Accountability and Justice?
Practices of accountability then did not promote justice in an uncomplicated way. The most obvious reason is that those practices could themselves be corrupted, subverted, or discarded.
The image that illustrates this book’s cover is from a manuscript produced in London or Westminster in the late 1280s—early 1290s, perhaps at the request of the French royal court. It is a bible moralisee, a compendium of biblical images and quotes in which each biblical image has a connected moralized pendent interpreting it. This image is a moralized pendent, an unhappy bishop having his mitre removed by other prelates while the pope looks on. Its caption describes how ‘when some bad prelate through his bad examples corrupts the souls of his subjects some accuse him before the pope and he is convicted and deprived of his dignity’. It is an obvious reassuring allusion to the effectiveness of the sorts of inquisitions, denunciations, and accusations analysed in Chapter 4. The image to which the de-mitred bishop refers telescopes the events of 2 Maccabees 4: 39—44. A prelude to the full Maccabean revolt (c.166—57 вс) against the Seleucids of Judah, this episode concerns the simoniac, murderous, treacherous, embezzling, sacrilegious, hellenizing high priest Menelaus. Menelaus’s deputy and brother has died bloodily suppressing a riot in Jerusalem protesting against his and his brother’s practices (170 вс). A trio delegated by the Jewish council (gerousia) accuses Menelaus to King Antiochus IV Epiphanes (175—164 вс) in Tyre (control at a distance in action). This is the freeze-framed moment that the bible moralisee illustrates, the delegation’s accusation of Menelaus to Antiochus paralleling that of the bishop before the pope below it. The biblical episode offers rich connections to episcopal accountability: an abusive officer, public outcry and fama, denunciation before a higher authority, due process, the appeal to the public good. The actual end of the scriptural story is less edifying (vv. 45—50). Menelaus bribes Antiochus to sentence to death the men who have brought the case against him. Menelaus gets off. ‘He stayed in power, growing in malice and in betrayal of the citizens.’ The whole episode of 2 Maccabees 4: 39—50 illustrates the subversion of that accountability that the interpreted abbreviation purports to deduce. The bible indeed considers the subsequent events of vv. 45—50 in terms of curial corruption and bad counsellors leading fallible popes astray. In the parable of the unjust steward of Luke 16 one is left wondering just where the accountability is located that one is supposed to admire. Taking 2 Maccabees 4: 39—50 as a whole a reader might think that the story illustrates the fallibility, not the strength, of practices of accountability when faced with brute politics. (To which a response might be ‘What else is there?’. At least Menelaus’s due deserts come eventually when his Seleucid allies ritually execute him by throwing him from the top of a tower fifty cubits high into a great pit of ash—‘by such a law did death come to the transgressor of the law’, 2 Maccabees 13: 7.)
Ways of securing accountability can try to forestall their own subversion but, if others connive in this, ultimately subjects have few alternatives beyond the revolt which eventually toppled Menelaus. This problem is longstanding and intractable. It is present in one of the first extended discussions of official accountability and its limits, Aristotle’s account of the tyrant’s subversion of euthynaE2 A tyrant who can subvert accounting ‘will not appear as a tyrant but a responsible steward [dispensans yconomus]’ because, in Peter of Auvergne’s gloss, ‘he will appear to work for the common good [bonum commune] and will not appear to be a tyrant’.153 The human problem too lies behind one of the modern period’s most famous ‘answers’, Benthams panopticon, which sought to do away with the problem by reducing officers to a bare, monitoring minimum.
That officers and rulers can subvert the practices designed to restrain them is a straightforward qualification to the justice of accountability. A still more basic point may be made. There is nothing about practices of accountability that themselves imply more equitable official conduct, for the simple reason that such practices need imply little about the ends to which they are put.
Gregory the Great described how, just as God held his court of justice, so the Devil called his demons to account for their wrongdoings.154 It is the ends not the means of government which give it normative content. ‘Without justice what are kingdoms but great gangs?’ asked Augustine, modifying the pirate’s taunt to Alexander the Great that the only thing determining their different titles was the scale of their operations, not the difference of their conduct.155 Devices for establishing accountability sensu strictu too are devoid of value to create anything but a rather thin official ethic.156 For that some ideology of responsible office is also required.157 Often some mix of the two was present, but not always. Sheriffs, it was argued, were rather unusual in lacking a more positively developed ideology
!52 Aristotle, Politics, 1314b 1— 10 (V. 11), discussed in Sabapathy, ‘A Medieval Officer and a Modern Mentality’, 72—4, see also 68—9.
