GERMANY: COLOGNE, FREIBURG, LUBECK, MAGDEBURG

The flourishing Roman city of Cologne (Colonia) on the lower Rhine declined precipitously after its conquest by the Franks in the fifth century. Some commercial and industrial activity remained, and the presence of a bishopric and a cathedral provided an element of continuity.

In 953 Emperor Otto III appointed his younger brother Bruno to be Duke of Lothringen and Archbishop of Cologne. Bruno enclosed the merchants' suburban wik within the city's fortifications. He and his successors in the late tenth and early eleventh centuries established markets,

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tolls, and a mint. By 1074 the merchants and artisans were sufficiently strong and united to rise up against the archbishop, who nevertheless was able to mobilize troops from outside to suppress the revolt. In 1106, however, another uprising confirmed the establishment of an independent municipal government and a system of urban law, which, indeed, was referred to frequently in the twelfth century as jus colonzensis ("Cologne law") and occasionally as jus civils ("law of the city").

The Archbishop of Cologne remained an important figure in the life of the city, and he continued to be the ruler of the entire Duchy of Lothringen and usually also of Westphalia. Nevertheless, his political and governmental role within the city was greatly reduced in the twelfth century, when it was supplemented and to a certain extent replaced by a system of government by elected officials acting within various patrician bodies.

Cologne was unique in being organized into self-governing, secular parish communities (Sondergemeinden), sometimes called communes, twelve in number, each of which normally had two magistrates elected (probably annually) by the members of the parish community. Past, present, and candidate magistrates formed a fraternity or guild (Amdeutegenossenschaft, "fellowship of officials"), which played an important part in urban affairs. One could become a member of the parish community by acquiring heritable property in the parish, registering it, and paying a fee. Members were obliged to help and defend a fellow member against anyone who might make a charge against him. Claims and defenses concerning property within the parish were to be made in the civil court of the parish, with right of appeal to the full assembly of the guild of parish magistrates. Minor crimes and offenses against the parish community were to be tried in the criminal court of the parish, with accusations brought by a committee of the guild of parish magistrates selected to investigate allegations of crimes or offenses. If a parish member refused to respond to accusations made against him in the parish court, he was to be expelled from the community. Anyone who attempted to break the regulations of the community was to suffer eternal punishment in the company of the devil and his angels.

Among the most important functions of the parish was the registration of land transfers and mortgages. An early entry in one of the parish registers describes the procedure whereby Heinrich Longus purchased a house from a certain Gottfried. The act of purchase and sale was performed "before the citizens and the parish magistrates and before the judges and rectors." Then Heinrich paid the citizens and judges the customary fees for witnessing the transaction and for its registration. Anyone who doubted the fact of the registration was specifically instructed to consult the register (Schrein) of the judges, where he would discover the truth.

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transferred to Gottfried's son and heir three marks in the presence of the city assessors (scabini, Schoeffen), thus securing himself and his heirs against any claims by the heirs of the seller.

The city assessors' tasks, however, included much more than witnessing transactions and keeping registers of them. Chiefly, the assessors sat as lay judges, either in the high court (Hochgericht) as a body, together with a presiding professional judge, or else, in minor cases, individually. In the high court they heard cases in first instance as well as civil and criminal appeals from the parish magistrates' courts. They declared the law and gave judgment, which the professional judge executed. Literally, they "found" the judgment; they were said to represent the accumulated knowledge of the customary law. When one assessor sat alone on a case, he submitted the decision to the other assessors for their consent.

