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Liberty, the Papal Revolution, and the Law Merchant
This List Is By:
Liberty Fund Staff
Liberty Fund, Inc., Indianapolis, Indiana
This Reading List is based upon a Liberty Fund conference entitled “Liberty, Investiture, and the Papal Revolution”. It explores the ideas of limited government and the rule of law as they developed through the contest between the princes and the Popes during the Investiture Controversies of the late Middle Ages. Questions such as how the contest between Emperor and Pope in this period shaped the understanding of the rule of law? what role did ideas play in shaping the perceptions of these contests on both sides? and how this contest influenced our understanding of free institutions today, such as federalism, separation of powers, and checks and balances? will be explored.
Key background reading for this topic is Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition (Harvard University Press, 1983). Berman continues his analysis in a subsequent volume Law and Revolution II: The Impact of the Protestant Reformations on the Western Legal Tradition (Harvard University Press, 2003).
For additional reading see:
The discussion is divided into the following 6 sessions:
- Session I - The Origins of Jurisdictional Competition in the West
- Session II - The Papal Revolution and the Rule of Law
- Session III - Becket versus Henry II
- Session IV - Secular Law
- Session V - Merchant and Urban Law
- Session VI - Implications for Liberty Today
The reading for Session I - The Origins of Jurisdictional Competition in the West is:
- Berman, Law and Revolution, Introduction.
The reading for Session II - The Papal Revolution and the Rule of Law is:
- Berman, Law and Revolution, Chapter 2 “The Origin of the Western Legal Tradition in the Papal Revolution” and Chapter 3 “The Origin of Western Legal Science in the European Universities”
- The primary sources from Thatcher, 65, 75, 77 (listed below)
The reading for Session III - Becket versus Henry II is
- Berman, Law and Revolution, Chapter 7 “The Competition of Concurrent Jurisdictions”
The reading for Session IV - Secular Law is
- Berman, Law and Revolution, Chapter 8 “The Concept of Secular Law” and Chapter 10 “Manorial Law”
The reading for Session V - Merchant and Urban Law is
- Berman, Law and Revolution, Chapter 11 “Mercantile Law” and Chapter 12 ” Urban Law”
- Documents from Thatcher 302, 303, 304, 305, 306, 319, 320, 321, 323, 325
The reading for Session VI - Implications for Liberty Today is
- Berman, Law and Revolution, Conclusion.
1: Session II - The Papal Revolution and the Rule of Law A
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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The text is in the public domain.
65.
Dictatus Papæ,ca. 1090.
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?”
2: Session II - The Papal Revolution and the Rule of Law B
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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75.
The Deposition of Gregory VII by Henry IV, January 24, 1076.
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.”
3: Session II - The Papal Revolution and the Rule of Law C
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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The text is in the public domain.
77.
The First Deposition and Excommunication of Henry IV by Gregory VII, 1076.
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.
4: Session V - Merchant and Urban Law A
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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302.
Otto I Grants a Market to an Archbishop, 965.
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.
5: Session V - Merchant and Urban Law B
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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303.
Otto III Grants a Market to Count Bertold, 999.
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. . . .
6: Session V - Merchant and Urban Law C
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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304.
No One shall Compel Merchants to Come to His Market, 1236.
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. . . .
7: Session V - Merchant and Urban Law D
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.
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305.
A Market-court is Independent of the Local Court, 1218.
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.
8: Session V - Merchant and Urban Law E
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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306.
Otto I Grants Jurisdiction over a Town to the Abbots of New Corvey, 940.
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.
9: Session V - Merchant and Urban Law F
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.
319.
Peace Established by the Rhine League, 1254.
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.
10: Session V - Merchant and Urban Law G
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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The text is in the public domain.
320.
Agreement between Hamburg and Lübeck,ca. 1230.
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. . . .
11: Session V - Merchant and Urban Law H
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.
Accessed from oll.libertyfund.org/title/2277/215802 on 2010-01-11
The text is in the public domain.
321.
Agreement for Mutual Protection between Lübeck and Hamburg, 1241.
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.
12: Session V - Merchant and Urban Law I
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 2010-01-11
The text is in the public domain.
323.
Decrees of the Hanseatic League, 1260-64.
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.
13: Session V - Merchant and Urban Law J
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 2010-01-11
The text is in the public domain.
325.
Cologne Merchants have a Gildhall in London, 1157.
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. . . .
BIBLIOGRAPHY
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.
1.
LARGE COLLECTIONS; NATIONAL
- M. G. Monumenta Germaniæ Historica; SS., LL., DD., refer to the divisions Scriptores, Leges, Diplomata, according to which the work is arranged; folio, 4to, refer to the two forms of the collection.
- Scriptores rerum Germanicarum in usum scholarum; chronicles reprinted in 8vo from M. G. SS.
- Jaffé, Bibliotheca rerum Germanicarum; 6 vols.
- Böhmer, Fontes rerum Germanicarum; 4 vols.
- Böhmer-Ficker-Winkelmann, Regesta. Summaries of imperial documents with indications of the places where they are to be found.
- Bouquet Recueil des historiens des Gaules et de la France. French collection of mediæval sources, in 23 vols.
- Documents inédits sur l’histoire de France.
- Muratori, Rerum Italicarum Scriptores; collection of chronicles relating chiefly to the history of Italy in the Middle Age, in 28 vols.
- Rolls series, Rerum Britannicarum medii aevi scriptores, or chronicles and memorials of Great Britain and Ireland during the Middle Ages. Published under the direction of the Master of the Rolls.
- Rymer, Foedera; English public documents, 20 vols.
2.
LARGE COLLECTIONS; ECCLESIASTICAL AND PAPAL
- Migne, Patrologia; Cursus completus patrologiæ . . . Series Latina; acts and writings of the fathers and popes, 221 vols.
- Mansi, Conciliorum amplissima collectio.
- Hefele, Conciliengeschichte; quotes or cites in translation many decrees of councils; 9 vols.
- Baronius, Annales ecclesiastici; collection of chronicles relating to the history of the Roman Catholic church, published in 1598.
- Raynaldus, Annales; continuation of Baronius.
- Watterich, Pontificum Romanorum vitæ; lives of the popes, 9th to 13th centuries.
- Bullarium Romanum; collection of papal bulls, 450-1550 ad
- Corpus juris canonici; collection of decrees of councils and popes, forming the body of the canon or church law.
- Liber diurnus; collection of forms of papal documents, letters, grants, bulls, etc., to serve as models for the papal secretaries.
- Duchesne, Liber pontificalis.
3.
SPECIAL TOPICS SELECTED DOCUMENTS, ETC.
- Die Chroniken der deutschen Städte vom 14. bis ins 16. Jahrh.; 22 vols.
- Huilliard-Bréholles, Historica diplomatica Friderici secundi; 12 vols.
- Doeberl, Monumenta Germaniæ Selecta; selected documents referring to the history of Germany, vols. 3-5, 1037-1250 ad
- Altmann und Bernheim, Ausgewählte Urkunden; selected documents referring to the history of Germany in the Middle Age.
- Breslau, Diplomata Centum; a collection of one hundred documents illustrating mediæval diplomatics.
GLOSSARY
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.