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SOCIOLOGICAL ASPECTS OF CANONICAL INQUISITIONS

A sociological exploration of a canonical inquisition can help to answer this, by focusing on the social structures and institutional tensions that the procedure was intended to navigate.[1] [2] Even with the norm established that bishops were accountable (deceat so to speak), it remained very tricky to institutionalize it formally (liceat) in a way that was both practicable and did not undermine other aspects of the church hierarchy (expediat). An inquisition from the other end of the thirteenth century, long after the technicalities of the procedure had been developed, can provide the focus: the 1301—3 inquisition into Walter Langton, Bishop of Coventry and Lichfield.

If we return to Qualiter et quando, its explicit concern was clerical accountability, its rubric: ‘how and in what way a prelate ought to proceed to investigate and punish the offences of his subjects’. The target then was principally a person—although, as the early commentators noted, inquisitions could also be de statu ecclesiae.162 These clerics were secular ones. As an early commentary noted, there were other ways of regulating those in monastic orders.[3] The canon was framed with two distinct objectives in mind and with enormous sensitivity to their potential effects.

The first objective was the regulation of clerical excessus. Excessus was clearly linked with the insolence of office (not acting insolenter was important).[4] The second objective simply qualifies the first very heavily: the regulation of excessus should not itself hazard further the Church’s stability—‘Let careful precaution nevertheless be taken in all cases lest serious loss is incurred for the sake of a small gain [in reprimanding an individual].’ The above analysis has shown why inquisitorial procedure should be a cause for hierarchical concern. It was a tender point.[5] The legislation therefore had to achieve a very fine balance between securing the demands of ecclesiastical, pastoral sollicitudinem and of ecclesiastical utilitudinem.

Qualiter et quando is a clever solution to this problem. It expresses a feeling for hierarchy that practically qualifies clerical status while upholding its form in principle. This may be less contradictory than it sounds. Take Mary Douglas’s argument for a more flexible definition of hierarchy than historians or social scientists often use:

Hierarchy is not a vertical command structure dominated by an up-down pattern of communication. It is not a system requiring unquestioning deference to arbitrary fiats issued from above. . . [H]ierarchy restricts position, it institutes authority. Its institutions work to prevent concentrations of power. It is a positional system in which everyone has a place, every place has a prescribed trajectory of roles through time, in total the pattern of positions is coherent and the roles are coordinated.166

This may well be over-optimistic: hierarchy may well be characterized by what Douglas decries. Nevertheless, her description remains valuable as an ideal type, not a transhistorical norm. Taken as such, the approach to status in Qualiter makes sense. The formal character of ecclesiastical hierarchy is always upheld: ‘not only when a subject has committed some excess [excedit] but also when a prelate has done so, if the matter reaches the ears of the superior [my stress] through an outcry or rumour [. . . ] the superior should carefully investigate the truth before senior churchmen’.167 Inquisitions are conducted by superiores. But inferiores can instigate them. Diffamatia can come from anywhere. It needed to come from anywhere if the insolence of office was to be moderated, otherwise the pauperes would fear to speak against the potentes.168 Hence the canon’s anxiety to put firewalls around that licence which was Qualiters central, combustible purpose.169

The qualifying of superiores’ authority in Qualiter should therefore be taken as a necessary intrusion to counteract official excessus. It transgresses the ideal order in proportion to clerics’ and prelates’ prior exceeding of their office. There is, therefore, a symbolic logic that the reprimand for the abuse of status enables inferiores to complain against those powers ordained by God.

A further firebreak on the risk of an inquisition damaging the wider ecclesiastical fabric was provided by the canon’s guidance on penalties. Innocent knows too that prelates cannot avoid being whipping boys for diocesan complaints by virtue of their office and power. Innocent also concedes how damaging to the wider edifice of the church such proceedings may be. The Innocentine emphasis on a bishop’s marriage

Roberti Grosseteste [. . .] epistolae, #127; F. A. C. Mantello, ‘Bishop Robert Grosseteste and His Cathedral Chapter: An Edition of the Chapter’s Objections to Episcopal Visitation’, Mediaeval Studies 47 (1985), 367—78; The Letters of Robert Grosseteste, Bishop of Lincoln, ed. F. A. C. Mantello and Joseph Goering (Toronto, 2010), #127, and Apps. A—B, 432-41 and Davis, Holy Bureaucrat, chs. 3—4.

