Post-classical history


Canon Law in the Early Middle Ages

The early Middle Ages (ca. 476–ca. 1000) experienced dramatic changes as the Church grew in stature and as the Western Roman Empire morphed into diverse Germanic kingdoms. Canon law likewise changed as it grew from a body of norms into an autonomous legal system that paralleled the legal system of the late Roman government followed by the codes of secular kings. Canon law in the early Middle Ages occupied a different space and context from that which characterized the high Middle Ages. It was an “an age without jurists” in the sense that professionally trained experts were not prevalent, but it was not an age when juridical knowledge was lost. It was not a period devoid of legal science and users of law interpreted the significance of that which they inherited by selecting which texts to include in collections.1 This truly was an era in which law did not emanate from one centralized authority in the form of a “state”. Law was not simply a top-down measure. Law, rather, came from a diverse variety of legislative bodies, be it secular rulers, church councils, the papacy, penitential manuals, or monastic rules. The products of these legislative bodies were then selected for their applicability and gathered into a wide assortment of collections that served the needs of both the compiler and its community of users, needs that included the administration of justice, ecclesiastical governance, liturgical services, pastoral care, and overall spiritual welfare of both the religious and the laity.

1 M. Bellomo, The Common Legal Past of Europe, 1000–1800, trans. L. G. Cochrane (Washington, DC, 1995), 34–54 famously referred to the early medieval period as “an age without jurists,” though scholarship is working to recast this understanding.

Although Roman governments had weathered innumerable emergencies, a rapid series of grave political crises in the fifth century inflicted irreversible wounds from which the Empire in the West would not survive.2 The crises of the fifth and sixth centuries centered upon the successful invasion of the Western Empire by Germanic peoples, who subsequently settled in and secured political control of the whole region that we now describe as Western Europe. These non-Roman peoples from northern and central Europe had begun to make inroads into imperial territory during the fourth century and before the year 400, when a few groups had settled in some of the less densely populated provinces of the Empire.3 Common usage would describe them as “barbarians”, despite the fact that knowledge of Latin was not uncommon, and they were, by Roman standards, tolerably “civilized”. Although these initial settlements accommodated the perennial Roman need for military manpower, the situation deteriorated sharply after 400 to the point where Roman defenses were finally overwhelmed. By the fifth century’s close, Roman rule had ended for practical purposes nearly everywhere west of the Adriatic Sea. Picking up the mantle of Rome’s administration were the Franks in Gaul, the Lombards in Italy, and the Anglo-Saxon kingdoms in Britain and in the regions east of the Rhine.4

2 The Eastern half of the Roman Empire, however, survived the loss of its Western twin and continued not merely to exist but even to flourish for another thousand years. After the sixth century, the surviving Eastern Roman state is usually referred to as the Byzantine Empire.3 See W. Goffart, Barbarian Tides: The Migration Age and the Later Roman Empire (Philadelphia, 2006) for a reassessment of the assumptions of migration and invasion, as well an analysis of “Germanic” as a misleading, but unavoidable, description.4 Scholars are increasingly treating “Germanic” as a linguistic, rather than an ethnic, attribute. Maurizio Lupoi has argued that Germanic migration did not entail entire “populations”, but rather clusters of families or social groups, or of tribes linked by matrimony or territorial contiguity. Because most of these groups lacked a distinct ethnic identity, groups assimilated into one another despite distinct names. As such, they had a shared heritage and thus would share a common “Germanic law”. See M. Lupoi, The Origins of the European Legal Order, trans. by A. Belton (Cambridge, 2000), 21, 22. See also T. Faulkner, Law and Authority in the Early Middle Ages: The Frankish Leges in the Carolingian Period (Cambridge, 2016), ch. 1 and ch. 2.

The legal collections of the various kingdoms, especially of those on the continent, are more appropriately referred to as Völkerrecht (law of the people) rather than as leges barbarorum (law of the barbarians). Collections compiled in the southern kingdoms (those of the Visigoths, Ostrogoths, Burgundians, and Lombards) and in the northern kingdoms (those dominated by the Franks) were written primarily in Latin—though occasionally Germanic terms would appear—and would rely on a common Roman law vocabulary, some of which was technical. Even in Anglo-Saxon England, where collections are found in the vernacular, continental models were followed. These collections characterize the regimes that produced them, but also, to a greater or lesser degree, draw explicitly on late Roman legal collections. The Lombard Leges Langobardorum was a composite of laws from the Edictum Rothari, legislation of various kings, and glosses/expositions for teaching Roman law found texts such as the Liber Papiensis, Lombarda, and Expositio ad librum Papiensis. The Visigoth Codex Euricianus and the Ostrogoth Edict Theodorici incorporated Roman law and legal principles. In Gaul placita, which recorded both judicial decisions of disputes brought before the royal court and land conveyances, derived from Roman legal practice.5 To some extent, one can see the period as an osmosis of Roman and Germanic law, a union of traditions, in which a homogenized legal framework was created. Stated another way, while the cultural context of the peoples factored into the extent to which legal osmosis took place—for example, southern kingdoms incorporated more Roman legal texts more frequently—legal texts were borrowed freely from a number of sources and adapted to fit the social and economic conditions of the time and place. This approach was neither “Roman” nor “Germanic”; there was no single “national” center responsible for the production of law and there was no monopoly on legislation.6

5 A. Callander Murray, “Law of the Post-Roman Kingdoms,” in Great Christian Jurists and Legal Collections in the First Millennium, ed. P. Reynolds (Cambridge, 2019), 73–106, here 86–87, 101, 89–92 provides a list of the collections for each kingdom:

Southern Kingdoms

Visigoth: Codex Euricianus, Lex Romana Visigothorum, Lex/Leges Visigothorum

Ostrogoth: Edict Theodorici

Burgundian: Lex Burgundionum / Liber Constitutionum, Lex Romana Burgundionum

Lombard: Leges Langobardorum

Northern Kingdoms

Salian Franks: Lex Salica

Austrasian Franks: Lex Ribvaria

Alamannian Franks: Pactus Alamannorum, Lex Baivariorum

See the bibliography for available translations.

