1 The Towns and Cities of ‘Younger Europe’
It is no exaggeration to say that the intellectuals and theologians of the Middle Ages were firmly committed to a vision of a harmonious and static society, divided into three, mutually dependent segments, that is, those who pray, those who fight, and those who work (those who are responsible for communal food production). However, in the 12th–13th century, this simple model came under pressure, not least because of the rise of a new class of wealthy burghers and merchants.1 The compilers of the Ius municipale Magdeburgese sought to address this difficulty by declaring in one of the articles of the Constitution of Courts (Rechtsbuch von der Gerichtsverfassung)2 that the urban law originated in ancient Babylonia and was reinstated upon a plea from the Magdeburg merchants by the Holy Roman Emperor.3 Another paragraph of that Constitution invokes a vision of the Magdeburg Law spreading in the north-eastern periphery of the Empire – that is, in the Marches of Meissen and Lusatia, the Lands of the Bohemian Crown and Poland – where it was adopted as a model for the emerging urban communities.4 The territorial expanse of the new law indicated in this passage contains a vital historical clue. In the territories inside the limes of the ancient Roman Empire nearly all post-Roman cities (coloniae) went through a phase of dramatic decline, but the lines of continuity with the past were rarely broken off completely. In Italy, Southern France, and Catalonia, the legacy of Roman law was alive and well when the universities rediscovered the Justinian Code in the late 12th century. The situation was different in the new states in West Slavic Central Europe, with no existing tradition of Roman urban life. As local and international trade began to pick up from the 11th–12th century onwards, this part of Europe saw a dynamic growth of new settlements of a proto-urban character. Unlike the traditional farming settlements, their economy depended on trade (often institutionalized in the form of regular market days) and artisan production.5 It should be made clear, however, that they were not towns in the sense in which the term was used after the adoption of the Magdeburg Law.
With the conversion of Mieszko I to Christianity in 966, Poland became one of the key nations of ‘Younger Europe’.6 Two centuries later, when Europe entered a period of vigorous social and economic expansion, Poland was a monarchy in the midst of a process of feudal fragmentation. The idea of the unity of the Kingdom of Poland – formally established by the royal coronation of Bolesław I the Brave in 1025, and reaffirmed by the subsequent coronations of his son Mieszko II in 1025 and Mieszko’s grandson, Bolesław II the Bold, in 1076 – was never called into question, although the royal princes of the Piast dynasty ruled their provinces independently of the Senior Prince, who nominally was to have supreme power over the rest. The restoration of the unity of the realm under a crowned monarch remained a distant objective until the end of the 13th century, when coronation was brought back as a trump card in the political power play. In the end, centralized monarchy was restored for good by Władysław I Łokietek (literally, Władysław I the Elbow-High), and from his coronation in Cracow in 1320 until 1795, Poland was ruled by a succession of crowned kings. However, the newly restored Kingdom of Poland did not include Silesia, which was divided into numerous principalities whose Piast rulers had become vassals of the King of Bohemia.
The emergence of ‘new’ towns (i.e. communes striving for self-rule) in Poland under the Piasts was no doubt enhanced by the influx of migrants from Western Europe, a process that reached massive proportions in the 12th and 13th century. The settlers brought with them a law code that at first applied only to them, but was soon found to be so attractive as to be worth adopting for the townspeople at large. In the Kingdom of Poland, the legal status of urban settlements under Polish law was inadequate to address the new realities. The new settlers, accustomed to greater personal freedom, were not fond of such a model. It was also made obsolete not only by the changing demographics, but also as a result of the development of markets and the rise of a money economy (the old system was based on rents in kind and labour or military service). Yet another factor which accelerated the pace of transition in the 12th and 13th centuries was the fragmentation of the kingdom and the growing role of the Church and local elites. The fragmentation made it easier for Church institutions, local landlords, and towns to obtain more grants and privileges from their territorial liege lords (the princes) – most importantly, judicial rights. While the landlords profited from having a share in the fines and fees imposed by courts, they had to ensure the functioning of a system of justice that was fit for purpose.
The law code brought by the new settlers appeared to be the best solution to this problem. The choice of the so-called German law (ius Theutonicum) was only natural given the proximity of Magdeburg, the most dynamic centre of the new urban law in Eastern Germany. The successful expansion of the Magdeburg Law in Central and Eastern Europe is due to its three key characteristics: 1) guarantees of personal freedom, including the right to move elsewhere as long one has paid one’s taxes; 2) a detailed, written catalogue of duties of both parties of the contract, the owner and the residents, including the burghers’ hereditary right to their plots of land; and 3) a collegiate court system, in which the owner delegated his feudal rights at first to a magistrate invested with judicial powers (Pol. wójt, Ger. Vogt, Lat. advocatus) and jurymen, and later to the Town Council, which was a fully self-governing body.7 These principles constitute the essence of ius Theutonicum, yet, in the historical realties of the 13th century, in many places it took a long time after the foundation of a town under Magdeburg Law until it was absorbed into the provisions of civil and criminal law and judicial procedure.
In Poland, the first town founded under German law was Złotoryja (Goldberg, 1211). From that date onwards, chartered towns sprang up one after another, first in Silesia and then in other Piast principalities. In the 14th century, after the kingdom was reunited by Władysław Łokietek (1306–1333) and during the reign of his son Kazimierz the Great (1333–1370), the influx of new settlers from the West into the newly founded towns dropped off markedly. The ‘colonization’ continued, but its character changed. Now, the new settlements were usually built in underdeveloped areas, de cruda radice, and the settlers were recruited from Poland; alternately, existing settlements with a Polish population were chartered under Magdeburg Law. Meanwhile, the process of setting up new towns and villages under Magdeburg Law disseminated to other parts of the Kingdom of Poland and to other countries of Central and Eastern Europe.8
2 The Saxon-Magdeburg Law and the Municipal Law in the Kingdom of Poland in the 13th–16th Centuries
The foundation of a town under Magdeburg Law doesn’t meant that the new legal order was adopted immediately or in its entirety by the new community. The implementation of specific regulations that – by modern standards – belong to the sphere of civil and criminal law, judicial procedure, and the constitution of courts typically took quite a long time. Moreover, municipal law in its advanced form (although, to be fair, it did not reach that stage until the turn of the 15th century) was a conglomerate of heterogeneous elements of which the provisions of the Saxon-Magdenburg Law was a vital part, but not the only one.
2.1 Municipal Law: Sources of Polish Provenance
Irrespective of the owner of a town (e.g. the crown, members of the nobility, or the Church), all towns remained under royal jurisdiction. The right to establish a new town under German law belonged exclusively to the king (who issued the appropriate royal charters on an individual basis, as privilegia).9 His consent had to be sought for the right to hold fairs and fix market days, collect road tolls, and impose compulsory depot (whereby travelling merchants had to offer their cargo for sale during a specified number of days).10 By the 15th century, towns had also come under the jurisdiction of the Polish Parliament (Sejm). For the most part, parliamentary legislation dealt with fiscal matters and military service, although it also includes certain regulations concerning trade and criminal law.11 The town owners, too, retained the right to make law. Statutes issued in their name dealt primarily with the town’s economic life; occasionally they amended some provisions of the existing civil and criminal law. The towns – that is, the town councils – enacted their own statutes (wilkierze, Ger. Willküren), chiefly to regulate trade and the functioning of guilds. Apart from written law, custom and customary law still played a considerable role in the daily practice of the municipal courts.12
2.2 Sources of the Saxon-Magdeburg Law in Poland
As it was shown, sources of Polish provenance played an important role in the shaping of urban law in medieval Poland. However, its basic structure was made up of the Magdeburg Law,13 whose reception was by no means straightforward. Its more systematic adoption, expansion, and adaptation took place in a number of mutations and phases. In general, we can distinguish four variants of the Magdeburg Law functioning in the Kingdom of Poland. Three of them stemmed directly or indirectly from the judgments (the case law) of the Magdeburg lay judges’ bench: the Magdeburg Law, the Law of Środa, and the Chełmno Law (a.k.a. Der Alte Kulm). The Chełmno Law was common in the north of Poland (although a handful of Northern towns adopted the Lübeck Law). The trajectory of the Chełmno Law begins with the incorporation of Chełmno (Kulm) in 1223. Its charter stipulated the creation of a bench of lay judges, a collegiate institution of justice, with competences similar to those of the Magdeburg Bench. A distinctive feature of the history of the Chełmno Law was the striving for collating and codifying the various updates and amendations. The product of these efforts was a law code known as the Old Chełmno Law (Der Alte Kulm), which included, among others, the case law of the Magdeburg Bench. That case law can also be found at the heart of the Law of Środa, which spread out into Southern Poland, even though it was not borrowed directly from Magdeburg. The intermediary was Halle, a town in the Archbishopric of Magdeburg, which supplied the founders of Środa (Neumarkt in Schlesien/Novum Forum, 1235) with a model to copy in Halle’s Legal Instruction for Środa Śląska (Hallische Rechtsmitteilung für Neumarkt).14 In the 14th century, as the town received a new charter, the Law of Środa was supplanted by a modernized version of the Magdeburg Law, which provided for the creation of a town council.
At the core of the Magdeburg Law, which by the late Middle Ages had disseminated from the Elbe to the Dnieper and from the Baltic to Transylvania (Siebenbürgen), was the case law of the Magdeburg Bench.15 The Magdeburg Bench was the lay court to which the towns incorporated under German law turned for explication and interpretation of the law in difficult cases. In Polish, the rulings of that court were commonly referred to as ortyle (Ger. Urteile). While in some regions this practice continued until the first half of the 16th century, in Poland, King Kazimierz the Great sought to weaken the dependence on Magdeburg by establishing a High Court of German Law in Cracow in 1356. However, the new court did not succeed in completely displacing the traditional practice, as some Polish towns are known to have kept up the Magdeburg connection well into the 15th century. In their rulings, the lay jurors of Magdeburg depended primarily on the Sachsenspiegel (Speculum Saxonum), a record of Saxon law written in Latin (the original has not survived) and translated into Middle Low German around 1220–1235 by Eike von Repgow. Although the Sachsenspiegel covers only common and feudal law, and its suitability for matters of urban law is limited, it came to be regarded as the authoritative legal code in all towns chartered under Magdeburg Law. Its reception was rapid and widespread, as shown by a significant number of extant copies in Germany, the Kingdom of Poland, and other countries of Central Europe. This fact justifies the use of the term ‘Saxon-Magdeburg Law’.
The jurors of the Magdeburg Bench not only answered questions on specific legal points, but also compiled and sent out legal instructions. Thus, for instance, they sent two sets of such instructions (Rechtsmitteilungen) to Wrocław, one in 1261 and the other in 1295. Wrocław (Breslau) was just one of the many places where the Magdeburg instructions and judgments were combined with regulations from other sources, including the Sachsenspiegel, to produce an astonishing variety of compilations and adaptations. At the earliest stage of the process of compilation and consolidation of the law’s text, we can identify three landmark compilations: 1) the Constitution of Courts (Rechtsbuch von der Gerichtsverfassung, c. 1257–1262), a relatively short text which on the whole retained its integrity when copied; 2) the Magdeburg Bench Law (Magdeburger Schöffenrecht, c. 1270), an open-ended collection which was re-edited by copyists and used selectively during the process of transmission; and 3) the Weichbild, a comprehensive compilation meant to fix the law – which it generally did – while in fact spawning hundreds of manuscript copies which, it seems, never reproduced the received text without altering it, however slightly.
The end of the 13th century saw the creation of an important mutation of the Magdeburg Law that appears to have spread in Silesia and then to southern Poland (hence term ‘the Silesian-Małopolska compilation’, used in this study) even before it was incorporated in the Latin compilation by Konrad of Opole in 1306. Also known as Ius municipale Magdeburgense, Liber primus iuris municipalis, the Magdeburger Weichbild, and the das Sächsische Weichbildrecht it became, thanks to the Latin translation, one of the key sources of the Saxon-Magdeburg Law adopted by Polish towns. In fact, the Weichbild, the Sachsenspiegel, and the Magdeburg lay judges’ case law (ortyle), in either version (i.e. the Latin or the vernacular), constituted a trio of prime sources of law in the Kingdom of Poland. The most dynamic element of the system, the Magdeburg Bench case law, was given no less attention than the other two, as shown by the circulation of the German-language collection Die Magdeburger Fragen.
In collections of the Saxon-Magdeburg Law which contained all three of those source texts, the Weichbild was usually called liber primus and given pride of place.16 This should come as no surprise. The Weichbild contains a body of regulations concerning urban institutions and their competences, the structure of municipal courts, judicial procedure, the normative framework of commerce and trade, and practical points of criminal and civil law. Along with the Sachsenspiegel, the Lübeck Law, a handbook of Roman and canon law, and the treatise Summa legum levis, brevis et utilis by Raymundus Parthenopaeus, it found its way into the definitive edition of Poland’s laws – Commune incliti, compiled by Jan Łaski, Grand Chancellor of King Alexander Jagiellon. Published in 1506 with a royal imprimatur, it was the first authoritative version of both the Weichbild and the Sachsenspiegel to be printed in Poland.
