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Rev. Claude Hermann Walter Johns, Babylonian and Assyrian Laws, Contracts and Letters (New York: Charles Scribner’s Sons, 1904). Chapter: I: THE PROLOGUE AND EPILOGUE TO THE CODE OF AMMURABI
Accessed from oll.libertyfund.org/title/2227/209172 on 2009-10-20
The text is in the public domain.
The prologue and epilogue of the Code are very difficult to translate. Often the phrases are simply stock expressions which occur in most of the royal inscriptions. The meanings of many of these have degenerated to mere titles of courtesy and their original significance is obscure. But early translators found no difficulty in guessing the most complimentary things to say, and more recent scholars in their efforts to be exact become grotesque. When an ancient king called himself a “rabid buffalo” it doubtless gave him satisfaction, but it would be very rude for us to do so. On the other hand, it is very tiresome to an English reader to read a sentence of three hundred lines in length before coming to a principal verb. Such a sentence, a string of epithets and participles, is here broken up into short clauses and the participles turned into finite verbs. This is done, not because the translator is entirely ignorant of grammar, but in pity for the reader. This further necessitates turning the third person singular, in which the king speaks of himself, like a modern acceptance of an invitation to dinner, into the more simple direct narration in the first person. Anyone who wishes to compare this translation with the original will please recall that this is done for ease in understanding, not because the original was misunderstood.
A more serious difficulty is, that, as it was customary to apply the same honorific titles to both a god and the king, it is often uncertain to which the original meant to apply them. This may have been left intentionally vague. Some translators have taken on themselves to settle to which they will refer the epithet, to the god or to the king. Such translations are only interesting as a record of private opinions. They settle nothing, do not even give a presumption in favor of anything. It is more honest to leave the translation as vague as the original, when this can be done. This part of the stele is full of rare words, or what is just as bad, words which invariably occur in the same context. If a king calls himself by some strange honorific title, it is no assistance to understanding the meaning of it that a score of successors should do the same. Of many words, all we can conjecture is that the king was honored by them. There is nothing to indicate what they really meant. In some cases “mighty” is as likely to be correct as “wise.” There is no reason why we should prefer either rendering. Both can hardly be right, neither may really be. Some king may once have prided himself on being an expert potter, as a modern monarch might on being a photographer. If he called himself on a monument a “superb potter,” all his successors would keep the title, though they never made a pot in their lives. We have only to peruse the titles of modern monarchs to be sure of the fact. It is, therefore, to be hoped that no one will build any far-reaching theories upon logical deductions from the translations given here or elsewhere of such honorific titles.
When the most high God (Anu), king of the spirits of heaven (Anunnaki),(and)Bêl, lord of heaven and earth, who settles the fates of all, allotted to Marduk, the first-born of Ea, the lord God of right, a rule over men and extolled him among the spirits of earth (Igigi), then they nominated for Babylon a name above all, they made it renowned in all quarters, and in the midst of it they founded an everlasting sovereignty, whose seat is established like heaven and earth; then did God (Anu) and Bêl call me by name, ammurabi, the high prince, god-fearing, to exemplify justice in the land, to banish the proud and oppressor, that the great should not despoil the weak, to rise like the sun over the black-headed race (mankind) and illumine the land, to give health to all flesh. ammurabi the (good) shepherd, the choice of Bêl, am I, the completer of plenty and abundance, the fulfiller of every purpose. For Nippur, and Dûrili (epithet of Nippur or part of it?), I highly adorned ê-kur (the temple of Bêl there). In powerful sovereignty I restored Eridu and cleansed ê-zu-ab (temple of Ea there). By onslaughts on every side (the four quarters) I magnified the name of Babylon and rejoiced the heart of Marduk my lord. Every day I stood in ê-sag-gil (the temple of Marduk at Babylon). Descendant of kings whom Sin had begotten, I enriched the city of Ur, and humbly adoring, was a source of abundance to ê-ner-nu-gal (the temple of Sin at Ur). A king of knowledge, instructed by Shamash the judge, I strongly established Sippara, reclothed the rear of the shrine of Aya (the consort of Shamash), and planned out ê-bab-bar (temple of Shamash at Sippara) like a dwelling in heaven. In arms I avenged Larsa (held by the Elamite, Rim-Sin), and restored ê-bab-bar (temple of Shamash at Larsa) for Shamash my helper. As overlord I gave fresh life to Erech, furnishing abundance of water to its people, and completed the spire of ê-an-na (temple of Nanâ at Erech). I completed the glory of Anu and Ninni. As a protector of my land, I reassembled the scattered people of Nisin (recently reconquered from the Elamites) and replenished the treasury of ê-gal-ma (temple of Nisin). As the royal potentate of the city and own brother of its god Zamama, I enlarged the palace at Kish and surrounded with splendor ê-me-te-ur-sag (the temple at Kish). I made secure the great shrine of Ninni. I ordered the temple of arsagkalama ê-ki-sal-nakiri, by whose assistance I attained my desire. I restored Kutha and increased everything at ê-sid-lam (the temple there). Like a charging bull, I bore down my enemies. Beloved of tu-tu (a name of Marduk) in my love for Borsippa, of high purpose untiring, I cared for ê-zi-da (temple of Nabû there). As a god, king of the city, knowing and farseeing, I looked to the plantations of Dilbat and constructed its granaries for ib (the god of Dilbat) the powerful, the lord of the insignia, the sceptre and crown, with which he invested me. As the beloved of ma-ma (consort of ib), I set fast the bas-reliefs at Kish and renewed the holy meals for Erishtu (goddess of Kish). With foresight and power I ordered the pasturages and watering-places for Sirpurla and Girsu and arranged the extensive offerings in ê-50 (the temple of “the fifty” at Sirpurla). I scattered my enemies. As the favorite of Telitim (a god), I fulfilled the oracles of allab and rejoiced the heart of gis-dar (its goddess). Grand prince, whose prayers Adad knows well, I soothed the heart of Adad, the warrior in Bît Karkara. I fastened the ornaments in ê-ud-gal-gal (temple there). As a king who gave life to Adab, I repaired ê-ma (temple at Adab). As hero and king of the city, unrivalled combatant, I gave life to Mashkan-Shabri and poured forth abundance on sit-lam (temple of Nêrgal there). The wise, the restorer, who had conquered the whole of the rebellious, I rescued the people of Malkâ in trouble. I strengthened their abodes with every comfort. For Ea and dam-gal-nun-na I increased their rule and in perpetuity appointed the lustrous offerings. As a leader and king of the city, I made the settlements on the Euphrates to be populous. As client of Dagan, who begat me, I avenged the people of Mera and Tutul. As high prince, I made the face of Ninni to shine, making the lustrous meals of nin-a-zu secure. I reunited my people in famine by assuring their allowances within Babylon in peace and security. As the shepherd of my people, a servant whose deeds were acceptable to gis-dar in e-ul-mash (temple of Anunit) in the midst of Agade, noted for its wide squares, I settled the rules and set straight the Tigris. I brought back to Asshur the gracious colossus and settled the altar (?). As king of Nineveh I made the waters of Ninni to shine in ê-dup-dup. High of purpose and wise in achievement for the great gods, descendant of Sumu-lâil, eldest son of Sin-muballiṭ, long descended scion of royalty, great king, a very Shamash (or sun) of Babylon, I caused light to arise upon Sumer and Akkad. A king who commanded obedience in all the four quarters, beloved of Ninni am I. When Marduk brought me to direct all people and commissioned me to give judgment, I laid down justice and right in the provinces, I made all flesh to prosper. Then—(the words of the Code are the completion of the sentence. The king implies that its regulations were the outcome of this legislative decision).
The judgments of righteousness which ammurabi, the powerful king, settled, and caused the land to receive a sure polity and a gracious rule.
I am ammurabi, the superb king. Marduk gave me to shepherd the black-headed race, whom Bêl had assigned me. I did not forget, I did not neglect, I found for them safe pastures, I opened the way through sharp rocks, and gave them guidance. With the powerful weapon that Zamama and Ishtar granted me, by the foresight with which Ea endowed me, with the power that Marduk gave me, I cut off the enemy above and below, I lorded it over the conquered. The flesh of the land I made to rejoice. I extended the dwellings of the people in security. I left them no cause to fear. The great gods chose me and I am the shepherd that gives peace, whose club is straight; of evil and good in my city I was the director. I carried all the people of Sumer and Akkad in my bosom. By my protection, I guided in peace its brothers. By my wisdom, I provided for them. That the great should not oppress the weak, to counsel the widow and orphan, in Babylon, the city of Anu and Bêl, I raised up its head (the stele’s) in ê-sag-gil (temple of Marduk there), the temple whose foundation is firm as the heaven and earth. To judge the judgment of the land, to decide the decisions of the land, to succor the injured, I wrote on my stele the precious words and placed them before my likeness, that of a righteous king. The king that is gentle, king of the city, exalted am I. My words are precious, my power has no rival. By the order of Shamash, the judge supreme, of heaven and earth, that judgment may shine in the land; by the permission of Marduk, my lord, I set up a bas-relief, to preserve my likeness in ê-sag-gil that I love, to commemorate my name forever in gratitude. The oppressed who has a suit to prosecute may come before my image, that of a righteous king, and read my inscription and understand my precious words and may my stele elucidate his case. Let him see the law he seeks and may he draw in his breath and say: “This ammurabi was a ruler who was to his people like the father that begot them. He obeyed the order of Marduk his lord, he followed the commands of Marduk above and below. He delighted the heart of Marduk his lord, and granted happy life to his people forever. He guided the land.” Let him recite the document. Before Marduk, my lord, and Ṣarpanitum, my lady, with full heart let him draw near. The colossus and the gods that live in ê-sag-gil, or the courts of ê-sag-gil, let him bless every day before Marduk, my lord, and Ṣarpanitum, my lady.
In the future, in days to come, at any time, let the king who is in the land, guard the words of righteousness which I have written on my stele. Let him not alter the judgment of the land which I judged nor the decisions I decided. Let him not destroy my basrelief. If that man has wisdom and is capable of directing his land, let him attend to the words which I have written upon my stele, let him apprehend the path, the rule, the law of the land which I judged, and the decision I decided for the land, and so let him guide forward the black-headed race; let him judge their judgment and decide their decision, let him cut off from his land the proud and violent, let him rejoice the flesh of his people. ammurabi, the king of righteousness, to whom Shamash has granted rights, am I. My words are precious, my deeds have no rival. Above and below I am the whirlwind that scours the deep and the height. If that man has hearkened to my words which I have written on my stele and has not frustrated justice, has not altered my words, has not injured my bas-reliefs, may Shamash make lasting his sceptre; like me, as a king of righteousness, let him guide his people in justice.
But if that man does not hearken to my words which I wrote on my stele, forgets my curses, fears not the malediction of God, sets aside the judgment which I judged, alters my words and destroys my bas-reliefs, effaces my inscribed name and writes in his own name; or, for fear of these curses has charged another to do so; that man, be he king, lord, patêsi, or noble, whose name is ever so renowned, may the great god (Anu), the father of gods, who named my reign, turn him back, shatter his sceptre in pieces, curse his fortunes; may Bêl the lord who fixes the fates, whose command is not set aside, who extended my sovereignty, cause for him an endless revolt, an impulse to fly from his home, and set for his fortune a reign of sighs, short days, years of want, darkness that has no ray of light and a death in the sight of all men. May he decree with his heavy curse the ruin of his city, the scattering of his people, the removal of his sovereignty, the disappearance of his name and his race from the land. May Beltu, the great mother, whose command is weighty in ê-kur, the lady who made my plans prosperous, make his words in the matter of justice and law to be hateful before Bêl. May she bring about the downfall of his country, the loss of his people, the efflux of his life like water, by the order of the Bêl, the king. May Ea, the grand prince, whose destiny takes premier rank, the messenger of the gods, who knows all, who has prolonged my life, distort his understanding and intellect, curse him with forgetfulness, dam up his rivers at their source. In his land may Ashnan (the deity of wheat), the life of the people, not grow. May Shamash, great judge of heaven and earth, who governs the creatures of life, the lord of help, cut off his sovereignty; judge not his judgment; carry away his path; annihilate the march of his armies; cast an evil look upon him to uproot his rule, and fix for him the loss of his land. May the evil sentence of Shamash quickly overwhelm him; deprive him of life among the living above; and below in the earth, deprive his ghost of water. May Sin, the lord of the sky, the god who creates, whose ray is splendid among the gods, deprive him of crown and throne of kinship; surround him with a great shirt of pain, a heavy penalty, that will not leave his body, and make him finish his days, month by month, through the years of his reign, in tears and sighs. May he multiply for him the burden of royalty. May he grant him as his lot a life that can only be likened to death. May Adad, lord of abundance, great bull of the sky, and the earth, my helper, withdraw the rain from the heavens, the floods from the springs; destroy his land with hunger and want; thunder in wrath over his city, and turn his land to deluge mounds. May Zamama, great warrior, first born of ê-kur, who goes at my right hand on the battlefield, shatter his weapon and turn for him day into night. May he place his enemy over him. May Ishtar, the lady of conflict and battle, who prospered my arms, my gracious protector, who loved my reign, in her heart of rage, her boundless fury, curse his sovereignty; turn all his mercies to curses, shatter his weapon in conflict and battle, appoint him trouble and sedition, strike down his heroes, and make the earth drink of their blood, scatter the plain with heaps of the carcasses of his troops, grant them no burial; deliver himself into the hands of his enemy, cause him to be carried in chains to the enemy’s land. May Nêrgal, the powerful one of the gods, who meets with no rival, who caused me to obtain my triumphs, burn up his people with a fever like a great fire among the reeds. With his powerful weapon may he drink him up, with his fevers crush him like a statue of clay. May Erishtu, the exalted lady of all lands, the creator-mother, carry off his son and leave him no name. May he not beget a seed of posterity among his people. May Nin-karrak, the daughter of Anu, the completer of my mercies in ê-kur, award him a severe malady, a grievous illness, a painful wound, which cannot be healed, of which the physician knows not the origin, which cannot be soothed by the bandage; and rack him with palsy, until she has mastered his life; may she weaken his strength. May the great gods of heaven and earth, the Anunnaki, in their assembly, who look after the halls and the courts of this Ê-bar-ra (temple of Shamash at Sippara, where the stele was clearly set up), curse with a bitter curse his dynasty, his land, his soldiers, his people, and his subjects. May the judgments of Bêl, which in his mouth are irrevocable, curse him and quickly overcome him.
Rev. Claude Hermann Walter Johns, Babylonian and Assyrian Laws, Contracts and Letters (New York: Charles Scribner’s Sons, 1904). Chapter: II: THE CODE OF AMMURABI
Accessed from oll.libertyfund.org/title/2227/209094 on 2009-10-20
The text is in the public domain.
Witchcraft and the ordeal by water§ 1. If a man has accused another of laying a nêrtu (death spell?) upon him, but has not proved it, he shall be put to death.
§ 2. If a man has accused another of laying a kišpu (spell) upon him, but has not proved it, the accused shall go to the sacred river, he shall plunge into the sacred river, and if the sacred river shall conquer him, he that accused him shall take possession of his house. If the sacred river shall show his innocence and he is saved, his accuser shall be put to death. He that plunged into the sacred river shall appropriate the house of him that accused him.
False witness in capital suit§ 3. If a man has borne false witness in a trial, or has not established the statement that he has made, if that case be a capital trial, that man shall be put to death.
In civil case§ 4. If he has borne false witness in a civil law case, he shall pay the damages in that suit.
Judgment once given not to be altered§ 5. If a judge has given a verdict, rendered a decision, granted a written judgment, and afterward has altered his judgment, that judge shall be prosecuted for altering the judgment he gave and shall pay twelvefold the penalty laid down in that judgment. Further, he shall be publicly expelled from his judgment-seat and shall not return nor take his seat with the judges at a trial.
Burglary and acceptance of stolen goods§ 6. If a man has stolen goods from a temple, or house, he shall be put to death; and he that has received the stolen property from him shall be put to death.
Dealings with irresponsible persons§ 7. If a man has bought or received on deposit from a minor or a slave, either silver, gold, male or female slave, ox, ass, or sheep, or anything else, except by consent of elders, or power of attorney, he shall be put to death for theft.
Theft§ 8. If a patrician has stolen ox, sheep, ass, pig, or ship, whether from a temple, or a house, he shall pay thirtyfold. If he be a plebeian, he shall return tenfold. If the thief cannot pay, he shall be put to death.
Procedure in case of the discovery of lost property§ 9. If a man has lost property and some of it be detected in the possession of another, and the holder has said, “A man sold it to me, I bought it in the presence of witnesses”; and if the claimant has said, “I can bring witnesses who know it to be property lost by me”; then the alleged buyer on his part shall produce the man who sold it to him and the witnesses before whom he bought it; the claimant shall on his part produce the witnesses who know it to be his lost property. The judge shall examine their pleas. The witnesses to the sale and the witnesses who identify the lost property shall state on oath what they know. Such a seller is the thief and shall be put to death. The owner of the lost property shall recover his lost property. The buyer shall recoup himself from the seller’s estate.
§ 10. If the alleged buyer on his part has not produced the seller or the witnesses before whom the sale took place, but the owner of the lost property on his part has produced the witnesses who identify it as his, then the [pretended] buyer is the thief; he shall be put to death. The owner of the lost property shall take his lost property.
§ 11. If, on the other hand, the claimant of the lost property has not brought the witnesses that know his lost property, he has been guilty of slander, he has stirred up strife, he shall be put to death.
§ 12. If the seller has in the meantime died, the buyer shall take from his estate fivefold the value sued for.
Judgment by default§ 13. If a man has not his witnesses at hand, the judge shall set him a fixed time not exceeding six months, and if within six months he has not produced his witnesses, the man has lied; he shall bear the penalty of the suit.
Kidnapping§ 14. If a man has stolen a child, he shall be put to death.
Abduction of slave§ 15. If a man has induced either a male or female slave from the house of a patrician, or plebeian, to leave the city, he shall be put to death.
Harboring a fugitive slave§ 16. If a man has harbored in his house a male or female slave from a patrician’s or plebeian’s house, and has not caused the fugitive to leave on the demand of the officer over the slaves condemned to public forced labor, that householder shall be put to death.
The capture of a fugitive slave§ 17. If a man has caught either a male or female runaway slave in the open field and has brought him back to his owner, the owner of the slave shall give him two shekels of silver.
§ 18. If such a slave will not name his owner, his captor shall bring him to the palace, where he shall be examined as to his past and returned to his owner.
§ 19. If the captor has secreted that slave in his house and afterward that slave has been caught in his possession, he shall be put to death.
§ 20. If the slave has fled from the hands of his captor, the latter shall swear to the owner of the slave and he shall be free from blame.
Burglary§ 21. If a man has broken into a house he shall be killed before the breach and buried there.
Highway robbery§ 22. If a man has committed highway robbery and has been caught, that man shall be put to death.
§ 23. If the highwayman has not been caught, the man that has been robbed shall state on oath what he has lost and the city or district governor in whose territory or district the robbery took place shall restore to him what he has lost.
§ 24. If a life [has been lost], the city or district governor shall pay one mina of silver to the deceased’s relatives.
Theft at a fire§ 25. If a fire has broken out in a man’s house and one who has come to put it out has coveted the property of the householder and appropriated any of it, that man shall be cast into the self-same fire.
Duties and privileges of an officer over the levy§ 26. If a levy-master, or warrant-officer, who has been detailed on the king’s service, has not gone, or has hired a substitute in his place, that levy-master, or warrant-officer, shall be put to death and the hired substitute shall take his office.
§ 27. If a levy-master, or warrant-officer, has been assigned to garrison duty, and in his absence his field and garden have been given to another who has carried on his duty, when the absentee has returned and regained his city, his field and garden shall be given back to him and he shall resume his duty.
Rights and duties of his son§ 28. If a levy-master, or warrant-officer, has been assigned to garrison duty, and has a son able to carry on his official duty, the field and garden shall be given to him and he shall carry on his father’s duty.
§ 29. If the son be a child and is not able to carry on his father’s duty, one-third of the field and garden shall be given to his mother to educate him.
Penalty for neglect of his benefice§ 30. If such an official has neglected the care of his field, garden, or house, and let them go to waste, and if another has taken his field, garden, or house, in his absence, and carried on the duty for three years, if the absentee has returned and would cultivate his field, garden, or house, it shall not be given him; he who has taken it and carried on the duty connected with it shall continue to do so.
§ 31. If for one year only he has let things go to waste and he has returned, his field, garden, and house shall be given him, and he himself shall carry on his duty.
His ransom, if captured§ 32. If such an official has been assigned to the king’s service (and captured by the enemy) and has been ransomed by a merchant and helped to regain his city, if he has had means in his house to pay his ransom, he himself shall do so. If he has not had means of his own, he shall be ransomed by the temple treasury. If there has not been means in the temple treasury of his city, the state will ransom him. His field, garden, or house shall not be given for his ransom.
Duties of district governors§ 33. If either a governor or a prefect has appropriated to his own use the corvée, or has accepted and sent on the king’s service a hired substitute in his place, that governor, or prefect, shall be put to death.
Governors not to oppress subordinates§ 34. If either a governor, or a prefect, has appropriated the property of a levy-master, has hired him out, has robbed him by high-handedness at a trial, has taken the salary which the king gave to him, that governor, or prefect, shall be put to death.
The benefice of a levy-master, warrant-officer, or tributary inalienable§ 35. If a man has bought from a levy-master the sheep, or oxen, which the king gave him, he shall lose his money.
§ 36. The field, garden, or house, of a levy-master, warrant-officer, or tributary shall not be sold.
§ 37. If a man has bought field, garden, or house, of a levy-master, a warrant-officer, or tributary, his title-deed shall be destroyed and he shall lose his money. He shall return the field, garden, or house to its owner.
Not to be bequeathed to his family§ 38. A levy-master, warrant-officer, or tributary, shall not bequeath anything from the field, garden, or house of his benefice to his wife or daughter, nor shall he give it for his debt.
§ 39. From the field, garden, or house which he has bought and acquired, he shall make bequests to his wife, or daughter, or shall assign for his debt.
The obligation resting upon a buyer of real estate§ 40. A votary, merchant, or resident alien may sell his field, garden, or house, and the buyer shall discharge the public service connected with the field, garden, or house that he has bought.
A benefice not to be exchanged§ 41. If a man has given property in exchange for the field, garden, or house, of a levy-master, warrant-officer, or tributary, such an official shall return to his field, garden, or house, and he shall appropriate the property given in exchange.
Responsibilities of land-tenants§ 42. If a man has hired a field to cultivate and has caused no corn to grow on the field, he shall be held responsible for not doing the work on the field and shall pay an average rent.
§ 43. If he has not cultivated the field and has left it alone, he shall give to the owner of the field an average rent, and the field which he has neglected he shall break up with mattocks and plough it, and shall return it to the owner of the field.
The rent of unbroken land§ 44. If a man has taken a piece of virgin soil to open up, on a three years’ lease, but has left it alone, has not opened up the land, in the fourth year he shall break it up, hoe it, and plough it, and shall return it to the owner of the field, and shall measure out ten GUR of corn for each GAN of land.
