A book about the Frankish emperor Charlemagne, based on a conference held in Paris in 2014 (twelve centuries after his death), has just been published. I contributed a chapter about a decree issued by the great emperor in the year of his imperial coronation (800), concerning the obligations owed by tenants to their lords. Since the chapter’s not open access, I thought I might unpack its content a bit here.
The decree is known as the Capitulary of Le Mans (Capitulare in pago Cenomannico datum) – it’s quite a famous text that’s widely cited as evidence for the early medieval peasantry. In brief, Charlemagne regulates how much labour tenants can be expected to do for their landlords, capping it at three days a week maximum, and less for the richer tenants. In spoken versions of the paper (though not in the written version!), I described the decree a little tongue-in-cheek as the first European Working Time Directive. Here’s an open-access English translation of the capitulary which I put together.
The Capitulary of Le Mans was copied in lots of early manuscripts (including Paris BnF. ms Latin 5577, now online thanks to Gallica). But *spoiler alert* the chapter actually argues that it probably wasn’t issued by Charlemagne after all (sorry!)…
Yet I’m not sure that actually matters all that much. Even if we can’t securely associate it directly with the ruler, the notion it expresses that kings might or should take such an interest in “the peasantry”‘s daily life was pathbreaking. And I think that makes the Capitulary of Le Mans a key source for the emergence of the medieval ‘three orders’ ideology – albeit in a version intriguingly and significantly different from that which developed post-860.
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.
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!
 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.
One of the firmest proponents of judicial “benefit of clergy” in the ninth century was the great archbishop Hincmar (when it suited him, anyway). And one of his favourite texts for proving the point was a decree issued by Pope Leo I (d. 461) at a Roman synod. As Letha Böhringer has shown here, Hincmar quoted this decree three times and at length: “So holy Leo, when a Roman synod was held, wrote…”, “And holy Leo, pontifex of the Roman Church, decreed in a synod held at Rome…”; “And holy Leo and the Roman synod decreed…”.
Looking at the text, it’s no wonder Hincmar liked Pope Leo’s letter so much. A full English translation is provided below (based on Paris BnF lat. 12445), but in summary, Pope Leo complained about clerics going to the “examen saecularium” in spite of ancient (secular) laws prohibiting this. In future, such clerics were to be excommunicated. If however a cleric accused a layman, it was possible for him to go to a secular court, with his bishop’s permission, if the layman refused to come before the bishop. Hincmar felt obliged to add that an advocate would be necessary in that case; but otherwise the text suited his purpose very nicely, when he was trying to persuade kings not to put bishops on trial.
So far, so good. The only problem is that in reality Pope Leo wrote nothing of the kind (even though a – poor quality – edition of the letter was included in the Patrologia Latina’s set of Leo’s writings) . The actual author of the text was a somewhat mysterious Bishop Leo of Bourges, working together with the bishops of Tours and Le Mans at some point in the mid-fifth century. The earliest manuscript of the text (the late 8th-century “Pithou collection” of Paris BnF lat. 1564) is quite unambiguous: in this version there’s no connection to Rome, and the text is copied down in a series of material linked to the Loire valley. Only in Hincmar’s own collection of legal texts, Paris BnF 12445 and Berlin SB 1741, has the Bourges letter become Roman – as marked by the inclusion of the words “et synodus romana” into the letter in both manuscripts, a phrase conspicuously absent from the earlier version.
That a minor provincial synod had issued a text like this is remarkable in itself; it’s important (and rather overlooked) evidence for the practical impact of clerical immunity in fifth-century Gaul. But how did this letter become transformed into a decree issued by Pope Leo the Great – at what point between c. 450 and c. 860 was the text “papalized”? And was this the result of genuine confusion between Leos, or a more deliberate attempt to put a crystal-clear statement about clerical immunity into a prestigious papal mouth? Given that the three manuscripts of the text I have mentioned are the only ones I know of, it’s not easy to say. One might conclude that innocent Hincmar knew the text only in the papalized version present in his own manuscripts.
And yet…. As it happens, in 1991 Jinty Nelson identified another occasion on which Hincmar drew on the text – one not mentioned by Letha Böhringer***. This comes in a letter the archbishop helped to write in the name of King Charles the Bald to Pope Hadrian II in 871, edited in Patrologia Latina. And this time there’s a surprising change in how the text is referred to. Here’s the relevant passage: “And as Leo and the synod of Bourges (Byturicensis synodus) wrote, kings and emperors, whom divine power ordered to be in charge of the earth, have permitted to bishops the right of dealing with their own affairs according to divine constitutions…”.
Misattributing a papal decree in a letter to Pope Hadrian would have been risky, because previous popes, like Nicholas, had learned to check up on Hincmar’s citations. In any case, although a papal association for the text had been useful for Hincmar previously, it was much less so here, because the thrust of this letter was all about kings not needing to depend on papal authority. Happily, on this occasion Hincmar somehow knew the Leo text was connected to Bourges, not Rome, after all. How convenient for the wily prelate!
*** UPDATE & CORRECTION June 2017: The recent 1998 MGH edition of the letters to Pope Hadrian that Hincmar helped write in the name of King Charles actually prints “Leo ac Romana synodus” here and here, and doesn’t refer to Bourges. And it turns out that’s also what the (only) manuscript of these letters, Paris BnF Lat. 1594 (s.ix), says: e.g. on f. 152v.
So where did the Bourges reference come from? The Patrologia Latina edition, on which Nelson relied, is based on one by Pierre Delalande, published in 1664 in his Conciliorum Galliae. Delalande indeed wrote ‘Bourges synod” (Bituricensis Synodus), *but* he added ‘Romana’ in the margin.
