CITIES, in their formative period, found themselves in a singularly
complicated situation. They were faced with problems of all sorts. In
them there existed side by side two populations which did not mix, and
which presented all the contrasts of two distinct worlds. The old
demesnial organization with all the traditions, all the opinions, all
the ideas which may not have been born of it but which received from it
their particular stamp, came to grips with wants and aspirations which
had taken it by surprise, which went counter to its interests, to which
it was not adapted and which, from the very first, it opposed. If it
gave ground, that was in spite of itself and because the new conditions
which had to be faced were due to causes too profound and irresistible
for their effect not to be felt.
The consequences of facts which are so little affected by human wishes
as the increase of population and the expansion of trade could not be
avoided. Probably those in positions of authority in the social order
were not able to appreciate the import of the changes that were taking
place about them. The old order of things sought, at first, to maintain
its position. Only later, and usually too late, did it try to adapt
itself. As always happens, the change did not come about all at once.
And it would be improper to attribute, as has frequently been done, to
“feudal tyranny” or to “sacerdotal arrogance” an opposition which is to
be explained by more natural incentives. There happened in the Middle
Ages what has happened so often since then. Those who were the
beneficiaries of the established order were bent upon defending it, not
so much, perhaps, because it guaranteed their interests, as because it
seemed to them indispensable to the preservation of society.
It should be borne in mind, moreover, that this social order the middle
classes accepted. Their demands and what might be called their
“political programme” did not aim in any way at its overthrow; they took
for granted the privileges and the authority of the princes, the clergy,
and the nobility. They merely wished to obtain, because it was necessary
to their existence, not an overthrow of the existing order but simple
concessions. And these concessions were limited to their own needs. They
were completely uninterested in those of the rural population from which
they had sprung. In short, they only asked of society to make for them
a place compatible with the sort of life they were leading. They were
not revolutionary, and if they happened to turn to violence it was not
through hate against the government but quite simply to force
concessions.
A brief review of the principal points in their programme will be enough
to show that they did not go beyond an indispensable minimum. What they
wanted, first of all, was personal liberty, which would assure to the
merchant or the artisan the possibility of going and coming, of living
where he wished and of putting his own person as well as that of his
children under the protection of the seigniorial power. Next came the
creation of a special tribunal by means of which the burgher would at
one stroke escape the multiplicity of jurisdictions to which he was
amenable and the inconveniences which the formalistic procedure of
ancient law imposed upon his social and economic activity. Then came the
instituting in the city of a “peace”—that is to say, of a penal
code—which would guarantee security. And then came the abolition of
those prestations most incompatible with the carrying on of trade and
industry, and with the possession and acquisition of land. What they
wanted, in fine, was a more or less extensive degree of political
autonomy and local self-government.
All of this was very far from forming a coherent whole and being
justified on theoretical principles. Nothing was further from the mind
of the original middle classes than any conception of the rights of man
and citizen. Personal liberty itself was not claimed as a natural right.
It was sought only for the advantages it conferred. This is so true that
at Arras, for example, the merchants tried to have themselves classed as
serfs of the Monastery of St. Vast in order to enjoy the exemption from
the market-tolls which had been accorded to the latter.[129]
It was not until the beginning of the eleventh century that the first
direct action was taken by the middle classes against the order of
things they suffered from. Their efforts thereafter never halted.
Despite vicissitudes and reverses, the movement of reform advanced
unhesitatingly towards its goal, broke by main force, if necessary, the
opposition that stood in the way and ended, in the course of the twelfth
century, by giving the towns those essentially municipal institutions
which were to be the basis of their constitutions.
Everywhere it was the merchants who took the initiative and directed
events. Nothing was more natural than that. They were the most active,
the richest, the most influential element in the city population and
they endured with so much the more impatience a situation which clashed
with their interests and belittled their confidence in themselves.[130]
The rôle they then played, despite the enormous difference in time and
conditions, may fittingly be compared with that which the capitalistic
middle class assumed after the end of the eighteenth century in the
political revolution which put an end to the old order of things. In the
one case as in the other, the social group which was the most directly
interested in the change assumed the leadership of the opposition, and
was followed by the masses. Democracy in the Middle Ages, as in modern
times, got its start under the guidance of a select few who foisted
their programme upon the confused aspirations of the people.
The episcopal cities were the first to be the scene of combat. It would
be a decided mistake to attribute this fact to the personality of the
bishops. A great number of them distinguished themselves, on the
contrary, by their manifest solicitude for the public weal. Excellent
administrators, whose memory has remained with the people throughout
the centuries, were by no means rare among them. At Liège, for example,
Notger (972-1018) attacked the castles of the robber barons who infested
the neighborhood, and turned from its course a branch of the Meuse to
make the city more healthy and to strengthen its fortifications.[131]
Similar examples could easily be cited in the case of Cambrai, Utrecht,
Cologne, Worms, Mainz and a number of cities of Germany where the
emperors strove, up to the time of the investiture struggle, to name
prelates notable equally for their intelligence and their energy.
But the more the bishops were conscious of their duties, the more also
they had to defend their government against the demands of their
subjects and endeavor to keep them under an authoritative, patriarchal
regimen. The confusion of spiritual power and temporal power in their
hands, moreover, caused every concession to seem to them to be a peril
to the Church. It must also not be forgotten that their functions
obliged them to reside permanently in their cities and that they feared,
with good reason, the difficulties which would be caused them by the
autonomy of the burghers in whose midst they lived. Finally, it has
already been seen that the Church had little sympathy with trade. This
unsympathetic attitude must naturally have made the Church deaf to the
wishes of the merchants and of the people who were grouped behind them,
have prevented an understanding of their wants, and given a false
impression of their real power. Out of this came misunderstandings,
clashes, and soon an open hostility which, after the beginning of the
eleventh century, was to end in the inevitable.[132]
The movement began in Northern Italy. There, commercial life was older
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.
It is possible, however, in examining their principles and supplementing
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.
To the ardor of local patriotism corresponded its exclusivism. From the
very fact that each city constituted a State, cities saw in one another
only rivals or enemies. They could not rise above the sphere of their
own interests. They were self-centered, and the feeling which they bore
for their neighbors resembles very closely, within narrower limits, the
nationalism of our day. The civic spirit which animated them was
singularly egoistic. They jealously reserved to themselves the liberties
they enjoyed within their walls. The peasants who dwelt round about them
did not seem to them to be compatriots at all. They thought only of
profitably exploiting them. With all their might they stood on guard to
prevent the peasants from freeing themselves from the industrial system
of which the cities had a monopoly. The task of provisioning these
cities was likewise imposed upon the peasants, who were subjected to a
tyrannical protectorate whenever it was possible to do so, as in
Tuscany, for example, where Florence subjected to its yoke all the
surrounding countryside.
We are, however, touching here upon events which were not manifest with
all their consequences until the beginning of the thirteenth century. It
will suffice to have briefly sketched a tendency which, in the period of
origins, was hardly more than a suggestion of what was to come. Our
intention has been merely to define the city of the Middle Ages after
having depicted its origin. Furthermore, it has been possible to note
only its principal traits. The physiognomy which has been outlined
resembles those countenances obtained by photographing portraits
superimposed one on the other. The contours of it give a countenance
common to all and belonging to none of them.
If we wished, in ending this too-long chapter, to sum up its essential
points in one phrase, perhaps it would be possible to say that the city
of the Middle Ages, as it existed in the twelfth century, was a
commercial and industrial commune living in the shelter of a fortified
enceinte and enjoying a law, an administration and a jurisprudence of
exception which made of it a collective, privileged personality.
