I have been following the US election more closely than normal this year (mainly because one of my favorite blogs is Obsidian Wings), but in the past few days I’ve been particularly fascinated by the Sarah Palin story and the developing revelations around her. I even went so far as to read up on some of the (now disproved) rumours about her family life. Why did I break my normal dislike of gossip? There were lots of people (including many feminists) saying that other people’s private lives (and particularly other women’s private lives) were none of our business, but I still did it.

But the thing is...my own professional business at the moment is translating Hincmar’s text on a royal divorce, and all the lurid allegations that contains about Queen Theutberga’s sexual life. So the question arises: am I, as a historian, really any less of a muckraker than Andrew Sullivan? Or, conversely, do historians’ interest in private lives provide any suggestions as to why such modern day speculation might be justified?

I would say that the common arguments again modern-day gossip/prurience are generally sound. Indulging in this can encourage an unhealthy feeling of moral superiority/pride (I am better than those people) and such gossip is often full of double standards, particularly sexist double standards. It is often distressing to people to have their private lives discussed by others, and may worsen the family problems they are having. The consumption of gossip in the media encourages ever more intrusive reporting of those in the public eye and their families. My individual reading and commenting on rumours about Sarah Palin’s case, does not, I hope, add much to the strain on her family, but it does probably have some small detrimental effect, in a way that my investigation of Theutberga does not.

But it’s harder to argue that my own interest in Theutberga’s private life is in principle, completely different from an interest in Sarah Palin. If (by some fluke of time-travel) there were medical records or photographs available for me to explore whether Theutberga was really sterile or had had an abortion, as her opponents alleged, I would be looking at them, just as historians have tried to establish whether it was Crohn’s disease that afflicted King Alfred. And historians are interested in sexual scandals: does anyone think that scholars of the Tudor period study the relationship of Henry VIII and Anne Boleyn purely as an insight into the development of the English Reformation? The only historian who thinks that Eleanor of Aquitaine’s official duties are more interesting than her private life is Jane Martindale. I am interested in Carolingian views on kingship and the relations between state and church, but if that was all I was interested in, I could study the case of Ebbo of Rheims just as easily as Theutberga’s.

Hincmar, in his introduction to De Divortio, explains why the case was so important to everybody (and it was allegedly being talked about throughout all three kingdoms, even in the women’s weaving sheds, suggesting that the appetite for gossip is a historical constant). Hincmar comments:

For, although this is a matter of a king and queen, namely man and wife...the case of all is generally affected, since marriage is called by the holy apostle ‘a great sacrament in Christ and the Church’, in which the salvation of all is believed to consist.

For him, the case mattered not only because it was about the rulers of the country, but also because it was about one of the universal basics of society, marriage. The parallels are interesting. In terms of power, Sarah Palin is a legitimate figure for a wide range of people to be interested in (more so than a sports star or a pop singer). Potentially, she could become the President of the United States and her decisions would then affect me and millions of non-Americans round the world. Similarly, questions about how people live their marital and family life and how they deal with problems within them (such as a baby with disabilities or an accidental pregnancy) have a universal interest. Most of us could imagine being in such a situation and wondering what decisions we would make.

Modern liberals, however, have increasingly argued that there should be a separation of personal (particularly sexual) and political morality. Politicians with lurid private lives (from Lloyd George and Winston Churchill to JFK and Bill Clinton) have nevertheless been excellent political leaders: poor personal judgement does not preclude good judgement in the national interest. This is in many ways a persuasive argument: attempts to force politicians out of office for sexual scandals often rely on deeply implausible arguments about misuse of public power. I personally don’t think that having an affair revealed, for example, should normally bar a politician (male or female) from running for political office or mean they should resign if in office. They should be judged instead on their political record.

Yet there is something oddly akin to medieval queenship in the Vice-Presidential role at the best of times. The Vice President is chosen personally by the President, not elected. He or she officially has a largely ceremonial role, with their practical power depending greatly on their personal relationship with the President and the characters of both. He or she cannot implement their own policies directly (unless this power is delegated to them), but can only lobby the President privately to encourage him or her to implement them. His or her only real power comes after the end of the President’s ‘reign’ or if the President is incapacitated.

