one by another, to characterise in its general traits the city law of
the Middle Ages as it developed in the course of the twelfth century in
the different regions of Western Europe. There is no need to take
account, since we are seeking only to trace the general outline, either
of the difference in States or even in nations. City law was a
phenomenon of the same nature as, for example, that of feudalism. It was
the consequence of a social and economic situation common to all
peoples. Taking it by regions, there are of course numerous differences
in detail. But at bottom it was everywhere the same and it is solely
concerning this permanent basis that we shall deal in the following
paragraphs.
The first thing which should be considered is the status of the
individual as it was when city law was definitely evolved. That status
was one of freedom. It is a necessary and universal attribute of the
middle class. Each city established a “franchise” in this respect. Every
vestige of rural serfdom disappeared within its walls. Whatever might be
the differences and even the contrasts which wealth set up between men,
all were equal as far as civil status was concerned. “The air of the
city makes free,” says the German proverb (_Die Stadtluft macht frei_),
and this truth held good in every clime. Freedom, of old, used to be the
monopoly of a privileged class. By means of the cities it again took its
place in society as a natural attribute of the citizen. Hereafter it was
enough to reside on city soil to acquire it. Every serf who had lived
for a year and a day within the city limits had it by definite right:
the statute of limitations abolished all rights which his lord exercised
over his person and chattels. Birth meant little. Whatever might be the
mark with which it had stigmatized the infant in his cradle, it vanished
in the atmosphere of the city. This freedom, which at the beginning only
merchants had enjoyed _de facto_, was now the common right of all the
burghers _de jure_.
If there could still exist, here and there among them, a few serfs,
these latter were not members of the city population. They were
hereditary servitors of the abbeys or of the seigniories which retained
in the cities bits of land not subject to city law and where the old
state of things was prolonged. Burgher and freeman had become synonymous
terms. Freedom, in the Middle Ages, was an attribute as inseparable from
the rank of citizen of a city as it is in our day of that of the
citizen of a State.
With freedom of person there went on equal footing, in the city, the
freedom of the land. In a merchant community, land, in fact, could not
remain immobile and be kept out of commerce by unwieldy and diverse laws
that prevented its free conveyance and kept it from serving as a means
of credit and acquiring capital value. This was the more inevitable in
that land, within the city, changed its nature--it became ground for
building. It was rapidly covered with houses, crowded one against the
other, and increased in value in proportion as they multiplied. Thus it
automatically came about that the owner of a house acquired in the
course of time the ownership, or at the least possession, of the soil
upon which it was built. Everywhere the old demesnial land was
transformed into “censal estate,” or “censal allodium.” City hold thus
became free hold. He who occupied it was not bound by more than the land
taxes due to the owner of the land, when he did not happen to be himself
the owner. He could freely transfer it, convey it, mortgage it and make
it serve as security for capital he might borrow. In selling a mortgage
on his house, the burgher procured the liquid capital he needed; in
buying a mortgage on the house of another, he assured himself of an
income proportionate to the sum expended. He placed, as we would say
today, his money out at interest. Compared to the old feudal or
demesnial tenures, tenure in city law--tenure in _Weichbild_ or
_Burgrecht_ as they called it in Germany, or _bourgage_ in France--thus
showed a well-marked individuality.
Subject to new economic conditions, city land ended by acquiring a new
law, suited to its nature. The old land-courts probably did not abruptly
disappear. The enfranchisement of the soil did not have as consequence
the spoliation of the old proprietors. Very often they kept, when it was
not bought back from them, portions of the land of which they had been
lords. But the seigniory which they still exercised over them no longer
carried with it the personal dependence of the tenants.
