The territorial states of Germany
The constitution of 1235 gave the special notary responsibility for
receiving bills of complaint (in the German version: die brive, die umb
klage sint) and for summoning defendants from throughout
Germany.^101 But a constitution framed for ‘the general state and tran-
quillity of the empire’ remained at a distance from the localities and
their needs. No new regional justices were to be appointed for Germany
in 1235 as they were for Sicily in 1231; no itinerant royal justices or
inquisitors were provided to hear the complaints of the people in the
same manner as in Spain, England, and France; and the chief justiciar
and special notary are virtually invisible in the years that follow.^102
The law used every day in Germany continued to be the mixture of
customary law (‘Landrecht’) and the rules of feudal landholding (‘Lehn-
recht’) described in Eike von Repgow’s Sachsenspiegel(1220s) and the
other ‘mirrors’ of regional societies such as the Schwabenspiegel
(1275/6).^103 The Landfriedeof 1235, without limitation of time or place
and not reliant on communal oaths, was an ultimate assertion of the
ruler’s legislative authority, but the nature and extent of the empire
hampered in Germany the fusion of law-making with justice-doing
which would elsewhere provide the foundation of states. Frederick II’s
and Henry VII’s German constitutions were compelled to emphasize the
responsibilities of the nobles for the enforcement of the peace as
‘provincial judges’ (iudices provinciae), and the jurisdiction of the local
courts (Landgerichte) remained as complete as the royal court’s, though
the king could call any case into his presence, and powerful litigants
could appeal to him.^104
With Frederick’s death in 1250 and the papacy’s eradication of the
Hohenstaufen dynasty, any sense of dynastic legitimacy was replaced as
the mainstay of German kings by their role as promoters of peace. In
March 1255 the elected ‘king of the Romans’, William count of
Holland, appointed Adolf count of Waldeck ‘our and the common-
wealth’s general justiciar’ to promote ‘the tranquil state’ of the empire’s
faithful subjects. At Mainz in the same year, the consuls and magistrates
of more than seventy cities of Upper Germany established by the
The territorial states of Germany 99(^101) Constitutiones 1198–1272, 242–3 (caps. 4–5 of the 1235 Landfriede), 262.
(^102) H. Angermeier, ‘Landfriedenspolitik und Landfriedensgesetzgebung unter den Staufern’,
in Probleme um Friedrich II, ed. J. Fleckenstein (Sigmaringen, 1974); Handbuch der Quellen
und Literatur der neueren europäischen Privatrechtsgeschichte,i.Mittelalter, ed. H. Coing
(Munich, 1973), 405–6, 591; Arnold, Princes and Territories, 191–3.
(^103) Sachsenspiegel Landrecht, ed. K. A. Eckhardt, MGH Fontes Iuris Germanici Antiqui, ns
1 (i) (Göttingen, 1973), 140–7 (2.12–2.16).
(^104) Constitutiones 1198–1272, 74. 32 , 75. 5 , 242–3 (caps. 4 and 5 of the 1235 Landfriede),
- 26 , 607.38; Arnold, Princes and Territories, 6, 45, 65.