  • 166 Mary Douglas, ‘A Feeling for Hierarchy’, in James L. Heft (ed.), Believing Scholars: Ten Catholic Intellectuals (Fordham, NY, 2005), 94—120 at 95—6.
  • 167 Constitutiones Concilii quarti Lateranensis, 55 (cap. 8).
  • 168 The same sociology lies behind the 1164 Assize of Clarendon’s regulation of accusations by credible persons and empanelled jury where people do not dare to accuse: C&S, i.2. 880; further, Helmholz, ‘Early History of the Grand Jury’, 618—25.
  • 169 The issue of correcting superiors is a broader one. See Wilfried Hartmann, ‘Discipulus non est super magistrum (Matth. 10: 24), Zur Rolle der Laien und der niedern Kleriker im Investiturstreit’, in Hubert Mordek (ed.), Papsttum, Kirche und Recht im Mittelalter: Festschrift fur Horst Fuhrmann zum 65. Geburtstag (Tubingen, 1991), 187—200; I. S. Robinson, ‘Periculosus homo: Pope Gregory VII and Episcopal Authority’, Viator 9 (1978), and Authority and Resistance (Manchester, 1978), 124—7, 169—170; Knox, ‘Accusing Higher Up’; Philippe Buc, LAmbiguite du livre: Prince, pouvoir etpeuple dans les commentaries de la Bible au Moyen Age (Paris, 1994), ch. 6 esp. 350^08, on how scriptural encouragement for the popular correction of rulers was canalized within safe boundaries during the thirteenth century. Thery notes the rarity of procedures against prelates from very lowly clerics or laity (‘«Exces» et «affaires d’enquete»’, i. 450). In a different field it is worth remembering that the importance of hierarchy meant a slight mental gulp was needed to grant that even a reeve was liable on complaint to ‘respond to his subjects’ (respondeat subditis suis), LHP, cap. 56.4, cf. 31.7; F. M. Stenton, The First Century of English Feudalism, 1066—1166, 2nd edn. (Oxford, 1961), 61. Obviously cf. also above, pp. 26—9.

to his diocese would also establish a presumption against the possibility of dismissing bishops.[6]

On the count of heresy Lateran IV articulates the unequivocal rule that a negligent bishop was to be deposed from episcopal office.[7] While conceding that degradation should not immediately follow from non-heretical inquisitions, Qualiter readily grants suspension from all administrative responsibilities.[8] As noted (pp. 159—61), it was the lesser qualities of episcopal status that were emphatically initially at risk from inquisitorial procedure.[9]

Innocent reminded the prelates that they were mere villici at the same time as he suggested that the loss of administrative powers might be ‘all’ they would face. Qualiter et quando’s sanctions were produced by a calculus of risk and damage which sought to balance individual punishment and collective stability.

Perhaps, however, Qualiter et quando was better pastoral theology than legal procedure.[10] Despite the elegance of its legal solution, when the canon turned to address the question of prelates’ accountability it did so with a considerable sense of caution.

