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.

10 thoughts on “Fragments of history – or, why judges shouldn’t get married”

  1. Oh, fascinating! Any chance it could be late tenth century? Does Kaiser give any details as to the hand? Looks to me like the sort of thing Otto III, who was hot on simony and the alienation of church goods, might have ordained.

    1. Yes, I agree – it does have a certain Ottonian ring to it. But I still can’t *quite* imagine Otto III issuing it in this form? I’m afraid K’ doesn’t give many details (it doesn’t seem to have greatly interested him), and the ms isn’t online (or I’ve not yet found it). Kaiser just says these folios have later entries,9th-10th; Bischoff though says “Nachtr. s. IXex.-XI”.

      1. Almost certainly not in that precise form, but the MSS transmission of much of his capitulary material is slim, so I equally wouldn’t rule it out. The key, however – if there is one – probably lies in the hand and MS context.

  2. Could this conceivably relate to judges by vocation rather than secular lords acting in a judicial capacity? Dimly recall someone arguing years ago for continuity of legal education at Pavia (I think) from late antiquity. Would sit with the analogy with priests. Sorry to be so unpardonable vague.

    1. A very good point. Yes, Italian judges were professionalised in the tenth century (Radding, Bougard etc), so it’s not a call to prohibit all secular lords from marrying. It would be remarkable if e.g. Otto III had determined to enforce continence upon them, even so. But perhaps I shouldn’t be quite so confident that the text is a forgery…

  3. I’d take it seriously and wonder if the key to teasing it out is identifying the alio capitulation referred to at the end, about the mores, vestments and outward signs of goodness expected of judges. The more we all wrestle with this kind of material the more it becomes clear that whilst we sometimes have authoritative agreed textual record. Ore often we have interested participants records circulating and being lost etc – which is what Ansegisus and Benedictus Levita allude to. I’d put this on a par with some of the things in those collections for which we have no independent witness but which we can’t dismiss out of hand – not sure ‘forgery’ is therefore quite the right alternative to lost capitulate. Be interested in rest of MS and date of hand (and later comments which show someone else took it seriously).
    Agree that context must be late Caro or Otto Italy – the language about judges of the sacrum palatium fits with what Radding shows about Pavia as you say, and doesn’t work north of Alps.
    I was thinking of my attempts at wrestling with 802 and the fact that the only MS of what Boretius saw as the ‘best’ text, and embedded in the historiography, comes in an Italian context with a canon law afterlife only – my reading of that is that some of the famous clauses around justices (lex scripts vs arbitrium suum) offer a specifically Italian take on the more generic discussions about judges being just reflected in Italian texts, and make sense in terms of issues about secular vs ecclesiastical and the afterlife of Roman law from a specific Italian context. This seems to me potentially something quite similar.

    1. Thanks, Matt – very helpful. OK, after all these comments, my whimsical blog (written on a train) is becoming a little research project. I’ve ordered a copy of the relevant pages of the ms from the B. Laurenziana – will keep you posted!

    1. Thanks Jamie! A good example actually of the power of the internet – after Levi, Bob and Matt’s comments, I now think this text is even more interesting than I did at first, and so I’m continuing my enquiries!

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