Normally these parallels are hidden by the fact that the Vice President is an experienced politician himself/herself. John McCain’s choice of Sarah Palin, however, exposes these issues. Sarah Palin has not been chosen for her political achievements or even her political potential (i.e. that she has exceptional political skills which she has not yet had time to develop). She has been chosen for her political image. Would she have been chosen if she had not been female AND good-looking AND had a large family AND been a keen hunter AND come from an iconic state? Almost certainly not. In that sense, whether her image corresponds to reality is relevant: whether all her children are her own is arguably no more off limits than whether she (hypothetically) had faked a picture of herself killing a moose. If you implicitly argue that your personal story is the key political statement about you, then you can’t object if those interested in politics then start to examine your life.

But the medieval queenship analogy also shows the other reason why Sarah Palin’s personal life is politically relevant. Bad behaviour by the queen wasn’t condemned by medieval moralists solely because it imperiled the succession, though that was important (which is why adultery by the queen was a common allegation). It was also significant because it showed the poor judgement of the king himself. Why had he chosen a woman whose character was not good or who encouraged him to wrong doing? Some commentators have picked up this about the VP pick as well: what does it say about John McCain that he chose someone rashly, apparently swayed by superficial appearances rather than true worth?

The separation of public and private morality is not a new idea (as is sometimes alleged); it is implicitly present already in some ninth century sources discussing Carolingian counts. But in some cases, even today, as this case shows, the dividing lines may be hard to draw. I think that makes discussions of Sarah Palin’s personal life, if not quite as respectable as examining Theutberga, at least more legitimate than most other contemporary gossip.

In two previous posts I’ve talked about my problems with the traditional concepts of a canon law system for the ninth century. Now I want to look at how some marriage disputes get dealt with in the ninth century, both because I’m interested in the topic and because that’s the area of secular life/cases involving laypeople that is normally thought to be the first to be dealt with by ‘canon law’ (as shown in e.g. Pierre Daudet, Études sur l'histoire de la jurisdiction matrimoniale: les origines carolingiennes de la compétence exclusive de l'église (France et Germanie). Paris: Libraire du Recueil Sirey, 1933).

As I said in my previous post on the topic, there are three different quasi-legal roles of bishops that can be seen in the sources from the ninth century and long before: as judges of ecclesiastical personnel, as settlers of secular disputes and as givers of penance. An important preliminary point to make is that legal systems and systems of penance are not always clearly separate at the period, and the grey area between the two can be exploited. One interesting example is the deposition of Archbishop Ebbo of Rheims in 835. The Emperor Louis the Pious handed Ebbo over to a synod of bishops, in what starts out as looking like a standard trial of an ecclesiastic. What followed, however, wasn’t a trial (in the sense of an examination of evidence), because the real charges against Ebbo, of taking part in Lothar’s revolt of 833-34, would have been politically embarrassing to raise. Instead, Ebbo ‘confessed’ unspecified sins to the bishops and was given penance, thus coincidentally meaning he had to step down from his bishopric while he performed it. The question of what kind of confession and penance had been involved in Ebbo’s case (secret or public) was to bedevil Hincmar for more than thirty years, but that’s a different story.

Now, an outline of the most significant of the marriage disputes. (For more details of the background of these cases, see my article in ‘Gender and History’ and the draft translation of Hincmar’s De Divortio).

1) Firstly, there’s the unfortunate woman Northild who (according to Hincmar) at the general placitum of Attigny in 822 complained to Louis the Pious about her husband doing dishonourable things with her (the usual assumption has been anal sex, though that’s not stated). Louis sent her to the bishops for ‘episcopal authority’ to decide what should be done. The bishops sent her back to the ‘legal judgement’ of laymen, but said they would give penance after that if Northild asked for it.

Why did Louis ask the bishops to deal with the matter and they then promptly bat it back? Jinty Nelson’s view is that this is all just a set-up to show the unity of everyone at Attigny, with Northild as fall-girl. But I think there’s additionally the possibility that the bishops were being expected to see whether the dispute could be settled between the couple. Once they decided it couldn’t be, they didn’t want to take a role in the actual judging of the case, but could be called on later after this judgment had been made.

