For anyone dealing with medieval royal diplomatics, confirmation charters are a very common thing. Whenever a new ruler was appointed, one of his first acts was to renew charters that had once been given by his predecessors and which were now presented to him for confirmation. While through its renewal a document achieved new legal validity for the present and the future, thereby occasionally extending it legal scope, the legal past evoked in these charters depended largely on the preceding document. For this reason, and despite the fact that a charter’s arenga often contains some more general religious and even legal reasoning, most confirmation charters are usually not very explicit on the legal past. A rare exception to this rule is provided through a charter issued by the first king of the Salian dynasty, Conrad II (1024‒1039), for the bishop Walter of Speyer. On the 14th of July 1025, Conrad II’s circuit, which had started following his election the preceding year, arrived at the episcopal city of Speyer. The remarkable and unique document issued by him on this occasion gives us some insight into the legal fabric of the early eleventh century and to its indebtedness to the Carolingian past:
In the name of the holy and indivisible trinity. Conrad, king by the favor of divine clemency. The entirety of all fideles, both of Christ and ours, shall know that Bishop Walter of the venerable church of Speyer, by the intervention of our most beloved wife Queen Gisela, approached our highness in humility begging that we should confirm and corroborate by our royal precept (nostro regali precepto) those deeds, which he achieved on the advice of his fideles by his written documents, in which it was contained that he himself had two brothers named Diederic and Ebernand and their sisters Ruozela, Imma and Diezela along with their sons and daughters, whose names are Durinc, Bezecha, Dieszuuib, Diemo, Mazela and Liutfrid, born from a father of servile status and from a mother of freeborn status (ex servili patre et matre ingenua progenitos), responding to a petition made by several faithful counsellors and due to their, that is their father’s and mother’s, voluntary and diligent servitude exhibited towards him [= Walter of Speyer] and his predecessors, transformed from the status of servile persons into that of “tribute-payers” (censuales) by way of an exchange for the same number unfree persons (per commutationem totidem mancipiorum), whose names are Huozo, Burga, Gisela, Uocca, Heliza, Engizo, Druda, Nanno, Saleman, Uuibelin and Libez; while this had been conducted with the consensus of the clergy and the people (consentiente clero et populo), he [= Walter of Speyer] did not act arrogantly in any impertinent boldness of his office (non aliqua sui honoris presumtione elatus), but on the contrary based on the authority both of canon law and the capitulary law of our predecessors Charles, Louis and Lothar (canonica capitularisque antecessorum nostrorum Karoli, Luduuici, Lotharii auctoritate) in such a way that the aforementioned unfree persons who were given vice versa in exchange should do service at the place of their lords, while the lords themselves and their wives along with all their offspring shall be assured for all time under the law of the “tribute-payers”(infra legem censualem). And this is confirmed by a canonical quotation (canonica lectione affirmante), which is contained in the 65th chapter of the fifth council of Toledo as follows: ‘a bishop is allowed to set ecclesiastical dependents free by an exchange of unfree people’ (episcopo licere per commutationem mancipiorum aecclesiasticos liberos facere). It is also written in a capitulary of the above-mentioned kings: ‘a bishop is not allowed to bestow freedom without [giving] unfree persons in exchange (episcopo libertatem sine commutatione mancipiorum non licere donare)’. Corroborated by this law, both canon and capitulary (hac ergo lege, id est canonica et capitulari), he fixed the aforementioned men and women as ‘tribute-payers’ (censuales) by the regulation that they shall pay in every year on the feast of Saint Mary’s nativity two denarii or the same value in wax and by doing so stay freeborn as the remainder ‘tribute-payers’ (ingenui sicut cęteri censuales persistant). We, however, gave our assent to his reasonable petition and firmly order by this our royal precept that the aforementioned unfree persons henceforth shall be subject to the very law according to which the remainder ‘tribute-payers’ belonging to the altar of St Mary have been living until now (ut prefata mancipia tali deinceps lege utantur, quali cęteri censuales ad altare sanctae Marię pertinentes huc usque sunt usi). If however anyone should dare to infringe upon this royal precept, he should know that he will have to pay 10 pounds of pure gold, one half to our chamber, and the other half to the aforementioned ‘tribute-payers’ (medietatem camerę nostrę medietatemque predictis censualibus). And in order that the authority of our confirmation (charter) remains stable and unchanged for all eternity, we confirmed the present page documenting this and gave order that it be signed by the imprint of our seal. The mark of Lord Conrad, the invincible king. I, Odalric, chancellor have attested in place of Aribo, the arch-chaplain. Given on the 19th Kalends of August [= 24 July], in the 8th indiction, in the year 1025 of the incarnation of the Lord, in the second year of Lord Conrad reigning as king, done at Speyer.”
