In two previous posts Ive 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 Im interested in the topic and because thats 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, wasnt a trial (in the sense of an examination of evidence), because the real charges against Ebbo, of taking part in Lothars 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 Ebbos case (secret or public) was to bedevil Hincmar for more than thirty years, but thats 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 Hincmars De Divortio).
1) Firstly, theres 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 thats 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 Nelsons 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 theres additionally the possibility that the bishops were being expected to see whether the dispute could be settled between the couple. Once they decided it couldnt be, they didnt 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, theres a vassal of Lothars 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 Fulcrics 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 hed therefore only made one marriage.
Leo IVs response was a blistering letter to Hincmar. He was to lift the excommunication if Fulcrics 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 dont 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 Bosos 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 didnt 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 its 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 didnt 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 Hincmars letter on the case of Count Stephen (the only evidence we have) he says that Count Raymond (Stephens father-in-law) sent letters to the synod of Tusey in Oct-Nov 860, complaining about Stephens treatment of his daughter, since he hadnt consummated the marriage. In Hincmars view the synod shouldnt 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 couldnt 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 didnt, 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 Hincmars letter is spent on the question of what makes a valid marriage, but he also advises on procedure. He wants Stephens wife summoned to the synod for questioning (along with Raymond) and for her to confirm (possibly by oath) that shes still a virgin. He doesnt, however, consider it necessary for Stephen to have to name the woman hes 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. Im still trying to understand exactly what Hincmars argument is in De Divortio (its 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 Theutbergas 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 Theutbergas 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 churchs role is?
a) Firstly, that there isnt 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) Its 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 Stephens case he says the synod must interview witnesses to decide if the confession is genuine, while the placitum does mediation. In Theutbergas 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 doesnt hold up. (Stephen didnt choose the synod he got). Its possible Hincmar argues contradictory things for political reasons in 860, but its noticeable that he doesnt 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 doesnt actually show a great desire to take over dealing with marital disputes. Theyre 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 arent 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, Stephens father in law). Instead they appeal to a person (a bishop or pope), and they dont usually request a synod, but simply help (unlike clerics who appeal). This suggests that theyre working within a mental model thats 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.