Hincmar’s world 2: bishops, ‘jurisdiction’ and theories

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.


2 thoughts on “Hincmar’s world 2: bishops, ‘jurisdiction’ and theories

  1. One other possible factor in the growth of episcopal courts is the possibility that they were better choices for plaintiffs compared to secular courts. The information we have on this point is mostly from much later periods (the “High Medieval” era) but the logic applies to the period you are interested in as well–namely, church courts might be better organized and more accessible than the secular equivalents, and the outcomes might be better for plaintiffs. For instance, if a contract dispute involved claims of fraud, the early secular courts would not visit those claims. They would focus on whether the formalities of a contract existed, and if they did, enforce the contract without regard to possible fraud. A church court, however, had a different attitude towards fraud, both as a sin and as what came in English law to be viewed as equitable claims. It therefore would investigate the fraud allegations. A number of other torts have a similar history. In English law, many of these matters we think of as civil got into the secular court system through the growth of equity (where the fact that the Lords Chancellor were often clergymen gave rise to the myth of equity as correcting the common law courts because the Lord Chancellor was the keeper of the king’s conscience–something we now know to be definitely false–the Lord Chancellor simply acted as the person who got all the petitions to the king from people who got screwed over by the common law courts for one reason or another), while marriage, divorce and wills remained church court matters until first the courts of equity took them on, and then they were worked into the great judicial consolidations of the 19th century. (Wills went secular first because of Henry VII’s statutes.)(See the history of Doctors’ Commons.)

    As I said, the evidence is much greater from later periods, but I would think the option of going to the bishop instead of the local lord as an alternative court might often have played a part. The national secular courts, when they came into being, were really royal alternatives to local courts offered to people who didn’t trust the local courts or would have lost their cases at the local level because of local customary law. Church courts could have provided the same service at an earlier period.

    BTW–in the Carloman text, the use of the phrase “prohibited and corrected” seems, to me, to point rather directly the role of the bishop as giver of penances and spiritual guide.


  2. That reminds me of a paper of Chris Wickham’s I was at a while ago, in which he was talking about getting justice in twelfth-century Rome, where one could oppose the verdicts of the ‘senatorial’ court with judgements from the Pope. There wasn’t any clarity over which over-ruled which, so cases could drag on for years and years, yet people still brought cases to both despite the lack of useful outcome. (Obviously, a lot of people could have just been circumventing the system and would leave no records, but there were still plenty of people and institutions who did keep using it.) Chris didn’t have a finished answer at that stage but raised the possibility that in a community like this, where definitive answers weren’t really available, the battle might be to amass enough impressive backing and justification for your position that people would accept it, at least for a while. Obviously the pope’s a good source of status, especially if you’re a church; and if he backs the wrong guy you go somewhere else for your consensus. The only way to win is overawe either with widespread backing or spiritual and noble importance. I wonder if similar motives lie behind the choices of jurisdiction we’re looking at here, but altered by the more likely chance of a definitive outcome…


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