THE BEGINNINGS OF TOWN LIFE IN THEMIDDLE AGES.

I.THE economist who seeks to lean something of the

social history of the past is not seldom in an embarrassingsituation. His first impulse, of course, is to turn to theprofessed historian for the information he craves; and,more particularly, when the matter is of a constitutionalor legal character, to the historian of law. But, when hedoes so, he is only too likely to find one of two things.Either the information he receives, while it has a gram-matical consistency, yet leaves him quite in the dark asto the daily life of the people concerned,—he asks for apicture and receives a formula; or, instead of one answerto his inquiry, he is given several, all from eminentauthorities and absolutely irreconcilable. Then, probably,he gives up the quest, and falls back on some neat little apriori theory of his own as to what the course of economicevolution must have been. If he does not, but makes uphis mind to go to the original sources for himself, he willbe foitunate if he escapes an occasional sly thrust fromhistorian and lawyer for venturing beyond his last. Hislot, therefore, is not altogether a happy one.

Reflections such as these will have occurred to econo-mists who have looked of late into the subject of mcdi-Leval town history. That the towns of the Middle Ageswere the homes, and the only homes, of trade and manu-factures; that their rise meant the appearance of forcesother than, and in large measure hostile to, those of agra-rian feudalism; that their prosperity contributed more thanany other cause to the creation of the modern State and

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the modern conception of citizdllship,— all these are causesenough why their history should be of interest. Whatinedfteval town life was, when fully developed, say in thefifteenth century, is very evident. But how did it begin?Whence did the towns acquire their characteristic con-stitution, their characteristic population? And be itremarked that these two latter questions cannot, saveprovisionally, be kept apart. Constitutions - workingconstitutions, that is, not paper ones - imply correspondingsocial conditions. Social conditions vitally affect constitu-tions. The problem is one which includes constitutionand conditions; as Hflllmann long ago realized when hetook " Stádtewesen" for his theme.*

Yet it needs but a glance into contemporary historicalliterature to discover that there is at present -hardly anysubject that occasions more animated controversy or onwhich competent scholars are still so far from agreement.The purpose of this article is to set forth, as impartiallyas may be, the present state of the discussion. Some ob-servations ill perhaps suggest themselves in the courseof the exposition; but it is neither my intention to addone more to the many theories that are before the public,nor to judge them all from the standpoint of any one ofthe rival systems.

The reader may be spared' any long account of the older"literature" of the subject; partly because I can claimbut an imperfect acquaintance with it, partly because anadmirably clear and fascinating statement has been re-cently given by M. Pircnne, in the first of the series ofarticles from his pen to which I propose to call attention.It may be said, in brief, that among German scholars, andwith reference especially to German towns,— though with

Karl Dietrich Hililmana, Stddtewesen des Milldalters, 4 vole., Bonn,1826-SO. The example has in these later days been followed by RudolphSolim (Die Entslehrzng des deutsclien Siad/eweseas, Leipzig, isDo), who observes"die wirtsehaftiohe Eiitwiekolung steht mit der reohtliohen in untreanbarerWeebsolbeziehung."

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a side glance now and again at other countries,—fourviews as to the origin of the municipal constitution havelong struggled for the mastery. There were those whoassigned primary importance to the free element in theearly urban population. Thus Arnold, in 1854, ex-plained the constitutional history of the "free cities" ofthe Rhine by supposing the gradual amalgamation of theunfree households of the Rhenish bishops, over whichthey exercised a domanial (or, nianorial) jurisdiction, witha free town population, subject only to the jurisdictionof the public courts. These latter fell, he maintained,under the control of the bishops in consequence of thetransfer to them by imperial grants of the right of holdingthe public courts,— the so-called "Ottonian privileges."The result, however, of this association of dissimilar ele-ments under one headship was that the free ultimatelypredominated over the servile; and, by the time the dif-ferent classes had grown into a united burgess-body, themanorial jurisdiction had altogether given way to thatof the public courts. Others, on the contrary, have seeneverywhere a spontaneous development out of servile con-ditions. Thus Nitzsch, in 1859,t pictured town life asbeginning in great seigneurial establishments, with hun-dreds of dependants (ministeriales), serving their lords invarious capacities, who gradually threw aside the restric-tions by which they were encumbered, and so convertedmanorial institutions into municipal ones. There were, inthe third place, those, though few in number, who followedvon Maurer from 1854 onward,t in regarding the medi-

Wilhelm Arnold, VerfassvngsgeseAiehte der deutsd,en Frdstüdtc, 2 vols.,Gotha.

Karl Wilhelm Nit,soh, MinisterialUät end .Thirgertlmum S 11. end 1.2.Jahrhnnderi, Leipzig.

Georg von Manrer's EinlcUung nr Gescidd,te tier Mark-, Hof-, Dorf-, midStadtnerfassung, Erlangen, states in brief the conclusions for towil historywhich he supported later by an overwhelming mass of citations in his Gesdcichtetier Stadfeverfassung in Dentsdd and, 4 vole., Erlangen, 1869-71.

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zoval town as but an outgrowth of an original free mark.community. And, finally, there were some who laid allemphasis on free association as the real source of the latermunicipal system. With the shape first given to this ideaby Wilda in 1831,* who traced the civic constitution tothe formation of a "gild" co nomine, none remained alto-gether content. But the wider formulation of Gierke,twho insisted only on some sort of conscious combinationthe one with the other of individuals and groups pre-viously unconnected save by propinquity, commendeditself to not a few; especially as Gierke thought he couldstill leave room for the action of most of the other forcesdwelt upon by previous writers, and so was able to givehis version of town history an all-inclusive air which manyfound attractive. Thus Wilhelm Roseher, who, thoughnot an original investigator of things medieval, had avery wide acquaintance with the modern literature of thesubject, wrote in 1881: -

"Primitive field- and mark-communities, the seigneurialorganization (Hofverfassung) of the dependants of greatecclesiastical and secular lords, the constitution of thepublic courts with their Schoffen,— all these were roots ofthe town system. From the first two came its communalside: the third gave the town its public character. Thenew and creative force, however, which produced theamalgamation of all these elements, was the principleof free union (Rinung) for permitted objects. . . . Wlier-ever, within the same walls, a royal or episcopal subject-community (ilof-gemeinde) dwelt side by side with theremnant of a free commnuijilw ajid the most importantmembers of both werruea 1h'tcie body by the addi-tional bond of a free union, there first could a burgess-body come into existence, such as was the result of thecreation of a common law for all the town's inhabitants."

W. E. Wilda, Des Qildenwesen im Mitedalter, Hallo.tOtto Gierko, Das deutsche Genossenschajlsrecht, 3 volt, Berlin, 1568-81.

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And, in a note, after mentioning von Maurer, Nitzsch,and Arnold, Reacher added, "The merit of having unitedthese various one-sided theories in an accurate view of thewhole belongs to Gierke." *

Roscher was apparently unaware that the school ofWilda and Gierke had just found an ally in an unex-pected quarter, in the person of Nitzsch himself. In acouple of papers read before the Berlin Academy in 1879and 1880,f just before his death, Nitzsch had picturedevery Low-German town as dominated, during the periodof struggle for municipal self-government, by a great mer-chant gild, containing, at first, all who had any occasionto buy or sell. Nitzseh died before he had explained therelation which existed in his own mind between his earlierand his later writings. He probably did not suppose him-self to be surrendering any part of his former teaching:the comparatively new towns of the north might wellhave had a different history from that of the older citieson the Rhine. But his example,— commended as it wasby his great reputation, especially among economists, whofound something peculiarly congenial in his method ofapproaching history,— very naturally led to the discoveryof gilds in all directions, and a fresh readiness to connectthem with the beginnings of municipal government.

Meanwhile a certain affability has held back Frenchhistorical scholars - as it holds back French scholars inother fields of study - from that sharp formulation of an-titheses that pleases their German confreres; and partlyfor this reason, partly because of the smaller number ofhistorical specialists, there has been nothing like the samediversity of opinion among them as to the early history ofFrench towns. Putting on one side the theory of the sur-vival of Roman municipal institutions, which -although

NationalOkonomik des ffandds , g nd Gewa4fleisses, Stuttgart,— in 6th edi-tion, 3, pp. 12 and 14

tithe die niederdeuLscJun Qenossensdiaflen des 12. and 13. Jahrhi.nden, andtither niederdc'4sche Ka,4fgilden.

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it had a great attraction for the earlier writers and haseven lately been maintained by so considerable a scholaras Glasson * - seems to have scarcely affected the viewtaken of the Middle Ages proper,French historical specu-lation has continued to follow the direction given it somesixty years ago by Thierry. This, at any rate, is the caseso far as the communes of Northern-France are concerned;and these have, from the first, drawn to themselves thespecial attention of French investigators. Thierry's viewmay be described as a French counterpart to that ofWilda; and it has undergone modifications not unlikethose which Wilda's teaching has receivedat the hands ofGierke. The word "gild" has dropped into the back-ground. it is realized, also, that the communal movementwas hardly so "democratic" as was once supposed, andthat it made up by no means the whole of the town his-tory even of Northern France. Nevertheless, a view sub-stantially similar to that of Thierry has been maintainedquite lately by Giry, the author of two most importantmonographs (on the history of Saint-Omer and Saint-Quentin t) and the inspirer of many more, and by Lu-chaire, the most eminent of the historians of the Capetiancenturies. The extreme caution of M. Luchaire in cer-tain directions, as exemplified in his Communes Françai see(1890), adds but the more weight to his judgment. Thequestion of "origins" he regards as "insoluble." t Thereis a complete hiatus in our documents, apparently neverto be filled up, between the seventh century, and theeleventh. Nevertheless, he has no doubt that "the crea-tive clement of the commune," that which produced themedival town, with its distinctive government and sep-arate jurisdiction, out of " collections of traders and arti-

'SeohereouM. Flach's chapter on lies TMarie.s (74n&&es in his Oriqinesde l'itwienne France, ii. 215 and 216, note 3.

I Histoire de ha VitAe etc Saint-O,ner. hiS, 1877, and Étude stir in Originesde la Commune de Saint-Quentin, Saint-Quentin, 1887.

Page 11.

