GEOFFREY OF YORK’S INQUISITIONS IN CONTEXT
There are several themes to be drawn from this material. First it is worth summarizing the legal learning revolving around Geoffrey’s case, in order to interpret the attempts to hold Geoffrey to account within their legal matrix. Secondly, since this episcopal accountability was not uncontroversial, some account is needed of the a priori political ideas that allowed canonical inquisitorial procedure to exist.
Those involved in Geoffrey Plantagenet’s case included clerics highly skilled and informed in current and emerging canon law.69 They would have been up to date with legal thinking as it was emerging around the Curia, often in response to problems posed by prelates across Christendom, some of whom were in England.
According to Gerald of Wales, Geoffrey ‘once studied liberal arts for some time’ at Northampton, which had an important legal studium at the time.70 From c.1200 on Geoffrey’s familia included clerks endorsed by Innocent III himself.71 Geoffrey had skilled canonists before then too. William Longchamp was Geoffrey’s clerk until 1189 during which time he wrote a Practica legum on romano-canonical procedure (1181—9).72 Other sometime members of Geoffrey’s familia included Simon of Apulia (perhaps a former clerk) and the important canonist and Oxford teacher,
bishop of Carlisle (Innocent III English Calendar, #474). In June Eustace again was appointed to lead a party of judges mandated to resolve Geoffrey’s failure to grant institutions at Kirkham (Innocent III
English Calendar, #499 and see ##591, 759).
- 67 Reg Inn. III, vii. #35, 1 April 1204 (‘Quia omne regnum’ = Innocent IIIEnglish Calendar, #552); Reg Inn. III, viii. #6, 26 February 1205 (‘Venerabilis frater noster’ = InnocentIIIEnglish Calendar, #605).
- 68 EEA 27, lvii and n. 163. Innocent’s defence of Geoffrey against John’s attacks: Innocent III English Calendar, ##775—7, 792, 867 (respectively December 1207, May 1208, May 1210).
- 69 On late twelfth-century Angevin learning in canon law see Kuttner and Rathbone, ‘Anglo-Norman Canonists of the Twelfth Century’; Charles Duggan, ‘The Reception of Canon Law in England in the Later-Twelfth Century’, Proceedings of the Second International Congress of Medieval Canon Law: Boston College, 12—16August 1963, ed. Stephan Kuttner, J. Joseph Ryan (Vatican City, 1965), 359—90, repr. as #XI of Duggan’s Canon Law in Medieval England: the Becket Dispute and Decretal Collections (London, 1982). See also Alain Boureau, La Loi du royaume: Les Moines, le droit et la construction de la nation anglaise (XIe—XIIIe siecles) (Paris 2001), chs. 3—5, on Benedictine legal aptitudes; R. H. Helmholz, The Oxford History of the Laws of England, i. The Canon Law and Ecclesiastical Jurisdiction from 597to the 1640s (Oxford, 2004), 120—34; Sam Worby, Law and Kinship in Thirteenth Century England (Woodbridge, 2010).
- 7° Gerald of Wales, De Vita Galfridi Archiepiscopi Eboracensis in Giraldi Cambrensis Opera, iv. 410; H. G. Richardson, ‘The Schools of Northampton in the Twelfth Century’, EHR 56 (1941), 595—605; Kuttner and Rathbone, ‘Anglo-Norman Canonists of the Twelfth Century’.
- 71 York, 1189—1212, EEA 27, xcviii and xcvi—c on the familia and Geoffreys relative failure as a patron.
