/3/5
33. Statute of Westminster 1275 - Wikipedia, accessed on February 5, 2026, https://en.wikipedia.org/wiki/Statute_of_Westminster_1275
34. redefining benefit of clergy during the english reformation, accessed on February 5, 2026, https://minds.wisconsin.edu/bitstream/handle/1793/65455/SkousenMAThesis.pdf?sequence=1&isAllowed=y
35. The History of English Law before the Time of Edward I, 2 vols., accessed on February 5, 2026, https://oll.libertyfund.org/titles/maitland-the-history-of-english-law-before-the-time-of-edward-i-2-vols