While this [inquiring into offences] should be observed in the case of subjects, all the more carefully [my emphasis] should it be observed in the case of prelates who are set as a mark for the arrow [Lam. 3: 12]. Prelates cannot please everyone since they are bound by their office not only to convince but also to rebuke and indeed sometimes even to suspend and indeed often to bind. Thus they frequently incur the hatred of many people and endure plots against them. Therefore the holy fathers have wisely decreed that accusations against prelates should not be admitted readily without careful provision being taken through which the door may be closed not only to false but also to malicious accusations, lest, with the columns being shaken, the building itself collapses [Judg. 16: 30]. They thus wished to ensure that prelates are not accused unjustly in such a way that at the same time they take care not to sin in an arrogant manner, finding a suitable medicine for each disease: namely a criminal accusation that aims at loss of status, that is to say degradation [i.e. cancellation of clerical status], shall in no way be allowed unless it is preceded by a charge in a lawful form.[11]

The caution is explicable. This is an exceptionally clear expression of the papal desire to integrate the appropriate (deceat), the feasible (liceat), and the politic (expediat). The ethical imperative behind holding prelates to account for their excesses is uppermost. But there is the sheer problem of how an under-resourced, relatively immobile Curia could realistically aspire to hold prelates to account across Christendom. Realizing this jurisdiction practically requires that the policing of delicts be delegated, just as with papal judges-delegate more generally.[12] Indeed when canonical inquisitions are triggered by action at the Curia, papally appointed inquisitors are simply a species of papal judge-delegate (as in the case of Geoffrey of York). Even the nature of the knowledge that could provide a satisfactory criterion for triggering an inquisition would remain to be specified. The solution, adopting infamia and scandalum as the touch-paper for sparking inquisitions, was as inspired as it was problematic.

It was inspired because it was a solution which made a virtue of necessity. Surveillance was ‘outsourced’ and secured by using the sheep to watch the shepherd. It was inspired because it was a flexible, local, and, strikingly, subjective measure.[13] It was also problematic: to initiate an inquisition into a prelate on the basis ofpublica fama was to institutionalize a subjective measure as the criterion for legal proceedings. Deceat and expediat are knotted at the heart of the formula that renders inquisitions of this sort possible (liceat). ‘Communities’ or, more neutrally, groups, determined whether its clergy’s faults and failings were intolerable enough to produce a scandalum. There is no objective metric for that.[14]

The early commentaries on Lateran IV presumed two important things in this context. The first was a presumption, already noted, in favour of inquisitions being sparked by some person(s) actively initiating the case (cum aliquo instigante), despite the ostensible point of inquisitions being to investigate crimes without any such activity. The general presumption of the legal commentaries made shortly after Lateran IV was that, despite clamors provision of an inquisition’s formal motive power, that there would be someone instigating it.179 Inquisition became a relatively risk-free way of accusing someone to all intents and purposes. As Lotte Kery has pointed out, the membrane separating the related legal proceedings of accusation, inquisition, and exception was in fact highly permeable.180 The second presumption of early Lateran IV commentators and which qualified the first, was that any complainant would be from the affected community.181

The problematic aspects of this canny solution are brought out further by reflecting on the rationality of what was permitted to spark Qualiter et quando-type inquisitions. The canon said,

But when because of their excesses someone will be notorious such that now an outcry rises up which cannot be ignored any further without scandal or tolerated without danger, then without the slightest hesitation, let action be taken to inquire into and punish his excesses, not out of hate but rather out of charity.182

There is a functional logic here. (It is clear why an inquisition should be conducted if communities/solidarities are this upset.) Yet, despite the canon’s earlier warning about unfounded allegations, these criteria offer no guidance on whether a group’s upset is rational, proportionate, or real. From this perspective an inquisition is carried out whenever enough (of the right sort of) people think it ought to be. That is justification enough. It makes political sense. The collapse of relations between groups (indicated by clamor and scandalum) proves an investigation should be held. The logic is not quite ‘no smoke without fire’, but rather ‘if you have smoke you have a problem’. Thereafter an inquisition proceeds on formally rational grounds. (There institgating the inquisitions, but to the judge evaluating whether the infamia was infamia or the offence offensive. This is true, but it also seems to me that communities similarly obtained some subjective latitude to judge or assert whether a cleric was scandalous, a latitude that was as open to abuse as the judge’s discretion, and on which I comment shortly. See Julien Thery, ‘Atrocitas/enormitas. Esquisse pour une histoire de la categorie d’«enormite» ou «crime enorme» du Moyen Age a l’epoque moderne’, Clio@Themis: Revue electronique dhistoire du droit 4 (2011), 1—48, at 30—6; Thery, Fama: L’Opinion publique comme preuve judiciare: Aper^u sur la revolution medievale de l’inquisitoire (XIIe—XIVe siecle)’, in Bruno Lemesle (ed.), La Preuve en justice de lAntiquite a nos jours (Rennes, 2003), 119—47, esp. 119—20, 132—5, 141; Thery, ‘«Exces» et «affaires d’enquete»’, i. 470—1, 475, 487—93. Vallerani stresses both, Medieval Public Justice, 38—9, 106—13; see also Stern, ‘Public Fame: A Useful Canon Law Borrowing’, esp. 671—2. On the importance of the community as judge, ‘the hidden foundation of all legal systems in practice’, see Alexander Murray, Suicide in the Middle Ages, ii. The Curse on Self-Murder (Oxford, 2000), 452-82 (quote 468).