!53 In William of Moerbeke’s translation and Peter’s literal commentary on Politics 1314b6—14 (V11, VIII. 11 in William): Aristotelis Politicorum libri octo. Cum vetusta translatione Guilelmi de Moerbeka, ed. Franciscus Susemihl (Leipzig, 1872), 581; Aquinatis opera omnia: ut sunt in indice Thomistico: additis 61 scriptis ex aliis medii aevi auctoribus, ed. Roberto Busa, 7 vols. (Stuttgart-Bad Cannstatt, 1980), vii. 446 (Peter’s 5.12).
!54 ‘Cumque singuli spiritus ad inquisitionem eius exponerent, quid operati contra bonos fuissent’. The inquisitio is that of the ‘humani generis antiquus inimicus’. Gregoire le Grand, Dialogues, ed. Adalbert de Vogue, Sources chretiennes, 3 vols. (Paris, 1978—80), ii. 280 (§3.7.4—5).
!55 De civitate dei, 4. 4, relevantly recalled to Louis IX by Guibert of Tournai in his Eruditio regum etprincipum, 49 (§2.1.6). For relevant Carolingian reflections, Janet L. Nelson, ‘Kings with Justice, Kings without Justice: An Early Medieval Paradox’, in La giustizia nell’alto medioevo (secoli ix—xi), Settimane di studio del Centro italiano di studi sull’alto medioevo 44 (Spoleto, 1997), 797—823, and Fouracre, ‘Carolingian Justice’.
!56 I set out the theoretical basis informing this section in Sabapathy, ‘A Medieval Officer and a Modern Mentality’, 68—79.
!57 Cf. Nelson’s stress on the personal responsibility Charlemagne sought in his 802 oath: Janet L. Nelson, ‘Charlemagne and Empire’, in Jennifer R. Davis and Michael McCormick (eds.), The Long Morning of Medieval Europe (Aldershot, 2008), 219—34 at 230—2. It can be seen as the counterpart to the Carolingian practice of giving officials overlapping duties to diffuse power and encourage co-supervision, as Davis argues in the same volume (‘Pattern for Power’).
of responsibility from the crown’s side. It was in such a context that much of the period’s ideals about shrieval office were expressed negatively as complaints or in the form of alternate schemas such as the 1258 ordinance of sheriffs. A further reason for caution about how practices of accountability contribute towards some ideal of office is that a purely accountable office strips an agent of latitude and institutionalizes distrust. For this reason, such purely accountable officers seldom exist, if ‘purely accountable’ means officers are controlled only by the formal mechanisms of accountability, and not by ‘softer’ social expectations and internalized norms. Accountability, often associated with trust, is, strictly speaking, a compensation for trust’s absence. Given the reliance of delegated power at a distance throughout most forms of medieval government, a purely accountable office would be hard to sustain practically. It is the relationship between practices of accountability and related ideals of office that is an important proxy for any equitable effects from the officialization of power. Louis IX’s 1254 Grande ordon- nance is consequently an interesting example of regulating officials’ conduct by appealing to responsibility and imposing accountability from a sequence of different, specified angles. Like Charlemagne, Louis relied on both internalized norms and externalized rules. So baillis and prevots swear an oath at the assizes before others ‘so they will dread to incur the vice of perjury, not only from fear of God and us, but for worldly shame’ (personal obligation operating through religious conscience, dread of the king, and social opprobrium). They should also have a sufficient sense of their office’s ethics that ‘if they know of any official, sergeant, prevot, who is disloyal, a thief, usurer, or full of other vices for which he should lose our service [. . .] they will punish and judge him in good faith’ (responsible self-policing). Finally baillis, viscontes, prevots, and mayors are to remain forty days in their bailiwick after ending their office in order to be judged ‘so that they may answer the incoming baillis should there be any alleged wrongdoing which some may wish to complain of’ (formal accountability). It stands useful comparison with the 1258 reforming English ordinance of sheriffs, prescribing conduct towards the county, and Edward I’s 1274 oath stressing a more developed ethic of responsibility to the king. The ordinance similarly made explicit that the point of fixed annual tenure was to help communities ‘fear [royal officers] less and more confidently describe their wrongs’.