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sans, an of more or less servile condition," • was "theassociation of inhabitants formed under the guarantee ofa mutual oath," t - an association which succeeded in ob-taining from .the lord of the town, by violence or negotia-tion, the franchises it was formed to secure. He goesfurther: he recognizes a "community "- a sense of jointinterests and the practice of acting together- "beforethe commune." How this was organized, what were itsrelations to serfdom, whether the common lands of suchcommunities were owned, or merely used, in common,—again he will not venture to say. Here reigns an obscur-ity "which will doubtless remain impenetrable." Never-theless, he believes that among the members of this bodyslowly becoming aware of its community of intereststhere often grew up partial societies, mercantile and relig-ious gilds and fraternities; and that these "partial asso-ciations became the germ and the prototype of the generalfederation" § which constituted the commune. In some,indeed, and these important cases, "the merchant associa-tion" was itself "directly transformed into the miinici-pal"; and the commune and the gild merchant were insuch places for some time identical.II

H.There were thus, in Germany and in France, theories

enough and to spare. But the period of the seventies andthe eighties was, in both countries, a period of townmonographs rather than of general views. The newperiod of animated discussion in the midst of which wenow live was opened by a series of remarkable articlesand pamphlets by Georg von Below (first of Königsberg

*Page 29. tPage2fl. tPage38.§ Page 26. 11 Page 32.

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and afterwards of Münster), beginning in 1881.* Withextraordinary clearness, vehemence, and occasional scur-rility, von Below urged that the only satisfactory ex-planation of early German town history was, after all, tobe found in the theory of von Maurer,— a theory, as heremarks, now "almost under the ban." t He makes,indeed, a change of more significance than he realizes inhis method of formulating it. Without indicating anydissatisfaction with "the mark-theory" itself, von Belowprefers to start with the village as we actually find it inthe Middle Ages proper, and to leave untouched thequestion of the historical relation of the village to itslord.t Instead of a .5farlcgenossenscltaft he prefers tospeak of a Baerschaft, a peasant group, or, more com-monly, of a Landgemeinde, a term untranslatable, butwhich we may render by "rural township," or "ruralcommune" in the modem French sense of the word"commune." The German town-community is, he de-clares, the daughter of a country commune; the townmagistracy and municipal organization but developments,with amplified functions, from the old village magistracyand organization. He grants that the town was morethan the village, and he allows that it was the growth oftrade which brought about the change; but lie maintainsthat there was never any breach in the continuity of insti-tutions, and that the later town government was a naturalgrowth from germs present from the first in the ruraltownship: it owed nothing fundamental to the publiccourts of the hundred, or to seigneurial establishments,or to mercantile gilds.

In Germany the result of von Below's appearance inthe field was amusingly unexpected, and very different

0f these the mast import%nt are two articles Zn,- Entstrltung do,- deutschenEtadtuerfassung in the Bistorischo Zoitschrft, lviii., lix.; Die Entstdzung do,--deutsehen Btu4tgemeinde, Düsseldorf1 1889; and Der Ursprung de- dentschenStadtverfassung, Dusseldorf, 1892.

Stadtgerneinde, 1.1 Bid., 3, note 2; Stadiverfassung, 23, note 1..

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from what von Below himself anticipated. In 1890 cameforth a little pamphlet of a hundred pages, bearing thehonored name of Rudolph Sohm,* which changed thewhole situation. He began by attributing to von Belowthe merit of raising anew fundamental questions. Hewent further, and credited him with having absolutelydisproved both the seigneurial view of Nitzsch and theOttonian-privileges view of Arnold. But on the groundthus cleared he refused to build in the manner of vonMaurer. With von Below's positive views, he asserts, it isimpossible to agree. On the contrary, he turns into analtogether different path, suggested by two contemporaryhistorical essays, to which he now called particular atten-tion. Schriider's papers on the Weichhild - a methvalterm for a town and its constitution, which Schroder ex-plained as originally meaning "town emblem," and identi-fied with the market-cross - had "proved the identity ofmarket-law and town-law, of market-court and town-court." t Another scholar, Schulte, with the aid of ahitherto unprinted charter of Radolfzell of the year1100, had demonstrated the truth of this proposition in par-ticular cases and had further made it clear that "town-lawgrew out of market-Jaw." t Other factors may have con-tributed to the result; but the decisive factor was themarket with its law. "Within the merchant class differ-encesof birth disappeared; and out of this market-com-munity, which knew only of differences of occupation andwealth, arose the town administration, the original modelof our modern administration." But now whatwas the market-law? It was originally, and in the main,a code of heavier penalties for breach of the peace thanwere inflicted elsewhere. In the language of the period,it was a special "peace." And this special peace Sohmgoes on to explain (and this is his own contribution) as

Die Enistehung des deutsche,, Stdtewesens. .Eine Festsdrjjl. Leipsig.Page 14. t Page 15.

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constructively the peace of the king's house or fortifiedresidence, his Burg. Such a peace was, we know, main-tained in the king's house in Frankish times. And inafter ages, Sohm maintains, whether a place was fortifiedor not, the grant of Burgreeht or Weichbildrec/tt meantthe recognition of it as a place specially subject to theking, under his special protection, the contempt of whichinvolved peculiarly heavy penalties. Such an exceptionalposition necessarily involved the creation of a specialtribunal; and hence the market-court.

The effect of Sohm's book has, however, not been somuch to secure acceptance for his particular explanationof the genesis of market-law, as to commend, with all theweight of his authority, the general view that it was outof market-privileges, in some way or other, that towngovernment proceeded. In spite of the forcible argumentsof von Below,* the market-theory has since been verywidely welcomed, especially by jurists.

Sohni had spoken in general terms of Kanfmannseltaft(body of merchants) and Jilarktgerneinde (market-corn-munity). It wanted but little to suggest to subsequentwriters a connection between this body and the merchant-gild which had played so considerable a part in earlierdiscussions. But just at this time appeared the treatisesof Hegel and Gross, which were at once pretty generallyacknowledged as decisive on one of the most importantof the old issues. Gross's Gild .)Were/iantt is limited inits scope to England. But England had been often re-garded as the peculiar home of gilds. It had furnishedsome of the most frequently quoted evidence for a directinfluence of the gild on the civic constitution. Accord-ingly, the apparent demonstration that the gild and theburgess-body were always distinct, and that the gild

• Ursprnng der deutachen &adtverfassung, passirn, and especially p.11 et seq.Charles Gross, The Gild Merchant: A Contribution to British Municipal

History, 2 vols., Oxford, 1890.

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merchant had no influence on the origin of the municipalconstitution in England, could not fail to react on Ger-man opinion as to German towns. This was all the morelikely to be the case, since his results agreed in the mainwith those simultaneously reached by Hegel,* after aninvestigation covering the whole range of the Teutonicand Scandinavian world. Hegel took occasion, it may benoticed, to oppose the most complete denial to Nitzsch'stheory as to the evolution of the craft gilds out of an origi-nal all-embracing merchant gild.

Into the minutia of the discussion which was imme-diately excited by these writings of von Below and Sohm,of Hegel and Gross, it would be wearisome to enter. In-numerable have been the essays that have appeareddealing with some particular point, such as Weic/ibild,or burgage-tenure, or the regulation of weights and meas-ures, or with the history of particular towns or groups oftow.ns.t What will interest us more are the attemptswhich, after three or four years of such discussion, certainscholars are now making to take a survey of the wholefield, and once more to set about a work of constructionwhich shall assign to each element its proper place in thecompleted structure. Four such attempts stand out fromthe rest for the distinction of their authors or the thor-oughness of the performance; and this article will bemainly occupied with a statement and comparison of theirconclusions. They are, arranged in order of time: (1) thesection on La Commune Urbaine in M. Jacques Flach'sOrigines de l'Ancienne Prance; t () three articles Zur.lilntstehung der deutaciten Stadtverfassung, by Dr. Willi

"Karl Hegel, Stddte und (Jilden des gerinanisr.hen VlUker iv, Milletalter,2 volt, Leipzig, 1891.

I Long lists will be found inseveral aces; e.g., at the beginning ofVarges' articles, to be shortly referred to, U in Richard Sclsroder's Lehr?nSder deutsche,, Rcchtsgeschichte (2d ed.), (100.

Vol. ii., 1893. The subject occ,spi 213 pages, or, with the chapters on tosauve2é which precede, 254 pages.

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Varges in Conrad's Jahrlücher für Nationalokonomie; *(3) three articles on L' Origine des Constitutions Urbainesan Moyen Age, by M. H. Pirenne in the Revue ffisto-ripe; f and (4) Untersuchungen 145cr den Ursprung derdeutsclzen Stadtverfassung, by Dr. F. ICeutgen4 Of these,M. Flach concerns himself only with France; but he rec-ognizes that "the points of comparison and contact,especially in the east of France, between the developmentof municipal government in France and Germany are sonumerous" that a French scholar cannot afford to dis-regard what has been done elsewhere. And, as his pre-liminary survey of "general theories" shows, he writeswith a constant recollection of German doctrines. Dr.Varges and Dr. Keutgen limit their range to Germany;and the latter declares that this limitation is one of prin-ciple as well as of convenience, on account of the essentialdifference between the course of affairs in German andRomance lands. M. Pirenne alone seeks to include bothFrance and Germany in one view, and justifies this pro-cedure by considerations capable of even wider applica-tion than he himself makes of them41

In thu parts for August 31,1893; December 22,1894; and April 30, 1895,—in all, 156 pares.

tIn the parts for September, 1803, and January and March, 1895,—in all,109 pages.

Leipzig, 1805; 236 pages."Man mag einzolne Ersoheinongen '.Un, Vorgleich heranziehon, aber

0mb so voilkommeno Qleiohhojt such dutch dna frflnkische Eeoht aol ejuomToile dos deutselien und den fniuüsisel,o.i Gebiets hergestelit woMen min rung,so witre as doch verfeldt, für die Vorfass.mgsgeschiohto diesen Bezirk als Em-

heit zu ,,obmon. . . . In ailgemeinen ist damn festzuhalten, data die Ausgangs.punkto für the Verfassung auf dout.schem and ad romanisehem Goblets wesent-lich versohiedono varen. Und lrotz idler ParaUelon the sich ziehen liessen, hatsich dieso Verschiedenl.eit spliter bowahrt." (p. 7.)

