One of the prime objectives of the HERA project is to show that in the tenth century, the past and its uses gained importance in the absence of clear administrative or legal structures, as action in the present often drew authority and legitimacy from claims about the past. The ways that contemporaries chose to use or not to use the past can thus be highly instructive to historians working on this period. This also holds true for law, as law is often conceived as old and being in accordance with custom and tradition. This becomes even more relevant when there is no dominant legal system anymore, as can be observed for tenth-century law in comparison to the law of the Carolingian period with its characteristic mixture of leges, synodal acts and capitularies. This becomes most visible in the early tenth-century period of transition, when the Eastern branch of the Carolingian dynasty had just died out. As a consequence, a great deal of negotiation took place between various important political players and the newly elected king who was eagerly struggling to find support. In this situation, we can not only observe the forging of new political alliances, but also important legal change, meaning that what had up to then been regarded as customary law and legal practice now became adjusted in response to new personal constellations and power structures. This could also entail a deliberate renouncement of the legal past, as will be shown in the following case study.
In 912, Conrad I, the first East Frankish king who was not a Carolingian, issued a diploma for bishop Theodulf of Chur (Bündner Urkundenbuch I, no. 91; also MGH D K I., no. 11). Raetia Curiensis, the region centered around the city of Chur in what is today Switzerland, is well known for its remarkable impact or continuity of Roman culture well into the Carolingian period and after. In Roman times, Chur had been the capital of the province Raetia prima, and continued to be an important place in the early medieval period, as we find the governor of this region still often called a praeses. It continued to be a Latin-spoken region, and the predominant legal text to be applied within this region appears to be the Lex Romana Curiensis, most likely an eighth-century compilation of Roman law based on the Breviary of Alaric. To be sure, there were also Alamans, Bavarians and Lombards living in this region, but Raetia is one of the few regions of the Frankish kingdom – and certainly the only one in the East Frankish kingdom – where Roman law continued to be regarded as the dominant legal order, though with certain adjustments. In fact several rulers, including Charlemagne as early as 772, had guaranteed that the local “law and custom” (lex et consuetudo) should be observed in Raetia. Another important legal text from this period is the Capitula Remedii which originated in Raetia and show a remarkable blending of Frankish capitulary law with local law of Raetia. Moreover, the private charters extant from Raetia, including the famous Folcwin dossier from the early ninth century, display a striking awareness of Roman legal clauses and figures, and also point to a legal culture in which trained lay advocates or notaries continued to play a significant role. Even more, the famous “Churrätische Reichsurbar” illustrates the importance of fiscal structures and local administration, which to a considerable extent appear to have followed Roman models. And still in a placitum of 920, documenting a legal dispute between the bishop of Chur and the abbot of the neighboring Alaman abbey of St Gall, we find an order of the Alaman Duke Burchard that the Alamans and Romans should settle the dispute “according to Roman law”. So there appears to be plenty of evidence that Roman law continued to be the prevalent legal system in tenth-century Raetia.
It is against this general background that we should take a closer look at the charter that Conrad granted in 912 when he visited the royal palace at Bodman on the northern shore of Lake of Constance. The charter’s narrative part begins by relating that Bishop Theodulf of Chur had approached the king saying that many acts of negligence and violence were being committed within his episcopacy which he felt unable to correct without royal help. The king thus had this matter discussed, as we learn, with his fideles; that is Bishop Salomon of Constance, the Count of the Palace Erchangar, and with Bertold, Conrad, Henry and the remaining noblemen, and also some magnates from Chur, who were referred to as primores in this context. With the help of these primores’ advice and veracious testimony, they decided that there were some dubious matters that should be henceforth investigated under oath. To make this possible, King Conrad granted to the bishop of Chur the right to conduct inquisition procedure – that is, deciding a case by compulsorily requiring a sworn testimony from the local population – whenever somebody acted violently against the lands and dependents of the villages belonging to the episcopal church of Chur. Moreover, Conrad also prescribed that no male or female slave of the episcopal church of Chur could henceforth obtain freedom through the time-span of thirty years, as the king had heard that some people had done so following “a custom which is bad and different from those of other churches”. If henceforth such slaves would be found, they should be compelled to perform their servile service by royal authority.
The inquisition procedure granted here as a procedural right to the bishop of Chur is a legal device that Frankish kings had begun to concede to episcopal churches and monasteries since Louis the Pious. It is based on the idea that compulsory testimony may be obtained through an oath that can be required from the local population so that they either had to denounce certain misdeeds or that they had to provide testimony on some matters on which the person entitled to carry out the inquisition procedure would ask them. The whole procedure puts the plaintiff of a case into a strong position, as it is basically in cases of public interest that inquisition procedure was carried out, not in what we call “private law”. It stems from Roman procedure in fiscal law and can be traced back even into the late Roman republic. It was adapted by the Frankish kings already in the Merovingian period, and the Carolingian innovation was indeed that this right to conduct inquisition procedure, usually reserved for the king and his missi to protect fiscal property, now became delegated individually to selected ecclesiastical institutions to apply it to church property which was regarded as “public”. So what the bishop of Chur obtained here through Conrad’s privilege was basically what several other bishops and abbots had obtained before – such as the abbot of the neighboring monastery of St Gall that was granted immunity earlier.
