Personality of Law and Citizenship

in Middle Ages and Early Modern Period

(Situation in the Bohemian Crown)

Marek Starý

 

For modern state it is obvious that its law obliges everyone who appears on its territory. This principle is called ‘territoriality of law’. Another principle related to the force of legal system, which is a part of interpretation of continental legal history, is the ‘personality of law’. It is usually defined as a situation, when person entails its own law and is associated primarily with the early Middle Ages.[1]

This kind of system functioning was certainly not practical for a very long time. It was usable only for ethnic groups constantly living on a state´s territory. It is hardly imaginable that medieval public authorities could have knowledge about the shape of foreign law in every case where a defendant comes from another country; furthermore, according to the typical medieval heritability of the legal status, even where the foreign origin relates to his ascendants. This wouldn’t be functional.

Several examples when rules of law were obligatory only for some nationalities are known. Often mentioned is the situation after the fall of ancient Roman Empire. On the territory of primitive barbarian German states there were some few ethnic groups with their own law and even with their special codes.[2] From the Czech legal history it is documented, that duke Soběslav II. published special privileges for Prague Germans in the 2nd half of 12th century.[3] In Hungary, namely in the territory of Spiš (today part of Slovakia) special rules held good for immigrated Germans from the 13th century.[4] Nevertheless, it is hard to say, that this was generally the way how law was applied. Many cases are known when disputes were judged according to the law of the state where they had occured no matter who were the litigans.

Considering the force of rules of law, another viewpoint must be accented. Even in the Middle Ages each state had its own law (‘teritoriality of law’). Nevertheles, up to the 19th century legal code in all Europian countries was not uniform for all nationals. Instead of that, we can monitor partial systems of rules for different groups of state inhabitants. These groups could be based on the ethnic origin, but more often they were defined by social status. Also this subjection to the special part of legal order could be called ‘personality of law’, at least in its larger sense.

If we focus on the complicated body of the so-called Bohemian Crown (‘Corona Regni Bohemiae’), we can define five main realms of law in the period of advanced Middle Ages and early modern period. First of them, land law, obliged nobility and in some points even the monarch. Gentles could be also partly subjected to feudal (beneficiary) law, if they received tenure from king or other feudal lord. When towns began to rise in the 13th century, their inhabitants lived according to special citizen law, which was imported from western countries and progressively creatively evolved. Other rules obliged rural subjects. And we can not pass over clericals of the Catholic Church with their immunities and subjection to the canon law. Ethnicly and legaly peculiar community was represented by Jews.[5]

This brief overview is of course somehow simplified. For example, if we talk about municipal law, there was no uniform set of rules of law for all towns, but there existed couple of legal domains with somewhat different roots. It means two burgesses, people of the same social status, lived under possibly expressively different rules. Efforts towards the unification of municipal law in Bohemian Kingdom finally succeeded not until the beginning of the 17th century. The legal capacity of rural subjects was similarly disintegrated. Not seldom people had to respect and follow rules from those components of legal order which were not primary intended for them. We must not be surprised, that we can find not only a few clauses bent at burgesses and rural subjects in Bohemian land codes from the 16th century. Also the force of the municipal law usually partly widened on neighbouring rural territories.

Legal differentiation of state´s inhabitants also opens the question of their legal relationship to the state. Was there some kind of citizenship similar to its modern shape? The answer is rather negative. Some links between the state and people certainly existed but this system was primarily based on personal dependences. All the inhabitants of the state were liege subjects to the king, either directly, or vicariously, through the mediation of their lords. Perception of the state as the corporate body was after all in the very beginning.

In medieval and early modern law of the Bohemian Crown (and other countries under the rule of Hapsburg dynasty as well) we can find one juridical institute which is often carefully compared to modern citizenship. It is called ‘inkolát’ (derivated from Latin phraseograph ‘ius incolatus’, i.e. residential right). The definition of legal historian Jan Kapras, who assessed ‘inkolát’ as ‘in principle state citizenship estately qualified’[6] is cited until today.

‘Inkolát’ is also a typical example of long-lasting repetition of conclusions of former research authorities. In the Czech legal history, it was Josef Kalousek, who minutely occupied himself with the research of this juridical institute. He formulated his thesis in the book Czech State Law in the end of 19th century.[7] From that time, ‘inkolát’ did not attract detailed attention of later scholars. Of course, historians and jurists wrote henceforth about it.[8] Few paragraphs about ‘inkolát’ were also included in the academic textbooks of Czech legal history.[9] Nevertheless, in all cases Kalousek´s conclusions were paraphrased and simplified.

