and there the political consequences of it were likewise earlier.
Unfortunately very few details are known concerning these events. It is
certain that the troubles to which the Church was then prey could hardly
have delayed their precipitation. The inhabitants of the towns sided
passionately with the monks and the priests who were waging a campaign
against the evil customs of the clergy, attacking simony and the
marriage of priests, and condemning the intervention of lay authority in
the administration of the Church, to the profit of the Papacy. The
bishops, named by the Emperor and compromised by that fact in itself,
thus found themselves face to face with an opposition in which
mysticism, the claims of the merchants and the discontent caused by the
misery of the industrial workers were allied and mutually strengthened.
It is certain that the nobles took part in the agitation, for it gave
them the opportunity to shake off episcopal suzerainty, and made common
cause with the burghers and the Patarenes--the name by which the
conservatives contemptuously designated their adversaries.
In 1057 Milan, even then the queen of the cities of Lombardy, was in
open revolt against the archbishop.[133] The vicissitudes of the
investiture struggle naturally spread the disturbances and gave them a
turning more and more favorable to the insurgents, proportionately as
the cause of the Pope got the better of that of the Emperor. There were
instituted, either by the consent of the bishops or by violence,
magistrates with the title of “consuls” and charged with the
administration of the towns.[134] The first of these consuls to be
mentioned, but probably not the first to exist, appear at Lucca in
1080. There is a record as early as 1068 of a “communal court” in that
city, a characteristic feature of city autonomy which surely must have
existed at the same date in plenty of other places.[135] The Consuls of
Milan are not cited before 1107, but they were surely much earlier in
origin than that. From the time they are first mentioned, they show the
distinctive physiognomy of communal magistrates. They were recruited
among divers social classes,--among the _capitanei_, the _valvassores_,
and the _cives_--and represented the _communio civitatis_.
The most typical feature of this magistracy was its yearly character,
wherein it was in distinct contrast to the offices for life which alone
the feudal régime knew. This yearly feature of the offices was the
consequence of their elective nature. In laying hold of power, the city
population entrusted it to delegates named by itself. Thus was affirmed
the principle of control at the same time as that of election. Municipal
democracy, from its first attempts at organization, created the
instruments necessary to its proper functioning and unhesitatingly set
foot on the path which has been followed ever since.
From Italy, the “consulate” soon spread to the cities of Provence,
evident proof of its perfect adaptation to the needs which were felt by
the middle class. Marseilles had consuls at the start of the twelfth
century, or at the latest by 1128;[136] we find them next at Arles and
at Nimes, until little by little they spread in the South of France as
commerce made headway from place to place, and with it, the political
transformation which it brought in tow.
Nearly at the same time as in Italy, municipal institutions arose in the
region of Flanders and the North of France. There is nothing surprising
in this, since that country, like Lombardy, had been the scene of
vigorous commercial activity. Fortunately the sources of information
here are more abundant and more precise. They make it possible to follow
fairly accurately the march of events.
It is not the episcopal cities alone which here hold the stage. Side by
side with them are to be observed other centers of activity, though it
is within their walls that were formed those communes whose nature it is
most important to consider. The oldest, and fortunately also the best
known, is that of Cambrai.
During the eleventh century the prosperity of this city was well
advanced. At the foot of the original town clustered a commercial
suburb, which had been surrounded in 1070 by a wall. The population of
this suburb endured with scant patience the authority of the bishop and
his castellan. It prepared in secret for revolt when, in 1077, Bishop
Gerard II had to absent himself to go receive in Germany the investiture
at the hands of the Emperor. He was hardly en route before, under the
direction of the richest merchants of the town, the people arose, took
possession of the gates and proclaimed a commune. The poor, the
artisans, and the weavers, in particular, launched themselves still more
passionately into the fray when a reformer-priest called Ramihrdus
denounced to them the bishop as a simoniac and inspired in the depths of
their hearts the mysticism which, at that same era, was arousing the
Lombard Patarenes. As in Italy, religious fervor lent its strength to
the political demands and the commune was sworn in the midst of general
enthusiasm.[137]
This commune of Cambrai was the oldest of all that are known north of
the Alps. It seems to have been both a fighting organization and an
instrument of public safety. It was necessary, in fact, to await the
return of the bishop and to prepare to cope with him. The need of
unanimous action was imperative. An oath was exacted from all,
establishing among them the necessary solidarity, and it was this
association, sworn to by the burghers on the eve of battle, which was
the essential characteristic of that first commune.
