Heart of Europe: A History of the Roman Empire (107 page)

Although some writers now envisaged states without princes, debates in the Empire still differed from those in the anglophone world. English-speaking writers since the late seventeenth century had linked political organization to property. The primary purpose of the social contract believed to underpin civil society was the preservation of property. Consequently, property-owners should have a say in government, an argument that the Americans expressed in 1775 as ‘no taxation without representation’. By contrast, German writers generally continued to define the state as the rule of law, arguing that good laws protected rights and property. Justi still saw the Estates, like Althusius had, as guardians of laws, rather than law-makers. Most Germans regarded fully republican government as dangerous, citing the examples of Britain and Poland-Lithuania to argue that disassociating representation from corporate groups and incorporated communities gave too much scope for divisive ‘parties’ and ‘factions’. Without imperative mandates, representatives would be free to pursue their own self-interests. These arguments gained a new lease of life as news arrived after 1789 of the horrifying excesses of the French revolutionaries, while the final two Polish partitions (1793 and 1795) suggested that factionalism could lead to political extinction.
¹⁰⁶

Actual practice remained in the established pattern, as exemplified by the discussions since 1762 of how to revive Saxony, which had been devastated during the Seven Years War. The need to finance reform raised the question of taxation and representation, but proposals concentrated on detailed tinkering with existing structures, for example by suggesting the nobles should assume a greater share of common burdens and allow commoners holding knights’ fiefs to exercise the associated rights to participate in diets. The pace of change accelerated slightly following large-scale peasant protest between August and October 1790. The Saxon Estates were modified in 1805, but it was not
until 1831 that they were replaced by a two-chamber parliament that finally abolished the nobles’ patrimonial jurisdiction in 1855.
¹⁰⁷

The Saxon unrest encompassed 50 parishes and was the largest popular protest in the Empire outside the Habsburg lands since the Peasants War. It was caused by frustration at the local courts’ inability to clear a backlog of 230 cases against lordly exactions and abuses. Contemporaries stressed the differences between Saxony and France, including the resolution of the former’s problems through the established methods of administrative and judicial review, rather than mass bloodshed. The Saxons were not seeking a new form of government, but to make the existing one work properly. Where peasants did criticize Estates as unrepresentative, it was simply to reinforce demands that they be included as a corporate group.
¹⁰⁸
Association was thus a way in which different social groups could secure specific identities and rights within a hierarchical corporate legal and political order. The next chapter examines how this order attempted to regulate disputes between these groups and how far it could accommodate further change by the late eighteenth century.

12

Justice

FINDING THE LAW

Justice in the Empire

Peace and justice were considered essential to any community throughout the Middle Ages and early modernity, as they are today. The authorities’ capacity to maintain law and order was central to how they were perceived. As in many other respects, the Empire has often been judged as ineffectual, because it favoured arbitration rather than swift and unambiguous verdicts.
¹
There has also been a tendency to see protest as an intrusion threatening political stability, rather than as a form of negotiation and a check on arbitrary power. Investigating how the Empire handled conflict and disorder reinforces the findings of the two previous two chapters that its social and political structures were closely interwoven. This section examines the conventions guiding conflict resolution across all levels of the Empire’s society. The second section argues that legal and judicial arrangements were primarily intended to find and sustain workable compromises, ideally through reconciliation rather than exemplary punishment. The chapter concludes by questioning how far the Empire remained a viable social and political order by the later eighteenth century.

Justice developed in line with the Empire’s decentralized structure and was influenced by what would later be called ‘public opinion’. Consensus was an ideal throughout medieval Europe, but assumed an unusually significant place in the Empire, because enforcement mechanisms remained weak, necessitating broad acceptance beyond those immediately involved to ensure verdicts were not ignored. The general
European pattern saw judicial institutions evolve as part of political centralization, placing them under more obvious central (usually royal) control. The degree of judicial independence thus determined how far justice was politicized. The Empire’s judicial structures were more genuinely independent of central authority, though we will see that this did not mean they were necessarily ‘modern’. Politicization was far less a matter of royal interference than of how far those charged with settling a case were influenced by wider interests.

Justice involved finding laws appropriate to circumstances. From its foundation, the Empire used an eclectic combination of written and unwritten laws. The latter, often labelled as ‘customs’, were not necessarily inferior to written systems, which themselves should not be interpreted as direct precursors to later practice. Medieval lawyers distinguished between
lex
as law deriving from contracts between rulers and subjects over (usually) specific matters, and
ius
as law in general expressed variously in statutes, court verdicts, and broader concepts of fairness and justice. These distinctions did not always survive in practice over time, while the situation was further complicated by the fact that written laws remained largely uncodified; even the largest German territories had not completed codification of their own legal systems by 1806, while imperial law existed separately as a bundle of charters, legislation and recorded precedents. The Empire was scarcely unique in this respect: eighteenth-century France had 800,000 laws in 300 separate regional codes.
²

Law thus had multiple sources. All were identified with tradition, but this could be (re)invented, allowing considerable flexibility whilst appearing to remain rooted in an idealized past. The disadvantage was the obvious lack of clarity and the almost inevitable delays, especially as both law and judicial procedure adopted written forms during early modernity. Delay could soften the process, at least outside criminal proceedings, by allowing more time for compromise. Consensus also had theological roots. Final judgement was reserved for God, while the perceived imperfections of earthly existence encouraged an emphasis on ‘fairness’ (
Billigkeit
), rather than abstract justice according to unambiguous law (
Gerechtigkeit
). In short, participants usually accepted that human life was complex and that both parties shared the blame in many disputes.
³