City law not only did away with personal servitude and restrictions on
land, but also caused the disappearance of the seigniorial rights and
fiscal claims which interfered with the activity of commerce and
industry. The market-tolls (_teloneum_) which were such a handicap to
the free circulation of goods were particularly odious to the burghers,
and they early made the effort to get rid of them. The chronicler
Galbert shows that this was, in Flanders in 1127, one of their chief
preoccupations. It was because the pretender, William of Normandy, did
not keep his promise in this particular that they rose against him and
called Thierry of Alsace. In the course of the twelfth century,
everywhere, voluntarily or under compulsion, the market-tolls were
modified. Here, they were bought off by means of an annual fee; there,
the manner of levying them was changed. In almost every case they were
placed under the supervision, and subject to the jurisdiction, of the
city authorities. It was the city’s magistrates who henceforth took
charge of supervising trade and who took the place of the castellans and
the old demesnial functionaries in the standardization of weights and
measures and in the judicial administration of markets and industry
generally.
If the market-tolls were modified in passing under the authority of the
city, it was otherwise with the other seigniorial rights which,
incompatible with the free functioning of the life of the city, were
inevitably condemned to disappear altogether. Mention might be made of
the surviving characteristics of the agricultural era which had been
left impressed on the physiognomy of the city: common ovens and mills,
at which the seigneur compelled the inhabitants to grind their wheat
and bake their bread; monopolies of every sort, by virtue of which he
enjoyed the privilege of selling at certain periods, without
competition, the wine from his vineyards or the meat from his cattle;
the right of shelter, which imposed upon the burghers the obligation of
furnishing him lodging and subsistence during his stays in the city; the
right of requisition, by which he appropriated to his service the boats
or the horses of the inhabitants; the right of summons to arms, imposing
the obligation of following him to war; customs of every sort and every
origin which had become oppressive and vexatious because they had long
since become useless, such as that which forbade the building of bridges
over the water courses or that which compelled the inhabitants to assist
in the maintenance of the knights composing the garrison of the “old
burg.” Of all this there remained, at the end of the twelfth century,
hardly more than the memory. The lords, after having tried resistance,
finished by giving way. They realized, in the course of time, that their
manifest interest commanded them not to hinder the development of the
cities, in order to preserve a few meagre revenues, but to favor it by
doing away with the obstacles that stood in its path. They began by
taking count of the incompatibility of these old prestations with the
new state of things, and they ended by themselves qualifying them as
“plunderings and extortions.”
Like the status of individuals, the governing of the land, and the
fiscal system, the fundamental character of the law itself underwent a
transformation in the cities. The complicated and formalistic procedure,
the compurgations, the ordeals, the judiciary duel--all these crude
methods of proof which too often let chance or sheer luck decide the
issue of a trial, were not long, in their turn, in adapting themselves
to the new conditions of a city environment. The old rigid forms of
contract, which custom had established, disappeared as rapidly as
economic life became more complicated and active. The judiciary duel
evidently could not be long retained in the midst of a population of
merchants and artisans. Proof through witnesses was likewise early
substituted in place of proof through compurgators, before the city
magistracy bench. The _Wergild_, the old blood-price, gave way to a
system of fines and corporal punishments. Finally, legal delays,
originally so long, were considerably reduced.
It was not only procedure that was modified. The very content of the law
evolved in parallel fashion. In questions of marriage, succession,
liens, debts, mortgages, and particularly in questions of business law,
a whole new body of legislation was coming into being in the cities, and
the jurisprudence of their tribunals created a civil practice,
increasingly amplified and exact.
City law was characterised no less from the criminal point of view than
from the civil. In such aggregations as the cities were, of men from
every station in life, in this environment where abounded wanderers,
vagabonds and adventurers, a rigorous discipline was necessary to the
maintenance of security. It was equally necessary for intimidating the
thieves and bandits who, in every civilization, are drawn towards
commercial centers. This is so true that as early as the Carolingian era
the towns, within the walls of which the wealthy class sought shelter,
seemed to enjoy a special “peace.”[145] This is that same word “peace”
which was used in the twelfth century to designate the criminal law of
the city.