There were approximately twenty-five assessors actively serving at any one time. However, past assessors and candidate assessors were also included among the "brothers" (fratres scabinorum), who, like the parish magistrates, constituted a guild. Although they swore an oath of loyalty to the archibishop, they were also bound by oath to declare the law and find judgment impartially and truly. The reports of their cases include decisions against the interests of the archbishop as well as decisions against the interests of the merchants of Cologne. Thus in a number of twelfth-century cases in which the archbishop, acting through his chamberlain, claimed that various members of various parish communities were members of the archbishop's household (familia) and hence subject to certain taxes collected by the chamberlain, the assessors decided against the chamberlain. And in 1103, according to the earliest surviving document mentioning the assessors, in a case brought by the merchants of Liege and Huy against the merchants of Cologne to enforce privileges granted by the former Archbishop of Cologne, the assessors decided in favor of the foreign merchants.

In addition to their judicial functions the assessors exercised many of the powers of a city council, and in that context they were often called not only assessors (scabini) but also elders (senatores). Records of Cologne in the twelfth century show the scabini or senatores planning and approving the expansion of the city walls, making gifts of city land for charitable purposes, administering town property (such as the meat- and fish-sellers' stands, which belonged to the town rather than to a guild), and even on three occasions making treaties with other cities granting various rights to their merchants -- without the confirmation of the archbishop.

In addition to the parish magistrates and the scabini or senatores, a third guild ruled Cologne, the Richerzeche, which literally meant "tavern of the rich." Two members of the Richerzeche were annually elected to be Burgermeister ("mayors"), one of whom had to be a scabinus; and the

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Richerzeche itself consisted of past, present, and candidate mayors. Its principal task was to regulate craft guilds and markets as well as terms of trade (including the prices) of agricultural products, wine, and beer. The Richerzeche (or Burgermelster) held a court at the three main marketplaces in order to police the observance of its ordinances. The Richerzeche also heard appeals from decisions of the civil courts of the parish magistrates.

The municipal government of Cologne was thoroughly patrician in the twelfth century. The only check on patrician authority came from the archbishop, who appointed two chief officials: one, called the Burggraf ("city count"), presided over the assessors in judicial proceedings of the high court and was, in addition, the military head of the city and had authority over public streets and places; the other, called the Stadtvogt ("town prefect"), presided over certain general sessions of the high court. In fact, the authority of these two officials, and of the archbishop himself, became subordinate to that of the guilds of assessors, mayors, and parish magistrates.

Scholars have debated the origin of municipal government in Cologne: whether its primary source was a peace movement, a revolutionary commune, a territorial community, or the merchant guild. It could have been any one of these, or a combination of them, without affecting the larger question of the relation of Cologne municipal government and municipal law to the great transformation of Europe that occurred at the very time when Cologne was establishing its political and legal identity. The separation of the city from the archdiocese and the duchy that surrounded it, the establishment of its own secular urban institutions, and above all, the establishment of its own political and legal history -- that is, historical consciousness, or sense of organic development and growth -- were made possible by the fact that the church itself had declared the dualism of ecclesiastical and secular authorities and had supported the pluralism of secular authorities, and, further, by the fact that the idea of the gradual reformation of the world through law had become a leading concept and a governing motive in both the ecclesiastical and the secular spheres. These revolutionary changes in people's minds and hearts were an essential part of the revolutionary changes in political, economic, and social life that took place throughout Europe in the late eleventh and the twelfth centuries. The founding of self-governing cities and of a new type of law, urban law, was an important expression of these changes -- in Cologne as elsewhere.

Cologne was an exception to the usual method of forming towns in the

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German duchies___ the issuance of charters by emperors and princes. Sometimes such charters were

given by the emperor to appease rebellious townsmen; thus the people of Worms formed a conjuratto against their bishop in 1073 and were granted liberties by Emperor Henry IV.

The example of Freiburg, like that of Saint-Omer, tends to support the thesis of Pirenne, which is shared by Stephenson, that merchants played the leading role in the formation of cities. However, even in those cities, and in others that were similarly formed, the merchants were soon required to share their power with other classes or elites -- with craft guilds, with nobility (including bishops), and often with princes, kings, and emperors.

