A Source Book for Mediæval History / Selected Documents illustrating the History of Europe in the Middle Age

by Oliver J. Thatcher; Edgar Holmes McNeal

VII. COURTS, JUDICIAL PROCESSES, AND THE PEACE

It is not our purpose to give a complete account of all the mediæval courts, nor to show fully their mutual connection. Because of the great difficulties of the subject and the lack of suitable documents we name only the most important courts and offer a few passages to illustrate them. It is not that such documents are scarce that we have presented so few of them; but they contain so much that would require long explanations that they would demand far more space than we felt could properly be given to this subject. The materials which we offer illustrate the courts for the most part after 1100, but they throw light on those of the earlier period. In many other documents contained in this book there are references to courts and judicial processes which the student should carefully observe.

I. The royal court. According to mediæval theory the king was the judge in the whole realm. He had jurisdiction over all things. But because he could not be present everywhere and hear all cases, he appointed men (dukes, counts, etc.) to act as judges in his place. But they merely represented him. So whenever the king in his travels comes to a place, he at once replaces the local judge and all the machinery for the administration of justice. Since he was present in person, he needed no one to represent him. Eventually the great princes refused to receive him into their palaces because of the heavy expense in entertaining him and his numerous retinue, so his journeys as judge into their territories gradually ceased. In 1220 Frederick II agreed that he would exercise his rights as judge in the cities of the bishops only during the diets which he should hold in them and a week before and a week after. (See no. [136], par. 10.) He soon ceased to travel as judge, and after 1250 acted as judge only in and during the diets which he held.

Since in theory all judges and courts merely represented the king, he had the right to call before himself any case, no matter where it was pending. This was called the jus evocandi, the "right of calling." Rudolph of Hapsburg and his successors granted both princes and cities exemption from this. In the Golden Bull ([no. 160, chs. VIII and XI]) Charles IV renounced all right to call any of the subjects of the electoral princes before his court. These exemptions were gradually extended to all the princes, imperial cities, bishops, and other territorial lords, until in 1487 the crown completely lost its jus evocandi.

In the same way everyone had the right to appeal to the king, against the decision of any court. But in time the king surrendered this also in the same way to the electoral princes and agreed never to receive appeals from any of their subjects. See [no. 160].

Frederick II found it impossible to attend to all the business of the royal court, and so in 1235 appointed a justiciar to represent him in all minor cases. See [no. 232], par. 28. He also made provision for keeping complete records of the imperial court, and appointed a court secretary and put him under the control of the justiciar. See no. 232, par. 29.

II. The county courts. The county was composed of several districts called hundreds. Each hundred had its court, which was always held in the same place. The count received his authority as judge from the king, and with it the right to inflict the king’s ban or fine of sixty shillings. The count went about from one court place to another, holding three courts a year in each place. This regular court was in session three days. If the business of the court could not be attended to in these three days, the count announced another court to be held a few weeks later. All the freemen of the hundred in which the court was held were bound to be present at it. The courts of the count were called the greater courts (judicia majora) and had jurisdiction over property, criminal actions of a serious character, and suits to recover serfs. The lower or hundred courts (judicia minora, see nos. [139], §7; [no. 231], I, 58) had jurisdiction over cases involving debts, chattels, and trespass. These lower courts were presided over by judges of inferior rank called Schultheissen, Gografen, or hundred-counts, who were either appointed by the count or elected by the people. They merely represented the count, and could not inflict the king’s ban.

The counts were at first regarded as officials of the king, but under the influence of feudalism they became vassals and received their judgeships as fiefs.

III. Courts on the royal domain. All who lived on the crown lands, or royal domain, as they were called, were exempt from the county courts. The king appointed an official to administer justice to them. He was called an advocate and his office an advocacy. His position was similar to that of the count in the county courts. He presided over the judicia majora, and appointed Schultheissen to preside over the judicia minora.

IV. Courts on the lands of bishops and abbots. All those who lived on the lands of bishops and abbots who held directly from the king, were also exempt from the county courts. They were under the jurisdiction of the bishop or abbot, who appointed an advocate to preside over the higher courts, and Schultheissen to preside over the lower. These courts were quite like those on the royal domain.

V. The sovereign courts of the princes. The dukes received their jurisdiction with their fiefs, and in theory their courts did not differ from those of the counts. But they had a different development. For the dukes steadily developed toward sovereignty in their territories, and in 1231 many of them got complete exemption from the royal jurisdiction (see [no. 139]).

The duke of Austria was the first one to secure such complete exemption (1156); see [no. 110]. The Golden Bull (chaps. VIII and XI) shows that all the electors had acquired complete exemption and were sovereigns in their territories in the administration of justice.

VI. The courts of great landholders. Every great landholder, having a large number of vassals, held a court for the trial of all questions which arose between him and his vassals, or among his vassals. Since he also had jurisdiction over all the tenants and serfs on his lands, he of course held courts for them, which were similar to those described in III and IV. They are very similar also to the manorial courts in England.

VII. For the courts of the ministerials see nos. [297], [231, III, 42].

VIII. Ecclesiastical courts. There were also ecclesiastical courts which were presided over by clergymen, such as bishops, abbots, cathedral provosts, archbishops, etc. They tried all cases which involved offenses against the laws of the church.

IX. As the cities secured the right to govern themselves, they also in many cases got jurisdiction over themselves. In the documents in section X there are many references to courts and judicial processes in the cities. From the explanations given here the student will be able to understand at least their chief features.

X. Arbitration. Since the courts and the machinery for administering justice proved to be inefficient, it became common, especially among the cities, to create a commission of arbitration to settle all quarrels in a peaceable manner. See [no. 319].

In German courts the judge was really only the presiding officer. The decision was rendered by the people who were present or by the Schoeffen. Generally some particular person had the right to propose the verdict (cf. [no. 297], §5). At the proper time the judge asked him what decision he wished to propose. Then the others present might agree with the proposed verdict or offer another in its stead.

In cases where there were no witnesses the accused was compelled to bring one or more of his relatives, friends, or neighbors, who swore that they believed that he was telling the truth. They were called his compurgators.

Schoeffe, pl. Schoeffen, were the permanent judges of the hundred court. They were instituted by Karl the Great to take the place of the temporary rachinburgii of the Salic law (see [note 22]). There were generally twelve of them in each county, and seven must be present before a court could be legally opened. They gave the decision in certain courts, and in so far they may be compared to our modern jury. They held their office for life. In the German cities the board of Schoeffen played a very important part in the administration of justice.

Schoeffen free, or Schoeffenbar free, were all the free-born. They were eligible for the office of Schoeffe.

The Pfleghaften were the free peasants who owned lands but because they did not render military service were compelled to pay an army tax. The payment of this tax was regarded as an evidence that they were not completely free, and hence their position was lower than that of the freemen who rendered military service for their lands.

The Landsassen were, like the leti (see [note 18]), essentially serfs, attached to the soil, and paying fixed rent and services.

The Bauermeister was at the head of the peasants of a village or district and acted as judge in certain cases when no other judge was at hand.

231. Sachsenspiegel.

Following the revival in the study of the Roman law and the connection of Germany with Italy under the Staufer, Roman law was being introduced into Germany, where it naturally tended to replace the customary law, which was for the most part unwritten. The desire of the Saxons to preserve their own law and to prevent the uncertainty that would necessarily soon arise in it led them to attempt to codify it. Eike von Repkau, a nobleman, undertook the task of reducing their customs to writing. He called his book or code, which was written between 1215 and 1276, the Sachsenspiegel, that is, the mirror in which the Saxon law is seen.

I, 2. Every Christian man who has attained his majority is bound to attend the ecclesiastical court in the bishopric in which he lives three times a year. Three classes of people are exempt from this: The Schoeffenbar free shall attend the court of the bishop; the Pfleghaften shall attend the court of the præpositus of the cathedral, and the Landsassen shall attend the court of the archpriests.

They shall also all attend the civil courts. The Schoeffenbar free shall attend the burggrave’s court [also called the advocate’s court] every eighteen weeks. In it judgment is given under the king’s ban. If a court is called to meet after the close of the regular court, all the Pfleghaften shall attend it to try all cases involving misdeeds. This attendance is all that the judge may require from them.

The Pfleghaften shall attend the court of the Schultheiss which is held every six weeks, to try cases concerning their possessions.

The Landsassen who have no property shall attend the court of the Gograf which is held every six weeks. In the courts of the Gograf and of the burggrave the Bauermeister shall make complaint of all whose duty it is to attend the court but do not do so. And he shall ask an investigation about all cases which involve bloody wounds, abusive speech, the drawing of swords in a threatening manner, and all kinds of misdeeds, provided no suit has been entered about them.