Loss of crop by storm apportioned between landlord and tenant§ 45. If a man has let his field to a farmer and has received his rent for the field but afterward the field has been flooded by rain, or a storm has carried off the crop, the loss shall be the farmer’s.
§ 46. If he has not received the rent of his field, whether he let it for a half, or for a third, of the crop, the farmer and the owner of the field shall share the corn that is left in the field, according to their agreement.
Landlord cannot restrain a satisfactory tenant from subletting§ 47. If a tenant farmer, because he did not start farming in the early part of the year, has sublet the field, the owner of the field shall not object; his field has been cultivated; at harvest-time he shall take rent, according to his agreement.
Abatement of debt on account of storm, flood, or drought§ 48. If a man has incurred a debt and a storm has flooded his field or carried away the crop, or the corn has not grown because of drought, in that year he shall not pay his creditor. Further, he shall post-date his bond and shall not pay interest for that year.
Rights in a crop pledged for debt§ 49. If a man has received money from a merchant and has given to the merchant a field, planted with corn, or sesame, and has said to him, “Cultivate the field and reap and take the corn, or sesame, that shall be grown”; if the bailiff has reared corn, or sesame, in the field, at harvest-time the owner of the field shall take what corn, or sesame, has been grown in the field and shall pay corn to the merchant for his money that he took of him and its interest, and for the maintenance of the bailiff.
§ 50. If the field he gave was [already] cultivated, or the sesame was grown up, the owner of the field shall take the corn, or sesame, that has been grown in the field, and shall return the money and its interest to the merchant.
§ 51. If he has not money enough, he shall give to the merchant sesame, or corn, according to its market price, for the money which he took from the merchant and its interest, according to the king’s standard.
§ 52. If the bailiff has not reared corn or sesame in the field the debtor’s obligation shall not be lessened.
Riparian responsibilities§§ 53, 54. If a man has neglected to strengthen his dike and has not kept his dike strong, and a breach has broken out in his dike, and the waters have flooded the meadow, the man in whose dike the breach has broken out shall restore the corn he has caused to be lost. . If he be not able to restore the corn, he and his goods shall be sold, and the owners of the meadow whose corn the water has carried away shall share the money.
Penalty for neglect to shut off water§ 55. If a man has opened his runnel for watering and has left it open, and the water has flooded his neighbor’s field, he shall pay him an average crop.
§ 56. If a man has let out the waters and they flood the young plants in his neighbor’s field, he shall measure out ten gur of corn for each gan of land.
Damage done to growing crop by sheep§ 57. If a shepherd has not agreed with the owner of the field to allow his sheep to eat off the green crop and without consent of the owner has let his sheep feed off it, the owner of the field shall harvest his crop, but the shepherd who without consent of the owner of the field caused his sheep to eat it shall give to the owner of the field, over and above his crop, twenty gur of corn for each gan of land.
§ 58. If, after the sheep have come up out of the meadows and have passed into the common fold at the city gate, a shepherd has placed his sheep in a field and caused his sheep to feed in the field, the shepherd shall keep the field he has grazed, and, at harvest-time, he shall measure out to the owner sixty gur of corn for each gan of land.
Cutting down a tree without permission Rent of a gardenplot§ 59. If a man without the consent of the owner has cut down a tree in an orchard, he shall weigh out half a mina of silver.
§§ 60, 61. If a man has given a field to a gardener to plant a garden and the gardener has planted the garden, he shall train the garden four years; in the fifth year the owner of the garden and the gardener shall share the garden equally, the owner of the garden shall gather his share and take it. . If the gardener, in planting the garden, has not planted all, but has left a bare patch, he shall reckon the bare patch in his share.
§ 62. If he has not planted the field which was given him as a garden; then, if it was arable land, the gardener shall measure out to the owner of the field an average rent for the years that were neglected, and shall perform the stipulated work on the field (i.e., make it into a garden), and return it to the owner of the field.
§ 63. If the land was uncultivated, he shall do the stipulated work on the field, and return to the owner of the field and shall measure out for each year ten gur of corn for each gan.
Garden rented on shares§ 64. If a man has given his garden to a gardener to farm, the gardener, as long as he holds the garden, shall give the owner of the garden two-thirds of the produce of the garden and shall take one-third himself.
§ 65. If the gardener has not tilled the garden and has diminished the yield, the gardener shall pay an average rent.
Here came the five erased columns, of which the three following sections are restored from copies in Ashurbânipal’s library:
Obligations of owner to gather a date-crop assigned for debt§ X. [If a man has borrowed money of a merchant and has given a date grove] to the merchant and has said to him, “Take the dates that are in my grove for your money”; that merchant shall not consent, the owner of the grove shall take the dates that are in the grove and shall answer to the merchant for the money and its interest, according to the tenor of his agreement, and the owner of the grove shall take the surplus of the dates that are in the grove.
Eviction of house-tenant§ Y. [If a man has let a house] and the tenant has paid to the owner of the house the full rent for a term of years, and if the owner of the house has ordered the tenant to leave before his time is up, the owner of the house, because he has ordered his tenant to leave before his time is up, [shall repay a proportionate amount] from what the tenant has paid him.
Acceptance of goods in payment of debt, in default of money or corn§ Z. [If a man has borrowed money of a merchant] and has not corn or money wherewith [to pay], but has goods; whatever is in his hands, he shall give to the merchant, before the elders. The merchant shall not object; he shall receive it.
[Editor: illegible text]This is not the place to write a commentary on the Code, but there are a few necessary cautions. One of the first is that most clauses are permissive rather than positive. The verb “shall” is not an imperative, but a future. Doubtless in case of heinous crimes the death-penalty had to be inflicted.>[Editor: illegible text] But there was always a trial, and proof was demanded on oath. In many cases the “shall” is only permissive, as when the Code says a widow “shall” marry again. There is no proof that the jury decided only facts and found the prisoner guilty or not, leaving the judge no option but to inflict the extreme penalty. The judge, on the contrary, seems to have had much legislative power. When this view is taken, the Code appears no more severe than those of the Middle Ages, or even of recent times, when a man was hanged for sheep-stealing. There are many humanitarian clauses and much protection is given the weak and the helpless. One of the best proofs of its inherent excellence is that it helped to build up an empire, which lasted many centuries and was regarded with reverence almost to the end.
Gaius, Gai Institutiones or Institutes of Roman Law by Gaius, with a Translation and Commentary by the late Edward Poste, M.A. Fourth edition, revised and enlarged by E.A. Whittuck, M.A. B.C.L., with an historical introduction by A.H.J. Greenidge, D.Litt. (Oxford: Clarendon Press, 1904). Chapter: [I. DE IVRE CIVILI ET NATVRALI.]
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The text is in the public domain.
§ 1.Omnes populi qui legibus et moribus reguntur partim suo proprio, partim communi omnium hominum iure utuntur; nam quod quis|que populus ipse sibi ius constituit, id ipsius proprium est uocaturque ius ciuile, quasi ius proprium ciuitatis; quod uero naturalis ratio inter omnes homines constituit, id apud omnes populos peraeque custoditur uocaturque ius gentium, quasi quo iure omnes gentes utuntur. populus itaque Romanus partim suo proprio, partim communi omnium hominum iure utitur. quae singula qualia sint, suis locis proponemus.
Dig. 1, 1, 9 (Gaius), Inst. 1, 2, 1.
§ 2. Constant autem iura populi Romani ex legibus, plebiscitis, senatusconsultis, constitutionibus principum, edictis eorum qui ius edicendi habent, responsis prudentium.
Inst. 1, 2, 3.
§ 3. Lex est quod populus iubet atque constituit. Plebiscitum est quod plebs iubet atque constituit. plebs autem a populo eo distat, quod populi appellatione uniuersi ciues significantur, connumeratis etiam patriciis; plebis autem appellatione sine patriciis ceteri ciues significantur; unde olim patricii dicebant plebiscitis se non teneri, quia sine auctoritate eorum facta essent; sed postea lex Hortensia lata est, qua cautum est ut plebiscita uniuersum populum tenerent; itaque eo modo legibus exaequata sunt.
Inst. 1, 2, 4.
§ 4. Senatusconsultum est quod senatus iubet atque constituit, idque legis uicem optinet, quamuis fuerit quaesitum.
Inst. 1, 2, 5.
§ 5. Constitutio principis est quod imperator decreto uel edicto uel epistula constituit. nec umquam dubitatum est, quin id legis uicem optineat, cum ipse imperator per legem imperium accipiat
Inst. 1, 2, 6; Dig. 1, 4, 1.
§ 6. ——— ius autem edicendi habent magistratus populi Romani; sed amplissimum ius est in edictis duorum praetorum, urbani et peregrini, quorum in prouinciis iurisdictionem praesides earum habent; item in edictis aedilium curulium, quorum iurisdictionem in prouinciis populi Romani quaestores habent; nam in prouincias Caesaris omnino quaestores non mittuntur, et ob id hoc edictum in his prouinciis non proponitur.
Inst. 1, 2, 7.
§ 7. Responsa prudentium sunt sententiae et opiniones eorum quibus permissum est iura condere. quorum omnium si in unum sententiae concurrunt, id quod ita sentiunt legis uicem optinet; si uero dissentiunt, iudici licet quam uelit sententiam sequi; idque rescripto diui Hadriani significatur.
Inst. 1, 2, 8.
§ 1. The laws of every people governed by statutes and customs are partly peculiar to itself, partly common to all mankind. The rules established by a given state for its own members are peculiar to itself, and are called jus civile; the rules constituted by natural reason for all are observed by all nations alike, and are called jus gentium. So the laws of the people of Rome are partly peculiar to itself, partly common to all nations; and this distinction shall be explained in detail in each place as it occurs.
§ 2. Roman law consists of statutes, plebiscites, senatusconsults, constitutions of the emperors, edicts of magistrates authorized to issue them, and opinions of jurists.
§ 3. A statute is a command and ordinance of the people: a plebiscite is a command and ordinance of the commonalty. The commonalty and the people are thus distinguished: the people are all the citizens, including the patricians; the commonalty are all the citizens, except the patricians. Whence in former times the patricians maintained that they were not bound by the plebiscites, as passed without their authority; but afterwards a statute called the lex Hortensia was enacted, which provided that the plebiscites should bind the people, and thus plebiscites were made co-ordinate with statutes.
§ 4. A senatusconsult is a command and ordinance of the senate, and has the force of a statute, a point which was formerly controverted.
§ 5. A constitution is law established by the emperor either by decree, edict, or letter; and was always recognized as having the force of a statute, since it is by a statute that the emperor himself acquires supreme executive power.
§ 6. Power to issue edicts is vested in magistrates of the people of Rome, the amplest authority belonging to the edicts of the two praetors, the home praetor and the foreign praetor, whose provincial jurisdiction is vested in the presidents of the provinces, and to the edicts of the curule aediles, whose jurisdiction in the provinces of the people of Rome is vested in quaestors: in the provinces of the emperor no quaestors are appointed, and in these provinces, accordingly, the edict of the aediles is not published.
§ 7. The answers of jurists are the decisions and opinions of persons authorized to lay down the law. If they are unanimous their decision has the force of law; if they disagree, the judge may follow whichever opinion he chooses, as is ruled by a rescript of the late emperor Hadrian.
§ 1. Jurisprudence treats exclusively of positive law: the exclusive origin of positive law is some positive enactment; the term positive enactment including both the express or direct enactments of the political sovereign, and the implied, indirect, circuitous enactments imported by the sovereign’s acquiescence in the ruling of subordinate authorities. (See Holland’s Jurisprudence, chs. 2-5.)
The rules and principles denoted by the terms praetor-made law, jurist-made law, judge-made law, are only law because they are impliedly adopted, confirmed, and ratified by the silent acquiescence of the sovereign.
The organ by which the jus gentium of the Romans was promulgated, which made it by indirect enactment a portion of Roman Positive law, was principally the Edict of the Praetor. The relations of Roman citizens with aliens (peregrini), that is, with the members of foreign states formerly subjugated by Rome and now living under the protection of Roman law, as well as of aliens in their intercourse with one another, became, about 242 b. c., so frequent as to be made subject to the jurisdiction of a special minister of justice called Praetor peregrinus, who, like the Praetor urbanus, published an annual edict announcing the principles on which justice would be administered. These principles composed jus gentium as opposed to jus civium. Jus gentium, that is to say, was not really, as Roman jurists imagined or represented, a collection of the principles common to the legislation of all nations, but a body of rules which the Roman praetor thought worthy to govern the intercourse of Roman citizens with the members of all, originally independent, but now subject, foreign nations.
Gradually the rules originating in this way were extended to the intercourse of citizens with citizens, in cases where the rigorous conditions of jus civile were not exactly satisfied, and so precepts of jus gentium were transferred from the edict of praetor peregrinus to the edict of praetor urbanus.
The portion of the edict most fertile in principles of jus gentium would be the clauses in which the praetor announced, as he did in some cases, that he would instruct the judex, whom he appointed to hear and determine a controversy, to govern himself by a consideration of what was aequum et bonum, i. e. by his views of equity and expediency: and if any of the oral formularies of the earliest system of procedure (legis actiones) contained these or equivalent terms, such formularies may be regarded as a source of jus gentium. It may be observed that Gaius does not, like some other Roman jurists and notably Ulpian (cf. Dig. 1, 1, 1, 3; Inst. 1, 2 pr.), make any distinction between jus gentium and jus naturale. There is nothing in his writings, as they have come down to us, to draw attention to the fact that the teaching of nature may not be in accordance with the practice of nations, as the institution of slavery showed.
Another organ of quasi publication, whereby the rules of jus gentium were transformed from ideal law to positive law—from laws of Utopia to laws of Rome—were the writings of the jurists, who, at first with the tacit, afterwards with the express permission of the legislature, engaged, nominally in interpreting, really in extending the law, about the time of Cicero (De Legibus, § 1, 5), transferred to the edict of the praetor the activity which they had formerly displayed in developing the law of the Twelve Tables and the statutes of the Comitia. By these means, supplemented and confirmed by statute law and custom, the jus gentium gradually increased in importance, and gave the Roman empire its universal law.
Jus civile, i. e. jus civium or law peculiar to citizens, was the law of the Twelve Tables, augmented by subsequent legislation, by juristic interpretation, and by consuetudinary law. The institutions of jus civile may be exemplified by such titles to property as Mancipatio and In Jure Cessio, contracts by the form of Nexum and Sponsio, title to intestate succession by Agnatio or civil relationship; while corresponding institutions of jus gentium were the acquisition of property by Tradition, contract by Stipulation without the solemn term Spondeo, title to intestate succession by Cognatio or natural relationship. Other departments of life were not subject to parallel institutes of jus civile and jus gentium, but the mutual relations of citizens with citizens as well as of citizens with aliens were exclusively controlled by jus gentium: e. g. the informal contracts called Consensual, such as buying and selling, letting and hiring, partnership; and the informal contracts called Real, such as the contract of loan for use or loan for consumption.
Titles to ownership (jus in rem), according to jus gentium, which ultimately superseded civil titles, are explained at large in Book II.
In respect of Obligation (jus in personam), jus gentium may be divided into two classes, according to the degree in which it was recognized by Civil law:—
A. A portion of jus gentium was recognized as a ground of Action. To this class belong (1) the simple or Formless contracts to which we have alluded, (2) obligations to indemnify grounded on delict, (3) rights quasi ex contractu to recover property when it has been lost by one side and gained by the other without any right to retain it. Dig. 12, 6, 14 and Dig. 25, 2, 25. Actions founded on this obligation to restore (condictiones), although it was a species of naturalis obligatio, Dig. 12, 6, 15 pr., were as rigorous (stricti juris) as any in the Civil code. In these cases the obligatio, though naturalis as founded in jus gentium, yet, as actionable, was said to be civilis obligatio, not naturalis, Dig. 19, 5, 5, 1.
The two eminently Civil spheres of the law of obligation were (1) specialty or Formal contracts, and (2) penal suits. Yet even into these provinces jus gentium forced a partial entrance. We shall see that aliens could be parties to a Stipulatio or Verbal contract, though not by the Civil formulary, Spondeo 3 § 93; and to Transcriptio, at least of one kind, 3 § 133, which was a form of Literal contract; and could be made plaintiffs or defendants in penal suits by means of the employment of certain Fictions, 4 § 37. This, however, was rather the extension of jus civile to aliens than the intrusion of jus gentium into a Civil province.
B. Other rights and obligations of jus gentium were not admitted as direct grounds for maintaining an action, yet were otherwise noticed by the institutes of civil jurisprudence and indirectly enforced. Thus a merely naturalis obligatio, though not actionable, might (1) furnish a ground of an equitable defence (exceptio): for instance, on payment of a merely natural debt the receiver has a right of retention, and can bar the suit to recover it back as a payment made in error (condictio indebiti soluti) by pleading the naturalis obligatio, Dig. 12, 6, 64; or the defendant can meet a claim by Compensatio, 4 § 61, cross demand or set-off, of a debt that rests on merely naturalis obligatio, Dig. 40, 7, 20, 2: or a merely naturalis obligatio might (2) form the basis of an accessory obligation, such as Suretyship (fidejussio) 3 § 119 a, or Guaranty (constitutum) Dig. 13, 5, 1, 7, or Mortgage (pignus) Dig. 20, 1, 5 pr., or Novation, 3 § 176, Dig. 46, 2, 1, 1, all institutions, which are themselves direct grounds of action. Though these rights and obligations of natural law are imperfect (obligatio tantum naturalis) as not furnishing immediate grounds of action, yet, as being partially and indirectly enforced by Roman tribunals, they clearly compose a portion of Positive law. Cf. 3 §§ 88, 89 comm.
§ 3. Plebiscites as well as the enactments of the Comitia populi were called Leges, and were named after the tribunes by whom they were carried, as the leges proper (rarely called populiscita) were named after the consul, praetor or dictator by whom they were carried. Thus Lex Canuleia, Lex Aquilia, 3 § 210, Lex Atinia, Inst. 2, 6, 2, Lex Furia testamentaria, 2 § 225, were plebiscites named after tribunes, while the Lex Valeria Horatia was named after two consuls, the Lex Publilia and Lex Hortensia were named after dictators, the Lex Aurelia, 70 b. c., after a praetor. (As to the history of plebiscita and leges and of the other sources of Roman law cf. Historical Introduction and see Smith’s Dict. of Greek and Roman Antiquities, 3rd ed. s. v.)
§ 4. The legislative power of the senate was in the time of the republic a matter of controversy. It is certain that it had a power of issuing certain administrative decrees or instructions to magistrates that was hardly distinguishable from legislation. Under the emperors matters were changed. Legislation by the Comitia, though spoken of by Gaius in the present tense, had ceased to be a reality after the time of Tiberius, and the last recorded lex was passed in the reign of Nerva. As early as the time of Augustus the auctoritas of the senate began to be regarded as the essential process in making a law, and the subsequent rogatio of the Comitia as a mere formality, which was finally omitted. Senatusconsults, like laws, were sometimes named after the consuls who proposed them, though this is not in their case an official designation; they are sometimes even called leges: thus the measure which Gaius calls Sc. Claudianum, § 84, is subsequently referred to by him under the name of lex, § 157, 4 §§ 85, 86. Ulpian says, Non ambigitur senatum jus facere posse. Dig. 1, 3, 9. Of course, these senatusconsults were merely a disguised form of imperial constitution. The sovereignty had in fact passed from both patricians and plebeians to the hands of the princeps. A measure was recommended by the emperor in an oratio or epistola to the senate, and then proposed by the consul who convoked the senate, and voted by the senate without opposition. Hence a senatusconsult is sometimes called oratio, e. g. oratio divi Marci, Dig. 2, 12, 1 pr. Even this form was finally disused. No senatusconsult relating to matters of civil law occurs after the time of Septimius Severus.
§ 5. Although when Gaius wrote the emperor had not yet acquired the formal right of making statutes, his supreme executive power enabled him to give to his constitutions the same force as if they had been leges. The legal origin and character of the different forms of imperial constitution has been much controverted, and certainly varied at different periods.
Edicts were legislative ordinances issued by the emperor in virtue of the jurisdiction appertaining to him as highest magistrate, and were analogous to the edicts of the praetors and aediles. In the time of Gaius they had only binding force during the life of the emperor who issued them, requiring the confirmation of his successor for their continuing validity; but from the reign of Diocletian, when the empire assumed an autocratic form, their duration ceased to be thus limited.
Decreta were judicial decisions made by the emperor as the highest appellate tribunal: or in virtue of his magisterial jurisdiction, and analogous to the extraordinaria cognitio of the praetor.
Epistolae or rescripta were answers to inquiries addressed to the emperor by private parties or by judges. They may be regarded as interpretations of law by the emperor as the most authoritative juris peritus. Cf. § 94 comm.
Some examples of direct legal changes made by early emperors are recorded, as the right conferred by the edict of Claudius mentioned in § 32 c of this book.
The words of Gaius explaining why constitutions had the force of law seem to be imperfect, and may be supplemented from Justinian, who openly asserts for himself absolute authority: Sed et quod principi placuit legis habet vigorem: cum lege regia, quae de imperio ejus lata est, populus ei et in eum omne suum imperium et potestatem concessit, Inst. 1, 2, 6. The lex imperii, Cod. 6, 23, 6, was called in this and in the corresponding passage of the Digest (1, 4, 1) attributed to Ulpian, lex regia, in memory of the lex curiata, whereby the kings were invested with regal power. According to Cicero the king was proposed by the senate and elected by the Comitia Curiata, and the election was ratified in a second assembly presided over by the king: e. g. Numam Pompilium regem, patribus auctoribus, sibi ipse populus adscivit, qui ut huc venit, quanquam populus curiatis eum comitiis regem esse jusserat, tamen ipse de suo imperio curiatam legem tulit, De Republ. 2, 13. According to Mommsen and other modern writers, however, the later Roman idea, that the king was elected by the Comitia, is wrong, the lex curiata having been passed, not to elect a king, but merely to ratify a previous election or nomination. A lex curiata was also passed to confer on a Roman magistratus his imperium, and similarly the Roman emperor derived some of his powers from leges, but it seems a mistake to suppose that in the time of the principate a single lex gave him his entire authority. A fragment of a bronze tablet, on which was inscribed the lex investing Vespasian with sovereign powers, was discovered at Rome in the fourteenth century, and is still preserved in the Capitol.
§ 6. Huschke points out that the vacant space in the MS. before jus probably contained a definition of Edicta.