- 72 Ed. Exupere Caillemer, ‘Le Droit civil dans les provinces anglo-normandes au XIIe siecle’, Memoires de lAcademie nationale des Sciences, Arts et Belles-Lettres de Caen (Caen, 1883) and internally
Honorius (briefly Geoffrey’s Official).73 It was a falling-out with Honorius and a consequent dispute about his Archdeaconry at Richmond that in fact resulted in Geoffrey’s inadvertant contribution to canon law, since two of Innocent III’s rulings on this would be included in Gregory IX’s Liber extra.74 Further, if X 5.3.28 is to be connected with Geoffrey’s misconduct, then he provided the grounds for three decretals in the Corpus iuris canoniciJ5 Geoffrey’s peer at Canterbury was just as well equipped. When Honorius left Geoffrey’s service he moved to Hubert Walter’s. Walter’s roster of canonists included the ostensible leader of the Oxford canonist group, John of Tynemouth, as well as Simon of Sywell.76 It was also Walter who received early in the summer of 1201 the important letter Dilectus filius magister, which drew distinctions between accusatorial and inquisitorial penalties, and the variable consequences permitted through either procedure.77 An earlier Archbishop of Canterbury, Richard of Dover (r.1173—84), was also the recipient of an important letter (26 June 1174 x 1176) ordering him to restrain the ex officio investigations of Coventry’s archdeacons into lay and clerical misdeeds.78 This was not the only letter addressed to an English prelate regarding overenthusiastic clerics acting ex officio. Alexander III also ordered the same abuse by an Archdeacon ‘R’ of Chester to cease, an order that also made its way into Compilatio prima and the Liber extra7 Finally, Bishop Eustace of Ely—also Hubert Walter’s predecessor as Chancellor—figured prominently in the later investigations into Geoffrey. Eustace himself was the recipient of some thirty-five papal letters, often mandates to act as judge-delegate. For a Paris-trained scholar that judicial experience prompted numerous practical questions datable (48—9); ‘Rectifications et additions’ by Gerard Fransen and Pierre Legendre, Revue historique de droit jran$ais et etrange 44 (1966), 115—18; comment in Fowler-Magerl, Ordines iudiciarii, 64.
- 73 Charles Duggan, ‘Honorius (d. c.1213)’, ODNB; Frank Barlow, ‘Apulia, Simon of (d. 1223)’, ODNB; James A. Brundage, The Medieval Origins of the Legal Profession: Canonists, Civilians, and Courts (Chicago, 2008), 112—14.
- 74 X 3.7.6; X 3.8.7; Douie, Archbishop Geoffrey Plantagenet, 13—14. 75 See p. 144 n. 48.
- 76 Canterbury, 1162—1190, ed. C. R. Cheney and Bridgitt E. A. Jones, EEA 2 (Oxford, 1986), xxviii—xxix; C. R. Cheney, Hubert Walter (London, 1967), 164—6; Thomas of Marlborough, History of the Abbey of Evesham, ed. Jane Sayers and Leslie Watkiss, OMT (Oxford, 2003), 232^ and notes.
- 77 X 5.3.30, Dilectus filius magister (May—June 1201) (InnocentIIIEnglish Calendar, #331; Potthast #1403). Since it might otherwise be presumed relevant it is worth noting (as others have) that the important decretal Ut famae tuae (10 December 1203, X 5.39.35), which addresses this theme, is addressed not to the Bishop of London, but the Archbishop of Lund, and so does not have an English matrix. Richard M. Fraher’s important article on this subject is unaffected by this misattribution: see ‘The Theoretical Justification for the New Criminal Law of the High Middle Ages: “rei publicae interest, ne crimina remaneant impunita” ’, University of Illinois Law Review (1984), 577—95. On Fraher see p. 163 note 151.
- 78 X 5.37.3 (1 Comp. 5.32.3; Jaffe 14315), reiterated in Richard’s mandate to the Archdeacons, Canterbury, 1162—1190, EEA, 2 #115. Comment in Caenegem, ‘Public Prosecution of Crime’, 27.