3 The Magdeburg Weichbild in Poland: A Reassessment and a New Research Agenda
The Magdeburg Weichbild is perhaps the only major medieval legal text which has not been the subject of a comprehensive monographic study in Poland.17 Nor has research outside Poland shown more sustained interest in the Weichbild texts used in this country;18 important work in this field comes from the 19th century, and – for all its worth – it has become outdated in numerous ways.19 In recent studies, while the importance of the Weichbild for the expansion of the Magdeburg Law is fully acknowledged,20 it is usually assumed that it was due solely to the spread of the vulgate and its direct textual offspring.21
This claim, which, I believe, is an unfounded assumption, can in fact be verified – provided that the relevant evidence is gathered and thoroughly examined. This study is an attempt to do just that. Its aim is to demonstrate that the single-line-with-deviations model of the Polish reception of the Weichbild is untenable. I will focus on a selection of 21 Latin texts which, I believe, hold vital cues both to the expansion and use of the Saxon-Magdeburg Law and to the number and characteristics of their German-language antecedents, both extant and presumably lost. A close analysis of the Latin texts is crucial for tracing the network of variants which form the true history of the Weichbild in Poland. The number of extant German manuscripts is relatively small, and only four of them comprise the full text of the Silesian-Małopolska compilation, previously also known as Konrad of Opole’s compilation.22 For this reason, I do not focus on the vulgate Weichbild popularized in Poland by the Latin translation by Mikołaj Jaskier in 1535. My approach is justified by the fact that Jaskier worked with a vernacular text that differed considerably from the text that had been the basis of the Silesian-Małopolska compilation and was continually modified by its medieval copyists. In so far as his translation breaks with the traditional chain of a transmission, it marks an important fault line in the early history of sources of urban law in Poland. My study explores the terrain on the other side of this divide.
4 Sources and Periodization of Urban Legal Studies
The history of urban law in medieval and early-modern Poland can be divided into periods with a somewhat fluid border line in the early 16th century. The pioneers of change are Mikołaj Jaskier, whose revised Latin edition of the Saxon-Magdeburg Law began to displace older legal texts,23 and Bartłomiej Groicki, the author of the first compilation of municipal law in Polish. Paweł Szczerbic’s translation of Jaskier’s books in 1581 sealed the transition at the heart of legal apparatus from Latin to Polish. The process of change started with an overhaul of the sources of law in the early 16th century and proceeded rapidly after 1535 (the date of publication of Mikołaj Jaskier’s glossed editions of the Magdeburg Weichbild and the Sachsenspiegel), reaching out gradually from the sphere of codification to the practical application of the law by the courts. At the same time, the traditional, medieval compilations of Saxon-Magdeburg Law fell into desuetudo (they were not longer in use), not least because the pace of social and economic change made them increasingly obsolete. That may perhaps be the reason why the arrival of the mass-produced copies of a standard normative text (whose uniformity was guaranteed by print) did not stifle demand for codes of law other than a refurbished Weichbild or Sachsenspiegel. Arguably, there was more to the rising demand for Groicki’s treatises than their handy format and the fact that they were written in Polish. After all, Paweł Szczerbic was the first to publish the Saxon-Magdeburg Law in Polish and to arrange its contents in alphabetical order, and yet his book had not gained as much popularity or respect as Groicki’s treatises, which went through several reprints by the end of the century. What may have contributed to their extraordinary popularity was the inclusion of legal acts supplementing and amending the Saxon-Magdeburg Law, that is, the municipal statutes of the Cracow Town Council (wilkierze), a broad selection of royal legislation, and an adapted version of the Constitutio criminalis Carolina. The latter offered the legal practitioners a model of criminal procedure in keeping with times; it stood in sharp contrast to the Sachsenspiegel and Weichbild’s privileging of judicial combat and oaths.24 The claim that the 16th century saw a radical break with an earlier form of urban legal culture – characterized by manuscript transmission of sources of law, the proliferation of differing compilations of the Saxon-Magdeburg Law, and the absence of the Polish language in the court records – was convincingly argued by Stanisław Estreicher.25 This study looks back to that earlier phase which, however, continues beyond 1506, which marks the publication of Jan Łaski’s Commune inciliti. In fact, the ousting of handwritten texts of law by the uniform printed text proceeded gradually for the following thirty years, that is, until the publication of Jaskier’s edition of the Weichbild. The year 1535 is thus a natural terminus ad quem of this study, even though Jaskier’s book will still have to wait for its own monograph. It requires separate treatment because – unlike earlier versions of the Saxon-Magdeburg Law used in the medieval Kingdom of Poland – its chief source is the vulgate Weichbild from Germany. Moreover, it includes glosses that are not to be found in any medieval Latin text of Polish provenance.
5 The Evolution of the Legal Text and the Process of Adaptation of the Magdeburg Law
A thorough, comparative study of the Weichbild corpus should not only help to clear up various text-critical points, but should also help to seek answers to some important questions that are normally not raised in analytical research of the kind. What were the reasons for the wide discrepancies between the texts in use? What were the consequences of the lack of a standard normative text for contemporary legal practice? What was the impact of the appearance of the normative text in a standard printed form26 for the evolution of legal culture?27 After all, the Weichbild, as any legal text, can be regarded as a reality-creating instrument in the sense that a change in a normative text – once it is implemented in practice – has an impact on the extratextual reality. Consequently, these questions focus our attention on a broader issue connected with the development of Polish urban law, namely, the process of adaptation of originally foreign imports. The continual evolution of the legal text in medieval culture is beyond question. What requires explanation, however, is the character of that evolution, especially as there is a plethora of apparently random differences between individual manuscripts. It seems that a careful comparative study of these, often relatively small, differences, may shed light on the evolution of the Weichbild in Poland in its true complexity. An initial stage of such research necessitates cataloguing the extant texts, establishing their distinctive characteristics, identifying the leading Latin translations, and establishing the differences among the texts. The results of such research could then be used to trace the history of the Weichbild texts in Poland by mapping their lines of transmission from the German base texts to the point where that diversity was streamlined into a single authoritative printed text (that of Jan Łaski’s Commune inciliti, a.k.a. Łaski’s Statutes). A key premise of this investigation is the indisputable fact that the earliest German-language manuscript of the Weichbild (dated 1308) believed to be the base of the Silesian-Małopolska compilation is markedly different from the Latin text of Commune inciliti.
While committed to the idea of an evolving Weichbild in the course of its reception in Poland, this study challenges a tacit assumption that the evolution of the Weichbild text of the Silesian-Małopolska compilation was unilinear. First of all, there are very few extant copies of the Weichbild itself. Most of them have probably been damaged due to heavy use, and those that did outlive their time were probably discarded after the arrival in the 16th century of the new text in print. In effect, the dearth of extant manuscripts makes the construction of a credible stemma (i.e. a manuscript pedigree chart) impossible. Secondly, no pairs of the manuscripts in our database are perfectly identical. The differences that conferred on each of them their individual profiles could have been either deliberate/intentional or accidental/unintentional (e.g. a scribal error replicated by successive copyists). Over time, as new manuscripts were produced, these differences created an endlessly permutating body of texts, so numerous and diverse that Łaski and his collaborators would in no way be able to get hold of them, let alone collate them for his edition. So much for the claim that Łaski stands at the end of a tradition, bringing together and enveloping all that went before him. Nevertheless, I will argue that he and his team did find and recognize the importance of two texts representative of two branches of the Latin version of the Silesian-Małopolska Weichbild. Another claim raised in this study is that a considerable portion of lexical variants of the Magdeburg Weichbild is intentional. They should be interpreted as evidence of the adaptation of the Weichbild to its new historic environment and its needs, or, more broadly, as opening an insight into the interaction of an evolving legal text and a society (or at least part of society, i.e. the urban community) in the process of change.
6 The Trap of Legal Positivism, or the Instruments of Historical Legal Studies
The study of manuscripts containing legal texts involves not only a careful comparison and explanation of textual variants, but also reckoning with two important issues: the potential practical effect of any significant revision of the parent text and the reasons which may have prompted the introduction of such modifications. Probing those issues can be difficult and problematic. To begin with, it is not always possible to decide whether an omission was deliberate or whether it should be put down to scribal error. Furthermore, the use of methods of modern grammatical interpretation for the exegesis of medieval texts is open to all kinds of doubt. Can we be sure that any particular revision of the parent text, which to the modern reader looks like an attempt to amend the law, was indeed seen in this way by its author? Why not assume that the copyist had no intention of influencing the functioning of a legal institution at large, even if his copy has numerous amendations, albeit of little significance? These are tough questions, but they are legitimized by the assumption that the copyists (who were often editors and compilers, as well) were intelligent graduates of the trivium (grammar, logic, and rhetoric).28 They would therefore know the difference between non plus quam tres solidos (no more than three solidos) and minus quam tres solidos (less than three solidos) – a pair of phrases that crop up in the derivative texts of the Weichbild. Indeed, for many of those in charge of the administration of justice, this distinction would simply mean that petty theft committed at night was to be punished ‘in skin and hair’, but when the value of the stolen property was considerable, the culprit should be sentenced to death. The point of this observation is that even in interpreting an obvious amendation, we must not jump to conclusions about its practical effect. At the same time, relying on common sense does not absolve the researcher from a scrupulous collation of all the textual variants which may have affected the construing of the underlying legal provision. The questions of whether and how a given provision was used in practice cannot be answered without a point of reference, that is, a ‘standard’ version which is then subject to a series of modifications. Medieval law is usually treated as a body of rules that were fuzzy because their precise meaning was not fixed until the trial, that is, when the construal of legal provisions would depend on circumstances or the tribunal taking into account some special considerations (like blunting the tools of criminal justice in the interest of peace and reconciliation).29 This study, however, deals with the ambiguity, or malleability, of medieval law at the stage of transmission (i.e. the copying of manuscripts).
The problem of preserving the integrity of the original text and its copies was crucial to all spheres of medieval written culture, from law through theology and philosophy to religion.30 In the case of law, the multiplicity of texts can be accounted for by the adage habent sua fata leges (laws have their destiny), in which the fata refers to the fortunes of the text after its creation regardless of its composition and the establishment of the base text, for example, by writing down customary law or by an imprimatur granted by an official authority. However, whereas the text of a book published under official licence cannot be changed (just as in the continental system it is not possible to change the law without going through clearly defined procedures), the legal text recorded in the manuscript was subject to continual modifications which were not necessarily authorized by institutions vested with significant legislative authority.31 To some extent, the endless stream of modifications of received texts resulted from the need to interact with customary law – whose hold was still considerable. But in the main, the proliferation of variants was an inevitable part of the process of copying manuscripts, correcting an existing text, producing syncretic compilations, or starting translation projects aimed at making a legal text more accessible in another language. If the function of the normative text is to have an impact on reality, the effected changes must have consequences for the effect and implementation of the law. While in a positivist legal culture, lawmaking has to go through three separate stages – enactment, entry into force, and application of law – in the medieval world, there was a lot of feedback. The legal text was modified while being copied, and the law was implemented almost as soon as it was written down, each new copy claiming no less authority than the one it replaced.
Not only jurists, but also all who rely on the law, have a deep interest in its stability and integrity. A good illustration of this basso continuo of the history of law and institutions that depend on a legal code is the case of the Catholic Church, with its striving to safeguard the integrity of theological doctrine and canon law. In the history of the canon law, no work has been as important as the twelfth-century Decretum Gratiani. It was a concordance aimed at harmonizing a thicket of contradictory rules which had grown uncontrollably during the early Middle Ages, a period when the Church in Western Europe found it hard to contain the forces of decentralization.32 One aspect of the effort to codify and unify canon law was the overcoming of territorial divisions; another was the establishment of an authentic base legal text and the authorization of its exclusive use. In practice, the latter objective could only be achieved after the invention of print, which guaranteed the uniformity of all the copies of the text (in this case, the incunable edition of Corpus Iuris Canonici in the late 15th century).33 The supersession of manuscripts by print put an end to the practice of introducing informal alterations to the text of the law. However, it would be wrong to think of this development as a one-time event. This was a process that took decades everywhere, and the Kingdom of Poland was no exception. To explore the complexities of the transition from law in manuscript to law in print, it may be helpful to draw on Reinhard Koselleck’s concept of ‘sediments of time’ (Zeitschichten), or spatial time warps which are not engulfed by the tide of innovation,34 and to add a third to the two familiar dichotomies (customary law vs statute law and oral law vs written law)35 – that is, law in manuscript form vs printed law.