Different historians have framed these distinctions in various ways though the phenomena they are differentiating seem basically similar. Michael Clanchy’s attractive distinction between law and love fits well again here. (Though loyalty might need stressing here within love.) The applicability to Louis’s ordinance is obvious. If love relies on public undertakings it also depends on some internalized inner conscience. By and large love polices itself. The devices for accountability discussed here largely lean on law not love. A similar contrast is Cristina Jular Perez-Alfaro’s between ‘positive’ norms and ‘negative’ corrective complaints procedures (though perhaps such normative language is better avoided). Thomas Bisson’s contrast between older, more feudal bonds of fidelitarian accountability and a later twelfth- and thirteenth-century accountability of competent office draws a similar contrast. It is the relationship between these two dynamic tendencies that is needed to supplement the question of ‘Who, whom?’. There is no general answer about how these tendencies came to be balanced in this period. There were officers in whose case an excess of ‘law’ over ‘love’ created difficulties (Plantagenet sheriffs, arguably). Bishops, however, provide a case of an office that had both some of the richest literature about love-cum-fidelity, and an increasingly formalized method of accountability that could lead to interminably complex legal cases of indeterminate outcome. It could also be abused and abusive—as with Philip IV’s use of inquisitorial techniques to destroy the Templars. As for bailiffs and stewards, there was both a rich English literature on manorial ‘love’, and also a highly legalistic procedure for dealing with bailiffs’ lack of love through the action of account. (The same is true ofpodesta, an exceptionally interesting case given that their literature of responsibility and ‘love’ was sometimes explicitly articulated to neutralize the application of sindacatio’s law to them.) Wardens stand a little apart since their regulation was informed by a longstanding monastic literature of responsibility and by the greater ability to regulate that given their collegial institutionalization. There the paradox seemed to be rather one of status, an uncertainty about how to correlate the relative standing of fellows and wardens.
The great qualification to this critique of accountability’s justice, as noted, is that nevertheless these procedures did create various objective, ‘official’, rules for conflict and various sorts of more or less level playing fields. These procedures might be costly, partial, or distant—but they were there. The material explored here is clearly an expression of a renewed belief in the desirability and possibility of officials’ accountability. Definitions of what constituted that accountability varied and were contested, but it is very striking that, even if practices left a deal to be desired, even in cases of strong hierarchies predisposed against inferiores’ involvement in holding their superiores to account, that there was both a pragmatic and principled acknowledgement that officials’ accountability was possible. Office might well be insolent, but in the later twelfth and thirteenth centuries across important groups of mediocres officers, the right to insolence was increasingly open to question.
This equivalent judgement recognizes that much medieval accountability was connected to some wider idea of a common good, but that this perspective was inevitably partial in practice and principle. Versions of this view lie behind some thoughts, again, of Augustine and Peter Abelard that may terminate this study. Both articulated the principle, discussed in earlier chapters, that the investigation of crimes was needed in order to serve the public good. One version (ne crimina remaneant impunita) was earlier discussed regarding the justification of prelates’ accountability. Abelard and Augustine articulated the principle in distinctly ambivalent ways. Augustine’s view is clear, bleak, scornful:
Will the wise man sit as judge amidst the darkness of our social life, or not dare to? Of course he will sit. For human society binds and drags him to this office, which he thinks it a crime to abandon. He does not think it a crime that innocent witnesses are tortured because of someone else’s case; that those accused are often overcome by the force of torture, make false confessions and are punished although innocent; that, even if not liable to the death penalty, many die under or after torture; that sometimes those who accuse others, perhaps wishing to benefit human society by ensuring that crimes do not go unpunished [ne crimina inpunita sint], are instead condemned by an ignorant judge because witnesses lie and the fiercely obdurate defendant does not confess under torture, so that they cannot prove what they allege, although they spoke the truth. The wise judge does not reckon so many and such great evils to be sins. For he does not act out of the desire to harm but under the necessity of ignorance, just as human society compels the necessity of judgement.
Society’s compulsion to judge is as unavoidable as a judge’s ignorance in judging.
