COMMUNE, MEDIEVAL. Under this head it is proposed to give a short account of the rise and development of towns in central and western continental Europe since the downfall of the Roman Empire. All these, including also the British towns (for which, however, see [Borough]), may be said to have formed one unity, inasmuch as all arose under similar conditions, economic, legal and political, irrespective of local peculiarities. Kindred economic conditions prevailed in all the former provinces of the Western empire, while new law concepts were everywhere introduced by the Germanic invaders. It is largely for the latter reason that it seems advisable to begin with an account of the German towns, the term German to correspond to the limits of the old kingdom of Germany, comprising the present empire, German Austria, German Switzerland, Holland and a large portion of Belgium. In their development the problem, as it were, worked out least tainted by foreign interference, showing at the same time a rich variety in detail; and it may also be said that their constitutional and economic history has been more thoroughly investigated than any other.
Like the others, the German towns should be considered from three points of view, viz. as jurisdictional units, as self-administrative units and as economic units. One of the chief distinguishing features of early as opposed to modern town-life is that each town formed a jurisdictional district distinct from the country around. Another trait, more in accordance with the conditions of to-day, is that local self-government was more fully developed and strongly marked in the towns than without. And, thirdly, each town in economic matters followed a policy as independent as possible of that of any other town or of the country in general. The problem is, how this state of things arose.
From this point of view the German towns may be divided into two main classes: those that gradually resuscitated on the ruins of former Roman cities in the Rhine and Danube countries, and those that were newly founded at a later date in the interior.[1] Foremost in importance among the former stand the episcopal cities. Most of these had never been entirely destroyed during the Germanic invasion. Roman civic institutions perished; but probably parts of the population survived, and small Christian congregations with their bishops in most cases seem to have weathered all storms. Much of the city walls presumably remained standing, and within them German communities soon settled.
In the 10th century it became the policy of the German emperors to hand over to the bishops full jurisdictional and administrative powers within their cities. The bishop henceforward directly or indirectly appointed all officers for the town’s government. The chief of these was usually the advocatus or Vogt, some neighbouring noble who served as the proctor of the church in all secular affairs. It was his business to preside three times a year over the chief law-court, the so-called echte or ungebotene Ding, under the cognizance of which fell all cases relating to real property, personal freedom, bloodshed and robbery. For the rest of the legal business and as president of the ordinary court he appointed a Schultheiss, centenarius or causidicus. Other officers were the Burggraf[2] or praefectus for military matters, including the preservation of the town’s defences, walls, moat, bridges and streets, to whom also appertained some jurisdiction over the craft-gilds in matters relating to their crafts; further the customs-officer or teleonarius and the mint-master or monetae magister. It was not, however, the fact of their being placed under the bishop that constituted these towns as separate jurisdictional units. The chief feature rather is the existence within their walls of a special law, distinct in important points from that of the country at large. The towns enjoyed a special peace, as it was called, i.e. breaches of the peace were more severely punished if committed in a town than elsewhere. Besides, the inhabitants might be sued before the town court only, and to fugitives from the country who had taken refuge in the town belonged a similar privilege. This special legal status probably arose from the towns being considered in the first place as the king’s fortresses[3] or burgs (see [Borough]), and, therefore, as participating in the special peace enjoyed by the king’s palace. Hence the terms “burgh,” “borough” in English, baurgs in Gothic, the earliest Germanic designations for a town; “burgher,” “burgess” for its inhabitants. What struck the townless early Germans most about the Roman towns was their mighty walls. Hence they applied to all fortified habitations the term in use for their own primitive fortifications; the walls remained with them the main feature distinguishing a town from a village; and the fact of the town being a fortified place, likewise necessitated the special provisions mentioned for maintaining the peace.
The new towns in the interior of Germany were founded on land belonging to the founder, some ecclesiastical or lay lord, and frequently adjoining the cathedral close of one of the new sees or the lord’s castle, and they were laid out according to a regular plan. The most important feature was the market-square, often surrounded by arcades with stalls for the sale of the principal commodities, and with a number of straight streets leading thence to the city gates.[4] As for the fortifications, some time naturally passed before they were completed. Furthermore, the governmental machinery would be less complex than in the older towns. The legal peculiarities distinguishing town and country, on the other hand, may be said to have been conferred on the new towns in a more clearly defined form from the beginning.
An important difference lay in the mode of settlement. There is evidence that in the quondam Roman towns the German newcomers settled much as in a village, i.e. each full member of the community had a certain portion of arable land allotted to him and a share in the common. Their pursuits would at first be mainly agricultural. The new towns, on the other hand, general economic conditions having meanwhile begun to undergo a marked change, were founded with the intention of establishing centres of trade. Periodical markets, weekly or annual, had preceded them, which already enjoyed the special protection of the king’s ban, acts of violence against traders visiting them or on their way towards them being subject to special punishment. The new towns may be regarded as markets made permanent. The settlers invited were merchants (mercatores personati) and handicraftsmen. The land now allotted to each member of the community was just large enough for a house and yard, stabling and perhaps a small garden (50 by 100 ft. at Freiburg, 60 by 100 ft. at Bern). These building plots were given as free property or, more frequently, at a merely nominal rent (Wurtzins) with the right of free disposal, the only obligation being that of building a house. All that might be required besides would be a common for the pasture of the burgesses’ cattle.