All the higher magistrates of Rome were accustomed to issue edicts or proclamations. Thus the consuls convoked the comitia, the army, the senate, by edict: the censors proclaimed the approaching census by edict: the aediles issued regulations for the market by edict: and magistrates with jurisdiction published edicts announcing the rules they would observe in the administration of justice, the Edicts of the Praetor urbanus, Praetor peregrinus, Aediles curules being called Edicta urbana, while the Edicts of the governors of provinces were called Edicta provincialia. These edicts, besides being orally proclaimed, were written on white tablets (in albo) and suspended in the forum: apud forum palam ubi de plano legi possit, Probus, ‘in the forum in an open space where persons standing on the ground may read.’ Such an edict was always published on entering on office (est enim tibi jam, cum magistratum inieris et in concionem adscenderis, edicendum quae sis observaturus in jure dicendo, Cic. De Fin. 2, 22), and was then called Edictum perpetuum, as opposed to occasional proclamations, Edictum repentinum. A clause (pars, caput, clausula, edictum) retained from a former edict was called Edictum tralaticium, Gellius, 3, 18; and though doubtless the edicts gradually changed according to changing emergencies, each succeeding praetor with very slight modifications substantially reproduced the edict of his predecessor. In the reign of Hadrian the jurist Salvius Julianus, called by Justinian Praetoriani edicti ordinator, reduced the edict to its definite form, and if the yearly publication was not discontinued (cf. § 6, jus edicendi habent), at all events Julian’s co-ordination of Praetorian law was embodied in all subsequent publications. Such was the origin of jus honorarium (praetorium, aedilicium), as opposed to jus civile: and from what has preceded, it need hardly be stated that the antithesis, jus civile, jus honorarium, is to a great extent coincident with the antithesis, jus civile, jus gentium.
It may be observed that Gaius does not attribute to edicts the force of a statute: and this theoretical inferiority of jus honorarium had a vast influence in modelling the forms and proceedings of Roman jurisprudence. The remedy or redress administered to a plaintiff who based his claim on jus civile differed from that administered on an appeal to jus honorarium, as we shall see when we come to treat of Bonitary ownership, Bonorum possessio, Actio utilis, in factum, ficticia. This difference of remedy preserved jus civile pure and uncontaminated, or at least distinguishable from jus honorarium; but this perpetuation of the memory of the various origins of the law, like the analogous distinction of Equity and Common law in English jurisprudence, was purchased by sacrificing simplicity of rule and uniformity of process.
The legislative power of the popular assembly and the absence of legislative power in the senate and praetor were marked by a difference of style in the lex and plebiscite, edict, and decree of the senate: while the lex and plebiscite employed the imperative (damnas esto, jus potestasque esto, &c.), the resolutions of the senate scrupulously avoid the imperative and are clothed in the forms placere, censere, arbitrari, &c., as if they were rather recommendations than commands: and the edicts and the interdicts of the praetor are couched in the subjunctive (Exhibeas, Restituas, &c.), a milder form of imperative. Or to show that their force and operation is limited to his own tenure of office, they are expressed in the first person (actionem dabo, ratum habebo, vim fieri veto). Where he has authority to command he shows it by using the imperative, as in addressing the litigants (mittite ambo hominem, inite viam, redite, 4 § 13 comm.) or the judge (judex esto, condemnato, absolvito). Ihering, § 47.
In the first period of the empire, that is, in the first three centuries of our era, it was the policy of the emperors to maintain a certain show of republican institutions, and the administration of the empire was nominally divided between the princeps or emperor and the people as represented by the senate. Thus, at Rome there were two sets of magistrates, the old republican magistrates with little real power, consuls, praetors, tribunes, quaestors, in outward form elected by the people; and the imperial nominees with much greater real authority, under the name of praefecti, the praefectus urbi, praefectus praetorio, praefectus vigilum, praefectus annonae, praefectus aerario; for though nominally the people and princeps had their separate treasuries under the name of aerarium and fiscus, yet the treasury of the people was not managed by quaestors as in the time of the republic, but by an official appointed by the emperor. Similarly the provinces were divided between the people and the prince, the people administering those which were peaceful and unwarlike, the prince those which required the presence of an army. The governor of a province, whether of the people or the emperor, was called Praeses Provinciae. The Praeses of a popular province was a Proconsul, and the chief subordinate functionaries were Legati, to whom was delegated the civil jurisdiction, and quaestors, who exercised a jurisdiction corresponding to that of the aediles in Rome. The emperor himself was in theory the Proconsul of an imperial province; but the actual governor, co-ordinate with the Proconsul of a senatorial province, was the Legatus Caesaris, while the financial administration and fiscal jurisdiction were committed to a functionary called Procurator Caesaris, instead of the republican Quaestor. Sometimes the same person united the office of Procurator and Legatus, as, for instance, Pontius Pilate.
§ 7. The opinions of a jurist had originally only the weight that was due to his knowledge and genius; but on the transfer of power from the hands of the people to those of the princeps, the latter recognized the expediency of being able to direct and inspire the oracles of jurisprudence; and accordingly Augustus converted the profession of jurist into a sort of public function, giving the decisions of certain authorized jurists the force of law, Pomponius in Dig. 1, 2, 49 (cf. Inst. 1, 2, 8). ‘Until Augustus, the public decision of legal questions was not a right conferred by imperial grant, but any one who relied on his knowledge advised the clients who chose to consult him. Nor were legal opinions always given in a letter closed and sealed, but were generally laid before the judge in the writing or by the attestation of one of the suitors. Augustus, in order to increase their weight, enacted that they should be clothed with his authority, and henceforth this office was sought for as a privilege.’ Those jurists who had the jus respondendi were called juris auctores. Their auctoritas resided, in the first instance, in their responsa, or the written opinions they gave when consulted on a single case, but in the second instance, doubtless, in their writings (sententiae et opiniones), which were mainly a compilation of their responsa, a fact which has left its traces in the disjointed and incoherent style which disagreeably characterizes Roman juristic literature. The jus respondendi instituted by Augustus and regulated by Tiberius, who themselves held the office of Pontifex Maximus, gave those to whom it belonged similar authority in interpreting law as had previously been exercised by the College of Pontifices—‘omnium tamen harum et interpretandi scientia et actiones apud Collegium Pontificum erant, ex quibus constituebatur, quis quoque anno praeesset privatis’ (Pomponius in Dig. 1, 2, 6; cf. Sohm, § 18).
As to the mode of collecting the opinions of the juris auctores no precise information has come down to us, but § 6 shows that the duty of the judex, in the not uncommon event of the authorities differing in their opinions on a case, was open to doubt, till Hadrian’s rescript allowed him under these circumstances to adopt the opinion he preferred. It may be gathered from the words ‘quorum omnium’ that all authorized jurists had to be consulted. The jus respondendi, as thus explained, may have continued in existence till the end of the third century, by which time the originative force of Roman jurisprudence had ceased. Instead of giving independent opinions jurists had become officials of the emperor, advising him in drawing rescripts and other affairs of imperial government. Legal authority rested in the writings of deceased juris auctores. (For a discussion of the causes of the decline of Roman Jurisprudence see Grueber’s Art. in Law Quarterly Review, vii. 70.) In the course of centuries the accumulation of juristic writings of co-ordinate authority was a serious embarrassment to the tribunals. To remedy this evil, a. d. 426, Valentinian III enacted what is called the law of citations, Cod. Theodosianus, 1, 4, 3, limiting legal authority to the opinions of five jurists, Gaius, Papinian, Ulpian, Paulus, Modestinus, and of any other jurists whom these writers quoted, provided that such quotations should be verified by reference to the original writings of these jurists (codicum collatione firmentur—on the question of the way of interpreting these words cf. Sohm, p. 122, n. 1, § 21). In case of a divergence of opinion, the authorities were to be counted, and the majority was to prevail. In case of an equal division of authorities, the voice of Papinian was to prevail. a. d. 533, Justinian published his Digest or Pandects, a compilation of extracts from the writings of the jurists, to which, subject to such modifications as his commissioners had made in them, he gives legislative authority. Every extract, accordingly, is called a lex, and the remainder of the writings of the jurists is pronounced to be absolutely void of authority. To prevent the recurrence of the evil which his codification was intended to remove, and confident in the lucidity and adequacy of his Digest and Code, which latter is a compilation of imperial statute law after the model of the Theodosian code, Justinian prohibits for the future the composition of any juristic treatise or commentary on the laws. If any one should disregard the prohibition, the books are to be destroyed and the author punished as guilty of forgery (falsitas), Cod. 1, 17, 2, 21. The constitutions enacted by Justinian subsequent to the publication of his code are called Novellae, Constitutiones or Novels.
We shall find frequent allusions, as we proceed in this treatise, to the existence of rival schools among the Roman juris auctores. This divergence of the schools dates from the first elevation of the jurist to a species of public functionary, namely, from the reign of Augustus, in whose time, as we have seen, certain jurists began to be invested by imperial diploma with a public authority. In his reign the rival oracles were M. Antistius Labeo and C. Ateius Capito: Hi duo primum veluti diversas sectas fecerunt, Dig. 1, 2, 47. ‘The first founders of the two opposing sects.’ From Labeo’s works there are 61 extracts in the Digest, and Labeo is cited as an authority in the extracts from other jurists oftener than any one else except Salvius Julianus. From Sempronius Proculus, a disciple of Labeo, and of whom 37 fragments are preserved in the Digest, the school derived its name of Proculiani. Other noted jurists of this school were Pegasus, in the time of Vespasian; Celsus, in the time of Domitian, who gave rise to the proverb, responsio Celsina, a discourteous answer, and of whom 141 fragments are preserved; and Neratius, of whom 63 fragments are preserved. To the other school belonged Masurius Sabinus, who flourished under Tiberius and Nero, and from whom the sect were called Sabiniani. To the same school belonged Caius Cassius Longinus, who flourished under Nero and Vespasian, and from whom the sect are sometimes called Cassiani: Javolenus Priscus, of whom 206 fragments are preserved: Salvius Julianus, the famous Julian, above mentioned, of whom 456 fragments are preserved: Pomponius, of whom 578 fragments are preserved: Sextus Caecilius Africanus, celebrated for his obscurity, so that Africani lex in the language of lawyers meant lex difficilis, of whom 131 fragments are preserved: and, lastly, our author, Gaius, who flourished under Hadrian, Antoninus Pius, and Marcus Aurelius, and from whose writings 535 extracts are to be found in the Digest.
If we now inquire whether this divergence of schools was based on any difference of principle, the answer is, No: on none, at least, that modern commentators have succeeded in discovering: it was merely a difference on a multitude of isolated points of detail. We are told indeed that the founders were men of dissimilar characters and intellectual dispositions: that Labeo was characterized by boldness of logic and a spirit of innovation; while Capito rested on tradition and authority, and inclined to conservatism, Dig. 1, 2, 47; but it is altogether impossible to trace their opposing tendencies in the writings of their successors: and we must suppose that the intellectual impulse given by Labeo was communicated to the followers of both schools of jurisprudence. But though, as we have stated, no difference of principle was involved, each school was accustomed to follow its leaders or teachers (praeceptores) with much servility; and it is quite an exception to find, on a certain question, Cassius, a member of the Sabinian school, following the opinion of Labeo; while Proculus, who gave his name to Labeo’s school, preferred the opinion of Ofilius, the teacher of Capito, 3 § 140; Gaius too, who was a Sabinian, sometimes inclines to the opinion of the rival school; cf. 3, § 98. Controversies between the two schools are referred to by Gaius in the following passages of his Institutes: 1, 196; 2, 15, 37, 79, 123, 195, 200, 216-222, 231, 244; 3, 87, 98, 103, 141, 167-8, 177-8; 4, 78-9, 114, 170.
As long as these schools of law, which may have derived their constitution from the Greek schools of philosophy, existed, the office of President appears to have devolved by succession from one jurist to another. (For an account of this subject and references to the chief modern writers who have discussed it see Sohm, pp. 98, &c.)
We may briefly mention some of the most illustrious jurists who flourished somewhat later than Gaius. Aemilius Papinianus, who was probably a Syrian, lived in the time of Septimius Severus, and was murdered by the order of Caracalla: 601 extracts from his writings are contained in the Digest. It was perhaps to some extent due to the transcendent genius, or at least to the extraordinary reputation, of Papinian, which made him seem too great to be reckoned any man’s follower, that we cease about his time to hear of opposing schools of jurisprudence. Papinian appears to have accompanied Severus to York, fulfilling the important function of praefectus praetorio, so that England may claim some slight connexion with the brightest luminary of Roman law.
A disciple and colleague of Papinian, of Syrian origin, who likewise became praefectus praetorio, was Domitius Ulpianus, murdered by the praetorian soldiery, whose domination he resisted, in the presence of the Emperor Alexander Severus: 2464 fragments, composing about a third of the whole Digest, are taken from his writings. An epitome of his Liber Singularis Regularum is still extant in a manuscript of the Vatican Library, and is the work referred to when, without mentioning the Digest, we cite the authority of Ulpian.
Another disciple and colleague of Papinian was Julius Paulus, of whose writings 2081 fragments are preserved in the Digest, forming about a sixth of its mass. An epitome of his treatise called Sententiae Receptae is found, with the Epitome of Gaius, in the code of Alaric II, king of the Visigoths; and it is to this book that we refer when we simply cite the authority of Paulus.
A disciple of Ulpian’s was Herennius Modestinus, of whom 344 extracts are contained in the Digest. After Modestinus the lustre of Roman jurisprudence began to decline. (For a detailed account of the Roman jurists, see Roby’s Introduction to the Digest, chs. vi-xvi.)
Besides the sources of law enumerated by Gaius, the Institutes of Justinian (1, 2, 9 and 10) mention Custom or Usage, the source of consuetudinary or customary law (jus non scriptum, consensu receptum, moribus introductum). To this branch of law are referred, with other rules, the invalidity of donations between husband and wife, Dig. 24, 1, 1, the power of a paterfamilias to make a will for his filiusfamilias who dies before the age of puberty (pupillaris substitutio), Dig. 28, 6, 2 pr., and universal succession in Coemption and Adrogation, 3 § 82. See also 4 §§ 26, 27. We may suppose that Customary law, like Roman law in general, would fall into two divisions, jus civile and jus gentium, the former embracing what Roman writers sometimes speak of as mores majorum. Before the time of Gaius, however, most of Customary law must have been incorporated by statute, as in early times by the law of the Twelve Tables, or taken up into the edict of the praetor or the writings of the jurists, Cic. De Invent. 2, 22, 67; i.e. unwritten law must have changed its character and have been transformed into written law.
Gaius, Gai Institutiones or Institutes of Roman Law by Gaius, with a Translation and Commentary by the late Edward Poste, M.A. Fourth edition, revised and enlarged by E.A. Whittuck, M.A. B.C.L., with an historical introduction by A.H.J. Greenidge, D.Litt. (Oxford: Clarendon Press, 1904). Chapter: QVIBVS ALIENARE LICEAT VEL NON.
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The text is in the public domain.
§ 62. Accidit aliquando, ut qui dominus sit alienandae rei potestatem non habeat, et qui dominus non sit alienare possit.
Inst. 2, 8 pr.
§ 63. Nam dotale praedium maritus inuita muliere per legem Iuliam prohibetur alienare, quamuis ipsius sit uel mancipatum ei dotis causa uel in iure cessum uel usucaptum. quod quidem ius utrum ad Italica tantum praedia an etiam ad prouincialia pertineat, dubitatur.
Inst. l. c.
§ 64. Ex diuerso agnatus furiosi curator rem furio|si alienare potest ex lege xii tabularum; item procurator—|—NAest; item creditor pignus ex | pactione, quamuis eius ea res non sit. sed hoc forsitan ideo uideatur fieri, quod uoluntate debitoris intellegitur pignus alienari, qui olim pactus est, ut liceret creditori pignus uendere, si pecunia non soluatur.
Inst. 2, 8, 1.
§ 65. Thus it appears that some modes of alienation are based on natural law, as tradition, and others on civil law, as mancipation, surrender before the magistrate, usucapion, for these are titles confined to citizens of Rome.
§ 66. Another title of natural reason, besides Tradition, is Occupation, whereby things previously the property of no one become the property of the first occupant, as the wild inhabitants of earth, air, and water, as soon as they are captured.
§ 67. For wild beasts, birds, and fishes, as soon as they are captured, become, by natural law, the property of the captor, but only continue such so long as they continue in his power; after breaking from his custody and recovering their natural liberty, they may become the property of the next occupant; for the ownership of the first captor is terminated. Their natural liberty is deemed to be recovered when they have escaped from his sight, or, though they continue in his sight, when they are difficult to recapture.
§ 68. In the case of those wild animals, however, which are in the habit of going away and returning, as pigeons, and bees, and deer, which habitually visit the forests and return, the rule has been handed down, that only the cessation of the intention of returning is the termination of ownership, and then the property in them is acquired by the next occupant; the intention of returning is held to be lost when the habit of returning is discontinued.
§ 69. Capture from an enemy is another title of property by natural law.
§ 70. Alluvion is another natural mode of acquisition. Alluvion is an addition of soil to land by a river, so gradual that at a particular moment the amount of accretion cannot be determined; or, to use the common expression, an addition made by alluvion is so gradual as to elude our sight.
§ 71. Accordingly a parcel of your land swept away by a river, and carried down to mine, continues your property.
§ 72. An island that rises in the middle of a river is the common property of the proprietors on both banks of the river; if it is not in the middle of the stream, it belongs to the proprietors of the nearer bank.
§ 73. Again, a building erected on my soil, though the builder has made it on his own account, belongs to me by natural law; for the ownership of a superstructure follows the ownership of the soil.
§ 74. The same occurs a fortiori when trees are planted on my land, provided they have struck root.
§ 75. Similarly, when corn is sown on my land.
§ 76. But if I bring an action to recover the land or the building, and refuse to compensate the other party for his outlay on the building or the plantation or the cornfield, he will defeat my action by the plea of fraud, at any rate if he was a bona fide possessor.
§ 77. On the same principle, the writing inscribed on my paper or parchment, even in letters of gold, becomes mine, for the property in the letters is accessory to the paper or parchment; but if I sue for the books or parchment without offering compensation for the writing, my action will be defeated by the plea of fraud.
§ 78. The canvas belonging to me, on which another man has painted, e. g. a portrait, is subject to a different rule, for the ownership of the canvas is held to be accessory to the painting: a difference which scarcely rests on a sufficient reason. By this rule, it is clear that if I am in possession, and you (the painter) claim the portrait without offering to pay the value of the canvas, I may defeat your claim by the plea of fraud. But if you are in possession, the effect is that I am entitled to an equitable action against you, but in this case unless I offer the price of the painting, you defeat me by the plea of fraud, at any rate if you are a bona fide possessor. It is certain, that, if either you or another purloined the canvas, I can bring an action of theft.
§ 79. On a change of species, also, we have recourse to natural law to determine the proprietor. Thus, if grapes, or olives, or sheaves of corn, belonging to me, are converted by another into wine, or oil, or (threshed out) corn, a question arises whether the property in the corn, wine, or oil, is in me, or in the author of the conversion; so too if my gold or silver is manufactured into a vessel, or a ship, chest, or chair is constructed from my timber, or my wool is made into clothing, or my wine and honey are made into mead, or my drugs into a plaster or eye-salve, it becomes a question whether the ownership of the new product is vested in me or in the manufacturer. According to some, the material or substance is the criterion; that is to say, the owner of the material is to be deemed the owner of the product; and this was the doctrine which commended itself to Sabinus and Cassius; according to others the ownership of the product is in the manufacturer, and this was the doctrine favoured by the opposite school; who further held that the owner of the substance or material could maintain an action of theft against the purloiner, and also an action for damages (condictio), because, though the property which is destroyed cannot be vindicated, this is no bar to a condictio or personal action for damages against the thief and against certain other possessors.
§ 62. It sometimes occurs that an owner has not a power of alienation, and that a person who is not owner has a power of alienation.
§ 63. The alienation of dower land by the husband, without the consent of the wife, is prohibited by the lex Julia, although the husband has become owner of the land by its mancipation to him as dower, or by its surrender to him before a magistrate, or by his usucapion of it. Whether this disability is confined to Italian soil, or extends to the provinces, authorities differ.
§ 64. Contrariwise, an agnate, as a lunatic’s curator, is empowered to aliene the lunatic’s property by the law of the Twelve Tables; and so is a procurator that of his principal (when invested by his principal with free power of administration: Inst. 2, 1, 43). Again, a pledgee, in pursuance of a pact authorizing him to sell, may aliene the pledge, though he is not owner of the thing; this, however, may be said to rest on the assent of the pledgor previously given in the agreement which empowered the pledgee to sell in default of payment.
§ 65. Tradition or transfer of possession, as we have seen, was a natural mode of transferring ownership in such non-mancipable things as were corporeal: in mancipable things it could only transfer bonitary ownership. The nature of this conveyance, which belongs to jus gentium, has been fully explained above, §§ 14 a-27, comm.
Fructus or produce of a thing, when they become distinct entities, belong to the owner of the principal thing, unless specially acquired from him by some one else. They may be so acquired by transfer, in which case one act of assent may suffice as the antecedent to many acts of prehension; for instance, in the gathering (perceptio) of fruits by a usufructuary. Here the taking them occurs from time to time; the will or intention of the owner of the principal thing was manifested once for all when he created the usufruct. But in the case of a hirer of land by mere contract (colonus) a special tradition of the fructus by the owner in each particular case of acquisition is required. Thus if the fructus are res nec mancipi, perception of them, with the consent of the owner, gives him ownership: if they are res mancipi, bona fide possession, which usucapio will ripen into ownership.
Mere severance (separatio) of fruits (fructus) from the soil or parent substance, without any act of appropriation (perceptio), gives to the bona fide possessor, according to Savigny, Besitz, 22 a, bona fide possession, which will be transformed into ownership by usucapion: according to Vangerow, § 326, it gives him immediate and plenary ownership. Windscheid, Pandekten, § 186, notes 11 and 12, takes an intermediate position. Cf. Inst. Just. 2, 1, 35.
If the true owner recovers his land or cattle by vindicatio, the judex will compel a bona fide possessor who is defendant to restore the unconsumed fruits (fructus extantes) but not to make compensation for the consumed fruits (fructus consumpti). The mala fide possessor, on the contrary, acquires no property in the consumed fruits, but is compelled either by the vindicatio by which the principal thing is recovered or by a separate personal action (condictio) to restore their value; he may likewise be compelled to restore the fructus extantes either by the principal vindicatio or by a separate vindicatio. He can be sued for the value of the fruits he has neglected to gather (fructus neglecti) only in the principal vindicatio: their non-existence prevents his being sued for them in a separate vindicatio; and the fact that he is not enriched by them prevents his being sued for them in a separate condictio, Savigny, System, § 267.
§§ 66-69. Occupation gives property in a thing which previously has no owner. Quod enim ante nullius est, id naturali ratione occupanti conceditur, Inst. 2, 1. 12. If a thing had already an owner, it is only after dereliction by him that it can be appropriated by occupation. Dereliction, or renunciation of ownership, requires both the intention to abandon it and an external action. Thus the casting overboard of articles in a tempest to lighten a ship is not dereliction, as there is no intention of abandoning the property in the event of salvage, Inst. 2, 1, 48. Nor does the mere intention of abandonment constitute dereliction of ownership without a throwing away or removal or some other external act; and herein dereliction of ownership differs from dereliction of possession, which does not require this second element. Differentia inter dominium et possessionem haec est, quod dominium nihilo minus ejus manet qui dominus esse non vult, possessio autem recedit ut quisque constituit nolle possidere, Dig. 41, 2, 17. ‘There is this difference between ownership and possession, that ownership continues after the will to own has ceased, whereas possession ceases with the cessation of the will to possess.’