6 Lupoi, The Origins of the European Legal Order, 186, 218–222. In his first edition, Brundage referenced S. L. Guterman, The Principle of the Personality of Law in the Germanic Kingdoms of Western Europe from the Fifth to the Eleventh Century (New York, 1990) in noting that “Germanic rulers regarded law as an attribute of personality, rather than of territory—that is, they assumed that a legal tradition formed an inalienable part of each individual’s ethnic heritage, and accordingly that everyone should be governed by the norms of the legal system into which he or she was born” (19–20). Lupoi, however, has argued that if a law could not apply to one people (ethnically speaking) there is not a personality of law, see The Origins of the European Legal Order, 393–405.

The new political order in the West shaped the subsequent development of the Church’s own institutional structures and its legal system. Between the sixth and the mid-eighth centuries, as church councils bear witness, there existed a symbiotic relationship between ecclesiastical institutions and civil governments. Frankish councils, such as those at Orléans (511) and Mâcon (585), cited imperial edicts; secular rulers, such as Clothar II, adopted conciliar legislation.7 Rulers of the Frankish and Visigoth kingdoms, in particular, saw councils both as an extension of the symbolic notion of imitatio imperii (imitation of imperial rule) and also as a forum where collaboration with the ecclesiastical administrators of their respective realms could take place. For example, of the eighty councils convened in Frankish Gaul between 511 and 768 (the ascension of Charlemagne to the Frankish throne), rulers convoked 60% of them. Yet they neither made a concerted nor sustained effort to monopolize the calling for or agenda of a council.

7 G. I. Halfond, The Archaeology of Frankish Church Councils, AD 511–768 (Leiden, 2010), 9–10 nn.33 and 34. Examples of councils adopting secular legislation were: Orléans (511), c.1 and c.23; Orléans (541), c.13; Orléans (549), c.7; Tours (567), c.21 and c.22; Mâcon (581/583), c.16; Mâcon (585), c.9. See also Chothar II Edictum (MGH Capit. 1:9, pp. 20–23) for secular legislation adopting conciliar decrees.

Frankish councils addressed the needs of those who convoked and attended it, and those needs were as diverse as the locations in which they were held. They reissued canons from earlier councils as a way to enforce current policy and guard against unwanted behavior. Yet councils also innovated by adapting existing policy to address present concerns. Conciliar policy regarding the Jews at the Councils of Clermont (535) and Mâcon (581/583) added the phrase aut tolonari (“or toll collectors”) to previous conciliar legislation that had forbidden Jews from being iudices over Christian peoples. The additional wording further clarified, and restricted, Jewish influence. Councils also granted and confirmed privileges to churches and monasteries, rendered judicial decisions, facilitated peace talks, and mediated ecclesiastical and royal interests by informing and influencing royal policy. Such efforts were instrumental to the protection of ecclesiastical property, donations, and tithes. They also helped to establish parameters for acceptable behavior among the laity. While councils could regulate the rights of the nobility, non-Christians, and even slaves and freedmen, they required the cooperation and buy-in of secular officials to ensure enforcement.8

8 Halfond’s The Archaeology of Frankish Church Councils and his article, “Ecclesiastical Councils,” in Great Christian Jurists and Legal Collections in the First Millennium, ed. Reynolds, 107–127, are excellent sources for understanding early Frankish councils within their time and place.

As one can imagine, the sheer number of canons issued by the sheer number of councils held since the first council at Nicaea in 325 had made wading through conciliar law daunting. Attempts were made to bring the decrees of various councils together into collections, organized into canons; a term from the Greek κανοων, meaning a rule, and originally used to describe conciliar decrees.9 The earliest attempts at organization, which date to the fifth century, were organized chronologically. That is, the collection would begin with the decrees from the earliest councils and work forward to the most recent. For example, the Corpus canonum Africano-Romanum (ca. 420) drew together the decisions of the Council of Nicaea (325), the Council of Serdica (343), and African councils. The Collectio Wirceburgnsis (“Collection of Würzburg”) was compiled in the sixth or seventh century somewhere outside of Gaul and likewise organized councils, and their canons, chronologically. The Collectio Dioynsiana organized not only councils chronologically but also included papal decretals. The collection was compiled around 500 in Rome by the Scythian monk Dionysius Exiguus (d. ca. 537–555) which, in its original form, included a majority of the canons from chapter 47 of the Constitutiones apostolicae, also known as the Canones Apostolorum (“Canons of the Apostles”); and the canons from the councils of Nicaea, Ancrya, Neocaesarea, Gangra, Antioch, Laodicea, Constantinople, and Sardica. Chronological collections made finding the conciliar canons of a council convenient, if you knew when it was held in relation to other councils, but they did not provide a picture of the law issued on a particular subject.

9 Helpful handbooks providing information about collections, literature, and manuscripts are: B. Ferme and G. Falchi, Introduzione allo studio delle fonti dell’Utrumque Iuris (Vatican City, 2006), chs. 2–6; L. Kéry, Canonical Collections of the Early Middle Ages (ca. 400–1140): A Biobibliographical Guide to the Manuscripts and Literature (Washington, DC, 1999); and L. Fowler-Magerl, Clavis Canonum: Selected Canon Law Collections before 1140 (Hannover, 2005).