!79 See Johannes Teutonicus, Apparatus in concilium quartum Lateranense, and Vincentius Hispanus, Apparatus in concilium quartum Lateranense on an impetrator (in Constitutiones Concilii quarti Lateranensis, respectively 197-201, 298-303, both passim).

  • 180 Kery, ‘Inquisitiodenunciatio—exceptio, 267.
  • 181 Apparatus in concilium quartum Lateranense in Constitutiones Concilii quarti Lateranensis, 201 (Johannes Teutonicus); 300 (Vincentius Hispanus).
  • 182 Constitutiones Concilii quarti Lateranensis, 56 (cap. 8).

are headings of complaint: they are investigated by competent judges; the proceedings are formal, with certain summary qualifications.) They can, though, be initiated on non-rational or incoherent grounds. The fact that the inquisition must be then conducted on rational grounds (technically at least) is intended to ensure the rationality of the overall process. Practices of accountability vary in where they are at their most subjective. Judgements on sheriffs were at their most unpredictable (political or ‘irrational’ if you will) in the final assessment of how much a sheriff might be actually expected to pay straight away: ‘where financial matters were concerned, judgement in a court simply meant a judicial reinforcement of the King’s will’.[15] Canonical procedure arguably risked being most subjective or unpredicable at the point where the inquisition was triggered. Parallel observations of politicized inquisitorial techniques have been made about non-ecclesiastical examples.[16]

A pragmatic cost-benefit analysis accompanied the ‘no serious loss for the sake of a small gain’ rule. This produced an in-principle inconsistency between a mere cleric’s excessus and a prelate’s. The former might merit investigation, although a prelate’s might not—because the relative ‘loss’ might be more serious. This law was a respecter of persons. The practical value of this for communities was that it both laid the burden of policing the system on them and required them to determine transgressions by unavoidable reference to locally dominant, and acceptable, styles of being a bishop. If there was no offence taken, there was no offence. It also, however, reserved judgement on discerning a prelate’s excessiveness to papal judges, or the pope himself.

That is to offer a reading of the ideal dynamics allowed by the law. But an important, actual qualification is that the offended solidarities might ‘only’ be competing clerical factions, not an oppressed ‘little community’, to use Moore’s phrase. To the extent that those instigating inquisitions into prelates and clerics are themselves members of often clerical elites, the more likely they are to frame their complaints in terms that they imagined other clerical elites would take seriously. Such complaints are proportionately less ‘vernacular’. Such was the case with many complaints of episcopal excessus, as, again, with the case of Geoffrey of York above. It was the same with Walter Langton, Bishop of Coventry and Lichfield (see pp. 173-83).

