Heart of Europe: A History of the Roman Empire (108 page)

The famous
Mirror of the Saxons
(
Sachsenspiegel
) was written around 1224 by Eike von Repkow, a judge from the Magdeburg area, who compiled a wide-ranging set of precedents, customs and pieces of written law. His text was translated into the south German dialect and influenced a similar Swabian compendium (
Schwabenspiegel
) appearing in 1275. Both attracted considerable historical attention, but they were really partisan attempts to describe how the Empire worked rather than actual law codes. These only appeared at the start of the fifteenth century, for example in the Tirol in 1404, and represented a new, territorial form of law (
Landrecht
) drawn up by princes in consultation with their Estates in response to complaints at abuses and inconsistencies. The spread of law codes was facilitated by the growing number of advisors trained in secular, especially Roman, law, who increasingly displaced the clerics previously staffing princely chancelleries. The
process of fixing practice in writing accelerated with the advent of printing, which allowed the swift dissemination of multiple copies throughout a territory. Territorial legislation became increasingly ambitious, merging with police measures to cover wider aspects of daily life. For example, the bishopric of Bamberg adopted a uniform criminal code across its territory in 1506. The framers of these codes clung to their original intention of producing a definitive document based on principles considered timeless and unchanging, whilst still protecting local and particular rights. These conflicting aims were never satisfactorily reconciled, while new circumstances added to pressures for revisions. Tirol had replaced its first general code three times by 1474.

The Impact of Written Law

The Reformation renewed the moral impulse behind legislation and encouraged attempts to derive scriptural law (
ius scripturae
) from the Bible as a blueprint for a godly society. Luther and other Protestant theologians abandoned this after radicalization of the project during the Peasants War (see
pp. 592–4
). So-called ‘Godly Law’ persisted, but was slowly absorbed within more secular ideas of Natural Law as common underlying aspects of human existence, exemplified by appeals to ‘natural justice’. This process intensified the engagement with Roman law, already gathering pace in Germany since the late fifteenth century when Humanists rejected the earlier, twelfth-century articulation of ancient codes as incomplete, whilst simultaneously abandoning the medieval scholastic practice of trying to harmonize Roman precepts with Christianity. Instead, Humanists now sought to reconstruct the ‘pure’ original Roman version.
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Their scholarly project had direct practical application, because the growth of territorial law codes increased the attraction of a single benchmark to resolve anomalies and to judge complex cases involving different communities. Roman legal concepts were adopted in the procedural ordinances prepared for the two supreme courts established by imperial reform in the 1490s, as well as the
Carolina
penal code of 1532, and the imperial police ordinances of 1530, 1548 and 1577. Meanwhile, the legally binding decisions of the Reichstag and other imperial institutions were published after 1501 in a semi-official series
that ran to over 40 editions. Together, these printed codes and ordinances influenced widespread revision of territorial laws and judicial practice, while the norms and procedures of imperial law were further disseminated through their place in the curricula of the new universities established to train territorial and local officials. In practice, there was still considerable scope for custom to plug gaps in territorial and imperial law, especially as popular ideals of ‘fairness’ enabled custom to be invoked to justify what were often innovatory measures responding to new circumstances.
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The eighteenth century saw the abandonment of earlier attempts to reconcile positive written law with idealized underlying systems of Godly or Natural Law. Instead, law was to be rationalized according to the Enlightened belief in human reason, primarily by removing inconsistencies between local and territorial practice. This explicitly centralized both law and judicial practice, since it involved curbing local initiative to ensure that such inconsistencies did not re-emerge. Enlightened codification was potentially revolutionary, because it moved legitimacy from theology and towards secular ideals of citizenship. The purpose of law was increasingly understood as guaranteeing individual human rights to life and property. Progress was slow, because rationalization encountered the same difficulties as earlier attempts at standardization. For example, Frederick William I abandoned initial attempts to codify Prussia’s laws. His son renewed the attempt in 1746, but work stalled when Prussia’s chief justice died in 1755. A third attempt was made after 1780, culminating in the promulgation of the famous General Law of the Prussian Lands (
Allgemeines Landrecht
) in 1794. The use of the plural ‘lands’ for the components of the Prussian monarchy indicates the continued force of tradition, which extended to preserving the nobility’s corporate status.
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Austria separated its administration and judiciary only in 1749, but each province continued to use different laws. General criminal codes were issued in 1768 and 1787, but the process of codifying the monarchy’s legal systems was abandoned in 1766 after 13 years of work, because Joseph II realized a uniform code would require a similarly uniform judicial structure, which, at that point, seemed beyond the realm of possibility. Work resumed once he changed his mind in 1780, but it took another 31 years to complete.
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Similar initiatives in other territories either failed, halted after partial codification, or simply drew
together existing practice in a single document without addressing inconsistencies. In short, the development of law mirrored that of the Empire generally in that it created multiple, partially conflicting and overlapping systems arranged in a complex hierarchy that defied rational logic.
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JURIDIFICATION

