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often indeed demanded no services at all, even relinquished dues, expecting to gain the material result in another way, through market tolls and the like, since the slightest possible ties and obligations on the part of individuals served most effectually the general economic prosperity of the seigniory.
Still even the older urban community bears a seigniorial character. It is not to be supposed that originally a free community existed, which only later received a lord as lord of the community, in order still later to free themselves again. All the special rights which in the older days were granted by the king were always granted to a lord, never to a community. The free burgher community is a later institution, which sprang from the autonomy granted the inhabitants by the town lord, and from that co-operation and self-direction observable everywhere in Teutonic and Germanic community life. The law of the market settlement, municipal law, is built upon the legal basis of a lordship; the town of the olden time is a seigniorial institution. It is distinct from the ruralagricultural institutions of the seigniory; it is established as a differing institution alongside of those which minister to seigniorial authority in the narrower sense. But the distinction was not made because the lord as proprietor exercised here public and there private prerogatives, for both prerogatives appear in both spheres, but because the difference in economic conditions demanded a different handling of the two spheres of lordship, the urban and the rural. And since the distinction is to be conceived as only the natural result of the differing economic requirements, we encounter no absolute and impossible separation of the two spheres of authority, and find almost universally a certain connection between the urban and the manorial administration of the lord. Thus not only were the seigniorial officials of the lord's court active in the city government, but burghers could owe service to the manor. We do not need the artificial explanation that the notices of payments made to the manor by burghers mean imperial taxes or dues to the lords of the community. Men liable to manorial service were not shut out from participation in urban life. If we consider as manorial law (Hofrecht) the law issuing from a manor, and regard as subject to manorial law all who in matters of tenure remained under the jurisdiction of the manorial court, then it is to be insisted upon that municipal law and manorial law were not in principle mutually exclusive.
Naturally it was customary for the city-lord to refer jurisdiction in those questions of tenure, which applied to his parcels of land within the civic bounds, to the seigniorial tribunal especially competent in urban matters, the city court. But he could also take another course. When a civic settlement had its roots in an older agricultural one, the old bonds could still hold good, and the burghers, spite of municipal law and civic associations, remain legally bound to the manor. Or in a case where the lord of the town subsequently allowed the citizens to settle on his land, which at first he had left unencumbered by market settlement, he could erect a special seigniorial court, thoroughly in harmony with burgher existence and burgher law.
It must, however, be noted that even though it be unnecessary to distinguish fully and fundamentally between the domains of manorial and municipal law; even though we must admit the possibility of a mutual overlapping of these domains, this by no means should revive the notion that municipal law developed out of manorial law. That which created the special municipal law and the burgher community did not descend from manorial law. Those elements of seigniorial authority which had special sway in the life of the town could have sprung from the soil of private rights, just as little as from that of a communal power. They have, rather, their source in the royal authority, in the rights granted by the king. From this source came that out of which were born the special burgher and urban spheres of jurisdiction.
It is, then, conceivable that as a special sphere of lordship the town was founded and fostered alongside the older sphere of seigniorial authority. Influences of the older seigniorial organization are, indeed, not wholly wanting—it is impossible that they should be; but from the nature of the case this influence was unimportant.
Quite different were the relations to territorial sovereignty (Landeshoheit). It is indeed beyond doubt that the power of the sovereign lords was not of a seigniorial nature, and not to be conceived of as a development of seigniorial power; that it derives rather from governmental rights, possessed originally by the great Frankish local officials, especially the counts.
Surely it is correct, and it is generally recognized as deserving strong emphasis, that the vague and obscure notions of seigniorial authority as the cradle of state-building should be quite swept away, and that the true legal contimity should be clearly and sharply pointed out.
But the clearing up of the legal relationships does not suffice for the comprehension of historical phenomena. The notion that the power of territorial sovereignty legally had its origin in the state is undoubtedly correct, but it by no means fully explains the forces potent in the establishment of states. It was long since recognized that the territories by no means always corresponded with the old official jurisdictions, the duchies, counties and hundreds; that much more frequently a correspondence appeared with institutions which originated in forces outside the state. Such observations led to the idea of the universally productive force of seigniorial authority in the formation of states.
To the question whether seigniorial authority exercised an influence we must answer as follows: Seigniorial authority in and of itself did not; its scattered position was enough to make that impossible. But where seigniorial authority developed into a compact ban-lordship, an influence was possible, and it was a very important influence from every point of view.