7 The Contents of This Study: An Outline
Chapter 1 presents the Silesian-Małopolska compilation against the background of other sources of the Magdeburg Law. Using earlier research as a starting point for a series of analyses of the German texts, I try to trace the dynamics of their evolution, never losing sight of the fact that this compilation – from the moment of its creation – was addressed to towns in Poland. In this respect, the Silesian-Małopolska compilation differed from the Weichbild vulgate, which was in use in Saxony and in other parts of Germany. However, this problem is of little consequence, as the legal practice of Polish towns relied on Latin rather than German texts. Manuscripts with the matching Latin text are discussed in the remainder of the chapter. As this book is principally a legal-historical study of the Weichbild, only minimal attention is paid here to the heuristic and hermeneutical critique of the source, let alone to the problems of authorship or provenance. Occasionally, however, interest in the circumstances of the text’s production can become quite keen, as in the case of the binding of the quires, scribal hands, or other details of the polymorphic manuscripts. All such information is necessary to ascertain whether the quire with the Magdeburg Law functioned prior to being bound into a given codex. Knowing this will bring us closer to the answer to the next question: what was the point or purpose of writing down collections of the Magdeburg Law?
Chapter 2 traces the evolution of the Latin text on the basis of a series of analyses. Their results are presented in three Appendices, containing a concordance table with the formal characteristics of the texts (inter alia, a list and the sequence of the articles), a table of variants in the Latin texts, and a comparison of the Latin and the German texts. Chapter 2 tries to answer the following questions: 1) what groups of texts can be distinguished within the pool of Latin translations of the Weichbild? 2) How did the Latin text evolve? 3) What drove the evolution of the Latin texts? 4) Which German texts acted as base texts for the Latin translations? 5) What are the distinctive markers (i.e. the signatures) of the individual translations? 6) What was the role of the German texts in the evolution of the Latin Weichbild? 7) What are the characteristic features of the extant Latin texts of the Weichbild? A series of detailed analyses in this chapter will provide the evidentiary basis for a reconstruction of the evolution of the Latin Weichbild in Poland.
Chapter 3 opens with an analysis of the Weichbild in Commune incliti. The goal of this analysis is to prepare a comprehensive assessment of the grand œuvre of Jan Łaski and his collaborators. The list of variants in the Latin text (Appendix 2) shows the relative proximity of other manuscripts to the authorized text of the Weichbild from in the Statutes. Łaski’s Weichbild is a culmination of the evolution of the medieval legal text and therefore can be used as a reference point for that evolution. In this chapter, this evolutionary process is traced within four thematic blocks (a similar arrangement can be found in any of major collections of the Magdeburg Law, such as the Magdeburg-Wrocław lay judges’ case law, the municipal law of Chełmno (Der Alte Kulm), and the Poznań Book of the Magdeburg and Meissen Law). The four thematic units are gathered under the following headers: 1) The town and its residents; 2) Crime and the process of proving it; 3) The family and family property; and 4) Debtor and creditor. While the discussion in Chapter 1 laid the groundwork for a reconstruction of the evolution of the Latin text in Chapter 2, Chapter 3 examines the consequences of amendments aimed at adapting the provisions of the Magdeburg Law to the needs of local legal practice.
Chapter 4 deals with various additions to the main text by its users, such as instructions, glosses, links, cross-references, and other annotations which indicate that the text was used in practice. They can be treated as evidence of the practical application of the Weichbild, although it is usually difficult to make out its intended purpose (i.e. to formulate the normative basis of a judgment, or to help the litigant in his argument). The clue may sometimes be offered by the provenance of the manuscript. In this way, the analyses of Chapter 4 link up with the general descriptions of the Weichbild manuscripts in Chapter 1. The bulk of the chapter is devoted to the analysis of glosses collected not only from medieval manuscripts, but also from several copies of Łaski’s Commune incliti. Without reaching out to the latter source, it is impossible to ask the question about the effect of print on the medieval legal culture.36
The concluding chapter recapitulates the findings of the preceding chapters and, using the story of the Polish Weichbild as a case in point, draws a broader picture of transition and historical change. One of main themes in this appraisal is the change of legal culture caused by the print-guaranteed standardization of the legal text. The Conclusion takes another look at the extraordinary trajectory of the Latin translation of the Weichbild in medieval Poland and reflects on the role of Cracow in the evolution of urban law and on the meaning of the terms ‘reception’ and ‘adaptation’.
The data which illustrate and underpin the argument of the book are collected in four Appendices. Appendix 1 is a concordance table matching the Latin and German texts examined in this study, including the primary sources of the Weichbild, namely, the Rechtsmitteilungen Magdeburgs für Breslau of 1261 and 1295; the Magdeburg Schöffenrecht; and the Constitution of Courts. Appendix 2 lists all the significant variants of the Latin texts using the earliest extant text as a reference. A comparative analysis of the Latin texts revealed that 220 records showed changes of legal provisions or modifications that were tantamount to distortion. The number of the records varies a great deal, depending on the feature used as the criterion. This could be the omission of a merely single word or, at the other extreme, the addition of a large chunk of text from a collection of the Magdeburg judgments (ortyle). Appendix 3 contains over 200 records selected for comparison of three Latin texts with their German matches. The point of the comparison is to assess the level of accuracy in translation. The reasons why those three texts were chosen rather than certain others are discussed in Chapter 2 (in brief, the choice was determined by the observation that the Latin texts could be classed into different groups). Appendices 2 and 3 are closely interconnected. The initial plan was to provide only one additional appendix. However, as the mass of data would have made it look rather clumsy and forbidding, the appendix was reframed and split into two.
As things stand, we are still missing a critical edition of the complete text of the Latin Weichbild that was used in the medieval Kingdom of Poland. This study attempts to repair this gap, if only partially, by publishing the earliest Gniezno manuscript. Moreover, by matching the text of the Gniezno manuscript with textual variants from other texts in Appendix 2, it offers the reader the basic corpus of the Latin Weichbild, a body of texts related to – but markedly different from – the vulgate. That being said, the appearance of this book does not obviate the need for the publication of a critical edition of the Weichbild, one that would be based on all its texts in their entirety (here, they are represented only by their textual variants, selected according to criteria adopted for this study alone). The need for a complete edition has not been abandoned – its time has simply not yet come.37
A recent trend in narrative and legal textual studies is the use of dedicated information technology (IT) tools and programs. In France, this kind of software was successfully employed in a research project whose aim was to compare the first edition of Machiavelli’s Il Principe to its 16th-century French translations.38 The software tool HyperMachiavel enabled the researchers to analyse the contextual meaning of the key words and phrases in the original and its French counterparts with extraordinary precision and thoroughness. The findings of this project also shed light on the causes and reasons that led to the production of several translations of the same book in the course of one century.39 Meanwhile, researchers at the University of Halle (Germany) have developed the software package LERA (Locate, Explore, Retrace and Apprehend complex text variants) to analyse multiple versions of the same text. At the time when this book was being completed, the range of LERA’s applications was broadened to include comparing texts in a number of modern languages.40 The use of such digital tools to compare textual variants in one language or in the field of translation studies surely paves the way for new perspectives for research on the evolution of legal texts. A prerequisite of a successful application of the new technology is, however, the availability of formatted (i.e. encoded) source texts. As the tide of innovation is advancing rapidly, this study may well be one of the last research projects carried out with no input from the new sophisticated digital tools. Just after preparing this study, the project “IURA: Sources from Laws of the Past” was begun at the Faculty of Law and Administration at Jagiellonian University in Cracow (
8 In Search of Method
This study of the Weichbild comes more than forty years after the publication of Professor Zygfryd Rymaszewski’s monograph on the Sachsenspiegel. His trailblazing work, which brought to light the Latin texts of the Sachsenspiegel which were used in Kingdom of Poland, is the fruit of painstaking dedication, and the thoroughness and soundness of his research were met with respect and admiration. In his monograph, Rymaszewski asks two key questions: 1) to what extent does the Latin translation of the Wrocław version of the Sachsenspiegel and two recensions of the versio Sandomiriensis follow the German text? 2) What are the characteristic features of the Sachsenspiegel in Jan Łaski’s Statutes? To answer the former question, he compared two texts representative of the Wrocław version and two recensions of the Sandomierz version with Karl A. Eckhardt’s edition of the Sachsenspiegel in the Monumenta Germaniae Historica. His comparative study of the Statutes is also based on the same choice of manuscripts. However, his findings were not received with unanimous approval. In his review, Josef J. Menzel finds fault with Rymaszewski’s research strategy – namely, the use of only a small number of selected manuscripts.41 In particular, Menzel points out that the comparison of the Latin manuscripts with Eckhardt’s text cannot reveal the true scale of the modifications introduced by the translators, because the version of the Sachsenspiegel they used was not identical with the text of the critical edition. Menzel does seem to have a point, but to assess the validity his objections, we need to take a closer look at Rymaszewski’s monograph. Sure enough, Eckhardt’s standard edition is of primary importance for Rymaszewski, yet he also makes frequent references to the German text of the Henryków and the Cracow manuscripts. Moreover, he treats with great care the supplementary material which appears first in those manuscripts and then finds its way into the Latin version. Rymaszewski certainly takes a broad view of his subject matter. If he had not done so, he would not have been able to confirm Carl G. Homeyer’s observation that the text of Sachsenspiegel in those manuscripts is very close to the base text of both the Wrocław and the Sandomierz versions.42
The choice of approach and method in this study is in a way determined by the fact that the text of the German Weichbild used in the Kingdom of Poland has never been edited and published. The material available in print includes only incunabula and 19th-century editions of the vulgate and editions of sources which are included in the Weichbild. For that reason, the first point on my research agenda was to go back to the extant manuscripts of the German Silesian-Małopolska compilation, previously known by the name of Konrad of Opole. As a result of their cross-comparison and confrontation with the sources of Weichbild,43 it was possible to identify and list the variants of the German text. That list enabled me to proceed to the next phase of the investigation, that is, identifying the base text of each of Weichbild’s Latin translations. In total, I was able to locate 21 extant Latin texts of the Weichbild in the archives and libraries of Poland, Austria, Germany, and Russia, including a fragment copied into the Municipal Records of Pleszew and published by Witold Maisel.44 In my search, I was guided by the monumental catalogue Deutsche Rechtsbücher des Mittelaters, compiled by Ulrich-Dieter Oppitz.45
The next step was to compare the Latin texts. As a point of reference, I took the earliest manuscript (the Gniezno MS) from 1359 (with the caveat that we do not know how close it was to the autograph of the versio Sandomiriensis). An extensive cross-comparison of the Latin texts enabled me to identify and list the variants of the Latin texts, and then to try and reconstruct the stages in the evolution of the Latin Weichbild. I relied on the same database to select the most appropriate Latin manuscripts for comparison with their German counterparts. This, in turn, enabled me to correlate the base text of the individual translations and to assess the role of the German texts in the generation of variants in the Latin manuscripts. The table of variants in the Latin text was then used to assess the scope of the adaption (i.e. the degree of novelty) of the Weichbild in Jan Łaski’s Statutes and for further analysis of the practical consequences of the alterations entered into that text.
While this study is concerned primarily with differences that are substantive (i.e. matters of law), it is also interested in clarifying the editorial and linguistic aspects of those differences. This means paying due attention to the arrangement of articles (chapters), the use of rubrics, the arrangement of the text within an article (sequence of words and phrases), synonyms and paraphrases, abbreviations and interpolations, and supplements and glosses. Due to the bewildering number of such variants in the manuscripts, less attention was paid to changes in grammar and spelling.
9 Editor’s Note
In this book, you will find four key terms. They are presented here with a short explanation.
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1) Compilation. This refers to texts with similar contents and structure. Of all the terms listed here, ‘compilation’ has the broadest scope. In this study, the term is used about two types (branches) of the Weichbild: the vulgate and the Silesian-Małopolska compilation.
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2) Version. This term refers to any group of manuscripts within a compilation, for example, the Sandomierz version (alternatively, versio Sandomiriensis). All versions of a compilation have very similar contents and structure; the individual versions are differentiated by the presence or absence of certain annotations, the sequence of articles (chapters), the wording of the provisions, the presence of supplements, and minor omissions. The changes may have been made for various reasons, but most often, the changes are made by the author of a new translation.
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3) Variant. ‘Variant’ refers to a subgroup of texts (or sometimes a single text) within a version on account of their having certain characteristic features than make them distinct. When the term ‘variant’ is used in this sense, it should be clear from the context that it refers to a text or manuscript as a whole (e.g. the Wawel variant). Variant is also used in its accustomed sense of textual variant – that is, any minor variation (deletion, rearrangement, repetition, or replacement of one or more words) entered by the editor or copyist into the text that was being reproduced.
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4) Group. The term ‘group’ is used in a general sense about any class of objects in an undifferentiated way. Where precision is called for, ‘group’ is replaced with terms like ‘version’ or ‘variant’.