- 79 ‘Mandamus, quatenus prohibeatis’ (X 1.23.6). This ‘R’ would fit with Archdeacon Robert of Chester appearing in Coventry acta from the second half of the century, but is it not clear whether ‘Robert’ is the same Robert throughout the period, let alone this ‘R’. See Coventry and Lichfield, 1160— 1182, ed. M. J. Franklin, EEA 16 (Oxford, 1998), 113. Charles Duggan’s Decretals and the Creation of New Law' in the Twelfth Century: Judges, Judgements, Equity and Law (Aldershot, 1998) and Walther Holtzmanns Decretales ineditae saeculi XII, ed. and rev. Stanley Chodorow and Charles Duggan, Monumenta iuris canonici, Ser. B: Corpus collectionum 4 (Vatican City, 1982) do not appear to discuss this decretal. It appears elsewhere with a variant incipit (‘Mandamus ut ex nostra parte—durius’), see 1 Comp. 5.32.4, Jaffe #13857, and Collectio Rotomagensisprima in Walther Holtzmann, Studies in the
for the Pope. One 21-point set of queries from Eustace (‘this lengthy examination paper’, Maitland called it) elicited the extensive reply, Pastoralis officii diligentia, all of whose rulings passed into canon law.80
It is clear then that many of the prelates involved in the investigations into Geoffrey had a high level of knowledge about current procedure. This is important because it provides a basis for interpreting the significance of the investigations into Geoffrey.
In 1202 there was an investigation formally per denunciationem. In 1194 there had been one that seemed to oscillate between accusation and inquisition. Such experimentation—perhaps the consequence of discussion at the Curia—shows both the selecting of legal mechanisms and their limits.81 Notwithstanding the formal differences between procedures their functional content here was very similar—ex officio investigation on the basis of reliable report into publicly alleged conduct.82 A significant difference between accusatory and inquisitorial procedure was that it lacked, formally, an accuser. That was a raison d’etre. But commentators on Lateran IV cap. 8 who wrote very soon after its promulgation were quite clear that inquisitions can be ex officio or cum aliquo promovente.83 Indeed, the tone of some of their comments implies that they presumed that it would be normal for there to be an impetrator inquisitionis—and the rule whereby an inquisition can be pursued on fama alone needed to be reiterated in the case of inquisitions where the impetrator is removed a prosecutione eius inquisitionis.84 That is, from early on the very rule that was ostensibly the point of procedure per inquisitionem and which made it easier than accusatorial cases needed reiterating in case it was overlooked. In practice, then, and notwithstanding that inquisitions were easier to procure than accusations, inquisitions often needed someone—beyond the investigating prelate—to get the ball rolling. Geoffrey of York’s cases show that, in his case, a strong cathedral chapter was more than willing to oblige. The same would continue to be true after Lateran IV.85 York Minster had a good sense of what it had to play with procedurally, especially if Howden was not
Collections of Twelfth-Century Decretals, ed. C. R. Cheney and Mary G. Cheney, Monumenta iuris can- onici, Ser. B: Corpus collectionum 3 (Vatican City, 1979), 188 #13.
- 80 Reg. Inn. III, vii. #169, trans. InnocentIIIEnglish Letters, #22, 19 December 1204. Others count the number of legal issues raised in this text differently. On Eustace, see Dorothy M. Owen, ‘Eustace (d. 1215)’, ODNB. Maitland’s remark is in Roman Canon Law in the Church of England: Six Essays (London, 1898), 126. Maitland views these questions as an underemployed jurist’s ‘what if’s (124), but given Eustace’s extensive experience as a judge-delegate it seems more likely that he had simply deduced from experience a large set of questions whose answers he thought it least troublesome to request in one go.
- 81 Susan Reynolds might describe the mechanisms as inchoate: Fiefs and Vassals, 389.
- 82 See also Jacques Chiffoleau, ‘«Ecclesia de occultis non iudicat» L’Eglise, le secret, l’occulte du XIIe au XIV siecle’, in Il Segreto, The Secret, Micrologus 14 (Florence, 2006), 359-481 at 419—20.
- 83 Johannes Teutonicus, Apparatus in concilium quartum Lateranense, in Constitutiones Concilii quarti Lateranensis, 197.
- 84 Vincentius Hispanus, Apparatus in concilium quartum Lateranense, in Constitutiones Concilii quarti Lateranensis, 300. On these commentators, see Antonio Garcia y Garcia, ‘The Fourth Lateran Council and the Canonists’, in Wilfried Hartmann and Kenneth Pennington (eds.), The History of Medieval Canon Law in the Classical Period, H40—1234: From Gratian to the Decretals of Pope Gregory IX (Washington DC, 2008), 367—78.