2) Next, there’s a vassal of Lothar’s called Fulcric, who Hincmar excommunicated in the late 840s for putting his first wife into a convent and taking another one. Hincmar allegedly excommunicated Fulcric without any ‘canonical or secular judgement or examination’ (absque omne canonico sive mundano iudicio vel examine’). Presumably, Hincmar did this since he considered Fulcric was a notorious sinner unwilling to accept penance. He then called a co-provincial synod to confirm this excommunication, to which he probably invited Fulcric’s first wife and her father. At this synod, Fulcric was ‘examined, humiliated and absolved’ after agreeing to do penance. By about 852 Fulcric seems to have returned to his second wife and Hincmar excommunicated him again. Fulcric then appealed to Pope Leo IV, claiming that his first ‘wife’ had actually only been a concubine, and he’d therefore only made one marriage.

Leo IV’s response was a blistering letter to Hincmar. He was to lift the excommunication if Fulcric’s account was accurate and he was not to take any further action about the ‘remaining things’, or the Pope would punish him. (There is no suggestion that Leo IV had done anything more legally significant than talk to Fulcric: no mention of oaths etc). We don’t know about any further action after this, though Hincmar seems to have suggested that a synod should consider the matter again).

3) One of the most long-running cases of all was that of Ingiltrude, wife of Count Boso of Italy, who ran off with Boso’s vassal to Francia in about 856. Boso asked for ‘ecclesiastica auxilia’ and Ingiltrude was anathematised by Council of Milan in 856 after she refused to return. Pope Benedict IV began a letter-writing campaign to Frankish kings and bishops to get her returned that was continued by his successors. For more than 15 years there were unsuccessful attempts to get Ingiltrude to return. The popes sent letters and Ingiltrude was repeatedly excommunicated and anathematised. Boso came to Francia in June 860 and he is recorded at Coblenz appealing to the kings assembled there. In March 867, Nicholas I complains that Boso is becoming insolent to him, since he was trapped in the marriage.

Yet in all this time, there were precious few actual legal steps taken. The second Council of Aachen in February 860 summoned Boso so Ingiltrude could be examined in his presence, but he didn’t attend, so nothing came of that. Ingiltrude then confessed to Archbishop Gunther of Cologne, who absolved her (one of the reasons he was later deposed by the Pope). Pope Nicholas I repeatedly ‘summoned’ Ingiltrude to Rome, but it’s not clear whether this was for a trial, or for her to do penance and be absolved by him. (In 865 she swore an oath before the papal legate to return to Rome, but didn’t do so).

Next there are two cases from 860 which have quite a lot of parallels: those of Count Stephen of the Auvergne and the divorce of Lothar II and Theutberga

4) In Hincmar’s letter on the case of Count Stephen (the only evidence we have) he says that Count Raymond (Stephen’s father-in-law) sent letters to the synod of Tusey in Oct-Nov 860, complaining about Stephen’s treatment of his daughter, since he hadn’t consummated the marriage. In Hincmar’s view the synod shouldn’t normally have replied to such a letter for two reasons. One was that accusations had to be made in person and the second was that Raymond no longer had power over his daughter and so couldn’t accuse Stephen without her support. What Raymond could do was ask the synod for ‘correction of her husband by persuasion or suggestion’, i.e. have the synod try and resolve the marital dispute.

Raymond didn’t, however, need to try and rope his daughter in to make accusations about Stephen. The synod decided that since the dispute had been carried on publicly for three years it was causing scandal and therefore they needed to summon Stephen. Stephen, once he had come to the synod, asked to confess and was told that he must make public confession, since the matter was no longer suitable for secret confession. He said that he had previously slept with a relative of his wife and his marriage was therefore incestuous: he had been forced to go through with the marriage because he was frightened of Raymond, but had not consummated it. It was agreed by the synod that the matter should be dealt with by both a further synod and a royal placitum and Hincmar was asked to advise the bishops.

The idea of holding both a synod and a placitum (which Hincmar agreed with) was that the placitum should pacify what was obviously becoming a dangerous dispute between magnate factions, while the synod should decide the case. Most of Hincmar’s letter is spent on the question of what makes a valid marriage, but he also advises on procedure. He wants Stephen’s wife summoned to the synod for questioning (along with Raymond) and for her to confirm (possibly by oath) that she’s still a virgin. He doesn’t, however, consider it necessary for Stephen to have to name the woman he’s slept with and demonstrate she is a relation of his wife. He also makes suggestions of how the placitum might decide on compensation in the case.

