RICE UNIVERSITY S CHWABENSPIEGSL: LSHEKR2CHTBUCK AH MODISH TRANSLATION by William John Slayton A THESIS SUBMITTED IN PARTIAL FOLB’ILLrLElTi’ OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF ARTS Thesis Director's signature: Houston, Texas May, 1967 Abstract SCHWA33HSPIEGSL: LBHEHHSCHTBUCH AN ENGLISH TRANSLATION ’William John Slayton This English translation of the Lehenrechtbuch (Book of Territorial IJ3.IT) of the thirteenth century Schwabenspiegel (Swabian Mirror), a German lawbook written in Middle High German, has two basic objects. The immediate goal of the translator was to work with the Middle High German text as a philological problem, the solution of which is a rendering of the text into an English version which attempts to express as literally as possible the German sense of the words, yet preserve the spirit in which the Schwabenspiegel was composed. The second goal., the more signifi¬ cant of the two, is to present for the first time to English readers with an interest in medieval law the text of a legal document which was previously accessible only to those who could read Middle High German, The translation procedure was as follows: The main text upon which the translation is based, the edition of F. L, A, von Lassberg (Dor Schwabenspie gel [Neudruck der Ausgabe l81*o\ Oleisenhelin/Glan, 196l3), was supplemented by the translator in places where it seemed garbled, incom¬ plete, or otherwise in error, by making reference to an edition by K, A, Eckhardt (Schwabenspiegel Kuraform [Gdttingen, l°60-6l3). This translator, knows of no other extant translations of the Schwabenspiegel in English, modern German, or any other language, and therefore a comparison of this translation with another one to clarify obscure passages was out of the question, The translator did, however, lean heavily upon the various histories of German law listed in the bibliography. In these books one can often find commentaries on the meaning and application of any law which might seam unclear at face value,, 'Whenever a place name which is not immediately recognizable occurs in the translation, the translator has attempted to identify it in a footnote* To help the reader in regard to puzzling Middle High German terras, a glossary is provided at the end of the translation. The glossary gives page references not only to definitions of these terras, but also to other places where the terras occur in the course of the translation. The introduction which precedes the English translation is intended to show the relation of the Schwabenspiegel to the Middle Ages. First, the conception and attitude of this epoch in regard to law is discussed. Then follow sections dealing with (l) the origins of the Schwabenspiegel and of other medieval lawbooks, (2) the place of these lawbooks in Middle High German prose, and (3) the relationship of the Schwabenspiegel to thirteenth century feudalism. Finally, the manuscript sources of the English translation are analyzed Contents I* Introduction* A» The Medieval Conception of Law ....... ...... i B. Origin and Relationship of the German Lawbooks of the Middle Ages .................. v Co The Lawbooks and Middle High German Prose. x D. Feudalism and the Schwabenspiegel. ........... xiii E, The Manuscript Sources of the Translation, xvi II, Schwabenspiegel: Book of Feudal Law. 1 III, Glossary of Middle High German Expressions in Text 120 rtf'. Bibliography. ........................ 3.22 The 1-fedieval Conception of Law The mind of the Kiddle Ages firmly believed that its laws constituted an order which—having been carefully handed down from one generation to another—xjas not to be arbitrarily altered. Thus medieval law consisted largely of those old laws which had been transmitted from earlier times, since people shrank from making changes in the existing system. “Das Kittelalter zeigte die Neigung, das Recht nicht auf Gesetz zu grUnden, sondern mit Hilfe von Weistiimem ftlr imraer festzulegen."* Thus, although the laws could be found in the old precedents, they could not be newly legislated. The author of the Sachsenspiegel (see below) was careful to include no new laws in his book: Diz recht htn ich selbe nicht irdltcht, iz habent von aldere an unsich gebr&cht A JOi Ease guten vorevaren. It was desirable to be able to trace a contemporary lav: back to a great lawgiver. If this could be done, the law in question was held in great esteem. Indeed, even the great medieval legislators tried to base their laws on a higher authority by referring back to famous lawgivers of earlier times. Thus, Frederick I (Barbarossa) liked to refer to the Roman emperors and Charlemagne in order to lend his own laws greater validity. The laws of the Middle Ages were primarily handed down by oral trans¬ mission. Laws which were written down in statute form constituted only a small part of the total body of laws. Not until the thirteenth century and the advent of the lawbooks did a written legal