THE LAW OF THE PRINCIPALITIES
The relative weakness of German imperial law in the twelfth and thirteenth centuries and thereafter, in comparison with the royal law of Sicily, England, and France, was balanced by the growing strength of the law of the individual German territorial duchies and other principalities that composed the empire in the north.
While imperial financial and judicial institutions remained comparatively primitive, the central financial and judicial institutions of the various principalities underwent substantial development. While the growth of imperial officialdom fell behind that of royal officialdom in other countries, the growth of officialdom in the various principalities was impressive. While imperial-505
power to enforce its legislation remained relatively backward by general European standards, the legislative power of the various principalities did not. The widespread view, based largely on the weakness of imperial institutions, that there was a general disintegration of government and law in Germany in the thirteenth century and thereafter is contradicted by the fact that in the principalities central institutions were being strengthened. In the various Lander the German tribes and clans
("stems") experienced a transformation of political and legal institutions, a systematization and rationalization of government and law, in the two centuries after the Papal Revolution, parallel to that experienced by the tribes and clans in the various kingdoms elsewhere in Western Christendom. In the words of one of the leading historians of this period, there was in Germany as elsewhere "a process of reconstruction which was so strong as to merit the name of a constitutional revolution." 40
The rise of the territorial principalities in Germany, which began "dimly but discernibly" in the late eleventh and early twelfth centuries, 4Lwas given an extraordinary impetus in the middle and late twelfth century during the reign of Frederick I (Barbarossa).
This was a direct consequence of the Papal Revolution. In his rivalry with and emulation of the papal power, and in his interaction with it and with other secular powers, the emperor needed peace and stability in his German territories. He needed to have the princes of the empire control their own subjects within their respective domains. Moreover, he had to depend not only on the secular princes but also on the ecclesiastical princes, who as bishops owed their appointment and their allegiance to the pope as well as the emperor. Frederick, in setting up the imperial order of princes, established direct control by them over the territories in which they were situated. Both the secular princes, who then numbered sixteen, and the ecclesiastical princes, who then numbered ninety, were to hold their territories of the emperor as his vassals, but they were to be supreme over the entire population within their respective territorial jurisdictions. The kingship, as Mitteis has put it, was cut off from the people by the nobility within each territory. 42 When Frederick established the Duchy of Austria as an independent power, he expressly declared that "no person great or small within the regime of his duchy shall presume to exercise any justice without the consent or permission of the duke." 43 As Geoffrey Barraclough says, the main point of this provision was the subjection of the various magnates of Austria to the authority of the duke. 44 Nevertheless, the emperor was also restricted. Frederick needed to subject the lesser nobility to control and he could not do it himself. His grandson Frederick II carried this principle to its conclusion in the Treaty with the Ecclesiastical Princes of 1220 and the Statute in Favor of the Princes of 1232, in which he guaranteed to the princes, both ecclesiastical and secular, their powers against all others506- within their territories. The emperor forbade anyone to interfere in various ways with the "territory or jurisdiction" of the princes and restricted the powers of imperial officers over such territorial rights as tolls and coinage.
45The princely power in the German territories manifested itself in governmental and legal institutions similar to those that had been developed first by the princely power of the papacy and later by the princely power of the secular kingdoms of Sicily, England, Normandy, and France: a treasury, a judiciary, a chancery, and other departments of government; civil and criminal and other branches of law; adjudication, legislation, and other institutional processes of legal development.