5) The case of Theutberga also concerns ‘incest’, but a different meaning of that term. Theutberga was accused in 857 of having slept with her brother Hubert before her marriage to Lothar II in 855. In 858 her champion underwent an ordeal, which was passed. The matter was ended, however. In 860 it was claimed that she had confessed her sin (although the details of when and to who are inconsistent in the three accounts) and she was therefore given public penance.

Hincmar was asked about the case after the second synod of Aachen in February 860 by Lotharingian bishops unhappy at the decisions made there. I’m still trying to understand exactly what Hincmar’s argument is in De Divortio (it’s a complex text), but this is what I think he says. Firstly, he accepts the validity of the secular judgement by ordeal in 858. However, when Theutberga subsequently confesses, that makes it a penitential matter, in which bishops could be involved. Hincmar argues that Theutberga’s confession was a secret one, which means the public penance imposed by Aachen I and II was unsuitable. A public penance, according to Hincmar, needed either public confession (which he argued Theutberga had not made) or open proof (which should be obtained by a secular court). Because Theutberga’s secret confession had already been passed onto the king, it was not a breach of confession to have laymen deal with the case. Hincmar suggested that one of the things the secular court should do and summon Hubert and question him. If Theutberga was found guilty by this court, then the bishops could decide public penance. However, since the matter by now was a public scandal, affecting all the kingdoms, a general council should also sort out these aspects of the case. (Presumably Hincmar means deal with the public penance and possibly also sort out any remaining matters and carry out rituals to propitiate God).

What do these cases put together suggest about how marriage disputes are settled and what the church’s role is?

a) Firstly, that there isn’t a standard procedure for how these matters get dealt with. This is obvious not just from the differing procedures, but because the procedure often needs to be enquired about: people want advice from Hincmar in the cases of both Stephen and Theutberga.

b) It’s very hard to see there being two different jurisdictions for marriage (secular/ecclesiastical), in the sense of a legal distinction based solely on the facts of the case between whether a placitum or a synod deals with it, or how it should be shared between them. This is most obvious from the cases of Stephen and Theutberga, both of which concern a possibly false confession used to argue for the dissolution of a marriage. In both of these Hincmar advises the use of both a placitum and a synod, but in different ways. In Stephen’s case he says the synod must interview witnesses to decide if the confession is genuine, while the placitum does mediation. In Theutberga’s case he says a secular tribunal should examine the witnesses, while the synod has more general functions.

Daudet argues that this shows that choice of parties can determine what tribunal deals with the matter, but that doesn’t hold up. (Stephen didn’t choose the synod he got). It’s possible Hincmar argues contradictory things for political reasons in 860, but it’s noticeable that he doesn’t say anything specific about the need for ecclesiastical jurisdiction in these cases, when he does a lot in cases involving clerics.

c) As a follow-up to this, the Frankish church doesn’t actually show a great desire to take over dealing with marital disputes. They’re often quite happy to shove the examination of evidence back to the secular courts, after which they will decide on penance. In only two of these cases (Ingiltrude and Stephen) do they do or attempt to do any real ‘investigating’ of the case (in terms of questioning witnesses).

d) There aren’t many unequivocal references to legal judgements by bishops/synods: a lot might equally be talking about decisions on penance.

e) When the people involved in a dispute appeal to ‘the church’ they rarely do so to a synod (with the one exception of Raymond, Stephen’s father in law). Instead they appeal to a person (a bishop or pope), and they don’t usually request a synod, but simply help (unlike clerics who appeal). This suggests that they’re working within a mental model that’s pastoral rather than juridical.

All this, I think, confirms that talking about the existence of a canon law system for non-clerics in the ninth century is very dubious. What we are left with instead is one (secular) legal system, plus adapting standard church disciplinary procedures (synods and penance) to try to deal with specific moral/social problems that arise from cases. (Hincmar, in addition, I think also wants ecclesiastics to have an advisory role to secular tribunals to ensure that secular judgements on marriage are not in contradiction to ‘divine’ law, but he definitely does not want the church to take over legal decisions on marriage cases). We need to stop trying to fit ninth century evidence into a twelfth-century pattern.