II "Lo probleme a 4té génóralcment envisngd & an point do vi'e trop troite-mont nationaL Si, oornmo la f4odalit ou le socialianto contemporain, lea villesdu moyen Rgo soot avant tout Ic produit do certaina causes &onomiques etsociales, II faut, Ce sumble, Ion dtndier sans tenir oontpto den frontiêres poll-tiques. De mO',e qu'on no distingue pan uno l6odalit4 franqaise et one leo-dalitd allomando, de memo aussi il n'y a pat lieu d'dtablir line ligno do de-

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'H-M Flach divides French towns into two classes: the

"ancient" or "old" cities, or, more strictly, those aris-ing from "a regeneration and remoulding" of ancient(Roman) cities; and the "new" towns, which owed theirbirth entirely to the Middle Ages.* And, first, as to theformer of these two classes. No mistake can be greater,he thinks, than to suppose that the Gallo-Roman citiespassed through the mediaeval centuries undergoing noth-ing but a slow and gradual modification of their peculiarinstitutions. All of them were well-nigh ruined by thebarbarian invasions and the wars that followed: and, toretain any fragment of their old civic life, their inhabi-tants were compelled to gather more closely together, andto fortify, with the debris of old walls lying round onevery side, a small portion of what had once been the cityarea. This contracted and reconstructed fragment of theold Roman city was the castrwm or civitas (cite) of ourearly medieval documents. Within it, upon risingground, or with its back upon the city wall, commonlyrose a citadel, a castellum, an, maxima turns, château,or castrum (in a narrower sense of the term); and out-side it, grew up by degrees, in the eleventh century andafterwards, one or more bourys, usually around some re-ligious house. "The unity of the ancient city was broken,and with it all real continuity. The later town was notthe natural descendant of the old city. It could not comeinto existence until a new unification had taken place,marcation entro los villes allen,andes et Ion villos françaises. . . . Lea causesprofondes des origines di. mouvement sent len memos dais len dear, parties doIs Francia. Dana lea bassiis do la Seine et cia Rhin, l'organsation primitivedos villes pr4sente Ion .n6n,es earactéres essentiels." Revue Hisivrigvo, liii. 82.

This distinction between "los villes antiques" (p. 301), or "los vioilleseit.3s'(i'. 304), and "lee villee nouvolles" is not always kept in the forefront;but it dominates M. Flach's whole argument.

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and until groups of population hitherto different in char-acter and merely juxtaposed" (i.e., those of the château, thecite, and the bourys) "were blended and assimilatd as theresult of being enclosed within the same walls." *

But in the eleventh century this unity had still to becreated; and meantime the physical severance of thevarious parts of what, by anticipation, we may call the"town," was paralleled and surpassed by the partition ofauthority over its inhabitants. The Frankish policy of ex-ercising public authority by means of comites, or counts;the Carlovingian policy of relying upon and favoring thebishops; the tendency for public offices to become fiefs;the necessity under which the bishops lay of securing theassistance of advocati, af,ouls, Voyte; the grant of eccle-siastical and lay immunities; the practice among the greatlords of appointing representatives to exercise their author-ity (vicedomini, vidilmes); the almost endless delegation,reservation, and subdivision of rights both of propertyand of jurisdiction,— all these led to an extreme fraction,nemen2 of authority, and brought it about that, whilemost towns had certain large features in common, thedetails of their government differed in almost endlessvariety. Thus at Amiens there existed, side by side, acount and a bishop, a vid&me and a vicomte, a cMtelainand an avoué. To make the confusion worse, most ofthese had their own executive officers,—the vicarii or vi-guiers, the prepositi or prCvtts, and the like, one or more.The jurisdiction exercised by these various seigneurs and

*In Book III., chap. ill., M. Finch lays down the general proposition as to"Ia distinction entre la cit4 Is bonrg, et Is chateau" (p. 250); and in chap. iv.be supports it by the instances set forth at length of Room,, Tours, Bourges,Nevers, Périgneux, AiM, Toulouse, Béziers, Nimes, Montpellier, Narbonne,and Carcasonue. Cf. Mistral, Dictionnaire Provençal Francais, s. v. Bong:"La piupart des villas du Midi, Aries, Diguo, Castellano, Carcasonne, Nor-bonne, Toulouse, Bodes, etc., so divisalent an moyen fige on deux parties, íadénta et lou bourg. La cidrsta, Is cite, était i'ancienne vililo, gdndralement en-tour4e do mum; is boury, formd do maisons doreen pun a pen an dehors dol'enceinte, Unit séparé do is cite par uncertain espace; tandis quo Is bourgado

\ (faubourg) dthit attonante aux mum."

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officials was, in theory, clearly distinguishable as eitherpublic or private; but, in practice, the line was not easyto draw. Most great lords exercised at the same timea jurisdiqtiop in its origin public, and a jurisdiction in itsorigin iiflrover different persons, or over the same per-sons in different capacities. In many towns there were,in addition, a number of little fortresses inhabited byknights or even by wealthy merchants, each claiming allthe jurisdiction he could get over his handful of retainersor tenants. In these respects there is no conspicuous' dif-ference between France and Western Germany; and anyattempt to thaw a sharp contrast - as that in Franôe thesecular authority of the bishops rested on immunities,while on the Rhine it rested on grants of county juris-diction -is defeated by the evidence*

So much for "the old towns." As they grew UI) aroundthe cite, so most of "the new towns" grew up around acastle or a religious house. The castle brought peopletogether in various ways. Homes were needed for itssoldiers' families, and for the artisans who supplied theirwants. The castle chapel served as a parish church. Themarket, which the lord's interest in cheap provisions ledhim to establish, attracted traders; and the walls gaveprotection to refugees from justice or tyranny. That suchagglomerations frequently became towns is shown by thenumber of town names partially composed of such wordsas c/tdteau, cMtel, cMtillon, ferté, roche, etc. In suchtowns authority was more likely to be held in a singlehand than in the old cities; though it was common enoughfor one or more ecclesiastical bourys to grow up outside.

Monasteries and cathedrals still more frequently servedits nuclei for town-formation Their walls were almostas sure a protection as those of a castle. They neededanequally large body of servants, though some of themwere of a different kind. To such as gained a fame for

'PagoB 281-285. On the identity of the chOtelain and 21 urggraf, soc p. 294.

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miracle-working relics, first pilgrims came, then traders,then artisans,— just as to a famous shrine to-day. Verycommonly the close enjoyed the right of asylum. Some-times the right was extended to all large enough tocontain a whole boury,— "a sauveM, properly so called";and, where that was the case, there was likely to be itcontinual influx of the distressed and the ruffianly.

M. Flach is the first writer, so far as I know, to assignto the sauveté (salvitas, salva terra)— equivalent appar-cntly to the English sanctuary* -a part in the creationof the medival city constitution. For his view, set forthat length, we must turn to earlier chapters of the book.He there seeks to show how the sanctuary originatedin religious reverence; how it received the recognition ofthe secular authorities by it distinct surrender of their juris-diction; and how complete immunity from external claimswas balanced by complete subjection to the sanctuary'slord. The relation between sanctuary and town is illus-trated by Chapelle Aude in Berry. In 1058 a localseigncur gave certain lands and dues there to the greatabbey of St. Denis. Thereupon a priory was founded;but, to obtain a population for the town the monks wishedto create, a sauveté had to be established. Four woodencrosses were set up at the corners of a tract of laud largeenough to hold a bourg (and including something morethan the lands which had become the property of theabbey) ; and King Philip I., with the assent of his lords,granted to the tract so marked out complete freedom fromexternal jurisdiction, from toll, and from military service.Fortunately, we possess a charter granted in the year 1073by the prior to what were already called the "burgenses"of. the "villa," from which we learn that the chargeslevied upon the inhabitants in return for the advantagesthus bestowed were already fixed by mutual understand-

-AB in the cases of Jloxham, Ripen, Beverley, Durham, Beaulieu, Wo,t-minstar, and St. Martii,'s is Grand in London.

19

ing. This charter reveals, moreover, the germs of a com-munal militia in the article which binds every burgess tomarch out under the prior to ward off tyrannical assaults;as well as the idea of a communal treasury in the articleobliging the burgesses to maintain, at their common ex-pense, such great personages as might visit the town forits common benefit. It is thus, says M. Flach, a pre-cursor of the communal charters, and it is isolated onlybecause our material is defective. "Nothing could showmore clearly the position of the sauvetJ as a historic linkbetween the mere village group and the urban com-mune." *

But the rise of new towns was not due in every caseto the presence of a castle or religious house. Villagesoccupying peculiarly favorable situations sometimes grewinto towns. "Yet mere increase in size was not sufficientto transform them into towns. For that it needed theconjunction of several propitious circumstances. In myopinioii, three principal elements distinguish towns fromvillages: a material protection, resulting from the pres-ence of considerable fortifications; a religious protection,secured by the residence of a bishop, the presence of achurch posessing venerated relies or of a - monasterybelonging to a powerful order; and commercial activity,shown by the holding of at least a weekly market." tThe absence of any one of these three might suffice to balkthe fairest hopes. M. Flach cannot agree with those -as, for instance, Hegel - who believe that mere forti-fication by wall and rampart was not essential to a town'sbeing; that the vital element was the possession of a courtof its own (ein erintiertes Stadtgerieht). The " ancient"towns survived, though they enjoyed no such franchise;and, on the other hand, many places that had receivedthat franchise never succeeded in really becoming towns.

'Page 202,Page 329. Cf. p. 341: "Les divers 41ments que now considérons comme

orgathques, 414ment roligleux, commercial, militaire."

20

The earliest transformations of villages into towns goback, as in the case of Bruges, to the invasions of the -ninth and tenth centuries, and the building of walls whichthese occasioned. Oppidum itself commonly meant sucha fortified place; and to fortify a village and "erect anoppidutn" were synonymous expressions. 'I'Iie new pros-pect of security usually led in no long time to the ap-pearance of the other elements necessary to make a towiiarid, as the seigneurs of such villages (always subject tosome lord or other) were usually glad to encourage aconflux of residents for the sake alike of the revenue andthe military strength they brought, they were ready toassist the process by the grant of liberties,— especiallythe rights of free alienation of land, and of trial in allmatters, civil and criminal, before town échevius. Theadvantages which a lord could derive from his authorityover a town were so considerable that a lord would nowand again set about the creation of a town by the profferof privileges to all corners. Such attempts illustrate theclose connection between the progress of municipal lib-erties and the sell-interest of the seigneurs; but it mustbe added that they were rare, and still more rarely suc-cessful.