- 85 e.g. Richard Marsh at Durham in the 1220s or Anselm de Mauny at Laon in the 1230s. The most complete set of cases is available in Thery, ‘«Exces» et «affaires d’enquete»’.
using the language of ‘accusation’ technically, but in terms of the chapter’s political intentions. The legal savoir faire of those involved allows some presumption in their favour. Nor does Geoffrey’s seemingly successful evasion denote the chapter’s failure. Such inquisitions played roles in local political conflicts whose importance is hard to evaluate counterfactually. A contemporary cabinet minister who has survived a tabloid scandal is not the same person politically as the pre-scandal minister. The papal letters in turn imply the clarification and even the ex post facto re-rationalization of procedure going on in midstream. The different approaches would anyway continue to be procedurally fluid. The investigations into Geoffrey show how the interaction of lawyers, popes, and prelates was beginning to produce political ‘facts on the ground’ through legal means very similar to those that Innocent III would continue developing. The argument, anyway, is not that here we see inquisitorial procedure ‘invented’ (just as it was not the case that Adam of Eynsham’s exemplum about Hugh of Lincoln shows him inventing it). Rather, Geoffrey’s case demonstrates that in late twelfth- and early thirteenth-century England there were local, ongoing experiments to find satisfactory ways of holding prelates to account, using the legal material and methods to hand and which were ostensibly the result of the back-and-forth of particular cases.
England seems indeed an apposite place for such experiments, given its familiarity with summary procedure in the secular sphere. We have early English examples of archdeacons being reprimanded for overenthusiastic ex officio conduct at Coventry and Chester—rulings that made their way into canon law. These may imply a wider ease with ex officio action in England. Ex officio inquiries were certainly familiar in the field of secular executive action. We have seen Hubert Walter change hats to order just such a secular ‘ex officio’ enquiry, in the context of York Minster’s ecclesiastical complaints against Geoffrey. Further, there is the well-known habit of senior prelates holding simultaneously or concurrently both high ecclesiastical and high secular office in this period: Thomas Becket, Hubert Walter, Geoffrey himself, William
Longchamp, Eustace of Ely, Peter des Roches—the list could be extended. Such individuals would consequently have been familiar with forms both of secular ex officio action and of ecclesiastical ex officio and summary action—such as they existed. Again, as a simple example, one can point to the letter Dilectus filius magister from Innocent III to Hubert Walter about inquisitorial and accusatorial procedure. It would be entirely natural for an administrator such as Walter to have an interest in both the lay and the ecclesiastical sides of the coin used to initiate summary procedure. Again, the suggestion is not that England invented inquisitorial procedure. Rather the suggestion is that, given the existence of cases early on involving prelates and inquisitions; and the presence of informed Anglo-Norman canonists dealing with such cases during the period of the romano-canonical procedure’s development; and the frequency with which senior prelates held senior secular offices in this period; and the existence of concurrent secular English summary procedures of inquisition; and the canon law’s working out of such theoretical problems through case questions, that it then seems entirely likely that English thought and practice more than played their role in the development of the ‘theory in practice’ that ultimately produced Lateran IV cap. 8. This is the opposite of making an argument for English ‘exceptionalism’. It is rather to make an argument for a useful consonance between English ‘vernacular’ practice and romano-canonical practice. It suggests a meaningful coincidence between the two. It is in the nature of the material that it should be difficult to point to proof texts connecting one legal forum to another. What is clear is the concurrent elaboration of comparable procedures involving those on both sides of the lay and ecclesiastical ‘fence’.