The comments on a recent post at A Corner of Tenth Century Europe have morphed into a discussion on admissions to Oxbridge and whether or not candidates from state schools are disadvantaged. As someone who went to Oxford from a comprehensive school, I’ve added in my opinion, but in many ways the state/public school issue is a red herring. L, my daughter is just five and three quarters, and has one year of full-time education (a reception year at a local primary school). And yet her chances of going to Oxbridge are already vastly greater than many of her classmates.

Along with any inherited advantage in intellect she has (and I don’t know exactly how much that is), she’s also had the benefit of a lot of attention in her early years, both from us and from good quality childcare. Raised in a household full of books and read to a lot, she’s picked up voracious reading almost automatically. She gets taken along on holidays to the museums, castles and places with exciting scenery that we enjoy. During her childhood, she will thus get from us not only the support that any stable family can provide, but a level of cultural capital that many children don’t get. If she is having problems with her homework, we can between us probably help her; we can make sure that her subject choices at school don’t cut down her future academic prospects unduly. And although we’re not rich, we have enough money to spend on her support as required. When she needed speech therapy we could pay for private treatment rather than wait for the NHS to provide it. If she turns out to have artistic or (less likely) sporting talent we can probably afford to pay for lessons or equipment.

All this means that L has a good chance (if she wants to) of getting to a high-ranked university. If she is academically gifted, she also has a higher than average chance of getting to Oxbridge. What both my husband and I, as Oxford graduates can offer is not so much inside information on how to get in (since the admissions system constantly changes) as a more general understanding of Oxford and Cambridge. Perhaps most important is the proof we can offer that ‘people like us’ can go to Oxbridge, that it is not solely for those from a select few schools or with a particular accent.

L will get all these advantages without us needing to be particularly pushy. If we were really determined that she should go to Oxbridge rather than anywhere else, there are further things we could do to boost her chances. We could encourage her to apply for the less popular subjects and to the less popular colleges. We could pay for extra tutoring in some subjects, or for her to go on holiday courses etc. We could network and find people who had studied or taught her particular subject for her to meet. We could coach her in interview techniques. All this might boost her chances a little further, but it probably wouldn’t make a major difference.

Or we could spend thousands of pounds a year to send her to a public school (which would make a more substantial difference). But the fact is that even if we could afford to do that, we don’t really need to. If L wants an academic education she will be able to get a good one, either at Oxbridge or somewhere else. Her friends at school, who live in council houses, whose parents have lived in the same area all their lives and would feel uncomfortable away from it, who live on below average income, will probably not get that kind of higher education even if they have the aptitude for it.

Any simple demands to aid ‘state school’ applicants to Oxbridge will probably largely benefit children like L rather than those starting from a more disadvantaged background. Only measures targeting those from lower social classes and educational upbringing in a far more careful and long-term way will make a real change in which five year olds are on track for Oxbridge.

As I said in the last post, making assumptions about the existence of ‘canon law’ in the ninth century doesn’t seem very helpful. One big problem, for example, is that vaguely legal events in which bishops are involved get discussed in terms of ‘jurisdiction’, with the assumption that a consistent decision is being made about which of two legal systems someone should be subject to. It’s more useful instead to start from the question of why bishops and synods get involved in ‘personal’ cases (as opposed to property disputes), since that is a question that the sources at least sometimes do tell us. I think there are three ways in which bishops and synods get involved in such matters:

1) Cases which involve bishops and their subordinates (both secular clergy and religious men and women).

It seems to be perfectly normal that bishops discipline their subordinates, including judging their cases (as referred to, for example, in the episcopal capitularies). Similarly, a synod of bishops could give a trial to a bishop accused of some crime, and in the ninth century the Pope was clearly claiming the right to judge some cases of episcopal behaviour.