Of all the German principalities, the Duchy of Bavaria was the most powerful and the most advanced in governmental and legal institutions in the late twelfth and early thirteenth centuries. From 1154 to 1180 it was ruled by Frederick Barbarossa's cousin and rival, Henry the Lion, who also ruled Saxony; Henry played a major part in the transformation of Bavaria from a tribal and feudal polity to a territorial polity. This he did in considerable part by acquiring the judicial and other powers of the local lords who ruled over the counties of his territories. 46 Each count held the power of high justice (Blutbann, "blood justice") by grant from the emperor. The count was not, however, directly subordinate to the emperor or invested in his office by the emperor. He had his own hereditary free land (allods) and patronage of ecclesiastical benefices (churches and monasteries), as well as hereditary jurisdiction over the county. In the twelfth and thirteenth centuries the dukes of Bavaria (like the princes of other German territories) used a variety of devices to swallow up county jurisdiction. In case a count died without heirs, his property escheated to the duke. The duke sometimes acquired counties by inheritance, since his family had kin ties to the families of many counts. In addition, he sometimes purchased and sometimes received by gift the property -- and with it the jurisdiction -- of counts. Finally, if they were rebellious he would conquer them. In all these cases Henry the Lion's general practice, and that of his successors, was to appoint his unfree servants (ministeriales) to replace the free counts, not as counts but as prefects whom the dukes could remove at will.
The dukes also appointed similar officials to govern towns and castles and to manage toll stations. When Henry founded Munich in 1157-58, he did not establish an autonomous city government but appointed ducal officials, including a ducal judge, to govern it.Under Henry the Lion and his successors Bavaria was governed as a territorial polity rather than as an association of persons and groups whose main political allegiances were tribal and feudal. 47 In Saxony, Henry had created the first German territorial chancery, staffed with
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notaries, and he was the first German prince regularly to issue legal documents and to keep systematic records of legal transactions; in Bavaria, the chancery was created shortly after he was ousted and replaced by Otto von Wittelsbach. Moreover, both in Bavaria and Saxony Henry strengthened the ducal court, which came to exercise a substantial principal jurisdiction over disputes involving seisin of land. He also summoned representatives of the various estates to diets at which peace statutes and other laws were promulgated. In a legal document of one of his Bavarian monasteries Henry was called "the prince and the judge of the land."
The system of law and government founded by Henry the Lion was developed further by his successors in the thirteenth century. The office of deputy (Viztum, vice-dominus, "vice-lord"), which had been created under Henry the Lion, became institutionalized by the Wittelsbach dynasty in 1204. The deputy was in charge of financial matters and replaced the duke as president of the ducal court. Eventually Bavaria was divided into four parts, with a deputy in each. In addition it was divided into smaller departments (Amter, "offices"), of which there were thirty-five by 1228; each department had two main officials, a curator in charge of administration and a judge with competence over both major and minor causes. The judges also had subordinate judges who sat in various districts of their respective departments.
The deputy appointed and supervised the curators and judges of the departments. Meanwhile, the duke's traditional household officers -- the marshal, the steward, the chamberlain, the cupbearer -- became heads of bureaucratic organizations which extended throughout the duchy.The new, more centralized system of administration was related to a new emphasis on ducal legislation. Five major peace statutes were enacted in Bavaria in 1244, 1256, 1281, 1293, and 1300, which expanded and reformed the customary law. The use of weapons was restricted; life, property, and honor were given greater protection; supplementary rules of inheritance and of commerce were enacted. Unlike most of the imperial legislation, the ducal statutes were directed not primarily to the higher nobility but to knights and to landowners generally, including peasants and citizens. 48 Moreover, they presupposed the existence of a developed officialdom to interpret and apply them.
Above all, the authority of the dukes of Bavaria, like that of the princes of the other German territories of the time, rested on their acquisition of judicial power. "More important than the possession and acquisition of regalia [financial and political perquisites] was the fact that within this whole system of power the dukes obtained the jurisdiction of the counts and of the patrons [of churches and monasteries]." 49The royal prerogative to invest others with judicial authority, called in
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German Bannleihe, passed from the emperor to the princes. 50 The dukes of Bavaria ruled their duchy primarily through the judges appointed by their deputies in the various departments.
The departmental judges had general jurisdiction over both high justice and low justice. Certain types of matters, however, were reserved to the ducal courts, chiefly because of their great importance or because of the very high status of the parties; the other types of matters remained in the village or other local courts, chiefly because of their minor importance or their local character.