This city peace was a law of exception, more severe, more harsh, than
that of the country districts. It was prodigal of corporal punishments:
hanging, decapitation, castration, amputation of limbs. It applied in
all its rigor the _lex talionis_: an eye for an eye, a tooth for a
tooth. Its evident purpose was to repress derelictions, through terror.
All who entered the gates of the city, whether nobles, freemen or
burghers, were equally subject to it. Under it the city was, so to
speak, in a permanent state of siege. But in it the city found a potent
instrument of unification, because it was superimposed upon the
jurisdictions and seigniories which shared the soil; it forced its
pitiless regulation on all. More than community of interests and
residence, it contributed to make uniform the status of all the
inhabitants located within the city walls and to create the middle
class. The burghers were essentially a group of _homines pacis_--men of
the peace. The peace of the city (_pax villae_) was at the same time the
law of the city (_lex villae_). The emblems which symbolized the
jurisdiction and the autonomy of the city were above all emblems of
peace: such as were, for example, the cross or the symbolic set of stone
steps in the market-place, the belfries (_Bergfried_), the towers of
which arose from the heart of the cities of the Netherlands and Northern
France, and the statues of Roland, which were so numerous in Northern
Germany.
By virtue of the peace with which it was endowed, the city formed a
distinct legal district. The legal principle of territoriality carried
with it that of personality. Equally subject to the same penal law, the
burghers inevitably shared, sooner or later, in the same civil law. The
practice of the city was extended up to the limits of the peace and the
city formed, within the circumference of its ramparts, a community of
law.
The peace, on the other hand, contributed largely in making the city a
commune. It had, in effect, the oath as its sanction. It supposed a
_conjuratio_ of all the city population. And the oath taken by the
burgher was not confined to a simple promise of obedience to municipal
authority. It involved strict obligations and imposed a strict duty to
maintain and respect the peace. Every _juratus_--that is to say, every
burgher sworn--was obliged to lend a helping hand to any burgher calling
for help. Thus the peace created, among all its members, a permanent
solidarity. Hence the term “brothers” by which they were sometimes
designated, or the word _amicitia_ used at Lille, for example, as
synonym for _pax_. And since the peace covered the whole city
population, the latter, therefore, was a commune. The very names which
the municipal magistrates bore in a number of places,--“warders of the
peace” at Verdun, “safeguard of friendship” at Lille, “jurors of the
peace” at Valenciennes, Cambrai and many other cities,--make it easy to
see the close relationship between the peace and the commune.
Other causes naturally contributed to the birth of city communes. The
most potent among them was the need, early felt by the burghers, of a
tax system. Funds were necessary for public works of the most pressing
nature, and, above all, for the construction of the city wall.
Everywhere the need of building this protecting rampart was the point of
departure for city finances. In the cities of the region of Liège the
communal tax bore the characteristic name of _firmitas_ (“firmness”). At
Angers the oldest municipal accounts were those of the “_clouaison,
fortiffication et emparement_” of the city. Elsewhere part of the fines
were appropriated _ad opus castri_,--for the improvement of the
fortifications.
Taxes, naturally, provided the means of securing the needed resources.
To subject the taxpayers thereto, recourse had to be had to compulsion.
Everyone was obliged to participate according to his means, in the
expenses incurred in the interests of all. Whoever refused to support
the charges which they involved was barred from the city. The latter was
therefore a commune, an obligatory association, a moral personality.
According to the phrase of Beaumanoir, it formed a “_compaignie,
laquelle ne pot partir ne deseurer, ançois convient qu’elle tiègne,
voillent les parties ou non qui en la Compaignie sont_.” That is to
say, a society which could not be dissolved, but which must needs exist
independently of the wishes of its members.[146]
Thus the city of the Middle Ages was simultaneously a legal district and
a commune.
There remain to be examined the agencies by which were met the demands
its nature imposed.