This area looks the most like the church courts of the later period: bishops making judgements on cases involving church personnel because it is their right to do so. However it’s not clear in the period that such matters had to be dealt with by bishops and that secular courts could not be involved. It’s useful to look at the deposition of bishops in the ninth century, because those are the most prominent cases. The bishops who were accused in 818 after the conspiracy of Bernard of Italy (including Theodulf of Orleans) were deposed by ‘synodal decree’ according to the Royal Frankish Annals. In 835 Louis the Pious handed over the case of Ebbo of Rheims to a synod, but that may have been a matter of penance rather than strictly a trial (I will say more about this in the next post). In 859 the Annals of St Bertin say Charles the Bald was going to use a synod of bishops to deal with Wenilo of Sens, accused of treachery against him for his role in Louis the German’s invasion of 858. In the Annals of St Bertin 868, meanwhile, Hincmar says that his nephew Hincmar of Laon shouldn’t be judged by ‘seculare iudicium’ as Charles the Bald wanted, but rather by ‘ecclesiasticum iudicium’ and gets into a long debate on this. On the other hand, the Annals of Fulda 887 (p 106) say that Arnulf deposed Liutward of Vercelli after a discussion with ‘his people’.

The idea that bishops should be dealt with solely by ecclesiastical courts is probably therefore a principle that is being established in the ninth century (mainly due to men like Hincmar), but it isn’t yet absolutely fixed. And I can’t see any good evidence that clerics below the rank of bishop had to be dealt with by ecclesiastical justice if they’ve broken secular laws (although since I’ve only just started looking at this matter, maybe this is being claimed e.g. in some of the Pseudo-Isidorian material).

2) Cases that someone takes to a bishop

There is a Christian traditon (going back as far as the early church) that a dispute between Christians should be taken to a bishop rather than a law court. And I think traces of that survive in bishops (and abbots) being used for various kinds of dispute resolution. This is most obvious in property disputes, but there are other cases where the same thing happens. For example, Hincmar has the following strange story in De Divortio (Responsio 15)(p 205):

And in a certain diocese of ours what we will explain took place. A certain young man of noble birth fell passionately in love with a woman of not ignoble ancestry. And seeking her legally from her parents, he won assent from her father, but the girl’s mother totally refused his request. But, what rarely happens, the father prevailed in agreeing to the young man’s demands. After betrothal, the giving of a dowry and a marriage celebration, the young man led her to a secret room, but he was in no way able to sleep with her as is normal. After they had led a life made tedious by irremediable hatred for two years, the young man went to the bishop, forced by necessity for he could not get advice anywhere else, with words of persuasion, requests and threats: that unless he allowed the marriage to be dissolved, he would take out his sword, through which murder would occur if the marriage could not be dissolved in any other way. But this bishop, sifting through many other such things often done by the devil, brought back to mind what the Lord said through the Prophet: “Son of man, dig in the wall, and see the wicked abominations which they commit here. And when I had digged in the wall, there appeared a door” and the rest which is read there. And he went from meeting to meeting, and through many treatises took the matter from the dispute to settlement, until the works of the devil were dissolved by the grace of God, and sexual relations, which had been possible with enjoyment with a concubine before, but impossible with his legally acquired woman, were made possible for the young man with his wife, after penance and church medicine.

I think this tradition explains why some cases involving only laypeople end up being dealt with by bishops, especially in combination with:

3) Penitential practice

In theory, penance shouldn’t get confused with legal cases, in particular because there is no need to ‘prove’ a case. Someone confesses a sin to a priest or bishop and they’re given penance to do, which is what would count as ‘secret’ confession/penance. Public penance, in contrast, starts from the principle of a notorious sinner, who is somehow causing ‘scandal’ to the community, and on whom a penance can be imposed without their prior confession. Again, in theory, there is no need for the bishop to prove the sinner’s guilt, so it’s not a legal matter.

A lot of what traditional historians of canon law have taken as being about jurisdiction could just as easily be references to penance, or so it seems to me. For example, Pierre Daudet in Études sur l'histoire de la jurisdiction matrimoniale: les origines carolingiennes de la compétence exclusive de l'église (France et Germanie). Paris: Libraire du Recueil Sirey, 1933 (which is still the standard work on the topic), thinks that Carloman’s Capitulary of Lestines 743 (Cap I p 28), which says that ‘according to the decrees of the canons’ (iuxta decreta canonum), adulterous and incestuous marriages are to be ‘prohibited and corrected by judgement of the bishops’ (prohibeantur et emendentur episcoporum iudicio) is about bishops gaining (non-exclusive) jurisdiction over such cases. It seems to me equally possible that Carloman means ‘judgement’ to refer to bishops deciding on suitable penance rather than presiding at a formal trial.