When ban-lordships had won wider public rights, jurisdiction over life and death and other powers, the sum of which led to sovereignty, when they had emancipated themselves from superior authority and shut out lower authority, they were able to become elements in state-building; adding themselves as new parts to more extensive states, or forming the beginnings of small independent states. Already in the tenth and eleventh centuries, not a few of what were later counties rose from such lordships, and not merely from the partitioning of the old gau-counties and the uniting of fragments of old counties.
Moreover the ban-lordships, even when the process of emancipation from a superior authority was not a success, and when they had acquired inferior jurisdiction only, played an important role in public life, as patrimonial lordships of various kinds in the states, or as administrative districts of the princely government. For it is especially to be noted that these lordships exercised no little influence even in the great territories which grew out of the highest local offices of the empire, the duchies and margraviates, and that they helped determine the local organization of the government of the country.
It follows, then, that the “lordship" influenced the development of state institutions in two ways. First in the distribution of the public power among the smaller districts, i. e., during the building up of the states; next, in the organization of public functions within the states. In so far as these “lordships grew out of the seigniorial organization—and this was really their source—the old seigniorial system lived on in state life and influenced the later institutions of the state. To make these connections clear, and to establish the degrees of influence in the different spheres, is a fascinating and an important historical problem, and one as yet only partially solved.
A few closing words. In the early Middle Ages, the empire formed the German state. To be sure, it was a state quite unlike the state of later centuries and the state of to-day. To be sure, it was not so positively characterized as later by the conception of a political personality, the idea of a community complete in itself, and from its very nature, independent of kinds of government. To be sure, the notion of political lordship then attached itself chiefly to the person of the ruler, and therefore permitted and required a private administration of public powers, an alliance of the state with private lordship. It was not in the cities that first arose a conception of the community, of a commonwealth independent of the lordship of an individual. This already existed in the Imperium and the Regnum, and, though churchly influences may also have contributed to it, the basal idea of a political community self-established and independent of the individual relations of the ruler was already operative. It was for this reason that the state was never fully broken up into the dominions of private lords. In this sense Germany was never fully feudalized; the separate character of the more important rights derived from the state continued intact, in spite of all private administration; always there remained an association of political functions with the empire, not alone in affairs of high justice through grant of criminal jurisdiction, but also through the superintendence of the king, through occasional putting aside of the royal authority, through effective consciousness that the king was the real source of all political powers. King and empire remained living central powers.
But alongside of the state are at work other possessors of political functions which we are wont to look on as belonging to the state; especially (I omit all mention of the church) private lordships and corporations, notably communities. It is characteristic of the earlier periods of German history that alongside the state and its organs or deputies, private lordships, too, and corporations (communities) were independently active in the life of society. The reciprocal relation was unsettled, the functions were fluctuating, but they existed as historical forces. And the powers of the three combined in manifold ways; fragments of authority cut away from the empire, functions previously attached to some office, were joined with private powers, private lordships with functions that originated with the commune, and the like.
Combinations of this sort appear also in the building up of new institutions, which begot a more intensive politico-social life; in the formation of territories and towns. It is surely an important historical problem in what ways the state, private lordship and the commune shared in laying the foundations of the new order and in its development. It is in general quite possible to determine, what has its origin in the state, what in private lordship, especially in seigniorial authority, and what in the early communes; how the old allies itself with the new and begets the new. At any rate, this much is wholly clear: all the essential elements which came to development in the states and the cities, and which lay at the root of new political institutions, originated in the ancient state, in the empire. They are the powers of the empire transferred or carried over to local spheres. That is an assured foundation of research, and should be adhered to in the face of many other opinions. Not from a private, and not from a separate corporate or communal power, do the elements derive which, fostered in towns and territories, have opened the way to a more intensive social life. They have their origin in the empire, in the early state. Elements of the old state have created the bases of the new. These are well-established sequences in the history of law and authority.
But just as the old ideas of corporation and community won a real influence in the German town, although the distinct legal organization of the town did not spring from the soil of a distinct communal power, so the private lordships, the seigniorial authority, exercised an influence on the development of the territories. Seigniorial authority, especially when developed into ban-lordship, was often able to furnish the outer framework for the new territorial institutions or for the administrative circumscriptions within the states; its own organization lived on in the later institutions of the several states. That is its not inconsiderable part in the foundation of the new public powers in Germany.