I, 53. If anyone does not attend court when it is called, or fails to prove his case when he has brought suit, or challenges a man and is defeated, or does not come promptly to court, or disturbs the court by word or deed, or fails to pay a debt when the court has given judgment against him, he shall pay the judge his fine. In every case in which one party secures "damages" from another, the convicted party must also pay the judge his fine. And even in many cases in which no damage is involved, the judge may assess his fine....

No one is fined twice for the same offence, unless he breaks the peace on a holy day. In that case he pays two fines, one to the ecclesiastical court and one to the civil court, and he pays damages besides to him whom he has injured.

I, 58. If the people choose a Gograf for a long period, the count or the margrave shall invest him with his office.... When the count comes into the district of the Gograf, the latter loses all his authority and cannot hold court [because his superior, whom he merely represents, is present]. In the same way when the king comes into the territory which is under the jurisdiction of the count, the count loses all his authority and cannot hold court. And this is true of all courts. In the presence of the king all other judges lose their authority and the king must try all cases. A count is the same as a judge, according to old German ideas.

II, 3. If a man is challenged to a duel who was not warned of it before he came to court, he shall have time, according to his rank, to prepare himself for it. The Schoeffenbar free shall have six weeks, other freemen and ministerials fifteen days. But for all other things that are laid to a man’s charge he shall answer at once, and either admit or deny his guilt.

II, 12. No man may render a decision in a case to which his lord, his vassal, or his friend is a party, if it involves their life or honor. Schoeffenbar free men may render decisions in all cases, but no one may render decisions in their cases unless he is of the same rank as they.... If a man objects to a decision after it is rendered, he may appeal to the higher judge and then to the king. In case an appeal is made, the judge shall send his messengers who understand the case to the king. The messengers shall be freemen, and the judge shall pay all their expenses while on the journey. They shall have enough bread and beer, and three dishes for dinner and a cup of wine. Their servants shall have two dishes. He shall give five sheaves for each horse every day, and shoes for their forefeet. As soon as they learn that the king is in Saxony they shall go to him and bring back his decision within six weeks.

If the man who made the appeal loses it, he shall pay the judge his fine, and all the expenses of his messengers to the king, and damages to the man against whose decision he appealed....

If a judge asks a man to render a decision, and the man is in doubt and cannot make up his mind about it, he may refuse to give a decision, and the judge shall ask someone else for a decision.... If a man proposes a decision and someone who is present objects to it and proposes another, the judge shall accept that decision which receives a majority of the votes of those present.

II, 13. A thief shall be hung. If a theft takes place by day in a villa [village] and the object stolen is worth less than three shillings, the Bauermeister may pass judgment on the thief the same day. He may punish him in his hair and skin,[{107}] or fine him three shillings. This is the highest sum for which the Bauermeister may try [i.e., not more than three shillings]. But he cannot try the case the next day. But in cases involving money, or movable goods, or false weights and measures, and cheating in the sale of victuals, he may assess higher fines. Murderers, and all who steal horses from the plow, or grain from the mill, or rob churches or cemeteries, and all who are guilty of treason, or arson, or who make gain out of information entrusted to them by their lord, shall be broken on the wheel.

If anyone beats, seizes, or robs another, or burns his house, or does violence to a woman, or breaks the peace, or is taken in adultery, he shall have his head cut off. Whoever conceals a thief or stolen property or aids a thief in any way, shall be punished as a thief. Heretics, witches, and poisoners shall be burnt.

If a judge refuses to punish a crime, he shall be punished as if guilty of it himself. No one is bound to attend his court or submit to his judgment if he has refused to grant him justice.

II, 27. If a man refuses to pay bridge or ferry toll, he shall be made to pay it fourfold. If he refuses to pay toll on the frontier, he shall be fined thirty shillings. This is the toll for ferries: For coming and going, four foot-passengers shall pay a penny; a man on horseback, a half-penny; a loaded wagon, four pence. The toll for bridges is half this. No toll shall be collected from anyone except at bridges and ferries.... An empty wagon pays half as much as a loaded one.... If anyone leaves the road and drives over cultivated land he shall pay a penny for each one of his wheels and make good the damage he has done. If on horseback, he shall pay half a penny besides the damage.

II, 28. If anyone cuts another’s wood, or mows his grass, or fishes in his streams, he shall pay a fine of three shillings and make good the damage besides. If he fishes in another’s fish-pond, or cuts down trees which have been planted, or fruit-trees, or if he takes the fruit from a tree, or cuts down trees which mark boundaries, or removes stones which have been set up to mark boundaries, he shall pay a fine of thirty shillings.... Whoever by night steals wood that has been cut, or grass that has been mown, shall be hung. If he steals them by day, he shall be punished in his "hair and skin." A fisherman may use the bank as far as he can step from his boat.

III, 26. The king is the common judge everywhere. The Schoeffenbar free man cannot be called before a foreign court to fight a duel. But he must answer in the court in whose jurisdiction he is.

III, 33. Every man has the right to be tried before the king. And every man must respond if suit is brought against him before the king....

III, 42. Do not be surprised that I have said nothing about the law of the ministerials. It is so varied that no one could ever come to the end of it. For under every bishop, abbot, and abbess, there are ministerials who have their special code of laws, and so I cannot set them all down here....

III, 52. The king is elected as judge in all cases concerning property, fiefs, and life. But he cannot be everywhere, nor judge all cases, and so he gives Fahnlehen [flag-fiefs] to the princes [i.e., with jurisdiction over them], and counties to counts with the power to appoint Schultheissen, so that they can act as judges in the king’s stead.

III, 53. For every case a judge receives a fine but not damages. For no one receives damages but the man who brings the suit. And the judge cannot be both judge and a party to the suit.

III, 55. No one but the king can act as judge over the princes.

III, 60. The emperor enfeoffs all ecclesiastical princes with their fiefs using the sceptre as a symbol, and all secular princes with their Fahnlehen using a flag as a symbol. A Fahnlehen must not be vacant a year and a day. Wherever the king is, the mint and tolls of that place are surrendered to him during his stay there. And the local court is closed because he is the judge [and the local judge merely represents him]. While he is present all cases must be tried before him. The first time the king comes into the land [i.e., after his election], all prisoners must be brought before him, and he shall decide whether they shall be set free or tried....

III, 63. Constantine the Great gave pope Silvester the secular fine of fifty shillings in addition to his ecclesiastical authority, in order that he might use both secular and ecclesiastical means to compel people to obey and do right. So the two courts, the ecclesiastical and the secular, should aid each other, and each should punish all who resist the other....

III, 64. If the king summons the princes to render military service to the empire, or to come to a diet, and informs them of it by means of letters bearing his seal six weeks before the time set, they must obey and go to the king if he is in Germany. If they do not go, they shall pay a fine. The princes who have Fahnlehen pay 100 pounds. All others pay twelve pounds. A nobleman who does not come pays his duke ten pounds.... Those who are under a count or imperial advocate pay him sixty shillings, if he has the king’s ban. No one but the king can grant the king’s ban.

III, 69. In courts where the judge may inflict the king’s ban, neither the judge nor the Schoeffen shall wear caps or hats or any covering on the head, or gloves. But they may wear mantles on their shoulders. They shall not carry weapons [in court]. They shall fast until they pass judgment on every man, whether he is a German or Wend. No one except them shall pass judgment. They shall sit while passing judgment.

III, 70. In courts where the judge has no authority to inflict the king’s ban, any man may give the decision, or be a witness....

{107} Punishment in the "hair and skin" was especially cruel. The guilty one was flogged and his hair was wound about a stick which was then turned around and around until the hair was all pulled out. For some offences the hair was closely cut instead of being pulled out, which was, of course, much more humane. Long hair was worn by freemen as a mark of their rank.

232. Frederic II Appoints a Justiciar and a Court Secretary, 1235. From the Peace of the Land which was Proclaimed at Mainz, 1235.

Altmann und Bernheim, no. 103.

(28).... We wish that all cases over which we cannot preside in person shall be tried by a man of approved character and good reputation, who shall be placed over the courts in our stead. And except in those cases which we reserve for our decision his judgment shall be final. We decree therefore that our court shall have as justiciar a free man, and he shall hold the office at least a year if he judges justly. He shall preside over the court every day except on Sundays and other holy days, and he shall administer justice to all litigants except to the princes and to other high persons in cases which touch their persons, rights, honor, fiefs, possessions, and inheritances, and the most important cases. All such cases we reserve for our judgment. This justiciar shall not fix the time for the more important cases which come before him without our special command. He shall not proscribe the guilty nor release from proscription. This we reserve for ourselves. He shall take oath that he will not receive anything for his decision, and that he will not be influenced by love, or hatred, or beseechings, or money, or fear, or favor, but according to his conscience, in good faith, without fraud or treachery, he will judge according to what he knows or believes to be right. We grant him all the fees which come from the absolution of those who have been proscribed, provided their cases were tried before him. We do this that he may be free to judge as he wishes, and may not find it necessary to receive gifts from anyone. He shall not remit the fine of anyone, in order that men may fear proscription.