But there are a couple of grey areas through which bishops may have ended up judging some cases in a legal sense. One is that priests and bishops are increasingly asked to make preventative checks that marriages aren’t ‘incestuous’ (consanguineous) before they’re being made (rather than simply separating couples subsequently), so they are potentially getting an inquisitorial role in that. The second is what happens when someone is being called a notorious sinner and their affairs are stirring up public scandal, but it’s not actually clear that they have committed the sin of which they’re accused. And in marriage cases (my main interest), although bishops tend to say that lay courts should decide on such matters, occasionally synods end up ‘proving’ the matter in this way before deciding on penance.

In my next post I want to show how these three different roles of bishops (as judges of ecclesiastical personnel, as settlers of secular disputes and as givers of penance) could interact to create some of the procedures that we actually see in practice.

This is the start of an intermittent series of posts on topics around Hincmar’s text De Divortio Lotharii regis et Theutbergae reginae, which a friend and I are currently translating. One of the things we will need to write about in the introduction is issues of what would normally be considered ‘canon law’ at the time (860) e.g. the church’s rules on marriage. And yet I’m increasingly unsure how useful ‘canon law’ is as a concept for the ninth century. (The term ius canonicum only starts to be used in the twelfth century, although the term ‘canon law’ is often happily used by early medievalists).

What does canon law mean? In medievalists’ terms it would normally be understood as one among several medieval legal systems, applying to Christian organisations and their members. I’d define a legal system in very broad terms as consisting of a) a body of law, b) a collection of courts which apply this law and c) a set of procedures for how the law and the courts together work (what goes to court and how matters are decided). If you’re being picky you could say that something only counts as a legal *system* if it’s systematic, i.e. there is a consistent way of dealing with legal problems. On that view, I’m not sure whether there is a legal system till relatively late on in the medieval period, but I think even without this you do also need at the minimum d) some method for dealing with new problems that arise in cases.

If you take these very loose criteria, there is a secular Frankish legal system in the Carolingian period. There is a body of law even if it is somewhat fuzzy around the customary edges. There are courts and a sense of what ought to be dealt with by them. On the question of how matters are decided, there seems to be a grab-bag of alternative procedures rather than one standard practice, but there are a lot of vaguely standard elements, modular building blocks. And there is a method for dealing with new problems: ask the king (or alternatively make it up yourself).

If this is hazy, things get even hazier looking at canon law/ecclesiastical law. Firstly, the body of law mutates between each ‘canon law’ collection: compilers routinely add or subtract material and it’s not clear even what categories of material count as ‘law’. Although there are church courts, there is no clear sense of what ought to be dealt with them. The decision processes within church courts are a similar grab-bag to secular methods. But unlike in the secular case, there’s no standard person to appeal to; it’s not at all clear that the popes are the final authority or should be. And the ‘making it up yourself’ is complicated by the fact that this tends to be done via the route of forgeries, such as the false decretals.

I think the most you can say is that in the ninth century there is an ecclesiastical law tradition: I think even saying there’s a system of ecclesiastical law is overstating it somewhat. And there certainly is nothing like canon law in its later sense. The problem is, is it useful to say that you have the roots of a canon law system, from which by cumulative changes the later system developed? This is how Carolingian (and earlier) material tends to be dealt with in standard outline histories of canon law. The problem is that assuming this tends to end up implying that there was a deliberate move to develop such a system, and while you can see this in the eleventh century among the Gregorian reformers, I’m not sure whether you can see it in the ninth century. What in particular seems to be to missing is any sense that what was done in particular cases was intended to set a precedent rather than to deal with the specific immediate issue.

In some way, in fact, texts which would normally be considered as legal works (such as De Divortio) might better be seen as forms of legal exegesis or even legal theology. An authoritative collection of texts (whether the Bible or a canon law collection) is taken and extracts from it used to make a specific theological or legal claim. Is there really a substantial difference in method between how Hincmar proves that God does not predestine people to perdition and that Lothar may not remarry? I’m not yet sure, but I’m wary that if I simply use the category ‘canon law’ without care it may obscure more than it reveals.