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235

MEDIEVAL TOWNS IN FRANCE AND GERMANY: THEIR ORIGIN AND MUNICIPAL DEVELOPMENT.

BY JAMES BIRCHALL.

CIVIC history as an integral part of the whole record of national life has received but scant attention in England. Mr. Green, the eminent historian, set forth the subject in a brief but vivid sketch in his well-known History of the English People, and his widow has recently taken it up in her Town Life in the Fifteenth Century. Still, it cannot yet be affirmed that English scholars have given to the study of the origin of municipal institutions, and their influence upon the national progress, an attention commensurate with its importance. This is quite the reverse of what has been done on the Continent. There, jurists and historians have been occupied for years in the prosecution of researches into the fundamental elements of the constitutions of the French medieval Communes and the German Free Cities; and, in the absence of authoritative documents, have indulged in learned and ingenious conjectures as to which primitive popular institution formed the germinal cell from which all the various members of the future municipal organisation were developed.

The results of these speculations and prolonged researches by French and German savans are scarcely known in England outside the narrow circle of an interested few. A paper, therefore, in which they are fairly set forth may perhaps modestly claim to possess some

charm of novelty, apart from the unquestioned importance of the subject.

During the first half of the eighteenth century the Abbé Dubos, an able French writer on history and law, held the view that the Roman municipal system survived the barbaric invasions, and that the medieval borough was the offspring of that system. Later on in the century, Bréquigny published his great Collection of the Ordonnances of the Kings of France, which threw much light upon the condition of the communes, but not upon their origin. For some time the ideas of Dubos lay dormant, but in 1815 they were revived by Savigny, and more or less adopted by Thierry, Guizot, Raynouard, Eichhorn, and others, German as well as French.

These scholars inferred that the mention of Consuls, Curia, Senatus, and other terms of Roman civic polity in the documents then at their disposal, pointed to the continuance of Roman municipal government, certainly in the cities of southern Gaul and Germany, and the Rhineland, where Roman influence was strongest, and most probably in other towns where that influence was feeble. This view was advocated by me in a paper on the Old English Borough, published in the 20th volume of our Proceedings; and some writers still adhere to it. But the arguments advanced will not bear impartial analysis; the thousands of documents which have been brought to light within recent years do not confirm the assumptions made on the imperfect knowledge of former times, and it is now generally agreed that the usage of Roman titles in the documents cited, is purely artificial, denoting nothing that has any relationship with the institutions of the Lower Empire, or even pertaining to a municipal body. This is the opinion of Professor Flach, whose great work on the Origins of Ancient France is now in course of publication.

But the stoutest opponent of the theory is Professor Karl Hegel. He published, in 1847, a History of the Constitution of Italian Cities, and followed this up, in 1891, with his Towns and Gilds of the German Folk in the Middle Ages, in both of which he effectually disproved the arguments for a Roman origin, and the works in which they were advanced have now no value except as the earliest researches in the formation of feudalism, and the StatesGeneral.

That Gaul was a land of towns in the sixth century we know from documents of the time; and the opinion of Guizot that Roman municipal institutions survived in Aquitaine and Languedoc until the eighth century may be probably well founded. But while the forms of these institutions imparted to them an appearance of prolonged existence, their vitality, except in the episcopal cities, had departed through causes which will be noticed presently.

These cities retained some show of municipal life, because the diocese did not disappear with the Empire, and all the business of the episcopal domain, as well as of the diocese, centred round the episcopal palace.

This business was transacted by the bishop's ministeriales, who were of various ranks. First came the milites, then the officiales curiæ, or officers of the court attached to the person; and last, simple officiales, or agents who had charge of the rents, dues, and services rendered by the various persons composing the familiacopyholders, men-of-the-body, servitors and bondsmen of every rank and degree. According to the views of Wilhelm Arnold, 1854,* one of the most distinguished of German historians, all these officials and dependants were comprehended in the "Community of the Bishop's

* Verfassungsgeschichte der deutschen Freistädte im Anschluss an die Verfassung d. Stadt Worms. Gotha and Hamburg, 1854.

Manor," or "Familia of St. Peter," and alongside them there existed the "Community of the Old Freemen," who were independent of the lord, and amenable only to the jurisdiction of the imperial functionary-the Count.

Arnold's researches were confined to Ratisbon and the great episcopal cities on the Rhine. During the eighth century the bishops acquired privileges of immunity for the lands of their churches, and the familia not free of these churches then fell entirely under the Hofrecht, or manorial jurisdiction of the bishop. They were no longer cognizable by the public authority. In the tenth century these privileges were enlarged by the concession of Regalian Rights, which conferred sovereign powers upon the bishops, and transferred to their officers the administration of public justice. The Old Freemen were thus brought under the same lord and the same judicial authority as the familia, but in their case the episcopal judge, who had superseded the Count, was virtually an imperial functionary, and administered to them imperial and not manorial justice. This change might have endangered the stability of their freedom had not the rule of ecclesiastical lords in those days been exceptionally mild. It so happened, therefore, that instead of the freemen losing ground, the familia gained, and the common subordination of both to the same lord established a bond which ultimately removed the differences in their judicial position. So far, Arnold incorporated into his theory the opinion expressed forty years before by Professor Karl Friedrich Eichhorn, one of the principal authorities on German constitutional law. But he proceeded further to show that when the Church and the Empire contended about Investiture, and the princes, lay and ecclesiastical, sought to make themselves independent, the cities upheld

* Ueber den Ursprung der städtischen Verfassung in Deutschland. 1815.

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