(29) He shall have a special notary who shall keep the names of those who are proscribed, and of those who brought suit against them, an account of the case itself, and the day on which the proscription took place; also the names of those who are absolved from proscription, and of those who brought suit against them, and the day they were freed from proscription; also the names of those who stand as security for them, and where they live, and also an account of any other security which the man to be absolved is required to furnish for the satisfaction of the one who brought suit against him. All letters and documents concerning suits shall be sent to him. He shall devote all his time to this, and shall have no other work to do at the imperial court. He shall keep a list of those who are denounced as dangerous, and when anyone is freed from suspicion, he shall take his name from the list.... He shall be a layman, because a clergyman is not permitted to write judgments which involve the shedding of blood, and also in order that if he does wrong in his office he may be punished properly. He shall take an oath to conduct himself faithfully and legally in his office....

233. Wenzel Creates a Commission to Arbitrate all Differences, 1389. From the Peace of Eger, 1389. (German.)

Altmann und Bernheim, no. 107.

(2) We, king Wenzel, have made an agreement with the electors, princes, counts, lords, and the cities, and all who are parties to this league of peace, in regard to robbery, murder, arson, illegal seizure of persons, and quarrels which may arise between those who are party to this peace, that a commission shall be appointed to judge all cases of infraction of the peace, and the decision of this commission, or of a majority of it, shall be binding on all concerned. The electors, princes, counts, and lords shall name four of these commissioners, and the cities shall name four. And we will appoint a man to be president of this commission. If any member of this peace is injured by anyone, the case shall be brought before the president of the commission. Within fourteen days he shall call the commission to meet in one of the four cities, Würzburg, Neustadt, Bamberg, or Nürnberg, as seems best to him. And the decision of this commission, or a majority of it, shall be binding, and they may call on the nearest lords, cities, officials, and judges, to aid them against the one who has broken the peace and inflicted the damage. And they shall be bound to aid them until the damage has, in the judgment of the commission, been made good.

(5) These nine men who form the commission shall swear on the holy relics that they will faithfully act as judges for rich and poor alike.

(10) If a war or quarrel arises between the lords and the cities who are in this peace, it shall be reported to the president and members of the commission. And both parties shall submit to the decision which the commission, or a majority of it, shall render in the case. If anyone refuses to submit to their decision, all the members of this league of peace shall aid the commission in enforcing it.

234–239. Ordeals or Judgments of God.

M. G. LL. 4to, V, pp. 599 ff. Ordines judiciorum Dei.

The appeal to the judgment of God in legal cases was an old Germanic practice. There is evidence that the settlement of cases by lot, and by judicial combat or duel, was common in the earliest times. In the Salic and other laws there are references to the ordeal by hot water, etc. After the introduction of Christianity and the growth of the influence of the priest, the various ordeals were conducted by the church. The casting of lots and the judicial combat were opposed by the church, the one because it was inseparably connected with heathen rites, and the other because of its violence. Accordingly the church introduced other forms, some of which are illustrated here. The ordeal was ordinarily resorted to when the regular rules of evidence were not satisfied, as when one party could not furnish the required number of compurgators, or was accused of perjury, etc. The ordeal might be used either to determine which of two persons was in the wrong, or to test the guilt or innocence of a single accused person. The commonest forms were: (1) The ordeal of the sacrament, in which the accused took the sacrament, the expectation being that if he were guilty the consequences would be fatal; (2) the ordeal of the cross, in which the two persons stood with arms outstretched in the form of a cross, and the one whose arms fell first was regarded as guilty; (3) the ordeal by hot water; (4) the ordeal by hot iron, in which the accused either carried a piece of hot iron in his hand a certain distance or walked barefoot over pieces of hot iron; (5) the ordeal by cold water; (6) the ordeal by the bread and cheese; (7) the ordeal by the suspended bread, or psalter, in which the object suspended was expected to turn around if the accused person was guilty; (8) the judicial combat, which was not favored by the church, but which was very commonly used among the noble class.

234. Ordeal by Hot Water.

Pp. 612 ff.

(1) When men are to be tried by the ordeal of hot water, they shall first be made to come to church in all humility, and prostrate themselves, while the priest says these prayers:

First prayer. Aid, O God, those who seek thy mercy, and pardon those who confess their sins....

(2) After these prayers, the priest shall rise and say the mass before all the men who are to be tried, and they shall take part in the mass. But before they take the communion, the priest shall adjure them in these words: I adjure you, by the Father, Son, and Holy Spirit, by your Christianity, by the only begotten Son of God, whom you believe to be the Redeemer of the world, by the holy Trinity, by the holy gospel, and by the relics of the saints which are kept in this church, that you do not come to the holy communion and take of it, if you have done this offence, or consented to it, or if you know who committed it, or anything else about it.

(3) If they all keep silence and no one makes any confession, the priest shall go to the altar and take communion, and then give it to the men; but before they take it he shall say: Let this body and blood of our Lord Jesus Christ be today a trial of your guilt or innocence.

(4) After the mass the priest shall go to the place where the ordeal is to be held, bearing with him the book of the gospels and a cross, and he shall say a short litany. After the litany he shall exorcise the water before it becomes hot, as follows:

(5) I exorcise thee, water, in the name of omnipotent God, and in the name of Jesus Christ, his Son, our Lord, that you may become exorcised and freed from the power of the enemy and the wiles of the devil; so that, if this man who is about to put his hand in you is innocent of the crime of which he is accused, he may escape all injury through the grace of omnipotent God. If he is guilty either in deed or knowledge of the offence of which he is accused, may the power of omnipotent God prove this upon him, so that all men may fear and tremble at the name of our Lord Jesus Christ, who lives and reigns with God.

(6) Prayer. Lord Jesus Christ, who art a just judge, strong and patient, plenteous in mercy, by whom all things are made, God of gods, Lord of lords, who didst come down from the bosom of the Father for us and our salvation, and wast born of the Virgin Mary; who by thy passion on the cross didst redeem the world; who didst descend into hell and there didst bind the devil in the outer darkness, and free by thy great power the souls of all the just who suffered there for the original sin; we beseech thee, O Lord, to send down from heaven thy Holy Spirit upon this water, which is now hot and steaming from the fire, that through it we may have a just judgment upon this man. O Lord, who didst turn the water into wine in Cana of Galilee as a sign of thy power, who didst lead the three children Meshach, Shadrach, and Abednego, through the fiery furnace without harm, who didst free Susanna from the false accusation, who didst open the eyes of the man born blind, who didst raise Lazarus after four days from the tomb, who didst reach out thy hand to Peter as he was sinking in the sea, we, thy suppliants, beseech thee not to have regard for the errors in our prayer, but to make known to us before all men thy true and righteous judgment; so that if this man who is accused of fornication, or theft, or homicide, or adultery, or any other crime, and who is about to put his hand into the hot water, is not guilty of that crime, thou wilt so guard him that no harm or injury shall happen to that hand.

(7) Omnipotent God, we, thy unworthy and sinful servants, again beseech thee to make manifest to us thy true and righteous judgment, so that this man, who is accused and is about to undergo the ordeal, is guilty of that crime, by act or consent, because of the instigation of the devil or through his own cupidity or pride, and expects to escape or to circumvent the ordeal by some trick, his guilt may be made known upon him by thy power, and may be shown upon his hand, in order that he himself may be brought to confession and repentance, and that thy holy and righteous judgment may be made manifest to all people.

(8) [Another exorcism of the water.]

(9) Then the priest takes off the garments of each of the men and clothes them in the clean robes of an exorcist or deacon, makes them each kiss the gospel and cross of Christ, and sprinkles them with holy water. Then he makes them each take a drink of the holy water, saying to each one: I give you this water as a trial of your guilt or innocence. Then the wood is placed under the caldron and lighted, and when the water begins to get hot the priest says these prayers:

(10) In the name of the holy Trinity. God the just Judge, etc. [Similar to §6 above.]

(11) Let us pray. God, who didst free St. Susanna from the false accusation; God, who didst rescue St. Thecla from the arena; God, who didst free St. Daniel from the lions’ den, and the three children from the fiery furnace: free now the innocent, and make known the guilty.