As with conciliar canons, efforts had been made previously to compile decretals into collections for future reference. Some of the earliest decretals compiled in collections were from Popes Innocent I, Zosimus, and Celestine.10 The sixth-century decretal collections the Collectio Corbeiensis (“Collection of Corbie”) and the Collectio Pithouensis included the decretals of Innocent I and Celestine.11 The Collectio Quesnelliana (ca. 495) included decretals of Siricius, Innocent I, Zosimus, Celestine, and Pope Leo I.12 Decretals of Pope Leo I (d. 461) can also be found in an appendix of the Collectio Corbeiensis and in the Collectio Grimanica.13 By the sixth century, papal decretals would have equal authority with conciliar decrees, as underscored by the First Council of Braga (563) and the Third Council of Toledo (589). As a result, decretals would be appended to conciliar collections such as to the Corpus canonum Africano-Romanum and to the Collectio Dioynsiana.

10 Canones urbicani: Innocent I: JK 293, 303; Zosimus: JK 339; Celestine: JK 369, 371. Epistolae decretales: Innocent I: JK 286, 293, 303; Zosimus: JK 339; and Celestine: JK 369 in its entirety, and 371.11 Innocent I: JK 286, 293, 303; Celestine: JK 369, 371.12 Siricius: JK 255; Innocent I: JK 286, 293, 303, 311; Zosimus: JK 339; Celestine JK 369, 371.13 D. Jasper, “Papal Letters and Decretals Written from the Beginning through the Pontificate of Gregory the Great (to 604),” in Papal Letters in the Early Middle Ages, D. Jasper and H. Fuhrmann (Washington, DC, 2001), 7–87.

It is important to stress that no one collection was deemed authoritative. Collections rather were compiled to suit the needs of a particular location, compiler, or user. Chronologically arranged collections of conciliar canons and papal decretals abound. For example, the Collectio Remensis dates to the second half of the sixth century from somewhere in Gaul. The Collectio Corbeiensis, compiled around Vienna, and the Collectio Coloniensis, compiled around Arles, both date from sixth century as well. The Collectio Pithouensis was compiled around Sens or Auxerre in central Gaul around the turn of the seventh century. As a final example, the Collectio Sanblasiana was compiled somewhere in Italy in the sixth century. It is also important to remember that people travelled and so too did their texts. For example, the Collectio Corbeiensis shares a close connection with the Collectio Pithouensis. The compiler of the Collectio Sanblasiana drew upon the Collectio Dioynsiana. The individuality of connections between collections underscore that the Church did not have a single body of law but rather a rich legal tradition in which conciliar canons and papal decretals played a vital role.

As the sacred and the secular intermingled at Frankish church councils, we turn to the British Isles for developments in spiritual reconciliation. The church of Late Antiquity had been employing a variety of methods to reconcile sinners with the body of Christ.14 Formal public ceremonies were but one method for forgiving sins. During these ceremonies, the repentant sinner had to make a public confession of wrongdoing. The penitent was then obliged to openly perform certain public acts of expiation before he or she could be reconciled with the church and readmitted to communion. Public confession thus embodied both a reconciliatory and also a disciplinary element. Since public penance could be performed only once in a lifetime, many Christians understandably chose to postpone repentance until late in life, an issue that the church began to discuss in the fifth and sixth centuries as liturgical developments, such as rogation ceremonies, and sermons emphasized the importance and value of penance.

14 A beginning point for penitential literature is C. Vogel’s Les Libri Paenitentiales (Turnhout, 1978). For what follows, see R. Means, Penance in Medieval Europe, 600–1200 (Cambridge, 2014).

Monasticism would have a profound impact on penitential practices. The Rule of St. Benedict required that monks confess daily their sins to God but also to confess every bad thought, no matter how trivial, and deed, even if committed in secret, to the abbot. This private rite of confession was one in which the penitent confessed in secret. Irish monasticism, particularly during the flowering of penitential thought between 650 and 768, would have a tremendous impact on private penance and, with it, reconciliation. A new genre of ecclesiastical text, penitentials were handbooks that provided guidance for priests who heard confessions. Their texts would infiltrate canonical collections and give canon law an inward-looking character. Penitential handbooks took the structure of indexes or tables listing the crime (e.g., homicide), sin (e.g., nocturnal emission), or precept (e.g., allowing a mouse to drown in the ale) with appropriate penances for reconciliation. The efficacy of absolution was contingent upon performance of individual acts of penitence that the confessor tailored to suit the circumstances and the offenses that the penitent had committed. Penance, performed in private, could be repeated as often as necessary. Monastic influence on penitentials can be seen with Irish Paenitentiale Cummeani which seems tailored to religious life.

The Irish Finnian (or Vinnian) of Clonard wrote one of the earliest well-developed, methodical penitentials in the first half of the sixth century. Finnian distinguished sharply in the penances he prescribed between the more demanding punishments appropriate for the clergy and the milder ones that the sins of the laity merited. Thus, for example, a cleric who quarreled with his neighbor and entertained thoughts of killing him was to fast for six months on bread and water and to abstain from wine and meat for an additional six months before he could be readmitted to communion. A layman guilty of the same offense had to do penance only for a week since, as Finnian explained, “he is a man of this world and his guilt is lighter in this world and his reward less in the world to come” (c.6–c.7). Finnian’s work, like most later handbooks of penance, devoted substantial space to a wide variety of sexual misbehaviors. Almost two-fifths of Finnian’s canons deal with sexual offenses of one kind or another, a proportion that remained fairly typical of later penitentials.15 Penitential handbooks were considerably larger and deal with a wider range of sins than that of Finnian. They also could prescribe punishments different from his. Some consisted of little more than extended tariffs of sins and suggested penalties, while others attempted to explain more amply the reasons for distinguishing between different offenses and to set their prescriptions within a broader theological context. Penance was thus for monks as well as for the laity of whatever status or rank. The Irish, however, did not monopolize penitential literature as seen by the numerous handbooks, such as the Anglo-Saxon penitentials of Pseudo-Bede and Egbert, compiled in Britain during this period.