Nor must the fair words of charters deceive us as tothe real position of affairs iii all towns, whatever theirorigin. The lord's castle at all times held the town at hismercy. Arbitrary authority lay behind all his relations tothe townsfolk. Hence it was that the destruction of thecastle was the first desire of the young communes and thenecessary prerequisite for any real liberation. The mon-astery - weaker, as a rule, in the arm of flesh - was sup-ported by the religious sanctions it could invoke. And,whether the lords were lay or clerical, the resistance of thepeople was weakened by differences of status, by diver-gence of interests, by dependence on different lords, by thetendency to make common cause with one's own lord

21

against all outsiders, and by the prevalence of "personal"law.

Nevertheless, forces were already at work tendingtowards unity. In a chapter on "Ia formation du lien cor-poratif," M. Flach sets forth the ways in which diversgroups within the town acquired a sense of corporate life.These groups he conceives of as the "cellules" out ofwhich the later municipality was to grow. Which ofthem should serve as the nucleus for the others to gatheraround depended altogether on their relative vitality andvigor.

There was first the link of common material interests.The castrum may have inherited some fragments of thecommunal property of the old Roman city; the villagewhich had grown into a town retained its old rights ofcommon. Then there was the tie created by the commonpossession of those privileges of aaylum which the towns-folk frequently enjoyed. This asylum might be an exten-sion to the whole town of the special advantages of theroyal palace; but cases so explicable were very excep-tional, and all such went back to a special grant, and wereby no means the offspring of a mere legal fiction (as Sohmwould have it). The real source of town asylum, as arule, was the sauveté already described. The cross wasits symbol, and had originally nothing to do with themarket (as Sohn and others maintain). On the contrary,it was the asylum which really gave security to the fre-quenters of the market: the special market-place waslimited in duration to the market hours, and there is notrace of its extension.

But there were even closer bonds of union, and three inparticular,—the tie of caste, of religion, and of industry.*

As to caste. At the head of the town population werethe chevaliers, serving the lord (or lords) of the town, andusually holding fortified hous within it and extensive

'I'ago 3138.

22

domains outside. Next to them was "the class of freemen, the bourqeoia proper." They were marked out bythe right to answer only before magistrates appointed fromamong themselves and representing the old public justiceof pre-feudal times,— to wit, the échevins; a fact not pecul-iar to the north of the country, though that special desig-nation might be. As the number of these "free burghers"could be addd to by enfranchisement, one might supposethat it would be the échevinage which would serve as acentre for all the non-military (roturie're) population toattach themselves to. But such an outcome was rare.Usually the burghers (or the richer among them) and thechevaliers drew together, made common cause, and monop-olized the town magistracy,— an alliance facilitated by theposition of the intermediate class of miniRteriales. Whenthe communal movement began, it was this urban patri-ciate which placed itself at the head, and reaped theharvest.

Among the lower people - the 'minore8, plebs, vulgus-the most effective bond of union was the parish. The par-ish created local groups, with a strong corporate sense, outof disconnected dependants of rival lords. And within theparishes grew up the even closer associations of religiousgilds, fraternities, "charities," with mutual assistance inthe redress of wrong and the support of the unfortunate,and common obedience to chosen officers. Analogous re-sults were reached by the merchant and craft gilds. Allthese fraternities, professional and non-professional, maybe regarded as going back to three sources,—Roman (forM. Flach thinks it probable that the tradition of theRoman collegia never wholly died out), Germanic (markedespecially by the mutual oath), and Christian.

Various corporate groups had thus come into existence.Here a patrician, there a plebeian, association showed mostvigor; and, when the moment came, this association putitself forward, gathered around itself the rest of the popu-

23

lation, impressed upon it its own stamp ola sworn brother-hood, and, lot the sworn "commune." The token of theirsuccess was the acquisition of a charter, by force or bybargain; and this charter, conferring as it did rights onthe whole body of inhabitants, gave them new and strongcommon interests. Not that they had never possessedany common interests before. M. Flach repeats thatthe sauveté and the immuniti had sometimes served thispurpose. In other cases the parochial machinery wasstrong enough to serve the purposes of municipal admin-istration.

Where there were no such institutions or none strongenough, the preliminary task of binding together the townpopulation might he accomplished by an institution depaix,— a voluntary association to maintain the peace,— orby an ant itil or town gild. But, whatever unifying forceshad previously been at work, it was the sworn confedera-tion of diverse social elements which formed the reallyoriginal feature in the new communes. The violence ofthe communal movement in the north of France was theconsequence of race traits reacting against a harsh sei-gneurial rule. The comparative quietness of a transitionsubstantially similar to it in the south may be explainedby a gentler rule over a milder people. The general re-sults, however, were much the same. The divergencies indetail, indeed, between the several constitutions were sogreat, and the number of possible combinations of partic-ular features so large, that it is very difficult to classifythem. Still, the town charters may be roughly arrangedin three groups: (1) those granted to sworn communes,whose main significance lay in the recognition of an al-ready existing "urban association " ; (2) the charters ofcustoms, regulating the obligations of the inhabitantstowards the lord, with little reference to municipal organi-zation; and (3) the charters of franchise, based indirectlyon sauvetEs, directly on institutions de paix and brother-

24

hoods, and settling at the same time the form, of govern-ment and the amount of dues.

As this outline of M. Flach's chapters may have shown,the lucidity which marks the earlier stages of the exposi-tion is hardily maintained in the later. It becomes not in-frequently difficult to discern M. Mach's real meaning;and I cannot be at all sure that I have not misrepresentedhim. As he proceeds, lie loses control of his material;until in the last three chapters the several factors of thetown constitution not only fail to be put into any dis-tinctly intelligible relation to one another, they are hardlyeven disentangled. The final impression of the com-munal movement which he creates seems to be not at allunlike that already traditional with French writers, andstated but shortly before by M. Luchaire. The agree-ment between M. Flach and M. Luchaire is especiallyclose in regard to the relation of the fraternities and gildsto the sworn commune: what with the latter are "germs,"constituting "a community before the commune," arewith the former "cellules," forming a "lien corporatif"before the "lien communal." What we have chiefly tothank him for is the attempt to picture to us the urban"agglomeration" of the early Middle Ages, and to bridgeover the gulf between that and the Roman city whose siteit occupied. lie succeeds in making us feel how complexwas the development which lay at the back of the com-munal movement itself, and the multiplicity of the factorswhich have to he taken into account in towns of any mag-nitude. He certainly produces in the reader - and thisis no small thing —a frame of mind indisposed to hastilyaccept any large and sweeping theory.

On looking back over his examples one cannot fail to.be struck by the fact that the "ancient cities" includethe great majority of the important towns of medimvalFrance. And the probability presents itself,— which

25

would need to be tested by a more strictly chronologicalarrangement of the material than we find with M. Mach,- that the development of the new towns took placeunder the influence of conceptions of citizenship to whichthe history of the older towns had already given birth.

We may single out from his account of each class oftowns one feature as calling for special notice. With theold cities it is the relation of the boury to the cite, andtheir subsequent union. That the situation was as he de-scribes it seems abundantly proved for Central and South-ern France; and there were, as we shall see, preciselyanalogous cases in Germany and elsewhere. But the useof the term bour,q raises some difficult questions to whichwe shall return later.*

As to the new towns, M. Finch, as before remarked,puts forward what looks like a fresh view, in the impor-tance ascribed to the sauvcté. But it must be said thatlie does not make it quite clear what the sauvetC was. Inone place, he remarks incidentally that the sauvetd was"only an application of the Truce of God" ; t and hethroughout carefully distinguishes it from an immunity4Yet in the examples lie produces the sauveté looks re-markably like an immunity, but an immunity for whichreasons were given peculiarly appropriate in a grant to areligious body in times of violence. And M. Mach doesnot make it clear that the sauvetéeo nom.zne,was an im-portant factor in the development of any town of impor-tance-

See infra, p. 587 note. f Page 391. 1 Page aiir,.

26

Iv.

Dr. Willi Varges's articles on the origin of the constitu-tion of German towns, to which we turn next, differ intheir composition as widely as they well could from thechapters of M. Flach. They make no effort after apleasant style; the argument is arranged with the utmostformality; each paragraph opens with a proposition, andthen goes on for a page or more to furnish the proof.While M. Flach refers only to original authorities, Dr..Varges freely employs the modern literature of the sub-ject side by side with the sources, and has no hesitation inborrowing his references. His own studies have appar-ently been directed to the North-German towns, especiallyBrunswick; but his conclusions are stated as if valid forthe whole of Germany. They are as follows: -

Towns have commonly grown out of villages; but,when fully grown, they are marked off from villages byfour characteristics. Towns are fortified (befestigt); theyenjoy a special place (lefriedet); they possess the rightof trade ( Verlcelirsreeht: usus negotiandi, usus mereatorius,potestas mercandi, mercatus), mistakenly explained as meremarket-rights; they are corporations of public law, ex-empted from the jurisdiction of the Gan, and possess-ing rights equal to those of the Gau. And so the in-habitants are defenders of their stronghold, their Burg,and hence bmrgenses, burgesses; thy enjoy a higher pro-.tection than villagers; they have the right at all times tocarry on trade in the town, and hence are mereatores, mer-chants or traders; and they form a community with acourt of their own (bilden cine eigene Oerie/ttsgerneinde),and live under a town-law of their own creation.*

1. The town as a stronghold (Festung). This was atfirst its most important characteristic: as the. early use of

JahrbQeha-fir NatlonatBkonomie, lxi. (F. 3, B. vi.) 164.

27

Burg for town, not replaced by Stadt till after 1100, andthe terms burgensi.s and BUrger, clearly indicate. Theworks of defence consisted of a circuit of walls (at firstmerely of earth or timber), and usually a moat: a groupof houses which merely lay under or near a castle was nota town. As the right to fortify was a royal prerogative(Regal), the towns were originally royal fortresses.Hence the first inhabitants are to be regarded as "a stand-ing garrison " : not, indeed, that they were professionaltroops,—they were merely members of the nation towhom had clung the old obligation of military serviceonce resting on the whole people." Indeed, the burghersand the knights formed the two branches of the new mili-tary system, now taking the place of the old: the formerdid garrison duty, the latter served in the field. And thefunctionary who first appears as exercising authority inthe town, under whatever name,—pra1fectus, Vogt, Burg-grqf—is primarily a Constable or Captain of the Castle.