(12) The man who is to undergo the ordeal shall say the Lord’s prayer and make the sign of the cross; then the caldron shall be taken from the fire, and the judge shall suspend a stone in the water at the prescribed depth in the regular manner, and the man shall take the stone out of the water in the name of the Lord. Then his hand shall be immediately bound up and sealed with the seal of the judge, and shall remain wrapped up for three days, when it shall be unbound and examined by suitable persons.

235. Ordeal by Hot Iron.

Pp. 615 f.

(1) First the priest says the prescribed mass; then he has the fire lighted, and blesses the water and sprinkles it over the fire, over the spectators, and over the place where the ordeal is to be held; then he says this prayer:

(2) O Lord, our God, the omnipotent Father, the unfailing Light, hear us, for thou art the maker of all lights. Bless, O God, the fire which we have sanctified and blessed in thy name, thou who hast illumined the whole world, that we may receive from it the light of thy glory. As thou didst illumine Moses with the fire, so illumine our hearts and minds that we may win eternal life.

(3) Then he shall say the litany....

(4) The prayers....

(5) Then the priest approaches the fire and blesses the pieces of iron, saying: O God, the just judge, who art the author of peace and judgest with equity, we humbly beseech thee so to bless this iron, which is to be used for the trial of this case, that if this man is innocent of the charge he may take the iron in his hand, or walk upon it, without receiving harm or injury; and if he is guilty this may be made manifest upon him by thy righteous power; that iniquity may not prevail over justice, nor falsehood over truth.

(6) O Lord, the holy Father, we beseech thee by the invocation of thy most holy name, by the advent of thy Son, our Lord Jesus Christ, and by the gift of the Holy Spirit, the Comforter, to bless these pieces of iron to the manifestation of thy righteous judgment, that they may be so sanctified and dedicated that thy truth may be made known to thy faithful subjects in this trial. In the name of our Lord Jesus Christ, etc.

(7) Omnipotent God, we humbly beseech thee that in the trial which we are about to make, iniquity may not prevail over justice, nor falsehood over truth. And if anyone shall attempt to circumvent this trial by witchcraft or dealing with herbs, may it be prevented by thy power.

(8) May the blessing of God the Father, Son, and Holy Spirit descend upon these pieces of iron, that the judgment of God may be manifest in them.

(9) Then this psalm shall be said on behalf of the accused: Hear my prayer, O Lord, and give ear unto my cry....

(10) Prayer: Hear, we beseech thee, O Lord, the prayer of thy suppliants, and pardon those that confess their sins, and give us pardon and peace.

(11) Then those who are to be tried shall be adjured as follows: I adjure you (name), by omnipotent God who made heaven and earth, the sea, and all that in them is, by Jesus Christ his Son, who was born and suffered for us, by the Holy Spirit, by the holy Mary, the Mother of God, and by all the holy angels, apostles, martyrs, confessors, and virgins, that you do not yield to the persuasions of the devil and presume to take the iron in your hand, if you are guilty of the crime of which you are accused, or if you know the guilty person. If you are guilty and are rash enough to take the test, may you be put to confusion and condemned, by the virtue of our Lord Jesus Christ, and by the sign of his holy cross. But if you are innocent of the crime, in the name of our Lord Jesus Christ and by the sign of his holy cross, may you have faith to take this iron in your hand; and may God, the just Judge, keep you from harm, even as he saved the three children from the fiery furnace and freed Susanna from the false accusation; may you go through the ordeal safe and secure, and may the power of our Lord be made manifest in you this day.

(12) Then he who is about to be tried shall say: In this ordeal which I am about to undergo, I put my trust rather in the power of God the omnipotent Father to show his justice and truth in this trial, than in the power of the devil or of witchcraft to circumvent the justice and the truth of God.

(13) Then the man who is accused takes the sacrament and carries the iron to the designated place. After that the deacon shall bind up his hand and place the seal upon it. And until the hand is unwrapped [i.e., at the end of three days] the man should put salt and holy water in all his food and drink.

236. Ordeal by Cold Water.

Pp. 618 f.

(1) When men are to be put to the ordeal [of cold water], the process should be as follows: They shall be brought to the church, and the priest shall say the mass and the men shall take part in it. Before they take the communion, the priest shall adjure them thus:

(2) I adjure you, men, by the Father, Son, and Holy Spirit, by your Christianity, by the only begotten Son of God, by the holy Trinity, by the holy gospel, and by the relics that are kept in this church, that you do not presume to take communion, or to come to the altar if you have committed this crime, or have consented to it, or if you know the guilty person.

(3) If they all keep silence and no one confesses, the priest shall go to the altar and give them the communion. Then he shall say to them: May this body and blood of our Lord Jesus Christ be today a trial of your guilt or innocence.

(4) After the mass, the priest shall take water that has been blessed and shall go to the place of the ordeal. When they come there the priest shall give the men this water to drink, and shall say: May this water be a trial of your guilt or innocence. Then he shall adjure the water in which they are to be cast, and then shall take off the clothes of the men and make each one of them kiss the holy gospel and the cross of Christ. Then he shall sprinkle each of them with holy water and shall cast them one by one into the water. The priest and those who are to be tried should have fasted before the trial.

(5) Adjuration of the man who is to undergo the ordeal: I adjure you (name), by the invocation of our Lord Jesus Christ, and by the ordeal of cold water. I adjure you by the Father, Son, and Holy Spirit, by the inseparable Trinity, by our Lord Jesus Christ, by all the angels and archangels, by the dreadful day of judgment, by the four evangelists, Matthew, Mark, Luke, and John, by the twelve apostles, by the twelve prophets, by all the saints of God, by the principalities and powers, by the dominions and virtues, by the thrones of the cherubim and seraphim, by the three children, Meshach, Shadrach, and Abednego, by the 144,000 who suffered for the name of Christ, by the baptism in which the priest gave you the new birth, that if you have seen or known anything about this theft, if you have had anything to do with it, if you have received it in your house, or consented to it, or if your heart is hardened, your heart may be melted, and the water may not receive you; may witchcraft not prevail, but may the truth be made manifest. We beseech thee, our Lord Jesus Christ, give us a sign, so that if this man is guilty, the water may not receive him; do this to thine honor and glory, by the invocation of thy name, that all may know that thou art our Lord, who livest and reignest with the Father and the Holy Spirit, forever and ever. Amen.

(6) Prayer over the water. We humbly beseech thee, O Lord Jesus Christ, to give us a sign, that if this man is guilty in any way of the crime of which he is accused the water may not receive him, but he may float, and not sink in the water. Do this, O Lord Jesus Christ, to thine honor and glory by the invocation of thy holy name, that all may know that thou art the true God, and that there is no other God beside thee, who livest and reignest with God the Father in unity with the Holy Spirit forever and ever. Amen.

(7) Omnipotent God has established this ordeal, and it is righteous. Pope Eugene has ordained that it should be used throughout the whole world by all bishops, abbots, counts, and all Christians, for it is proved by many to be just and righteous. Therefore it has been decreed by them that no one may clear himself by placing his hand on the altar or on the relics, or by swearing on the bodies of the saints.

237. Ordeal by Cold Water.

P. 689.

The following paragraph is taken from another ordeal by cold water which is otherwise similar to the one just given; it illustrates more minutely the way in which the accused was immersed.

(6) On the staff which is placed between the arms of the man shall be written: Behold the cross of God, let his adversaries flee. The lion of the tribe of Judah, the root of David, hath prevailed to make a righteous judgment + [sign of the cross]. May St. John the Baptist bless this water. On it shall also be written the gospel: In the beginning; and the benediction: Lord God.[{108}]

{108} An illustration, from an old manuscript of one of the collections of forms for ordeal, shows how the person was bound in this case. The illustration represents the ordeal as taking place from a boat. The man’s knees are shown drawn up to his chin; a staff is under the bend of the knees and his arms are passed under the staff. His hands are bound at the wrist with a rope which is held by other persons in the boat. He was probably drawn out by the rope if he sank in the water.

238. Ordeal by the Barley Bread.

P. 691.

(1) First the priest prepares himself with the deacon, and then blesses the water; and the deacon prepares the barley flour which he mixes with the holy water and bakes, both of them saying during the process the seven penitential psalms, the litany, and the following prayers [certain prayers follow].

(2) Prayer over the bread. O God, who didst reveal the wood of the true cross on Mount Calvary, where Christ was betrayed by Judas (for God gave over his Son to be betrayed by Judas), reveal to us by the judgment of the barley bread whatever we ask in thy name.

(3) After the bread is baked the priest shall take it and place it behind the altar and shall say the mass for that day. After the mass he shall mark the bread with the sign of the cross, and shall place an iron rod in the centre of the cross, with a hook at the top to suspend it by. The priest shall keep this bread by him and use it until it spoils. When anyone is accused of theft, or fornication, or homicide, and is brought before the priest, the priest shall take the bread and give it to two Christian men, and they shall hang it by the hook between them, and the priest shall say the following adjuration. And if the man is guilty, the bread will revolve around; if he is not guilty, the bread will not move at all.