Abelard’s view is perhaps not so bleak. Abelard’s confidence about inquiry [inqui- sitionem] as a means to truth has already been quoted (p. 236). Elsewhere, however, he suggested more cautionary inferences were needed regarding the capacity of human institutions to establish the truth. Speaking specifically about the public punishment of moral crimes, Abelard contrasted men’s limited perspicacity with God’s—‘inspector of intent and consent’, ‘tester of the heart and guts’. Human justice’s necessarily limited perspective meant that it can only be scandalized by what it can see; ‘so that we seek to forestall public rather than correct individual wrongs’. For Abelard ‘public’ becomes a hazardous criterion, both an unavoidable proxy for demonstrable wrongs, and a limited proof of offences committed: ‘For whatever can redound to the common ruin or public detriment should be punished with greater correction, and what causes greater wrong deserves among us a heavier penalty, and the greater the scandal [scandalum] with men the greater the punishment which it incurs among men, even though a lighter fault has preceded it.’ Abelard thinks these judgements necessarily limited by our dependence for judgement on outward acts (opera) not inner faults (culpas). Adulterers receive milder punishments than fire-starters. A man having sex in a church scandalizes less for his corruption of a woman and the spiritual temple, and more for his social offence. Abelard judges that
These things take place following the exigencies of stewardship [dispensationis tempera- mento] more than the dues of justice so that [. . . ] we attend to collective utility by preventing public wrongs. [. . . ] Thus, reserving mental wrongs to divine judgement, we prosecute with our own judgement the [outward] effects of those faults which we have to judge, attending, as we said, to what is stewardly in such things, that is, the logic of foresight rather than pure equity.
Human accountability is constituted by the politics of the visible and the possible. Public judgement follows public exigency. Judgements need to look ‘right’.
Some 712 years separate Abelard’s and Augustine’s deaths. Some 872 years separate Abelard from the present and such judgements remain intractable. The British Government’s 2005 Inquiries Act legislating for public inquiries empowers a minister to ‘cause an inquiry to be held under this Act in relation to a case where it appears to him that—(a) particular events have caused, or are capable of causing, public concern, or (b) there is public concern that particular events may have occurred’.176 By their lights, the medieval solutions considered above were no less elegant, no less simplistic. The hazardousness of medieval institutional judgements when it came to holding officers to account has certainly been seen: in the initial arrangement of who was accountable to whom for what; in the matter of who judged what constituted ‘a reasonable account’; in the question of whose utility was served by accounted judgement; by the arguable nature of determining infamy and scandal; or by conflicting judgements regarding the competing claims of individual dues as distinct from those of the institution ‘itself’.177
The later twelfth and thirteenth centuries saw a great intensification and extension of practices of holding officers to account, mostly for the benefit of the institutions responsible for such officers, but with some, sometimes unintended, knock-on gains for the communities amongst which the officer lived. The elaboration of devices for holding these officials to account generated a dynamic of its own, one that did not preclude ‘love’, even if, by nature, it preferred ‘law’. Any justice from accountability was perhaps a consequence of some complementarity between these two ways of resolving conflicts.178 These devices for institutionalizing accountability, in whatever sphere, reflected an extraordinarily creative response in England—and beyond—to the problem of complex government and control at a distance: accountings, inquisitiones, sindacationes, scrutinia. Many of these institutions and methods for securing accountability persist in modified forms today. Many of the problems and limitations consonant with the solutions they offer persist likewise. There is nothing, however, to imply that medieval conceptions of the possibilities and limitations of earthly accountability were less pragmatic or more deluded than contemporary ones. Indeed it is possible, in so far as medieval expectations of divine accountability tempered expectations of worldly accountability, that medieval realism about the limits of worldly accountability was of a comparable, sometimes superior, quality to our own.
condition). See also her remarks that ‘scientific formulae [. . .] always carry the marks of their social origins’, How Institutions Think, 56. For ‘scientific formula’ here read ‘socially legitimate means of holding to account’.
!76 The Inquiries Act 2005 (London, 2005), 1 (available at http://www.legislation.gov.uk/ ukpga/2005/12/contents, accessed February 2014). For (e.g.) the Leveson Inquiry see p. 237 n. 49. Select Committee on the Inquiries Act [House of Lords], The Inquiries Act2005: Post-legislative Scrutiny, Report of Session 2013—14 (London, 2014) raises issues and limitations relevant to the preceding analysis; see esp. summary and §§44-52, 63-5, 95-7, 106, 110, 119, 147-50, 162-4, 202, 208-10, 211-15, 226, 281, 291-3, 298-9.