15 The standard edition of Finnian’s text appears in L. Bieler, The Irish Penitentials (Dublin, 1963), 74–95; an English translation from an earlier edition may be found in Medieval Handbooks of Penance, eds. and trans. J. T. McNeill and H. M. Gamer (New York, rpt. 1965), 86–97. For an analysis of the proportion of sexual offenses in a representative sample of penitentals, see P. J. Payer, Sex and the Penitentials (Toronto, 1984).

Penitential thought and practice were transplanted to the continent in the seventh century and flourished between the eighth and tenth centuries. The Paenitentiale Oxoniense II preserves the character of penance in eighth-century Frisia (modern-day Netherlands, Friesland, and parts of northern Germany along the North Sea). For example, it prescribed four weeks’ penance for any Christian who helped their neighbor build a funeral pyre, a prescription which points to Christians and non-Christians living together. Continental penitentials, such as those of Pseudo-Theodore, Rabanus Maurus, Halitgar of Cambrai, and of Regino of Prüm, brought together conciliar texts and writings of the Church Fathers. Halitgar of Cambrai’s penitential (ca. 829) brought together such texts at the request of Archbishop Ebbo of Reims for a clearly organized manual on which priests could rely to tend to the spiritual wellbeing of the flock.16 Compiled at the turn of the tenth century for Archbishop Hatto of Mainz (d. 913), Regino’s Libri duo de synodalibus causis et disciplinis ecclesiasticis (“Two Books on Synodal Investigations and Ecclesiastical Instruction”) gathered texts into a handbook to assist with the bishop’s inquiry into practices of pastors and laity of the parishes and those of the abbots and monks within his diocese.17

16 “Letter of Archbishop Ebbo of Reims to Bishop Halitgar of Cambrai,” in Prefaces to Canon Law Books in Latin Christianity: Selected Translations, 500–1317, 2nd edn., trans. R. Somerville and B. Brasington (Washington, DC, 2020), 65–66.17 “Preface to Two Books concerning Synodal Investigations and Ecclesiastical Instructions of Abbot Regino of Prüm (906): Dedicatory Letter to Archbishop Hatto of Mainz,” in Prefaces to Canon Law Books in Latin Christianity, 2nd edn., trans. Somerville and Brasington, 79–80. See also W. Hartmann, ed., Das Sendhandbuch des Regino von Prüm (Darmstadt, 2004).

The aim of penance was curative. On the one hand, sin was envisioned as a moral sickness that required treatment to restore the sinner to spiritual health. Penitentials, then, represented a kind of spiritual pharmacy that supplied confessors with a list of the sins they might encounter, together with a menu of penitential acts appropriate for each type of sin. This allowed the confessor to prescribe a course of penance to match the spiritual needs of each sinner. Penance also played a role in conflict resolution, as seen by prescriptions to compensate injuries, which, hopefully, would mitigate the anger of the offended party and prevent future upheaval to the social order. Penitential handbooks of incorporated canons of behavior were based upon the councils and other traditional canonical sources, but also drew upon the author’s own experience and practice as a confessor. Since priests throughout Western Christendom consulted these manuals and relied upon them for guidance in dealing with the sinners who confessed to them, the penitentials became in effect a source of law, although few of their authors held high offices in the ecclesiastical hierarchy and were seldom vested with formal legislative power.

Penance was woven into religion, society, and politics.18 Together with the canonical collections, penitentials set forth the norms and various procedures for ecclesiastical authorities who sat in judgment of offenses that ranged from the criminal to the mundane. There thus existed an interplay between judicial authority to correct offenses and the issuing of appropriate penance found in penitential manuals to reconcile the offender. The penitential forum (forum poenitentiae) would influence and be influenced by legal developments. This intersection between objectives, procedure, and subject matter point to the line between penance and law as blurred at best and non-existent at worst. It also would parallel the entanglement of ecclesiastical and secular agendas that marked the Carolingian period.

18 For a case study on the intersections of law and penance, see A. Firey, A Contrite Heart: Prosecution and Redemption in the Carolingian Empire (Leiden, 2009).

While the sixth through the mid-eighth centuries was marked by a symbiotic relationship between church councils and secular rulers in Gaul, Charlemagne’s ascension to the Frankish throne and birth of the Carolingian empire altered the dynamics of that relationship by more fully entwining the secular and sacred.

Map 2.1 Europe in the ninth century© Martolosko, CC BY-SA 3.0 via Creative Commons

Charlemagne, along with his successor, Louis the Pious (d. 840), embarked on efforts to renew the church throughout the realm and to reform ecclesiastical institutions and discipline.19 Charlemagne, for example, took an active role at the Council of Frankfurt (794) and he organized councils at Arles, Reims, Maniz, Châlons, and Tours. The entwinement of the secular and sacred also bears out in the number of Carolingian manuscripts that contain both ecclesiastical and secular legislation.20 Louis the Pious would task the monk Benedict of Aniane (d. 821) with reforming monastic life. His Codex Regularum (“Code of the Regulars”) gathered together the surviving monastic rules from the Latin West—rules such as those of the Regulae partum, Pachomius, Basil, Augustine, Columbanus, and a rule for female monastics—in addition to Benedict’s Rule of the Master (Regula magistri), which was presented at the apex of monastic rules. Benedict of Aniane’s Code of the Regulars, in essence, established the Benedictine Rule as the rule to be followed in Frankish monasteries.21 Bishop Theodulf of Orléans (d. 821) would adapt a portion of Benedict’s Rule, “Instruments of Good Works”, to assist the parish priests with their care of spiritual wellbeing of the laity.22

19 See J. R. Davis, Charlemagne’s Practice of Empire (Cambridge, 2015).20 Halfond, The Archaeology of Frankish Church Councils, 10 n.35. Examples being Paris, BNF, lat. 1455; BAV, lat. 3527; and BAV, lat. 5751.21 A. Diem, “Monastic Rules,” in Great Christian Jurists and Legal Collections in the First Millennium, ed. Reynolds, 214–236, here 216.22 S. G. Bruce, “Textual Triage and Pastoral Care in the Carolingian Age: The Example of the Rule of Benedict,” Traditio 75 (2020): 127–141.