A connected problem was the fact that many inquisitorial charges were so manifold that one has the strong suspicion they are the result of such disaffected elites massing sufficient charges to make an inquisition irresistible, because clearly scandalous. Indeed the premium placed on scandalum as the relevant criterion for initiating an inquisition quite probably meant that contentious figures magnetically attracted multiple counts of scandalous conduct by legally informed instigantes. On balance this seems likely for instance regarding the multiple charges relayed by the

Chapter of Laon against Bishop Anselm de Mauny 1233—7.[17] That legal procedures were used for non-legal ends is a necessary consequence of humans’ use of them. The non-juridical aims of litigation is well-acknowledged in the literature. Cases might be abandoned part-way through, once some other purpose had been served.[18] Church courts, like others, could serve as a place of dispute-resolution, rather than of law-enforcement.[19] In the same way, inquisitorial procedure could be irrational yet functional, lending support to the idea that part of its usefulness to communities was the space it provided aggrieved and influential members of a diocese to express grievances about a prelate or cleric.[20] The risk of licensing this was central to what Maitland saw as the key difference between canonical inquisitions and English inquests and presentment (accusatory) juries.[21] He argued that the key thing was the way in which sworn declarations were validated by either procedure. In the common law it was taken as accusatory, and subject to scepticism accordingly. Post-1215 and the banning of ordeals a judge terminated a case with a (non-presentment) jury’s verdict (a finding of fact).[22] In the romano-canonical ius commune it was taken as testimony with a judge using it to determine truth and give judgement.[23] Given the play made with the law in practice one may wonder how nice these distinctions are. But the model of rumours is functionally very similar between presentment jury and communal rumours ascending towards an prelate inquiring ex officio. Further, the scope for preliminary canonical inquiries into the standing of the infamia indicates too that reliance upon it was not unqualified.

The structure of inquisitions, then, both enabled subjective complaints—since it is the outraged community that effectively triggers an inquisition—while simultaneously encouraging complaints to be framed in recognizable terms—since the complaints would demonstrably need to lead to scandalum or infamia to produce an inquisition. Even if an inquisition was granted, however, there was still considerable latitude open to papal judgement.[24] Prior, recognized norms of being a bishop were needed in order to demonstrate their breach. The development of inquisitorial legislation then can be seen as one marker in the much longer dialectical process of articulating those norms.[25]

The sociological interpretation then is that inquisitorial procedure was a practical, inspired answer to the question of ‘who will guard the guards?’. It was, though, a compromise, in that not only was there little understandable ecclesiastical appetite for radically circumscribing episcopal status, but the practical problems in enabling those inferior to bishops to complain about them were significant. It also made a virtue out of a papal weakness. Beyond prelates themselves the papacy lacked any group through whom it could supervise prelates (papal legates are a partial exception, but could not be expected to cover the ground). The reliance therefore on—in principle—local standards to determine problematic prelates (determined by judges- delegate through scandalum and publica fama, etc.) was a very intelligent one. Were the aims of the legislation met by application of the procedure in practice? Is scandal avoided and infamy controlled? Were malicious prosecutions avoided or not by the development of this sort of formidable procedure? One final example may provide an illustration of the problems.