§ 68. Among wild animals (ferae naturae) a distinction is to be drawn. In those of them that are half tamed (mansuefactae), among which are mentioned deer, peacocks, pigeons, bees, property is not limited by strict detention, as in other wild animals, but by animus revertendi. A migrating swarm (examen) of bees, accordingly, would only continue to belong to the owner of the hive as long as it continues in his sight and is easy to recapture, as it has no intention of returning. In tame animals, e. g. dogs or geese, the rights of the owner are not extinguished by their straying without an intention to return. Inst. 2, 1, 12-16.
§§ 76-79. The intimate conjunction of two things, so that they are no longer separable and restorable to their former condition, may produce a transmutation of ownership. A separable junction, as when two flocks of sheep are intermingled, or when a stone is set in a ring, or when two metals are soldered together (plumbatura), or when the grain of one man is mixed with that of another, apart from an agreement to share in common, produces no change of ownership. In one case, however, namely, when material has been used in building a house on another man’s land, although the property of the owner of the material continues, it is in a dormant state since he cannot, so long as it is fixed to the land, vindicate it, ‘quia superficies solo cedit,’ § 73. The Twelve Tables, however, allowed him the actio de tigno juncto to recover double the value.
An inseparable union sometimes produces co-ownership in the whole (communio), sometimes the exclusive ownership of one of the parties (accessio).
When two things belonging to different owners are mixed but neither produce a new species, nor the relation of principal and accessory, e. g. when two similar wines or metals are mixed; or when a new species is produced with the consent of both owners, as when mead is produced by mixing honey and wine, electrum by mixing gold and silver; then each owner loses his separate ownership of a part, and becomes joint owner of the whole. Inst. 2, 1, 27.
When a new species is produced by one owner without the consent of the other, then, according to the law as settled by Justinian, the exclusive ownership is vested in the producer, and the other can only obtain redress by actio in personam for the loss of his ownership.
Further, when the mixture establishes the relation of principal and accessory, that is, when one thing loses its independent existence and becomes a part of the other (accessio), then the ownership in the whole is vested in the owner of the dominant part, accessorium sequitur principale; cf. Dig. 6, 1, 23 Si quis rei suae alienam rem ita adjecerit, ut pars ejus fieret, veluti si quis statuae suae bracchium . . . adjecerit, dominum ejus totius rei effici . . . plerique recte dicunt. It will sometimes be a question which part is to be regarded as principal and which as accessory, and the solution does not depend on their comparative value. The Roman jurists themselves differ sometimes, as is shown in the text, in their application of the principle of accession, but the principle itself seems to be that the part which maintains its previous identity and gives the dominating character to the entire thing is principal, while the part which is merged in the other and so ceases to have an independent existence, is accessory, as e. g. trees of one person planted and taking root in the land of another, are thereby entirely incorporated in the land. So again, a fresco painted by one person on a wall belonging to another is evidently something accessory to the wall. The case of an independent picture is a subject of dispute in this relation. Gaius, § 78, appears to think that it ought to be governed by the analogy of a manuscript, where the property in the writing follows the property in the paper, § 77. It may be said, however, that the principle of accession does not properly apply to a picture or to a manuscript of literary value, since they are new creations, differing in character from the materials in which they are embodied. It was indeed finally settled by Justinian that the property in the picture belonged to the painter, though the latter would be bound, as in similar cases, to make good the loss suffered by the previous owner of the canvas. Inst. 2, 1, 34, cf. Sohm. § 64 n.
The remedy of the ex-proprietor of the accessory is utilis actio, § 78. This appears to be a real action (utilis in rem actio), which, as a real action implies that the plaintiff is owner, seems to mean a Fictitious action, 4 § 34, i. e. one whose formula feigns that the property was never divested by Accession. This may be what Gaius means by utilis actio.
§ 79. Specification or conversion by labour of something so as to constitute a new thing is a title which cannot without violence be brought under either Occupatio or Accessio. Here one person contributes only his labour, whereby he transforms the material or materials belonging to another into a new product (nova species). The Sabinians held that the product belonged (by Accessio?) to the owner of the material, the Proculians (by Occupatio?) to the producer of the specification or conversion. Justinian adopts an intermediate opinion, which Gaius mentions, Dig. 41, 1, 7, 7, cf. Inst. 2, 1, 25, that the product belongs to the producer, provided that it cannot be reduced to its original substance, while if it can be it belongs to the owner of that substance; e. g. a gold or silver vessel belongs to the owner of the gold or silver out of which it was made: and provided further that the change is a genuine fabrication or manufacture; for instance, the mere thrashing out of corn is not sufficient to change the ownership, and therefore the corn belongs to the owner of the sheaves, cf. § 79: and the mere dyeing of wool operates no transfer of ownership to the dyer, Dig. 41, 1, 26, 3.
In the subjoined synopsis of the various titles to ownership which have been considered the proper position of Specification is open to controversy, but it would seem that it should be regarded as a distinct and original mode of acquisition.
Acquisition is either Derivative, that is derived by Succession from some one else, or Original, arising independently of any one else.
Derivative acquisition depends on (1) the will of the previous owner (alienatio, testatio), (2) the disposition of a magistrate or judex (adjudication, addiction, execution), or (3) a direct disposition of law (intestate succession, caducity, forfeiture).
Original acquisition is either independent of Possession or depends on Possession.
Original acquisition independent of Possession is either the effect of Separation or of Conjunction.
Separation is a title to property in the case of Separatio fructuum, which confers property in the fruits on the owner of the principal thing, or on the bona fide possessor of it, or on the emphyteuta.
Conjunction is either the conjunction of equal with equal or the conjunction of accessory with principal.
The conjunction of equal with equal is seen in Confusio, which produces communio or co-proprietorship.
The conjunction of accessory with principal is either of immovable with immovable, instanced in Alluvio:
or of movable with immovable, instanced in Satio, Plantatio, Inaedificatio:
or of movable with movable, instanced in Scriptura, Pictura.
Original acquisition dependent on Possession is either further dependent on Time or is not dependent on Time.
Original acquisition dependent on Possession and further dependent on Time is seen in Usucapio and Praescriptio longi temporis, when this latter became an acquisitive and not simply an extinctive title.
Original acquisition dependent on Possession but independent of Time is seen in Occupatio, or taking possession of a res nullius, including Captio ferarum, Captio hostilis, Inventio derelicti, Inventio thesauri.
§§ 62-64. It is conjectured that by some accidental displacement these three paragraphs have been transposed, and that in their proper order they should follow § 61. There seems no good reason why they should be interposed between the titles of civil law and the titles of natural law.
The lex Julia, relating only to Italian soil, permitted the husband to aliene the dotal land, with the consent of the wife, but prohibited its hypothecation, even with her consent. Justinian extended the prohibition to provincial soil, and to alienation with the wife’s consent, Inst. 2, 8, pr.
In the time of the jurist Javolenus, who flourished under Trajan and Hadrian, and still probably in that of Gaius, the power of sale of a pledge, § 64, was what is known in later jurisprudence as accidentale negotii, requiring a special agreement, Dig. 47, 2, 73, where by an omission of the compilers the law is not brought up to date. But in later law, as early at least as the time of Ulpian it had become a necessary consequence of the transaction—essentiale negotii—so that a contrary agreement is inoperative, except that it imposes a necessity of three denunciations or demands of payment, Dig. 13, 7, 4.
Oliver J. Thatcher, A Source Book for Mediaeval History. Selected Documents Illustrating the History of Europe in the Middle Age, ed. Oliver J. Thatcher and Edgar Holmes McNeal (New York: Charles Scribner’s Sons, 1905). Chapter: 306.: Otto I Grants Jurisdiction over a Town to the Abbots of New Corvey, 940.
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For about 300 years after the time of Karl the Great the cities of Germany did not have self-government. Under Karl they were governed by an imperial or royal official. With the appearance and growth of feudalism, the towns came into the hands of the bishops, dukes, counts, etc., and were governed by them.
Frequently new towns grew up about monasteries or the churches, especially cathedral churches. As the land on which the town was built belonged to the abbot or bishop, as the case might be, he was naturally regarded as its lord, and of course he had jurisdiction over all its inhabitants. It is apparent that such a new town had sprung up around the monastery of New Corvey, and by this document Otto I recognized that its abbot had jurisdiction over all the people who lived on the lands of the monastery.
Otto I, etc. . . . Therefore, let all our subjects, both present and future, know that, for the love of God, the salvation of our souls, and the forgiveness of our sins, at the request of our beloved wife, we have granted that all the abbots of the monastery of New Corvey,1 beginning with Folkmar, who is now its abbot, shall have jurisdiction over all the men who live in the territory of the monastery and in the city which has been built up about it, that is, in, etc. [Here follow the names of the places over which the monastery shall have jurisdiction.] And no man and no official shall have the right of exercising over the aforesaid men that jurisdiction which is commonly called “Burgbann” [that is, the jurisdiction that goes with a town], except the abbot of the monastery and those to whom he may delegate it.
[1 ] New Corvey, near Paderborn, was founded in 816, for the purpose of Christianizing the newly conquered Saxons. It was named after its mother monastery, Corbie, in France. It was for a long time the most famous monastery in north Germany.
Oliver J. Thatcher, A Source Book for Mediaeval History. Selected Documents Illustrating the History of Europe in the Middle Age, ed. Oliver J. Thatcher and Edgar Holmes McNeal (New York: Charles Scribner’s Sons, 1905). Chapter: 302.: Otto I Grants a Market to an Archbishop, 965.
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See introductory note to no. 301.
In the name of the undivided Trinity. Otto by the favor of God emperor, Augustus. If we grant the requests of clergymen and liberally endow the places which are dedicated to the worship of God, we believe that it will undoubtedly assist in securing for us the eternal reward. Therefore, let all know that for the love of God we have granted the petition of Adaldagus, the reverend archbishop of Hamburg, and have given him permission to establish a market in the place called Bremen. In connection with the market we grant him jurisdiction, tolls, a mint, and all other things connected therewith to which our royal treasury would have a right. We also take under our special protection all the merchants who live in that place, and grant them the same protection and rights as those merchants have who live in other royal cities. And no one shall have any jurisdiction there except the aforesaid archbishop and those to whom he may delegate it. Signed with our hand and sealed with our ring.
Oliver J. Thatcher, A Source Book for Mediaeval History. Selected Documents Illustrating the History of Europe in the Middle Age, ed. Oliver J. Thatcher and Edgar Holmes McNeal (New York: Charles Scribner’s Sons, 1905). Chapter: 303.: Otto III Grants a Market to Count Bertold, 999.
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See introductory note to no. 301.
In the name of the holy and undivided Trinity. Otto by the clemency of God emperor, Augustus. If we grant the petitions of our faithful subjects we shall no doubt make them more faithful to us. Therefore, we wish all our subjects, present and future, to know that, at the request of the noble duke, Hermann, we have given our count, Bertold, full authority to establish a market, with a mint, tolls, and public jurisdiction, in a certain place called Vilungen, in the county of Bara, over which count Hildibald has jurisdiction. And by royal decree we make this a legal [and regular] market, with all the functions of a market. And no one shall be permitted to interfere with it. All who wish to come to this market may come and go away in security and peace. No unjust charges shall be levied on them, but they may buy and sell and do everything else that belongs to the business of a merchant. And if anyone tries to violate or break this concession, he shall pay the same fine as one who should violate the market at Constance, or Zürich. He shall pay this fine to count Bertold, or to his representative. The aforesaid count shall have the right of holding, changing, granting, and making any arrangement in regard to this market, as he pleases. . . .
Oliver J. Thatcher, A Source Book for Mediaeval History. Selected Documents Illustrating the History of Europe in the Middle Age, ed. Oliver J. Thatcher and Edgar Holmes McNeal (New York: Charles Scribner’s Sons, 1905). Chapter: 75.: The Deposition of Gregory VII by Henry IV, January 24, 1076.
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See introductory note to no. 74.
Henry, king not by usurpation, but by the holy ordination of God, to Hildebrand, not pope, but false monk.
This is the salutation which you deserve, for you have never held any office in the church without making it a source of confusion and a curse to Christian men instead of an honor and a blessing. To mention only the most obvious cases out of many, you have not only dared to touch the Lord’s anointed, the archbishops, bishops, and priests; but you have scorned them and abused them, as if they were ignorant servants not fit to know what their master was doing. This you have done to gain favor with the vulgar crowd. You have declared that the bishops know nothing and that you know everything; but if you have such great wisdom you have used it not to build but to destroy. Therefore we believe that St. Gregory, whose name you have presumed to take, had you in mind when he said: “The heart of the prelate is puffed up by the abundance of subjects, and he thinks himself more powerful than all others.” All this we have endured because of our respect for the papal office, but you have mistaken our humility for fear, and have dared to make an attack upon the royal and imperial authority which we received from God. You have even threatened to take it away, as if we had received it from you, and as if the empire and kingdom were in your disposal and not in the disposal of God. Our Lord Jesus Christ has called us to the government of the empire, but he never called you to the rule of the church. This is the way you have gained advancement in the church: through craft you have obtained wealth; through wealth you have obtained favor; through favor, the power of the sword; and through the power of the sword, the papal seat, which is the seat of peace; and then from the seat of peace you have expelled peace. For you have incited subjects to rebel against their prelates by teaching them to despise the bishops, their rightful rulers. You have given to laymen the authority over priests, whereby they condemn and depose those whom the bishops have put over them to teach them. You have attacked me, who, unworthy as I am, have yet been anointed to rule among the anointed of God, and who, according to the teaching of the fathers, can be judged by no one save God alone, and can be deposed for no crime except infidelity. For the holy fathers in the time of the apostate Julian did not presume to pronounce sentence of deposition against him, but left him to be judged and condemned by God. St. Peter himself said: “Fear God, honor the king” [1 Pet. 2:17]. But you, who fear not God, have dishonored me, whom He hath established. St. Paul, who said that even an angel from heaven should be accursed who taught any other than the true doctrine, did not make an exception in your favor, to permit you to teach false doctrines. For he says: “But though we, or an angel from heaven, preach any other gospel unto you than that which we have preached unto you, let him be accursed” [Gal. 1:8]. Come down, then, from that apostolic seat which you have obtained by violence; for you have been declared accursed by St. Paul for your false doctrines and have been condemned by us and our bishops for your evil rule. Let another ascend the throne of St. Peter, one who will not use religion as a cloak of violence, but will teach the life-giving doctrine of that prince of the apostles. I, Henry, king by the grace of God, with all my bishops, say unto you: “Come down, come down, and be accursed through all the ages.”
Oliver J. Thatcher, A Source Book for Mediaeval History. Selected Documents Illustrating the History of Europe in the Middle Age, ed. Oliver J. Thatcher and Edgar Holmes McNeal (New York: Charles Scribner’s Sons, 1905). Chapter: 77.: The First Deposition and Excommunication of Henry IV by Gregory VII, 1076.
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See introductory note to no. 74.
St. Peter, prince of the apostles, incline thine ear unto me, I beseech thee, and hear me, thy servant, whom thou hast nourished from mine infancy and hast delivered from mine enemies that hate me for my fidelity to thee. Thou art my witness, as are also my mistress, the mother of God, and St. Paul thy brother, and all the other saints, that thy holy Roman church called me to its government against my own will, and that I did not gain thy throne by violence; that I would rather have ended my days in exile than have obtained thy place by fraud or for worldly ambition. It is not by my efforts, but by thy grace, that I am set to rule over the Christian world which was specially intrusted to thee by Christ. It is by thy grace and as thy representative that God has given to me the power to bind and to loose in heaven and in earth. Confident of my integrity and authority, I now declare in the name of omnipotent God, the Father, Son, and Holy Spirit, that Henry, son of the emperor Henry, is deprived of his kingdom of Germany and Italy; I do this by thy authority and in defence of the honor of thy church, because he has rebelled against it. He who attempts to destroy the honor of the church should be deprived of such honor as he may have held. He has refused to obey as a Christian should, he has not returned to God from whom he had wandered, he has had dealings with excommunicated persons, he has done many iniquities, he has despised the warnings which, as thou art witness, I sent to him for his salvation, he has cut himself off from thy church, and has attempted to rend it asunder; therefore, by thy authority, I place him under the curse. It is in thy name that I curse him, that all people may know that thou art Peter, and upon thy rock the Son of the living God has built his church, and the gates of hell shall not prevail against it.
Oliver J. Thatcher, A Source Book for Mediaeval History. Selected Documents Illustrating the History of Europe in the Middle Age, ed. Oliver J. Thatcher and Edgar Holmes McNeal (New York: Charles Scribner’s Sons, 1905). Chapter: 65.: Dictatus Papæ, ca. 1090.
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Until recently the Dictatus Papæ was supposed to have been written by Gregory VII, but it is now known to have had a different origin. In 1087 cardinal Deusdedit published a collection of the laws of the church, which he drew from many sources, such as the actions of councils and the writings of the popes. The Dictatus agrees so clearly and closely with this collection, that it must have been based on it; and so must be later than the date of its compilation, 1087. It seems evident that some one, while reading the collection of Deusdedit, wishing to formulate the papal rights and prerogatives, expressed them in these twenty-seven theses. Although they were not formulated by Gregory himself, there is no doubt that they express his chief principles.
1. That the Roman church was established by God alone.
2. That the Roman pontiff alone is rightly called universal.
3. That he alone has the power to depose and reinstate bishops.
4. That his legate, even if he be of lower, ecclesiastical rank, presides over bishops in council, and has the power to give sentence of deposition against them.
5. That the pope has the power to depose those who are absent [i.e., without giving them a hearing].
6. That, among other things, we ought not to remain in the same house with those whom he has excommunicated.
7. That he alone has the right, according to the necessity of the occasion, to make new laws, to create new bishoprics, to make a monastery of a chapter of canons, and vice versa, and either to divide a rich bishopric or to unite several poor ones.
8. That he alone may use the imperial insignia.
9. That all princes shall kiss the foot of the pope alone.
10. That his name alone is to be recited in the churches.
11. That the name applied to him belongs to him alone.
12. That he has the power to depose emperors.
13. That he has the right to transfer bishops from one see to another when it becomes necessary.
14. That he has the right to ordain as a cleric anyone from any part of the church whatsoever.
15. That anyone ordained by him may rule [as bishop] over another church, but cannot serve [as priest] in it, and that such a cleric may not receive a higher rank from any other bishop.
16. That no general synod may be called without his order.
17. That no action of a synod and no book shall be regarded as canonical without his authority.
18. That his decree can be annulled by no one, and that he can annul the decrees of anyone.
19. That he can be judged by no one.
20. That no one shall dare to condemn a person who has appealed to the apostolic seat.
21. That the important cases of any church whatsoever shall be referred to the Roman church [that is, to the pope].
22. That the Roman church has never erred and will never err to all eternity, according to the testimony of the holy scriptures.
23. That the Roman pontiff who has been canonically ordained is made holy by the merits of St. Peter, according to the testimony of St. Ennodius, bishop of Pavia, which is confirmed by many of the holy fathers, as is shown by the decrees of the blessed pope Symmachus.
24. That by his command or permission subjects may accuse their rulers.
25. That he can depose and reinstate bishops without the calling of a synod.
26. That no one can be regarded as catholic who does not agree with the Roman church.
27. That he has the power to absolve subjects from their oath of fidelity to wicked rulers.
Section 1 means that the Roman church received the primacy over the whole church directly from Christ. Section 8 is based on the forged Donation of Constantine, according to which the emperor gave the pope the right to use the imperial insignia. In section 11 it is not clear what name is meant. It may be “universal” as in section 2. The bishop of Rome claimed the exclusive right to call himself pope, apostolic, and universal. Papa or pope was at first the common title of all priests, and is still so in the Greek church. But in the course of time it was limited in the west to the bishop of Rome. “Apostolic” was at first applied to all bishops, but eventually the bishop of Rome claimed the exclusive right to it and forbade all other bishops to use it. Since the bishop of Rome was the head of the whole church he was the only one who could call himself “universal.” The right of ordaining, section 14, that is, of raising to the clerical rank, belonged to each bishop, but he could exercise it only in his own diocese. But the bishop of Rome had the whole world for his diocese, and hence he could ordain any one, no matter to what bishopric he belonged. In explanation of section 23 the following passage from pope Symmachus (498-514) is offered (Hinschius, “Decretales,” p. 666). “We do not judge that St. Peter received from the Lord with the prerogative of his chair [that is, with his primacy] the right to sin. But he passed on to his successors the perennial dower of his merits with his heritage of innocence. Who can doubt that he who is exalted to the height of apostolic dignity is holy?”
Augustin Thierry, The Formation and Progress of the Tiers État, or Third Estate in France, translated from the French by the Rev. Francis B. Wells, Two volumes in One (London: Henry G. Bohn, 1859). Chapter: SECTION IV.: Grant made by Philip of Alsace, Count of Amiens—Cession of the County of Amiens to Philippe-Auguste, King of France—Confirmation of the Commune—Additional Articles of the Communal Charter of Amiens; its definitive Text. *
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In 1161 Philip of Alsace, count of Flanders and Amiens, with the consent of his wife, Isabel, made a grant to the abbey of Saint-Jean-lez-Amiens.† The following words occur in the deed which was then drawn up: “I direct and prescribe to the mayor and the whole commune of Amiens, as well as to all others who owe me allegiance, to maintain in peace the property of this church, and if it happen to be disturbed or attacked, to afford it assistance and protection in my stead.”* It is as successor to the ancient counts, and heir of their seigneurial rights, that Philip of Alsace addresses this injunction to the citizens, and speaks to them as their supreme lord. We should not, however, infer from this imperative form of expression that his power was greater at Amiens in 1161 than that of the commune. From the year 1117 the political government within the city and its precincts belonged entirely to the bourgeoisie. The words which I have quoted, then, contain an appeal to the effective means of the commune rather than a delegation of the seigneurial power. In the year 1170 a letter of the count, Philip, placed in the same manner another abbey under the protection of the civic body. This letter, like that of 1161, proves, in my opinion, that the commune alone had at that time sufficient strength and authority to protect the civil and ecclesiastical possessions in an efficient manner, and to maintain peace and good order throughout the whole of the territory subjected to its jurisdiction.
Philip of Alsace, having lost his wife Elizabeth in 1182, still kept possession of all the fiefs which she had brought to him as her dowry. Eleanor of Vermandois reclaimed the inheritance of her sister, and Philippe-Auguste, to whom she had secretly ceded a part of Vermandois and Amiénois, put in his claims to these domains. A war, already excited on account of them between the king and the count of Flanders, was terminated by putting Amiens in sequestration into the hands of the bishop of that city. Philippe-Auguste again took arms in defence of the interests of Eleanor in 1184; and the following year, Philip of Alsace, compelled to resign, abandoned all his rights over the county of Amiens to the king.