It looks like Delande’s ‘Bourges’ was a hyper-correction based on his personal erudition, not on the manuscript – a hyper-correction that was carried through to Migne’s 19th-century edition’s “ut Leo ac Byturicensis synodus scripsit”, and from there into the secondary literature.
So, it turns out that Hincmar was consistent in attributing this text to Pope Leo and a Roman synod after all, even when writing to a pope: more proof that Hincmar wasn’t always as devious as some people have thought! (and more evidence I think that he really was the author of Charles’s letter – but that’s a topic for another blog).
TRANSLATION. Note: some changes from the earlier version of the letter are marked in bold.
Leo, Victor and Eustochius and the Roman synod sent what follows with their signatures to the bishops Sarmatio, Chariato, Desiderius, and to the priests of all the churches established within the Third Province.
The worldly authorities wished to hold the sacerdotal order in such reverence – even those whom divine power had ordered to be in charge of the earth under the imperial name – that they permitted the right of deciding cases (ius distringendorum) to be conferred to the holy bishops, according to the divine [imperial?] commands (divalia constituta). What was confirmed in the edicts of the ancient law and many times in the general laws, we find in the present time to be trampled upon by many people. For passing over the sacerdotal judgement, they pass to the examination of secular people (examen saecularium).
Therefore it seemed to us that a full punishment should avenge this insult to the holy laws and to our order in the present time, and should establish a formula to be kept in future. We accordingly decided that whoever passes over the bishop of his church and goes to the judgement (disceptatio) of the seculars will be expelled from the holy thresholds and kept away from the heavenly altar. Nor after this decision, which stands by common sentence, should anyone attempt to acquire for himself beyond what is prescribed. So may it happen that those who previously erred should correct themselves with a fitting emendation, and whoever was proven to serve in a clerical office under heavenly observation should know that he is cast out from the clergy if he passes over the judgement of bishops and goes to the authority of secular people.
We wish all individuals and everyone to recognise that what is constituted in the full order of justice and law shall take the effect of total confirmation in all the business of clerics. But if a cleric accuses a layman, let the cleric first demand to be heard by the bishop; then if he sees the layman is opposed to his demand, let him contend in the judgement of the secular moderator, with the permission of his bishop.
Bishop Leo signed
Victorius bishop signed
Eustochius bishop signed. And all the other bishops who were there signed.
In 860, an archbishop of Rheims called Hincmar was asked whether a king, Lothar II, could divorce his wife, Theutberga, and marry someone else. Hincmar wrote an extremely long treatise in reply, which Rachel Stone and I have been steadily translating for the last few years for Manchester University Press, that dealt with all the aspects of the case. Amongst these was a hint from the king that if the answer was no, then he might choose what we would call the ‘Henry VIII solution’ – have Theutberga executed, then remarry.
Hincmar tackled this hint by quoting St Augustine of Hippo’s book, On adulterous marriages. He quoted Augustine to explain that the law of the Roman Empire and of the Old Testament both permitted a husband to execute his adulterous wife, while Christian morals taught that a husband could not marry again while his wife was still alive. It would obviously be best for a husband neither to kill his wife nor to marry again while she was alive: but if necessary, he could do what was permitted, which was execution. If he didn’t, then he could not remarry.
That all seems perfectly clear. The only problem is that this isn’t quite what Augustine said. Augustine thought in paragraphs, not sentences, and Hincmar ended his quotation before Augustine had concluded that in fact, it would be better to marry again than to spill blood, no matter what the law said (see below for the full Augustine text).
What’s more, in the bit that Hincmar does quote, there’s a slight but significant change in the text: the Latin ‘si licet’ (= if it is permitted) has become ‘scilicet’ (=that is to say, certainly). Augustine had reservations about the secular law’s permission to execute, a tone of doubt – “If it is permitted”. Hincmar’s version of Augustine had neither doubt nor reservation. (See the picture above for the text).
This tiny textual variant isn’t common in the transmission of Augustine’s work. It might be scribal error, but it does seem a rather convenient one. Wherever this extra letter ‘c’ came from, the Frankish prelate was evidently a little more relaxed about uxoricide than the African bishop had been. Hincmar had a different attitude to how Christian law and ‘secular’ law could fit together, which wasn’t too great for Theutberga.
In the end, though, the queen escaped execution. What happened next? Well, you’ll have to wait till the book’s out…
Hincmar, De Divortio, Appendix 5 ‘As Saint Augustine says (…), “Finally I ask of you, whether it is licit for a Christian husband, according either to the old law of God or by Roman laws, to kill an adulteress. That is to say [Augustine: If it is permitted], it is better that he should restrain himself from both, that is the permitted punishment for she who has sinned, and from an illicit marriage while she is alive. But if he insists on choosing one, it is better for him to do what is allowed, so that the adulteress may be punished, than to do that which is not allowed, that while she is alive he commits adultery. But if, as is truly said, it is not allowed for a Christian man to kill his adulterous wife, but only to send her away…”
Hincmar continues: ‘…it is on this condition, that he may either live in continence or be reconciled to her, since if while she is alive he marries another, he too will without doubt be guilty of adultery’.
Original Augustine continues: ‘… who is so mad who would say to him, “Do what is not permitted, so that what is not permitted to you will be permissible”? For since both things are illicit according to the law of Christ, that is to kill an adulterous wife or to marry someone else while she is still alive, both should be refrained from, rather than doing the illicit for the illicit. But if he must do what is not allowed, let him commit adultery and not murder, so that he shall marry someone else while his wife is still alive and not shed human blood. Yet if two things are nefarious, he ought not to perpetrate one for the sake of the other, but avoid both’. [Augustine, Adulterous Marriages, II, ch. 15, Wilcox trans.]
A research project blog by Charles West (Department of History, Sheffield)