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LECTURE III

THE BOHEMIAN KINGDOM

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HAVE had the honour to describe to development of the sources of law in the Orthodox Slavonic states, and wish now to attract your attention to the Roman Catholic Slavonic ones. But I must, as an introduction, acquaint my esteemed auditory with the peculiarities of each state.

Bohemia appeared first on the historical scene. This country from 795 entered into a close union with Germany, which was almost uninterrupted. A long series of Bohemian kings were at the same time emperors of the Roman empire, so that Prague was for centuries the centre of Western continental Europe. If we keep in mind that, from time immemorial, we find German inhabitants in the cities, who became more and more numerous, we cannot be astonished, therefore, that German influence was felt in Bohemia and Moravia from the beginning. This influence prevailed at the court and among the higher nobility, and evoked an eager reaction, when the celebrated Huss adopted the doctrine of Wicliffe. Ancient reminiscences of the old Slavonic democratic organization, long dormant, awoke with an enormous force in the twentieth year of the fifteenth century and caused the extermination of German elements, which upheld the mediaeval social structure.

The population of the cities in this manner became Bohemian and took an important part in the whole of the Bohemian political life. The proximity of Germany and the evident danger of being absorbed produced a greater cohesion of diverse provinces than in Poland, and even the feeling of the want of a stronger Government. Thus the following peculiarities distinguish. Bohemia and Moravia: a great and prolonged German influence, the large part taken by the town inhabitants in political life, a sense of strong authority, more lively than in Poland, and therefore not such loose selfgovernment of provinces; on the other hand the almost extinct power of the Roman Catholic Church from the fifteenth century.

Poland presents herself in a somewhat different aspect. This country was separated from the Germans by the Slavs, living on the shores of the Baltic, who carried on desperate wars with the Germans during centuries, and died out only in the twelfth century. Not only news of these struggles came to Poland, but she also gave refuge to a great many fugitives. Certainly that could not produce sympathy with Germany. The Teutonic knights settled in the thirteenth century on Polish territory on the Baltic, and very often directed their arms against Poland. This explains the want of German influence; feudal law, for instance, is almost unknown in Poland. On the contrary the Roman Catholic Church was a powerful factor of Polish culture; she trained the Polish mind from the beginning to the end; she changed the direction of Polish aggressive tendencies from the West, as it was under Boleslav I, to the East; she also took a large part in the increase of the privileges of the nobility and in the weakening of the kingly power; she

acquainted Polish society with the Canonical and Roman law. As the culture of Western continental Europe is composed of two factors, Roman and German, it is not astonishing that the decrease of the German factor augmented the Roman one. The extent of the country and the sparseness of the population hindered the spread of foreign views and rendered easy the conservation of ancient Slavonic ideas, which produced the parcelling of the state. Thus principalities arose, which became independent in the thirteenth century and accustomed the Poles to very great decentralization. A great many conditions combined to weaken more and more the kingly power. Large colonies of Germans settled, principally in the cities, from the end of the twelfth century, and even endeavoured in the beginning of the fourteenth century to turn Poland into a province of the German empire. This attempt, together with the long duration of the German nationality in the cities, provoked in the Poles a sense of disappointment and even hostility against the inhabitants of the cities, and caused their exclusion from the diets. As the kingly power was very feeble and the citizens took no part in political life, the nobility began to reign without a rival from the fifteenth century and considered themselves as the nation. Thus the enormous influence of Roman Catholic ideas, a want of political rights by the citizens, a very feeble kingly power, a great decentralization with a very broad system of self-government of different provinces, and finally the conviction that the nobility is the whole nation, characterize Poland from the beginning, but Lithuania only from the second half of the sixteenth century.