  • [1] I am using ‘institutional’ in the sense of social practices here, although it has obvious connections with the organizations and groups around bishops (their and other prelates’ familiae, cathedralchapters, the Curia, etc.).
  • [2] Vincentius Hispanus, Apparatus in concilium quartum Lateranense, in Constitutiones Conciliiquarti Lateranensis, 299.
  • [3] Casus anonymi fuldenses in Constitutiones Concilii quarti Lateranensis, 485.
  • [4] See Lemesle, ‘Corriger les exces’, 754—60. For a parallel example of official excessus linked tothe duty of correcting superiors see Jocelin of Brakelond’s (fl. 1173—c.1215) passage where RanulphGlanvill berates the monks for permitting Abbot Hugh to appoint town reeves without their counsel(thus allowing the king to claim that right during the abbacy’s vacancy). This licence by Hugh isdescribed as excessus. Jocelin explicitly notes the tension between monastic obediency to prelates andcorrecting superiors since Glanvill ‘non advertens quod monachorum summa religio tacere est, etexcessus suorum prelatorum clausis oculis preterire’, Chronicle of Jocelin, 73. In late twelfth-centuryEngland excessus can be found used in relation to public wrongs—see the Dialogue of the Exchequer onthe wrongs Henry II determines to right at the Northampton in 1176, purprestures, or the righting ofother wrongs (DS, II.ii, II.x, II.xiii, at 77, 94, 107).
  • [5] As disputes about visitation rights show, in relation to Boniface of Canterbury, RobertGrosseteste, or Eudes Rigaud. See e.g. C&S, ii.1. 447—8, Annales monastici, iii. 151, 181 (Canterbury);
  • [6] See the 21 August 1198 decretal Quanto personam venerabilis (3 Comp. 1.5.3; X 1.7.3; Reg. Inn.HI, i. #335), and commentary in Pennington, Pope and Bishops, 16, 38, 112. The tension betweenimmovability and modern conceptions of removable officials is noted in Udo Wolter, ‘Verwaltung,Amt, Beamter, V-VF, in Otto Brunner, Werner Conze, and Reinhart Koselleck (eds.), GeschichtlicheGrundbegriffe: Historisches Lexikon zur politisch-sozialen Sprache in Deutschland, 8 vols. in 9 (Stuttgart,1972-97), vii. 32.
  • [7] Constitutiones Concilii quarti Lateranensis, 49 (cap. 3).
  • [8] Constitutiones Concilii quarti Lateranensis, 56 (cap. 8).
  • [9] Dignitas auctoritatis was for a bishop, dignitas amministrandi was for a bishop and for lesserofficials. See Die Summa decretorum des Magister Rufinus, ed. Heinrich Singer (Paderborn, 1902),151-3, ad. Decretum, D. 60 (Ecce ex parte). Discussion: Robert L. Benson, The Bishop-Elect: A Study inMedieval Ecclesiastical Office (Princeton, NJ, 1968), 65-6. Cf. Wolter, ‘Verwaltung, Amt, Beamter, V-VL, 30, on Johannes Andreaes 1298 distinction between dignitas (of one who having administrationhas jurisdiction); personatus (one who has pre-eminence but not jurisdiction), and officium (pertainingto those having ecclesiastical administration but without jurisdiction or pre-eminence).
  • [10] A complementary analysis is Fraher’s ‘Preventing Crime in the High Middle Ages’, especiallyhis emphasis on expediency (231). The same concern with setting a balance between superiors’ rightsand wrongs to inferiors is visible in Lateran IV cap. 12’s principle in relation to monastic visitations‘quia sic uolumus superiorum iura seruari, ut inferiorum nolimus iniurias sustinere’ (ConstitutionesConcilii quarti Lateranensis, 61). Much historiography has concentrated on the legal status of inquisitorial procedure—e.g. Kery, ‘Inquisitio—denunciatio—exceptio argues these actions, although notformally criminal, increasingly functioned as such (266-8).
  • [11] Constitutiones Concilii quarti Lateranensis, 55—6 (cap. 8).
  • [12] See in general, Jane E. Sayers, Papal Judges Delegate in the Province of Canterbury 1198—1254(Oxford, 1971).