literature begin to assume significance. ^Hermann Conrad, Deutsche Rechtsgeschichte (Karlsruhe, 19%h), I. 1|68. **"Reimvorrede," Sachsenspiegel: Land- und Lehnrecht, ed. Karl August Eckhardt, in I-Ionunenta Geraaniae Historica, Vol. I ^Hannover, 1933), vs. 151* p. 8. :UL The medieval mind ultimately traced all laws back to God, the creator of the world with its order and the origin of all that is good. The system of laws was simply a portion of the divine order of the world. Thus, the laws strove to bring about righteousness—which was, of course, the goal of divine order. God, in whom all righteousness originated, was also the creator of all laws. ‘'Got ist selbe recht, dar umme is yin recht lieph.”" Whoever broke the law sinned against God and against the divine order. The author of the Sachsenspiegel uses such an argument in warning men to heed the laws: Swer buten rarer lere gat, her sprechit lichte, des her laster h&t, Unde dbt sunde jegen gotj went her brichet aer b bot Swer sb recht virkcrret. ("Reimvorrede,11 vs. 133, p. 7). According to the medieval conception of the state, the most important goal of the inhabitants was the establishment of law and peace among them¬ selves and throughout the state. Since law helped assure peace, it came to be considered equivalent to peace. Law stood above the state, which was subordinate to the law, just as the individual was subordinated to laws. The state itself was seen as only the best means of putting law into effect. According to this concept, the medieval ruler was bound to act according to the law. It was the ruler’s task to preserve the contemporary law. Any ruler arbitrarily changing a law would actually be breaking it. Such a man would be considered an unjust tyrant who was serving only his own welfare and not that of the members of the state. Conrad (p, h6p) mentions the Tegernsee play about Antichrist (performed about ll60) as ar. example. In this drama, the Antichrist proclaims that a new system of laws will cause "Prologue," Sachsensuiegel 13. iii the old customs to fall. By so doing, he characterizes himself as an unjust ruler. The ties between, the ruler and the already existing laws resulted in a limiting of royal legislative power. Only toward the end of the Middle Ages did the ruler1 s power to legislate increase. Every medieval body of people, even as snail as the clan, developed its own body of laws, This is the real cause of the progressive disunity of the law in Germany during the Middle Ages, Until the twelfth century, when true imperial legislation began to exert some influence, there was no way to halt the trend toward disunity. Even this imperial legislation limited itself essentially to constitutional law and to laws concerning internal peace (Landfrieaonsrecht), This,*of course, left man;/ other areas of legislation open to an uncontrolled development. Even the Icing's court did not have the power to effect a unification of the laws. The two important forces which did, however, work toward a unification of German laws were the lawbooks of the thirteenth century and also the municipal laws (Stadtrecht), In northern and eastern Germany the Sachsenspiegel achieved popular acceptance, where it became the most influential lawbook of the day. Also, exerting a unifying influence in south Germany were the Schwabenspiegel in Swabia and the Frankenspiegel in Franconia. A counterpart for these books in Bavaria apparently does not exist. The unifying importance of municipal laws lay in the fact that the laws of important cities (Cologne, Lllbeck, Magdeburg) were adopted or imitated by other cities. But conscious attempts at legal unity in the Middle Ages were rare, vdth the breaking up of the old tribal organizations, which was almost complete by the twelfth century, the lav; of the newly emerging sovereignty of princes began to take the place of the old tribal, law. ifith the firm iv establishment of the princely sovereigns in the thirteenth century cane the period of territorial lavra (Landesgesetse) 0 Now the idea that each nan should be judged according to his tribal Ian was abandoned,, Now a nan was subject to the law of the political area in which he lived. Men recognized their territorial law as the only valid law and subjected foreigners to this lav;. Bf the twelfth century, a resurrected forn of Roman law was beginning to exert some influence upon development of law in Germany, but a true German reception of Roman law can only be spoken of beginning with the fifteenth century. According to Conrad, "...damals [fifteenth century! erst begsnnen rikaisches Recht und rdmisches Rechtsdenken in Deutschland in stUrkereiu Masse einzudringen und das deutsche Recht zu iToerfremden" (p. U71). The influence of canon-law uoon medieval German law was of significance because of the close connection between the medieval church and state and also because of the prominent position enjoyed by the church and the clergy in the Middle Ages.