Though not new to Carolingian rule, royal capitularies became an important vehicle for disseminating the king’s secular and ecclesiastical agenda; they were a vehicle for legislating on ecclesiastical matters. The Capitulary of Herstal (779), for example, greatly improved the church’s ability to fund its activities by calling upon imperial officials to enforce payment of the tithe, the 10% tax on most types of income that remained the basis of church finance for more than a thousand years. The resulting growth of ecclesiastical resources made it possible to multiply the numbers of parishes and to bring regular religious services and instruction to many parts of the empire, where they previously had been haphazard and occasional. Other capitularies dealt with monastic schools and libraries, with standardization of liturgical observances, with clerical discipline, and with a host of other matters vital to the wellbeing of the Carolingian church. Most famously, Charlemagne’s capitulary Admonitio generalis (789) cited canons and decretals from particular councils and popes in efforts to revive education, religious observance, and reform clerical and lay behavior by creating a new generation of educated clergy who would be able to perform the Christian rights and to instruct the people on doctrinal matters.23

23 Admonitio generalis (MGH Capit. 1:22, pp. 52–62).

Capitularies made it clear that Charlemagne viewed himself as the head of both the religious and civil establishment within his empire. The emperor sought to bring order into every aspect of church life. He was concerned about the liturgy and demanded that worship be conducted according to a uniform ritual throughout his domains. He cared about church music and took pains to see that choirs were properly instructed so that their performances would enhance, rather than detract from, the solemnity of liturgical ceremonies. He directed bishops and abbots to provide more adequately for the education of their monks and clerics. He encouraged missionaries to spread the Gospel and baptize pagans and supported their work actively, in part at least because he viewed their labors as an important element in the pacification of newly conquered territories. He likewise enforced the collection of taxes for church support, especially the tithe, which funded many of the church’s activities. With no sharp dividing line between royal and ecclesiastical powers, regulation of the church became an integral part of royal functions.24 Later canonists came to treat the Carolingian capitularies as legitimate sources of ecclesiastical law and routinely incorporated them in subsequent collections of the canons.

24 See Faulkner, Law and Authority in the Early Middle Ages, ch. 3 and ch. 5 for how some capitularies were independent of royal efforts, reflecting the needs and concerns of those using the law.

Capitularies existed as a source of law alongside conciliar canons and papal decretals which contributed to an already rich and overlapping legal tradition. Take leprosy as an example. Pippin III [the Short] issued a capitulary at the Council of Compiègne (757) that would be included in the legal collection the Decretum Compendiense, which allowed for the healthy partner to separate from the leprous partner with the leprous spouse’s consent. It did not matter whether the leprous spouse was the husband or the wife; Pippin III’s capitulary applied equally to both.25 Pippin III’s contemporary Pope Stephen II (754) also commented on the issue of leprosy in a letter dealing with the indissolubility of marriage. He wrote that if someone was joined to another in marriage, the couple could not separate even if infirmity prevented one of the partners from rendering the marriage debt. The exceptions were if one of the partners suffered from demonic possession or the stain of leprosy. Thus, if a healthy man led a woman into marriage who then became leprous, they were permitted to separate lest the disease should befall him and pollute any children conceived. The clean were to be joined to the clean.26 While one was not dependent upon another, both Pippin III [the Short]’s capitulary and Pope Stephen II’s decretal (754) allowed for the healthy partner to separate from the leprous partner so that the disease would not be passed onto the children.

25 Pippini capitularia [Council of Compiègne], c.19 (MGH Capit. 1:15, pp. 37–39).26 Responsa Stephani Papae II, c.2 (PL 89:1024); Responsa Stephani Papae II c.9 (PL 89: 1026).

Canonical collections played an integral role in Charlemagne’s efforts to raise the status of the church, which, in turn, greatly increased both the effectiveness and importance of canon law within the ecclesiastical institution. Responding to Charlemagne’s request, Pope Adrian I (d. 795) furnished him in 774 with an up-to-date compendium of the canons—the Hadriana, a newly-revised version of the Dionysiana, which Dionysius Exiguus had compiled towards the end of the fifth century—that could serve as the fundamental statement of the church’s current law. The synod of Aachen (802) directed bishops throughout the Carolingian empire to use this revised collection, in conjunction with the collection of Spanish conciliar canons known as the Hispana, as the fundamental lawbooks in their courts. The content of the Admonitio generalis drew heavily from this collection.27 Alongside the Dionysio-Hadriana, the Dacheriana was a highly influential collection, especially in the province of Reims between the ninth and eleventh centuries. It was divided into three books dealing with penance, crimes, and judgment; accusers, the accused, judges, and those things pertaining to ecclesiastical rules; and, finally, those things concerning the sacred orders. These collections were organized systematically. That is, a compiler would pull together pertinent arguments from a wide array of sources, such as Scripture, writings of the Church Fathers, conciliar decrees, papal decretals, and Roman law, and organize those sources into particular themes.