The article numbers follow the numbering in the earliest Latin manuscript, that is, the Gniezno manuscript, unless indicated otherwise. The concordance tables in Appendix 1 can be used to find the matching article number in other texts, whether Latin or German. The numbering of articles in the Rechtsmitteilungen Magdeburgs für Breslau (1261) follows the new scheme of Friedrich Ebel’s 1989 critical edition.46 Unaware readers should note that Ebel’s edition differs from its 19th-century predecessors. The old § 64 is now split into two smaller units (§ 64 and § 65), while the old §§ 66–69 are now amalgamated into § 67. As a result of these changes, the number of articles was reduced from 79 to 77.
Passages from German manuscripts are reproduced in accordance with the instruction written by the editors of Liber Vetustissimus Gorlicensis (Das älteste Görlitzer Stadtbuch),47 while Latin texts, including the Weichbild from the Gniezno manuscript, are reprinted according to the guidelines prepared by Adam Wolff.48
10 A Synopsis of the Contents of Ius municipale Magdeburgense
Before moving on to a detailed discussion of my argument, I would like to present here a synopsis of the contents of the Weichbild from the Gniezno manuscript, the full text of which is reprinted in Appendix 4. The Magdeburg Weichbild is short and concise in comparison with its companion piece, the Sachsenspiegel. However, its appeal, it seems, lay not in brevity or fine formulas, but in its focus on problems of urban life and in its pragmatic directness. Judging by the earliest Latin translation (the Gniezno MS, 1359), the original text of the Weichbild – together with the provisions of the Constitution of Courts – consisted of 117 articles. Their number and indices vary in other manuscripts – an issue that will be discussed at a later point. This synopsis is not intended to serve as an analysis, but merely as an overview and summary of the points covered in the Weichbild and thus give the reader an idea of its scope and substance.
10.1 Municipal Institutions, Legislation, and Trade
The Weichbild opens with a prologue saturated with religious invocations. It is followed by a handful of articles (following the Gniezno MS, 1359) dealing with the election of municipal officials (jurors and aldermen), their oaths of office, and the aldermen’s capacities to regulate trade and supervise weights and measures (Article 1). The aldermen had the right to mete out punishment in skin and hair (by implication, he could not pronounce the death sentence, Article 2) for violating urban statutes (wilkierze), and impose fines for all kinds of deception in buying and selling (tampering with measures and weights, Article 3). Right at the outset, the Weichbild pulls back the curtain to reveal a typical urban scene. The urban setting returns in the final section, the Constitution of Courts, where it is said that urban law was created for merchants (Article 112).
10.2 The Courts
The courts are mentioned in a number of articles, but they are referred to for the first time in Article 4, where we are told that the castellan (Lat. castellanus, Ger. Burggraf) presides as judge in his high court. As in many new Polish towns, that arrangement simply did not work, and it was therefore reconfigured. The honorific legal formula remained unaltered, but the person in the judge’s seat was now the town owner, or an alderman officiating as his deputy. The Burggraf was to hold three grand courts every year: the first on the Feast Day of St Agatha [February 5th]; the second on the Feast Day of Saints John and Paul [June 26th]; and the third in the octave of St Martin’s [November 11]. If any of these days were to fall on holidays, the court was put off. The Burggraf/castellanus/town owner had jurisdiction over the most serious public order crimes, like rape, assault, and house-breaking. Should he be unable to preside over the court, the burghers may appoint someone else in his place (Articles 5, 11, 103). The Weichbild specifies in detail the penalties and time limits for their payment. After the Burggraf’s court was dissolved, the administration of justice fell to the court of the Schultheiss (Lat. scultetus, Pol. sołtys). These courts were to sit for 14 days, three times every year: the first on the day after the Epiphany; the second on the first Tuesday after Easter week; and the third on the first Tuesday after Trinity Sunday (Article 6). In Polish towns, these courts were presided by the Vogt (Lat. advocatus, Pol. wójt). The court could not proceed without the Schultheiss being present, except in an emergency, for example, when an offender was brought before the court who had been taken in the act of committing a crime. At that point, someone else could take over the function of the judge. The Weichbild enumerates the situations which justified the emergencies or proceeding without the Schultheiss. These included grievous bodily harm and theft in flagrante delicto (Articles 9 and 34), as well as debt cases that did not require oath-swearing by compurgators (Article 83) and debt cases involving non-residents (Article 9). The presence of jurors guaranteed the collegiate character of the courts. In the Burggraf ’s court, too, the chief judge (the Burggraf or town owner) had to have the Vogt at his side. The Weichbild says explicitly that those courts and their jurisdiction were established especially for the residents of towns incorporated under Magdeburg Law (Articles 21 and 82).
10.3 The Schultheiss [sołtys], the Vogt [wójt], and the Jurors
In Poland, the offices of the Schultheiss [sołtys] (in villages) or the Vogt [wójt] (in towns) were usually entrusted to a pioneer settler who committed himself to bring in more settlers and run the new settlement. He was to receive the authority and the fief of the settlement from the lord of the land (Article 6). This meant, at least in the medieval Kingdom of Poland, that the relationship between the lord and the fief-holder fell under feudal law. The Weichbild’s formulas of judicial powers sanctioned this dependence. While both the Burggraf and the Schultheiss were responsible for the administration of justice, the latter participated in the revenue generated by fines imposed by his court (Article 5 and 117), including fines for offending jurors both during and after the trial (Articles 22 and 90). More fines were in store for those who interfered with the court proceedings or questioned the court’s judgments (Article 99). The Weichbild also had penalties for Schultheissen (and presumably, by implication, Vögte) who failed to obey the summons to a Burggraf’s court (Article 4). Finally, in two long articles, the Weichbild denounces all forms of corruption and bias in the work of courts and prescribes stiff penalties for such offences (Articles 100 and 101).
10.4 Criminal Procedure
Like many other topics, criminal procedure was presented in the Weichbild in an unsystematic manner. At the same time, evidentiary procedure was absolutely central to the provisions dealing with criminal law. It seems that other vital elements of the criminal procedure were introduced as supplements for a evidentiary procedure – such as, for example, the rule that legal action is initiated by the complaint of the wrong party or the affirmation of the res iudicata principle in Article 67.
According to the Weichbild, criminal procedure was based on two principled modes of proof: oaths sworn by the litigant together with a number of oath-helpers (the ceremony is also known as compurgation or wager of law); and ordeal (also called trial by combat, wager by battle, or iudicium Dei, Article 103).49 These methods of establishing facts, truth, and guilt were increasingly at odds with the times, and their use in the legal practice of medieval courts was on the wane. In the municipal courts, they were all but superseded by trial by jury, and by the 16th century, they were completely obsolete – a dead letter of the law. A key element of the procedure described in the Weichbild was the order of presenting proof, that is, a purgatory oath by the defendant or an accusatorial oath by the plaintiff.50 The court’s decision about the order of proceedings depended on a casuistic examination of circumstances of the case. At all events, the right to speak first was immensely advantageous, as the judges could decide that there was no need to continue and declare the case closed.
The first of those circumstances was the formal condition of instant reaction, that is, the order of proceeding depended on whether a complaint action was initiated immediately after the crime.51 If a hue and cry was made, but the injured person did not appear in court until the following day, he lost the advantage of being first to the assailant, who, if he appeared in court on the same day, could clear himself under oath metseptimus (Article 10). In the case of the most serious crimes (rape, highway robbery, house-breaking), the formal condition of instant reaction was lifted provided a hue and cry had been made and the perpetrator had been caught red-handed. However, if the latter conditions were not met, the assailant could claim precedence and clear himself under oath metseptimus (Article 11). However, another provision trumped this complex protocol by giving unconditional priority to the party in the accusatorial role (Article 72). In the case of the most serious crimes against public order, the victim (who, presumably, because of his wounds, was unable to come to court) could appoint an attorney (Lat. prolocutor, Ger. Fürsprech). The court could, however, then order a check as to whether the victim’s condition prevented him from appearing in court to make his complaint (Articles 53 and 55). The casuistic exceptions from the requirement that the victim of a crime should bring a complaint before the court immediately shed intriguing light on the Weichbild’s treatment of the defence of necessity. If, for example, the assault took place on the highway, a public place protected by the king’s peace, and the injured assailant reached the court with his demand for justice ahead of the victim, the judges were to allow the latter to present his case first in the order of precedings. However, that privilege was lost if the victim waited to make his complaint until the following day (Article 27). The accused had, as a rule, the right to answer the charges (Articles 28 and 32). If he rejected them, he could ask the court to establish a surety (Lat. satisdatio, Pol. gwar, Ger. gewere) until the time at which he would prove his innocence. That surety was not only a form of bail, but also a guarantee that the text of the complaint would not be altered (Article 56 and, with regard to property litigation, Article 80). In the case when injuries were inflicted on both sides, the right to be first in presenting proof should belong to the party that had accused the other of having started the conflict. If there was no agreement on that point, the truth was be established by oath metseptimus, six oath-helpers who had been present at the scene (Article 87).
The second of those circumstances was the hue and cry, an alarm raised by locals for the purpose of pursuing and catching a felon or robber. The right to be first in presenting proof belonged to the victim who started the hue and cry that led to the capture and arrest of the alleged criminal. The victim could bring with him oath-helpers who had taken part in the hue and cry (Articles 7, 30, and 32). If no such witnesses could be found and the suspect was a man of good repute, he had the right to clear himself by a purgatory oath metseptimus (Article 8).
The third factor determining the right to be first in presenting proof was the case when the criminal was caught red-handed (in facto manifesto). This was significant in cases of house-breaking (Article 102), robbery and rape (Article 54), and wounding (Article 49). The phrase ‘caught while committing the act’ appeared in Article 51 and was repeated in Article 81 with regard to pilferage or burglary; it is connected with hue and cry, the arrest of an armed criminal, and breach of the public peace. A separate provision dealt with the case of a woman caught in the act of committing murder or wounding. The same rules would apply here: the right to be first in presenting proof belonged to the plaintiff, who would the swear the accusatorial oath metseptimus. If the plaintiff merely had seen the woman at the scene of the crime, but she had not been apprehended and he came to court on the following day, the right to be first in presenting proof passed on to her (Article 88).
The Weichbild also contained the right to be first in presenting proof based on the circumstances of who received the complaint. In the case of wounding inflicted by both parties, if one party went to the judge and the other to four jurors (in another version of the Weichbild, their number rose to 11, Article 113, though in Poland it was usually seven), showing them the wounds and demanding that the judge be sent for, the right to be first in presenting proof went to the latter party (Article 30). There were more provisions that introduced further points which made the rules of granting the right to be first in presenting proof even more complex. For example, if a defendant accused of wounding was released on bail and killed before the opening of the trial, the suspected murderer had the right to be first in bringing action (Article 36). Article 37 outlined another scenario in which that right was to be given to the wounded person unless an agnate relative of the dead victim had already been granted wager by battle.
The fifth of the circumstances that played a role in the granting of the right to be first in presenting proof was the good character and trustworthiness of the accused. If the fray took place in broad daylight and the accusation was levelled at a man of good character who had not been seen at the scene of the crime, he has the right to be first in presenting a proof in the form of a purgatory oath metseptimus, with six oath-helpers, took precedence over his accuser’s right to wager by battle (Article 92). If, however, the crime was committed during the hours of darkness, the accused could clear himself on one condition: he had to muster reliable oath-helpers who were ready to give him an alibi under a purgatory oath metseptimus. This latter case shows a creeping redefinition of the role of the compurgators: what they are expected to contribute to the trial is circumstantial evidence, rather than an asseveration of their faith in the character of principal oath-swearer.
For the Weichbild, ordeal or wager by battle was as important an instrument of obtaining proof as oaths. It could be used in cases involving severe injury – for example, grievous wounding (battle wounds ‘deserve’ to be repaid) or bruising in the back and the belly area caused by blows from a club or stick (Article 63, as well as Articles 31 and 35) – and breach of public order (robbery, rape, or house-breaking, Article 103). Should one of the litigants in a case of mutual wounding die of his wounds before the day appointed for wager by battle, his adversary faced the punishment for wounding, namely, his hand would be cut off (Article 31). If all the conditions attached to a case of mutual wounding were met (i.e. hue and cry and the right to be first in presenting proof), the victim could challenge to a wager by battle as many of his assailants as was the number of his wounds. If, however, there were more assailants than the number of wounds the victim was able to show, his assailants could clear themselves by a purgatory oath metseptimus. The procedure of administering wager by battle described in Article 56 was evidently borrowed from the Sachsenspiegel. It provided for the appointment of a deputy in wager by battle and a deferment in case a stand-in could not be found, or in case the challenged party was unable to accept the challenge (for various reasons, e.g. inequality of the combatants’ social status). It also prescribed in detail the manner in which the battle (duel) was to be fought (the weapons, etc). Obviously, such regulations were completely out of place in a late medieval urban community.
