CONSTITUTIONAL CHARACTER

The third major feature of the system of urban law was its constitutional character. The word "constitutionalism" was invented in the late

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eighteenth or early nineteenth century to refer chiefly to the American doctrine of the supremacy of the written constitution over enacted laws.

1. Urban law was founded, in a great many instances, on written charters, and these were charters both of governmental organization and of civil rights and liberties. They were, in effect, the first modern written constitutions. Even when there was no written charter, the city or town was considered to have a fundamental law which established its governmental organization and the basic rights and liberties of its citizens.

2. The system of governmental organization which was established by the charters -- or without charters -- was similar in some significant ways to contemporary systems of constitutional government: the urban governments were limited in their powers; they were often divided into executive, legislative, and judicial branches, which exercised certain restraints upon one another; there were periodic elections of officers; in many places judges were to serve out their terms of office on good behavior or until recalled by the citizens; the laws were published and collections of laws were issued.

3. The civil rights granted by urban law characteristically included a rational trial procedure, with judgment by peers rather than proof by ordeal or trial by combat. There were to be no arbitrary arrests and no imprisonment without legal process. Body attachment for debt was prohibited. Types of punishment were limited. In theory, rich and poor were to be judged alike. Citizens had the right to bear arms. They had the right to vote. Immigrants were to be granted the same rights as citizens after residence for a year and a day. Merchant strangers were to have rights equal to those of merchant citizens.

4. Civil liberties characteristically included exemption from many feudal services and taxes, and the strict limitation of many others. In addition, they often included restrictions upon royal prerogatives: the king, for example, would agree to accept a fixed tax to be paid by the city or town and would be forbidden to impose forced loans. Above all, the principle was generally established that citizens' obligations would be

396- specified in advance, and that they could retain everything they acquired that was not subject to such specific obligations.

5. The constitutional law of civil rights and liberties included rights and liberties connected with popular participation in urban government. This, in turn, was connected with the constitutional theory, never fully accepted but never fully rejected, that political power was ultimately vested in the whole body of citizens.

Although the forms of government of European cities were quite diverse in nature, there were certain common patterns. A very large proportion of newly founded cities and towns were governed by popular assemblies of all the citizens, whose consent was required for election of officials and for introduction of new laws. In the course of the twelfth and thirteenth centuries, however, there was a strong tendency throughout Europe for the popular assembly to be replaced by a council.

At first, executive officers were elected for short terms. In many places, however, there was a strong tendency toward concentration of executive power. In some Italian cities the term of office of the podesta was extended from six months or a year to longer terms, and finally, in some places, the office was granted for life. In other cities, an oligarchy of great merchants came to dominate the executive. Thus in twelfthcentury Venice, the Doge and the Little Council, consisting of six councillors, had full executive power, while the Doge and a Collegio, consisting of 26 heads of departments, initiated legislation in the 120-member Senate of the 480-member Great Council. However, in the thirteenth century the Doge and Little Council as well as the Collegio became puppets of the Grandi (the "great ones"), and the term popolo ("the people"), which had once referred to the sworn association of all citizens, came to refer (in Venice and many other places) to a people excluded from the government and often hostile to it.

Popular participation in urban government in the late eleventh and twelfth centuries extended also to the judiciary. Certain townspeople -- called Schoeffen in Germany, echevins in the Netherlands and northern France, consules in Italy-were chosen or elected to act as popular judges. In Venice a Council of Forty, or Tribunal, was selected from the Great Council to conduct judicial business. In other places, however, the judges were professional jurists.

In England, even though the communal movement was weaker and the boroughs more dependent on the crown and less democratic in form

-397- of government than was the case in Italy, Germany, Flanders, and parts of France, borough officials were often elected. The citizens of London acquired the right to elect their sheriffs as well as a justiciar in 1131, and their mayor in 1231.