This cession would necessarily react upon the constitution of the commune. As king and count at once, Philippe-Auguste found himself suddenly invested with a twofold power in the city of Amiens. Without giving up his feudal title of count of Amiens, he took care to show in all his acts that royal power, which placed him above the seigneurs whose position he occupied, and he clearly established the difference which existed between his authority and that of the ancient counts. The latter, when they took possession of the county of Amiens, had to do homage to the bishop; Philippe-Auguste did not choose to discharge a formality which would have made him resemble a simple baron, and have been contrary to the idea of absolute sovereignty attached to the title of king. The following is an instance of the manner in which he expressed himself in a charter granted to the church of Amiens in 1185:—
“Let all, present and to be, know, that Philip, count of Flanders, having resigned to us the city and county of Amiens, we have clearly recognised the fidelity and devotion of the church of Amiens towards us; for not only has it displayed much devotion to us in this matter, but, besides, seeing that the tenure of the above-mentioned land and county belong to this church, and that it has the right of homage for them, this church has indulgently consented and agreed that we should hold its fief without rendering it homage, for we neither ought nor can render homage to any.”*
The union of the county of Amiens to the crown could not, as we have said, remain without influence on the destinies of the commune. The relations of the bourgeois to the count and his officers had been determined in the charter which was drawn up in 1117; but the new order of things of necessity brought on a change, if not in the constitution of the city, and the nature of its relations to its immediate seigneur, yet at least in the manner of regulating, and especially of expressing, these relations. In this respect it was necessary to fix the principles and to certify the facts by an authentic document. In passing, moreover, under the power of a new seigneur, the bourgeois of Amiens could not help feeling the necessity of making their municipal franchises known to him, and much more as that new seigneur was the king of France, who had united in his own person the entire local right of the count, and the general right of the sovereign. Such was the double object of the charter granted in 1190 by Philippe-Auguste, at the request of the bourgeois of Amiens—a charter which conceded (concéda) to them, according to its official tenour, or, more accurately, guaranteed to them, the establishment of the commune confederated in 1113, and constituted in 1117.
This charter, far from being a new act, only repeated, with the exception of certain modifications of form, and the regulation of certain more direct relations between the city and the royal power, the text of the charter which emanated from the first successor of Enguerrand de Boves. It consists of three distinct parts; to wit, 1, forty-five articles, which, in my opinion, formed the first charter which was deliberated upon by the bourgeois, and agreed to by the count, after the communal revolution; 2, a memorandum concerning the redemption of tolls, effected by the commune between the years 1144 and 1164;* 3, six additional articles annexed by the chancery of Philippe-Auguste to the original charter, when this charter was examined and revised.
It is easy to prove the history of this revision from the text of the document itself. The original of the constitutional act of 1117 existed from this date in the archives of the commune of Amiens; about 1160 was inscribed at the foot of this original, after the signatures, the memorandum relative to the redemption of tolls; and in this condition the charter was conveyed to the royal chancery, which maintained both its provisions and its form, with the exception of some alterations in the words. In the articles in which the title of count occurred, the title of king was substituted simply and without addition; the rest of the text was not subjected to the least correction; the formulas præpositus noster and the simple word præpositus, which had served to designate the prévôt of the count of Amiens, were retained to designate the prévôt of the king.* The signatures attached in 1117 were suppressed, and a memorandum of this suppression was made the subject of an article, the forty-sixth, after which the royal officers, without troubling themselves about the incongruity, placed their six additional articles.
These provisions, derived from a different source, formed the official code, the body of written law, by which the commune of Amiens was henceforth governed. I shall say nothing of the memorandum, which was placed by chance among the legal articles. With respect to the forty-five articles, of which I have already spoken in the notice which I took of those, which their agreement with the charter of Abbeville points out as undoubtedly original, I have already examined them under two heads, that of the political and that of the criminal law. I shall now examine them under the head of the civil law, of which no mention has been made above, as the commune of Abbeville, finding in its local customs rules of civil law, did not borrow anything in this respect from the text of the communal charter of Amiens.
The civil usages, indeed, sanctioned by this charter in 1117, were of immemorial antiquity in the city and county of Amiens; they had existed long previously to the commune; and when the difference in the political institutions took place, they were registered, not decreed, by the enfranchised bourgeois. Two principles of law seem to have been then proclaimed for the first time; the one which restrained the abuses of the trial by duel, by appointing that no hired champion should be allowed to engage with a member of the commune;* the other, which, no doubt, derogating from the ancient custom, ordered that the accuser, the accused, and the witness might, if they chose, make themselves heard in every case by advocates.†
The traditional provisions which passed into the communal charter of Amiens from the ancient custom must be referred to three sources,—the Roman law, the traces of which, however faint and indistinct they may be, exist at the base of all our customs; the ancient law of the German populations; and that common law of the middle ages which is called the feudal law.
No article of the charter can be pointed out in particular as being derived from a formal text of the Roman law. The provisions of the 21st, 23d, 22d, 35th, and 32d, have reference in a greater or less degree to the German laws. Under the name of dot, the 21st article points out the dowry assigned by the husband to his wife, and declares it inalienable, without saying what its nature was in the usages of the city of Amiens—whether it were settled by custom, or merely conventional. The 23d article shows that the widow who had children under age was subjected to a sort of guardianship, and placed under the direction of a protector, whom some customs name a mainbourg.* The 22d and 35th have relation to the division of property acquired during marriage, and in certain cases secure the revenue derivable from them to the surviving party.† Lastly, the 32d article declares the purchaser of a stolen object, who alleges his ignorance, not punishable, and it allows the judge in this case to exact the oath of both parties.‡
The provisions which are derived from the feudal law are found in the articles, in which the judicial combat is allowed, under certain restrictions, as a means of terminating civil suits; in the twenty-fifth article, which consecrates, while at the same time it modifies, the principle of redeeming family property; and in the eighth article, which establishes a penalty against a person who, being injured, refuses to give assurement, that is to say, security to keep the peace to his adversary.*
I call the attention of the reader, moreover, to the following provisions:—The twenty-sixth article fixes seven years as the term necessary to acquire the right of prescriptions. It is known that usage on this point has varied according to times and countries; and there is reason to believe that the charter of Amiens did no more than sanction a rule of local law, which could not be referred to any legislation. The forty-second article, which treats of injurious language made by one juré towards another, places, in the first line, as the most serious offence, the application of the name of serf. The thirty-sixth and thirty-seventh articles lay down a different penalty for injury done to the maire in the discharge of his duties, and for injury done to the prévôt; outrage on the person of the maire is a political crime, punished as such by the destruction of the delinquent’s house; outrage on the person of the prévôt is a fault to be compounded for by agreement, after judgment given by the échevins, and without public punishment. The maintenance of these provisions in the revised charter of 1190 is worthy of remark. It proves that if the prévôté exercised at Amiens in the name of the king had some prerogatives above those of the ancient prévôté of the count, it was not any more than the latter a constitutional power; and, in regard to its dignity, it was still kept under the communal magistracies.
I now come to the six articles which contain the new provisions added to the original charter by the chancery of Philippe-Auguste. Their substance is as follows:—Suits relative to real property within the city shall be judged by the prévôt in open court three times a-year.—All crimes and offences shall be judged by the maire and échevins in presence of the bailli of the king, if he wishes to be present at the judgment; if he does not wish, or is unable to be present, justice shall be administered without him, except in the case of murder and abduction, which are reserved for the king.—The goods of homicides, incendiaries, and traitors, shall be confiscated to the king alone, without division with any other, that is to say, with any co-seigneur.—None shall have power to make a proclamation (ban)* in the city, except by permission of the king and the bishop.—The king, the sénéchal or the prévôt of the king, the bishop and the maire, shall have power, each once a-year, to admit an exile into the city, except in a case where condemnation has been pronounced for murder, homicide, incendiarism, treason, and abduction. Such is the substance of the five first articles. With respect to the sixth and last, it is thus conceived:—“We will and grant to the commune, that it shall never be lawful for ourselves or our successors to cede away the said commune or city of Amiens, but that it shall remain in perpetuity, and without change, united to the royal crown.” A guarantee was implied in this promise for the constitution and franchises of the city, which were henceforth secured against the dangerous eventualities of a change of seigneur.
If a recapitulation be now made of the modifications introduced into the municipal law of Amiens, by the substitution of the seigniory of the king for that of the count, and by the revision of the communal charter, it will be seen that these modifications affect simply the judicial government, and do not make any change at all in regard to the political rights. The seigneurial right of making proclamation or ordinance was, it is true, expressly reserved to the king and the bishop; but it was in respect of other seigneurs of Amiens, and not in respect of the commune, that this restriction took place. For, on the one hand, the articles of the original charter which mentioned the establishment of échevins, statuta scabinorum,* received a fresh sanction by the maintenance given to them in the act granted in 1190; and, on the other hand, the documents subsequent to the twelfth century prove undeniably that the échevinage retained the power of making ordinances on all subjects, legislation, administration, justice, and police. I give below the perfect and definitive text of the communal charter of Amiens:—
“In nomine sancte et individue trinitatis. Amen.* Philippus Dei gratia Francorum rex, quoniam amici et fideles nostri cives Ambianenses fideliter sepius suum nobis exhibuere servitium, nos eorum dilectionem et fidem erga nos plurimam attendentes, ad petitionem ipsorum, communiam eis concessimus,† sub observatione harum consuetudinum, quas se observaturos juramento firmaverunt.
“1. Unusquisque jurato suo fidem, auxilium consiliumque per omnia juste observabit.
“2. Quicumque furtum faciens intra metas communie comprehendetur, vel fecisse cognoscetur, preposito nostro tradetur, et quicquid de eo agendum erit, judicio communionis judicabitur et fiet; reclamanti vero id quod furto sublatum est, si potest inveniri, prepositus noster reddet; reliqua in usus nostros convertentur.
“3. Nullus aliquem inter communiam ipsam commorantem, vel mercatores ad urbem cum mercibus venientes, infra banleucam civitatis disturbare presumat. Quod si quis fecerit, faciat communia de eo, ut de communie violatore, si eum comprehendere poterit, vel aliquid de suo, justitiam facere.
“4. Si quis de communione alicui jurato suo res suas abstulerit, a preposito nostro submonitus justitiam prosequetur; si vero prepositus de justitia defecerit, a majore vel scabinis submonitus, in presentia communionis veniet, et quantum scabini inde judicaverint, salvo jure nostro, ibi faciet.
“5. Qui autem de communione minime existens alicui de communia res suas abstulerit, justitiamque illi infra banleucam se executurum negaverit, postquam hoc hominibus castelli ubi manserit notum fecerit, communia, si ipsum, vel aliquid ad se pertinens, comprehendere poterit, donec ipse justitiam executus fuerit, prepositus noster retinebit, donec nos nostram et communia similiter suam habeat emendationem.
“6. Qui pugno aut palma aliquem de communia, preter consuetudinarium perturbatorem vel lecatorem, percusserit, nisi se defendendo se fecisse, duobus vel tribus testibus contra percussum disrationare poterit, coram preposito nostro, viginti solidos dabit, quindecim scilicet communie et quinque justitie dominorum.
“7. Qui autem juratum suum armis vulneraverit, nisi similiter se defendendo, legitimo testimonio et assertione sacramenti se contra vulneratum disrationare poterit, pugnum amittet, aut novem libras, sex scilicet firmitati urbis et communie, et tres justitie dominorum, pro redemptione pugni persolvet; aut si persolvere non poterit, in misericordia communie, salvo catallo dominorum, pugnum tradet.
“8. Si vero ita superbus fuerit vulneratus, quod emendationem non velit accipere ad arbitrium prepositi et majoris et scabinorum, vel securitatem prestare, domus ejus, si domum habuerit, destruetur, et catalla ejus capientur; si domum non habuerit, corpus ejus capietur, donec vel emendationem acceperit vel securitatem prestiterit.
“9. Qui vero de communione minime existens, aliquem de communia percusserit vel vulneraverit, nisi judicio communie coram preposito nostro justitiam exequi voluerit, domum illius, si poterit, communia prosternet, et capitalia erunt nostra. Et si eum comprehendere poterit, coram preposito regio per majorem et scabinos de eo vindicta capietur, et catalla nostra erunt.
“10. Qui juratum suum turpibus et inhonestis conviciis lacesserit, et duo vel tres audierint ipsum, per eos statuimus convinci, et quinque solidos, duos scilicet conviciato, et tres communie dabit.
“11. Qui inhonestum, alicui, de communia dixerit in audiencia quorumdam, si communie propalatum fuerit, et se quod illud non dixerit, judicum communie judicio defendere noluerit, domum illius, si poterit, prosternet communia, ipsumque in communia morari, donec emendaverit, non patietur, et si emendare noluerit, catalla ejus erunt in manu domini regis et communie.
“12. Si quis de juratione erga juratum suum facta, vel fide mentita, comprobatus fuerit coram preposito et majore, judicio communie punietur.
“13. Si quis de communia prædam scienter emerit vel vendiderit, si inde comprobatus fuerit, prædam amittet eamque prædatis reddet nisi ab ipsis prædatis, vel eorum dominis, adversus dominos communie vel ipsam communiam aliquid committatur.
“14. Qui clamore facto de adversario suo per prepositum et majorem et judices communie justitiam prosequi non poterit,* si postea adversus eum aliquid fecerit, illum rationabiliter communia conveniet, ejusque audita ratione quid inde postea agendum sit judicabit.
“15. Qui a majoribus et judicibus et decanis, scilicet servientibus communie submonitus justitiam et judicium communie subterfugerit, domum illius si poterunt, prosternent, ipsum vero inter eos morari donec satisfecerit, non permittent et catalla erunt in misericordia prepositi regis et majoris.
“16. Qui hostem communie in domo sua scienter receperit, eique vendendo et emendo et edendo et bibendo, vel aliquod solacium impendendo, communicaverit, aut consilium aut auxilium adversus communiam dederit, reus communie efficietur, et nisi judicio communie cito satisfecerit, domum illius, si poterit, communia prosternet, et catalla regis erunt.
“17. Infra fines communie non recipietur campio conducticius contra hominem de communia.
“18. Si quis communie constitutiones scienter absque clamore violaverit, et inde convictus fuerit, mox domum illius communia, si poterit, prosternet, eumque inter eos morari, donec satisfecerit, minime patietur.
“19. Statutum est etiam quod communia de terris sive feodis dominorum non debet se intromittere.
“20. Qui judices communie de falsitate judicii comprobare voluerit, nisi, ut justum est, comprobare potuerit, in misericordia regis est et majoris et scabinorum, de omni eo quod habet.
“21. Mulier dotem quam tenet nec vendere, nec in vadium mittere poterit, nisi propinquiori heredi et nisi de anno in annum. Si autem heres aut non possit aut nolit emere, oportet mulierem tota vita sua tenere, per annum autem locare poterit.
“22. Si quis vir et uxor ejus infantes habeant, et contingat mori infantes, quis eorum supervixerit, sive vir sive mulier, quicquid similiter possederunt de conquisitis, qui superstes erit, quamdiu vixerit, in pace remanebit et tenebit, nisi in vita premorientis donum vel legatum inde factum fuerit. Quod si antequam convenerint, vel vir vel uxor infantes habuerint, post decessum patris aut matris hereditas infantum ad eos redibit, nisi sit feodum.
“22. Si mortuo marito uxor supervixerit, et infantes ejus vivi remanserint, mulier de omni possessione quam vir ejus in pace tenuerat, quamdiu infantes in custodia erunt, donec ipsa advocatum habeat, nisi sit vadimonium, non respondebit.
“24. Si quis ab aliqua vidua pecuniam requisierit, ipsa contra unum testem, non contra plures, per sacramentum se deffendet et in pace remanebit; si vero ab ea aliquam ejus possessionem ut vadium requisierit, ipsa se per bellum deffendet.
“25. Si quis terram, aut aliquam hereditatem ab aliquo emerit, et illa, antequam empta sit, propinquiori heredi oblata fuerit, et heres eam emere noluerit, nunquam amplius de ea illi heredi in causa respondebit. Si autem propinquiori heredi oblata non fuerit, et qui eam emerit, vidente et sciente herede, per annum eam in pace tenuerit, numquam de ea amplius respondebit.
“26. Si quis septem annis aliquam suam possessionem presente adversario in pace tenuerit, numquam de ea amplius respondebit.
“27. Si quis alienus mercator aliquid vendiderit, et ipsa hora pecuniam habere non potuerit, ad dominum emptoris, vel ad prepositum domini prius clamorem faciet, et si una ei justitia defuerit, ad majorem clamorem deferet, et major ei cito pecuniam suam habere faciet, quecunque dies sit.
“28. Quicumque de promissione clamorem fecerit nichil recuperabit.
“29. Si quis major, aut scabinus, aut aliquis de justitia majoris, premium vel acceperit vel requisierit, et ille qui dederit, vel a quo premium quesitum fuerit, ad majorem clamaverit, vel testem super hoc habuerit, accusatus viginti solidos persolvet; et si premium acceperit, reddet.
“30. Quod si accusator testem non habuerit, ille qui accusabitur per sacramentum se defendet.
“31. Si quis ad prepositum clamorem deferet, et prepositus ei justitiam facere noluerit, clamator ad majorem clamorem deferet, et major prepositum ad rationem mittet ut ei justitiam faciat; quam si facere recusaverit, major, salvo jure regio, justitiam faciet, secundum statuta scabinorum.
“32. Si quis super aliquem aliquid quod suum est interciaverit, et ille qui accusabitur responderit se illud non a latrone scienter emisse, hoc pro quo accusabitur perdet, et ante justitiam per sacramentum se defendet, si prepositus vel justicia voluerit, et postea in pace abibit; et hoc idem faciet garanus, si hoc idem dixerit, tam primus quam secundus et tertius; accusator autem hoc quod clamaverit, sacramento confirmabit, si voluerit ille qui justitiam tenebit.
“33. In omni causa et accusator et accusatus et testis per advocatum loquentur, si voluerint.
“34. De possessionibus ad urbem pertinentibus, extra urbem nullus causam facere presumat.
“35. Si vir et uxor aliquam possessionem in vita sua acquisierint, et eorum quispiam mortuus fuerit, qui superstes fuerit medietatem solus habebit, et infantes aliam. Si vir mortuus fuerit, aut uxor mortua fuerit, et infantes vivi remanserint, possessiones, sive in terra sive in redditu, que ex parte mortui venerint, ille qui superstes erit nec vendere, nec ad censum dare, nec in vadium mittere poterit, absque assensu propinquorum parentum mortui, aut donec infantes ejus absque custodia fuerint.
“36. Si quis prepositum regis, in placito vel extra placitum, turpibus et inhonestis verbis provocaverit, in misericordia prepositi erit, ad arbitrium majoris et scabinorum.
“37. Si quis majorem in placito turpibus et inhonestis verbis provocaverit, domus ejus prosternatur; aut secundum pretium, domus in misericordia judicum redimatur.
“38. Si quis juratum suum percusserit vel vulneraverit, et ille qui percussus fuerit clamorem fecerit quod pro veteri odio percussus sit, percussor rectum faciet, secundum statuta scabinorum, pro ictu, et post hoc pro veteri odio, aut per sacramentum se purgabit, aut rectum faciet communie, et novem libras dabit, scilicet vi libras communie et lx solidos justitie dominorum, et persolvet medietatem recti infra octo dies, aut totum, si scabini voluerint. Nullus enim pro eo qui percusserit, quicumque sit, aut vir aut mulier aut puer, sacramentum faciet.
“39. Si major cum communia et juratis in causa sedeat, et aliquis ibi suum juratum percusserit; illius, contra quem in causa plures testes exierint, qui primus ictum dederit, domus prosternetur.
“40. Qui autem in causa jurato suo conviciatus fuerit viginti solidos communie persolvet, ibi justitia dominorum nichil capiet.
“41. Qui juratum suum in aquam aut in paludem jactaverit, si clamator unum testem adduxerit, et major immunditiam viderit, ille malefactor lx solidos persolvet et de hiis habebit justitia dominorum xx solidos. Si immundus nullum testem habuerit contra sanguinem vel immunditiam, per sacramentum se defendet, et liber abibit.
“42, Qui vero juratum suum, servum recredentem, traditorem, wissot,* id est coup, appellaverit, viginti solidos persolvet.
“43. Si filius burgensis aliquid forifacti fecerit, pater ejus pro filio justitiam communie exequetur. Si autem in custodia patris non fuerit, et submonitus, justitiam subterfugerit, uno anno a civitate ipsum extraneum esse oportebit. Si autem anno preterito, redire voluerit, secundum statuta scabinorum preposito et majori rectum faciet.
“44. Si conventio aliqua facta fuerit ante duos vel plures scabinos, de conventione illa amplius non surget campus nec duellum, si scabini, qui conventioni interfuerint, hoc testificati fuerint.
“45. Omnia ista jura et precepta que prediximus majoris et communie, tantum sunt inter juratos. Non est equum judicium inter juratum et non juratum.
“46. Ambianensium solebat esse consuetudo, quod, in festis apostolorum, de unaquaque quadriga per unam quatuor portarum urbis in villam introeunte, Guarinus Ambianensis archidiaconus obolum accipiebat. Major vero et scabini, qui tunc temporis extiterunt, per consilium Theodorici, tunc episcopi Ambianensis, consuetudinem prefatam ab archidiacono, quinque solidis et quatuor caponibus, emerunt et ad censum ceperunt; et censum illum ad furnum Firmini de Claustro, extra portam Sancti Firmini, in valle situm, archidiaconus sumit.
“47. De omnibus tenementis ville justitia exhibebitur per prepositum nostrum, ter in anno, in placito generali: videlicet in Natali domini, in Pascha et in Penthecoste.
“48. Omnia autem forifacta, que infra banleugam civitatis fient, major et scabini judicabunt, et de illis justitiam facient, sicut debent, presente ballivo nostro, si ibi voluerit interesse; si vero interesse noluerit, vel non poterit, pro ejus absentia justitiam facere non desinent, sed debitam justitiam facient, excepto tamen multro et raptu, quod nobis et successoribus nostris in perpetuum retinemus, sine parte alterius.
“49. Catalla vero homicidarum, incendiariorum et proditorum nostra sunt absolute, sine parte alterius. In catallis vero aliorum forefactorum retinemus nobis et successoribus nostris id quod habuimus et habere debemus.
“50. Bannum in villa nullus potest facere, nisi per regem et episcopum.
“51. Si quis bannitus est pro aliquo forifacto, excepto multro, homicidio, incendio, proditione, raptu, rex, vel senescallus, vel prepositus regis, episcopus, major, unusquisque eorum semel in anno, poterit eum conducere in villam.
“52. Volumus etiam et communie in perpetuum quittamus et concedimus, quod, nec nobis, nec successoribus nostris, liceat civitatem Ambianensem vel communiam extra manum nostram mittere, sed semper regie inhereat corone.