Forms of Law

Much of the Frankish legal system appears superficially modern. It derived in part from ninth-century readings of ancient Roman practice encouraging Carolingian kings to assert the authoritarian ideal of themselves as chief magistrate and law-giver, and to issue written capitularies (see
Plate 29
). In fact, these were legally binding guidelines relating to specific activities like managing royal farms, rather than comprehensive codes. They were usually issued after consultation with bishops, and (often) counts, and they mixed elements of secular law with moral injunctions for good behaviour.
⁴
They sat alongside a variety of tribal law codes written down by Frankish officials and supposedly embodying the distinctive customs of each of the Empire’s peoples (see
pp. 238–9
). The codes dealt with major moral and social issues, especially relating to property and its uses, and to crimes against people and objects. They listed compensation in the form of fines to be paid to victims and their relatives, as well as punishments for more grievous offences, especially those against the king or church. For example, a code from 797 imposed the death penalty for those resisting conversion or who cremated their dead according to pagan rites. The capitularies and tribal codes stood in loose relationship to manorial law (
Hofrecht
), which governed the manorial economy by upholding lordly control over the manor’s management and its dependent labour. Like the capitularies, manorial law was largely a set of guidelines specifying the choice of crops and timing of planting and harvesting. The natural annual cycle of decisions gradually accumulated further precedents as local ‘wisdoms’ (
Weistümer
) providing further guidance.
⁵

There were two further forms of institutional law. One comprised the rules governing the core activities of the elite and their relations to the monarch: homage, vassalage, fealty, right of counsel, fief-holding and its military and material obligations. As we have seen (
pp. 356–65
), these rules would be interpreted from the twelfth century as feudal law (
Lehensrecht
). Some elements originated in Carolingian capitularies, but much derived from royal diplomas and charters issued by the Ottonians and Salians, conferring special legal privileges outlining the rights, benefits and obligations of the recipients, and more generally by extension also the inhabitants of particular fiefs. Like manorial law, much accumulated over time as recorded precedents, for example the
verdicts (
sententiae
) of royal courts in individual cases. The second form was canon law, comprising the body of written laws and accepted practices governing the structure and operation of the church. Thanks to its greater standardization and wider dissemination, this was the most widely available form of written law. As such, it was the primary focus of legal study and commentary, and it influenced decisions well beyond ecclesiastical matters. Canon law was given greater coherence by a twelfth-century Italian monk called Gratian, but the reception of his
Decretum
was slowed in Germany by the absence of recognized law schools prior to the founding of Prague University in 1348.
⁶

The growth in written law from the eleventh century stemmed from the desire to fix rules and encourage greater consistency of treatment, as well as to accommodate urban growth and the transition from manors to tenancies. Civic law (
Stadtrecht
) developed to enable towns to manage their own affairs as legal corporations. Village law (
Dorfrecht
) followed more slowly by the later fourteenth century for the same purpose. Both forms were linked to written charters regulating specific arrangements applying to each community and its relationship to local lords. Emperors issued four general statutes between 1037 and 1158 regulating vassalage and other aspects of feudal relations. Frederick II’s charters of 1220 and 1231 for the ecclesiastical and secular princes were also part of this development.
⁷
Emperors continued to issue specific laws in response to particular cases, such as Henry III, who imposed the death penalty for poisoning and assassination in Italy, and disinherited children from marriages involving underaged brides.
⁸

Ancient Roman law had never been entirely forgotten, but existed only in limited compendia compiled in the early Middle Ages. Scholars began piecing these together in the 1090s, and their efforts received wider attention with the growing significance of Italian and French law schools across the next century. The main impact was procedural: law did not have to be ‘found’ in each case according to local wisdom, but instead already existed as a universally applicable code. The task of identifying the relevant parts and applying these to the specifics of each case was entrusted to lawyers, in turn further accelerating the expansion of higher education to train these experts. This fundamentally transformed individuals’ relationship to the judicial process. Litigants no longer confronted each other directly, but through their legal
representatives, while the position of judge shifted from arbiter to someone charged with determining guilt and setting appropriate punishment. The growing acceptance of these principles created ‘common law’ (
ius commune
) as a secular competitor to canon law as a universally applicable legal system. Common law gained ground thanks to the need for common rules to allow individual communities to decide cases involving outsiders whose local laws were different to their own. This created a tension between common or Roman law and local custom, especially because the growing practice of recording all kinds of guidelines and decisions made changes and discrepancies increasingly obvious. However, written law long remained primarily a tool against ‘bad custom’ rather than a challenge to tradition.
⁹

The political impact of these changes remained ambiguous. They did not necessarily promote centralization, because judges were required at multiple levels within the nascent corporate society. For example, Italian cities quickly incorporated Roman law into their own judicial systems. The parallel development of civic and village law encouraged the acceptance of communities as possessing the right of self-regulation (
ius statuendi
), which in turn gave shape to the police measures in towns and territories issued to cover activities and situations not legislated for in existing written law (see
pp. 534–8
). Meanwhile, the complementary character of the imperial hierarchy encouraged princely innovation guided by the public-peace legislation from the thirteenth century.