The Croatian principality and later on a kingdom

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began to attract the attention of the neighbouring nations from the eighth century, but its independent life continued only a short time. She was never a wellconsolidated, cohesive state, and fell in 1102. Croatia entered, endowed with a large system of self-government, into Hungary; almost the whole of the shores of the Adriatic were subdued by Venice. Indeed great differences in geographical configuration, in influences coming from Hungary or from Italy, in the way of gaining a livelihood, in the customs and manners, even in the blood of the population, existed from times immemorial between Croatia and the shores of the Adriatic. These differences came into greater prominence after the loss of political independence, so that the sources of the Croatian law have quite a different character in Croatia and on the Adriatic. The nobility prevailed in the first country, whilst only the inhabitants of the towns led a semi-independent life in the second.

We can now turn, after this slight glance on the Western Slavonic states, which will occupy us later on, to the sources of the Bohemian law 1. I divide them

1 A short, but classical, survey of the evolution of the Bohemian State and Society is given by the eminent Prof. Tchelakovsky: Povsechné Ceské Dejiny Pravní ( General History of the Bohemian Law'), 2nd ed., Prague, 1900. The history of the Bohemian constitutional law is written by the learned Prof. Kalousek : Ceské státní pravo ( The Bohemian Constitutional Law '), 2nd ed., Prague, 1892; in this work is given the historical basis for the political claims of the Bohemian people. The history of the private law is not yet represented in full, but everybody can find a valuable description of the organization of justice, of the law procedure, and of the private law in Victorin Kornelius of Vsehrd, the celebrated lawyer of the end of the fifteenth and the beginning of the sixteenth centuries (0 právích zeme ceské knihy devatery, 'Nine Books upon the Laws of the Bohemian Country'). A

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into three periods, each one possessing traits described my first lecture: the first period beginning from the complete bibliography of the Bohemian history is on the point of appearing Zibert, Bibliografie ceske historie, vol. i, Prague, 1900. A juridical journal with the participation of the professors of the Bohemian juridical faculty has begun to appear from this year under the redaction of Prof. Boh. Rieger with the title, Sborník ved právních a státních (A Collection for Juridical and Political Science'). Finally, we can indicate upon Bohemian history two English books, which are praised by critics: C. Edmund Maurice, Bohemia from the Earliest Times to the Fall of National Independence in 1620, London, 1896, and Francis Count Lutzow, Bohemia, An Historical Sketch, London, 1896.

The juridical documents of the Bohemian legal history were edited in Prague by the celebrated Bohemian historical investigator Herm. Jirecek in six 'tomi' under the title, Codex iuris Bohemici (1867 until now, not yet finished); these 'tomi' are subdivided into 'partes.' The first 'tomus' includes the oldest legal documents until 1306, pnblished 1867. The second-the documents of the fourteenth century (1306-1420); this 'tomus' consists of part (pars) 1 (Documenta iuris publici saec. XIV, from 1306–78), 1896; part 1 (Ius terrae atque ius curiae regiae saec. XIV), 1870; part II (Scripta ad rempublicam administrandam spectantia), 1889; part iv (Monumenta iuris municipalis saec. xiv), 1898. From the third 'tomus' appeared only part II (Ius terrae saec. xv, from 1420-1500), 1873, and part II (Mag. Victorini a Vsehrd, opus bohemicum, 'de iure terrae Bohemiae libri novem'), 1874. The fourth 'tomus' includes part 1, sectio 1 (Iura et constitutiones regni Bohemiae), 1882; part 1 (Monumenta iuris municipalis), sectio 1 (Mag. Briccii a Liczko, Ius municipale Pragense), 1880, sectio 2 (Mag. Pauli Christiani a Koldín, Ius municipale Regni Bohemiae una cum compendio eiusdem iuris), 1876; part v (Scripta iurisconsultorum saec. xvi), 1883. From the fifth 'tomus' appeared part 1 (Constitutiones regni Bohemiae anno 1627 reformatae), 1888; and part III (Constitutiones margraviatus Moraviae anno 1628 reformatae), 1890. This description of the contents of this monumental edition shows clearly, that the edition is far from its end, and that the 'tomi' and 'partes' do not appear in their chronological order.

The second very important edition for the legal history of the