One of the things that modern medieval historians have begun in recent years to appreciate is just how much their work is still shaped by the pioneers of the discipline, especially those of the nineteenth century. This is partly a question of source editions – most of us rely at some point, if not indeed routinely, on 19th-century foundations in this respect – but it goes further than that, spilling into questions of interpretation and approach. And nowhere is that truer than for the topic I’m currently researching, jurisdiction over clerics in the earlier Middle Ages.
This topic was dear to many late nineteenth-century historians, above all in Germany though across the rest of Europe too, because it seemed relevant to the fierce debates about the place of the Church in the liberal state which were taking place at the time (the so-called Kulturkampf). Several historians who worked on this were also active in contemporary politics. But ‘relevance’ in history, when it takes the shape of reading the past in the light of the present, can exact a heavy price.
The famous Edict of Paris in 614 is an interesting example of this. The fourth clause (the clauses are all editorial, but helpful) of this royal decree issued by King Chlothar II apparently followed recent Church councils in acknowledging that ordained clerics were exempt from secular jurisdiction – but crucially, unlike those councils, it made an exception for criminal matters.
To nineteenth-century historians, the edict marked a milestone in kings’ efforts to stem the rising tide of Church claims to a kind of political sovereignty, because it maintained the subjection of clerics to royal courts. For the legal historian Rudolf Sohm (who was a key inspiration for Max Weber), that showed that the Merovingian rulers knew how to keep the Church in its place. This was important for Sohm, because he thought it demonstrated that political reforms concerning the place of the Church in 19th-century Germany were really not an innovation, but a return to a better time: a time when, thanks to the efforts of Merovingian kings, the Church and the State co-existed in different spheres without overlapping, as was proper. For Sohm the real Middle Ages came later, when the Church overstepped the mark and betrayed its own nature by becoming a rival to the State.
So keen was Sohm to make this point that he ignored a little problem. Unfortunately, clause 4 of the Edict of Paris does not straightforwardly state that judges cannot condemn clerics. The text is preserved in just one surviving manuscript (Berlin SB Phillips 1743) from the late 8th century. And rather awkwardly, according to this manuscript, it seems that it is clerics who cannot condemn judges, and not other other way round:
Vt nullum iudicum de qualibet ordine clerecus de civilibus causis, praeter criminale negucia, per se distringere aut damnare praesumat, nisi conuicitur manefestus, excepto presbytero aut diacono.
Now, I must admit that the text as it stands does not make a lot of sense (which is why I won’t attempt to translate it here – the important point is that clerecus is the subject, and nullum iudicum the object). So perhaps we shouldn’t criticise the earliest editors (starting with Sirmond in the 17th century), who silently corrected the Latin to make judges, not clerics, the subjects of the sentence.
But we might be more critical of Rudolf Sohm, who without any hesitation provided a German translation of, and a lengthy commentary on, what was essentially an imaginary text: the one that historians wanted to see, not the one that was actually there. In a way, Sohm was acting like the contemporary of his who applied chemical reagents to the manuscript to try to make things clearer, but in doing so, obscured what it actually said.
At the very least, the extant wording of the Edict raises questions about how (or if) the scribe understood the clause, and whether his ‘alteration’ was perhaps deliberate (and what else might have been changed). But there are also broader issues here, about how far we are still privileging the interpretative and methodological stance of Sohm and others over and above the evidence – for although the most recent edition of the Edict gives the right Latin text for clause 4, the most recent translations of and commentaries on it all share Sohm’s preference for what the scribe ought to have written, not what he did (which is not discussed).
Really, we should count ourselves lucky that the surviving manuscript evidence lets us see the Edict of Paris through late 8th-century spectacles. But to do justice to our sources, rather than riding rough-shod over them, we might need first to take off at least some of the 19th-century spectacles we have inherited.
 Rudolf Sohm, ‘Die Geistliche Gerichtsbarkeit im fränkischen Reich’, Zeitschrift für Kirchenrecht 9 (1870), 193-271