Its success, however, was only ephemeral. The bishop, upon receiving the
news, hastened back and succeeded in restoring his authority for the
time being. But the experiment of the Cambresians was not long in being
imitated. The following years were marked by the establishment of
communes in the majority of the towns of Northern France; at St. Quentin
about 1080, at Beauvais about 1099, at Noyon in 1108-1109, at Laon in
1115. During the initial period the middle class and the bishops lived
in a state of permanent hostility and, as it were, on the point of open
war. Force alone was able to prevail between such adversaries, equally
convinced of their due rights. Ives of Chartres exhorted the bishops not
to give ground and to consider as void the promises which, under the
threat of violence, they had happened to make to the burghers.[138]
Guibert of Nogent, on his part, spoke with mingled contempt and fear of
those “pestilential communes” which the serfs had set up against their
lords, to escape authority and to do away with the most legitimate
rights.[139]
In spite of all, however, the communes prevailed. Not only did they have
the strength that numbers give, but the Monarchy which in France,
starting with the reign of Louis VI, was beginning to regain lost
ground, interested itself in their cause. Just as the popes, in their
conflict with the German emperors, had relied upon the Patarenes of
Lombardy, so the Capetian monarchs of the twelfth century favored the
efforts of the middle classes.
There can probably be no question of ascribing to them a political
principle. At first glance their conduct seems full of contradictions.
Yet it is none the less true that they evinced a general tendency to
take the part of the towns. The clear interest of the Monarchy was to
support the adversaries of high feudalism. Naturally, help was given
whenever it was possible to do so without becoming obligated to these
middle classes who in arising against their lords fought, to all intents
and purposes, in the interests of royal prerogatives. To accept the King
as arbitrator of their quarrel was, for the parties in conflict, to
recognize his sovereignty. The entry of the burghers upon the political
scene had as a consequence the weakening of the contractual principle of
the Feudal State to the advantage of the principle of the authority of
the Monarchial State. It was impossible that royalty should not take
count of this and seize every chance to show its good will to the
communes which, without intending to do so, labored so usefully for it.
In specially designating by the name of “communes” those episcopal
cities of the North of France where municipal institutions were the
result of insurrection, it is well to exaggerate neither their
importance nor their originality. There is no reason for claiming that
there was any essential difference between commune-cities and other
cities. They were distinguished from one another only by incidental
characteristics. At bottom their nature was the same, and in reality all
were equally communes. In all of them, in fact, the burghers formed a
corps, a _universitas_, a _communitas_, a _communio_, all the members of
which, conjointly answerable to one another, constituted the inseparable
parts. Whatever might be the origin of its enfranchisement, the city of
the Middle Ages did not consist in a simple collection of individuals;
it was itself an individual, but a collective individual, a legal
person. All that can be claimed in favor of the communes _stricto
sensu_ is a particular distinctiveness of institutions, a clearly
established separation of the rights of the bishop and those of the
burghers, and a manifest preoccupation to safeguard the rights of the
latter by a powerful corporate organization. But all of that derived
from the circumstances which presided over the birth of the communes.
Although they preserved the traces of their insurrectionary composition,
it does not necessarily follow that they should be assigned, for that
reason, a special place in the ensemble of cities. It can even be
observed that certain ones among them enjoyed prerogatives less
extensive, a jurisdiction and an autonomy less complete, than those of
localities in which the commune was only the mark of the advent of a
peaceful evolution. It is a manifest error to reserve for them, as is
sometimes, done, the name of “collective seigniories.” We shall see
later that all fully developed cities were such seigniories.
Violence, therefore, was far from being an essential factor in the
creation of municipal institutions. In the majority of towns subject to
the power of a lay prince, their growth was accomplished, in general,
without need of recourse to force. And it is not necessary to attribute
this situation to the particular good-will which the lay princes had
shown towards political liberty. On the other hand all the incentives
which inspired the bishop to oppose the burghers carried no weight with
the princes. They professed no hostility in regard to trade; on the
contrary, they were experiencing its good effects. It increased traffic
in their territories, and by that very fact augmented the revenues from
their tolls and the activity of their mints which were forced to meet an
increasing demand for currency. Having no spot as capital and
incessantly travelling about their demesnes, they lived in their towns
only at rare intervals and therefore had no reason for quarelling with
the burghers over the administration of them. It is quite characteristic
that Paris, the only city which before the end of the twelfth century
could be considered a real capital, did not succeed in obtaining an
autonomous municipal constitution. But the interest which impelled the
King of France to keep control of his customary residence was completely
lacking with the dukes and counts, as peripatetic as the King was
sedentary. Lastly, they did not view altogether with displeasure the act
of the burghers in seizing the power from the castellans who had become
an hereditary class and whose strength was a cause of uneasiness to
them. They had, in short, the same incentives as the King of France for
looking with favor upon these tendencies, since they weakened the
status of their vassals. It is not on record, however, that they
systematically lent them their aid. They confined themselves, in
general, to letting them alone and their attitude was almost always one
of benevolent neutrality.