(4) Adjuration over the barley bread. I adjure thee, barley bread, by God the omnipotent Father, etc., that if this man or woman has committed, consented to, or had any part in this crime, thou shalt turn around in a circle; if he is not guilty, thou shalt not move at all. I adjure thee, barley bread, by the Mother of God, by the prophet Hosea, and the prophet Jonah, who prophesied unto Nineveh, by Lazarus, whom God raised from the dead, by the blind man, to whom the Lord restored his sight, by all the monks and canons and all laymen, by all women, and by all the inhabitants of heaven and earth, forever and ever, amen.

239. Ordeal by Bread and Cheese.

P. 630 f.

(1) Lord God omnipotent, holy, holy, holy. Holy Father, the invisible and eternal God, maker of all things; holy God, ruler of mortals and immortals, who dost see and know all things, who triest the hearts and the reins; O God, I beseech thee, hear the words of my prayer, that this bread and cheese may not pass the jaws and the throat of him who has committed the theft.

(2) Before the mass is begun and before the cheese is cut with the knife, while it is still whole, these words should be written round about it: "His mischief shall return upon his own head, and his violent dealing shall come down upon his own pate" [Ps. 7:16].

(3) Then bread and cheese to the weight of nine denarii shall be given to each man. The bread shall be of barley and unleavened; the cheese shall be cheese made in the month of May of the milk of ewes. While the mass is being said, those who are accused of the theft shall be in front of the altar, and one or more persons shall be appointed to watch them that they do not contrive any trick. When the communion is reached the priest shall first take the communion of the body of Christ, and then shall bless the bread and cheese, which has been carefully weighed out as above, and shall immediately give it to the men. The priest and the inspectors shall watch them carefully and see that they all swallow it. After they have swallowed it, the corners of the mouth of each shall be pressed to see that none of the bread and cheese has been kept in the mouth. Then the rest of the mass shall be said.

240–250. Documents on the Peace of God, the Truce of God, and the Peace of the Land.

One of the worst features of the feudal age was the prevalence of private warfare. This was due to the warlike character of the feudal institutions, to the jealous insistence of the feudal nobles on their right to fight out their own quarrels without appeal to law, and to the weakness of the king in the feudal state. Continuous private war not only meant violence, oppression, and outrage for the weaker members of society; it also hindered or prevented any advance in civilization for the whole society. The first steps to overcome this condition were taken by the church, which was usually to be found in that age on the side of peace and order. The earliest form was the peace of God, proclaimed by provincial synods. Several of these appeared at the end of the tenth century. These forbade all violence and oppression under ecclesiastical penalty, on the ground that they were contrary to the spirit of Christianity. The peace of God did not attain any lasting success, for the turbulent nobles could not be made to give up fighting entirely. Then the church attempted to mitigate at least these evils, by means of the truce of God. In the truce of God, violence was forbidden on certain days and during certain periods. In origin the truce of God was proclaimed by the clergy of a certain diocese or archdiocese for the people of their district, but later it was sometimes adopted by the emperor or king for the whole land. The truce was to last from vespers or sunset on Wednesday to sunrise on the following Monday of every week, and also for certain whole periods. It will be seen from the documents that these days and periods had a religious significance, which is further evidence that the church regarded the keeping of the peace as a religious rather than a political duty. The means of enforcing the truce were ecclesiastical penalties, penance, anathema, excommunication, etc. The peace of the land has a different origin and character. In the empire of Karl the Great, the right to enforce the keeping of the peace belonged to the emperor, and in theory this had never been given up by the later kings and emperors. It was on this right that the emperors based their authority to proclaim the peace of the land. In appearance the great peaces of Frederick I and Frederick II were imperial edicts, but in fact they depended very largely for their authority upon the acceptance and agreement of the nobles (see nos. [245], [246]). In some cases the peace of the land was proclaimed for a province (see [no. 246]), in others it was for the whole empire. The peace was usually proclaimed for a certain length of time. In some cases the form of the truce of God was preserved in the peace of the land, as in no. 246. The documents on the peace of the land belong in a way under section III, but it was thought better to bring them together here, because they interrupt the general historical movement of the quarrel, and because they form a subject by themselves.

240. Peace of God, Proclaimed in the Synod of Charroux, 989.

Huberti, Gottesfrieden und Landfrieden, I, p. 35.

Following the example of my predecessors, I, Gunbald, archbishop of Bordeaux, called together the bishops of my diocese in a synod at Charroux, ... and we, assembled there in the name of God, made the following decrees:

1. Anathema against those who break into churches. If anyone breaks into or robs a church, he shall be anathema unless he makes satisfaction.
2. Anathema against those who rob the poor. If anyone robs a peasant or any other poor person of a sheep, ox, ass, cow, goat, or pig, he shall be anathema unless he makes satisfaction.
3. Anathema against those who injure clergymen. If anyone attacks, seizes, or beats a priest, deacon, or any other clergyman, who is not bearing arms (shield, sword, coat of mail, or helmet), but is going along peacefully or staying in the house, the sacrilegious person shall be excommunicated and cut off from the church, unless he makes satisfaction, or unless the bishop discovers that the clergyman brought it upon himself by his own fault.

241. Peace of God, Proclaimed by Guy of Anjou, Bishop of Puy, 990.

Huberti, Gottesfrieden, I, pp. 123 f.

In the name of the divine, supreme, and undivided Trinity. Guy of Anjou, by the grace of God bishop [of Puy], greeting and peace to all who desire the mercy of God. Be it known to all the faithful subjects of God, that because of the wickedness that daily increases among the people, we have called together certain bishops [names], and many other bishops, princes, and nobles. And since we know that only the peace-loving shall see the Lord, we urge all men, in the name of the Lord, to be sons of peace.

1. From this hour forth, no man in the bishoprics over which these bishops rule, and in these counties, shall break into a church, ... except that the bishop may enter a church to recover the taxes that are due him from it.[{109}]
2. No man in the counties or bishoprics shall seize a horse, colt, ox, cow, ass, or the burdens which it carries, or a sheep, goat, or pig, or kill any of them, unless he requires it for a lawful expedition.[{110}] On an expedition a man may take what he needs to eat, but shall carry nothing home with him; and no one shall take material for fortifying or besieging a castle except from his own lands or subjects.
3. Clergymen shall not bear arms; no one shall injure monks or any unarmed persons who accompany them; except that the bishop or the archdeacon may use such means as are necessary to compel them to pay the taxes which they owe them.
4. No one shall seize a peasant, man or woman, for the purpose of making him purchase his freedom, unless the peasant has forfeited his freedom. This is not meant to restrict the rights of a lord over the peasants living on his own lands or on lands which he claims.
5. From this hour forth no one shall seize ecclesiastical lands, whether those of a bishop, chapter, or monastery, and no one shall levy any unjust tax or toll from them; unless he holds them as precaria from the bishop or the brothers.
6. No one shall seize or rob merchants.
7. No layman shall exercise any authority in the matter of burials or ecclesiastical offerings; no priest shall take money for baptism, for it is the gift of the Holy Spirit.
8. If anyone breaks the peace and refuses to keep it, he shall be excommunicated and anathematized and cut off from the holy mother church, until he makes satisfaction; if he refuses to make satisfaction, no priest shall say mass or perform divine services for him, no priest shall bury him or permit him to be buried in consecrated ground; no priest shall knowingly give him communion; if any priest knowingly violates this decree he shall be deposed.

{109} The meaning of this exception is not clear in the original. Apparently it is put in to preserve the right of the bishop over the churches and the clergy of his diocese, and to prevent any of the lower clergy from citing the decree in restraint of episcopal control; so also the exception in paragraph 3.

{110} This exception is intended to preserve the rights of the emperor and others on lawful expeditions to take what they need for the journey.

242. Truce of God, made for the Archbishopric of Arles, 1035–41.

M. G. LL. 4to, IV, 1, no. 419.

This is the earliest truce of God extant (except for the doubtful case of the council of Elne, 1027), and it is preserved only in the form of a communication recommending it to the clergy of Italy.

In the name of God, the omnipotent Father, Son, and Holy Spirit. Reginbald, archbishop of Arles, with Benedict, bishop of Avignon, Nithard, bishop of Nice, the venerable abbot Odilo [of Cluny], and all the bishops, abbots, and other clergy of Gaul, to all the archbishops, bishops, and clergy of Italy, grace and peace from God, the omnipotent Father, who is, was, and shall be.

