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785
COMMUNE, MEDIEVAL


those that were newly founded at a later date in the interior.[1] Foremost in importance among the former stand the episcopal cities. Most of these had never been entirely destroyed during the Germanic invasion. Roman civic institutions perished; but probably parts of the population survived, and small Christian congregations with their bishops in most cases seem to have weathered all storms. Much of the city walls presumably remained standing, and within them German communities soon settled.

In the 10th century it became the policy of the German emperors to hand over to the bishops full jurisdictional and administrative powers within their cities. The bishop henceforward directly or indirectly appointed all officers for the town’s government. The chief of these was usually the advocatus or Vogt, some neighbouring noble who served as the proctor of the church in all secular affairs. It was his business to preside three times a year over the chief law-court, the so-called echte or ungebotene Ding, under the cognizance of which fell all cases relating to real property, personal freedom, bloodshed and robbery. For the rest of the legal business and as president of the ordinary court he appointed a Schultheiss, centenarius or causidicus. Other officers were the Burggraf[2] or praefectus for military matters, including the preservation of the town’s defences, walls, moat, bridges and streets, to whom also appertained some jurisdiction over the craft-gilds in matters relating to their crafts; further the customs-officer or teleonarius and the mint-master or monetae magister. It was not, however, the fact of their being placed under the bishop that constituted these towns as separate jurisdictional units. The chief feature rather is the existence within their walls of a special law, distinct in important points from that of the country at large. The towns enjoyed a special peace, as it was called, i.e. breaches of the peace were more severely punished if committed in a town than elsewhere. Besides, the inhabitants might be sued before the town court only, and to fugitives from the country who had taken refuge in the town belonged a similar privilege. This special legal status probably arose from the towns being considered in the first place as the king’s fortresses[3] or burgs (see Borough), and, therefore, as participating in the special peace enjoyed by the king’s palace. Hence the terms “burgh,” “borough” in English, baurgs in Gothic, the earliest Germanic designations for a town; “burgher,” “burgess” for its inhabitants. What struck the townless early Germans most about the Roman towns was their mighty walls. Hence they applied to all fortified habitations the term in use for their own primitive fortifications; the walls remained with them the main feature distinguishing a town from a village; and the fact of the town being a fortified place, likewise necessitated the special provisions mentioned for maintaining the peace.

The new towns in the interior of Germany were founded on land belonging to the founder, some ecclesiastical or lay lord, and frequently adjoining the cathedral close of one of the new sees or the lord’s castle, and they were laid out according to a regular plan. The most important feature was the market-square, often surrounded by arcades with stalls for the sale of the principal commodities, and with a number of straight streets leading thence to the city gates.[4] As for the fortifications, some time naturally passed before they were completed. Furthermore, the governmental machinery would be less complex than in the older towns. The legal peculiarities distinguishing town and country, on the other hand, may be said to have been conferred on the new towns in a more clearly defined form from the beginning.

An important difference lay in the mode of settlement. There is evidence that in the quondam Roman towns the German newcomers settled much as in a village, i.e. each full member of the community had a certain portion of arable land allotted to him and a share in the common. Their pursuits would at first be mainly agricultural. The new towns, on the other hand, general economic conditions having meanwhile begun to undergo a marked change, were founded with the intention of establishing centres of trade. Periodical markets, weekly or annual, had preceded them, which already enjoyed the special protection of the king’s ban, acts of violence against traders visiting them or on their way towards them being subject to special punishment. The new towns may be regarded as markets made permanent. The settlers invited were merchants (mercatores personati) and handicraftsmen. The land now allotted to each member of the community was just large enough for a house and yard, stabling and perhaps a small garden (50 by 100 ft. at Freiburg, 60 by 100 ft. at Bern). These building plots were given as free property or, more frequently, at a merely nominal rent (Wurtzins) with the right of free disposal, the only obligation being that of building a house. All that might be required besides would be a common for the pasture of the burgesses’ cattle.

The example thus set was readily followed in the older towns. The necessary land was placed at the disposal of new settlers, either by the members of the older agricultural community, or by the various churches. The immigrants were of widely differing status, many being serfs who came either with or without their lords’ permission. The necessity of putting a stop to belated prosecutions on this account in the town court led to the acceptance of the rule that nobody who had lived in a town undisturbed for the term of a year and a day could any longer be claimed by a lord as his serf. But even those who had migrated into a town with their lords’ consent could not very well for long continue in serfdom. When, on the other hand, certain bishops attempted to treat all new-comers to their city as serfs, the emperor Henry V. in charters for Spires and Worms proclaimed that in these towns all serf-like conditions should cease. This ruling found expression in the famous saying: Stadtluft macht frei, “town-air renders free.” As may be imagined, this led to a rapid increase in population, mainly during the 11th to 13th centuries. There would be no difficulty for the immigrants to find a dwelling, or to make a living, since most of them would be versed in one or other of the crafts in practice among villagers.

The most important further step in the history of the towns was the establishment of an organ of self-government, the town-council (Rat, consilium, its members, Ratmänner, consules, less frequently consiliarii), with one, two or more burgomasters (Bürgermeister, magistri civium, proconsules) at its head. (It was only after the Renaissance that the town-council came to be styled senate, and the burgomasters in Latin documents, consules.) As units of local government the towns must be considered as originally placed on the same legal basis as the villages, viz. as having the right of taking care of all common interests below the cognizance of the public courts or of those of their lord.[5] In the towns, however, this right was strengthened at an early date by the jus negotiale. At least as early as the beginning of the 11th century, but probably long before that date, mercantile communities claimed the right, confirmed by the emperors, of settling mercantile disputes according to a law of their own, to the horror of certain conservative-minded clerics.[6] Furthermore, in the rapidly developing towns, opportunities for the exercise of self-administrative functions constantly increased. The new self-governing body soon began to legislate in matters of local government, imposing fines for the breach

  1. As to the former, see S. Rietschel, Die Civitas auf deutschem Boden bis zum Ausgange der Karolingerzeit (Leipzig, 1894); and, for the newly founded towns, the same author, Markt und Stadt in ihrem rechtlichen Verhältnis (Leipzig, 1897).
  2. About the Burggraf, see S. Rietschel, Das Burggrafenamt und die hohe Gerichtsbarkeit in den deutschen Bischofsstädten während des früheren Mittelalters (Leipzig, 1905).
  3. As to the towns as fortresses, see also F. Keutgen, Untersuchungen über den Ursprung der deutschen Stadtverfassung (Leipzig, 1895); and “Der Ursprung der deutschen Stadtverfassung” (Neue Jahrbücher für das klassische Altertum, &c, N.F. vol. v.).
  4. See S. Rietschel, Markt und Stadt, and J. Fritz, Deutsche Stadtanlagen (Strassburg, 1894).
  5. G. von Below, Die Entstehung der deutschen Stadtgemeinde (Düsseldorf, 1889); and Der Ursprung der deutschen Stadtverfassung (Düsseldorf, 1892).
  6. F. Keutgen, Urkunden zur städtischen Verfassungsgeschichte, No. 74 and No. 75 (Berlin, 1901).