The example thus set was readily followed in the older towns. The necessary land was placed at the disposal of new settlers, either by the members of the older agricultural community, or by the various churches. The immigrants were of widely differing status, many being serfs who came either with or without their lords’ permission. The necessity of putting a stop to belated prosecutions on this account in the town court led to the acceptance of the rule that nobody who had lived in a town undisturbed for the term of a year and a day could any longer be claimed by a lord as his serf. But even those who had migrated into a town with their lords’ consent could not very well for long continue in serfdom. When, on the other hand, certain bishops attempted to treat all new-comers to their city as serfs, the emperor Henry V. in charters for Spires and Worms proclaimed that in these towns all serf-like conditions should cease. This ruling found expression in the famous saying: Stadtluft macht frei, “town-air renders free.” As may be imagined, this led to a rapid increase in population, mainly during the 11th to 13th centuries. There would be no difficulty for the immigrants to find a dwelling, or to make a living, since most of them would be versed in one or other of the crafts in practice among villagers.
The most important further step in the history of the towns was the establishment of an organ of self-government, the town-council (Rat, consilium, its members, Ratmänner, consules, less frequently consiliarii), with one, two or more burgomasters (Bürgermeister, magistri civium, proconsules) at its head. (It was only after the Renaissance that the town-council came to be styled senate, and the burgomasters in Latin documents, consules.) As units of local government the towns must be considered as originally placed on the same legal basis as the villages, viz. as having the right of taking care of all common interests below the cognizance of the public courts or of those of their lord.[5] In the towns, however, this right was strengthened at an early date by the jus negotiale. At least as early as the beginning of the 11th century, but probably long before that date, mercantile communities claimed the right, confirmed by the emperors, of settling mercantile disputes according to a law of their own, to the horror of certain conservative-minded clerics.[6] Furthermore, in the rapidly developing towns, opportunities for the exercise of self-administrative functions constantly increased. The new self-governing body soon began to legislate in matters of local government, imposing fines for the breach of its by-laws. Thus it assumed a jurisdiction, partly concurrent with that of the lord, which it further extended to breaches of the peace. And, finally, it raised funds by means of an excise-duty, Ungeld (cf. the English malatolta) or Accise, Zeise. In the older and larger towns it soon went beyond what the bishops thought proper to tolerate; conflicts ensued; and in the 13th century several bishops obtained decrees in the imperial court, either to suppress the Rat altogether, or to make it subject to their nomination, and more particularly to abolish the Ungeld, as detrimental to episcopal finances. In the long run, however, these attempts proved of little avail.
Meanwhile the tendency towards self-government spread even to the lower ranks of town society, resulting in the establishment of craft-gilds. From a very early period there is reason to believe merchants among themselves formed gilds for social and religious purposes, and for the furtherance of their economic interests. These gilds would, where they existed, no doubt also influence the management of town affairs; but nowhere has the Rat, as used to be thought, developed out of a gild, nor has the latter anywhere in Germany played a part at all similar in importance to that of the English gild merchant, the only exception being for a time the Richerzeche, or Gild of the Rich of Cologne, from early times by far the largest, the richest, and the most important trading centre among German cities, and therefore provided with an administration more complex, and in some respects more primitive, than any other. On the other hand, the most important commodities offered for sale in the market had been subject to official examination already in Carolingian times. Bakers’, butchers’, shoemakers’ stalls were grouped together in the market-place to facilitate control, and with the same object in view a master was appointed for each craft as its responsible representative. By and by these crafts or “offices” claimed the right of electing their master and of assisting him in examining the goods, and even of framing by-laws regulating the quality of the wares and the process of their manufacture. The bishops at first resented these attempts at self-management, as they had done in the case of the town council, and imperial legislation in their interests was obtained. But each craft at the same time formed a society for social, beneficial and religious purposes, and, as these were entirely in accordance with the wishes of the clerical authorities, the other powers could not in the long run be withheld, including that of forcing all followers of any craft to join the gild (Zunftzwang). Thus the official inspection of markets, community of interests on the part of the craftsmen, and co-operation for social and religious ends, worked together in the formation of craft-gilds. It is not suggested that in each individual town the rise of the gilds was preceded by an organization of crafts on the part of the lord and his officers; but it is maintained that as a general thing voluntary organization could hardly have proceeded on such orderly lines as on the whole it did, unless the framework had in the first instance been laid down by the authorities: much as in modern times the working together in factories has practically been an indispensable preliminary to the formation of trade unions. Much less would the principle of forced entrance have found such ready acceptance both on the part of the authorities and on that of the men, unless it had previously been in full practice and recognition under the system of official market-control. The different names for the societies, viz. fraternitas, Brüderschaft, officium, Amt, condictum, Zunft, unio, Innung, do not signify different kinds of societies, but only different aspects of the same thing. The word Gilde alone forms an exception, inasmuch as, generally speaking, it was used by merchant gilds only.[7]