No region offers a better chance for studying municipal origins in a
purely lay environment than does Flanders. In this great country, which
stretched from the shores of the North Sea and the Zealand Islands to
the frontiers of Normandy, the episcopal cities never rivalled in
importance and wealth the commercial and industrial cities. Térouanne,
the diocese of which comprised the watershed of the Yser, was and always
remained a half-rural hamlet. Arras and Tournai, which extended their
spiritual jurisdiction over the rest of the territory, developed to an
appreciable extent only in the course of the twelfth century. On the
contrary, Ghent, Bruges, Ypres, St. Omer, Lille and Douai, where were
gathered together in the course of the tenth century active merchant
colonies, give an unusually clear picture of the birth of municipal
institutions. They lend themselves to this so much the better in that,
all being organized in the same way and showing the same
characteristics, the information of which each gives us its share can
be safely combined into one general picture.[140]
All these cities show, first, the characteristic feature of having been
organized around a central burg which was, so to speak, their nucleus.
At the foot of this burg was grouped a _portus_, or “new burg,”
populated by merchants to whose numbers were soon added artisans, either
free or serf, and where, after the eleventh century, the textile
industry came to be concentrated. Over the burg as over the _portus_
extended the authority of the castellan. More or less important parcels
of land occupied by the immigrant population belonged to the abbeys,
others to the Count of Flanders. A tribunal of aldermen had its seat in
the burg under the presidency of the castellan. This tribunal had in
other respects no competency relative to the city. Its jurisdiction
extended over all the castellany of which the burg was the center, and
the members who composed it resided in that same castellany and came to
the burg only on the days of hearings. For ecclesiastical jurisdiction,
to which were amenable a number of matters, it was necessary to go to
the episcopal court of the diocese.
A variety of obligations weighed upon the land and the inhabitants,
whether of the burg or of the _portus_: ground rents, prestations in
money or in kind destined for the upkeep of the knights charged with the
defence of the burg, and tolls levied on all merchandise brought by land
or water.
All this was of long standing, created at the height of the demesnial
and feudal régime, and was in no way adapted to the new needs of the
merchant population. Not being made for it, the organization which had
its seat in the burg not only rendered no service but on the contrary
interfered with activities. The survivals of the past bore down with all
their weight upon the needs of the present. Obviously, for reasons which
have been given above and to which it is unnecessary to return, the
middle class felt far from content and exacted the reforms necessary to
their free expansion.
In these reforms it devolved upon them to take the initiative, for they
could not rely on either the castellans, the monasteries, or the barons
whose lands they occupied, to bring them about. But it was also
necessary, in the midst of a population so heterogeneous as that of the
_portus_, for a group of men to take control of the mass and to have
enough power and prestige to give it direction. The merchants, in the
first half of the eleventh century, resolutely assumed this rôle. Not
only did they constitute the wealthiest element in each town, the most
active and the most desirous of change, but they had in addition the
strength that union gives. The needs of commerce early impelled them, as
has been seen above, to organize in confraternities called gilds or
hanses--autonomous corporations independent of all authority and in
which their will alone made the law. Freely elected chiefs, “deans” or
“counts of the hanse” (_Dekanen_, _Hansgrafen_), supervised the
maintenance of a voluntarily accepted discipline. At regular intervals
the colleagues assembled to drink and deliberate over their interests; a
treasury, supported by their contributions, provided for the needs of
the society; a community house (_Gildhalle_) served as the place of
their meetings. Such was the Gild of St. Omer, about 1050, and it may be
assumed from this instance that very probably similar associations
existed at the same period in all the merchant colonies of
Flanders.[141]
The prosperity of trade was so intimately bound up with the organization
of the towns in which it had located that the members of the gild were
almost automatically charged with making provision for the needs that
were most pressing. The castellans had no reason to restrain them from
meeting, through their own resources, those emergencies that were
clearly apparent. They permitted them to “extemporize,” as it were, in
official communal administration. At St. Omer an arrangement made
between the gild and the castellan, Wulfric Rabel (1072-1083), permitted
the former to attend to the cases of the burghers. Thus, without having
any legal warrant therefor, the merchant association devoted itself of
its own accord to the organization and the management of the nascent
city. It made up for the impotence of public power. At St. Omer the gild
devoted a part of its revenues to the construction of defence works and
to the maintenance of the streets. There is no doubt but that other
Flemish towns, its neighbors, did the same. The name of “counts of the
Hanse” which the treasurers of the city of Lille kept all through the
Middle Ages is sufficient proof, in the absence of other records, that
there also the chiefs of the voluntary corporation of merchants drew
upon the treasury of the gild for the benefit of their fellow citizens.