  • [13] I stress ‘local’ because this partly qualifies R. I. Moore’s sharp contrast between the justice ofthe ‘little community’ and the justice of the lord. For Moore, justice belonged ‘either to the little community of custom, tradition and face-to-face authority, or to the large one of written law, literacy andthe clerks’. Moore implicitly sees the change from the former to the latter as a largely bad thing forcommunities. His analysis is not dissimilar from Bisson’s in Crisis of the Twelfth Century, but he drawsthe opposite inference. For Bisson such changes are implicitly a good thing. Inquisitions (qua LateranIV cap. 8), however, offer, at least in principle, a mediate case between those two mutual exclusivesof ‘community’ and ‘public authority’. They are mediate because they both rely on ‘central’ papal orepiscopal authority for their resolution, and on ‘local’ demonstrable scandalum for their trigger. Thisis notable since Moore sees Lateran IV specifically as marking the closing phase of his First EuropeanRevolution in which the little community distinctly loses out to a hardening world of bureaucrats andinquisitors. See First European Revolution, 170, 174. Moore’s contrast anyway risks sentimentalismabout that little community. See Edward Peters, ‘Moore’s Eleventh and Twelfth Centuries: Travelsin the Agro-literate Polity’, in Michael Frassato (ed.), Heresy and the Persecuting Society in the MiddleAges: Essays on the Work of R I. Moore (Leiden, 2006), 11—29, at 27. For the opposite risk of idealizinggovernment see below pp. 248—53.
  • [14] In several important articles Julien Thery has stressed the subjectivity of canonical inquisitionsfrom the opposite direction: that they provide enormous discretion, not so much to the communities
  • [15] J. C. Holt, Northerners: A Study in the Reign of King John, rev. edn. (Oxford, 1992), 182,speaking specifically about King John. Cf. Wendy Davies, ‘Judges and Judging: Truth and Justice inNorthern Iberia on the Eve of the Millennium’, Journal of Medieval History 36 (2010), esp. 201-3on the rhetorical stage management of juridical decisions, but where that may not detract from theircontent.
  • [16] Serena Morelli, ‘«Ad extirpenda vitia»: normativa regia e sistemi di controllo sul funzionariatonella prima eta angioina’, Melanges de lEcole frangaise de Rome: Moyen-Age, temps modernes 109.2 (1997)’, esp. 472-3, 474-5.
  • [17] Sabapathy, ‘Accountable rectores in comparative perspective: the theory and practice of holding podesta and bishops to account (late twelfth to thirteenth centuries)’, in Agnes Berenger andFrederique Lachaud (eds.), Hierarchie des pouvoirs, delegation de pouvoir et responsabilite des admin-istrateurs dans lAntiquite et au Moyen Age, Centre de Recherche Universitaire Lorrain d’Histoire,Universite de Lorraine—Site de Metz 46 (Metz, 2012), 215—20.
  • [18] Brundage, Medieval Origins of the Legal Profession, 445—6.
  • [19] Charles Donahue, Jr., ‘Roman Canon Law in the Medieval English Church: Stubbs vs. MaitlandRe-Examined after 75 Years in the Light of Some Records from the Church Courts’, Michigan LawReview 72 (1974), 647—716 at 706; Vallerani, Medieval Public Justice, passim; late thirteenth-centuryBolognese patterns in Sarah Rubin Blanshei, Politics and Justice in Late Medieval Bologna (Leiden,2010), 273-4, 343-4.
  • [20] By ‘irrational yet functional’ I mean that there was an incoherence between the means andends of inquisitorial procedure (as I have demonstrated) but that the functions that it served, whileinconsistent with some of those ends, are apparent and demonstrable. See further D. L. d’Avray,Rationalities in History: A Weberian Essay in Comparison (Cambridge, 2010).
  • [21] 189 Frederick Pollock and Frederic William Maitland, The History of English Law before the Time ofEdward I, reissued edn. by S. F. C. Milsom, 2 vols. (Cambridge, 1968), i. 151-3, ii. 656-9; Britton,i. 22.
  • [22] 19° Pollock and Maitland, History of English Law, i. 139-40; Robert Bartlett, Trial by Fire andWater: The Medieval Judicial Ordeal (Oxford, 1986), 137-9; Paul Brand, ‘The English MedievalCommon Law (to c. 1307) as a System of National Institutions and Legal Rules: Creation andFunctioning’, in Paul Dresch and Hannah Skoda (eds.), Legalism: Anthropology and History (Oxford,2012), 173-96 at 177-8.
  • [23] Vallerani, Medieval Public Justice, passim.
  • [24] See Thery, ‘Fama: L’Opinion publique comme preuve judiciare’, 131—5, 145—7.
  • [25] Two classic treatments are Benson, Bishop-elect and Pennington, Pope and Bishops.
 
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