1. For the salvation of your souls, we beseech all you who fear God and believe in him and have been redeemed by his blood, to follow the footsteps of God, and to keep peace one with another, that you may obtain eternal peace and quiet with Him.

2. This is the peace or truce of God which we have received from heaven through the inspiration of God, and we beseech you to accept it and observe it even as we have done; namely, that all Christians, friends and enemies, neighbors and strangers, should keep true and lasting peace one with another from vespers on Wednesday to sunrise on Monday, so that during these four days and five nights, all persons may have peace, and, trusting in this peace, may go about their business without fear of their enemies.

3. All who keep the peace and truce of God shall be absolved of their sins by God, the omnipotent Father, and His Son Jesus Christ, and the Holy Spirit, and by St. Mary with the choir of virgins, and St. Michael with the choir of angels, and St. Peter with all the saints and all the faithful, now and forever.

4. Those who have promised to observe the truce and have wilfully violated it, shall be excommunicated by God the omnipotent Father, and His Son Jesus Christ, and the Holy Spirit, from the communion of all the saints of God, shall be accursed and despised here and in the future world, shall be damned with Dathan and Abiram and with Judas who betrayed his Lord, and shall be overwhelmed in the depths of hell, as was Pharaoh in the midst of the sea, unless they make such satisfaction as is described in the following:

5. If anyone has killed another on the days of the truce of God, he shall be exiled and driven from the land and shall make a pilgrimage to Jerusalem, spending his exile there. If anyone has violated the truce of God in any other way, he shall suffer the penalty prescribed by the secular laws and shall do double the penance prescribed by the canons.

6. We believe it is just that we should suffer both secular and spiritual punishment if we break the promise which we have made to keep the peace. For we believe that this peace was given to us from heaven by God; for before God gave it to his people, there was nothing good done among us. The Lord’s Day was not kept, but all kinds of labor were performed on it.

7. We have vowed and dedicated these four days to God: Thursday, because it is the day of his ascension; Friday, because it is the day of his passion; Saturday, because it is the day in which he was in the tomb; and Sunday, because it is the day of his resurrection; on that day no labor shall be done and no one shall be in fear of his enemy.

8. By the power given to us by God through the apostles, we bless and absolve all who keep the peace and truce of God; we excommunicate, curse, anathematize, and exclude from the holy mother church all who violate it.

9. If anyone shall punish violators of this decree and of the truce of God, he shall not be held guilty of a crime, but shall go and come freely with the blessing of all Christians, as a defender of the cause of God. But if anything has been stolen on other days, and the owner finds it on one of the days of the truce, he shall not be restrained from recovering it, lest thereby an advantage should be given to the thief.

10. In addition, brothers, we request that you observe the day on which the peace and truce was established by us, keeping it in the name of the holy Trinity. Drive all thieves out of your country, and curse and excommunicate them in the name of all the saints.

11. Offer your tithes and the first fruits of your labors to God, and bring offerings from your goods to the churches for the souls of the living and the dead, that God may free you from all evils in this world, and after this life bring you to the kingdom of heaven, through Him who lives and reigns with God the Father and the Holy Spirit, forever and ever. Amen.

243. Truce of God for the Archbishoprics of Besancon and Vienne, ca., 1041.

M. G. LL. 4to. IV, 1, no. 421.

1. We command all to keep the truce from sunset on Wednesday to sunrise on Monday, and from Christmas to the octave of [i.e., week after] Epiphany [Jan. 6], and from Septuagesima Sunday [third Sunday before Lent] to the octave of Easter [the Sunday after Easter].

2. If anyone violates the truce and refuses to make satisfaction, after he has been admonished three times, the bishop shall excommunicate him and shall notify the neighboring bishops of his action by letter. No bishop shall receive the excommunicated person, but shall confirm the sentence of excommunication against him in writing. If any bishop violates this decree he shall be in danger of losing his rank.

3. And since a threefold cord is stronger and harder to break than a single one, we command bishops mutually to aid one another in maintaining this peace, having regard only to God and the salvation of their people, and not to neglect this through love or fear of anyone. If any bishop is negligent in this regard, he shall be in danger of losing his rank.

244. Truce for the Bishopric of Terouanne, 1063.

M. G. LL. 4to. IV, 1, no. 422.

Drogo, bishop of Terouanne, and count Baldwin [of Hainault] have established this peace with the cooperation of the clergy and people of the land.

Dearest brothers in the Lord, these are the conditions which you must observe during the time of the peace which is commonly called the truce of God, and which begins with sunset on Wednesday and lasts until sunrise on Monday.

1. During those four days and five nights no man or woman shall assault, wound, or slay another, or attack, seize, or destroy a castle, burg, or villa, by craft or by violence.
2. If anyone violates this peace and disobeys these commands of ours, he shall be exiled for thirty years as a penance, and before he leaves the bishopric he shall make compensation for the injury which he committed. Otherwise he shall be excommunicated by the Lord God and excluded from all Christian fellowship.
3. All who associate with him in any way, who give him advice or aid, or hold converse with him, unless it be to advise him to do penance and to leave the bishopric, shall be under excommunication until they have made satisfaction.
4. If any violator of the peace shall fall sick and die before he completes his penance, no Christian shall visit him or move his body from the place where it lay, or receive any of his possessions.
5. In addition, brethren, you should observe the peace in regard to lands and animals and all things that can be possessed. If anyone takes from another an animal, a coin, or a garment, during the days of the truce, he shall be excommunicated unless he makes satisfaction. If he desires to make satisfaction for his crime he shall first restore the thing which he stole or its value in money, and shall do penance for seven years within the bishopric. If he should die before he makes satisfaction and completes his penance, his body shall not be buried or removed from the place where it lay, unless his family shall make satisfaction for him to the person whom he injured.
6. During the days of the peace, no one shall make a hostile expedition on horseback, except when summoned by the count; and all who go with the count shall take for their support only as much as is necessary for themselves and their horses.
7. All merchants and other men who pass through your territory from other lands shall have peace from you.
8. You shall also keep this peace every day of the week from the beginning of Advent to the octave of Epiphany and from the beginning of Lent to the octave of Easter, and from the feast of Rogations [the Monday before Ascension Day] to the octave of Pentecost.
9. We command all priests on feast days and Sundays to pray for all who keep the peace, and to curse all who violate it or support its violators.
10. If anyone has been accused of violating the peace and denies the charge, he shall take the communion and undergo the ordeal of hot iron. If he is found guilty, he shall do penance within the bishopric for seven years.

245. Peace of the Land Established by Henry IV, 1103.

M. G. LL. folio, II, p. 60; Doeberl, III, no. 18.

In the year of the incarnation of our Lord 1103, the emperor Henry established this peace at Mainz, and he and the archbishops and bishops signed it with their own signatures. The son of the king and the nobles of the whole kingdom, dukes, margraves, counts, and many others, swore to observe it. Duke Welf, duke Bertholf, and duke Frederick swore to keep the peace from that day to four years from the next Pentecost. They swore to keep peace with churches, clergy, monks, merchants, women, and Jews. This is the form of the oath which they swore:

No one shall attack the house of another or waste it with fire, or seize another for ransom, or strike, wound, or slay another. If anyone does any of these things he shall lose his eyes or his hand, and the one who defends him shall suffer the same penalty. If the violator flees into a castle, the castle shall be besieged for three days by those who have sworn to keep the peace, and if the violator is not given up it shall be destroyed. If the offender flees from justice out of the country, his lord shall take away his fief, if he has one, and his relatives shall take his patrimony. If anyone steals anything worth five solidi or more, he shall lose his eyes or his hand. If anyone steals anything worth less than five solidi, he shall be made to restore the theft, and shall lose his hair and be beaten with rods; if he has committed this smaller theft three times, he shall lose his eyes or his hand. If thou shalt meet thine enemy on the road and canst injure him, do so; but if he escapes to the house or castle of anyone, thou shalt let him remain there unharmed.

