Fragments of history – or, why judges shouldn’t get married

One of the joys of being a historian of the early Middle Ages is working with fragmentary evidence: artefacts shorn of clear and definite context, and isolated, often incomplete texts that are at first sight inscrutable – and that often remain so even after further inspection. This blog’s about one of these fragments that I stumbled across in the course of my research into clerical exemption.

At the end of a ninth-century canon law manuscript now in Florence, a slightly later hand entered a passage that appears to be an imperial decree prohibiting secular judges from getting married. Here’s a draft English translation from the (rather tricky) Latin.[1]

About the life and continence of judges.
Moreover, it is permitted to none of the judges giving the law in our sacred palace or elsewhere in our kingdoms to contract marriages. This is so that they should not be led by love of their children to leave the path of truth and law, and to unjustly seize other people’s property for the ambition of their children, using their judgements for their advantage. But let them despise the delights of this wicked world, and hold to the norm of truth in all things, in customs, apparel and the signs of all goodness, and as we determined above in another capitulary, let them imitate the religious priests, and adhere in all things to their laws.

What should the historian think, faced with such a text? The first reaction is surely that this must be a forgery. No Roman, Carolingian or Ottonian emperor ever issued any command like this, at least not to my knowledge. Rulers often did worry about judges’ private interests interfering with their decisions, but there was never a prohibition on secular judges getting married. That would have gone against the grain of how medieval society worked. The text is entirely unprecedented.

But that observation doesn’t exhaust the text’s interest. The parallel it draws between judges and priests, urging the former to imitate the latter, is fascinating. Arguments about priestly marriage flared up in Western Europe in the eleventh century, but they did so on the basis of earlier anxieties and concerns. This little text, which is probably tenth- or early eleventh-century, illustrates that point very neatly. It looks like before Pope Leo IX and his circle came together, someone was already hard at work constructing a legal precedent to support a stronger line on married priests, by fair means or foul.

Of course, the aim of establishing a continent (and eventually celibate) priesthood was to create a sharper distinction between the laity and the priesthood. So it’s ironic that this author sought to justify the position with reference to secular law, and secular judges. Perhaps that’s why the text doesn’t seem to have circulated?

Update (11.01.17). In light of the very useful comments on this blog, I’ve realised Kaiser’s text might repay more detailed attention. So I’ve ordered a copy of the relevant folios to examine the palaeography more closely (and now have an excuse to visit the library in Florence, too). I’ll keep you posted!

***

[1] Edited by Wolfgang Kaiser, Authentizität und Geltung Spätantiker Kaisergesetze (Munich, 2007), p. 204, n. 12, from Florence, Biblioteca Laurenziana Edili 82. Kaiser provides no commentary other than to observe that this Heiratsverbot seems neither to be in any other manuscript nor to have been edited before. I have not yet been able to see the manuscript.

Latin (from Kaiser):
De vita et continentia iudicum. Nulli praeterea ex iudicibus nostris sacro palatio iura dantibus vel in omnibus regnorum nostrorum finibus liceat contrahere matrimonium (interlinear: id est mulierem) ne forte filiorum inducti diligentia a veritati et legis declinantes semita aliena iniuste subrepta ambitione filiorum ad opus eorundem per sua trahant discrimina sed huius noxii contempnentes (interlinear: id est respuentes) saeculi delicias normam veritatis ubique teneant moribus vestibus atque totius bonitatis insignibus sicut superios in alio capitulo statuimus religiosorum sacerdotum imitentur eorumque per omnia inhereant legibus.