27 Y. Hen, “Knowledge of Canon Law among Rural Priests: The Evidence of Two Carolingian Manuscripts from Around 800,” Journal of Theological Studies 50, no.1 (1999): 117–134. It is worth noting that collections such as the Quesnelliana, Sanblasiana, Hispana, parts of the original Dionysiana, and the Vetus Gallica continued to find use.

Unlike chronologically arranged canonical collections, such as the Collectio Dioynsiana, systemically or thematically arranged collections pulled together pertinent arguments from a wide array of sources—such as Scripture, writings of the Church Fathers, conciliar decrees, papal decretals, and Roman law—and organized those sources into particular themes. Such collections were not new to the eighth century but rather date from as early as the fourth century. The so-called Constitutiones apostolicae, compiled in Syria or Palestine probably around 380, was organized systematically into eight books. It drew upon the Scriptures, apocryphal literature, creeds, conciliar canons, and church histories to set forth a framework of the obligations and prerogatives of various groups within the Christian fold. The systematically arranged Statuta ecclesiae antiqua was a fifth-century collection of decrees drawn from Gallic and Spanish councils that addressed disciplinary regulations for clergy and laity alike.28 The seventh-century collection known as the Hispana comprised a great mass of canons, drawn not only from the early Greek councils, but also from North Africa, Gaul, and especially from Spain, where conciliar legislation was both extensive and important. It also included numerous papal decretals from Pope Damasus I (d. 384) to Gregory I (d. 604). In its first reiteration, the collection, known as the Collectio hispana chronologica, presented its conciliar canons and papal decretals in chronological order. During the second half of the seventh century, however, the material would be reorganized by subject and became known as the Collectio hispana systematica and provided its users with more convenient access to the canons than chronologically arranged collections. The Irish systematic collection, the Collectio Hiberensis (ca. 669–ca.748), is a fascinating compilation. On the one hand, it addresses topics one would expect in a canonical collection: the individual ecclesiastical orders; religious orders; Christian practice (e.g., alms, prayer, fasting, care for the dead, and sin); sites for churches; usury; oaths; women, family (parents, their offspring, and inheritance), and marriage; and curses and benedictions. It also addresses in great detail judicial procedure, sorcery, crimes and vengeance, penance, and excommunication. On the other hand, the collection includes books that might not usually receive such specific and particular treatment: kingship and the concept of principatus (Books 24 and 36); interactions with barbarians (Book 58); lordship and subjugation (Book 23); the relationship between church and the world (Book 41); fugitives and refugees (Books 27 and 28); and eating and other uses of animals (Books 52 and 53).29 Thematic organization would become the norm for the organization of most canonical collections.

28 Kéry, Canonical Collections of the Early Middle Ages, 1–2, 7.29 R. Flechner, ed., The Hibernensis (Washington, DC, 2019). Book 1 includes an introduction and a Latin edition; Book 2 is the English translation, commentary, and indexes. Flechner notes that the Hibernensis possess characteristics that appear close to vernacular secular law. See also R. Flechner, Making Laws for a Christian Society: The Hibernensis and the Beginnings of Church Law in Ireland and Britain (New York-London, 2021).

Under Charlemagne, church reform policy and canon law had political objectives in addition to a concern with improving the quality of religious life around the empire. With an eye on using church institutions and personnel as instruments of political power, he selected his bishops for their potential usefulness as officers of government and as well as religious leaders. He had employed other clergymen as secretaries in his own household and had entrusted them with a significant share of responsibility for orderly administration and record-keeping. Nothing, however, lasts forever and that goes double for empires. After the great emperor’s death in 814, the regime that he had built soon began to falter and ultimately fell. The continued efforts at reform by Charlemagne’s sole surviving son, Louis the Pious, provoked widespread resentment among the ruling aristocracy, while his second marriage, which added a further heir to vie for power with the two sons of his first marriage, complicated dynastic politics. Rivalries among Louis’s heirs, combined with the greed, ambition, and fecklessness of his grandsons, resulted in a territorial breakup of the Carolingian realm, inevitably accompanied by a diminution in the political power of its rulers. These dynastic jealousies, political intrigues, and territorial fragmentation coincided with attacks by powerful foreign enemies as the later Carolingians found themselves beset simultaneously by Vikings from Scandinavia, Magyars from Central Europe and the Russian plains, and Muslims from Spain and North Africa.

Since churches, monasteries, and convents of nuns were especially attractive targets for the Vikings and other outside attackers, local military leaders who assumed responsibility for organizing the defense of their regions—dukes, counts, and other warlords who lacked formal titles or public authority—put a large part of their effort into defending religious institutions against the ravages of invaders. In return, the defenders sought to assert control over ecclesiastical positions and property. Bishops, abbots, and other church officials, down to and including parish priests, typically came to be named by local landowners and noblemen, who often demanded concessions of church property from the successful candidate in return for securing his appointment. For example, should a local strongman wish to provide his son with a dignified and comfortable living as a bishop or abbot, the chances were extremely good that the boy would be taken care of, no matter how meager his qualifications for the position. Knights and nobles almost everywhere claimed the right to appropriate part, and sometimes all, of the tithe and other church revenues from their manors for their own use in compensation for the protection that they offered against even more voracious competitors. Or, to cite another common situation, when a local landowner wished to divorce one wife and marry another, canonical authorities might be hard-pressed to resist the pressures he could exert to get his way. We conventionally describe this state of affairs as “the proprietary church regime” (Eigenkirchentum), a term coined by German scholars.30 Ecclesiastical prelates—bishops and abbots—having originated oftentimes from the secular nobility took advantage of this fractured environment by exerting more independence and political force.