“Que omnia ut in perpetuum rata et firma permaneant presentem paginam sigilli nostri auctoritate et regii nominis karactere inferius annotato, salvo jure episcopi et ecclesiarum et procerum patrie et alieno jure, confirmamus. Actum Lorriaci, anno incarnati Verbi millesimo centesimo nonagesimo, regni nostri anno xio. Astantibus in palatio nostro quorum nomina supposita sunt et signa: S. comitis Theobaldi, dapiferi nostri; S. Guidonis, buticularii; S. Mathei, camerarii; S. Radulphi, constabularii. Data vacante cancellaria.”*
The idea of throwing light upon the sources and history of the Tiers Etat, by the publication of a large collection of original documents, belongs to M. Guizot, Minister of Public Instruction. It was he who intrusted me, in 1836, with the execution of this task, which, though zealously undertaken, has been too long delayed, in spite of my wishes, by unforeseen difficulties and the sad state of my health. It was intended to do, in respect of the third of the ancient orders of the nation, what French learning had already done more than two centuries ago in respect of the nobility and the clergy. Above all, I asked myself what a collection of the memorials of the history of the Tiers Etat, or of the plebeian classes in France, ought to be, and what materials of various kind it would be necessary to introduce. These materials, different according to the relation which they bear to the private or public character of individuals, to their position in the family, the corporation, or the commune, in the province or the state, appeared to me to fall naturally under four heads, requiring as many separate collections, of which I here give the summary:—
1. A Collection of Documents relative to the Personal Condition of the Plebeian Classes, whether that of the Serf or the Freeman.—Acts indicating the progressive modification of the ancient form of slavery to that of serfdom on the estate, and the commencement of property in the hands of servile families.—Enfranchisements of families or individuals with or without condition.—Privileges other than those of nobility granted to certain persons and families.—Grants of the title of bourgeois of the king.—Royal or seigneurial privileges obtained by peasants who were not united in a municipal community.—Petitions addressed to the supreme courts of the provinces and the parliament of Paris, for the enjoyment of the right of immunity both of person and property.—Judgments pronounced in favour of these demands or against them.
2. A Collection of Documents relative to the Condition of the Bourgeoisie, considered in its various Corporations.—Constitutive statutes of the ancient companies of arts and trades.—Acts and regulations relative to the freedom and wardenship of corporations to the councils of prud’ hommes and consulates of commerce.—Royal or municipal ordinances concerning the practice of the law, the bar, medicine, and surgery, the exercise of all the learned or unlearned, the liberal or industrial professions.
3. A Collection of Documents relative to the Ancient Condition of Cities, Boroughs, and Parishes of France.—Acts indicating the continuance of the Roman municipal system, and the condition of the inhabitants of cities prior to the twelfth century.—Charters of communes granted by the kings or the seigneurs.—Municipal statutes of the cities.—Municipal deliberations and regulations of urban police.—Ordinances delivered to increase, modify, or abolish, in such or such a locality, the communal rights and privileges.—Grants of fairs and markets.—Royal or seigneurial acts for the redress of grievances, or the grant of any kind of immunities in favour of cities, boroughs, or villages.
4. Collection of Documents relative to the Part played by the Tiers Etat in the Assemblies of the General or Provincial States.—Acts indicating the mode of election of deputies of the Tiers Etat for the cities and country districts.—Lists of deputies of the Tiers Etat to the assemblies, both national and provincial.—Recorded proceedings of the deliberations of the Tiers Etat.—Its preparatory or definitive cahiers.—Its proposals not contained in cahiers and speeches of its prolocutors.
When these classifications were established, and the course thus cleared in some measure, I gave up the ideal plan of a complete body of all the documents of the civil and political history of the Tiers Etat, to fall back in the execution of my design upon another less logical, less regular, but more easy and practicable. I cut off the last class—that of acts concerning the states-general or particular—in consequence of the difficulty of isolating on all points that which relates to the Tiers Etat from that which concerns the two other orders in the frequently-intermingled mass of those acts. Besides, it will be an advantage for the history of the ancient assemblies, whether national or provincial, which are the roots of our representative system, to be the object of a special collection, undertaken on its own account, with a view to the collective part taken by the three orders, and not to the particular part of one amongst them. I joined the second and third classes in one collection—that of the municipal statutes and acts, and that of the statutes and rules of the companies of arts and trades. In my opinion, this fusion is rendered necessary by the intimate relations of the municipal and industrial life in the middle ages. Lastly, I deferred indefinitely and kept back, as a second series of the collection of the memorials of the history of the Tiers Etat, the collection of acts relative to the condition of the plebeian families,—a collection of less importance and of a nature less defined, and which, besides its special character, would serve as a supplement to the first.*
Thus the present Work will be a complete collection of the documents relative to the municipal history, and to that of the companies of arts and trades in the cities of France. The paper placed at the head of the first volume, as an introduction, is more general in its object. I composed it as if my plan of publication had embraced the four series of documents which I have enumerated above; it is, in a summary sketch, a history of the formation and progress of the Tiers Etat.
Three things I have still to hope for. Firstly, that the materials of the second series of this collection—a series deferred by me—may become in the hands of some other person the object of researches in libraries and archives, and that the result may be a publication capable of being annexed to this one. Secondly, that the request recently addressed to the Minister of Public Instruction, for a complete edition of the documents relative to the States-General, be entertained.* Lastly, that the local states may have a collection made of records on account of each province, and that in all parts of France a work so desirable may attract the zealous co-operation of all studious men, who are warmed at once by the love of historical knowledge and the love of their native land.
Paris, February 20, 1850.
[* ]Recueil des Monuments inédits de l’Histoire du Tiers Etat, t. i., pp. 66, 101, 104, and following.
[† ]The date of the accession of Philip of Alsace to the county of Amiens is very uncertain. Du Cange (Histoire des Comtes d’Amiens, p. 316) admits that Raoul II. of Vermandois presented the county of Amiens as a dowry to his daughter, Isabel, and that on the death of Raoul this domain passed into the hands of Isabel, who married, in 1156, Philip of Alsace. If this conjecture is adopted, it is necessary to suppose that Raoul III. only succeeded his predecessor in the county of Vermandois. According to another opinion, which seems much less probable, Raoul III. might have possessed the county of Amiens till the year 1164, the time of his death; and before this date Philip of Alsace and Isabel might not have assumed the titles of Count and Countess of Amiens, except as the governors of the county during the minority or illness of their brother.
[* ]“Majoribus totique communie Ambianis ceterisque meis hominibus mando et præcipio quatinus ejusdem ecclesie res in pace custodiant et eidem ecclesie in suis perturbationibus loco meo patrocinari non desistant.” (Rec. des Monum. inéd. de l’Hist. du Tiers Etat, t. i., p. 67.)
[* ]Hist. de la Civilisation en France, edition of 1840, t. iv., p. 142. See the general considerations with which M. Guizot has enriched this quotation.
[* ]See the first volume of Rec. des Monum. inéd. de l’Hist. du Tiers Etat, p. 86.
[* ]See below, articles 2, 5, 6, and 9, 8, 12, 14, 31, and 43.
[* ]Article 17.
[† ]Article 33.
[* ]See Laurière, Gloss. du Droit Français, on the word mambournie.
[† ]See the law of the Ripuarians, under head 39.
[‡ ]See the Salic Law, under heads 39 and 49 of the lex emendata.
[* ]Beaumanoir, ch. 59, defines assurement one of the four ways to put an end to private feuds.
[* ]Ordinance, proclamation. (See Du Cange, Glossar., on the word bannum.)
[* ]Art. 31, 38, and 43.
[* ]This charter was published in the Recueil des Ordonnances des Rois de France; but the editors had not the original under their eyes, and the text which they have given of it, after a cartulary of Philippe-Auguste, is very faulty. In reprinting it here I have been able to avail myself of the variations which are found in an authentic copy of the letters of confirmation granted in 1209 by Philippe-Auguste, and copied from the text of that of 1190. (See the Rec. des Monum. inéd. de l’Hist. du Tiers Etat, t. i., p. 180.)
[† ]It is scarcely necessary to observe that, in this charter, as in a multitude of others of the same kind, the word concessimus is a mere formula of the seigneurial style: the commune of Amiens had already existed seventy-three years. The right granted to the citizens by Philippe-Auguste was, not to form a commune jurée, but to preserve their commune, together with its institutions.
[* ]We have said above, p. 161, note 2, that the words justitiam prosequi non poterit apply not to the case of the denial of justice, but to the neglect on the part of the plaintiff to obtain it.
[* ]Alias wisloth.
[* ]Rec. des Ordonn. des Rois de France, t. xi., p. 264 and foll.—Baluze, Miscellanea, t. vii., p. 318.—Bibl. Imp. Cartularies of Philippe-Auguste, Collection of Cartularies, No. 172, fol. 17 vo. Collection of the King, No. 9852. a, fol. 43 vo., 9852. 3, fol. 56 ro., and No. 8408. 2. 2, b, fol. 79 ro.—Arch. Nationale, Collection of Charters, reign of Philippe-Auguste, fol. 17 vo.
[* ]This paper is the Preface to the first vol. of the Recueil des Monuments inédits du Tiers Etat.
[* ]For example, in regard to the insertion of general rules of industry and commerce, which, made for the whole kingdom, could not be classed under the name of any city in particular.
[* ]This request was made by M. Auguste Bernard, member of the Society of Antiquaries in France.
Oliver J. Thatcher, A Source Book for Mediaeval History. Selected Documents Illustrating the History of Europe in the Middle Age, ed. Oliver J. Thatcher and Edgar Holmes McNeal (New York: Charles Scribner’s Sons, 1905). Chapter: 325.: Cologne Merchants have a Gildhall in London, 1157.
Accessed from oll.libertyfund.org/title/2277/215810 on 2010-02-05
The text is in the public domain.
The merchants of Cologne early had commercial dealings with London. Her commercial relations with England were more important to her than her relations with Germany, and as a result of this she generally preferred her English alliance to her less lucrative relations with other German principalities on the mainland. In international complications Cologne was apt to be found on the side of England. This document is interesting as showing the early existence of the gildhall of the merchants of Cologne, which was the starting-point of the Hanse in London.
Henry [II], by the grace of God, etc., . . . to his justiciars, sheriffs, and all his officials in England, greeting. I command you to guard, maintain, and protect all the men and citizens of Cologne as if they were my own subjects and friends, and all their goods, merchandise, and possessions. You shall not permit them to suffer any loss or damage in their house in London, which is called their gildhall, or in their goods, or merchandise, or anything else that belongs to them, because they are faithful to me, and they are in my ward and protection. They shall have complete protection, and they shall pay only their customary tolls, and you shall not exact new tolls from them. . . .
The following list is intended to serve both as a brief bibliography of important collections of mediæval documents and as an explanation of the references. In the case of the more important collections and works a brief comment is added. Many titles are omitted where the reference in the text is clear and the work is not of general importance.
This list is meant to include only technical terms which occur frequently in the text. Terms which are familiar, and those which are used only once or twice and explained in the text, are therefore not included.
abbot, head of a monastery; see no. 251, chs. 2, 64.
advocate, advocatus, representative of church or prelate in secular affairs; in feudal system regularly a vassal of the church, holding office and church lands as fief; see no. 296 introduction.
aids, obligations of vassal to his lord; see introductory note to nos. 209-228, and nos. 215-217.
alderman, originally head of a gild; later, regularly member of ruling council of a city.
allodial land, alod, small freehold, as distinct from tenant-farm; later in feudal system also applied to family possessions of a noble as distinct from lands held by title of duke, count, etc.; an instance of this latter use in no. 90.
anathema, curse, regularly associated with papal excommunication.
apostolic seat, apostolic see, the bishopric of Rome, used as a figure of speech for pope or papal office.
Augustus, from time of Otto III the title regularly assumed by emperors after imperial coronation; indicates the theory that mediæval emperors were successors to Roman emperors.
bailly, bailiff, representative of lord in the villa.
ban, (1) proscription, or outlawry, regularly that pronounced by emperor against a subject; (2) particular fine paid to emperor or king in addition to ordinary penalty, usually 60 solidi.
basilica, church, especially early church modelled on Roman public building called basilica.
Bauermeister, see introductory note to section vii.
benefice, beneficium, (1) a form of land-holding, practically a fief; see nos. 197-202 and introduction; (2) lands and income attached to the office of a canon.
bull, a decree or edict of the pope.
burggrave, the official representative of overlord or king in a city; later a feudal noble.
canon, (1) a decree of a council or synod; (2) one of the chapter of a bishop’s church.
canon law, ecclesiastical law, the law of the church, based on the decrees of popes and councils; see no. 33, introduction, and Bibliography, Corpus juris canonici.
canonical election, election of a church official in accordance with canon law.
capitulary, decree or edict of Carolingian king or emperor, drawn up with advice of Frankish assembly.
cardinal, a member of the Sacred College, the advisory body of the pope, standing next to him in Catholic hierarchy, and intrusted with duty of electing pope. Members of college have titular offices in the bishopric of Rome, as cardinal bishops (now 6 in number), cardinal presbyters (now 50), and cardinal deacons (now 14).
chamberlain, see court officials.
chancellor, official at the head of the department intrusted with drawing up and preserving documents; an important office in every royal court, frequently held by an ecclesiastic.
chaplain, priest of private church or chapel of great lord or ruler; in royal courts becomes important member of council and central administration of king.
chapter, regularly the corporation of the clergy attached to the bishop’s church, including dean, præpositus, cantor, scholasticus, penitentiarius, treasurer, etc.
confession of St. Peter; see no. 45, note 1.
council, the general assembly of the church, composed of chief clergy and representatives of lower clergy, and summoned occasionally by pope or cardinals; see no. 41, note 3, and nos. 169-174.
count, comes, the chief official in a county, originally as representative of the king, later, in feudal system, as feudal lord of lesser nobles in county.
count palatine, comes palatinus, one of chief officials of royal court; in feudal system, hereditary title attached to certain possessions, as palatine county of the Rhine in Germany, and of Champagne in France.
court officials, officers of the royal courts charged with important departments of central administration: seneschal, steward, chief official in charge of royal household and domains; chamberlain, originally officer in charge of royal chamber, later practically treasurer; cupbearer, cellarer, or butler, officer in charge of vineyards; marshal or constable, officer in charge of royal stables, later of the royal army. These offices in the beginning were of private nature, were later extended to include important public functions and became hereditary in hands of great nobles, and then became merely titular and ceremonial, the real duties being performed by royal officials and servants. See no. 160, ch. 27, for this last stage, in Germany.
cupbearer, see court officials.
dean, head of a chapter of canons.
denarius, a small coin, penny, originally silver; see no. 4, I, note 2.
diet, general assembly of the empire, including in final form the great ecclesiastics and nobles, and representatives of imperial cities; see nos. 146, 158, 159, 160 for instances.
diocese, ecclesiastical district ruled over by a bishop, made up of parishes; archdiocese, ecclesiastical district of an archbishop, comprising several bishoprics.
duke, ruler of a duchy, a great feudal lord, in Germany retaining character also of a public official to time of Frederick I.
electors, electoral princes, princes of Germany who exercised the right of electing the emperor; see no. 160 for names of the electors, their prerogatives, etc.
excommunication, exclusion from the communion of the Catholic church, entailing loss of rank and privileges on part of church officials, and of allegiance of subjects on part of secular ruler; ecclesiastical outlawry.
feudal terms, see introductory note to nos. 209-228.
fief, regularly an estate or territory held from a superior on terms of personal allegiance and honorable service, usually military support.
fodrum, fodder; as an obligation, the duty of supplying provisions for the royal army.
gild, society or association of merchants of a town, or of artisans of a single trade in a town. Gild of the merchants in many cases represented the town in the struggle for a charter, and government of many towns was based on the organization of the gild.
hide, portion of a family in the lands of the village community.
hierarchy of the Catholic church, chief ecclesiastical officials; in order of authority: pope, cardinals, archbishops, bishops. For lower grades, see no. 34, note 1.
homage, ceremony of entering into personal dependence on a lord, preliminary to receiving a fief from him; see nos. 209-214, 218-225.
hundred, division of the county, mainly for judicial purposes; see no. 1, note 1, and no. 4 introduction.
hundred-court, local public court of the hundred; the regular public court in Germany; see introductory note to section vii.
hundred-man, centenarius, centgraf, presiding official of the hundred-court, usually elected by freemen of the hundred; see no. 1, note 4, and no. 4 introduction.
immunity, freedom from control of public officials; a right attached to gifts of land from king; see nos. 190-194, and introduction.
indiction, number of a year in a period of 15 years, used as a means of dating mediæval documents; established by Constantine and beginning with the year 313 ad To find the indiction of a year, add 3 to the number of the year and divide by 15; the remainder is the indiction of the year; if there is no remainder, the indiction is 15.
indulgence, see no. 179 introduction.
insignia, symbols of office, commonly referring to royal or imperial symbols; see nos. 158, 159, and 160, ch. 22, for insignia of emperor.
interdict, prohibition of performance of church services and sacraments, pronounced by ecclesiastical authority against a district or a country, frequently for the sins of its ruler.
investiture, the ceremony of induction into office, whether ecclesiastical or secular.
justice, in feudal system technically right of lord to try cases of inhabitants of his fief in his feudal court; see no. 228, 1, note 1; as a revenue, income from fines in feudal justice.
king of the Romans, title used by German kings from the time of Henry III before the imperial coronation; later also used by son of the emperor associated in the rule with his father.
landgrave, a feudal noble, practically the same as feudal count.
legate, special representative of the pope; see no. 66 introduction.
liege homage, see no. 218 introduction.
margrave, the official in control of a mark or frontier county; later a feudal noble.
marshal, see court officials.
metropolitan, as a noun, archbishop; as an adjective, archiepiscopal.
ministerial, servant of the king or great lord in Germany; being endowed with land and used as mounted followers in war, they become a lower nobility; see no. 297 introduction.
missi, in general, representatives of central government sent into local districts; in particular, the officials sent out annually by Karl the Great and his successors to oversee the administration of local officials, etc.; see no. 9 introduction.
notary, lower official in the department of the chancellor.
patriarch, in the west, honorary title attached to certain bishoprics, as patriarch of Aquileia; in East, bishop of highest rank, as patriarch of Constantinople.
patricius, see no. 48 introduction.
patrimony, estate or territory belonging to the pope as possession of office; Patrimony of St. Peter, land about Rome which was the basis of the states of the church.
Petrine theory, see no. 35.
pfahlburgers, phalburgii; see no. 139, sec. 10.
pontificate, papacy, period of rule of a pope.
pope, bishop of Rome and head of the church; titles: vicar of Christ, vicar of St. Peter, apostolic, universal, servant of the servants of God, etc.
præpositus, prévôt, provost, (1) member of chapter of canons, in charge of lands of the chapter; (2) a layman in charge of domain lands of a bishop; (3) the representative of great lord or king in local regions; (4) the chief of a gild, or the mayor of a city.
precarium, see introductory note to nos. 184-188.
prior, chief official under the abbot in a monastery; also ruler of a priory or small congregation of monks dependent on a monastery.
regalia, sovereign rights, or rights of the crown; see no. 83, no. 103 and introduction.
Schoeffen, scabini, originally board of judges for each hundred-court, established as a judicial reform by Karl the Great; from these develop Schoeffen of feudal domains and cities, as judges in the courts there.
Schultheiss, originally subordinate official of the count, who becomes presiding officer of lower public courts in Germany; name used also for presiding officer of court on territory of feudal lord, and in cities under jurisdiction of lord; see introductory note to section vii.
seneschal, see court officials.
senior, see no. 208, note.
serf, unfree tenant on a feudal estate, paying rent and services to the lord, bound to the soil, and subject to the jurisdiction of the lord’s officials.
simony, use of money or secular influence to secure an ecclesiastical office; generally, securing of such an office by any means other than canonical election.
solidus, a gold or silver coin, shilling, containing 12 denarii; see no. 4, I, note 2.
suffragan bishop, one who has the right of voting for his archbishop.
synod, local council of bishopric or archbishopric summoned by the prelate.
vassal, one who has promised allegiance and fidelity to a superior, from whom he holds a fief.
villa, village or community of tenants and serfs on feudal domain, corresponding to English manor; the unit of organization of feudal estates.
wergeld, compensation for manslaughter, paid to the kindred of the slain man by slayer or his kindred; see no. 1, ch. 21, note 6, and no. 4, XLI, note 1.
Oliver J. Thatcher, A Source Book for Mediaeval History. Selected Documents Illustrating the History of Europe in the Middle Age, ed. Oliver J. Thatcher and Edgar Holmes McNeal (New York: Charles Scribner’s Sons, 1905). Chapter: 305.: A Market-court is Independent of the Local Court, 1218.
Accessed from oll.libertyfund.org/title/2277/215770 on 2010-02-05
The text is in the public domain.
See introductory note to no. 301.
Frederick II, by the grace of God king of the Romans, Augustus, and king of Sicily, etc. We wish to inform you that the following decision has been rendered in our presence by the princes and magnates of our empire. If we have granted the establishment of a market, either annual or weekly, and have given them [that is, the people to whom the market has been granted] our glove [as a symbol that they have jurisdiction over all offences committed during the market], no count nor any other judge of the province [in which the market is situated] shall exercise any jurisdiction there [that is, over crimes committed during the market], or have any power to punish crimes committed there. But if a thief, or robber, or any other criminal shall have been condemned to death there [that is, by the judge who holds the market-court] he must he handed over to the count or to the judge of the province to have the sentence executed upon him.
Oliver J. Thatcher, A Source Book for Mediaeval History. Selected Documents Illustrating the History of Europe in the Middle Age, ed. Oliver J. Thatcher and Edgar Holmes McNeal (New York: Charles Scribner’s Sons, 1905). Chapter: 320.: Agreement between Hamburg and Lübeck, ca. 1230.
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With the deposition of Henry the Lion, duke of Saxony, in 1180, and the consequent dismemberment of his duchy (see no. 112), north Germany was left without a great prince, and there was no hope that anyone would be able to unite the numerous principalities which were enjoying more or less sovereignty. The absence of any strong power gave greater opportunity for the development of the cities and made the Hanseatic league possible. This league had its origin in the league between Hamburg and Lübeck for mutual protection against robbers in 1241. But these cities had already for a long time been friendly, and had made a mutual agreement for the protection of the merchants of the one city when they went to the other. Other cities joined them in the league of 1241. The power and influence of the league grew until it was able to carry on war and to dictate in political matters to the whole north. The earliest stages of the development of the league are illustrated by nos. 320-322.
To their honorable and beloved friends, the advocate, aldermen, and other citizens of Lübeck, the advocate, aldermen, and the commune of Hamburg, greeting, etc. . . .
We wish you to know that we desire by all means to preserve the mutual love and friendship which have hitherto existed between you and us. We desire that we shall have the same law, so that whenever your citizens come into our city, bringing goods that are unencumbered [that is, about which there is no dispute or suit pending], they may possess and enjoy them in peace and security, in the same way as our citizens. . . .
Oliver J. Thatcher, A Source Book for Mediaeval History. Selected Documents Illustrating the History of Europe in the Middle Age, ed. Oliver J. Thatcher and Edgar Holmes McNeal (New York: Charles Scribner’s Sons, 1905). Chapter: 304.: No One shall Compel Merchants to Come to His Market, 1236.
