Leges Nationum and Ethnic Personality of Law in ’s Empire

Peter Hoppenbrouwers

It would be an exaggeration to say that Charlemagne’s Empire was gov- erned by the rule of law, but laws and law-giving certainly did constitute an important aspect of both royal representation and performance, as well as of legal practice. In this essay I intend to concentrate on one aspect of this well-explored field of study, the constitution of so-called ‘national law codes’ and the deployment of the legal principle of ethnic ‘personal- ity of law’ as important instruments of Carolingian government control. Because undoubtedly there was a strong ideological motive behind the princely duty to legislate, I shall also discuss the difference between legis- lative ideal and legal practice.

Carolingian Ideals of Government and Legislation

Charlemagne and his successors liked to present themselves as rulers over many peoples.1 Their empire was a multigentile as well as—in certain respects—confederative state, a union of many ‘kingdoms’ and peoples (regna et gentes). How many exactly would always remain unclear. In Carolingian documents (esp. annals, capitularies) regnum has various meanings that were easily contaminated, while its connection to gens (people) was rather vague. Regnum could refer to a former kingdom that had been incorporated into the Frankish empire: for example, Frisia, Thuringia, Italy and (the former kingdom of the in ). It could also refer to a territory that had never been ruled by a king, but still was supposed to be inhabited by one identifiable people. The best example is Saxony. In Carolingian political practice territories designated as regna (in both meanings) were drawn on to provide sons of a ruler with their own kingdoms, which remained, however, subordinated

1 E.g. Rosamond McKitterick, ‘Political ideology in Carolingian historiography’, in Y. Hen, M. Innes, eds., The uses of the past in the early (Cambridge, 2000), 162–174; Janet L. Nelson, ‘Kingship and royal government’, in Rosamond McKitterick, ed., The new Cambridge Medieval History Vol. 2 (Cambridge etc., 1995), 383–430. 252 peter hoppenbrouwers to their father’s superior power. There was a clear preference to use cer- tain regna rather than others for this purpose. Aquitaine, Italy, but also Burgundy and Alemania, frequently had the status of sub-kingdom. Other regna, such as Frisia, Saxony, Thuringia, and Bavaria, never had such sta- tus, probably for political reasons—these were areas with restive native aristocracies vulnerable to the risk of separatism. Regna that were not ‘in use’ as kingdoms, were as a rule called ducatus (duchy) and put under the authority of a duke.2 Expressing the ideal of multi-ethnicity was not the same as declaring that all ‘peoples’ in the empire were considered to be equal. In a reveal- ing passage of Ermold the Black’s panegyric on Charlemagne’s son, , the author states that all those different peoples that had been subjected to the Frankish king should ‘rejoice at being so favoured that they deserved to be called by the name “servants of the ”.’3 This strongly suggests that the ideal of multi-ethnicity was subordinate to two other, and even more important, ideological concerns of Carolingian imperial rule, both of which stressed Frankish superiority. One was the ideal of assimilation. No matter how many peoples made up the Carolin- gian empire, in the end they all should become one, that is to say, inte- grated into the Christian Frankish people.4 Ironically, this invitation to become Frankish was expressed most urgently with respect to the Saxons, who had been bullied into submission with more violence than any other ‘people’ conquered by the Franks. After their subjection, so Charlemagne’s biographer, Einhard, tells us, the Saxons, just ‘had to abandon the cult of

2 Indicative for the confusion of what regna were, is the only serious attempt under- taken by the ageing Charlemagne to divide his empire by testament between his three legitimate sons then alive: Louis, Pippin, and Charles Jr. This document is known as the Divisio regnorum, but from the text it does not clearly appear which of the many ter- ritories mentioned were considered to be regna. Regna that we know from other sources are not called regna in this document; moreover they are mixed up with other types of administrative districts such as marcae (marcher counties/duchies, e.g. Wasconia, His- pania [the marcher counties straddling the western and eastern , respectively] and the Bavarian Nortgau), ducatus (e.g. the ducatus Curiensis), pagi and civitates. In one passage both the whole () and its constitutive parts (Austr[as]ia and ) are mentioned separately. And from other territories the status remains unclear, such as (Provincia) and ‘Septimania vel Gothia’ (present-day ). Capitularia Regum Francorum. T. 1, A. Boretius, ed. (Hannover, 1883)(Monumenta Germaniae Histor- ica, Leges) (further: CRF1), nr 45, 126- 130; for a recent summary: Rosamond McKitterick, Charlemagne: the formation of a European identity (Cambridge etc., 2008), 96–9. 3 Charlemagne and Louis the Pious. The Lives by Einhard, Notker, Ermoldus, Thegan, and the Astronomer, Thomas F.X. Noble (Eng. trl.) (State College PA, 2009), 67. 4 E.g. McKitterick, Charlemagne, 271.