!77 Cf. for the present, Anthony King and Ivor Crewe, The Blunders of our Governments (Oxford,
!78 Cf. Soll’s stress in the later period that a beneficial relationship between fiscal accounting, political stability, and wider accountability seems to belong to ‘those societies that managed to harness accounting as part of their general cultures’ (Reckoning, 207).
-  BL Additional MS 18719, fo. 239r. On bibles moralisees see John Lowden, The Making of thebibles moralisees, 2 vols. (Philadelphia, 2000), on Additional 18719 at i. 2, 5, 8—9, 147, 149, 151,155—9, 180, 185, 187, ch. 6, and figs. 85—96, plates xxii—xxiii, and ch. 7 on Paris, BNF MS fr. 167,based on Additional 18719. Vol. ii is a comparative study of the Book of Ruth in the bibles moralisees,including many notes on 18719. Far less colourful than its relations, 18719 has some beautiful workin it, notably Artist E’s and F’s. Fo. 239r may be by Artist A or D (Lowden argues i. 206 that ‘D’may be ‘A’ when he is not rushing his work). See further: Babette Hellemans, La Bible moralisee: Uneoeuvre a part entiere, creation, semiotique et temporalite au XIIIe siecle (Turnhout, 2010); Christopher deHamel, The Book: A History of the Bible (London, 2001), 146—53.
-  15° Both compositions are adapted from the manuscript’s exemplar, the so-calledOxford-Paris-London manuscript; its equivalent image is in BL Harley MS 1526, fo. 28v. The imageis viewable on the BL’s Catalogue of Illuminated Manuscripts at http://www.bl.uk/catalogues/illuminatedmanuscripts/ILLUMIN.ASP?Size=mid&IllID=34402.
-  BL Additional MS 18719, fo. 239v. Further work still seems to be needed on interpretationsoffered in the bibles. For instructive commentary, Lowden, Making of the bibles moralisees, ii. 3—5.
-  The paradox is encapsulated by this rule of McFarlanes: a lord’s ‘ministers could only be trustedif they were efficiently watched and made to watch each other’, Nobility of Later Medieval England,52—3. See also 139—40. Bisson’s comment is relevant: Accounting was the remedy for malfeasance.It rather looks as if [. . .] lords who trusted their servants were unlikely to insist on auditing themwith regularity’ (Crisis of the Twelfth Century, 328). Cf. delegated manorial control at a distance: ‘thelocal lord was distancing himself [through the twelfth to thirteenth centuries] from the vill and itsinhabitants; his relations with his tenants were being redefined through the interventions of cashpayments and the formalised procedures of the manorial court’, P. D. A. Harvey, ‘Non-agrarianActivities in Twelfth Century English Estate Surveys’, in Daniel Williams (ed.), England in the TwelfthCentury: Proceedings of the 1988 Harlaxton Symposium (Woodbridge, 1990), 101—11 at 111, and‘Initiative and Authority in Settlement Change’, in Michael Aston, David Austin, and ChristopherDyer (eds.), The Rural Settlements of Medieval England: Studies Dedicated to Maurice Beresford and JohnHurst (Oxford, 1989), 31—43 at 38—43.
-  Jean de Joinville, Histoire de Saint Louis, ed. M. Natalis de Wailly, 9th edn. (Paris, 1921), 295(ch. 140, §701), ‘que il doutent a encorre le vice de parjurer, non pas tant seulement pour la paour deDieu et de nous, mais pour la honte dou monde’.
-  160 Joinville, Histoire de Saint Louis, 294 (ch. 140, §699), ‘Et jureront et promettront que se ilsaivent souz aus nul official, sergant ou prevost qui soient desloial, rapineur, usurier ou plein d’autresvices, par quoy il doivent perdre nostre service [. . .] ain^ois les puniront et jugeront en bone foy.’ Thisimplies a particular onus on baillis, and does not envisage that lesser officials can judge baillis, but itdoes imply that officials other than baillis can judge officials other than baillis.