(Die Urkunden Konrads II., ed. Harry Bresslau, MGH DD regum et imperatorum Germaniae IV, Berlin 1909, no. 41, pp. 46-7).
By his royal diploma, Conrad II confirmed an exchange of church dependents – that is ecclesiastical property, so to speak – which had been carried out by Bishop Walter of Speyer who had presented his private charters to the king. Walter had, as we learn, manumitted eleven servile church dependents into the higher status of censuales, a group designation which comprised ecclesiastical dependents who enjoyed freedom from slavery and from corvées, but were still placed under patronage of the church whose serfs they had formerly been. Walter had manumitted two brothers along with their three sisters and six children, who descended from an unfree father and a freeborn mother, into the rank of censuales. To compensate for the loss of church property caused by his manumission, he donated eleven unfree persons (mancipia) to the church. This double legal act – manumission of ecclesiastical slaves and donation of slaves as a compensation – had been performed with the consent of the clergy and the people of his see, probably the members of the cathedral chapter and lay fideles, and it is emphasised that the bishop had not done so out of arrogance, but in accordance with both canon law and the authority of his predecessors’ capitularies, namely laws given by Charles, Louis and Lothar. The charter goes on to say that the unfree persons given to the church should serve at the same place, now replacing their masters (in vice et in loco dominorum suorum serviant), whereas these male and female masters (domini ac dominae, which referred to the just manumitted censuales) along with their offspring should spend their lives henceforth safely forever “according to the law of censuality” (infra legem censualem). To affirm the legality of this procedure, the charter’s narrative refers to a reading of canon law, a canonica lectio, as it was written in the 65th chapter of the Fifth Council of Toledo that a bishop was allowed to manumit ecclesiastical slaves and confer freedom upon them provided he gives unfree serfs in exchange. In addition, the charter states, also “in the capitulary” of the above-mentioned kings it was said that without giving unfree people in exchange no bishop was allowed to confer liberty upon anyone. According to this double legal principle, so the narrative part ends, that is canon and capitulary law (hac ergo lege, id est canonica et capitulari), the bishop had the legal status of the manumitted men and women fixed, stating that according to this law (ea lege) they should pay an annual tributum of two denarii on the feast of the birth of St Mary (8th of September) or an equivalent amount in wax, while they should henceforth be regarded as free-born as other censuales. In the dispositive part of the charter, which follows straight afterwards, Conrad gave his assent to the bishop’s petition and ordered the eleven freedmen to have the same legal status as the remaining censuales belonging to the altar of St Mary. A huge fine was fixed for anyone acting contrary to his charter, that is 10 pounds of best gold, which for one half should be paid to the royal chamber, while the other half, interestingly, should go to the censuales, which underlines the importance of this new social group within the community of the people of Speyer.
What is striking here is the double legal justification, for the charter, quite unusually, explicitly refers to chapter 65 of the Fifth Council of Toledo, held in Visigothic Spain in the seventh century, and also to a Carolingian capitulary provision which is less easy to identify. Both quotes make the point that a bishop was entitled to manumit ecclesiastical slaves if he provided compensation by exchange of other slaves or serfs. The editor of the charter, Harry Bresslau, has already observed that the quote was not quite correct, as the provision did not derive from the Fifth, but can actually be found in the acts of the Fourth Council of Toledo held in 633. This mistake is crucial and indeed very telling, as it leads us straight to the sources used by the person who drafted this charter, most likely Bishop Walter himself. For in the famous canon law collection compiled by Bishop Burchard of Worms at exactly this time, the passage is authorized wrongly as taken from the acts of the Fifth Council of Toledo. The charter thus borrowed directly from Burchard’s Decretum (Concilios visigóticos e hispano-romanos, ed. José Vives, 1963, pp. 214-5 = Burchard of Worms, Decretum III, 176: De episcopo qui mancipium ecclesiae manumitti desiderat: Ex concil. Toletan. 5, c. 68 (D. Burchardi Wormaciensis ecclesiae episcopi, Decretorum libri XX, ed. Barthold Questenburgh, Cologne 1564, p. 73).