First of all, inasmuch as it was an independent legal district, it by
all means had to have its own jurisdiction. City law being bounded by
the city walls, in contrast to the regional law, the law of without, a
special tribunal had to be charged with applying it and the burghers had
to have, in consequence, the assurance of their privileged status. This
is a clause which is lacking in hardly any municipal charter: that the
burghers could be tried only by their own magistrates. The latter, as a
necessary consequence, were recruited from their midst. It was essential
that they be members of the commune and naturally the latter, to a
greater or less degree, took part in their nomination. Here, it had the
right of designating them to the seigneur; there, the more liberal
system of election was applied; still elsewhere, recourse was had to
complicated formalities: elections in several steps, drawing by lot,
and so on, which manifestly had for their purpose the obviating of
bribery and corruption. Most often, the president of the tribunal
(mayor, bailiff, etc.) was an officer of the seigneur’s. It happened,
nevertheless, that the city had something to say in his choosing. It had
in every case an assurance, in the oath which he must take to respect
and defend its privileges.
By the beginning of the twelfth century, and in some cases even by the
end of the eleventh, a few cities were already in possession of their
special tribunal. In Italy, in the South of France, in several parts of
Germany, its members bore the name of “consuls.” In the Netherlands and
in Northern France they were called _échevins_, or aldermen. In still
other places they were designated as _jures_, or jurors. In accordance
with the locality, the extent of the jurisdiction they exercised also
varied quite noticeably. They did not have it everywhere in its
entirety. It frequently happened that the seigneur reserved to himself
certain special cases. But these local differences are of little
importance. The essential thing is that every city, by the very fact
that it was recognized as a legal district, had its own judges. Their
competency was set by the law of the city and limited to the territory
in which it applied. Sometimes in place of a single body of magistrates
there were several of them, each having its own special attributes. In
many cities, and particularly in the episcopal cities where municipal
institutions were the result of insurrection, were to be seen, side by
side with the aldermen over whom the seigneur had more or less
influence, a body of jurors presiding over matters of peace and
specially competent in cases arising out of the communal statutes. But
it is impossible to go into details here; it will suffice to have
indicated the general evolution, without regard to its innumerable
modifications.
In its status as a commune, the city was administered by a council
(_consilium_, _curia_, etc.). This council sometimes coincided with the
tribunal, and the same individuals were at once both judges and
administrators for the middle class. Most often, however, it had its own
individuality. Its members received their authority from the commune.
They were its delegates, but it did not abdicate entirely in their
favor. Nominated for a very short time, they could not usurp the power
that was entrusted to them. Not until later, when the constitution of
the city had been developed and when administration had become
complicated, did they form a real assembly upon which the influence of
the people made itself felt but feebly. At the start it was quite
otherwise. The original jurors, charged with watching over the public
weal, were only representatives very similar to the selectmen of New
England towns, mere executors of the collective will. The proof of this
lies in the fact that at first they lacked one of the fundamental
characteristics of every organized body--a central authority, a
president. The “burgomasters” and the “mayors” of the communes were, in
fact, of relatively recent creation. They did not exist much before the
thirteenth century. They belong to an era in which the character of
institutions was tending to be modified, and in which the need of a
greater centralization and a more independent power was being felt.
The council carried on the routine administration. It had charge of
finances, commerce, and industry. It ordered and supervised public
works, organized the provisioning of the city, regulated the equipment
and the deportment of the communal army, founded schools for children,
provided for the upkeep of almshouses for the old and the poor. The
statutes it decreed formed a genuine body of municipal legislation of
which there existed, north of the Alps, scarcely any prior to the
thirteenth century. But a close study of these statutes leads to the
conviction that they merely developed and clarified an older form of
government.