-  Joinville, Histoire de Saint Louis, 297—8 (ch. 140, §714), affin qu’il puissent respondre ausnouviaus bailliz, pour ce que il auroient mesfait contre ceus qui se vourroient pleindre d’aus’. Theymay be present by proxy.
-  DBM, #8 at 122; see also TNA E159/32 m. 2. On the 1274 oath (E 159/49, m. 1d), seePrestwich, Edward I, 93; Maddicott, ‘Edward I and the Lessons of Baronial Reform’, 20.
-  Clanchy, ‘Law and Love’, 47, 50. Clanchy discusses Louis IX at 52^, 56.
-  Jular Perez-Alfaro, ‘King’s Face on the Territory’, 111, 119, 120.
-  Bisson, Crisis of the Twelfth Century, passim.
-  For the Templars’ attack on the irregularities in applying summary procedures against them seeMalcolm Barber, The Trial of the Templars, 2nd edn. (Cambridge, 2006), 157, 161.
-  See Sabapathy, ‘A Medieval Officer and a Modern Mentality’. A much needed review of thisliterature is being conducted by David Napolitano of Cambridge.
-  See esp. pp. 58, 107—8, 170—1, 193, 253. For a theory of this, which he calls “officialisation , seePierre Bourdieu, Le Sens pratique (Paris, 1980), 183—8. For a relevant example of seigneurial (abbatial)inquisitions whose effects provide both some security of peasant conditions and the inquiring LordBenard I Ayglier with his rights, see Laurent Feller, ‘Les Enquetes seigneuriales de Bernard Ier Ayglier,abbe du Mont-Cassin (1267—1270)’, in Julie Claustre, Olivier Matteoni, and Nicolas Offenstadt(eds.), Un Moyen Age pour aujourd’hui: Melanges offerts a Claude Gauvard (Paris, 2010), 326—38.
-  See pp. 163—5. See e.g. also a version in a Sicilian communal context in KonstitutionenFriedrichsII. fur das Konigreich sizilien, cap. 2.7 at 299.
-  170 Augustine, De civitate dei, §19.6.
-  Peter Abelard’s Ethics, ed. D. E. Luscombe, OMT (Oxford, 1971), 42.
-  ‘Magis publica preueniamus dampna quam singularia corrigamus’, Peter Abelard's Ethics, 42.See also Augustine, De civitate dei, 19. 6 and 19. 8. The problem had a long future: see JacquesChiffoleau, ‘«Ecclesia de occultis non iudicat»? L’Eglise, le secret, l’occulte du XIIe au XIVe siecle’, 1lSegreto, The Secret, Micrologus 14 (Florence, 2006), esp. 419—20; Alain Boureau, ‘Une parole destruc-trice: la diffamation. Richard de Mediavilla et le droit individuel au peche’, in Julie Claustre, OlivierMatteoni, and Nicolas Offenstadt (eds.), Un Moyen Age pour aujourd'hui: Melanges offerts a ClaudeGauvard (Paris, 2010), 306—14.
-  ‘Omne namque quod in communem perniciem uel in publicum redundare potest incommo-dum castigatione maiori est puniendum, et quod contrahit maiorem offensam, grauiorem inter nospromeretur penam et maius hominum scandalum maius inter homines incurrit supplicium, et sileuior precessit culpa,’ Peter Abelard's Ethics, 42, Luscombes trans.
-  Et haec quidem non tam iusticiae debito quam dispensationis aguntur temperamento, ut,[. . . ] publica preueniendo dampna communi consulamus utilitati. [. . . ] Culpas itaque animi diuinoreseruantes iudicio, effecta earum de quibus iudicare habemus prosequimur nostro, dispensationem intalibus, hoc est, prouidentiae quam diximus rationem magis quam aequitatis adtendentes puritatem’,Peter Abelard's Ethics, 44. His tone seems to oscillate between approval, resignation, and criticism inthese pages.
-  Mary Douglas’s thinking about institutions is relevant here: ‘when an [classificatory/scientific]analogy matches a structure of authority or precedence, then the social pattern reinforces the logicalpatterns and gives it prominence’, Douglas, How Institutions Think (Syracuse, 1986), 65 and 90,on the ‘coherence principle’: an idea has to fit with others to take off (a necessary but not sufficient