The only exemption represent studies of Vladimír Klecanda. Professor of history and archival theory who worked at the Universities in Prague and Bratislava dealt with the topics of citizenship and membership in Bohemian estates in detail and collected extensive matter for future synthesis[10]. Unfortunately, he did not get down to realize it. On the other site, it has to be mentioned, that Klecanda approached his analysis primarily from the archivist´s point of view. It means he emphasized administrative procedures and producing of documentary sources, but he let at the edge of his attention the legal appraisal.

Going back to the authentic period sources, we can find slightly different sight than in Kalousek´s Czech State Law. By Kalousek ‘inkolát’ is presented as an institute forming the bond between lands constituting the complex of the Bohemian Crown, i.e. Bohemia, Moravia, Silesia[11] and Upper and Lower Lusatia. This conception of common residential right for all lands of the Bohemian Crown run up against one basic problem. The most important meaning of ‘inkolát’ was that only its holder could take possession of allodial property registered in Land Books. It is doubtless, supported by documents, that inhabitants of one land of the Bohemian Crown were not allowed ipso jure to buy these properties in another land, to inherit them or to come into them by any other legal way. First they were obliged to commit the juristic act, i.e. to formally confess to the land where they wanted to settle or realize some propertiary interests and to make sealed reverse. From the wide range of Moravian, Silesian and Lusatian nobles who used this way to come to the Bohemian Kingdom e.g. prince Karl of Lichtenstein, Emperor´s Bohemian governor after the battle on White Mountain (1622-1627), or Cardinal Franz of Dietrichstein (who held in the years 1621-1636 the same position in the Moravian Margraviate) can be mentioned.[12] Bohemian noblemen had to confess to the land in Moravia as well.[13]

In fact, there were five separate ‘inkoláts’ for five lands of the Bohemian Crown. Noblemen (and in rare cases also townsmen) could migrate between the lands, they could obtain residential right in two or more lands, but it never held true, that anyone has automatically this right in the whole Bohemian Crown. It is difficult to speak about ‘inkolát’ as about some kind of state citizenship, if we know the fact, that already from Medieval Ages not separate lands, but only the complex of the Bohemian Crown was perceived as a state with legal subjectivity. We can discuss the (quasi)federative organization of the Bohemian Crown. We can remind that in some short periods lands of the Bohemian Crown were divided between two sovereigns.[14] We can analyze the relationship between the lands in the period of estates´ revolt, when the so-called Bohemian Confederation was passed as the base for full coequality between the lands and the Bohemian Crown which was transformed for a while to the confederation. But this does not change the fact, that even in federations and confederations state citizenship refers to the whole state and possible citizenships of single countries are secondary. On the other hand, in Bohemian medieval and early modern history ‘inkolát’ as a form of legal relationship always refered only to separate lands and never to the whole Bohemian Crown.

The second main distinction between ‘inkolát’ and contemporary state citizenship is the limited number of the privileged who were allowed to obtain the residential right in the past. Absolute majority of them comprised nobility. ‘Inkolát’ was naturally at first hereditary. As shown hereinbefore, lords and knights from one land of the Crown could obtain ‘inkolát’ in the other land through the confession and deposition of the sealed reverse by the office of Land Books. There existed one more possibility for them. If Lords´ or Knights´ Estate admitted them as new members, they received ‘inkolát’ automatically.[15] Foreigners in true sense, it means from other countries (mostly from Hungary, Austria and German principalities, but also from Poland, Italy, Spain etc.), had to be adopted by the assembled representatives of estates on the ground of the Land Diets and they also needed approval by the monarch. They were obliged to seal very similar reverse and later in the 16th and in the beginning of the 17th century they had to fulfil some more conditions.

For noblemen, ‘inkolát’ represented also the right to be designated to the public offices in the land. In reality, the high land offices were reserved for members of traditional families and it was nearly impossible for new inhabitants to infiltrate among them.