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See introductory note to no. 301.
Frederick [II], etc. . . . The venerable archbishop of Salzburg asked: When merchants are going along the public highway to a market, may anyone force them to leave the highway and go by private roads to his market? The decision of the princes was, that no one has a right to compel merchants to leave the highway, but that they may go to whatever market they wish. . . .
Oliver J. Thatcher, A Source Book for Mediaeval History. Selected Documents Illustrating the History of Europe in the Middle Age, ed. Oliver J. Thatcher and Edgar Holmes McNeal (New York: Charles Scribner’s Sons, 1905). Chapter: 321.: Agreement for Mutual Protection between Lübeck and Hamburg, 1241.
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The text is in the public domain.
The advocate, council and commune of Lübeck. . . . We have made the following agreement with our dear friends, the citizens of Hamburg.
1. If robbers or other depredators attack citizens of either city anywhere from the mouth of the Trave river to Hamburg, or anywhere on the Elbe river, the two cities shall bear the expenses equally in destroying and extirpating them.
2. If anyone who lives outside the city, kills, wounds, beats, or mishandles, without cause, a citizen of either city, the two cities shall bear the expenses equally in punishing the offender. We furthermore agree to share the expenses equally in punishing those who injure their citizens in the neighborhood of their city and those who injure our citizens in the neighborhood of our city.
3. If any of their citizens are injured near our city [Lübeck], they shall ask our officials to punish the offender, and if any of our citizens are injured near their city [Hamburg], they shall ask their officials to punish the offender.
Ellis Sandoz, The Roots of Liberty: Magna Carta, Ancient Constitution, and the Anglo-American Tradition of Rule of Law, edited and with an Introduction by Ellis Sandoz (Indianapolis: Liberty Fund, 2008). Chapter: Appendix: Text and Translation of Magna Carta *
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The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc. except for the translations into English of Fortescue made by S.B. Chrimes which is held by Cambridge University Press 1942.
There follows the text in Latin and in English translation of Magna Carta of 1225, the third Great Charter of Henry III. This is the definitive version that received statutory confirmation by Edward I in 1297, thereby entering the Statutes of the Realm as the first English statute. Thus, it is the Great Charter ultimately relied upon by Sir Edward Coke, John Selden, and the other great common lawyers of the seventeenth century. By then, according to Coke, it had been confirmed at least thirty-two times.
(Third Revision, Issued February 11, 1225)
Henricus Dei gratia rex Anglie, dominus Hibernie, dux Normannie, Aquitanie, et comes Andegavie, archiepiscopis, episcopis, abbatibus, prioribus, comitibus, baronibus, vicecomitibus, prepositis, ministris et omnibus ballivis et fidelibus suis presentem cartam inspecturis, salutem. Sciatis quod nos, intuitu Dei et pro salute anime nostre et animarum antecessorum et successorum nostrorum, ad exaltationem sancte ecclesie et emendationem regni nostri, spontanea et bona voluntate nostra, dedimus et concessimus archiepiscopis, episcopis, abbatibus, prioribus, comitibus, baronibus et omnibus de regno nostro has libertates subscriptas tenendas in regno nostro Anglie in perpetuum.
1 (1). In primis concessimus Deo et hac presenti carta nostra confirmavimus pro nobis et heredibus nostris in perpetuum quod anglicana ecclesia libera sit, et habeat omnia jura sua integra et libertates suas illesas. Concessimus etiam omnibus liberis hominibus regni nostri pro nobis et heredibus nostris in perpetuum omnes libertates subscriptas, habendas et tenendas eis et heredibus suis de nobis et heredibus nostris in perpetuum.
2 (2). Si quis comitum vel baronum nostrorum sive aliorum tenencium de nobis in capite per servicium militare mortuus fuerit, et, cum decesserit, heres ejus plene etatis fuerit et relevium debeat, habeat hereditatem suam per antiquum relevium, scilicet heres vel heredes comitis de baronia comitis integra per centum libras, heres vel heredes baronis de baronia integra per centum libras, heres vel heredes militis de feodo militis integro per centum solidos ad plus; et qui minus debuerit minus det secundum antiquam consuetudinem feodorum.
3 (3). Si autem heres alicujus talium fuerit infra etatem, dominus ejus non habeat custodiam ejus nec terre sue antequam homagium ejus ceperit; et, postquam talis heres fuerit in custodia, cum ad etatem pervenerit, scilicet viginti et unius anni, habeat hereditatem suam sine relevio et sine fine, ita tamen quod, si ipse, dum infra etatem fuerit, fiat miles, nichilominus terra remaneat in custodia dominorum suorum usque ad terminum predictum.
4 (4). Custos terre hujusmodi heredis qui infra etatem fuerit non capiat de terra heredis nisi rationabiles exitus et rationabiles consuetudines et rationabilia servicia, et hoc sine destructione et vasto hominum vel rerum; et si nos commiserimus custodiam alicujus talis terre vicecomiti vel alicui alii qui de exitibus terre illius nobis debeat respondere, et ille destructionem de custodia fecerit vel vastum, nos ab illo capiemus emendam, et terra committetur duobus legalibus et discretis hominibus de feodo illo qui de exitibus nobis respondeant vel ei cui eos assignaverimus; et si dederimus vel vendiderimus alicui custodiam alicujus talis terre, et ille destructionem inde fecerit vel vastum, amittat ipsam custodiam et tradatur duobus legalibus et discretis hominibus de feodo illo qui similiter nobis respondeant, sicut predictum est.
5 (5). Custos autem, quamdiu custodiam terre habuerit, sustentet domos, parcos, vivaria, stagna, molendina et cetera ad terram illam pertinencia de exitibus terre ejusdem, et reddat heredi, cum ad plenam etatem pervenerit, terram suam totam instauratam de carucis et omnibus aliis rebus, ad minus secundum quod illam recepit. Hec omnia observentur de custodiis archiepiscopatuum, episcopatuum, abbatiarum, prioratuum,ecclesiarum et dignitatum vacancium que ad nos pertinent, excepto quod hujusmodi custodie vendi non debent.
6 (6). Heredes maritentur absque disparagatione.
7 (7). Vidua post mortem mariti sui statim et sine difficultate aliqua habeat maritagium suum et hereditatem suam, nec aliquid det pro dote sua vel pro maritagio suo vel pro hereditate sua, quam hereditatum maritus suus et ipsa tenuerunt die obitus ipsius mariti, et maneat in capitali mesagio mariti sui per quadranginta dies post obitum ipsius mariti sui, infra quos assignetur ei dos sua, nisi prius et fuerit assignata, vel nisi domus illa sit castrum; et si de castro recesserit, statim provideatur ei domus competens in qua possit honeste morari, quousque doe sua ei assignetur secundum quod predictum est, et habeat rationabile estoverium suum interim de communi. Assignetur autem ei pro dote sua tercia pars tocius terre mariti sui que sua fuit in vita sua, nisi de minori dotata fuerit ad hostium ecclesie.
(8). Nulla vidua distringatur ad se maritandam, dum vivere voluerit sine marito, ita tamen quod securitatem faciet quod se non maritabit sine assensu nostro, si de nobis tenuerit, vel sine assensu domini sui, si de aliquo tenuerit.
8 (9). Nos vero vel ballivi nostri non seisiemus terram aliquam nec redditum pro debito aliquo quamdiu catalla debitoris presencia sufficiant ad debitum reddendum et ipse debitor paratus sit inde satisfacere; nec plegii ipsius debitoris distringantur quamdiu ipse capitalis debitor sufficiat ad solutionem debiti; et, si capitalis debitor defecerit in solutione debiti, non habens unde reddat aut reddere rolit cum possit, plegii respondeant pro debito; et, si voluerint, habeant terras et redditus debitoris quousque sit eis satisfactum de debito quod ante pro eo solverunt, nisi capitalis debitor monstraverit se inde esse quietum versus eosdem plegios.
9 (13). Civitas Londonie habeat omnes antiquas libertates et liberas consuetudines suas. Preterea volumus et concedimus quod omnes alie civitates, et burgi, et ville, et barones de quinque portubus, et omnes portus, habeant omnes libertates et liberas consuetudines suas.
10 (16). Nullus distringatur ad faciendum majus servicium de feodo militis nec de alio libero tenemento quam inde debetur.
11 (17). Communia placita non sequantur curiam nostram, set teneantur in aliquo loco certo.
12 (18). Recognitiones de nova disseisina et de morte antecessoris non capiantur nisi in suis comitatibus, et hoc modo: nos, vel si extra regnum fuerimus, capitalis justiciarius noster, mittemus justiciarios per unumquemque comitatum semel in anno, qui cum militibus comitatuum capiant in comitatibus assisas predictas. Et ea que in illo adventu suo in comitatu per justiciarios predictos ad dictas assisas capiendas missos terminari non possunt, per eosdem terminentur alibi in itinere suo; et ea que per eosem propter difficultatem aliquorum articulorum terminari non possunt, refer-antur ad justiciarios, nostros de banco, et ibi terminentur.
13. Assise de ultima presentatione semper capiantur coram justiciariis nostris de banco et ibi terminentur.
14 (20). Liber homo non amercietur pro parvo delicto nisi secundum modum ipsius delicti, et pro magno delicto, secundum magnitudinem delicti, salvo contenemento suo; et mercator eodem modo salva mercandisa sua; et villanus alterius quam noster eodem modo amercietur salvo wainagio suo, si inciderit in misericordiam nostram; et nulla predictarum misericordiarum ponatur nisi per sacramentum proborum et legalium hominum de visneto.
(21). Comites et barones non amercientur nisi per pares suos, et non nisi secundum modum delicti.
(22). Nulla ecclesiastica persona amercietur secundum quantitatem beneficii sui ecclesiastici, set secundum laicum tenementum suum, et secundum quantitatem delicti.
15 (23). Nec villa, nec homo, distringatur facere pontes ad riparias nisi que ex antiquo et de jure facere debet.
16. Nulla riparia decetero defendatur, nisi ille que fuerunt in defenso tempore regis Henrici avi nostri, per eadem loca et eosdem terminos sicut esse consueverunt tempore suo.
17 (24). Nullus vicecomes, constabularius, coronatores vel alii ballivi nostri teneant placita corone nostre.
18 (26). Si aliquis tenens de nobis laicum feodum moriatur, et vice-comes vel ballivus noster ostendat litteras nostras patentes de summonitione nostra de debito quod defunctus nobis debuit, liceat vicecomiti vel ballivo nostro attachiare et inbreviare catalla defuncti inventa in laico feodo ad valenciam illius debiti per visum legalium hominum, ita tamen quod nichil inde amoveatur donec persolvatur nobis debitum quod clarum fuerit, et residuum relinquatur executoribus ad faciendum testamentum defuncti; et si nichil nobis debeatur ab ipso, omnia catalla cedant defuncto, salvis uxori ipsius et pueris suis rationabilibus partibus suis.
19 (28). Nullus constabularius vel ejus ballivus capiat blada vel alia catalla alicujus qui non sit de villa ubi castrum situm est, nisi statim inde reddat denarios aut respectum inde habere possit de voluntate venditoris; si autem de villa ipsa fuerit, infra quadraginta dies precium reddat.
20 (29). Nullus constabularius distringat aliquem militem ad dandum denarios pro custodia castri, si ipse eam facere voluerit in propria persona sua, vel per alium probum hominem, si ipse eam facere non possit propter rationabilem causam, et, si nos duxerimus eum vel miserimus in exercitum, erit quietus de custodia secundum quantitatem temporis quo per nos fuerit in exercitu de feodo pro quo fecit servicium in exercitu.
21 (30). Nullus vicecomes, vel ballivus noster, vel alius capiat equos vel carettas alicujus pro cariagio faciendo, nisi reddat liberationem antiquitus statutam, scilicet pro caretta ad duos equos decem denarios per diem, et pro caretta ad tres equos quatuordecim denarios per diem. Nulla caretta dominica alicujus ecclesiastice persone vel militis vel alicujus domine capiatur per ballivos predictos.
(31). Nec nos nec ballivi nostri nec alii capiemus alienum boscum ad castra vel alia agenda nostra, nisi per voluntatem illius cujus boscus ille fuerit.
22 (32). Nos non tenebimus terras eorum qui convicti fuerint de felonia, nisi per unum annum et unum diem; et tunc reddantur terre dominis feodorum.
23 (33). Omnes kidelli decetero deponantur penitus per Tamisiam et Medeweiam et per totam Angliam, nisi per costeram maris.
24 (34). Breve quod vocatur Precipe decetero non fiat alicui de aliquo tenamento, unde liber homo perdat curiam suam.
25 (35). Una mensura vini sit per totum regnum nostrum, et una mensura cervisie, et una mensura bladi, scilicet quarterium London, et una latitudo pannorum tinctorum et russettorum et haubergettorum, scilicet due ulne infra listas; de ponderibus vero sit ut de mensuris.
26 (36). Nichil detur de cetero pro brevi inquisitionis ab eo qui inquisitionem petit de vita vel membris, set gratis concedatur et non negetur.
27 (37). Si aliquis teneat de nobis per feodifirmam vel soccagium, vel per burgagium, et de alio terram teneat per servicium militare, nos non habebimus custodiam heredis nec terre sue que est de feodo alterius, occasione illius feodifirme, vel soccagii, vel burgagii, nec habebimus custodiam illius feodifirme vel soccagii vel burgagii, nisi ipsa feodifirma debeat servicium militare. Nos non habebimus custodiam heredis nec terre alicujus quam tenet de alio per servicium militare, occasione alicujus parve serjanterie quam tenet de nobis per servicium reddendi nobis cultellos, vel sagittas, vel hujusmodi.
28 (38). Nullus ballivus ponat decetero aliquem ad legem manifestam vel ad juramentum simplici loquela sua, sine testibus fidelibus ad hoc inductis.
29 (39). Nullus liber homo decetero capiatur vel imprisonetur aut disseisiatur de aliquo libero tenemento suo vel libertatibus vel liberis consuetudinibus suis, aut utlagetur, aut exuletur aut aliquo alio modo destruatur, nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum, vel per legem terre.
(40). Nulli vendemus, nulli negabimus aut differemus rectum vel justiciam.
30 (41). Omnes mercatores, nisi publice antea prohibiti fuerint, habeant salvum et securum exire de Anglia, et venire in Angliam, et morari, et ire per Angliam tam per terram quam per aquam ad emendum vel vendendum sine omnibus toltis malis per antiquas et rectas consuetudines, preterquam in tempore gwerre, et si sint de terra contra nos gwerrina; et si tales inveniantur in terra nostra in principio gwerre, attachientur sine dampno corporum vel rerum, donec sciatur a nobis vel a capitali justiciario nostro quomodo mercatores terre nostre tractentur, qui tunc invenientur in terra contra nos gwerrina; et, si nostri salvi sint ibi, alii salvi sint in terra nostra.
31 (43). Si quis tenuerit de aliqua escaeta, sicut de honore Wallingefordie, Bolonie, Notingeham, Lancastrie, vel de aliis que sunt in manu nostra, et sint baronie, et obierit, heres ejus non det aliud relevium nec fiat nobis aliud servicium quam faceret baroni, si ipsa esset in manu baronis; et nos eodem modo eam tenebimus quo baro eam tenuit, nec nos, occasione talis baronie vel escaete, habebimus aliquam escaetam vel custodiam aliquorum hominum nostrorum, nisi alibi tenuerit de nobis in capite ille qui tenuit baroniam vel escaetam.
32. Nullus liber homo decetero det amplius alicui vel vendat de terra sua quam ut de residuo terre sue possit sufficienter fieri domino feodi servicium ei debitum quod pertinet ad feodum illud.
33 (46). Omnes patroni abbatiarum qui habent cartas regum Anglie de advocatione, vel antiquam tenuram vel possessionem, habeant earum custodiam cum vacaverint, sicut habere debent, et sicut supra declaratum est.
34 (54). Nullus capiatur vel imprisonetur propter appellum femine de morte alterius quam viri sui.
35. Nullus comitatus decetero teneatur, nisi de mense in mensem; et, ubi major terminus esse solebat, major sit. Nec aliquis vicecomes vel ballivus faciat turnum suum per hundredum nisi bis in anno et non nisi in loco debito et consueto, videlicet semel post Pascha et iterum post festum sancti Michaelis. Et visus de franco plegio tunc fiat ad illum terminum sancti Michalis sine occasione, ita scilicet quod quilibet habeat libertates suas quas habuit et habere consuevit tempore regis Henrici avi nostri, vel quas postea perquisivit. Fiat autem visus de franco plegio sic, videlicet quod pax nostra teneatur, et quod tethinga integra sit sicut esse consuevit, et quod vicecomes non querat occasiones, et quod contintus sit eo quod vicecomes habere consuevit de visu suo faciendo tempore regis Henrici avi nostri.
36. Non liceat alicui decetero dare terram suam alicui domui religiose, ita quod eam resumat tenendam de eadem domo, nec liceat alicui domui religiose terram alicujus sic accipere quod tradat illam ei a quo ipsam recepit tenendam. Si quis autem de cetero terram suam alicui domui religiose sic dederit, et super hoc convincatur, donum suum penitus cassetur, et terra illa domino suo illius feodi incurratur.
37. Scutagium decetero capiatur sicut capi solebat tempore regis Henrici avi nostri. Et salve sint archiepiscopis, episcopis, abbatibus, prioribus, templariis, hospitalariis, comitibus, baronibus et omnibus aliis tam ecclesiasticis quam secularibus personis libertates et libere consuetudines quas prius habuerunt.
(60). Omnes autem istas consuetudines predictas et libertates quas concessimus in regno nostro tenendas quantum ad nos pertinet erga nostros, omnes de regno nostro tam clerici quam laici observent quantum ad se pertinet erga suos. Pro hac autem concessione et donatione libertatum istarum et aliarum libertatum contentarum in carta nostra de libertatibus foreste, archiepiscopi, episcopi, abbates, priores, comites, barones, milites,libere tenentes, et omnes de regno nostro dederunt nobis quintam decimam partem omnium mobilium suorum. Concessimus etiam eisdem pro nobis et heredibus nostris quod nec nos nec heredes nostri aliquid perquiremus per quod libertates in hac carta contente infringantur vel infirmentur; et, si de aliquo aliquid contra hoc perquisitum fuerit, nichil valeat et pro nullo habeatur.
His testibus domino Stephano Cantuariensi archiepiscopo, Eustachio Lundoniensi, Jocelino Bathoniensi, Petro Wintoniensi, Hugoni Lincolniensi, Ricardo Sarrisberiensi, Benedicto Roffensi, Willelmo Wigorniensi, Johanne Eliensi, Hugone Herefordiensi, Radulpho Cicestriensi, Willelmo Exoniensi episcopis, abbate sancti Albani, abbate sancti Edmundi, abbate de Bello, abbate sancti Augustini Cantuariensis, abbate de Evashamia, abbate de Westmonasterio, abbate de Burgo sancti Petri, abbate Radingensi, abbate Abbendoniensi, abbate de Maumeburia, abbate de Winchecomba, abbate de Hida, abbate de Certeseia, abbate de Sire-burnia, abbate de Cerne, abbate de Abbotebiria, abbate de Middletonia, abbate de Seleby, abbate de Wyteby, abbate de Cirencestria, Huberto de Burgo justiciario, Ranulfo comite Cestrie et Lincolnie, Willelmo comite Sarrisberie, Willelmo comite Warennie, Gilberto de Clara comite Gloucestrie et Hertfordie, Willelmo de Ferrariis comite Derbeie, Willelmo de Mandevilla comite Essexie, Hugone Le Bigod comite Norfolcie, Willelmo comite Aubemarle, Hunfrido comite Herefordie, Johanne constabulario Cestrie, Roberto de Ros, Roberto filio Walteri, Roberto de Veteri ponte, Willielmo Brigwerre, Ricardo de Munfichet, Petro filio Herberti, Matheo filio Herberti, Willielmo de Albiniaco, Roberto Gresley, Reginaldo de Brahus, Johanne de Munemutha, Johanne filio Alani, Hugone de Mortuomari, Waltero de Bellocampo, Willielmo de sancto Johanne, Petro de Malalacu, Briano de Insula, Thoma de Muletonia, Ricardo de Argentein., Gaulfrido de Nevilla, Willielmo Mauduit, Johanne de Baalun.
Datum apud Westmonasterium undecimo die februarii anno regni nostri nono.
In the Ninth Year of His Reign. Translated from the Original, Preserved in the Archives of Durham Cathedral.