2. The town as a place enjoying it special peace (Friede-ofl). The exceptional peace (or Bann) which prevailed inthe town, involving the punishment of criminal offencescommitted there by exceptionally severe penalties, was theking's peace; and the WeichMld, or town emblem, was itspeculiar sign. And here Dr. Varges puts forward whatis, so far as I know, a quite original explanation of theorigin of the town peace; namely, that it is nothing morenor less than the primitive peace of the national army(lTeerbannfriede), specialized for the benefit of a standinggarrison. Towns, lie repeats, were at first essentially inil-

* hid., p. 176: "Tn den Stadtbewohnern, clan Burgern, hat sieh ein Restdes altos Volkshoeres erhalten," following von Maurer, i. 486, note: "DerKriegsdienst der Burger war humor noeli der alto Kdnigsdionst." In this con-nection it is usual to cite the passage of Witukind, describing how Henry I.(the Fowler) selected one out of every nine of the "agraril ,nilites" to dwell inthe strong places (urbes) he had erected. This trnun is very variously inter-preted: by Waltz and Giesebreclit as "konigliohe Ministerialen," by Vargos

wehrhaftige, lteerpfliclitige florfbewohner," and by Keutgeii by what isthe sarno, "hoorbaunpllichtigo Bauern."

28

itary in their character. They were nothing but fortifiedvillages, whose inhabitants, though peasants engaged inagriculture, were subject to special military obligations,and therefore enjoyed a special protection. Trade wascarried on only in unusually favorable situations, and thenchiefly by foreigners and Jews.

3. The town as a place of trade. As time went on, thecharacteristics of the town altogether changed. The factof trade and the right to trade became all-important.The right to trade rested on a grant by the king, or otherlord, of the potestas mereandi or niercatue. Such grantswere not originally bestowed only on towns: they weresometimes given to religious houses or villages. Themodern terms .ilfarkt, market, are of course derived frommercatus; but it is altogether a mistake to limit the mean-ing of mercatua to the right to hold a market,— Dr.Varges's most original contribution to the discussion. Thegeneral right to trade had nothing necessarily to do withmarkets, which, on the contrary, interfered with it; andmarkets really played a very subordinate part in the build-ing up of the town constitution. All burghers settled inthe town could, if they chose, take part in trade; andthere was no merchant gild monopoly.

4. The town as a community of public law. Withoutits own court and its own law the town was not complete.The appearance of the court was the consequence of thegrowth of a peculiar town-law; and this town-law was notthe outcome of a merchant-law (itself perhaps growing outof a special king's law), as Sohn and others maintain,but simply the common law of the country modified bynew economic needs, and varying widely from place toplace. Townsfolk had long been marked off from country-folk by the town walls, by the special peace, by the obli-gation of watch and ward. The contrast was now height-ened by the activity of trade. At the same time the con-struction of a peculiar town-law necessarily led to the

29

establishment of a separate tribunal; and this might comeabout in any one of several ways,—by the transformationof a county court (Grafsclzaftsgericht), by the addition ofauthority to an assembly of peasants, or by the establish-ment of a brand-new court.

And now the burgher body, the Sladtgetneindc, whatwas it? As a rule, nothing but an enlargement and modi-fication of a Landgemeinde, a village group. The enlarge-ment was brought about in several ways, especially by theunion of several neighboring Ortsgcmeinder_(" synoikis-mus"), and by a stream of immigration the volume andeffect of which can hardly be exaggerated. An elaborate,and not very convincing, argument follows, as to the legalfacility of emigration from the rural lordships.

Burgess rights were bound up with the possession ofland or house within the town. But to obtain house orland was not difficult, and it was early facilitated by theinstitution of Wortzins. In most of the towns, especiallythe older ones, the land was not the absolute property ofcitizens: it was held of a lord, but on very beneficialterms. The holding was burdened only by a fixed moneyrent (becoming nominal in course of time), and it wasfreely alienable and heritable.

At first the craftsmen were as much citizens as the mer-chants. Not till later, usually after the establishment ofa town council at the beginning of the thirteenth century,did the larger landholders and the "merchants" in themodern sense form a patriciate monopolizing the govern-ment. In earlier times mtrcator designated the craftsmanas well as the mere trader.

The foregoing abstract will have shown that, as M. Flachsubstantially follows Luchaire and Giry, so Dr. Vargesbases his construction on von Below and von Maurer.The two new features which call for notice are the doctrineof the Burg and the doctrine of the mercatus.

30

As to the Burg, it will be seen, on looking up the refer-ences candidly supplied by Dr. Varges, that the idea of theimportance of the fortifications - an importance so greatthat they furnished the chief external trait of the mcdi-zeval town - had already been forcibly expressed and sup-ported with abundant learning by von Maurer.* Bflcher,tandprobably other writers, had described the burghers asa standing garrison. What is new with Varges wouldseem to be the consequence drawn from his garrison the-ory as to the genesis of the town-peace. That Burgmeant a place of defence, that the oldest "towns" werein some way connected with defence, we can hardly doubt.It is well known, also, that in the later Middle Ages townson the continent of Europe were commonly surroundedby wails and moat. But it is by no means clear to mymind that we are to think of the earlier Burgen as walledtowns. The "burhe" which Edward the Eider and hissister Ethehleda were building in Mercia at the very timethat Henry the Fowler was building his Burgen in Saxonyare usually described,—and the description seems to bejustified by existing remains,— as earthen mounds, sur-mounted by brick citadels or wooden stockades.t This

8tadtevcrf4ssuag, I. 103,In a lecture given in October, 1890, entitled Die Entslshung der Vol/cs-

wirthschafl, and printed it' the volume bearing that name ilk 1893, p. 45 "Diemittelalterijeho Stadt jet in orator Lisle eino Burg, d.h. sin bit Manor,, m,dGrhbou befestigter Ort. . Anfangs sind die (lanorildel, Bowobner der Stadtsuch hinsiehtlicl, ihrer Besehititigung in twiner Weise von dot, Bewol,nern derLa,tdorto w,terschiedon....Aber ihr Gen,eindeleben oraohuipft sick nicht inder Itegelung der A1hnondnutatng. ' Sic sind Jo sozusagen ale sine stohendeBesatztmg in die Burg gelegt." Tins view .liiiehor associates with the furthertheory that the existence of a town implied the formation of a protective asso-ciation (&/iutzverband) among the rural settlements of a more or loss consider.-able area around, all of whose inhabitants were bound to keep up the fortifi-cations, and take part in their defence. In return, they had the right to takerefuge (Zn berge,,) behind the walls, with wife and child, cattle and goods.

This right is called Jinrgreda, and ho who enjoys it is a Buirgr!"

I English (Jhronide, a. a. 913. force,, see Green, Conqnesi of England,198 a seq.; Bonso, Oxford, 3.

31

might be an equally true description of the German Burg.M. Flach has shown us how from the clñster of cabinsaround and beneath the citadel of a lord towns might anddid sometimes come into existence in France; and thereseems no reason why the same should not be true of Ger-many. The people defended by, and, if need were, takingpart in the defence of a Burg, a Bunt, might naturallyenough be called Bungliudi (=Burgleute), or, in Anglo-Saxon, Buru&waru, long before they themselves weregirdled around by a wall. Dr. Varges's examples of wall-construction around towns all belong to a comparativelate period.*

As to trade, it is certainly worth observing that inmany charters the right is granted in very general terms,without limitation to markets or particular days. f Dr.Varges has done well to point this out; and the wholesubject of medheval trading usages requires fresh investi-gation. But it may. be asked whether, apart from the

* Writers who have dwelt on the connection of Burg with fortification havenot noticed the doubt cast upon it by the use of bourg, clearly the some word,in French. Bourg is popularly used in many parts of Francs, especially in thecentre and in Normandy, for "tenth agglom4ration d'habitations ayaut oncloehor, fftt-ello rcdrnte a un trs petit nombre de maisons," Jauhert, Cbs-mire on Centre do (a France, with an apt quotation from G. Saudis Valentine.'The dictionary-makers, however, define it as "Ores' (Litt.rd, "Grand ") "vil-lage, cii loll tient ,narché," .Dictionnaire do PAcade,nie; to which the Lead-eity adds, "orelinairemont euthuM do murailics," The word was early con-nected by pliilologers with the Greek lrI'pync and the German Burg; and thisraised the question whether it implied the presence of fortifications. Thus AsDictionnai're do 2%woux (1743), after defining Bourg as "vifle 'loll close; habi-tation do people qui tient Is milieu entire Is yule at Is village," añds,"Q,,olques-uns be restreignont anx lieu, gui no sent forms ni de mum ni dofoss&. D'autres, an eoutraire, coinine messieurs do voulent queSe soft on gros village, foruM ole petites mnrailles." Certainly, as applied to asettlement outside a cite, it always suggested the absence of walls. See above,

it p . 0791, note.Thus in the charter to Magdeburg (1201-38), "Quilibot burgensis, out

propriam habons amain vel domuni, quarnineunque return venalitateni habue-nt, ens in dome propria libero vendere potest, not pro alibi rebus commutare."But it must be noticed that this is comparatively late in town history. It doesnot follow that the grant of a market may not have had great importance inall earlier century.

S

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sale of food, trade was not, as a matter of fact, usuallycarried on in markets and fairs; whether we can 5UOSCthat the sale of food by one neighbor to another everreally required permission by charter; whether the be-nevolence of the grant of trading rights on the lord's partand the value of it to the recipient did not lie in the per-mission it gave to levy tolls on the frequenters of themarket, and especially on outsiders. As to the term met-catus, Dr. Varges's attempt to free it from association withthe market is rendered the more difficult by the fact, towhich he does not refer, that iii classical Latinity itmeant it market-place or mart (among other things), andnever trade in the abstract. Some of the earliest charters,also, use verbs in conjunction with mercatus, which are mostnaturally interpreted in the more limited sense.* More-over, he weakens his argument by constantly bracketingtogether Woclten.marlct and Jahrmar/ct, market and fair, asif their functions were much the salne The fair involved,as it seems to me, a temporary suspension of the economicsystem of the town, while the market was an ordinarypart of it.

V.

The articles of M. Pirenne, next in order, combine,as we might expect from a Belgian writer with a Ger-man training, the merits of both German and Frenchmethods of exposition. Like Dr. Varges, he takes painswith the arrangement of his material; but, fortunately,he also resembles M. Flach in aiming at a certain ele-gance of presentation.

'"Mereatnm c,-igcre," Charter to the Abbey of Quedlinbnrg, M. "Lice,,-time construendi mercatam," to the Archbishop of Bremen, 1003. "Merca-turn veto conetituat publicurn in iRis ubiounque abbati placuerit locis," Char-ter to the Abbey of Corvoy, 046. CI. "Mercaturn oonstituimus in Burch, utnullum alijid liaboatur inter Sta,,fordiarn at fluntendun," Charter of Edgar ofEngland to the Abbey of Peterborough.