It is less clear what capitulary provision the charter was referring to. Bresslau suspected the capitulary collection of Ansegis was a source, as we find the somewhat undetermined series of Charles, Louis and Lothar already in the preface of this collection, while the clause on manumitting ecclesiastical slaves may actually go back to the Ripuarian law code. But it is not clear. Another possible candidate could be a capitulary of 853 (Capitulare missorum Suessionese a. 853 c. 12: Capitularia regum Francorum 2, edd. Alfred Boretius / Victor Krause, MGH LL II, 1, Hanover 1888, no. 259, p. 270).
The charter’s main point of argument was that Bishop Walter had acted in accordance with law by providing compensation, and also by obtaining the king’s consensus, which according to several capitularies was indispensable. But what does this tell us about the uses of the past? As it seems, the legal background to this charter, or, more likely, to the bishop’s charters which Conrad confirmed, was taken from two major law collections, namely the capitulary collection of Ansegis, which came to be regarded as some sort of official law-book soon after its composition in the later 820s, and the Decretum, which Bishop Burchard of Worms compiled somewhere in a monastery close to Worms. From Burchard’s Vita we have the interesting detail, that he compiled his Decretum with the help of his fellow-bishop Walter of Speyer, who was a close friend of his.
The charter thus has to be understood as reflecting a personal network of two episcopal legal experts. But it is precisely these individual circumstances that allow us to take a closer look at law in the making or indeed, at the transformation of law. It seems clear that Burchard’s Decretum made large parts of early medieval canon law accessible in a systematic fashion, so that it could make sense in early eleventh-century Speyer to quote the canon of a Visigothic council. Was this shrewd antiquarianism or did it seek to impress readers? Ansegis’ much earlier collection of a major part of the Carolingian capitularies mattered in a different way. Apparently, there was a certain awareness that the Ottonians had not issued any significant number of new capitularies. So the person who drafted the charter very probably made use of Ansegis’ capitulary collection, as the rulers Charles, Louis and Lothar are mentioned without any further qualification in the preface to Ansegis’ collection. It is important to note that reference is made to both ecclesiastical and royal law, to a double legal tradition that converged on certain matters, but was used to enhance the authority of the legal act.
But we also have to take into account that the initiative for the issuing of a royal diploma usually lay with the person who finally obtained it. Thus, in a way, Bishop Walter, who was a close fidelis of Conrad, did two things: firstly, he asked Conrad to confirm the charters he had issued as bishop. By giving his consensus to such an act, Conrad confirmed the principle of the inalienability of church property, as Otto I and Otto II had already done for the property exchange charters of Speyer before him. But, secondly, a profoundly new aspect was introduced as Walter actually sought to drag the ruler into his business of protecting the legal group of the censuales. The censuales came to play an important in the episcopal cities of the Rhine valley at exactly this time. An important point illustrating this is that several charters of this time, mostly from the middle Rhine valley, repeatedly refer to a lex censualis that is a special set of laws exclusively referring to this group’s status. And even in the penal clause half part of the fine paid in gold should go to the censuales which underlined their status as freedmen. That is was the king who would ultimately have to warrant their newly gained freedom, is a point that in my view is most relevant as it connects the legal claims about the past with those for the future. It points to the shaping of the first Salian ruler’s style and task of kingship by using Carolingian precedent, which resulted in something altogether different, as it imposed on the king the role of warranting the liberty of a new social group which would soon come to play an important part in the episcopal cities of the Middle Rhine Valley such as Speyer, Worms and Mainz. It is exactly at this time, shortly after the year 1000, that we see the first attestations of the lex censualis. Around this time we also have evidence that rulers such as Henry II and Conrad II directly intervened in the legal life of several ecclesiastical seigneuries. The explicit reference to written law in the charter thus seems to indicate that the bishop was fully aware that he was breaking new ground here.