246. Peace of the Land for Elsass, 1085–1103.

M. G. LL. 4to, IV, 1, no. 429; Doeberl, III, no. 22 b.

Be it known to all lovers of peace that the people of Elsass with their leaders have mutually sworn to maintain perpetual peace on the following terms:

1. All churches shall have peace always and everywhere. All clergy and women, merchants, hunters, pilgrims, and farmers while they work in the fields and on their way to and from their labor, shall have peace.
2. They have sworn to keep the peace especially on certain days and during certain seasons; namely, from vespers on Wednesday to sunrise on Monday of every week, on the vigils[{111}] and feast days of the saints, on the four times of fast,[{112}] from Advent to the octave of Epiphany, and from Septuagesima Sunday to the octave of Pentecost. In these times no one shall bear arms except those on journey. All public enemies of the royal majesty shall be excluded from the benefits of this peace.
3. If anyone of those who have sworn to maintain this peace shall commit any crime against one of the others, on one of these days, such as robbing, burning, seizing, or committing any other violence on his lands or in his house, or beating him so as to bring blood, he shall suffer capital punishment, if he is a freeman, and shall lose his hand, if he is a serf.
4. If anyone conceals a violator of the peace or aids him to escape, he shall suffer the penalty of the guilty person.
5. If anyone unjustly accuses one of those who have sworn to keep the peace of having violated it, or calls out the forces of the peace against him, through malice or anger, he shall suffer the penalty described above.
6. If anyone who dwells in the province has been accused of violating the peace, he shall clear himself inside of seven days by the testimony of seven of his peers, if he is a freeman or a ministerial; but if he belongs to a lower rank in the city or country, he shall clear himself by the ordeal of cold water.
7. If anyone steals anything of the value of a siclum [a coin of unknown value] or two, he shall lose his hair and his skin; if he commits the theft a second time, or steals anything worth five sicla or more, he shall lose his hand; if he commits a theft a third time, he shall be hanged.
8. Those who are called to attend the expedition of the emperor or one made to maintain the peace, shall go at their own expense for three days. If the expedition takes longer than that, they may levy fodder for their horses and food for themselves, but may take only grass, vegetables, apples, wood, and the implements of the hunt.
9. Draught horses, vineyards, and crops shall always be under the peace, except that a traveler may take enough from the public road to feed his horse.
10. Whatever anyone held by any right of ownership or possession before the peace was decreed, he shall still hold by the same right.
11. If anyone has withdrawn from this sworn agreement to keep the peace, or confesses that he swore to it falsely, and wishes still to remain in the territory, he shall promise with seven sureties that he will keep the peace. If he refuses to promise or if he in any way opposes the peace, he shall either be subject to the penalties of this decree, or shall leave the land.
12. All the authors of the peace should be on their guard to prevent rash or unwise action in enforcing it.
13. The younger men should be persuaded or even forced to swear to keep the peace, for they are especially apt to neglect its provisions.
14. Priests should watch diligently that this useful and holy peace be not disregarded by the members of their congregations, and should admonish their people every Sunday to keep it, as is decreed by pope Leo; and the beginning of the peace of God should be announced at vespers of every Wednesday with the ringing of bells.

{111} The vigil is the day before the saint’s day.

{112} Certain days of fast in the four seasons, observed in the first week of March, the second week of June, the third week of September, and the fourth week of December.

247. Decree of Frederick I Concerning the Keeping of Peace, 1156.

M. G. LL. folio, II, pp. 101 ff.; Doeberl, IV, no. 32.

Frederick, by the grace of God emperor of the Romans, Augustus, to the bishops, dukes, counts, margraves, and all others to whom these presents come, his grace, peace, and love.... We desire that every person shall have his rights, and we command by our royal authority that peace, so long desired and so necessary to the whole land, be kept throughout all parts of our realm. The following sections show how the peace is to be kept and preserved:

1. If anyone kills a man within the territory covered by this peace, he shall suffer capital punishment, unless he can prove by judicial combat that he did it in self-defence. But if it is well known that he did it with malice and not in self-defence, he shall not be allowed to escape death, by appealing to the judicial combat, or by any other means. If a violator of the peace flees from justice, his movable property shall be confiscated by the judge and his heirs shall succeed to his patrimony, if they swear that the violator of the peace shall never with their consent receive anything from it. But if the heirs do not take this oath, they shall lose the inheritance and the count shall give it to the royal treasury and receive it back as a fief.
2. If anyone wounds another within the territory covered by the peace, he shall lose his hand and forfeit his property as above, unless he can prove by judicial combat that he did it in self-defence. The judge shall apply the law strictly against him and his property.
3. If anyone seizes another and beats him without drawing blood or pulls out his hair or beard, he shall pay ten pounds as compensation to the one whom he injured, and twenty pounds to the judge as fine. If anyone reviles another without cause, he shall pay ten pounds for the injury and ten pounds to the judge as a fine. If anyone has to give pledge to a judge for more than twenty pounds, he shall put his property in pawn with the judge, and shall redeem it by paying the amount within four weeks; if he fails to redeem it within that time, his heirs may receive it by paying twenty pounds to the count within six weeks; otherwise the count shall give the property over to the royal treasury, and shall receive it back as a fief from the king, after paying those who have claims against it for damages.
4. If one of the clergy has been accused of violating the peace and has been convicted and proscribed, or if he has sheltered a violator of the peace, and has been convicted of these things before his bishop on sufficient testimony, he shall pay twenty pounds to the count, and make satisfaction to the bishop according to the canons. But if the clergyman refuses to obey, he shall lose his rank and his ecclesiastical benefice, and shall be placed under the ban of the empire.
5. If a judge has followed a violator of the peace with the "hue and cry" to the castle of any lord, the lord of the castle shall turn him over to justice. If the man lives in the castle and is conscious of his guilt and fears to appear before the judge, the lord of the castle shall hand over the man’s movables to the judge under oath, and shall never receive the man again in his castle. If the man does not live in the castle, the lord shall send him out of his castle in security [that is, the lord is not bound to deliver him to the judge, but shall give him a chance to escape], and the judge and the people shall continue to pursue him.
6. If two men contend for the possession of a fief, and one of them presents as a witness the man who invested him with it, the count shall accept his testimony, for the giver of the fief ought to be able to recognize his own gift; and if the man can prove by trustworthy witnesses that he held the fief legally and not by violence, he shall hold it without further controversy. If it is proved that he got it by violence, he shall pay double the fine for violence and shall be deprived of the fief.
7. If three or more men contend for the possession of the same fief and each one offers as a witness the man who he asserts invested him with the fief, the judge who tries the case shall choose two men of good repute who dwell in the same province, and shall make them tell under oath which man has held the fief legally and without violence, and that man shall hold the fief in peace and security without further controversy, unless some other person can claim it justly from him.
8. If a peasant accuses a knight of violating the peace, the knight shall swear that he did it not of his own will, but in self-defence, and shall clear himself with three compurgators.
9. If a knight accuses a peasant of violating the peace, the peasant shall swear that he did it not of his own will, but in self-defence, and he shall choose whether he will clear himself by judgment either of court trial or ordeal, or by the testimony of six witnesses chosen by the judge.
10. If a knight has been accused by another knight of violating the peace, and wishes to put it to the trial by judicial combat, he shall not be allowed to fight his accuser unless he can prove that he and his ancestors were lawful knights by birth.
11. Immediately after the Nativity of the Virgin Mary, each count shall choose seven men of good repute, and shall determine with their advice and according to the character of the season the price at which grain shall be sold in each province; if any person during that year sells a measure of grain at a price higher than the one they have fixed, he shall be considered a violator of the peace, and shall pay thirty pounds for every measure that he sold above the price.
12. If a peasant bears arms, such as a spear or a sword, the judge of the district shall either confiscate the arms or fine him twenty solidi for carrying them.
13. A merchant who is travelling through the country on business may carry a sword bound to his saddle or on his wagon, but he shall use it only to defend himself from thieves, and not against innocent persons.
14. No one shall spread nets, snares, or other traps for any animals except bears, wolves, and boars.
15. No knight shall bear arms to the count’s court, unless requested to do so by the count. Public thieves when convicted shall suffer the established penalty.
16. If anyone has made illegal use of his office of advocate or any other benefice, and has been warned by his lord to desist, but has not done so, he shall be deprived of his advocacy or benefice by regular judicial procedure. If he attempts to recover his advocacy or benefice by violence he shall be regarded as a violator of the peace.
17. If anyone steals anything of the value of five solidi or more, he shall be hanged; if less than five solidi, he shall be beaten with rods and have his hair cut off with scissors.
18. If the ministerials of any lord are at war with one another, the count or the judge of the district shall enforce the law against them.
19. If a traveller wishes to feed his horse, he may take with impunity whatever he can reach by standing on the road and feed it to his horse. Anyone may take grass or green twigs for his use, if he does it without unnecessary destruction.

248. Peace of the Land Declared by Frederick I in Italy, 1158.

Ragewin, Gesta, IV, ch. 10; M. G. LL. folio, II, pp. 112 f.; Doeberl, IV, no. 37 b.

Frederick, by the grace of God emperor of the Romans, Augustus, to all his subjects. We hereby command all our subjects to keep the peace, as it is decreed in this edict. The dukes, margraves, counts, and all vassals and public officials, together with the common people between the ages of 18 and 70, shall take an oath to keep the peace and to aid the officials in enforcing it. These oaths shall be renewed at the end of every five years.