88

M. Pirenne begins by following M. Flach in his accountof the fortunes of the Roman cities in the Dark Ages.They survived, in a sense, huddled up in a corner of theirold site; but all the old municipal life died out. Suchactivity as was still to be seen was usually that of someecclesiastical establishment, most commonly of a bishopand his ministeriales. Meanwhile, in the country around,freedom had disappeared;: the whole land was broken upinto seigneurial domains, tilled by serfs of various degrees..Trade ceased: the western world "entered on the agri-cultural period of the Middle Ages." Town life was nolonger urban: the town was now only a place of "relig-ion," and the centre for the administration of great do-mains. And this was roughly true of all the more impor-tant ancient towns, in spite of the facts that some towns,relatively few in number, were the residences of lay, andnot of ecclesiastical, lords; that a public jurisdiction sur-vived, in theory at least, by the side of manorial; andthat no town altogether escaped "the law of dispersion."The town, in its later legal sense, did not yet exist.

The great change came with the rise of trade in theeleventh century, and the formation in various places ofgroups of merchants and artisans. The idea that thesemen were, in any important sense, brought together bythe prior existence at such places of any such local at-traction as a religious house, a castle, or a market, M.Pirenne brushes aside. He declares that these aggrega-tions were due to "purely natural causes." They are tobe explained not by history, but by geography. As tradegrew up, points of vantage were fixed upon as places ofresidence, precisely as we see them being occupied in new,countries to-day. True, most of these places were uponthe sites of old Roman towns; but this was only becausethose sites were favorably situated for trade, especiallysuch of them as were at the points of intersection of oldRoman roads. A new economic period opened: trade

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takes its place by the side of agriculture, and "the townsare the work of the merchants," *

To explain the position of affairs, M. Pirenlie turnsaide to sketch the previous history of the merchant class.The trader, as he first makes his appearance in the Carlo-tingian age, whether man of wealth or petty pedler, is"essentially a wandering being, passing continually fromplace to place, and both protected and exploited by thesovereign." The same is true after the restoration ofOrder in Germany by the Saxon kings. Still, wanderers asthey were, they must have had resting-places for the win-ter; not to mention homes for their families,— a necessityWhich M. Pircnne overlooks. Accordingly, settlementsofiqeriants began to be seen at convenient places. But,as atle r explained, such sites were already partially oc-cupied "by the towns of the agricultural age"; and sonow beneath the old wails grew up the faubourg, the Vor-burg, with its trading population. The fauboary is thestarting-point of the town of the new era. Here is to befound the market; and the primitive burgher-body is notcomposed of ministeriales or of emancipated serfs, but ofa group of settled traders4 The land upon which theybuilt their homes might be subject in all sorts of waysto all sorts of lords: they themselves were of divergeorigins and of every degree of opulence. But economicforces were working towards the creation of a uniformstatus; and they were aided by certain contemporarypractices. In the first place, merchants had from earlytimes been taken under royal protection, resulting, as M.

L.,s villes sont l'u,nvre des mareltands; ones n'existent quo par our.Romahies on non-romaines d'origbe, siege d'un dv&h6, d'un monastéro, ond'nn chateau, libres on sountises an droit dojuanial, ells no commencdnt 4aequdrir one constitution municipale quo du jour oh, 1 côte tie ieur poptdoAiotprimitive, viont so fixer one outre population, vivant easentieliement do com-merce et d'industrie." Revue ffistorigue, lvii. 70.

t"Clo faubourg, point do départ do Is vile nouvelle," etc. "O'est dos.marchands que Os eompose là bourgeoisie primitive." .Thid.,74.

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Pirenne understands it, in their retention beneath thejurisdiction of the public courts, not, as other writers haveit, in their subjection to a special royal jurisdiction apartfrom the public courts. The right to demand toll fromtraders was also a royal right; and, where inferior lordsexercised it; it was always in virtue of a royal grant.Accordingly, the traders all remained under the same juris-diction, and that a public one. Yet, as the persons whoexercised it were only too likely to misuse their powers;and the traders as isolated immigrants were devoid of thesupport of kindred, they were obliged to combine; and sowe account for merchant gilds, itanses, charities, and likeassociations. These associations may very well have hadtheir first beginnings in the mutual help, the subordina-tion to chosen leaders, necessary in the bands or "cant-vans" in which during early times traders Were obligedto travel for the sake of security.*

Then follows what we may regard as a combination ofthe theory of Nitzsch with the traditional French view,modified somewhat in deference perhaps to Hegel andGross, though scant regard had been paid to their opinionas to the non-identity of mere/unit and burgher. The mer-chant gild formed at first "a vast association 3" includingall who had anything to sell. Not till later did it becomeexclusive ; and this was due partly to increasing wealthand the growth of a spirit of monopoly among the richermembers, partly to the "entire absorption of the artisanby industry" proper (as distinguished fitm trade). Thecraftsmen became wage4aborers, and ceased to have anyneed themselves to sell their produce. The gild in manytowns secured a considerable jurisdiction in matters eon.

*This idea and the not very Appropriate term "caravan" first appear. Ibelieve, in an article by L.amprcclit in the Hislorigehe Zeitschrift, mu.; andthey are repeated in his Deutsche GesrizicMe, iii. (1893) 27 ci seq. Thus Lain-precht lays down the proposition that" tier temporliren Form der Xauffahrtgildewar die stetige der Platagildo gefolgt." The vie* is not in itself imptobable;but K Firenne would have done well to pay more attention to ton Below'snsnuaing criticism in Ursprung, 135 ci seq.

36

nomic, and controlled the market: it sometimes con-tributed out of its funds to common town purposes. Yetit remained a voluntary society; and, while it helped inthe development of town institutions, it did not createthem. Its deacons (aldermen) did not become town mag-istrates, nor its regulations town-law. Association gavethe merchants the strength required to enable them so totransform old institutions as to create the town it didnot furnish the mould into which the new constitutionshould run. This is illustrated by the history of the jusmercatorurn, which apkears in the eleventh century, andbecomes one of the sources of later town-lacy. The jusmercatorum is not the handiwork of the gild, though thegild helped to spread and maintain it. It is simply amodification of the old common law under the pressure ofthe peculiar needs of traders. Accordingly, it is notpeculiar to any particular country or town, but, in a sense,international.

Up to this point what we have seen has been the set-tlement of a new group, the traders, by the side of theold groups of ministeriales and serfs already to be found.The next question is, how did. the personal privileges ofthe merchants become attached to the soil? Here thekey is again found in economic pressure. This first madethe trader personally free; then freed the soil, and createdthe tenure known as bowrgage (French), burgage (Eng-lish), .Leilze zu Burgrecht (German) ; then gave freedomfrom arbitrary toll in return for an annual rent paid to thelord; then brought about the establishment of a new tri-bunal, composed of burghers, to administer the new law.But by this time all the other groups living alongside ofthe traders wished to enjoy the same advantages; and outof the chaos of struggle arose, at last, the new unity, theall-embracing community. What were the chief factorsin this last stage of its history?

By a new road we come once more to the town-peace.

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All are agreed that medival towns, in France as in Ger-many, were under such a special peace. But its origin 1W.Pirenne attributes neither to the peace of God nor to thepeace of the market, nor to the protection enjoyed in anearlier age by merchants as individuals,* but, as before,simply to the constraining force of new conditions. Thetowns were the resorts of all sorts of shady characters;and the only way to secure anything like order was toestablish a permanent "state of siege." That is what thetown-peace was,— an exceptionally severe criminal code;and it was the feeling of the need of such a Draconiancode which led the townsmen to seek for the grant of apeace from their lord. The limits thereof were the citywail, which now began to be everywhere constructedto enclose the faubourq. The space it contained did notnecessarily correspond to any previous territorial division,public or private: it was determined by economic causesalone. To secure the peace had needed a common move-ment of the population, and an oath of mutual support,a conjuratio: union was also required to secure exemp-tion from seigneurial claims; and a joint contributionhad been necessary for the building of the wall. Andso, in all these ways, under the pressure of a triple neces-sity, the commune gradually became conscious of itself.

The urban tribunal was, in like manner, the direct con-sequence of the novel requirements of the situation. Itwas, indeed, a public court; and it succeeded to the ancientcourt of the centena (or "hundred ") .t Still, it has it spe-cifically urban character: it is composed of burgesses, itis more or less chosen by burgesses. And, as it is not a

Refening to a supposed Ecu fieutesonderrrriit, on which emphasis has beenlaid by many writers, notably Inania-Sternogg and Gothein. For an accountof their views see Donn, Untersnchungen ur Gesthiche., der Koufrnannsqik/eedes Mittelalters (1898), 25 et seq.

"Maim, 6coutbte, avonó, Jo jugo urbain, ost ho ,,iocessour incontestable tiel'aneien oonteuier franc " (Revue Misiorique, lvii. 808); though the precise mean-ing of the remark is not free from doubt.

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more market-court in its origin, so it is not a mere sur-vival and. transformation of the court of the centena. It isa new creation, the necessary consequence of the recogni-tion of the principle that the burgesses have a right to bejudged in their own town by the customs there estab-lished; and the law it enforces is, on one side, the civillaw which grew out of the jus niereatorum, and, on theother, the criminal law born of the town-peace.

Finally, the town council is, again, no mere survival ortransformation of an old institution. It is a "college ofdelegates" acting on behalf of the bourgeoisie, such aswas sure to appear as soon as the bourgeoisie becameaware of itself. It may be called an executive committeeof the burgher body.

The internal movement by which, within the now unitedburgher body, a separation arose between the rich and thepoor, the inajores and minores, and an oligarchical govern-inent was established,— ruling in economic matters throughthe machinery of the merchant gild,—belongs to a laterperiod.

Up to the point now reached, the thirteenth century,the development had been roughly parallel, with localvariations, over the whole of the country between theElbe and the Seine. Not till now did the lines of evo-lution begin to diverge; and the divergence was due notto differences of race, but to the difference between Franceand Germany in the strength of the central authority.

M. P.irenne's whole theory, it will be seen, turns on the"colony of traders"* which made its appearance at theold Roman town, and on the formation of the associationwhich "was for them a primordial necessity." t Themerchant-body first secured rights for itself, and thenbrought about their extension to that older agglomerationof population by whose side it had settled. This is none

" Les colonioa marehandee." Revue His1ontje, lvii. 75.tIbid., 81.