From an early date the towns, more particularly the older episcopal cities, took a part in imperial politics. Legally the bishops were in their cities mere representatives of the imperial government. This fact found formal expression mainly in two ways. The Vogt, although appointed by the bishop, received the “ban,” i.e. the power of having justice executed, which he passed on to the lesser officers, from the king or emperor direct. Secondly, whenever the emperor held a curia generalis (or general assembly, or diet) in one of the episcopal cities, and for a week before and after, all jurisdictional and administrative power reverted to him and his immediate officers. The citizens on their part clung to this connexion and made use of it whenever their independence was threatened by their bishops, who strongly inclined to consider themselves lords of their cathedral cities, much as if these had been built on church-lands. As early as 1073, therefore, we find the citizens of Worms successfully rising against their bishop in order to provide the emperor Henry IV. with a refuge against the rebellious princes. Those of Cologne made a similar attempt in 1074. But a second class of imperial cities (Reichsstädte), much more numerous than the former, consisted of those founded on demesne-land belonging either to the Empire or to one of the families who rose to imperial rank. This class was largely reinforced, when after the extinction of the royal house of Hohenstaufen in the 13th century, a great number of towns founded by them on their demesne successfully claimed immediate subjection to the crown. About this time, during the interregnum, a federation of more than a hundred towns was formed, beginning on the Rhine, but spreading as far as Bremen in the north, Zürich in the south, and Regensburg in the east, with the object of helping to preserve the peace. After the death of King William in 1256, they resolved to recognize no king unless unanimously elected. This league was joined by a powerful group of princes and nobles and found recognition by the prince-electors of the Empire; but for want of leadership it did not stand the test, when Richard of Cornwall and Alphonso of Castile were elected rival kings in 1257.[8] In the following centuries the imperial cities in south Germany, where most of them were situated, repeatedly formed leagues to protect their interests against the power of the princes and the nobles, and destructive wars were waged; but no great political issue found solution, the relative position of the parties after each war remaining much what it had been before. On the part of the towns this was mainly due to lack of leadership and of unity of purpose. At the time of the Reformation the imperial towns, like most of the others, stood forward as champions of the new cause and did valuable service in upholding and defending it. After that, however, their political part was played out, mainly because they proved unable to keep up with modern conditions of warfare. It should be stated that seven among the episcopal cities, viz. Cologne, Mainz, Worms, Spires, Strassburg, Basel and Regensburg, claimed a privileged position as “Free Cities,” but neither is the ground for this claim clearly established, nor its nature well defined. The general obligations of the imperial cities towards the Empire were the payment of an annual fixed tax and the furnishing of a number of armed men for imperial wars, and from these the above-named towns claimed some measure of exemption. Some of the imperial cities lost their independence at an early date, as unredeemed pledges to some prince who had advanced money to the emperor. Others seceded as members of the Swiss Confederation. But a considerable number survived until the reorganization of the Empire in 1803. At the peace in 1815, however, only four were spared, namely, Frankfort, Bremen, Hamburg and Lübeck, these being practically the only ones still in a sufficiently flourishing and economically independent position to warrant such preferential treatment. But finally Frankfort, having chosen the wrong side in the war of 1866, was annexed by Prussia, and only the three seaboard towns remain as full members of the new confederate Empire under the style of Freie und Hansestädte. But until modern times most of the larger Landstädte or mesne-towns for all intents and purposes were as independent under their lords as the imperial cities were under the emperor. They even followed a foreign policy of their own, concluded treaties with foreign powers or made war upon them. Nearly all the Hanseatic towns belonged to this category. With others like Bremen, Hamburg and Magdeburg, it was long in the balance which class they belonged to. All towns of any importance, however, were for a considerable time far ahead of the principalities in administration. It was largely this fact that gave them power. When, therefore, from about the 15th century the princely territories came to be better organized, much of the raison d’être for the exceptional position held by the towns disappeared. The towns from an early date made it their policy to suppress the exercise of all handicrafts in the open country. On the other hand, they sought an increase of power by extending rights of citizenship to numerous individual inhabitants of the neighbouring villages (Pfalbürger, a term not satisfactorily explained). By this and other means, e.g. the purchase of estates by citizens, many towns gradually acquired a considerable territory. These tendencies both princes and lesser nobles naturally tried to thwart, and the mediate towns or Landstädte were finally brought to stricter subjection, at least in the greater principalities such as Austria and Brandenburg. Besides, the less favourably situated towns suffered through the concentration of trade in the hands of their more fortunate sisters. But the economic decay and consequent loss of political influence among both imperial and territorial towns must be chiefly ascribed to inner causes.