Also the period of thirty years that could allow a slave to obtain freedom was a legal institute of Roman law, which can be traced back into the early fifth century AD. In a lengthy novel of 449 the Western emperor Valentinian III sought to establish the term of thirty years as a general rule for the settlement of all kinds of disputes in order to provide “profound peace for the human race,” since no one can “endure that suits shall be instituted which grandfathers and great-grand-fathers did not know about” (Nov Val. 27, transl. C. Pharr). As a consequence, it was stated that “no action shall hereafter be brought after a period of thirty years in regard to persons of an ignoble birth status, whether coloni, inquilini, or slaves of either sex, and in regard to peculia and the offspring of the above designated, ownership, that is, a perpetual, patrimonial, emphyteutic, or municipal ownership.” This type of rule eased the process for coloni and slaves to get rid of their master or possessor and obtain freedom for themselves and their offspring or to look for a new master. It is noteworthy, however, that in Valentinian’s law the church is not yet mentioned.
These regulations on coloni, including coloni on fiscal property, and servi were maintained in Raetia (Lex Romana Curiensis XVIII, 11). If such coloni or slaves took refuge to churches, they could not be reclaimed by their master after the time span of thirty years have elapsed. So, by now, it was the ecclesiastical institutions that took profit from adapting this ruling from late Roman law.
Now, it is interesting to see that this issue became handled differently already in the Carolingian period, which can be illustrated from a capitulary most likely issued by Charlemagne for Italy: “Wherever in Italy a fugitive slave of the king, the church or another man is detected, he can be reclaimed by his master without any prescription of years, provided that the master is a Frank, an Aleman or of any another nation. If, however, the master is a Lombard or a Roman, he shall either acquire or lose his slaves according to their law, as has been fixed among them in ancient times.” (MGH Capit. 1, no. 98, c. 8, p. 206). From this passage it becomes clear that in Italy only Roman and Lombard law continued to follow the Roman thirty years prescription rule, while according to Frankish, Aleman or Bavarian law this principle was not accepted at all.
What we can indeed observe here is some sort of legal pluralism, which could exercise a profound impact on the status of a slave. However, in his charter of 912, Conrad I followed the interest of the episcopal church of Chur by introducing a departure from Roman legal tradition. This becomes clear as the thirty years rule as applied in favour of slaves is branded as “a custom which is bad and different from those of other churches” (mala consuetudine et dissimili aliarum aecclesiarum).
It seems likely that the precedent to which the charter refers was introduced by Salomon, bishop of Constance and abbot of St Gall. Salomon plays a prominent role in the charter as royal adviser and as chancellor, and he had a broad legal expertise, as becomes evident from a collection of formulae from St Gall attributed to him. St Gall, by contrast, has a long series of royal privileges dating back to the later ninth century, immunity grants, the right to carry out inquisition procedure etc. that allowed St. Gall to have special legal regulations to keep its ecclesiastical familia together. Salomon of St Gall and Constance played an important part in the entourage of Conrad I. He had been chancellor since 909 under Louis the Child, the last East Frankish king from Carolingian stock. The charter was issued in September 912, shortly after Raetia had become part of the duchy of Swabia, and this is visible in several details. Interestingly the charter names, among others, two Swabian nobles called Erchangar and Berthold, who were brothers and with whom Salomon would enter into a feud shortly later. So we also get a glimpse into some Swabian aristocratic networks in a period of transition.
It is noteworthy that nothing in Conrad’s charter of 912 suggests that we are dealing here with Roman law. On the other hand, from the Lex Romana Curiensis it becomes clear that the lex tricennalis was well known as was the fact that it derived from Roman law. Moreover, we even have several bits from Carolingian capitularies that refer to the lex tricennalis, but these mostly deal with the possibility that the church might acquire property and serfs through prescription. So the intention of the clause in the charter cannot have been to brand Roman law in any general way as bad or old fashioned. Only a certain aspect of Roman law should be branded as bad, in as much it contradicted the interest of the episcopal church. Now, the Frankish church of course regarded itself as an institution that lived according to Roman law, as we find it already expressed in the seventh-century Ribuarian law code: Ecclesia vivit lege Romana. But this was not what was at stake here. The predominance of Roman law in Raetia apparently made it possible that slaves who had not been required for service by their lord for 30 years could go to a public court and claim freedom for themselves or protection by a new master. Apparently, the bishop of Chur wanted to have this legal loophole closed and adapt for his church a legal regulation which was already followed by several other churches and monasteries.
But it tells us even more as is not only brands this practice as a bad custom, but as one that differs from the custom enjoyed by other churches. In case of St Gall this had to do with the fact that St Gall, though located only 50 miles north of Chur, was situated in a region subject to Alaman law, where jurisdiction was held by the Alaman duke. Moreover, St Gall had acquired its right to conduct inquisition procedure by a royal privilege. And this apparently served as the model for the bishop of Chur. Another aspect which seems relevant here for departing from Roman tradition is that since the late fifth century, church property came to be regarded as inalienable in legal terms. For this reason, a slave who obtained freedom for himself, caused a diminution of church property. Therefore the bishop of Chur could approach the king and ask him to decide, as there was a conflict of contradictory laws and regulations – in fact of conflicting Roman laws (that is the Theodosian code vs. Justinian’s novels on church property) and Alemannic law. King Conrad followed his suggestion and issued this charter which in fact assimilated the status of the episcopal church of Chur to that of the neighboring monastery of St. Gall. Thus, by royal privilege, the differences between various leges barbarorum and Roman law were pushed aside, while the grant of procedural rights typical for fiscal property and the idea that the inalienability of church property constituted an overriding principle, was at the heart of a process which transformed the episcopal church of Chur into an ecclesiastical principality. This all happened in a period of transition and rapid change, which appears to be shaky and perilous also in the sense that it could easily introduce legal change according to the interests of powerful magnates. For this reason, the tenth century also appears as a fight over the notion and validity of custom. Malae consuetudines is among the most prominent catchwords associated with what some researchers call “the feudal revolution”. However, the question which custom was actually “bad”, depended on the viewpoint, of course. But the very rhetoric suggests that many of the developments we can observe already in the early tenth century were in fact hardly peaceful and harmonious.