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 – not least as marked by the insertion 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 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, Jinty Nelson has identified another occasion on which Hincmar drew on the text – one not mentioned by Letha Böhringer. This comes in a letter the archbishop wrote in the name of King Charles the Bald to Pope Hadrian II in the 870s. And this time there’s a surprising change in how he refers to it. 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!
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.