30 More recently see S. Wood, The Proprietary Church in the Medieval West (Oxford, 2009).

Amid this climate there appeared a series of canonical collections based on both genuine and forged papal decretals. Collectively, these collections are known as the “Pseudo-Isidorian forgeries”, so named after the most influential of the collections, the Pseudo-Isidorian Decretals. Forged in the same circle as the Pseudo-Isidorian Decretals are the collections the Capitula Angilramni; the Hispana Gallica Augustodunensis/Pseudo-Isidorian Hispana; and the collection of false Carolingian capitularies attributed to Benedictus Levita. In addition are the lesser-known forgeries such as the Excerptiones de gestis Chalcedonensis concilii, which is an altered version of the acts of the Council of Chalcedon (451); a purported decretal of Gregory IV, known as Divinis praeceptis, which recorded Leo I’s concept of the bishop of Rome’s “fullness of power” (plenitudo potestatis); and the Collectio Danieliana.31

31 C. Harder, “Pseudo-Isidorus Mercator,” in Great Christian Jurists and Legal Collections in the First Millennium, ed. Reynolds, 397–412. For more extended analysis, see C. Harder, Pseudoisidor und das Papsttum: Funktion und Bedeutung des apostolischen Stuhls in den pseudoisidorischen Fälschungen (Cologne, 2014). See also H. Fuhrmann, “The Pseudo-Isidorian Forgeries,” in Papal Letters in the Early Middle Ages, Jasper and Fuhrmann, 137–195.

The Pseudo-Isidorian Decretals were highly influential throughout the Middle Ages and no one ever suspected there were forgeries scattered throughout the collection until the sixteenth century. It was thought to be the work of Isidore of Seville (d. 636) or of an Isidore the Merchant (Isidorus Mercator). It was most likely composed between 830 and 850 in northern France in the diocese of Reims. Some scholars have suggested Paschasius Radbertus, who was then a monk at Corbie (he would serve as abbot from 843–850), as the compiler. The work consists of three parts, with each part being organized chronologically. Part I includes sixty forged papal decretals from Anacletus (d. 88) to Miltiades (d. 314). None of these popes left surviving authentic letters. “Isidore the Merchant” created these forgeries by piecing together authentic material from different sources to give each decretal a specific meaning. Part II consists of authentic conciliar canons from the First Council of Nicaea (325) to the Second Council of Seville (619). Part III consists of a mixture of papal decretals, which are both false and authentic, from Sylvester I (d. 335) to Gregory II (d. 731). It also contains the “Donation of Constantine” (Constitutum Constantini), a forged document in which the emperor Constantine transferred command over the Western Empire and the city of Rome to the bishop, Sylvester, and his successors.32

32 See “Preface to the Collection of ‘Isidore Mercator’ (ca. 850): Dedicatory Letter to the Reader,” in Prefaces to Canon Law Books in Latin Christianity, 2nd edn., trans. Somerville and Brasington, 70–77; and H. Fuhrmann, “The Pseudo-Isidorian Forgeries,” in Papal Letters in the Early Middle Ages, 135–195.

In sum, the texts, supposedly from the “golden age” of the early church, supported the contention that the hierarchical structure of the Church went back to its very foundations. The collection demonstrates that the bishops of Rome had dominated Christian life from the earliest times and that papal approval was essential for the validity of conciliar and synodal canons. Such exaltations of papal prerogatives would come to bear in the eleventh century when the “Pseudo-Isidorian forgeries” and, in particular the Pseudo-Isidorian Decretals, had a significant influence on canonical collections. It furnished those compilers with ammunition that they used effectively in their campaigns to centralize the church’s administrative authority at Rome. The Pseudo-Isidorian Decretals also invented new procedural forms and evidential requirements that considerably complicated litigation, thus bolstering the authority of bishops by making it difficult to press charges against them and by forbidding their prosecution and dismissal by laymen. It also diminished the power of the archbishop over suffragan bishops as the bishop of Rome could intervene in church matters. Yet the autonomous authority of bishops suffered from the expansion of papal authority as the ability to call a council rested in the hands of the bishop of Rome.

As the political climate changed, compilers of canonical collections kept them, the users of such collections, and the church as an institution at the forefront of those changes by attempting to safeguard some sense of social stability. Two collections of particular importance were the episcopal handbooks of Abbot Regino of Prüm (d. 915) and of Burchard of Worms (d. 1025). Handbooks were instrumental to how episcopal visitations of churches and monasteries in the diocese were to be conducted and they were used as teaching texts. They were systematically organized and provided guidance on proper procedures and rituals, when to assign penance or a sentence of excommunicate, when and for what reasons to hold local episcopal synods, for following the correct procedure for ordination, and for carrying out episcopal duties in general. Works intended to help archbishops, bishops, and cathedral clergy in carrying out their ministerial duties were not new. Episcopal statutes or capitula episcoporum had been composed by a number of early ninth-century Carolingian bishops for priests in their diocese and were designed to guide them in the various canonical, liturgical, and administrative matters: Theodulf of Orléans composed two, Gerbald of Liège composed three, and Waltcaud of Liège composed one. These capitula episcoporum dealt with clerical conduct, the performance of the liturgical offices, the administration of baptism, penance, and various rites for the sick and the dying.