Conflict Resolution

It is characteristic of the Empire that the transition to written law consolidated a decentralized form of conflict resolution, rather than a centralized judiciary deciding right from wrong according to abstract principles. In doing so, it ‘juridified’ much earlier forms of conflict resolution by reshaping them along more bureaucratic and institutional lines without losing the emphasis on preserving peace through workable compromises. Like other aspects of the Empire’s corporate society, these practices were found across the socio-political hierarchy, establishing attitudes and behaviours that persisted even after individual territories slipped beyond the direct reach of most imperial institutions.

Our sources are sparse for much of the Empire’s medieval legal history, and mostly present what their writers thought justice
should
be rather than how it was actually applied. For its first five centuries, the Empire’s inhabitants were less concerned with identifying which law had been broken than determining who had been wronged and how. Judgements might refer to specific documents, like the charters cited in Otto II’s ruling on a property dispute in favour of the abbot of San Vincenzo on the Volturno in 981.
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The authorities also recognized that writing was necessary to record decisions and could be produced to challenge earlier verdicts. However, decisions usually invoked law only as a generality underpinning their authority. The key questions remained the status of those involved and the jurisdiction they fell under, while practical issues predominated over learned legal debate.

Medieval chronicles record so many disputes that it is easy to get lost in the detail of individual cases. Nonetheless, it is possible to detect three recurring issues. One concerned perceived failures relating to the hierarchy of rights and responsibilities, including the duty of those of
higher status to protect the powerless, and the especially grievous charge of felony, defined as a vassal’s improper behaviour towards a superior lord. A key element in the latter was infidelity, which involved a breach of loyalty, such as abandoning a lord in battle or failing to follow a summons, especially if called repeatedly. Other serious felonies included disturbing the peace through excessive force, or entering into relations injurious or offensive to one’s overlord, for instance by accepting vassalage from another lord without permission. Rebellion was defined as open defiance or attacks on a lord’s friends or clients. Felony amongst immediate lords included actions undermining the
honor imperii
, such as those of Balderich, who was removed from his post as margrave of Friaul in 828 for neglecting frontier defence against the Bulgarians.
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A second category involved disputes about status and honour, which defined the relationship of individuals and communities to the broader socio-political order. This type of conflict was pronounced in periods of rapid socio-economic change, notably the later eleventh to twelfth century, and again in the later fourteenth and later fifteenth centuries. Disagreements over jurisdictions formed the third category and were endemic to the growth of a denser, more complex hierarchy of lords and communities. Such disputes involved access to resources, the exercise of mint, toll and tax rights, as well as judicial powers themselves. These last two categories of dispute reflected the local and personal character of justice for most of the Empire’s history. Jurisdiction was determined by the social-legal status of the parties involved, varying not just between major corporate social groups like clergy, nobility and commons, but also according to the specific character of the litigants’ local rights. Late medieval police regulation and early modern territorial law incorporated military personnel, courtiers, palace servants, public officials, university staff and a host of others as groups enjoying distinct legal status. The nature of the offence provided another variable, determining whether a case should be heard before civil, ecclesiastical, feudal or some other kind of tribunal. Complex cases often made it difficult to decide which court or law applied.