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other than the Ka?fmannqemeinde, which had alreadybeen made the all-important factor in town developmentby it succession of German writers.* What is originalin M. Pirenn&s exposition would seem to be his freeing theinfluenceuence of the merchant-community from any necessarydependence on market-privileges. But it suffers fromthe same weakness as the theory in its German garb;namely, a failure adequately to account for the exten-sion of traders' rights to "the divers social and juridicalgroups which coexisted with them." t The motiveswhich are supposed to have led to the establishmentof the peace, to the construction of a wall (or ratherl'eneeinte du faubourg), and to the acquisition of fran-chises, were all motives primarily affecting the traders;and, if they could but secure these advantages for them-selves, there was hardly any strong reason for desiring toextend them to others.

I cannot help thinking that the light-heartedness withwhich M. Pirenne has passed over this very real difficultyis due to some vagueness in his own mind as to the situ-ation of these earlier groups. Like M. Flach, and likethe recent German writers who have described the Rower-stadte, M. Pirenne begins by thinking of "the cities ofthe agricultural period" as themselves walled.t In thisview the faubourg was outside the walls, outside hi ville.

Die Eitstohung einor Kanfniannsgemeinde, ekes Xrnifloutegericbth,und ekes bosonderen Oerichthbezirk, di.. der Immunitat vom Landreohinver-baud, due Mud die Orundbedi,tgungen fur die Entstohung der dentscl.en St4Ldte,sowoit dioselben Kaufmanns- and MarkfJtdte si"d, el.h. de,n Handel ilire Ent-stehung verda,*eu. Derartigo Kaufmannsgemeinden lessee Mcli nun in violet.Stitdten Doutsoblands noch positiv naahgewiesen; vor aliem bat der AufsatzSelmites Me wieder in den Vordeigrund des Interesses goruokt. Sir siedeltisieli iii don alten Romorstadten meist nor den Thoren der alien Stadtrnauer an.Wir wisson von soleben Kaufutantisgemeinden, a. B. in Kolu, Regensburg,Worms, Main,,., Easel, in Goslar, Magdeburg, and Quedlinlnirg." Dove,,,Untersue/tungen, 34. t Revue Histunquc, lvii. 97.

41?Ad., 60. Cf. the "mere" and "portos" of p. 64.§ In the sense of p. 62.

a

0

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What, then, it would be necessary to do later would beto push out the town wail so as to include the faubourg,or, what came to the same thing, to build an additionalwall as a loop round the faubourg. But, when M. Pirennegets further iii his exposition, the town to which the"colony" joins itself—that which we may call, acceptingfor the time M. Pirenne's general theory, "the pre-com-mercial datum"— becomes merely a "chftteau et immu-nitils." * The new settlement now takes place "in thetown." t Still more surprising, the enceinte du faubouryis not now described as an addition to a previously exist-ing town wall; but, starting from and returning to the"chftteau seigneurial," it is the "enceinte," the "mur,""de la yule" itself.t Henceforth it is argued about asif it were the first wall the town ever had.

I am, of course, far from maintaining that the we-commercial datum was really always a walled town. Inmany cases, in all probability, it was simply a castle, inthe modern sense, with an unenclosed cluster of cabins atits foot, as M. Flach has pointed out. But it is surelyworth while to pause from time to time, and considerwhich we are to keep in our mind's eye. We can onlyarrive at results satisfactory to the social historian by de-termining to visualize the process we imagine at work;and this we cannot do so long as the centre of the pictureremains in mist.

'"TJne urhs nova, on suMM,inm, on faubourg commercial, so forme h cttedo cl,flteaii et den inununiMs, dont l'onson,ble constitue Is vile do l'itgo agri-oolo." (p. 74.) tPago 75. jFage 209.

M. Firennn speaks of the snbw-bium as built "eons lee mum dii castruinprin,itif," echoing the language of M. Flack. But, while M. Pirenno gives theimpression, in tIns latter part of his argument, that the ens/rum woe simply ajamps castle, M. Flash, as we have soon, carefully distinguishos between thatnarrower sense and the wider sense in which it was esell for a fortified townarea. See sup-a, PP. 371, 372.

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VI.

We have now come to the last work upon our list,Dr. Keutgen's Untcrsuchwn,qcn, a work, it must be remem-bored, strictly, and on principle, confined to Germany. Itis one that may well be placed by the side of M. Pirenue'sfor its skilful arrangement of material and its subordina-tion of detail to generalization.

In his introduction Dr. Keutgen points out, what isoften forgotten or denied, that the only classification oftowns of any use for the present purpose must be a chron-ological one. German towns lie divides into three groups:(1) the bishops' towns on the Rhine and Danube, ofRoman origin; (2) towns springing up in inner Germany,from the ninth century onwards,— whether beside an epis-copal or royal household or otherwise, it matters little;(3) artificial foundations, from the end of the eleventhcentury, on which was bestowed an already-constructedtown-law. But this is a classification to which Dr. Keut-gen pays little attention in the rest of the treatise. Hischief conclusions are conveniently given at the end of thissame introduction. Two main lines of development, hesays, have to be kept apart, and considered separately,—the origin of the urban tribunal, and the origin of theorganization of the urban community itself. "The Ger-man towns formed, in the Middle Ages, separate districts(Bezirice) of the public judicial organization ; and theorganization of these public courts corresponds (cut spricht)to that of the public courts in the country at large (afdem Lande)." The town, however, had sometimes novoice, and often but little voice, in the actual appoint-ment of the judges. "As to the urban community, thequestion is" simply "how the constitution which everyGerman local community (Ortsgemcinde) possessed fromthe first, by virtue of its autonomy in certain matters,

42

• followed a peculiar line of development in the towns,and ended in the establishment of the council." *

With regard to the town tribunal, Dr. Keutgcn abidesby the old explanation which traces it back to the centena,the hundred court. He thinks that, as a rule, by the tenthcentury the towns had come to form separate jurisdic-tional districts, and that these were not simply like hun,dreds, but actually were small hundreds. The Ottonianprivileges put them into the hands of the bishops, (or, touse a phraseology familiar to students of English eoiistitu-tional history, made them "dependent hundreds"). Asagainst Arnold and von Below, Dr. Keutgen has no diffi-culty in showing that the grants of the Ottos did applyto specifically urban areas. In this town-court, however,there was at first no special town-law administered. Toexplain the growth of a special town-law, and the legal (asdistinct from the political) reasons for a separate town-court, Dr. Kentgen proceeds to consider the town as aplace of defence (die Stadt als Burg). In much the sameway as von Maurer and Dr. Varges, lie points out thatBury was the oldest German name for town; and he re-marks on the survival of 6orough as the technical designa-tion in England. He calls special attention—and thiswas well worth doing—to the peculiar importance of theBurgcn established in Saxony by King Henry. Thoughby no. means all of them became real towns, the earliesttownis that did arise in inner Germany grew up at someof the point- so marked. Having thus prepared the way,lie suggests tentatively that the position of the town as aplace of defence may bavo had important legal conse-quences. We seem to be approaching Dr. Yarges's a+garrison-theory. But no! Dr. Keutgen's view is reallymore akin to that of Sobni. Everything connected withthe king was, in early times, under a special peace TheBurg as a fortress (really, not constructively) was itself

Untersuthungen, 9.

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the king's in theory, if not in fact: hence it was subjectto the special king's peace; and hence the Bwr.qfriede.

Passing over Dr. Keutgen's elaborate criticism of themarket-theory, which is very effective, we reach the civiccommunity. This, as before indicated, our author regardsas merely an outgrowth from an Ortsgerneinde. Here heis in substantial agreement with von Maurer and vonBelow. Indeed, he may be regarded, on this side of thesubject, as a pupil of you Below. Like him, he objects tovon Maurer's terminology, chiefly because it lays, as theythink, undue stress on one feature,—communal manage-ment of land, without proper regard to other communalpowers.*

Burgess-rights, as might be expected in towns with suchan origin, were bound up with the possession of land, andhad nothing necessarily to do with mercantile pursuits.We may omit the long and interesting, but hardly convinc-ing, argument as to the origin of die stddtiscke Brbleilte,Leilte zu Stadtrecht, zu Burgrecht i.e., burgage), and reachthe concluding chapters. Here Dr. Keutgen comes so farto meet the market theorists as to assign great importanceto the settlement (Ansiedelung) of traders in variousplaces. Without them, no town. He accepts a specialjurisdiction of the merchants over matters specially con-cerning themselves. As to weight and ineasure,—con-cerning which there has been an acrid dispute,—Dr Keut-geil takes the middle position that the commune' (Oc-vietnde) controlled the weights and measures of articlesof every-day use, the merchants those of commodities

herein they especially traded. Out of a union of thetownship and the market the later town grew. Into the

*Page 1.09: "Die Dorfverfaung boruhto niolit, odor doe1, tier iiinsserlich,anf do,, Markgdmoinsohn.ft, sondern sie beruhte ant do,,, Bdbstbestimrnengsrec/it

der Gomeindo wirUsehaflUek se1hsLdndig Manner," Cf. p. 110: "Wio dieGeriolitsverfosseng der Stadt irni deni Boden do,, aligomoinen offentlielienGcrielttsvorfnssnng stout, so bornht such die Vorfassung do,, &wltgemoindodnrohaus ant den Grundiagen der aligomeinon doutseheii autonornen Gomein-dovorfassung."

I

UJI

stages of the process he does not enter at any length.*Like M. Pirenne, - the council he regards as a mere com-mittee (clue Art Ausschltss) of the burgher body whichwas formed by the union of these two elements,

Dr. Keutgen's most original contribution to the discus-sion is his theory of Burybanu. But this, it must beobserved, lie leaves a mere conjecture. He himself recog-nizes that the earlier uses of the term Burgbann are to beexplained by the right of the Burggrqf or some similarofficial to compel the residents of the environs to work atthe repair of the walls. But he thinks that some con-firmation of his theory is to be found in four documentsof 1095, 1014, 1024, 11014 The first and third make afine of sixty shillings payable for the breach of Burg-banu; the second limits the imposition of a fine of thisamount to publicoe civitates; the fourth calls it jus civic.But none of these necessarily connect the peace of thetown with fortress peace of the king. By this timeBurgbann might very well have meant nothing buttown-law.