Nowhere, perhaps, was the spirit of innovation and the practical
judgment of the middle class more highly manifest than in the realm of
administration.[147] The work done there seems the more noteworthy in
that it was an original creation. Nothing in the prior state of things
could have served as a model for it, since the needs for which it
provided were new needs. This is made clear by a comparison, for
example, of the financial system of the feudal era with that which the
city communes instituted. In the first, taxes were merely a fiscal
prestation, an established and perpetual obligation taking no count of
the means of the taxpayer, bearing down only on the people, and the
proceeds of which were added to the demesnial resources of the prince or
seigneur who collected them, without any part of them being directly
appropriated for the public interest. The second, on the contrary,
recognized neither exceptions nor privileges. All burghers, enjoying
equally the advantages of the commune, were equally obligated to
contribute towards the expenses. The quota of each was in proportion to
his means. At the start it was generally calculated on the basis of
income. Many cities kept consistently to this practice up to the end of
the Middle Ages. Others substituted for it the excise,--that is to say,
the indirect tax levied on articles of consumption and especially on
foodstuffs,--in such a way that the rich and the poor were taxed
according to their expenditures. But this city-excise was in no way
connected with the old market-tolls. It was as flexible as the latter
were strict, as variable in accordance with the circumstances or the
needs of the public as the latter were immutable. But whatever might be
the form they took, the proceeds of these taxes were entirely devoted to
the needs of the commune. By the end of the twelfth century, a fiscal
system had been developed and at this era can be discovered the first
traces of municipal accounts.
The provisioning of the city and the regulating of commerce and industry
testify more clearly still to the burghers’ aptitude for solving the
social and economic problems which their conditions of existence put up
to them. They had to provide for the subsistence of a sizeable
population, obliged to get its food-supply from without; to protect
their workmen from foreign competition; to make certain of their supply
of raw materials and to insure the exporting of their manufactures.
They accomplished it by a system of regulation so marvellously adapted
to its purpose that it may be considered a masterpiece of its kind. The
city economy was worthy of the Gothic architecture with which it was
contemporary. It created with complete thoroughness--and, it may well be
said, it created _ex nihilo_--a social legislation more complete than
that of any other period in history, including our own. In doing away
with the middlemen between buyer and seller, it assured to the burgher
the benefit of a low cost of living; it ruthlessly pursued fraud,
protected the worker from competition and exploitation, regulated his
labor and his wage, watched over his health, provided for
apprenticeship, forbade woman-and child-labor, and at the same time
succeeded in keeping in its own hands the monopoly of furnishing the
neighboring country with its products and in opening up distant markets
for its trade.
All this would have been impossible if the civic spirit of the burghers
had not been equal to the tasks that were laid upon them. It is
necessary, in fact, to go back to antiquity to find as much devotion to
the public good as that of which they had given proof. _Unus subveniet
alteri tamquam fratri suo_--“let each help the other like a
brother”--says a Flemish charter of the twelfth century,[148] and these
words were actually a reality. As early as the twelfth century the
merchants were expending a good part of their profits for the benefit of
their fellow citizens,--building churches, founding hospitals, buying
off the market-tolls. The love of gain was allied, in them, with local
patriotism. Every man was proud of his city and spontaneously devoted
himself to its prosperity. This was because, in reality, each individual
life depended directly upon the collective life of the municipal
association. The commune of the Middle Ages had, in fact, all the
essential attributes which the State exercises today. It guaranteed to
all its members the security of his person and of his chattels. Outside
of it he was in a hostile world, surrounded by perils and exposed to
every risk. In it alone did he have a shelter, and for it he felt a
gratitude which bordered upon love. He was ready to devote himself to
its defence, just as he was always ready to bedeck it and make it more
beautiful than its neighbors. Those magnificent cathedrals which the
thirteenth century saw erected would not have been conceivable without
the joyous alacrity with which the burghers contributed, by gifts, to
their construction. They not only were houses of God; they also
glorified the city of which they were the greatest ornament and which
their majestic towers advertised afar. They were for the cities of the
Middle Ages what temples were for those of antiquity.