At Audenarde the name of _Hansgraf_ was borne up to the fourteenth
century by a magistrate of the commune. At Tournai, as late as the
thirteenth century, city finances were placed under the control of the
_Charité St. Christophe_, that is to say of the merchant gild. At Bruges
the contributions of the “brothers of the hanse” supported the municipal
treasury up until its disappearance at the time of the democratic
revolution of the fourteenth century.
The result of all this, manifestly, was that the gilds were, in the
region of Flanders, the initiators of city autonomy. Of their own accord
they charged themselves with a task which no one else had been able to
carry out. Officially they had no right to act as they did; their
intervention is to be explained solely by the cohesion which existed
among their members, by the influence their group enjoyed, by the
resources they disbursed, and finally by the understanding they had of
the collective needs of the middle-class population. It can be stated,
without exaggerating, that in the course of the eleventh century the
chiefs of the gild performed, _de facto_, the functions of communal
magistrates in every town.
They were doubtless the ones, also, who led the Counts of Flanders to
take an interest in the development and the prosperity of the towns. In
1043 Baldwin IV obtained from the monks of St. Omer the concession on
the basis of which the burghers built their church. At the beginning of
the reign of Robert the Friesian (1071-1093), exemptions from tolls,
grants of land, privileges limiting the episcopal jurisdiction or the
requirements of military service were granted in considerable number to
the cities then in process of formation. Robert of Jerusalem favored the
city of Aire with “liberties” and exempted, in 1111, the burghers of
Ypres from the judiciary duel.
The result of all this was that little by little the middle class stood
out as a distinct and privileged group in the midst of the population of
the country. From a simple social group given over to the carrying on of
commerce and industry, it was transformed into a legal group, recognized
as such by the princely power. And out of that legal status itself was
to come, necessarily, the granting of an independent legal organization.
The new law needed as its organ a new tribunal. The old aldermanic
district courts, sitting in the burgs and administering justice in
accordance with a custom that had become archaic and incapable of
accommodating its rigid formalism to the needs of a community for which
it had not been created, had to give way to courts whose members,
recruited from among the burghers, were able to render them a justice
adequate to their desires and conforming to their aspirations--a
justice, in fine, which was _their_ justice. It is impossible to say
exactly when this important development took place. The oldest reference
in Flanders to an aldermanic court,--that is to say of such a court
peculiar to one city,--dates back to the year 1111 and has to do with
Arras. But there is nothing to prevent the assumption that aldermanic
courts of this kind must have already existed at the same period in the
more important localities such as Ghent, Bruges or Ypres. Whatever may
have been the case elsewhere, the beginning of the twelfth century saw
this decided innovation come to pass in all the cities of Flanders. The
disturbances which followed the assassination of Count Charles the Good,
in 1127, permitted the burghers to realize in full their political
programme. The pretenders to the county, William of Normandy, and later
Thierry of Alsace, in order to rally them to their cause conceded to
them the demands they addressed.
The charter granted to St. Omer in 1127 may be considered as the point
of departure of the political programme of the burghers of
Flanders.[142] It recognized the city as a distinct legal territory,
provided with a special law common to all inhabitants, with special
aldermanic courts and a full communal autonomy. Other charters in the
course of the twelfth century ratified similar grants to all the
principal cities of the county. Their status was thereafter secured and
sanctioned by written warrants.
On the other hand care must be taken not to attribute to the city
charters an exaggerated importance.[143] Neither in Flanders nor in any
other region of Europe did they embrace the whole of the city law. They
limited themselves to fixing the principal outlines, to formulating some
of the essential principles, to settling a few particularly important
conflicts. Most of the time they were the product of special
circumstances and they took count only of matters which were under
debate at the time they were drawn up. They cannot be considered as the
result of systematic planning and legislative deliberation similar to
that out of which are born, for example, modern constitutions. If the
middle classes have kept watch over them throughout the centuries, with
an extraordinary solicitude, preserving them under triple lock in chests
of iron and surrounding them with a quasi-superstitious respect, it is
because they considered them as the palladium of their liberty. It is
because they permitted them, in case of violation, to justify their
rebellion, but it is not because they included the whole of their
rights. They were not, so to speak, more than the framework of the
latter. Round about their stipulations existed and continued unceasingly
to develop a thick vegetation of rights, usages, and unwritten but none
the less indispensable privileges. This is so true that a number of
charters themselves foresaw and recognized in advance the further
development of city law. The chronicler Galbert informs us that the
Count of Flanders accorded to the burghers of St. Omer in 1127: “_ut die
in diem consuetudinarias leges suas corrigerent_,”--that is to say, the
power of correcting from day to day their municipal laws.[144] There
was, therefore, more in the law of the city than what was contained in
the terms of the charters. They specified merely fragments of it. They
were full of gaps; they were concerned with neither order nor system. We
need not expect to find in them the fundamental principles out of which
came later evolutions, as for example, Roman law evolved from the law of
the Twelve Tables.