One of the distinctively post-Roman things about post-Roman Europe was the emergence of a new kind of legal procedure, the trial by ordeal. In its various different forms – the main ones were hot iron, boiling water, cold water, and trial by battle – the ordeal comes particularly into view in the ninth century, when there was something of a debate about its ethics and efficacy. One of its staunchest defenders was Archbishop Hincmar of Rheims, who in his De Divortio (available in all good bookshops etc) justified it at some length.
Practical instructions on how to carry out an ordeal are quite common in ninth- and tenth-century manuscripts, often inserted as aide-memoires. Below is an English translation of one of these texts, associated with ninth-century Rheims – so, the kind of text that priests in Hincmar’s diocese might have come across. It gives instructions on how to carry out the ordeal by water on a group of men suspected of theft.
There are several interesting things about this text. First, although the role of the priest is essential, the text doesn’t seem to be addressed to the priest himself. Perhaps it was meant for a count or other judicial officer. Secondly, it’s a very elaborate procedure: throwing the suspects into the water is merely the last stage in a whole string of actions, designed to pile the pressure on the guilty/guarantee God’s intervention (depending on your point of view). These include public communion, blessing with holy water, holy incantations, and the fasting of the immediate participants.
Finally, the text has a notably defensive tone. The possibility that witchcraft could distort the outcome is acknowledged (this was something that bothered Hincmar too). And the text ends with the assertion that the ordeal was devised by God, had been confirmed by papal sanction, and was to be used instead of alternative procedures, such as swearing an oath on the high altar. Clearly whoever wrote down this text was aware of contemporary criticisms – and that attack is the best form of defence!
Update 17.1.17: I still haven’t located the manuscript from which this text comes (the edition isn’t clear). But a very similar ordeal text was present in a manuscript that was almost certainly made by Hincmar c. 874. This manuscript is now lost BUT the ordeal text happily survives in an early modern transcription in Paris: I’ll check the next time I’m there. Update: 24.5.19 – I have tracked down the Hincmar-related ordeal text, which has proved very interesting indeed: I am now preparing a study of it, so watch this space. Update: 28.08.20 – I have now posted a draft Latin transcription of the Hincmar-related ordeal on this blog and hope to be able to continue working on it
Image: Lambach, Stiftsbibliothek Codex 73: a 12th-century liturgical manuscript (Wikipedia)
Today sees the publication of a book that we’ve been working on for almost a decade, The Divorce of King Lothar and Queen Theutberga. It’s an annotated translation of a long ninth-century Latin treatise written by Hincmar, the archbishop of Rheims in France. That might seem a rather obscure topic, but when we explain that the treatise is about a royal divorce scandal, and that it discusses witchcraft, kingship, incest and trial by ordeal, we hope you’ll see the interest. This blog is to explain our book’s cover picture – and why the author we’ve translated would have loved it, and the king he wrote about would have hated it.
The picture comes from the Stuttgart Psalter, a marvellously-illuminated ninth-century book that is now (as its name suggests) in Stuttgart, but that was originally made in Paris, at the monastery of St-Germain-des-Pres (you can see the whole manuscript here). The picture accompanies Psalm 45 (Psalm 44 in the Vulgate), and shows a king and queen embracing. The king and queen are both mentioned in the psalm, but the quizzical angel standing on the right (our favourite bit) is the illustrator’s artistic licence.
Because our text is about a royal divorce – King Lothar II’s scandalous attempt to rid himself of Queen Theutberga – this image of a royal couple obviously resonates. But we also chose this picture because the manuscript it comes from has some connections to our translation. The abbot of the monastery when it was made was a man called Hilduin: as it happens, Hilduin was the teacher and mentor of Archbishop Hincmar, the author of the treatise. Perhaps Hilduin might even have proudly showed the freshly painted manuscript to the young Hincmar.
In any case, we like to think that a thin smile might have played across the lips of the austere archbishop of Rheims if he could see our book cover, mainly because of the watching angel. As Hincmar explains in his treatise, King Lothar’s divorce case affected everyone, both because marriage was fundamental to society and because kings were supposed to set a moral example to their subjects. That meant that they were constantly being watched, both by their subjects and by God, who would condemn them more harshly for their lapses than mere ordinary sinners. And as the illustration shows, you can’t hide from God or his angels – who might not be very impressed by what they saw.
As for King Lothar II, the subject of the treatise, it’s just possible that he might have seen this image too. In the course of the Frankish civil wars of the 840s, it seems Abbot Hilduin left Paris to join Emperor Lothar I, whose kingdom was around Aachen. Perhaps he took the Stuttgart Psalter with him, which would explain how it ended up in Germany. We can’t of course prove that Emperor Lothar’s son, King Lothar II, saw the manuscript at some point during his reign (855-869), but it can’t be ruled out.
But we suspect that unlike Archbishop Hincmar, the king would not have been remotely amused by our use of this particular image for a text about his divorce. The psalm that the picture illustrates in the manuscript is a song of triumph to accompany a magnificent royal wedding. It promises the king a happy and glorious reign, and that his sons will succeed him as rulers. Unfortunately, this is more or less the opposite of what actually happened to King Lothar II, with enormous consequences for himself, his family (including his wives Theutberga and Waldrada), his kingdom, and indeed for Europe as whole – consequences that our new book explores.
Rachel Stone is a Visiting Research Fellow at KCL, and Charles West is a Reader in Medieval History at the University of Sheffield. The Divorce of King Lothar and Queen Theutberga, published by Manchester University Press, is available online for just £10 as part of the MUP sale, and at all good bookshops for £19.99.
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.
A research project blog by Charles West (Department of History, Sheffield)