The law of the lands of the Bohemian Crown also allowed the possibility that ‘inkolát’ could be granted to a townsman but it was quite a rare case. If someone wanted to become a burgess, he needed to be admitted to the community of a certain town by the city council. Nevertheless, in the second half of the 16th century the practice settled, that some not noble foreigners (typically from the citizen background) who wanted to buy some allodial properties were not admitted to a concrete city, but they were adopted by the Land Diet.[16]

There are also few events which open another questions. It is assumed as self-evident that only a person could be a subject of ‘inkolát’. But as it is written in Land Books, in the year 1583 Moravian city of Jihlava confessed to the Bohemian Kingdom and made standard reverse. Another similar example represents the Silesian monastery of Krzeszów (1600).[17] It may mean that potentially ‘inkolát’ was accessible also for corporate bodies.

Another problematic question relates to the status of women. Again, it is usually claimed without doubt, that women were not allowed to receive ‘inkolát’. But there are two examples of their confession to the Bohemian Kingdom: Catharina of Ludanic (wife of the last member of famous Bohemian Rožmberk family) in the year 1593 and three Silesian princesses, sisters Catharina Sofia, Anna Maria and Emilia of Lehnice and Breg eleven years later.[18] And when John Purkart Elder of Mehlrod was admitted in the land (1545), it refered explicitly also to his daughter Dorothy.[19] In Moravia, countess Esther of Hardegg received ‘inkolát’ by Land Diet in 1600.[20]

It is impossible to analyse these selected problems in a limited space of this contribution.[21] After all, it was not its main purpose. Two important general facts should be shown instead. First, a lot of themes which are apparently terminated by former authorities possibly need further revision. Second, it would be very useful if more historical legal institutes could be examined in a wide Europian comparison with participation of the researchers from different countries. Anyway, it is possible to state, that legal history as the field of study is far from depletion.[22]  

 


[1] See e.g. Ottův slovník naučný [Otto´s Encyclopedia], Vol. XIX., Praha 1902, p. 562; Brockhaus Enzyklopädie, 16. Band, Mannheim 1991 (19. Auflage), p. 699; Universum. Všeobecná encyklopedie [Universum. General Encyclopedia], Vol. 7, Praha 2001, p. 225; Dějiny evropského kontinentálního práva [History of European Continental Law], Praha 2003, p. 119 and others.

[2] The best-known of these codes is probably the so-called Lex Romana Visigothorum (King Alarich´s Breviary), which was published in 506 for Romans living on the territory of Visigothic kingdom.

[3] Last time published in: Prameny k dějinám práva v českých zemích [Sources to the Legal History of Czech Lands], edd. K. ADAMOVÁ – L. SOUKUP, Plzeň 2004, pp. 23-24, No. 6.

[4] K. MALÝ – F. SIVÁK, Dějiny státu a práva v českých zemích a na Slovensku do r. 1918 [History of State and Law in Czech Lands and in Slovakia till 1918], Praha 1992, p. 78.

[5] Minutely B. BONDY and F. DVORSKÝ, K historii Židů v Čechách [To the History of Jews in Bohemia], 2 volumes, Praha 1906, passim.

[6] Slovník veřejného práva československého [Thesaurus of Czech Public Law]. Vol. II., Brno 1932, p. 5.

[7] J. KALOUSEK, České státní právo [Czech State Law], Praha 1892 (2. edition), pp. 140-153.

[8] J. KLIMENT, Státní občanství a národnost v českém právu do Bílé hory [State Citizenship and Nationality In Bohemian Law till the White Mountain]. In: Sborník prací z dějin práva československého [Anthology of Works from Czechoslovak Legal History]. Svazek I. Práce ze semináře českého práva na Karlově universitě v Praze [Works from Seminar of Czech Law at Charles University in Prague], No. 15, Praha 1930, pp. 50-59

[9] See e.g. J. KAPRAS, Právní dějiny zemí Koruny české [Legal History of the Lands of the Bohemian Crown]. Tom II. Dějiny státního zřízení [History of State System], Část 1. Doba předbělohorská [Period Before the White Mountain], Praha 1913, pp. 346-348; V. VANĚČEK, Dějiny státu a práva v Československu do roku 1945 [History of State and Law in Czechoslovakia till 1945], Praha 1976, p. 150; K. MALÝ et al., Dějiny českého a československého práva do roku 1945 [History of Czech And Czechoslovak Law till the Year 1945], Praha 1999 (2. edition), p. 62.