The centralization of justice in Bavaria and the other German principalities in the twelfth and thirteenth centuries was accompanied by a rationalization of judicial procedure. Greater reliance was placed on presentation of evidence in court. Judges questioned witnesses. This was especially true of civil cases. In disputes over seisin of land the complainant could demand a "showing," at which both parties together viewed the land in dispute and each identified its appurtenances and boundaries in the presence of representatives of, the community, who gave judgment in the matter. In another type of procedure, called Kundschaft, connoting exploration, search, or investigation, people of good repute and high calling who had knowledge of the matter in dispute were invited as official witnesses and were questioned under oath; in more important cases, twenty-one persons, chosen by the parties jointly, participated in the Kundschaft, and the agreement of seven, under oath, was required for a decision. 51 These new "inquest" procedures tended to replace the older procedures of compurgation and ordeal.
Ducal law in Bavaria also experienced a substantial change in the concept and purpose of criminal law during the twelfth and thirteenth centuries. Previously, crime and tort had not been sharply distinguished. High justice had been concerned principally with composition, that is, with imposing monetary settlements on wrongdoers in favor of their victims. "Blood justice" -- usually involving hanging or mutilation -- had been chiefly confined to cases in which the criminal had been caught in the act. In the twelfth century high justice in criminal matters became mainly blood justice, and composition was retained chiefly for cases in the lower courts. Thus there was a transition from the tribal system of criminal law to a state system, in which crimes were seen as offenses primarily against the public authority. This movement was also associated with a substantial increase in the types of crimes that were made punishable and in the severity of the punishments. The Bavarian peace statute of 1244 added to the types of homicide for which the death sentence was applicable: homicide committed at night, in open feud, in abduction of a married woman, and in rape of a virgin or of a woman of good repute. The peace statute of 1281 added others. Also, corporal punishment came to be applied to free men and not only to unfree.
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Nighttime crimes were made equally punishable with cases of criminals caught in the act. A new distinction was made between "honorable" and "dishonorable" crimes; murder was honorable while theft was dishonorable, and those found guilty of dishonorable crimes were subjected to more painful forms of death while those who committed honorable crimes had the right of asylum and greater possibilities of commutation of the death sentence to composition. 5^_
Finally, it is important to note that the system of adjudication was both very costly and very lucrative, and that it depended on the contemporaneous development of a more modern system of taxation than had existed in the earlier period -- indeed, a more modern system than the imperial authority was able to develop at any time. The entire population of the duchy was taxed, free and unfree, secular and ecclesiastical; and the taxes were administered by a corps of ducal officials. Through the introduction of the system of universal taxation, "an immediate hierarchical relation was created between the prince of the land and the inhabitants of the land. The tax obligation was one of the most effective means for developing a state community. It made the existence and the sovereignty of the state palpable to every single person." 53 The amount of taxes to be paid was not determined unilaterally by the duke's chancery but was assessed by tax officials on the basis of the value of the property to be taxed. This required regular visits and inspections by tax officials. Sometimes the tax to be imposed on a village or castle or town was fixed in agreement with the inhabitants of the place.
Bavaria was, to be sure, one of the most advanced, if not the most advanced, of the German principalities. Yet it was not atypical. It was basically similar in its governmental and legal structure to Austria, Brandenburg, Braunschweig, Hesse, the Palatinate of the Rhine, ecclesiastical polities such as Wurzburg, Mainz, Trier, and various other principalities, both secular and ecclesiastical. These were not technically kingdoms (except for Bohemia and Burgundy), but they were ruled by princes who were monarchs in the same sense that the kings of Sicily, England, and France were monarchs; indeed the German territorial princes were in many ways more like those other kings than the German king- emperor himself, for they had more highly developed adjudicative, administrative, and legislative powers than he did. Especially after the decline of the empire in the thirteenth century, the type of monarchical rule that Emperor Frederick Barbarossa had sought to exercise came to be exercised in fact by the princes of the leading German territories.