Henry, by the Grace Of God, King of England, Lord of Ireland, Duke of Normandy and Aquitaine, and Count of Anjou, to the Archbishops, Bishops, Abbots, Priors, Earls, Barons, Sheriffs, Governors, Officers, and all Bailiffs, and his faithful subjects, who see this present Charter,—Greeting. Know ye, that in the presence of God, and for the salvation of our own soul, and of the souls of our ancestors, and of our successors, to the exaltation of the Holy Church, and the amendment of our kingdom, that we spontaneously and of our own free will, do give and grant to the Archbishops, the Bishops, Abbots, Priors, Earls, Barons, and all of our kingdom, —these under-written liberties to be held in our realm of England for ever.—(I.) In the first place we grant unto God, and by this our present Charter we have confirmed for us, and for our heirs for ever, that the English Church shall be free, and shall have her whole rights and her liberties inviolable. We have also granted to all the free-men of our kingdom, for us and for our heirs for ever, all the under-written liberties to be had and held by them and by their heirs, of us and of our heirs.—(II.) If any of our Earls or Barons, or others who hold of us in chief by Military Service, shall die, and at his death his heir shall be of full age, and shall owe a relief, he shall have his inheritance by the ancient relief; that is to say, the heir or heirs of an Earl, a whole Earl’s Barony for one hundred pounds: the heir or heirs of a Baron, a whole Barony, for one hundred pounds; the heir or heirs of a Knight, a whole Knight’s Fee, for one hundred shillings at the most: and he who owes less, shall give less, according to the ancient customs of fees.—(III.) But if the heir of any such be under age, his Lord shall not have the Wardship of him nor of his land, before he shall have received his homage, and afterward such heir shall be in ward; and when he shall come to age, that is to say, to twenty and one years, he shall have his inheritance without relief and without fine: yet so, that if he be made a Knight, whilst he is under age, his lands shall nevertheless remain in custody of his Lords, until the term aforesaid.—(IV.) The warden of the land of such heir who shall be under age, shall not take from the lands of the heir any but reasonable issues, and reasonable customs, and reasonable services, and that without destruction and waste of the men or goods. And if we commit the custody of any such lands to a Sheriff, or to any other person who is bound to us for the issues of them, and he shall make destruction or waste upon the ward-lands, we will recover damages from him, and the lands shall be committed to two lawful and discreet men of the same fee, who shall answer for the issues to us, or to him to whom we have assigned them: and if we shall give or sell to any one the custody of any such lands, and he shall make destruction or waste upon them, he shall lose the custody; and it shall be committed to two lawful and discreet men of the same fee, who shall answer to us in like manner as it is said before.—(V.) But the warden, as long as he hath the custody of the lands, shall keep up and maintain the houses, parks, warrens, ponds, mills, and other things belonging to them, out of their issues; and shall restore to the heir, when he comes of full age, his whole estate, provided with carriages and all other things at the least as such as he received it. All these things shall be observed in the custodies of vacant Archbishoprics, Bishoprics, Abbies, Priories, Churches, and Dignities, which appertain to us; excepting that these wardships are not to be sold.—(VI.) Heirs shall be married without disparagement.—(VII.) A widow, after the death of her husband, shall immediately, and without difficulty, have her freedom of marriage and her inheritance; nor shall she give any thing for her dower, or for her freedom of marriage, or for her inheritance, which her husband and she held at the day of his death; and she may remain in the principal messuage of her husband, for forty days after husband’s death, within which time her dower shall be assigned; unless it shall have been assigned before, or excepting his house shall be a Castle; and if she depart from the Castle, there shall be provided for her a complete house in which she may decently dwell, until her dower shall be assigned to her as aforesaid: and she shall have her reasonable Estover within a common term. And for her dower, shall be assigned to her the third part of all the lands of her husband, which were his during his life, except she were endowed with less at the church door.—No widow shall be distrained to marry herself, whilst she is willing to live without a husband; but yet she shall give security that she will not marry herself, without our consent, if she hold of us, or without the consent of her lord if she hold of another.—(VIII.) We nor our Bailiffs, will not seize any land or rent for any debt, whilst the chattels of the debtor present sufficient for the payment of the debt, and the debtor shall be ready to make satisfaction: nor shall the sureties of the debtor be distrained, whilst the principal debtor is able to pay the debt; and if the principal debtor fail in payment of the debt, not having wherewith to discharge it, or will not discharge it when he is able, then the sureties shall answer for the debt; and if they be willing, they shall have the lands and rents of the debtor, until satisfaction be made to them for the debt which they had before paid for him, unless the principal debtor can shew himself acquitted thereof against the said sureties.—(IX.) The City of London shall have all its ancient liberties, and its free customs, as well by land as by water.—Furthermore, we will and grant that all other Cities, and Burghs, and Towns, and the Barons of the Cinque Ports, and all Ports, should have all their liberties and free customs.—(X.) None shall be distrained to do more service for a Knight’s-Fee, nor for any other free tenement, than what is due from thence.—(XI.) Common Pleas shall not follow our court, but shall be held in any certain place.—(XII.) Trials upon the Writs of Novel Disseisin and of Mort d’Ancestre, shall not be taken but in their proper counties, and in this manner:—We, or our Chief Justiciary, if we should be out of the kingdom, will send Justiciaries into every county, once in the year; who, with the knights of each county, shall hold in the county, the aforesaid assizes.—And those things, which at the coming of the aforesaid Justiciaries being sent to take the said assizes, cannot be determined, shall be ended by them in some other place in their circuit; and those things which for difficulty of some of the articles cannot be determined by them, shall be determined by our Justiciaries of the Bench, and there shall be ended.—(XIII.) Assizes of Last Presentation shall always be taken before our Justiciaries of the Bench, and there shall be determined.—(XIV.) A Free-man shall not be amerced for a small offence, but only according to the degree of the offence; and for a great delinquency, according to the magnitude of the delinquency, saving his contentment: and a Merchant in the same manner, saving his merchandise, and a villain, if he belong to another, shall be amerced after the same manner, saving to him his Wainage, if he shall fall into our mercy; and none of the aforesaid amerciaments shall be assessed, but by the oath of honest and lawful men of the vicinage.—Earls and Barons shall not be amerced but by their Peers, and that only according to the degree of their delinquency.—No Ecclesiastical person shall be amerced according to the quantity of his ecclesiastical benefice, but according to the quantity of his lay-fee, and the extent of his crime.—(XV.) Neither a town nor any person shall be distrained to build bridges or embankments, excepting those which anciently, and of right, are bound to do it.—(XVI.) No embankments shall from henceforth be defended, but such as were in defence in the time of King Henry our grandfather; by the same places, and the same bounds as they were accustomed to be in his time.—(XVII.) No Sheriff, Constable, Coroners, nor other of our Bailiffs, shall hold pleas of our crown.—(XVIII.) If any one holding of us a lay-fee die, and the Sheriff or our Bailiff shall shew our letters-patent of summons concerning the debt, which the defunct owed to us, it shall be lawful for the Sheriff, or for our Bailiff to attach and register all the goods and chattels of the defunct found on that lay-fee, to the amount of that debt by the view of lawful men. So that nothing shall be removed from thence until our debt be paid to us; and the rest shall be left to the executors to fulfil the will of the defunct; and if nothing be owing to us by him, all the chattels shall fall to the defunct, saving to his wife and children their reasonable shares.—(XIX.) No Constable, nor his Bailiff, shall take the corn or other goods of any one, who is not of that town where his Castle is, without instantly paying money for them, unless he can obtain a respite from the free will of the seller; but if he be of that town wherein the Castle is, he shall give him the price within forty days.—(XX.) No Constable shall distrain any Knight to give him money for Castle-guard, if he be willing to perform it in his own person, or by another able man, if he cannot perform it himself, for a reasonable cause: and if we do lead or send him into the army, he shall be excused from Castle-guard, according to the time that he shall be with us in the army, on account of the fee for which he hath done service in the host.—(XXI.) No Sheriff nor Bailiff of ours, nor of any other person, shall take the horses or carts of any, for the purpose of carriage, without paying according to the rate anciently appointed; that is to say, for a cart with two horses, ten-pence by the day, and for a cart with three horses, fourteen-pence by the day.—No demesne cart of any ecclesiastical person, or knight, or of any lord, shall be taken by the aforesaid Bailiffs.—Neither we, nor our Bailiffs, nor those of another, shall take another man’s wood, for our Castles or for other uses, unless by the consent of him to whom the wood belongs.—(XXII.) We will not retain the lands of those who have been convicted of felony, excepting for one year and one day, and then they shall be given up to the Lords of the fees.—(XXIII.) All Kydells (weirs) for the future, shall be quite removed out of the Thames and the Medway, and through all England, excepting upon the sea coast.—(XXIV.) The Writ which is called Præcipe, for the future shall not be granted to any one of any tenement, by which a Free-man loses his court.—(XXV.) There shall be one Measure of Wine throughout all our kingdom, and one Measure of Ale, and one Measure of Corn, namely, the Quarter of London; and one breadth of Dyed Cloth, of Russets, and of Halberjects, namely, Two Ells within the lists. Also it shall be the same with Weights as with Measures.—(XXVI.) Nothing shall for the future be given or taken for a Writ of Inquisition, nor taken of him that prayeth Inquisition of life or limb; but it shall be given without charge, and not denied.—(XXVII.) If any hold of us by Fee-Farm, or Socage, or Burgage, and hold land of another by Military Service, we will not have the custody of the heir, nor of his lands, which are of the fee of another, on account of that Fee-Farm, or Socage, or Burgage; nor will we have the custody of the Fee-Farm, Socage, or Burgage, unless the Fee-Farm owe Military Service. We will not have the custody of the heir, nor of the lands of any one, which he holds of another by Military Service, on account of any Petty-Sergeantry which he holds of us, by the service of giving us daggers, or arrows, or the like.—(XXVIII.) No Bailiff, for the future, shall put any man to his open law, nor to an oath, upon his own simple affirmation, without faithful witnesses produced for that purpose.—(XXIX.) No Free-man shall be taken, or imprisoned, or dispossessed, of his free tenement, or liberties, or free customs, or be outlawed, or exiled, or in anyway destroyed; nor will we condemn him, nor will we commit him to prison, excepting by the legal judgment of his peers, or by the laws of the land.—To none will we sell, to none will we deny, to none will we delay right or justice.—(XXX.) All Merchants, unless they have before been publicly prohibited, shall have safety and security in going out of England, and in coming into England, and in staying and in travelling through England, as well by land as by water, to buy and sell, without any unjust exactions, according to ancient and right customs, excepting in the time of war, and if they be of a country at war against us: and if such are found in our land at the beginning of a war, they shall be apprehended, without injury of their bodies or goods, until it be known to us, or to our Chief Justiciary, how the Merchants of our country are treated who are found in the country at war against us: and if ours be in safety there, the others shall be in safety in our land.—(XXXI.) If any hold of any Escheat, as of the Honour of Wallingford, Boulogne, Nottingham, Lancaster, or of other Escheats which are in our hand, and are Baronies, and shall die, his heir shall not give any other relief, nor do any other service to us, than he should have done to the Baron, if those lands had been in the hands of the Baron; and we will bold it in the same manner that the Baron held it. Neither will we have, by occasion of any Barony or Escheat, any Escheat, or the custody of any of our men, unless he who held the Barony or Escheat, held otherwise of us in chief.—(XXXII.) No Free-man shall, from henceforth, give or sell any more of his land, but so that of the residue of his lands, the Lord of the fee may have the service due to him which belongeth to the fee.—(XXXIII.) All Patrons of Abbies, which are held by Charters of Advowson from the Kings of England, or by ancient tenure or possession of the same, shall have the custody of them when they become vacant, as they ought to have, and such as it hath been declared above.—(XXXIV.) No man shall be apprehended or imprisoned on the appeal of a woman, for the death of any other man than her husband.—(XXXV.) No County Court shall, from henceforth, be holden but from month to month; and where a greater term hath been used, it shall be greater. Neither shall any Sheriff or his Bailiff, keep his turn in the hundred but twice in the year; and no where but in due and accustomed place; that is to say, once after Easter, and again after the Feast of Saint Michael. And the view of Frank-pledge, shall be likewise at Saint Michael’s term, without occasion; so that every man may have his liberties, which he had and was accustomed to have, in the time of King Henry our grandfather, or which he hath since procured him. Also the view of Frank-pledge shall be so done, that our peace may be kept, and that the tything may be wholly kept, as it hath been accustomed; and that the Sheriff seek no occasions, and that he be content with so much as the Sheriff was wont to have for his view-making, in the time of King Henry our grandfather.—(XXXVI.) It shall not from henceforth, be lawful for any to give his lands to any Religious House, and to take the same land again to hold of the same House. Nor shall it be lawful to any House of Religion to take the lands of any, and to lease the same to him from whom they were received. Therefore, if any from henceforth do give his land to any Religious House, and thereupon be convict, his gift shall be utterly void, and the land shall accrue to the Lord of the fee.—(XXXVII.) Scutage from henceforth shall be taken as it was accustomed to be taken in the time of King Henry our grandfather.—Saving to the Archbishops, Bishops, Abbots, Priors, Templars, Hospitallers, Earls, Barons, and all others, as well ecclesiastical as secular persons, the liberties and free customs which they have formerly had.—Also all those customs and liberties aforesaid, which we have granted to be held in our kingdom, for so much of it as belongs to us, all our subjects, as well clergy as laity, shall observe towards their tenants as far as concerns them. And for this our grant and gift of these Liberties, and of the others contained in our Charter of Liberties of our Forest, the Archbishops, Bishops, Abbots, Priors, Earls, Barons, Knights, Free Tenants, and all others of our Kingdom, have given unto us the fifteenth part of all their move-ables. And we have granted to them for us and our heirs, that neither we nor our heirs shall procure or do any thing, whereby the Liberties in this Charter contained shall be infringed or broken; and if any thing shall be procured by any person contrary to the premises, it shall be had of no force nor effect. These being witnesses, the Lord Stephen Archbishop of Canterbury, Roger of London, Joceline of Bath, Peter of Winchester, Hugh of Lincoln, Richard of Salisbury, Benedict of Rochester, William of Worcester, John of Ely, Hugh of Hereford, Ralph of Chi-chester, William of Exeter, for the Bishops: the Abbot of Saint Edmund’s, the Abbot of Saint Alban’s, the Abbot of Battle Abbey, the Abbot of Saint Augustine’s Canterbury, the Abbot of Evesham, the Abbot of Westminster, the Abbot of Peterborough, the Abbot of Reading, the Abbot of Abingdon, the Abbot of Malmsbury, the Abbotof Winchcomb, the Abbot of Hyde, the Abbot of Chertsey, the Abbot of Sherburn, the Abbot of Cerne, the Abbot of Abbotsbury, the Abbot of Middleton, the Abbot of Selby, the Abbot of Whitby, the Abbot of Cirencester, Hubert de Burgh, the King’s Justiciary, Randolph Earl of Chester and Lincoln, William Earl of Salisbury, William Earl of Warren, Gilbert de Clare, Earl of Gloucester and Hertford, William de Ferrers, Earl of Derby, William de Mandeville, Earl of Essex, Hugh le Bigod, Earl of Norfolk, William Earl of Albemarle, Humphrey Earl of Hereford, John Constable of Chester, Robert de Ros, Robert Fitz Walter, Robert de Vipont, William de Brewer, Richard de Montfichet, Peter Fitz Herbert, Matthew Fitz Herbert, William de Albiniac, Robert Gresley, Reginald de Bruce, John de Monmouth, John Fitz Alan, Hugh de Mortimer, Walter de Beauchamp, William de Saint John, Peter de Mauley, Brian de Lisle, Thomas de Muleton, Richard de Argentine, Walter de Neville, William Mauduit, John de Baalun.—Given at Westminster, the Eleventh day of February, in the Ninth Year of our Reign.
[* ] The text given here is that of Statutes of the Realm (London: Record Commission, 1810–1828), 1:22–25, as reprinted in Faith Thompson, Magna Carta: Its Role in the Making of the English Constitution, 1300–1629 (Minneapolis, 1948), 377–82. Italicized words indicate those passages not found in the original 1215 Magna Carta of King John which were introduced in 1216, 1217, or 1225; numbers in parentheses refer to articles in the 1215 document.
[* ] Source: Richard Thomson, An Historical Essay on the Magna Charta of King John: To which are added, the Great Charter in Latin and English; The Charters of Liberties and Confirmations, Granted by Henry III. and Edward I.; The Original Charter of the Forests; and Various Authentic Instruments Connected with Them; etc. (London, 1829), 131–44.
Bruce Frohnen, The American Republic: Primary Sources, ed. Bruce Frohnen (Indianapolis: Liberty Fund, 2002). Chapter: Magna Charta 1215
Accessed from oll.libertyfund.org/title/669/206107 on 2009-10-20
The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.
Magna Charta was the result of victory on the battlefield by barons (local lords) opposed to England’s King John. Negotiated in the days following the battle at Runnemede, it was no theoretical document. It lists numerous specific, customary rights that the barons asserted they had held from time immemorial, but that John had violated. Among these were the rights to be taxed only at certain times and under certain conditions, and to be tried by a jury of one’s peers. Following the preamble, Magna Charta begins by outlining the rights of the church. John had fought, as had many kings before him, to reserve for himself the right to appoint bishops. The Catholic Church and other opponents of unlimited royal power responded that the ser-vants of God must be independent from service to the temporal authority.
The great charter of King John, granted June 15, a.d. 1215. John, by the Grace of God, King of England, Lord of Ireland, Duke of Normandy, Aquitaine, and Count of Anjou, to his Archbishops, Bishops, Abbots, Earls, Barons, Justiciaries, Foresters, Sheriffs, Governors, Officers, and to all Bailiffs, and his faithful subjects, greeting. Know ye, that we, in the presence of God, and for the salvation of our soul, and the souls of all our ancestors and heirs, and unto the honour of God and the advancement of Holy Church, and amendment of our Realm, by advice of our venerable Fathers, Stephen, Archbishop of Canterbury, Primate of all England and Cardinal of the Holy Roman Church; Henry, Archbishop of Dublin; William, of London; Peter, of Winchester; Jocelin, of Bath and Glastonbury; Hugh, of Lincoln; Walter, of Worcester; William, of Coventry; Benedict, of Rochester—Bishops: of Master Pandulph, Sub-Deacon and Familiar of our Lord the Pope; Brother Aymeric, Master of the Knights-Templar in England; and the noble Persons, William Marescall, Earl of Pembroke; William, Earl of Salisbury; William, Earl of Warren; William, Earl of Arundel; Alan de Galloway, Constable of Scotland; Warin FitzGerald, Peter FitzHerbert, and Hubert de Burgh, Seneschal of Poitou; Hugh de Neville, Matthew FitzHerbert, Thomas Basset, Alan Basset, Philip of Albiney, Robert de Roppell, John Mareschal, John FitzHugh, and others, our liegemen, have, in the first place, granted to God, and by this our present Charter confirmed, for us and our heirs for ever:
Oliver J. Thatcher, A Source Book for Mediaeval History. Selected Documents Illustrating the History of Europe in the Middle Age, ed. Oliver J. Thatcher and Edgar Holmes McNeal (New York: Charles Scribner’s Sons, 1905). Chapter: 319.: Peace Established by the Rhine League, 1254.
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The text is in the public domain.
See introductory note to no. 318.
In the name of the Lord, amen. In the year of our Lord 1254, on the octave of St. Michael’s day [that is, a week after Sept. 29] we, the cities of the upper and lower Rhine, leagued together for the preservation of peace, met in the city of Worms. We held a meeting there and carefully discussed everything pertaining to a general peace. To the honor of God, and of the holy mother church, and of the holy empire, which is now governed by our lord, William [of Holland], king of the Romans, and to the common advantage of all, both rich and poor alike, we made the following laws. They are for the benefit of all, both poor and great, the secular clergy, monks, laymen, and Jews. To secure these things which are for the public good we will spare neither ourselves nor our possessions. The princes and lords who take the oath are joined with us.
1. We decree that we will make no warlike expeditions except those that are absolutely necessary and determined on by the wise counsel of the cities and communes. We will mutually aid each other with all our strength in securing redress for our grievances.
2. We decree that no member of the league, whether city or lord, Christian or Jew, shall furnish food, arms, or aid of any kind, to anyone who opposes us or the peace.
3. And no one in our cities shall give credit, or make a loan to them.
4. No citizen of any of the cities in the league shall associate with such, or give them counsel, aid, or support. If anyone is convicted of doing so, he shall be ejected from the city and punished so severely in his property that he will be a warning to others not to do such things.
5. If any knight, in trying to aid his lord who is at war with us, attacks or molests us anywhere outside of the walled towns of his lord, he is breaking the peace, and we will in some way inflict due punishment on him and his possessions, no matter who he is. If he is caught in any of the cities, he shall be held as a prisoner until he makes proper satisfaction. We wish to be protectors of the peasants, and we will protect them against all violence if they will observe the peace with us. But if they make war on us, we will punish them, and if we catch them in any of the cities, we will punish them as malefactors.
6. We wish all the cities to destroy all the ferries except those in their immediate neighborhood, so that there shall be no ferries except those near the cities which are in the league. This is to be done in order that the enemies of the peace may be deprived of all means of crossing the Rhine.
7. We decree that if any lord or knight aids us in promoting the peace, we will do all we can to protect him. Whoever does not swear to keep the peace with us, shall be excluded from the general peace.
8. We decree that whoever is in our cities as a pledge [that is, as security that some contract will be kept] shall have peace from all who are in the league. We will not permit him to be molested by anyone so long as he is in one of our cities; but we will defend him, and he may enter and leave the city as he pleases.
9. But if any such man breaks his oath and flees, he shall be warned three times by the city, and if he does not return, the creditor, or the one to whom he had been security, may bring suit against him before the judges and they shall compel him to continue as security.
10. Above all we wish to affirm that we desire to live in mutual peace with the lords and all the people of the province, and we wish that each should preserve all his rights.
11. Under threat of punishment we forbid any citizen to revile the lords although they may be our enemies. For although we wish to punish them for the violence they have done us, yet before making war on them we will first warn them to cease from injuring us.
12. We decree that all correspondence about this matter with the cities of the lower Rhine shall be conducted from Mainz, and from Worms with the cities of the upper Rhine. From these two cities all our correspondence shall be carried on and all who have done us injury shall be warned. Those who have suffered injury shall send their messengers at their own expense.
13. We also promise, both lords and cities, to send four official representatives to whatever place a conference is to be held, and they shall have full authority from their cities to decide on all matters. They shall report to their cities all the decisions of the meeting. All who come with the representatives of the cities or who come to them [while in session], shall have peace, and no judgment shall be enforced against them.
14. No city shall receive non-residents, who are commonly called “pfahlburgers,” as citizens.
15. We firmly promise that if any member of the league breaks the peace, we will proceed against him at once as if he were not a member, and compel him to make proper satisfaction.
16. We promise that we will faithfully keep each other informed by letter about our enemies and all others who may be able to do us damage, in order that we may take timely counsel to protect ourselves against them.
17. We decree that no one shall violently enter the house of monks or nuns, of whatever order they may be, or quarter themselves upon them, or demand or extort food, or any kind of service, from them contrary to their will. If anyone does this he shall be held as a violator of the peace.
18. We decree that each city shall try to persuade each of its neighboring cities to swear to keep the peace. If they do not do so, they shall be entirely cut off from the peace, so that if anyone does them an injury, either in their persons or their property, he shall not thereby break the peace.
19. We wish all members of the league, cities, lords, and all others, to arm themselves properly and prepare for war, so that whenever we call upon them we shall find them ready.
20. We decree that the cities between the Mosel and Basel shall prepare 100 war boats, and the cities below the Mosel shall prepare 500, well equipped with bowmen, and each city shall prepare herself as well as she can and supply herself with arms for knights and foot-soldiers.
Oliver J. Thatcher, A Source Book for Mediaeval History. Selected Documents Illustrating the History of Europe in the Middle Age, ed. Oliver J. Thatcher and Edgar Holmes McNeal (New York: Charles Scribner’s Sons, 1905). Chapter: 323.: Decrees of the Hanseatic League, 1260-64.
Accessed from oll.libertyfund.org/title/2277/215806 on 2010-02-05
The text is in the public domain.
We wish to inform you of the action taken in support of all merchants who are governed by the law of Lübeck.
(1) Each city shall, to the best of her ability, keep the sea clear of pirates, so that merchants may freely carry on their business by sea. (2) Whoever is expelled from one city because of a crime shall not be received in another. (3) If a citizen is seized [by pirates, robbers, or bandits] he shall not be ransomed, but his sword-belt and knife shall be sent to him [as a threat to his captors]. (4) Any merchant ransoming him shall lose all his possessions in all the cities which have the law of Lübeck. (5) Whoever is proscribed in one city for robbery or theft shall be proscribed in all. (6) If a lord besieges a city, no one shall aid him in any way to the detriment of the besieged city, unless the besieger is his lord. (7) If there is a war in the country, no city shall on that account injure a citizen from the other cities, either in his person or goods, but shall give him protection. (8) If any man marries a woman in one city, and another woman from some other city comes and proves that he is her lawful husband, he shall be beheaded. (9) If a citizen gives his daughter or niece in marriage to a man [from another city], and another man comes and says that she is his lawful wife, but cannot prove it, he shall be beheaded.
This law shall be binding for a year, and after that the cities shall inform each other by letter of what decisions they make.