1. If anyone has a grievance against another on any ground, he shall seek justice from his lawful judge.
2. Fines for the breach of peace shall be as follows: for a city, 100 pounds of gold; for a town, 20 pounds of gold; for dukes, margraves, and counts, 50 pounds of gold; for the immediate vassals of the emperor and the greater rear-vassals, 20 pounds of gold; for the other vassals and all other violators of the peace, 6 pounds of gold, and these shall also be forced to make good the injury according to the law.
3. Violence and theft shall be punished according to the law; homicide and bodily injury and all crimes shall also be punished according to law.
4. If judges and magistrates appointed by the emperor or his representative neglect to do justice or to punish violations of the peace, they shall be compelled to make good the damage and to pay the legal fine for breach of peace, and in addition they shall pay special fines to the royal treasury: the higher officials, 10 pounds of gold, and the lower officials, 3 pounds of gold. Those who are too poor to pay these fines shall be punished with blows, and shall be prohibited from dwelling within fifty miles of their former homes during a period of five years.
5. We hereby prohibit all associations and sworn leagues in city or country, whether between city and city, or between person and person, or between city and person. All such associations that now exist are hereby declared void, and every member is liable to a fine of 1 pound of gold.
6. Bishops are commanded to visit all violators of this decree in their dioceses with ecclesiastical censure, until they make satisfaction.
7. Protectors of malefactors and receivers of stolen goods shall be punished with the same fine as the criminals.
8. If anyone refuses to take the oath to keep the peace, or disobeys this decree, his goods shall be confiscated and his house destroyed.
9. We condemn and forbid all illegal exactions, especially against the church, an abuse which is of long standing. All such exactions levied in the future shall be repaid in double.
10. Contracts voluntarily made by minors on oath, which do not affect their own property, shall be valid; but all promises extorted by force or fear shall be void, especially promises not to complain of wrong or injury.
11. If anyone sells his allodial lands, he shall not sell the authority and jurisdiction of the emperor over them; sales made with these provisions are void.

249. The Perpetual Peace of the Land Proclaimed by Maximilian I, 1495. (German.)

Altmann und Bernheim, no. 110.

For various reasons the government had found it impossible to secure the peace of the land. One reason was that there was no effective and satisfactory machinery for punishing offenders, administering justice, and settling disputes. Maximilian not only forbade all private warfare, but also created a supreme court to try all offenders and to make it unnecessary for a man to take the law into his own hands.

We, Maximilian, etc. (1) From the time of the publication of this peace, no one, no matter of what rank or position, shall carry on a feud against another, or make war on him, or rob, seize, attack, or besiege him, or aid anyone else to do so. And no one shall attack, seize, burn, or in any other way damage any castle, city, market town, fortress, village, farmhouse, or group of houses, or in any way aid others to do such things. No one shall receive those who do such things into his house, or protect them, or give them to eat or drink. But if anyone has a ground for complaint against another, he shall summon him before the court. For the command is now given that all such matters must hereafter be tried before the supreme court.

(2) We hereby forbid all feuds and private wars throughout the whole empire.

(3) All, of whatever rank or position, who disobey this command, shall, in addition to other punishments, be put under the imperial ban, and anyone may attack their person or their property without thereby breaking the peace. All their charters and rights shall be revoked, and their fiefs shall be forfeited to their lord. And so long as the guilty one lives, the said lord shall not be bound to restore it to him or to his heirs.

(4) In case this peace is broken and violence is done to anyone, whether elector, prince, prelate, count, lord, knight, city, or anyone else, no matter of what rank or position, secular or ecclesiastical, and the guilty ones are not known, but suspicion rests on anyone, those who were injured may make complaint against the suspected ones, and summon them, and compel them to clear themselves by oath of the crimes of which they are suspected. If any of the suspected ones refuse to clear themselves in this way, or refuse to come at the appointed time, they shall be considered guilty of having broken the peace, and they shall be proceeded against in accordance with the terms of this document. But the one who summons them shall give them a safe-conduct to come and to return to their homes. If it is impossible to deliver the summons to them in person, it shall be posted in a few places which they are known to frequent. If, contrary to this peace, anyone is attacked or robbed, all those who are present and see it, or learn of it in any way, shall take action against the offender with as much earnestness and promptness as if it concerned them alone.

(5) No one shall in any way aid or protect such peace-breakers, or permit them to remain in his territory or lands, but he shall seize them and begin proceedings against them and give aid to anyone who makes complaint against them....

(6) If such peace-breakers have such protection or are so strong that the state must interfere and make a campaign against them, or if anyone who is not a member of the peace breaks the peace or aids those who have broken it, charges shall be made by the injured, or by the presiding judge of the supreme court, to us or to our representatives and to the annual diet, and aid shall be sent at once to those who have been attacked. If through war or anything else it is impossible to hold the diet, we give the presiding judge of the supreme court the authority to call us and the members of the diet together in any place where we, or our representatives, can meet and take whatever measures are necessary. But nevertheless the presiding judge and the whole court shall not cease to prosecute all such peace-breakers with all the legal means possible.

(7) There are many mercenaries in the land who are not in the service of anyone, or who do not long remain in the service of those who hire them, or their masters do not control them as they should, but they go riding about the country seeking to take advantage of people and to rob. We therefore decree that such men shall no longer be tolerated in the empire, and wherever they are found they shall be seized and examined and severely punished for their evil deeds, and all that they have shall be taken from them, and they shall give security for their good conduct by oath and bondsmen.

(8) If any clergyman breaks this peace, the bishop who has jurisdiction over him shall compel him to make good the damage which he has done, and his property shall be taken for this purpose. If the bishops are negligent in this matter, we put them as well as the peace-breakers under the ban, and deprive them of the protection of the empire, and we will in no way defend them or protect them in their evil-doing. But they may clear themselves of suspicion in the same way as laymen.

(9) During this peace no one shall make an agreement or treaty with another which shall in any way conflict with this peace. We hereby annul all the articles of such agreements or treaties which are contrary to this peace, but the rest of such agreements or treaties shall remain in force. This peace is not intended to interfere in any way with existing treaties. Without the consent of those who have been injured we will not free from the ban anyone who has through an offence against the peace been proscribed, unless he clears himself in a legal way.

(10) We command you ... to observe this peace in all points, and to compel all your officials and subjects to observe it, if you wish to avoid the punishments of the imperial law and our heavy disfavor.

(11) We hereby annul all grants, privileges, etc., which have been granted by us or our predecessors, which in any way conflict with this peace.

(12) This peace is not intended to annul any of the laws of the empire or commands which have already been issued, but rather to strengthen them and to command that all men shall hereafter observe them.

250. The Establishment of a Supreme Court to Try Peace-breakers, 1495. (German.)

Datt, Volumen rerum Germanicarum novum, sive de pace imperii publica, p. 876.

We, Maximilian, etc., have, for good and sufficient reasons, established a general peace of the land throughout the Roman empire and Germany, and have ordered it to be observed. But it cannot be enforced without the proper support and protection. Therefore at the advice of the electors, princes, and the general diet held here at Worms, for the common good, and for the honor of us and of the supreme court of the holy Roman empire, we have issued the following laws and regulations in regard to it. We will appoint a presiding judge of this court. He may be either a layman or a clergyman, a count or a nobleman. And we will elect sixteen assistant judges [who shall give the decision]. They shall all be elected at this diet. They shall all be Germans of good character and of good degree of knowledge and experience, and at least half of them shall be trained in the law and the other half shall be noblemen of the rank of knight at least. The decision of the sixteen shall be final. In case of a tie the presiding judge shall have the deciding vote. Nothing shall prevent them from giving a just and legal decision. The presiding judge and the sixteen shall have no other business, but they shall devote themselves wholly to the work of this court. They shall not be absent from the sessions of the court without special permission. The sixteen shall get such permission from the presiding judge, and he from the sixteen. But never more than four of them shall be absent from the court at the same time. Neither the presiding judge nor the sixteen shall leave the city in which the court is in session except for the most weighty reasons. If the presiding judge is for a long time prevented by illness or other weighty reason from holding court, he shall, with the consent of the sixteen, give one of the sixteen, preferably a count or nobleman, the authority to represent him. And even if four or less of the sixteen are absent, the others shall have the power to try cases and render decisions as if they were all present. But in cases in which electors, princes, or those of princely rank are concerned, the presiding judge must preside in person. But if he cannot do so, he may, with the consent of the others, name a person to preside in his stead.... We will, with the advice of the princes and of the diet which shall meet that year, fill all vacancies which may occur in this court. If the presiding judge dies without appointing some one to preside in his stead, the sixteen shall elect some one to take his place, so that the court may not be idle until the next diet assembles. They shall elect a count or nobleman to this office; and he shall fill this office until the next diet meets, at which time we will appoint a new presiding judge.