If these parallels are suggestive, what does this coincidence mean, and what were the factors that may lie behind it? Suggestions can be offered by considering the nature of the interests served by the development of both canonical and secular English inquisitions. It is easier to demonstrate the nexus of individuals in England who would have both awareness of English and canonical inquisitions than it is to demonstrate a direct causality from one to the other. But to do so might anway risk missing the important question of why such comparable inquisitorial techniques should be useful to both papal and secular English institutions. Robert Bartlett has made this point in relation to the medieval ordeal’s origins: ‘The important thing is not the putative descent of some practice or institution, but its function and significance in the living society in which it has a place’. This is to restate Marc Bloch’s critique of the ‘quest for origins’. It is one thing, Bloch argued, to describe the historical antecedents of a practice or institution—say Estates with financial and political powers. It is another thing to explain why at a given point their role within a given society changed qualitatively. ‘To unearth the seed is not the same as revealing the causes for its germination.’ Maitland’s argument (to risk repetition), that ‘legal ideas never reach very far beyond practical needs’ implies something similar: whose needs did these various inquisitions serve? There are various elements of Roman law bound up in canonical inquisitions, but to say that Roman law influenced the canon law on inquisitions does not explain why canonical inquisitions existed, or were developed in the later twelfth century. That, accordingly, is what the final part of this chapter does, focusing on canonical inquisitions, using English secular anal ogues as a counterpoint, and closing with a shorter consideration of some later thirteenth century inquisitions.
-  On the organic growth and intermixing of relevant procedural elements even after their formalization, cf. Kery, ‘Inquisitio—denunciatio—exceptio 267—8; Thery, ‘«Exces» et «affaires denquete»’,i. 60, 530—1; Chiffoleau, ‘«Ecclesia de occultis non iudicat»T, passim. For a late thirteenth centuryFranciscan critique of the modes as a single complex, see Richard de Mediavilla, Questions dispu-tees, ed. Alain Boureau, 6 vols. (Paris, 2012—14), vi. q. 45 esp. art. 3—4, comment, xxx—xxxiv; AlainBoureau, ‘Une parole destructrice: La Diffamation. Richard de Mediavilla et le droit individuelau peche’, in Julie Claustre, Olivier Matteoni, and Nicolas Offenstadt (eds.), Un Moyen Age pouraujourdhui: Melanges offerts a Claude Gauvard (Paris, 2010), 306—14.
-  This is consonant with others’ recent arguments that Innocent III did not invent inquisitorialprocedure ex nihilo. Cf. the argument by Hirte that Innocent’s activities in this field impress as ‘mehrevolutionar denn revolutionar’, although they still have a ‘gewisse neue Qualitat’ (Papst Innozenz III,294). See also Kery’s argument that the key Innocentine developments build on work done fromAlexander III’s pontificate on (‘Inquisitio—denunciatio—exceptio’, 227—8). But there is no reason whythe Curia should have a monopoly on relevant legal experimentation. A strong argument for whatwould be parallel (if more influential) developments in France has been made by Jessalynn Bird in‘The Wheat and the Tares: Peter the Chanter’s Circle and the Fama-based Inquest Against Heresy andCriminal Sins, c.1198—c.1235’, in Proceedings of the Twelfth International Congress of Medieval CanonLaw: Washington, D. C. 1—7 August 2004, ed. Uta-Renate Blumenthal, Kenneth Pennington, andAtria A. Larson, Monumenta iuris canonici, Ser. C: Subsidia 13 (Vatican City, 2008). Bird argues thatParisian Masters played a key experimental role in developing fama-based inquests.
-  Cf. comment in Murray, Reason and Society, ch. 13.
-  See Raoul van Caenegems comments on chauvinism in interpreting the ‘English’ jury, TheBirth of the English Common Law, 2nd edn. (Cambridge, 1988) 76; Vallerani, Medieval Public Justice,58—9; Maddicott, Origins of the English Parliament, ch. 7 for illuminating relevant analysis of Englishexceptionalism as a variation on a European pattern. Karl Blaine Shoemaker, ‘Criminal Procedure inMedieval European Law’, ZRG Kan. Abt. 85 (1999), 174—202 argues that post-1215 England and theContinent diverge legally, the former’s jury system continuing a communal ‘ordeal’-type mentality;the latter increasingly committed to written records and objective fact-finding. The contrast seemsexaggerated. Cf. (e.g.) the parallelisms noted by Laura Ikins Stern, ‘Public Fame: A Useful CanonLaw Borrowing’, in Proceedings of the Eleventh International Congress of Medieval Canon Law: Catania,30 July—6 August, 2000, ed. Manlio Bellomo and Orazio Condorelli, Monumenta iuris canonici, Ser.C: Subsidia 12 (Vatican City, 2006), 661—72 at 670.