If a person accused of murder or wounding escaped, his property could be seized and confiscated to cover the impending compensation for the damage incurred by the victim and to pay the fees and fines imposed by the court (Article 91). Deputizing was the subject of another provision with a strikingly complex set of rules. The father could stand in on three occasions for his son (provided he lived in the father’s house and was not married) if the latter was accused of a capital crime and caught red-handed. If the son was allowed to present a purgatory oath metseptimus, his father could come in his stead; however, if the father was accused of the same crime, he had to go through the purgation ritual first (Articles 24 and 87).
10.5 Crime and Punishment
In general, serious crimes like murder, rape, highway robbery, and house-breaking were punished by death (Articles 7, 11, 32, 49, and 102). There was one exception to this rule. In the case of mutual wounding, the use of the sword was punished by cutting off the hand, and the use of the dagger (Lat. cultellus, Ger. texts Messer) was punished by death, because the dagger was treated as a murderer’s weapon (Article 33). The punishment for larceny depended on the value of the stolen goods and on whether it took place in daytime or at night. Hanging was the standard method of capital punishment. The court could spare a man of good repute if the crime was committed in daytime and the stolen object was worth less than three shillings. He would then qualify for punishment ‘in skin and hair’ (Lat. ad cutem et crines, Ger. zu Haut und Haar), prescribed for petty larceny (Article 39). It was possible for the felon to purchase a pardon (i.e. the remission of the death sentence or the amputation of the right hand), but he still forfeited all his rights and his property (Article 58). A burgher guilty of robbery and plundering his neighbours was to forfeit his own house, and the house in which a woman was raped was to be torn down (Article 107).
The Weichbild provided for an amicable settlement (Lat. concordia, Ger. Einigung) of disputes both in and out of court. The reconciliation could be attested by the judge and jurors or by oath sworn by the witnesses of the out of court settlement (metseptimus). A breach of the settlement agreement was punished by mutilation or death, or, alternately, whatever price was to be paid for the original crime (Article 23). Once a dispute was settled extra curiam, it should not be brought before the court again (Article 29). If a complaint were to be lodged, even though the settlement agreement had been made, the court should order the offending party to pay a judicial fine (Articles 70 and 104).
10.6 Transfer of Property under Municipal Law
Apart from being in charge of criminal justice, the municipal authorities also had the right to oversee property transfers in the area of their jurisdiction. To ensure the legal validity of all transfers of property, it was necessary to obtain the approval of the municipal court. The Weichbild regulated that sphere not only with regard to purchase and donation, but also security interests (pledges), that is, the establishment of a pledge to guarantee repayment of debt (Article 13). The creation of a dower, that is, the husband’s marital gifts or donations, including property rights, had to be announced in open court (iudicium bannitum, Articles 14 and 25). After a year and a day, the grant became irrevocable (Articles 16 and 45). Claims concerning rights of possession could be brought before the court, and if the jurors who had heard the case died, the court should admit the testimony of witnesses that were still alive. Such a fact-finding procedure must have looked obsolete in medieval towns which kept a written record of all official business in municipal record books. Less vulnerable to ravages of time were the provisions concerning fees charged by the court (Articles 13 and 19).
10.7 Hereditary Property versus Gifted Property
The dividing line between hereditary assets (including rents) and gifts (acquired property) was determined primarily by the rules concerning alienation. The general rule was that hereditary property could not be alienated (sold or given away) without the heirs’ consent (Articles 14 and 46). The only reason for introducing in this version of the Weichbild a clause declaring all deathbed dispositions of property whose value exceeds three shillings invalid – unless it is approved by the heirs (Article 17) – must have been a high vigilance for the protection of family interest. However, an heir pressing his claim in court for the recovery of hereditary property had to desist if the defendant was able to show that he had held it for at least a year and a day and if the defendant could name the person from whom he had obtained it (Article 46). Moreover, the possessor was to enjoy the primary right to argue his case (Article 96). If the recovery claim involved rent (bona censualia, Ger. Zinsgut), the parties were to validate their rights by summoning six compurgators (Article 41).
10.8 Marital Property, Inheritance Rules, and Guardianship
Generally, the Magdeburg Law assumed that marital property was divisible. According to the Latin translation of the Weichbild in the Gniezno manuscript, the bride entered into marriage with a dowry which usually consisted of household goods, clothes, and personal jewellery (Lat. supellectilia, Ger. Gerade, Pol. gerada, szczebrzuch Article 14). The husband could assign some of his property (dower) to his wife as a gift (Lat. dos, Ger. Morgengabe, from the custom of the husband offering his wife a morning-gift after the nuptials) or as a share in his property if she were to be widowed. The latter was to revert to the heirs of her husband upon her death unless they decided otherwise (Articles 45 and 46). The dower settlement had to be made in open court, but if the handover took place outside of the legal protocol and the heirs contested the widow’s title, she could validate her claim by swearing an oath together with six compurgators (Article 14). She forfeited the right to keep her late husband’s dowry upon remarriage.
Since spouses as a rule did not inherit from each other (Article 25), the entire inheritance fell to their children, unless one or more of them had been in any way excluded (e.g. had received their portions before their father’s death). If one of the heirs died childless, his portion should pass, first, to his siblings, or, second, should be distributed equally between his relatives within the same degree of kinship (Articles 14, 18, and 89). However, if that death occurred while the widow was in possession of the estate, the share of the deceased child passed to her under the same conditions that applied to the dower (Article 73). The question of inheritance became more complicated when a widower married a widow and both had children from former marriages. On the assumptions that the widow brought no property into the marriage and the inheritance was acquired during the course of marriage, her husband’s son was first in order of succession – before her children or his sister’s children and grandchildren, provided the son’s social status was on a par with that of his father (Article 44). The paris conditionis (equal in status) clause means that illegitimate offspring (bastards) had no automatic right to inherit. If there were no male heirs, and the daughter had already been endowed with a dowry and given birth to a son, he inherited his grandfather’s estate. If an heir joined a monastic community as a minor and left it after coming of age, he retained his right to inherit. An adult son who decided to become a monk would lose that right (Article 61). The property of an individual who died without heirs was to be forfeited to the king (Article 66). The property of a person sentenced to death was not automatically confiscated; it passed to his descendants in the order of succession (Article 72). Finally, the will as a unilateral testamentary disposition of property was unknown to the Weichbild.
The deceased person’s heritable property, according to the Weichbild, consisted of weapons of war (Ger. Hergewet, Lat. arma bellica), things customarily used by women (Lat. supellectilia, Ger. Gerade, Pol. gerada), and the estate (Ger. Erbe, Lat. res hereditaria, Pol. dziedzictwo). The Hergewet, which was to be inherited by a male heir, consisted not only of arms and armour, but also war horses, men’s clothing, and linen (Articles 61 and 25). Obviously, this provision reflected a world that was rather remote from the urban way of life. It was a world of warriors and knights in which men entered into marriage with substantial property and women would bring in a cartload of household goods, clothes, personal items, and ornaments. They made up the gerada, property that belonged to the wife and could be inherited exclusively by her female relatives or, alternately, by relatives in holy orders (Article 18). It seems simple enough, and yet it was the very enumerative definition of the gerada that caused problems.
As the estate of a deceased wife was being devolved, some assumed that it comprised no more than the objects that she originally brought into the marriage, while others insisted that the enumeration referred to classes of objects that qualified as the gerada. The disagreement had practical consequences. Was it fair, for example, for the daughters to inherit all of their mother’s jewellery (which she may have acquired during the course of her marriage)? The Weichbild supplied ammunition for both sides of the argument (Articles 14, 25, 26, 60, 61, and 94). The disposition of the deceased spouse’s property is the subject of a provision concerning alimentation and food stored in the household. After the husband’s death, a month’s supply of provisions (Ger. Mußteil) fell to his heirs and the widow (Article 25). Long-lasting food (pulmenaria), like grain, pork-cuts, and lard, should be divided between them equally (Article 25 and 26). However, after the wife’s death, her female relatives were not admitted to share in the pulmenaria: the widower, as per the letter of law, was the sole owner of that food (Article 60).
The Weichbild contained a few rules about minors and their guardians. An orphaned minor in pupillari aetate, that is, one that had not yet reached puberty, and his estate was to be taken care of by the nearest male agnate as soon as the hergewet was released (Articles 50 and 61). Minors could not be restored and legally own their inherited property until they came of age (Article 96). A minor over the age of 12 could choose his guardian (curator), who was obliged to render account of his management of the minor’s property to the minor and his mother (Articles 50 and 74).
10.9 Obligations Founded on Contract and on Tort
The Weichbild did not formulate any systematic law of obligations. The norms regulating that sphere of life were fragmentary, though by no means useless or unfair. Several provisions addressed the problem of debt and contractual obligations. To prove the payment of debt, the litigant had to swear an oath with six compurgators, trustworthy persons who faced no criminal charges themselves, and if the court action involved property, they had to live in the vicinity (Articles 42, 43, 79, and 82). If goods or immovable property were offered in court as security against the payment of debt, and the debtor missed the time limits imposed by the court on three occasions, the expiry of the fourth limit gave the creditor full rights to the pledge, while the debtor could no longer reclaim it (Article 13). The value of the pledged goods should not be greater than the debt (Article 91). If a plaintiff went to court and obtained a writ of execution, the defendant had to pay the debt on the same day (unless he was a guest/hospes), but if he confessed to the debt, he was given fourteen days to pay it (Articles 9 and 20). The failure to do so resulted ultimately in the confiscation of the debtor’s property and declaring him an outlaw (Article 20). The creditor who started legal action to seize the debtor’s property had the right to go to the debtor’s house and eat and drink there as he pleased; if the debtor still refused to follow the court order, his property was to be sold to pay off the debt, and the remaining sum given over to his heirs (Article 42). The confiscation order involved banning the debtor from entering his property; each time he defied the ban, he was ordered to pay a fine (Article 15). The proof set by the Weichbild in an action of debt brought by a servant against his master were the oaths of the plaintiff and his two oath-helpers (mettertius); if the court ruled in his favour, the master had to pay the debt on the same day (Article 24). The Weichbild also mentions sureties, persons who promised on behalf of the principal debtor that the debt would be paid on time. When things went wrong, a surety could either pay the debt himself or try to prove in court that the payment did take place. Ultimately, the obligation could be voided by the surety’s death; his children did not inherit it (Article 64). This was not the case with debt incurred by the principal debtor. His heirs could either rid themselves of this burden by paying off the debt or proving under oath metseptimus, that is, with six oath-helpers, that it had already been paid (Articles 86 and 105). Some provisions addressed the obligations of buyers and sellers in remarkable detail. The seller of a horse was obliged to promise solemnly that the animal is free from faults or blemishes and that the transaction is perfectly legal (Article 38). Should it be alleged that the horse had been stolen, the buyer must point out the man from whom he bought the animal, or else it may be taken away from him (Article 69). The proof of theft was established by oath-taking, although in this case the legal ritual was far more elaborate. The presumable owner was to say the oath while holding the horse’s left ear with his right hand and pushing his right leg against the horse’s forelegs (Article 85). The liability for any damage done by the animal rests with the owner unless he denies his property (Article 106). One could abjure any liability for damage caused by objects or animals that were on loan or deposited for safe-keeping by declaring under oath that the damage occurred through no fault of his own. However, this form of clearing oneself was not allowed in the case of pledged objects and animals, except horses and cattle. In the latter case, if he proved by oath that he was not guilty of the animals’ death, he did hot have to pay back the price of the lost animals, but merely the sum that had made up the pledge (Article 77). Debts incurred by gambling were not enforceable (Article 76).
As this review shows, the scope of regulations in the Weichbild was fairly broad. Moreover, many of the regulations addressed problems of urban life, which made the Weichbild more popular than the Sachsenspiegel. The Latin text presented above belongs to the so-called Sandomierz version, because its author and translator was a Polish burgher – Konrad of Sandomierz. The evolution of the text of the Weichbild in the Silesian-Małopolska compilation in connection with the process of adaptation to practical needs will be the subject of the following analyses.
Cracow City Council manuscript, Jagiellonian Library in Cracow, Shelfmark 169 III, f. 275r
Manuscript of High Court of German Law at the Royal Castle of Wawel, Jagiellonian Library in Cracow, Shelfmark 168 III, f. 75r
Jacques Le Goff, Medieval Civilization, trans. Julia Barrow (Blackwell Publishing: 1991), pp. 255, and 261–262.
For a comprehensive survey of the sources of the Saxon-Magdeburg Law in Poland, see Wieland Carls, “Rechtsquellen Sächsisch-magdeburgischen Rechts”, in: Inge Bily, Wieland Carls, and Katalin Gönczi, Sächsisch-magdeburgisches Recht in Polen. Untersuchungen zur Geschichte des Rechts und seiner Sprache, (Ivs Saxonico-Maidebvrgense in Oriente) 2 (Berlin, 2011), p. 84.
Cf. Appendix 4, Article 110 of the Magdeburg Weichbild.