Lubeck, a Baltic port, was founded in 1143 by Count Adolf II of Holstein, who invited residents of Westphalia, Flanders, and Frisia to settle there. In 1158 the town was taken over by Henry the Lion, the Welf Duke of Saxony, who established a mint and tolls and gave the townspeople special privileges, including a form of government borrowed from the town of Soest. (Henry also founded Munich and Braunschweig.) In 1181 Emperor Frederick Barbarossa seized Lubeck and later gave it a charter of liberties, including certain rights of self- -375 government and exemption of merchants from all tolls throughout the Duchy of Saxony. By the mid. fourteenth CenturyLubeck had become the wealthiest city in the north. 24_

Perhaps the most dramatic illustration of the birth and growth of a system of urban law within the Western legal tradition is the process by which the laws of more than a dozen major German cities were formally received in the hundreds of new cities that were founded between the twelfth and fourteenth centuries. For example, the laws of Lubeck were received in forty-three cities, those of Frankfurt in forty-nine, of Hamburg in four, of Freiburg in nineteen, of Munich in thirteen, of Bremen in two, of Braunschweig in three. Most important, however, was the dissemination of the laws of Magdeburg, a city on the river Elbe, to over eighty new cities. ²⁵ The Magdeburger Recht became the predominant basis of written law for central and eastern Europe.

It was not, however, the original Magdeburger Recht, or Lubecker Recht, or Frankfurter Recht that each new city within the particular "legal circle" (Rechtskreis) received, but rather the laws of the "mother city" as they existed at the time of the reception. Typically, the lord of the new "daughter city" would grant it, say, the Magdeburger Recht, and then the city authorities would send to Magdeburg, whose leading judicial officers, the assessors or Schoeffen, would prepare a new edition of the then prevailing Magdeburg laws, or of those parts of them that were requested -- dealing, for example, with the city government, the administration of justice, the guilds, and civil and criminal law. Some cities sent several times for updated laws. Also, the courts of the daughter city would frequently submit individual cases to the assessors of the mother city, and would receive declarations of the rules applicable to the particular fact situations. Thus one can see reflected in the laws and decisions of the younger cities the organic growth of the original Magdeburger Recht or Lubecker Recht or other "mother law" (Mutterrecht). ²⁶

Magdeburg had for centuries been a center for trade with the Slavs. In 968 it became an archbishopric. Later it served as an important military base for attacks upon the Slavs. It was not until the early 1100s, however, that Magdeburg developed its own continuous governmental and legal institutions and its own civic consciousness. In 1129 there was an armed uprising of the citizenry against the archbishop, which he successfully suppressed; in that year also the phrase maiores civitates ("leading citizens") first appeared in a Magdeburg document. In the 1160s references appeared to the "assessors and judges of the city of Magdeburg." Also in this period the guilds played an important role; in 1183 their status was confirmed. In the same year reference to the assessors' court first appeared. Finally in 1188 Archbishop Wichmann reformed the city's government, retaining the hereditary ruler (Burggraf) and

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hereditary deputy ruler (Schultheiss), but establishing in addition a twelve-man council consisting of eleven life-tenured assessors and the Schultheiss. The archbishop, who ruled the entire archdiocese, retained ultimate control over the city, although it kept its autonomy in the administration of justice, taxation, and related matters. The "bench" of assessors (Schoeffenbank) filled vacancies in its own number by appointments from among the leading families.