-  9° For a parallel argument, R. H. Helmholz, ‘The Early History of the Grand Jury and the CanonLaw’, University of Chicago Law Review 50 (1983), 613—27. John Hudson, Oxford History of the Lawsof England, ii. 871—1216 (Oxford, 2012), 532—3, 735—8, is sceptical. But pace Hudson’s reservation(736 n. 166) that secular and canonical inquiries differed importantly in relation to the indisputableinfamia triggering them, they seem comparable to me in that canonical inquiries are initiated wherethere is ‘enough’ concern about infamia to justify further investigation. Similarly, English juries couldstill require further investigation of allegations after presenting suspicions, indicating their infamia wasalso to be proven (Glanvill, 171). Britton too worried about the reliability of jurors’ opinions (Britton,ed. Francis Morgan Nichols, 2 vols. (Oxford, 1865), i. 32). A helpful questionnaire for such problemsis John Hudson, ‘Magna Carta, the Ius Commune, and English Common Law’, in J. S. Loengard(ed.), Magna Carta and the England of King John (Woodbridge, 2010), 99—119 at 101.
-  91 Underlying this is the idea of elective affinities as adapted by Max Weber: that two distinct socialphenomena can have complementary features which, if they were brought together, can strengthenthe parts and the whole. See pp. 241—6.
-  Bartlett, Trial by Fire and Water, 154.
-  On the danger of ‘confusing ancestry with explanation’, Marc Bloch, The Historian's Craft, trans.Peter Putnam (Manchester, 1954), 32 and 29—35.
-  94 Bloch, ‘Pour une histoire comparee des societes europeennes’, in his Melanges historiques, 2 vols. (Paris, 1963), i. 16-40 at 25.
-  Maitland, Township and Borough, 27. Bruno Lemesle makes the same point in relation to witness inquiries in twelfth-century Anjou, arguing that explanations based on societal need are moreinstructive than simply citing Anglo-Norman influence’. Lemesle, ‘L’Enquete contre les epreuves: LesEnquetes dans la region Angevine (XIIe-debut XIIIe siecle)’, in Claude Gauvard (ed.), L’Enqueteau Moyen Age, Collection Ecole fran^aise de Rome 399 (Rome, 2008), 41-74 at 50. Cf. WilliamC. Jordan’s similar point that Carolingian missi dominici do not explain Louis IX’s enqueteurs, Louis IXand the Challenge of the Crusade (Princeton, NJ, 1979), 53.
-  96 The causal relationship between Roman law and canonical inquisitorial procedure is complex.Naz argued that Innocent III, not Roman law, was the efficient cause of inquisitorial procedure —seeDictionnaire de droit canonique, ed. R. Naz, 7 vols. (Paris, 1935-65), v. ‘Inquisition’, R. Naz, cols.1418-26 at 1418. G. R. Evans, Law and Theology in the Middle Ages (London, 2002), 123-9 discussesRoman infamia in this context, noting divergences. Trusen notes inquisitio was used generically inRoman law without specific legal meaning (‘InquisitionsprozeE’, 170). His caution about overinterpreting ‘prefigurements’ of inquisitorial procedure is juridically sensible, but not so useful when askingwhy law was socially useful and therefore what such prefigurements mean. Ex officio action existed inRoman law too. See J. Dahyot-Dolivet, ‘La Procedure penale d’office en droit romain’, Apollinaris 41(1968), 89-105, and also his ‘La Procedure judiciaire d’office dans l’eglise jusqu’a l’avenement du PapeInnocent III’, Apollinaris 41 (1968), 443-55. Being infamatus in Roman law entailed serious loss oflegal and public status. See W W Buckland, rev. Peter Stein, A Textbook of Roman Law from Augustusto Justinian, 3rd edn. (Cambridge, 1963), 91-2. More generally publica fama had legal powers welloutside ecclesiastical contexts in the twelfth century as shown by Wickham, Courts and Conflict, sees.v. ‘publica jama and ‘Fama and the Law in Twelfth-Century Tuscany’, in Thelma Fenster and DanielLord Smail (eds.), Fama: The Politics of Talk and Reputation in Medieval Europe (Ithaca, NY, 2003),