Ibid., Article 113.
Maria Bogucka and Henryk Samsonowicz, Dzieje miast i mieszczaństwa w Polsce przedrozbiorowej [A History of Towns and the Urban Middle Class in Poland until 1795] (Wrocław – Warszawa – Kraków – Gdańsk – Łódź, 1986), pp. 24–25, 27 and 37.
The term ‘Younger Europe’ was coined by Jerzy Kłoczowski for the peoples and nations of Central and Eastern Europe that joined Latin Christendom in the 10th–11th centuries. See Jerzy Kłoczowski, Młodsza Europa. Europa Środkowo-Wschodnia w kręgu cywilizacji chrześcijańskiej średniowiecza [The Younger Europe: Central and Eastern Europe and the Civilization of the Christian Middle Ages] (Warszawa, 2003), pp. 11 and 13.
See Kazimierz Tymieniecki, “Prawo niemieckie w rozwoju społecznym wsi polskiej” [German Law and the Social Development of the Polish Village], Kwartalnik Historyczny 37 (1923), 39, 41, 60–64, and 68–70; Kazimierz Tymieniecki, “Prawo czy gospodarstwo?” [The Law or the Household?], Roczniki Dziejów Społecznych i Gospodarczych 8/2 (1946), 289–291; Benedykt Zientara, “Das Deutsche Recht (ius teutonicum) und die Anfänge der städtischen Autonomie”, in: Autonomie, Wirtschaft und Kultur der Hansestädte, eds. Konrad Fritze, Eckhard Mueller-Mertens, Walter Stark (Weimar 1984), pp. 94–100; Józef Matuszewski, “Prawo sądowe na wsi polskiej lokowanej na prawie niemieckim” [Law in Polish Villages Founded under German Law], Studia z Dziejów Państwa i Prawa Polskiego 2 (1995), 54–59; Józef Matuszewski, “Rodzaje własności gruntu we wsi lokowanej na prawie niemieckim” [Types of Land Ownership in Villages Founded under German Law], in: Parlament, prawo, ludzie. Studia ofiarowane Profesorowi Juliuszowi Bardachowi [Parliament, the Law and the People: A Festschrift in Honour of Professor Juliusz Bardach], eds. Katarzyna Iwanicka, Maria Skowronek, Kazimierz Stembrowicz (Warszawa, 1996), pp. 158, 160–162, and 164.
Heiner Lück, “Urban Law: The Law of Saxony and Magdeburg”, in: The Oxford Handbook of European Legal History, eds. Heikki Pihlajamäki, Markus D. Dubber, and Mark Godfrey, Published online: August 2018, DOI: 10.1093/oxfordhb/9780198785521.001.0001.
See monographs: Stanisław Kuraś, Przywileje prawa niemieckiego miast i wsi małopolskich XIV–XV wieku [German Law Privileges for Towns and Villages in Małopolska in the 14th–15th Century] (Wrocław – Warszawa – Kraków – Gdańsk, 1971); Krystyna Kamińska, Lokacje miast na prawie magdeburskim na ziemiach polskich do 1370 r. Studium historyczno-prawne [Incorporation of Towns under Magdeburg Law in Poland until 1370: A Study in Legal History] (Toruń, 1990).
Maciej Mikuła, Prawodawstwo króla i sejmu dla małopolskich miast królewskich (1386–1572). Studium z dziejów rządów prawa w Polsce [Royal and Parliamentary Legislation for the Royal Towns of Małopolska (1386–1572): A Study in the History of the Rule of Law in Poland] (Kraków, 2014), chapter 3.
Ibid., chapter 2.
Grzegorz M. Kowalski, Zwyczaj i prawo zwyczajowe w doktrynie prawa i praktyce sądów miejskich karnych w Polsce XVI–XVIII w. [Custom and Customary Law in Legal Doctrine and Practice of Municipal Criminal Courts in Poland 16th–18th Century] (Kraków, 2013), p. 174.
For a systematic review of the sources of the Saxon-Magdeburg Law in Poland, see Carls, “Rechtsquellen Sächsisch-magdeburgischen Rechts”, pp. 69–109.
Krystyna Kamińska, “Prawo średzkie jako instrument polityki osadniczej i gospodarczej w Polsce od XIII do początku XVI wieku” [The Środa Law as an Instrument of Settler Policy and Economic Development in Poland in the 13th and Early 14th Century], in: Historia integra. Księga pamiątkowa ofiarowana prof. Stanisławowi Salmonowiczowi w siedemdziesięciolecie urodzin [Historia integra: A Festschrift in Honour of Professor Stanisław Salmonowicz on His 70th Birthday], eds. Danuta Janicka and Ryszard Łaszewski (Toruń, 2001), pp. 147–160.
Heiner Lück, “Wirkungen des Sachsenspiegels und des Magdeburger Rechts in Ostmitteleuropa”, in: Legal Transitions. Development of Law in Formerly Socialist States and the Challenges of the European Union/Rechtsentwicklung in den ehemaligen sozialistischen Staaten und die Herausforderung der Europäischen Union, eds. Elemér Balogh, Andrea Hegedűs, Péter Mezei, Zsolt Szomora, and Julianna S. Traser, (A Pólay Elemér Alapítvány Könyvtára) 17 (Szeged, 2007), pp. 274–278; Heiner Lück, “Die Anfänge des Magdeburger Stadtrechts und seine Verbreitung in Europa. Strukturen, Mechanismen, Dimensionen”, Sachsen und Anhalt 27 (2015), 189–95.
In his History of the Sources of Old Polish Law, Stanisław Kutrzeba states that the Weichbild was the most important code of Magdeburg Law in the urban communities of medieval Poland (Stanisław Kutrzeba, Historia źródeł dawnego prawa polskiego [History of the Sources of Old Polish Law], 2 (Lwów – Warszawa – Kraków, [1926]), p. 208). Zygfryd Rymaszewski, however, argues that the Polish towns looked to the Land Law of the Sachsenspiegel as the most authoritative text of law (Zygfryd Rymaszewski, Łacińskie teksty Landrechtu Zwierciadła Saskiego w Polsce [Latin Texts of the Landrecht of the Sachsenspiegel in Poland] (Łódź, 1975), p. 6). For a discussion of the content of the Magdeburg Weichbild, see Chapter 1.1. In German legal history, medieval collections of laws are referred to as Rechtsbücher. For a comprehensive modern study of the medieval law books, see Heiner Lück, “Rechtsbücher als ‘private’ Rechtsaufzeichnungen?”, Zeitschrift der Savigny-Stiftung für Rechtsgeschichte: Germanistische Abteilung 131 (2014), 432–3. See also Hiram Kümper, Sachsenrecht. Studien zur Geschichte des Sächsichen Landrechts in Mittelalter und früher Neuzeit, (Schriften zur Rechtsgeschichte) 142 (Berlin, 2007), esp. Chapter A.2 ‘Die Quellen: Deutsche Rechtsbücher des Mittelalters’, p. 16ff. The term ‘law book’ is also employed by historians elsewhere, for example in the Czech Republic (see for example Naďa Fiedlerová and Lenka Šmídová Malárová, “The Earliest Law Books of the City of Brno and Their Relation to the Contemporary Legal Practice”, Krakowskie Studia z Historii Państwa i Prawa 10/2 (2017), with a bibliographical list of earlier studies), Slovakia (Adriana Švecová, “Die Stadtrechtsbücher in der mittelalterlichen Slowakei und Ungarn als Beispiel des eigenen Selbstbewusstseins im Rahmen der europäischen Rechtskultur”, Krakowskie Studia z Historii Państwa i Prawa 9/3 (2016), 327–43) and Hungary (Katalin Gönczi, “Stadtbücher aus dem Königreich Ungarn im Spiegel der städtischen Schriftkultur – Überlegungen zum Stand der Forschung”, Krakowskie Studia z Historii Państwa i Prawa 9/3 (2016), 313–26). The term ‘law book’ is not much used in Polish studies of the reigns of the late Piasts and the Jagiellons, although occasionally it can even appear in the title as in this edition of the laws of Poznań and the title of a collection of the Magdeburg and canon laws of Przemyśl. See Witold Maisel, ed., Poznańska księga prawa magdeburskiego i miśnieńskiego [The Poznań Book of Magdeburg-Meissen Law] (Wrocław, 1964); Witold Maisel, “Die Quellen des deutschen Rechts im mittelalterlichen Posen”, in: Studien zur Geschichte des sächsich-magdeburgischen Rechts in Deutschland und Polen, eds. Dietmar Willoweit and Winfried Schich, (Rechtshistorische Reihe) 10 (Frankfurt am Main, 1980), p. 116; Dietlinde Munzel, “Posener Rechtbuch”, in: Handwörterbuch zur deutschen Rechtsgeschichte, 1st ed., 3 (Berlin, 1984), col. 1831–1832; Anna Łosowska, Kolekcja liber legum i jej miejsce w kulturze umysłowej późnośredniowiecznego Przemyśla [The Liber legum MS and Its Place in the Intellectual Culture of Late-Medieval Przemyśl] (Warszawa – Przemyśl, 2007).
The most comprehensive description of the Weichbild can be found in Stanisław Kutrzeba’s Historia źródeł (pp. 208–211). The Weichbild is also discussed in Zygfryd Rymaszewski’s studies of the Sachsenspiegel, especially Łacińskie teksty Landrechtu Zwierciadła Saskiego w Polsce and “Forum commune and forum liberum” (in Studia z Dziejów Państwa i Prawa Polskiego 2 (1995), 76–91). The latter traces the history of the two terms that occur in Łaski’s Statutes by going through a number of Latin and German sources, and, in effect, challenges Stanisław Estreicher’s claim about the evolution of the marketplace (“Freimarkt and Frymark”, Czasopismo Prawniczne i Ekonomiczne 25 (1929), 337ff.). Cf. also Emil Kałużniacki, “Die polnische Recension der Magdeburger Urtheile und die einschlägigen deutschen, lateinischen und czechischen Sammlungen”, Sitzungsberichte der phil.-hist. Classe der Kaierischer Akademie der Wissenschaften 111 (1886), 156–60; Stanisław Estreicher, “Nieznane teksty ortyli magdeburskich” [Recently Discovered Texts of the Magdeburg ortyle], in: Studia staropolskie. Księga ku czci Aleksandra Brücknera [Old Polish Studies: A Festschrift in Honour of Aleksander Brückner] (Kraków, 1928), pp. 112–126. Recently, a new approach to the interpretation of textual evidence which is at centre of this debate has been presented by the author of this monograph in three articles. The first of them stresses the importance of categorizing the textual variants that are employed in further analyses: Maciej Mikuła, “Modyfikacje łacińskich tekstów Weichbildu magdeburskiego a ewolucja prawa w średniowiecznych miastach polskich. Uwagi wstępne” [Modifications of Latin Texts of the Magdeburg Weichbild and the Evolution of Law in Medieval Polish Towns: An Introduction], in: Acta Iuridico-Historica Pilsnensia, 2012–2013 (published 2014; ed. Vilém Knoll), 137–52. The second article calls for examining the consequences of modifications of the text of the law in legal practice (Maciej Mikuła, “Die Modifizierung des Erb- und Familienrechts im Magdeburger Weichbildrecht (Einführung zum Thema)”, in: Judiciary and Society Between Privacy and Publicity, ed. Danuta Janicka, 8th Conference on Legal History in the Baltic Sea Area, 3rd–6th September (Toruń, 2015), pp. 329–343); the third points to importance of users’ glosses in the assessment of the functioning of the Weichbild in legal practice (Maciej Mikuła, “Weichbild magdeburski w rękopisie Biblioteki Jagiellońskiej nr 4405” [The Magdeburg Weichbild in MS BJ 4405], in: Nil nisi veritas. Księga dedykowana Profesorowi Jackowi Matuszewskiemu [Nil nisi veritas. A Festschrift Dedicated to Professor Jacek Matuszewski], eds. Marcin Głuszak and Dorota Wiśniewska-Jóźwiak (Łódź, 2016), pp. 151–157). A number of illuminating insights can also be found in Grzegorz M. Kowalski’s introduction to his critical edition of Paweł Szczerbic’s Polish translation of the Weichbild: Paweł Szczerbic, Ius Municipale, to jest prawo miejskie majdeburskie nowo z łacińskiego i z niemieckiego na polski język z pilnością i wiernie przełożone [Ius Municipale, or the Magdeburg Municipal Law: A New and Meticulously Accurate Translation from the Latin and the German], ed. Grzegorz M. Kowalski (Bibliotheca Iagellonica. Fontes et Studia) 20 (Kraków, 2011). The literature on this subject will be examined in greater detail in Chapter 1 of this monograph. For a general survey of research into Magdeburg Law in Poland, see Danuta Janicka, “Wkład polskich historyków prawa w badania nad prawem magdeburskim w XX w. (1945–2010)” [The Contribution of Polish Law Historians to the Study of Magdeburg Law in the 20th Century (1945–2010)], Studia Iuridica Toruniensia 10 (2013), 46–75; and Danuta Janicka, “Neuere Rechtsgeschichte in Polen in den Jahren 2002–2014”, Zeitschrift für Neuere Rechtsgeschichte 37 (2015), 130–42.