In connection with his reform of 1188, Archbishop Wichmann promulgated the first recorded legislation of Magdeburg, a document consisting of nine articles. These did not purport to be the whole Magdeburg law; they seem to have been, rather, a resolution of some major disputed questions, based perhaps on prior judicial decisions. For example, traditional procedural technicalities were eliminated from oath-taking in certain types of' cases. The liability of a father for the wounding or killing of a person by his son was eliminated, provided the father could prove by the testimony of six worthy men that he had not been present or, if present, had not participated in the crime. The same rule was extended to persons other than the father. One provision dealt with the time within which a claim must be made in case of spoliation, wounding, or killing within or outside the city. Another article allowed persons absent on pilgrimage or pressing business to delay bringing an action in the court of the Burggraf or the Schultheiss. Article 7 provided that in a suit between a citizen and a stranger, justice should be done without delay and the case decided on the same day that it was moved. Article 8 gave general jurisdiction over all kinds of cases, both of citizens and strangers, to the court of assessors, with the proviso that if the assessors were absent, justice was to be done by the Burggraf or Schultheiss. Finally, article 9 provided, "in order that city law may not suffer harm," that anyone who disrupted the assembly of citizens by shouting or inordinate or foolish speech should be "punished severely by the citizens, so that no other will dare to do such." ²⁷

These nine articles of 1188 were, as far as is known, the first written collection of rules of the Magdeburg law; they presupposed the existence of a large body of unwritten rules. Indeed, Magdeburg customary law had already been formally adopted by some other cities and towns in the middle 1100s. The growth of Magdeburg law in the subsequent century and a half can be traced by examining the sets of rules sent by the Magdeburg assessors to Breslau in 1261 and to Gorlitz in 1304.

The Breslau law contained 64 articles and the Gorlitz law 140 articles. In the Gorlitz law, certain fields, such as the sale of goods, ownership, and inheritance, were treated in far greater detail than in the Breslau law. The provisions on criminal law and evidence were also much more detailed. Moreover, the Magdeburg Schoeffen had not simply sent the 64 Breslau articles to Gorlitz in their original form, with other articles

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appended or inserted; rather, they had consciously rationalized and changed the earlier collection. Separate articles of the earlier law had sometimes been combined into a more comprehensive article. Some articles that were out of place had been rearranged. Still other articles had been expanded. Thus Article 8 of the Gorlitz law begins by repeating Article 11 of the Breslau law, which dealt with the punishment applicable to a person caught after the victim of a wounding had raised the hue and cry; but then Article 8 goes on to state that more drastic measures may be taken if the injury was by a knife and the culprit was caught in the act. 28 -This is an example of the enlargement of the original article in the light of experience.

Most of the 140 articles of the Gorlitz law of 1304 were taken either from the Breslau law (as supplemented) or from the Sachsenspiegel, a body of legal rules drawn up about 1221 by a Saxon jurist, which came to form an important part of what might be called in a loose sense the common law of Germany. (Ten of the original 64 Breslau articles were also drawn from the Sachsenspiegel.) Twenty- five of the Gorlitz articles were wholly new: six of these were interspersed throughout the law and nineteen were added at the end.

The 64 articles of the original Breslau laws of 1261 were themselves supplemented by an additional 24 articles received from Magdeburg in 1283 and by another 23 articles received in 1295. These supplementary provisions seem to have been, for the most part, clarifications of earlier provisions.

Thus the law that spread from Madgeburg to Breslau and Gorlitz, as well as to more than eighty other cities of Brandenburg, Silesia, Bohemia, Poland, and other parts of central and eastern Europe, underwent a conscious evolution, an organic development or growth. Its chief formal source was the "sayings" (Spruche) of the Magdeburg assessors (Schoeffen) that is, their rulings in cases brought to them for decision; these Schoeffenspruche, however, were not isolated ad hoc decisions but an integral part of a body of customary law, which were remembered, written down, and later collected and transmitted as codices.