[10] V. KLECANDA, Přijímání do rytířského stavu v zemích českých a rakouských na počátku novověku (Příspěvek k dějinám nižší šlechty) [Admission to the Knightage in Bohemian and Austrian Lands in the Begining of  Modern Period (Contribution to History of Lower Nobility)]. Časopis Archivní školy VI, 1928, pp. 1-125; IDEM, Přijímání cizozemců na sněmu do Čech za obyvatele (Příspěvek k dějinám inkolátu před obnoveným zřízením zemským) [Admission of Foreigners for Bohemian Residents on the Diet (Contribution to History of ‘Inkolát’ before the Restored Land Code)]. In: Sborník prací věnovaných prof. dru Gustavu Friedrichovi k šedesátým narozeninám 1871-1931, Praha 1931, pp. 456-467; IDEM, Tři kapitoly o českomoravských erbovnících [Three Chapters about the Bohemian Armorial People]. Zprávy Českého zemského archivu VII., 1931, pp. 69-96; IDEM, Zakupování cizozemců v Čechách bez práva obyvatelského (Příspěvek k dějinám inkolátu před OZZ) [Purchasing of Foreigners in Bohemia without the Inhabitant´s Right (Contribution to History of ‘Inkolát’ before the Restored Land Code)]. Časopis Archivní školy III, 1926, pp. 64-119.

[11] Silesia was sensed as one land, but legally it was divided into small principalities. Some of them had their own ruler who was vassal of the Bohemian King. To this complicated situation see e.g. R. FUKALA, Slezsko. Neznámá země Koruny české [Silesia. An Unknown Land of the Bohemian Crown], České Budějovice 2007, passim.

[12] These reverses from Bohemian background are concentrated in Národní archiv Praha [National Archive Prague, hereafter NA Praha], fond Reversy k zemi [collection Reverses to the Land, hereafter RZ]. See numbers of inventory 199 (Liechtenstein, 29.4.1602), 282 (Dietrichstein, 25.1.1618). Confessions to the Land were written into Land Books which are also deposited in NA Praha, fond Desky zemské [collection Land Books]. Liechtenstein´s confession is in book with signature DZV 131, folio D 25r – D 25v, Dietrichstein´s in book with signature DZV 139, folio D 19v.

[13] F. KAMENÍČEK, Zemské sněmy a sjezdy moravské [Moravian Land Diets and Conventions], Vol. III., Brno 1905, s. 85.

[14] By the treaty of Budín and Olomouc the Bohemian Crown was divided between the Bohemian king Vladislav II. Jagello and Hungarian King Mathias Hunyady (who also used the title King of Bohemia) between 1478-1490. Again the treaty of Libeň from the year 1608 broke up Moravia from other lands until 1611.

[15] In detail M. STARÝ, Přijímání moravských a slezských šlechticů do panského stavu Království českého v 16. a 17. století [Admission of the Moravian and Silesian Noblemen into the Lords´ Estate in the 16th and 17th Century]. In: Korunní země v dějinách českého státu II. Společné a rozdílné. Česká koruna v životě a vědomí jejích obyvatel ve 14. – 16. století [The Lands of the Crown in the History of Czech State II. Common and Different. The Bohemian Crown in the Life And Mind Its Inhabitants in the 14th – 16th Century], ed. L. Bobková – J. Konvičná, Praha 2005, pp. 251-288.

[16] Examples in V. KLECANDA, Přijímání cizozemců, c.d., pp. 456-457. Legally this situation was regulated by the resolution of Land Diet in 1575. Sněmy české od léta 1526 až po naši dobu [The Bohemian Diets from the Year 1526 until the Present], Vol. IV. (1574-1576), ed. A. Gindely et al., Praha 1886, p. 275.

[17] NA Praha, DZV 21, fol. P 14v – P 15r, DZV 129, fol. N 23v; RZ, numbers of inventory 93, 187.

[18] NA Praha, DZV 26, fol. M 16r – M 16v, DZV 132, fol. F 29v – F 30r; RZ, numbers of inventory 148, 214.

[19] NA Praha, Land Books, DZSt 42, fol. F 10r.

[20] F. KAMENÍČEK, Zemské sněmy, Vol. III., c.d., p. 99.

[21] See minutely M. STARÝ, Ius incolatus. Několik poznámek k českému právu obyvatelskému v době předbělohorské [Ius Incolatus. Some Notes on the Bohemian Residential Law at the Time Before the White Mountain]. Právník 12/CXLV, 2006, pp. 1452-1466.

[22] The importance and position of legal history in the programs of study at the faculties of law in Czech republic are lately often discussed.