The Empire’s legal history is essentially a story of delineating these responsibilities and aligning them with the evolving status hierarchy, whilst sustaining consultative processes and collective enforcement of decisions. Justice was already decentralized and local under the
Carolingians, something that is scarcely surprising given the population’s dispersal over a wide area with poor communications. In the ninth century, counts handled secular cases within their counties, acting as judges (
Schöffen
) who both passed and enforced verdicts (
placita
). The counts’ judicial function declined as their authority shifted towards hereditary lordship from the tenth century, and there was no direct continuity between the Carolingian county structure and the territorial superior jurisdictions that emerged in the thirteenth century (see
pp. 365–77
). One factor in this change was the Ottonians’ grant of immunities from comital jurisdiction to the inhabitants of episcopal towns. Another was the practice of abbots and bishops to issue their own guidelines for the dependent populations of their benefices.

The Ottonians continued the Carolingian ideal of the king as chief magistrate and their law court continued to take precedence wherever it went during the monarch’s progress around the realm. However, local jurisdiction was permanent and (increasingly) hereditary, whereas royal judicial authority remained itinerant and by the twelfth century related to a monarchy which was clearly elective.
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The king’s real role was to embody idealized justice through exemplary action in serious cases, with a secondary function to intervene if lesser authorities failed to resolve problems satisfactorily. Kings retained considerable initiative, especially over deciding how and when to intervene, as well as the prestige to annul local decisions by, for example, claiming they were based on ‘bad custom’. Kings could also transfer custom from one area to another: Henry III rejected a complaint from some Bohemians that he was breaking agreements made by one of his predecessors by arguing that every king added new laws.

However, kings were rarely able to decide weighty matters unilaterally, because they were expected to be guided by ‘good counsel’. Occasionally, tenth-and early eleventh-century kings overruled grumbling lords, but usually they favoured consensus, since verdicts generally considered just stood a better chance of being accepted and enforced.
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For this reason, royal court verdicts were signed by all who had participated in making them. This practice was replicated in courts chaired by dukes, counts and other lesser magistrates. Wrongdoers were expected to provide
satisfactio
commensurate with the
offensio
they had caused. For much of the early Middle Ages, redress was often in the form of material
compensatio
. The authorities’ role was to oversee
and adjudicate this process, ensuring that perpetrator and victim agreed ‘reasonable’ terms. Morality provided certain guidelines, notably that the ‘poor and defenceless’ were not to suffer, nor should a weaker party be crushed entirely, even if in the wrong. How this applied in practice was another matter.

Felony and Infidelity

Cases involving felony and infidelity were the ones that really mattered to the Empire’s highly competitive elite, because no lord could allow affronts to go unpunished without losing face. Prior to the emergence of Estates society in the eleventh century, honour was reserved to the free minority who alone were considered fully responsible for their actions, entitling them both to be rewarded with respect for good behaviour and to be punished for misdemeanours. However, contemporaries recognized that a free person’s disobedience could be a reasonable protest at a perceived injustice, for example a lord’s neglect of his vassals’ legal rights. This imparted a similar dynamic to medieval disputes within the elite as would be displayed in popular unrest after the high Middle Ages: protest was a way to oblige authorities to change their behaviour or provide redress. At all social levels, most disputes involved posturing, as the interested parties mixed symbolic assertions of the legitimacy of their case with demonstrations of their material power, including the controlled use of violence. The aim was to rally support whilst undermining their opponent’s position. There were broadly understood stages of escalation, with higher authorities usually only becoming involved once a cycle of reprisals had deepened into a longer-running feud, by which time it was often difficult to distinguish ‘right’ from ‘wrong’.
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