The presence of the Weichbild in Polish towns is discussed in Wieland Carls’s “Rechtsquellen Sächsisch-magdeburgischen Rechts”, in: Inge Bily, Wieland Carls, and Katalin Gönczi, Sächsisch-magdeburgisches Recht in Polen. Untersuchungen zur Geschichte des Rechts und seiner Sprache, (Ivs Saxonico-Maidebvrgense in Oriente) 2 (Berlin, 2011), pp. 86–88. At this point due acknowledgement must also be given to Ulrich-Dieter Oppitz’s authoritative and continually updated catalogue of manuscripts of German law, esp. Deutsche Rechtsbücher des Mittelalters, 1, Köln – Wien 1990, pp. 47–48 and supplementary material in Ulrich-Dieter Oppitz, “Ergänzungen zu „Deutsche Rechtsbücher des Mittelalters und ihre Handschriften”, Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Germanistische Abteilung [henceforth ZRG GA] 128 (2011), 452. Supplementary material concerning other Weichbild compilations (i.e. not the Silesian-Małopolska branch), see ZRG GA 120 (2004), 371–5; ZRG GA 131 (2014), 400–17; ZRG GA 132 (2015), 463–78; and ZRG GA, 133 (2016), 484–7. Basic information on the Weichbild and its key versions (the so-called Konrad of Opole compilation, Konrad of Sandomierz’s Latin translation, and the printed versions by Jan Łaski, Mikołaj Jaskier and Paweł Szczerbic) can be found in standard reference books, especially Peter Johanek’s entry “Magdeburger Rechtsbücher”, in Die deutsche Literatur des Mittelalters: Verfasserlexikon, eds. Kurt Ruh, Gundolf Keil, et al., Supplementary 11, 2nd ed., 2004, col. 950–953; and Ruth Schmidt-Wiegand’s entry “Weichbild”, in Handwörterbuch zur deutschen Rechtsgeschichte, 1st ed., 5 (Berlin, 1998), col. 1209–1212. Cf. also the bibliographical entry “Weichbildrecht, Das Sächsische” in the source catalogue Geschichtsquellen des deutschen Mittelalters (
The problems of adoption of the Magdeburg judgments (Urteile) into the Weichbild gloss are discussed by Gerhard Buchda, “Enthält die Glosse zum sächsischen Weichbild echte Schöffensprüche?”, in: Festschrift Heinrich Demelius zum 80. Geburtstag. Erlebtes Recht in Geschichte und Gegenwart, ed. Gerhard Frotz (Wien, 1973), pp. 25–50. For a broader analysis of the relationship between the Magdeburg judgments and the Weichbild vulgate, see Renate Schelling “Magdeburger Schöffensprüche und Magdeburger Weichbildrecht in urkundlicher und handschriftlicher Überlieferung”, in: Hanse, Städte, Bünde. Die sächischen Städte zwischen Elbe und Weser um 1500. Ausstellung Kulturhistorisches Museum Magdeburg 28. Mai bis 26. August 1996. Braunschweigisches Landesmuseum. Ausstellungszentrum Hinter Aegidien 17. September bis 1. Dezember 1996, 1, ed. Matthias Puhle, (Magdeburger Museumsschriften) 4/1 (Magdeburg, 1996), pp. 118–128. See also Kümper, Sachsenrecht, pp. 395–397; Christine Magin, ‘Wie es umb der iuden recht stet’. Der Status der Juden in Spätmittelalterlichen deutschen Rechtsbüchern (Göttingen, 1999), pp. 56–58.
See Ernst Theodor Gaupp, Das alte Magdeburgische und Hallische Recht. Ein Beitrag zur deutschen Rechtsgeschichte (Breslau, 1826; repr. Aalen, 1966), pp. 119–156; Paul Laband, ed., Magdeburger Rechtsquellen. Zum akademischen Gebrauch herausgegeben (Königsberg, 1869; repr. Aalen, 1967), especially pp. 96–100; Paul Laband, “Eine bisher unbekannte Rechtshandschrift”, Zeitschrift für Rechtsgeschichte 11 (1873), 44–52; Ferdinand Bischoff, “Beiträge zur Geschichte des Magdeburgerrechts”, Sitzungsberichte der Kaiserlichen Akademie der Wissenschaften. Philosophisch-Historische Classe 50/4 (1865), 333–70; Ferdinand Bischoff, “Über einen deutschen Rechtscodex der Krakauer Universitäts-Bibliothek”, Sitzungsberichte der Kaiserlichen Akademie der Wissenschaften. Philosophisch-Historische Classe, 48/1–2 (1864), 269–97; Carl Gustav Homeyer, Die Extravaganten des Sachsenspiegels (Berlin, 1861), especially pp. 238–239 and 251–259; and Carl Gustav Homeyer, Die deutschen Rechtsbücher des Mittelalters und ihre Handschriften, New Edition, eds. Conrad Borchling, Karl A. Eckhardt and Julius von Gierke (Weimar, 1931–1934), pp. 31–33.
Wieland Carls, “Überlieferungsgeschichtliche Beobachtungen zum Verhältnis von Schwabenspiegel und Sächsisch-magdeburgischem Recht”, in: Schwabenspiegel-Forschung im Donaugebiet. Konferenzbeiträge in Szeged zum mittelalterlichen Rechtstransfer deutscher Spiegel, ed. Elemér Balogh, (Ivs Saxonico-Maidebvrgense in Oriente) 4 (Berlin – Boston, 2015), p. 130; Katalin Gönczi, “Städte des Magdeburger Rechts in Osteuropa”, in: Städtische Räume im Mittelalter, eds. Susanne Ehrich and Jörg Oberste (Regensburg, 2009), pp. 185–186; Jolanta Karpavičienè, “Das sächsisch-magdeburgische Recht in den Kleinstädten Litauens”, in: Grundlagen für ein neues Europa. Das Magdeburger und Lübecker Recht in Spätmittelalter und Früher Neuzeit, eds. Heiner Lück, Matthias Puhle and Andreas Ranft (Köln – Weimar – Wien, 2009), pp. 102–103; Dirk Heirbaut, “Sachsenspiegel or Sassen Speyghel (Saxon Mirror) c.1220–1235, ed. pr. 1474 Eike von Repgow (c.1180–c.1235)”, in: The Formation and Transmission of Western Legal Culture. 150 Books that Made the Law in the Age of Printing, Serge Dauchy, Georges Martyn, Anthony Musson, Heikki Pihlajamäki, Alain Wijffels, eds., coop. Naoko Seriu (Studies in the History of Law and Justice) 7, series eds. Georges Martyn, Mortimer Sellers (New York – Berlin – Heidelberg, 2016), pp. 29–30; Heiner Lück, Über den Sachsenspiegel. Entstehung, Inhalt und Wirkung des Rechtsbuches, mit einem Beitrag zu den Grafen von Falkenstein im Mittelalter (Halle an der Saale, 1999), p. 70; Rolf Lieberwirth, “Einführung oder Rezeption? Mittelalterlich deutsches Recht in slawischen Herrschaftsgebieten. Das Beispiel: Polen”, in: Rechts- und Sprachtransfer in Mittel- und Osteuropa. Sachsenspiegel und Magdeburger Recht. Internationale und interdisziplinäre Konferenz in Leipzig vom 31. Oktober bis 2. November 2003, eds. Ernst Eichler, Heiner Lück, and Wieland Carls, (Ivs Saxonico-Maidebvrgense in Oriente) 1 (Berlin, 2008), pp. 171 and 176; Heiner Lück, “Die Verbreitung des Sachsenspiegels und des Magdeburger Rechts in Osteuropa”, in: Der sassen speyghel. Sachsenspiegel – Recht – Alltag, Vol. 2: Aus dem Leben gegriffen – ein Rechtsbuch spiegelt seine Zeit. Beiträge u. Katalog zur Ausstellung ‘Aus dem Leben gegriffen – ein Rechtsbuch spiegelt seine Zeit’, ed. Mamoun Fansa, 2nd ed., Archäologische Mitteilungen aus Nordwestdeutschland, 10 (Oldenburg, 1996), pp. 43–44; Heiner Lück, Sachsenspiegel und Magdeburger Recht. Europäische Dimensionen zweier mitteldeutscher Rechtsquellen, (Adiuvat in itinere) 5 (Hamburg, 1998), pp. 30, 37, 45 and 48–49; Lück, “Wirkungen des Sachsenspiegels”, p. 276; Heiner Lück, “Prawo magdeburskie jako czynnik identyfikacji europejskiej rodziny miast”, in: Europejskie miasta prawa magdeburskiego: tradycja, dziedzictwo, identyfikacja. Sesja komparatystyczna Kraków, 13–15 października 2006. Materiały konferencyjne, ed. Anna Biedrzycka and Agnieszka Kutylak-Hapanowicz (Kraków, 2007), p. 48; Heiner Lück, “Das sächsich-magdeburgische Recht als kulturelles Bindeglied zwischen den Rechtsordnungen Ost- und Mitteleuropa”, in: Rechts- und Sprachtransfer in Mittel- und Osteuropa. Sachsenspiegel und Magdeburger Recht. Internationale und interdisziplinäre Konferenz in Leipzig vom 31. Oktober bis 2. November 2003, eds. Ernst Eichler, Heiner Lück, and Wieland Carls, (Ivs Saxonico-Maidebvrgense in Oriente) 1 (Berlin, 2008), p. 12; Heiner Lück, “Zur Verbreitung des Sachsenspiegels und des Magdeburger Rechts in den baltischen Landern”, in: Baltische-europäische Rechtsgeschichte und Lexikographie, eds. Ulrich Kronauer and Thomas Taterka (Heidelberg, 2009), pp. 28–29; Heiner Lück, “Sachsenspiegel und Magdeburger Recht. Grundlagen für Europa”, Denkströme. Journal der Sächsischen Akademie der Wissenschaften zu Leipzig 4 (2010), 81–104 (
See more recent monographs, for example, Ludwig Meuten, Die Erbfolgeordnung des Sachsenspiegels und des Magdeburger Rechts. Ein Beitrag zur Geschichte des sächsich-magdeburgischen Rechts (Frankfurt am Main, 2000); Margret Obladen, Magdeburger Recht auf der Burg zu Krakau: Die güterrechtliche Absicherung der Ehefrau in der Spruchpraxis des Krakauer Oberhofs (Berlin, 2005); Adrian Schmidt-Recla, Kalte oder warme Hand? Verfügungen von Todes wegen in mittelalterlichen Referenzrechtsquelle, Forschungen zur deutschen Rechtsgeschichte, 29 (Köln, 2011), pp. 423–424; Jana Pacyna, Mittelalterliche Judenrechte. Norm und Anwendung im Magdeburger Rechtskreis (1250–1400) (Halle/Saale, 2015), Chapter 3.2.2. In her study of the legal status of women in the towns of Małopolska Nataliia Ivanusa uses the 16th century editions of the Weichbild (Jan Łaski’s, Mikołaj Jaskier’s and Paweł Szczerbic’s). Cf. Nataliia Ivanusa, Frauen im Sächsisch-Magdeburgischen Recht. Die Rechtspraxis in kleinpolnischen Städten im 16. Jahrhundert, (Studien zur Ostmitteleuropaforschung) 38 (Marburg, 2017), passim.
Maciej Mikuła, “Das Magdeburger Weichbildrecht in seiner schlesisch-kleinpolnischen Fassung. Anmerkungen zur Autorschaft und Textevolution”, in: Kulturelle Vernetzung in Europa. Das Magdeburger Recht und seine Städte. Wissenschaftlicher Begleitband zur Ausstellung »Faszination Stadt«, eds. Gabriele Köster, Christina Link, Heiner Lück (Sandstein Kommunikation, 2019), pp. 147–165.
In his studies, Zygfryd Rymaszewski employs the term ‘version’ exclusively for translations. With regard to Mikołaj Jaskier’s edition of the Sachsenspiegel, he argues that rather than a new translation, it was a new compilation based on the 1528 Leipzig edition, manuscripts of the Wrocław version (or, to use his terminology, ‘redactions of the versio Vratislaviensis’), and Commune incliti (Jaskier’s versio vulgata). Cf. Zygfryd Rymaszewski, Łacińskie teksty Landrechtu Zwierciadła Saskiego w Polsce. Jaskier – tekst główny i noty marginesowe, [Latin Texts of the Sachsenspiegel Landrecht in Poland: Jaskier – the Main Text and the Marginal Glosses] (Łódź, 1985), pp. 25, 33, 217–218. Cf. also Heiner Lück, “Jaskier Mikołaj”, in: Handwörterbuch zur deutschen Rechtsgeschichte, 2, 2nd ed. (Berlin, 2012), col. 1355–1356.