The conscious growth of the law was closely connected with its systematic, or unified, character. The Breslau law was finally edited in the mid-fourteenth century as a systematic body of law in five books, containing a table of 465 articles. ²⁹ The first book dealt principally with the election and installation of city councillors, the rights and duties of councillors, and the publicity and validity of their acts. The second book dealt with the judicial organization and procedure, including that of the assessors and other judges, the selection of assessors and other judges, their remuneration, the time and place of their sessions, the jurisdiction of the various courts (especially in criminal matters and inheritance), requirements concerning court fees, distraint, settlements, arbitration,

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duels, representation in court by another, and many other procedural matters. The third book dealt with types of complaints: woundings and homicides, which were remediable by civil action; other violations of rights, including embezzlement, perjury, usury, fraud, counterfeiting; debts, including the liability of heirs for the debts of the decedent; payments for services; and various other types of actions. Various kinds of proof required to support various kinds of actions were specified. Money obligations were also provided for, including pledge, mortgage, and sworn debts; and the remedies included levying against property, arrest of a debtor who had fled, and ultimately, outlawry. The fourth book contained family laws, including a substantial portion of the law relating to rights of family members in the hereditary property of the family (Erbgut). The first part of the fourth book dealt with dowry, with marriage and inheritance contracts, and with the rights of the head of the household, the wife, and the children to dispose of various kinds of family property. The second part dealt with inheritance law and with guardianship. The fifth book, containing 23 articles, seems to have been an unfinished collection of important miscellaneous rules of law and decisions that did no t fit under the rubrics of the first four books.

The "systematic assessors' law of Breslau- Magdeburg" (as this body of law of the mid-fourteenth century came to be called) was not only much more detailed but also much more comprehensive -­much more systematic -- than the Gorlitz law of 1304, which, in turn, had been more detailed, more comprehensive, and more systematic than the first Breslau law of 1261. All three were derived from the continually developing system of law within Magdeburg itself. Incidentally, the Breslau and Gorlitz versions of Magdeburg law, like daughter laws of other mother cities, were themselves transmitted to other new cities and towns, which thus became "granddaughter" cities of Magdeburg. Indeed, Breslau law became the mother law of the entire kingdom of Bohemia.

The Magdeburg law made a fundamental distinction between law in the large sense, Recht, which was understood as the general framework of law ("right"), and law in the more specific sense of an enacted rule or particular usage, which was called Willekor (from the German words for "will" and "choose"). Recht contained the general principles or rights that are given by the nature of social life itself and ultimately by divine providence; it was a mixture of customary law and natural law. Willekor was either an enactment or decree of the civil authorities or a local usage accepted by them; sometimes it was

called buyrkor ("civil law"), which meant literally either "the choice of the city" or "the choice of the citizens." Both the Breslau law of 1261 and that of a century later started with the same provision: "according to Willekor" the Magdeburg Recht was to apply in Breslau. In another section of the later law -- a section not

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contained in the earlier law____ the possibility of a conflict between Recht and buyrkor was

recognized. This section provided that the city council (Rat) had power to decide questions raised by any person to whom the councillors gave the right to speak in the city assembly, and this provision, it was stated, the ( Magdeburg) assessors "proclaim as a civil law (buyrkor) and not as [a matter of] right (Recht)."

Yet it was the Recht that gave the councillors many of their powers to make positive law. For example, to the Recht were attributed the powers of the councillors to regulate weights and measures, to regulate the sale of food and other goods, to set prices, and to establish the penalties applicable to those who violated their regulations. The modern German word for a specific statute, Gesetz, did not appear in the Magdeburg law, but the verb gesetzt was used to refer to the activity of the city authorities in "setting" regulations. For example, the city council was given power to punish the selling of goods at prices higher than those set (gesetzt) according to the decree (Willekor) of the city authorities.

Of importance also was the emphasis of the Magdeburg law, as reflected in its Breslau versions, on property law and commercial law. It was provided that a person could pledge his retail shop, his butcher shop, or other business premises as security for a debt. One who held such a place of business was "deemed to be a holder of heritable property or a propertied man." He could sell it or devise it by will. In addition, merchants (as well as pilgrims) could not be sued when they were away from the town. Of particular interest were the provisions concerning the heir's liability for the debts of the decedent: these were said to be contrary to the law stated by Gratian. Thus Magdeburg urban law differed both from feudal law and from canon law.