As to the Ortsgemeinde, it is curious to observe howDi. Keutgen (iii this respect again following von Below)assumes his major premise. The Lan.dgemeinde was "an-tonoinous, " "self-determining," and had such and suchBefugnisse (competence). The town-community was like-wise autonomous, and had a like competence. Therefore,the town-community could have been nothing originallybut a Laudgemeinde. But, if -putting o" one side thewhole question of serfdom and relation to a lord— we lookup the examples of the competence of the Laudgerneinde(e.g., in the matter of protection against fire, building reg-

I'age 218: "Man sieht win in nines ants Dorf- nod Markt-aneiodelung zu-samino,,gewaehse,ioti Stadtgemeindo die gew3hnhoithrecI,tJiohen Befognissodes, iCautleute Zn den ahniel.o,i des, autonoinen Laisdgemeinde hitizu karnen,urn zusammen den Ureprung des stadtiseheu Venvakungsiliatigkeit zu bildeti

Page 57 ci seq.

Ii

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ulations, etc.), for which Dr. Keatgen refers to von Maurer,we find that they are all drawn from Weist/dimer (recordsof custom) of the sixteenth, seventeenth, eighteenth, andeven nineteenth centuries.* From what one knows ofvillage life one may be pretty sure that such powers werenot exercised in the Middle Ages. There can hardly bea doubt that these Befvgwisse of the £andgerneinde werebelated imitations of town practices, and not their souree.f

VII.The reader who shall have made his way through the

preceding abstracts will probably experience a feeling ofbewilderment, for which he may be inclined to blame thewriter. It would, no doubt, have been possible to ar-range an account of the recent literature of the subject ina different manner,—to present the chief proposed solu-tions of the main problems involved, and state the atti-tude of the various writers to each in a form admitting ofeasier comparison. But such a presentation would havegiven little idea of the way in which each writer really ap-proached the subject- The differences in emphasis, thedifferences in the number and grouping of the severalfactors recognized, are at least as interesting as positivestatements, when we have to do with essays in constructionall more or less eclectic in their character.

It would be rash to attempt to judge between the rivaltheories thus offered to the inquiring economist by histo-rians and lawyers. The battle must be fought out by thespecialists themselves. Yet there are some fundamental

t Maurer, GeschirJUc do' Dorfverfassunq, ii. ii ci seq.

Since writing the above, I have noticed the remark of &hrMor, DcielscheRcchlsgeschichte (2d ad.), 603: "the politisobo Befitgnisse der Laudgomeinden,yaron zn spitrilelt und si,id wohi noah in split mr Anerkennung gelangt, aledss do schon bei tier Ausbildung der ilthsten Stadtvorfa8snngon hitten inGewieht fallen k'dimen."

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questions which even an outsider may press upon the at-tention of those immediately engaged in the discussion.

First, then, as to the Laudgerneinde, the Ortayemeinde,the rural township or village. That many towns grewout of villages, the agricultural character of the interestsof the smaller towns of the Middle Ages and the survivalof agricultural usages and manorial burdens similar tothose on rural manors, would seem clearly enough to in-dicate. But why should we suppose all towns to have soarisell? Make the breach between the Roman and themed ian'al world as great as we please, is it not allowableto think of the majority of the inhabitants of the "oldcities" of M. Flach, the Rbmerstddte of the Germanwriters, as all along different in their daily occupationsfrom the men of a country manor? And, limiting ourattention to those towns which did spring from ruraltownships or combinations of townships, the questionought to be faced whether there is any positive evidenceat all for the existence of free, "autonomous," "self-determining" townships in the period of the rise of thetowns. Accept, if you will, the view that the lord wasa comparatively recent usurper: still, there he was atthat time. And, if so, is it well.so completely to disre-gard him as such writers as von Below and Varges andKeutgen in effect do? But, if he is to be counted with,then the difference between the Landgemeinde view andthe Hof-systern theory of Nitzsch need not be so verygreat, after all. The difference would then simply resolveitself into this: that Nitzsch had in his mind the greatmasses of dependants, most of them not engaged inagriculture, at the large seigneurial establishments, whilewith the Landqerneitde we begin with a small body ofdependants, all of them engaged in agriculture, on a ruralestate.*

* Cf. my review of von Below's Ursprung in the Economic Journal, vol. iv.p. 272.

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The other part of the subject on which an economistmight venture to dwell is the much-vexed question of therelation of the "merchant" to the "craftsman," withwhich is closely connected the doubt as to the originalmeaning of mercator and Han/mann. Concerning the sig-nificance of these terms there is an amusing difference ofopinion. Some understand thereby any one who ever hadany oècasion to buy and sell in a town,* or, indeed, allwho had the riqltt to buy and sell,—i.e., all the townsfolk,- which is thought to be confirmed by the use of "merca-tores" and "burgenses" as synonymous in many earlycharters. Others regard the "mercator" as a professionaltrader, like the trader of to-day,—though his operationsmight frequently be very small,— and explain the use ofmercatores, ne,qotzatores, institores, for bur.qenses, as the re-sult of their prominence and their peculiar associationwith town life. It must be said that the particular bit ofevidence which now seems to lead many scholars to ac-cept the widest possible interpretation is singularly weakfor such a superstructure. In a charter granted by theabbot of Reichenau to the peasants of Allensbach in 1075occurs the phrase, "Omnibus oppidi villanis mcrcandi p0-testatem concessirnus, Ut 151 et carom posteri sint merca.torcs." This is usually interpreted to mean that thegrant iii some sense or other actually turned the villaniinto mercatores. But why can we not regard it as the ex-pression of a hope? Dr. Keutgen well points to definitionssuch as ".mercatores qui causa negotiandi vadunt et re-deunt" j- as showing that "merchants" were distinguished

4 ]3ucher in his Entstehung der Vol/cswirthschafl, 47, note, is particularlywroth with those who would make mercctor into a "Bornfs-Kaufmann." Heunderstands thereby "joder der mit seiner Weave zu Markte Annu l Indeed,his etymological observation - "Due hervoretechendeto Merkmal des Benifit-Kaufma-nns ill sOi,Ler Vorhltniss zum Publicum let nioht seine Gowohoheit xiikaufen sondern xc verkaufen. Und doch let der mittellilterllelao • Kaufman,,'each den, JSaufe,i bonannt! "—would seem to extend the designation to anyone who ever bought anything. It is a pity he cannot propose a like etymo-logical interpretation of 'mercator."t tInt ersuchungee, 190, note.

M

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from persons who stayed at home and occasionally soldtheir own produce. Moreover, no one seems to deny thatthe "mercator" of Carlovingian times was a wanderingprofessional tTader ; and it would be strange, indeed, ifthe word afterwards underwent so complete a change ofmeaning as to rob it of almost all economic significance.

Whatever else they may think of the meaning of mer-catores, most writers have no difficulty in believing that atfirst it included craftsmen. Suppose we allow that itincluded all who had frequent occasion to buy and sell.Did the earliest craftsmen have occasion to buy and sell?M. Pirenne, as we have seen, thinks they did; that laterthey became mere wage-earners, and then ceased to buymaterials or sell finished goods, and so needed no longerto belong to the merchant gild. It must be confessedthat there is something in the economic condition ofM. Pirenne's country - Flanders - in the fourteenth cen-tury to lend some color to this explanation. The crowdsof weavers and fullers and dyers of Ghent have alwaysseemed rather hard to fit into "the gild system" frame-work. But elsewhere, surely, the movement of things wasjust the reverse of what M. Firenne supposes. The latestinvestigations into mediasval industry are rendering itclear that the medituval craftsman worked at first on thematerials of an individual customer, often at the cus-tomer's own house. Down to the close of the MiddleAges scores of craftsmen never bought materials or hadwares to sell; e.g., those engaged in various branches ofthe building trades. Nevertheless, after a time many,if not most, craftsmen did come to manufacture wares forthe general market out of their own materials. That thisproduced friction with the merchant-gild, both in Englandand Scotland, we have good reason for believing, andthe play of economic forces oil continent could hardlyhave been essentially different. May not the key tosome difficulties in medideval economic, and therefore in

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medival constitutional, history be found in the proba-bility that it was only as and when craftsmen desired todispense with intermediaries in their buying and sellingthat any antagonism would arise between merchants andcraftsmen as such?

Reviewing the discussion as a whole, with all its fine-drawn distinctions, the economist will perhaps arriveat the paradoxical conclusion that what is first of allnecessary is that distinctions should still further be drawn,and one in particular. It is one of the chief services ofvon Below that he has impressed upon us the necessityof separating the question of the forces which led to con-stitutional change - one often of economic history - fromthe question of the structure andderivation of the consti-tutional forms themselves, which is one of legal or con-stitutional history.* But we must go further, and distin-guish provisionally between the town (Stadt, yule) as alegal conception and the town as an economic conception.Usually, the two meet. What was economically a townwas, as a rule, legally (or constitutionally) a town. Butit was not necessarily nor universally so. And the dis-cussion on both issues really turns, in large measure, ona question of definition. What shall we agree to call a"town" economically, what constitutionally? Until wehave come to some common understanding on these points,there is always the danger of arguing in a circle.

These preliminary notions having been cleared up, thework of historical construction can safely begin. Andin this, in spite of the example to the contrary of all thefour scholars we have here been following, the path ofsafety would seem to lie in a rigid observance of chrono-logical limitations. To leap, as some writers do, froma document of A.D. 900 to one of A.D. 1350 is certainly

Siadtvcrfassung, 12. Vet, B dow hardly, perhaps, recognizes that, whilethis distinction is useful, and indeed eagential for clearness of thought, theanswer to the one question has commonly a very direct bearing on the answerto the other.

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dangerous. Not that there is no weight in the argumentthat the conditions within small towns in later timesmust have resembled those centuries beforein what after-wards became great towns, because "every town was oncesmall."' It is very probable that there was somethinglike a natural evolution of town life, whereof the earlystages are concealed from us, in the case of the greatertowns, by our lack of evidence, but fully revealed in thelater and smaller. Yet it is clear that the men of latercenturies must have lived in an atmosphere of ideas towhich the earlier development of the larger towns hadalready given rise, and these ideas must have influencedtheir action. Until, then, the main lines of the earlierhistory have been retraced from contemporary sources, itwill be wise to observe a self-denying ordinance in thematter of using later documents.

* Von Below, Stadtverfassung, 4; S!adtgemdnde, 114.