Cf. Lotar Dargun, “O źródłach prawa miast polskich w wieku szesnastym. II. O źródłach porządku sądowego spraw miejskich Prawa Magdeburskiego przez Bartłomieja Groickiego” [Sources of Urban Law Used in Polish Towns in the 16th Century: II. Sources of Judicial Procedure in Urban Matters in Accordance with Bartłomiej Groicki’s Magdeburg Law], Rozprawy Akademii Umiejętności. Wydział Historyczno-Filozoficzny 25 (1891), 120–56. For a discussion of the rules of evidence in criminal procedure under ius municipale, see Marian Mikołajczyk, Proces kryminalny w miastach Małopolski XVI–XVIII wieku [Criminal Procedure in the Towns of Małopolska in the 16th–18th Century], (Prace Naukowe Uniwersytetu Śląskiego w Katowicach) 2979 (Katowice, 2013), especially Chapters 6–9.
Stanisław Estreicher, Kultura prawnicza w Polsce XVI wieku [Legal Culture in Poland of the Sixteenth Century] (Kraków, 1931), passim.
See: “Preface”, in: The Formation and Transmission of Western Legal Culture. 150 Books that Made the Law in the Age of Printing, Serge Dauchy, Georges Martyn, Anthony Musson, Heikki Pihlajamäki, Alain Wijffels, eds., Naoko Seriu, coop. (Studies in the History of Law and Justice) 7, series eds. Georges Martyn, Mortimer Sellers (New York – Berlin – Heidelberg, 2016), p. 1.
I use the term ‘legal culture’ to mean a group of individual and collective attitudes towards law; see: Krzysztof Pałecki, “O użyteczności pojęcia kultura prawna” [About the Utility of the Concept of Legal Culture], Państwo i prawo 2 (1974), 73–4; also: Adam Podgórecki, Prestiż prawa [The Prestige of Law] (Warszawa, 1966), p. 180: “These general habits and values related to acceptance, evaluation, criticism and implementation of the applicable legal system can be defined as the general legal culture of a given society”). A review of issues related to this concept: Mateusz Stępień, “Kultura prawna” [Legal Culture], in: Lexicon of sociology of law, eds. Anna Kociołek-Pęksa, Mateusz Stępień (Warszawa, 2013), pp. 120–124 and Anna Kociołek-Pęksa, Władysław Pęksa, “Between History and Sociology – Remarks on Differences in Percussion ‘Legal Culture’, Particularly Sociology of Law and the Disciplines of the History of Law”, The Lawyer Quarterly 4 (2016), 209–25 (there is also literature on the subject, note 29). Cf. the term ‘local legal culture’: Tom Johnson, Law in Common. Legal Cultures in Late-Medieval England (Oxford, 2020), pp. 7–8. On the historical aspect, see considerations of Stanisław Estreicher, Stanisław Grodziski, and Wacław Uruszczak (Estreicher, Kultura prawnicza; Stanisław Grodziski, Z dziejów staropolskiej kultury prawnej [From the History of the Old Polish Legal Culture] (Cracow, 2004); Wacław Uruszczak, Historia państwa i prawa polskiego [History of Polish State and Law], 1: 966–1795, 1st ed. (Warsaw, 2010), pp. 185–186).
See Maria Kramperowa and Witold Maisel, “Księgozbiory mieszczan poznańskich drugiej połowy XVI w”. [Book Collections of Poznań Burghers (Late 16th Century)], Studia i Materiały do Dziejów Wielkopolski i Pomorza 11/1 (1960), 257–9.
For a review of the debates about the medieval understanding of the nature of the law, see Pacyna, Mittelalterliche Judenrechte, pp. 16–21.
Cf. the Theme Issue of The Medieval Translator (Vol. 16: Translation and Authority – Authorities in Translation, eds. Pieter De Leemans and Michèle Goyens, Brepols: 2017), and especially Igor Fillipov’s analysis of the use of legal terms proprietas and possessio in Latin translations of the Bible (“Vulgate versus vetus Latina: The Choices of Caesarus of Arles”, pp. 324–327). For an introduction to this particular problem, see the entry “Selected Texts Disseminated Internationally through Translation: The Bible”, in: Translation. An International Encyclopedia of Translation Studies, 3, eds. Harald Kittel, Armin P. Frank, Norbert Freiner, Theo Hermans, Werner Koller, José Lambert, and Fritz Paul (Berlin – Boston, 2011), pp. 2340–2408.
They have an individual character, but it would be wrong to call them ‘private’. Cf. Heiner Lück, “Rechtsbücher als „private‟ Rechtsaufzeichnungen?”, Zeitschrift der Savigny-Stiftung für Rechtsgeschichte: Germanistische Abteilung 131 (2014), 432–433.
The original Decretum Gratiani exists in two recensions; Gratian himself is certainly the author of the earlier version. This view was first presented 60 years ago by Adam Vetulani, and restated by Anders Winroth. Cf. Anders Winroth, The Making of Gratians’s Decretum (Cambridge University Press: 2000), pp. 12–14, 193 and 195; and Adam Vetulani, “Nouvelles vues sur le Décret de Gratien”, in La Pologne au Xe Congrès international des sciences historiques à Rome (Warszawa, 1955; repr. Aldershot, 1990, ed. Wacław Uruszczak), pp. 96, 100–101.
We should bear in mind that the introduction of print created new hazards. One such hazard concerned printers, some of whom would take liberties with the text, e.g. would not print it in its entirety (cf. António M. Hespanha, “Form and Content in Early Modern Legal Books Bridging the Gap between Material Bibliography and the History of Legal Thought”, Rechtsgeschichte 12 (2008), 12–50, esp. pp. 19–21, and 48–49). For that reason the authorities had to keep an eye on the printers who received the official commissions (cf. Maria Cytowska, Bibliografia druków urzędowych XVI wieku [Bibliography of 16th Century Legal and Government Documents] (Wrocław, 1961), passim). The problem of interpretation and adaptation of the written text for print is discussed by Julia Boffey, “Banking on Translation: English Printers and Continental Texts”, in: In principio fuit interpres, ed. Alessandra Petrina, (The Medieval Translator) 15 (Brepols: 2013), especially pp. 328–329. In her book, Maria Cytowska notes that the uniformity of the text in the printed editions must not be taken for granted: “in the first batch of documents distributed through official channels by the royal chancery we can find numerous hand-written revisions and corrections. These notes were then collected by the editors who revised the text of the following print runs. It means that the printer who started work on another print run of a given legal document would follow the revised text sent to him from the chancery” (Cytowska, Bibliografia druków urzędowych XVI wieku, p. 15).
Reinhart Koselleck, “Sediments of Time”, in: Reinhart Koselleck, Warstwy czasu. Studia z metahistorii [Sediments of Time: On Possible Histories], transl. Krystyna Krzemieniowa and Jarosław Merecki (Warszawa, 2012), p. 6.
Helmut Coing, Europäisches Privatrecht, 1: Älteres Gemeines Recht (1500 bis 1800) (München, 1985), p. 86.
This study, focused on the complexities of the normative text, is less interested in confronting the provisions of the law with practical realities. The question about the use of the Saxon-Magdeburg Law by municipal courts in the late Middle Ages is still unresolved, although we know a great deal about their functioning (Cf. Obladen, Magdeburger Recht, p. 205 ff.). We know a great deal, too, about the practical implementation of law by criminal courts in the Early Modern Age, see: Marian Mikołajczyk, Przestępstwo i kara w prawie miast Polski południowej XVI–XVIII w. [Crime and Punishment in the Law of Southern Polish Towns in the 16th–18th Century] (Katowice, 1998); Mikołajczyk, Proces kryminalny, passim; Marian Mikołajczyk, “‘Stosując się do prawa wyraźnego …’ Podstawy prawne wyroków kryminalnych grodziskiego sądu miejskiego w latach 1702–1756” [‘Following the Law Clearly …’ The Legal Basis of Criminal Convictions Grodzisk City Court during 1702–1756], Studia Iuridica Lubliniensia 19 (2013), 202; Kowalski, Zwyczaj i prawo zwyczajowe [Custom and Customary Law], p. 121ff., p. 167. Due to differences in the nature our sources and changes in the country’s legal culture – a problem mentioned earlier – the findings and conclusions about the 17th and 18th centuries must not be projected onto medieval and early 16th-century Poland.
Maciej Mikuła, “Edycje źródeł do dziejów prawa miejskiego w Polsce XIV–XVI w.: propozycja elektronicznej metaedycji źródeł normatywnych” [Editions of Sources for the History of Municipal Law in Poland (14th–16th Century): A Proposal for an Electronic Metaedition of Normative Source Material], Krakowskie Studia z Historii Państwa i Prawa 9/4 (2016), p. 499, English edition: Krakowskie Studia z Historii Państwa i Prawa, special issue (2018).
Jean-Claude Zancarini, “Uno Picolo Dono: A Software Tool for Comparing the First Edition of Machiavelli’s The Prince to Its Sixteenth Century French Translations”, in: The Radical Machiavelli. Politics, Philosophy and Language, eds. Filippo Del Lucchese, Fabio Frosini, and Vittorio Morfino (Leiden – Boston, 2015), pp. 39–55.
Josef J. Menzel, Review of Zygfryd Rymaszewski, Łacińskie teksty Landrechtu Zwierciadła Saskiego w Polsce [Lateinische Texte des Landrechts des Sachsenspiegels in Polen]: Versio Vratislaviensis, Versio Sandomiriensis, Łaski, Zeitschrift der Savigny-Stiftung für Rechtsgeschichte: Germanistische Abteilung 93/1 (1976), 383.
Rymaszewski, Łacińskie teksty. Versio, p. 11.
The principal sources are Magdeburg’s Legal Instructions for Wrocław (Rechtsmitteilungen Magdeburgs für Breslau), Magdeburg Bench Law (Das Magdeburg Schöffenrecht), and the Constitution of Courts (Rechtsbuch von der Gerichtsverfassung) as reproduced in Paul Laband’s Magdeburger Rechtsquellen and Friedrich Ebel’s Magdeburger Recht, Vol. II: Die Rechtsmitteilungen und Rechtssprüche für Breslau, Part 1: Die Quellen von 1261 bis 1452, Mitteldeutsche Forschungen, 89/II/1 (Köln – Wien, 1989).
Witold Maisel, “Prawo magdeburskie miasta Pleszewa” [The Magdeburg Lawbook of Pleszew], Studia i Materiały do Dziejów Wielkopolski i Pomorza 9/1 (1963), 66–82.
For a detailed discussion of these texts, see Chapter 1.3. Their list is not identical with that in U.-D. Oppitz’s catalogue. For example, MS 817 from the Polish Academy of Sciences Library at Kórnik does not contain the Weichbild, but has a selection of the Magdeburg ortyle on f. 31–34 (cf. Kałużniacki, Die polnische Recenzion, pp. 219 and 259–260; No. 838 in U.-D. Oppitz’s catalogue). Marcin Zabowski’s MS from the National Library in Warsaw, listed as No. 1457 in U.-D. Oppitz’s catalogue contains in fact both the Sachsenspiegel and the Weichbild.
Friedrich Ebel, ed., Magdeburger Recht, Vol. II: Die Rechtsmitteilungen und Rechtssprüche für Breslau, Part 1, pp. 1–16.
Krzysztof Fokt, Christian Speer, Maciej Mikuła, eds., Najstarsza zgorzelecka księga miejska 1305–1416 (1423). Edycja i komentarz, cz. 1 [The Earliest Book of Municipal Court Records of Zgorzelec (Görlitz) 1305–1416 (1423): A Critical Edition and Commentary, Part 1] (Fontes Iuris Polonici) 5 (Kraków, 2017).
Adam Wolff, “Projekt instrukcji wydawniczej dla pisanych źródeł historycznych do połowy XVI w”. [A Blueprint Guide to Publishing Written Historical Sources from before the Mid-16th Century], Commentationes: Studia Źródłoznawcze 1 (1957), 155–88.
Cf. Chapter 3.3.4.
In the Weichbild of the Gniezno MS, the standard compurgation involved the presence of six oath-helpers (metseptimus); the oath mettercius, i.e. with two oath-helpers, appears only once in connection of the false claims (Article 49). The oath-helpers were to be freemen (Article 95) of good repute with a clean court record (Article 32, 49 and 102). A man who promised to come forth as an oath-helper could not be released from his promise by anybody other than the judge (Article 97).
The provisions concerning criminal procedure usually formulate the complaint with due care (Articles 38, 51, 52, 53, 54, and 55). The Weichbild also contained the text of the Jewish oath and a description of the manner in which it was to be delivered, including the participants’ dress and gestures (Articles 108 and 109).