The collections of both Regino and Burchard demonstrate the extent to which law, penance, and moral theology overlapped. Regino of Prüm’s Libri duo de synodalibus causis et disciplinis ecclesiasticis (“Two Books on Synodal Investigations and Ecclesiastical Instructions”) (ca. 906) provides a handbook on tradition, procedures for various rituals and practices, and the administering of penance. In his dedicatory letter to Archbishop Hatto of Mainz, Regino hoped that his work would serve as a guide when the archbishop did not have his abundance of books readily at hand.33 Book 1 addressed regulations and instructions for the clergy and reinforced church administration by setting forth areas of inquiry while conducting local visits and synods. Book 2 addressed the matters related to the laity and their offenses.34 Burchard of Worms’ Decretum (1008–1012) became one of the most influence collections of the Middle Ages.35 Organized into twenty books, Burchard navigated the gray area between canon law and the problems of moral theology. Books 1–3 addressed the different clerical offices; synods; church administration of buildings, tithes, oblations; and Scripture. Books 4 and 5 addressed the administration of the sacraments of baptism and the eucharist, respectively. Book 6 treated the consequences of various forms of homicide: murder, manslaughter, patricide, fratricide, and the like. Book 7 concerned consanguinity and incest. Book 8 dealt with the monastic life of both men and women. Book 9 treated the legal problems of single women, both unmarried and widowed. Book 10 had to do with magic and sorcery. Books 11 and 12 dealt respectively with excommunication and theft, and oaths and perjury. Books 13 and 14 focused on the law concerning fasts and feasts, as well as the moral shortcomings that resulted from overindulgence in food and drink. Book 15 treated civil rulers and the laity and their relationship to the church, while Book 16 dealt with procedures regarding accusations, witnesses, and judges in church courts. Book 17 dealt with fornication and other sexual offences. Book 18 concerned Christians who were ill or dying. Book 19 on penance, sometimes called the Corrector, became a particularly popular reference work for confessors and for that reason was often copied separately from the rest of his Decretum. Scribes sometimes copied Book 20, a treatise on speculative theology, separately as well, frequently under the title of the Speculator, since it dealt with topics such as providence, predestination, the coming of the Antichrist, the Last Judgment and the resurrection of the dead.36

33 “Preface to Two Books concerning Synodal Investigations and Ecclesiastical Instructions of Abbot Regino of Prüm (906): Dedicatory Letter to Archbishop Hatto of Mainz,” in Prefaces to Canon Law Books in Latin Christianity, 2nd edn., trans. Somerville and Brasington, 79–80, here 80.34 G. Austin, “Regino of Prüm,” in Great Christian Jurists and Legal Collections in the First Millennium, ed. Reynolds, 444–457. For a critical edition, see Hartmann, ed., Das Sendhandbuch des Regino von Priim.35 For influential studies on Burchard, see G. Austin, “Jurisprudence in the Service of Pastoral Care: The ‘Decretum’ of Burchard of Worms,” Speculum 79 (2004): 929–959; G. Austin, Shaping Church Law Around the Year 1000: The Decretum of Burchard of Worms (Farnham, 2009); B. Kynast, Tradition und Innovation im kirchlichen Recht: Das Bußbuch im Dekret des Bischofs Burchard von Worms (Ostfildern, 2020).36 “Preface to the Decretum of Bishop Burchard of Worms (Early Eleventh Century): Dedicatory Letter to Provost Brunicho of Worms,” in Prefaces to Canon Law Books in Latin Christianity, 2nd edn., trans. Somerville and Brasington, 84–89, here 86–88.

The episcopal handbooks of Regino and Burchard were central to pastoral care, a task which required a working understanding of prevailing legal norms and penitential practice. Their texts had to address the needs of their perspective readers; however, they also had to be understandable and usable. Regino envisioned his handbook to be used by bishops and senior clergy. Attributing texts to church councils, even though they may have originated with episcopal acts, he ensured that his texts possessed sufficient authority. Furthermore, minus the list of questions asked by the priest found in Book 1, he let contractions stand; the same offense could be addressed in a swath of canons, each with a different penance prescribed. Regino left the ambiguities to remain so as to provide the user with as much information as possible to determine the appropriate penance warranted. Burchard sought to compile a manual that could be used by anyone tasked with pastoral care. He relied heavily on Scripture. He also edited his texts to eliminate inconsistences and conflicts. He sought to eliminate the confused, varied, and disordered impression that the canons and judgments for those doing penance could leave by creating a work with coherence.37 Penance played an important role in both works. Regino’s Libri duo regulated and explained how and when priests should hear confession and how penance should be performed. For example, Regino identified Ash Wednesday as the date for confession as well as describing the process of public penance. It may be that confession on Ash Wednesday was an initial stage and that those deemed to have committed serious or public sins were required to do public penance. It has also been suggested recently that Burchard’s Decretum served a public, synodal, purpose, rather than simply a work used in administering private penance.38

37 “Preface to the Decretum of Bishop Burchard of Worms (Early Eleventh Century): Dedicatory Letter to Provost Brunicho of Worms,” in Prefaces to Canon Law Books in Latin Christianity, 2nd edn., trans. Somerville and Brasington, 85.38 J. Burden, “Reading Burchard’s Corrector: Canon Law and Penance in the High Middle Ages,” JMH 46 (2020): 77–97.

The ecclesiastical legal tradition of the early Middle Ages was not driven by the dictates of the papacy, to be passed down and implemented by bishops and parish clergy. Rather the sources of law were varied, overlapping, and sometimes, but not always, in dialogue with each other. Authentic papal decretals were influential, as were the sources for Roman law discussed in Chapter 1. Compilations of secular legal codes had also drawn on Roman law. Church councils, royal capitularies, and forged papal decretals all possessed legal authority. In different ways and for different purposes, the multitude of chronological and systematic canonical collections incorporated these sources—along with Scripture and the writings of the Church Fathers also discussed in Chapter 1—to render the legal tradition, with its host of authorities, usable. The early Middle Ages also saw the secular and the sacred becoming more intertwined as Frankish kings sought to harness the political advantages ecclesiastical institutions could offer. As the Carolingian empire declined, however, the perception of political disarray increased, canonical collections and episcopal handbooks blurred the lines between law and penance to offer some mechanism for safeguarding, at least in theory, societal norms.

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