from the Czechs, so also are they divided from the Czechs by their law or custom. I concede to these Germans [the right] to live according to the law and justice of the Germans, which they had from the time of my grandfather, King Vratislav. I grant a parish priest, whom they themselves should elect freely to their church, and similarly a judge, and the bishop should in no way contradict their petition. Seven ought to swear by hands [compurgation] for theft and for that which is called nadvore. They ought to go on no expedition, except in order to fight for the fatherland [pro patria]. If the duke is outside Bohemia on an expedition, then the Germans should guard Prague with 12 shields. To judge concerning homicide pertains to the prince, namely for such homicide 10 talents of Regensburg money should be paid to the prince or the right hand of the killer, or it is to be ordained according to grace. Whoever breaks the peace among them, should pay 10 talents to the prince, whoever is guilty. If a Czech should have a case with a German, which ought to be proved by witnesses, the Czech should have before the German two Germans and one Czech, all Christians. Similarly, if a German should have a case with a Czech, then the German should have before the Czech two Czechs and one German, but Christian. Similarly concerning “Romans” [Romance language speakers] and Jews. If a Czech or Roman or whoever should accuse a German, then the high chamberlain should send a messenger to the Germans’ judge and the Germans’ judge himself will decide that case and nothing more will pertain to the chamberlain. I also concede to the Germans, that they should be free from guests and pilgrims and immigrants. You should know that the Germans are free men. Whatever immigrant or guest coming from whatever land should wish to remain in the city with the Germans, he should hold the law and custom of the Germans. If theft is to a German, [the thief] ought to be seized with the Germans’ judge present. If the thief is German, then the prince will judge him. If the thief is captured at night, he will be hanged. If he is captured during the day, he should be scourged in public and ordered out of the city; if later he is captured, he will be hanged. Whatever the Germans do, they will not be captured nor put in prison if they have fideiussores or their own house. In whatever matter the Germans should be guilty, their children and wives will suffer no harm or shame. If anyone enters through the villages of the Germans at night and does not have a torch, if that person is killed, the Germans are blameless. If false or broken money should be found in the box of a German, he is guilty whosever box it is. But if it should be found in a courtyard or house, he is blameless whosever house or courtyard it is, on account of evil and bad men who are accustomed to throw such money into houses or courtyards. If a stolen horse should be recognized among the Germans, he who recognized the horse will swear to have lost it earlier by theft; afterward the German will swear, standing in a circle made with a sword in the ground, that it was not a stolen horse or any such thing, but had been bought, and he did not know the seller or his house. The Germans ought never to swear except in front of the church of St. Peter, except by command of the prince. If a secret tavern should be found in the house of a German, the lord of the house should be seized, with the Germans’ judge or his messenger present, and no one else.68
Dukes may have granted similar privileges for the Jewish and Romance-speaking communities in Prague mentioned here. The claim in the document, that Soběslav was merely affirming a custom already established by his grandfather Vratislav (r. 1061–92), rings true: Cosmas reports that his predecessor Spitihněv (r. 1055–61)had summarily expelled all Germans from Bohemia, and thus it would not be surprising to find that they sought, and Vratislav granted, more clearly enumerated rights when they or others returned.69 The practice of granting special jurisdictional rights to non-Czech communities is attested even earlier: Cosmas says that Břetislav I transplanted a group of conquered Poles to Bohemia in 1039, at their request, “establishing for them one man from among them as prefect and judge, and decreed that both they and their descendants should forever live under the law which they had had in Poland.”70
The privilege makes no reference to the customary “law of the land” and provides only the barest clues about what its norms might have been—that witnesses were sworn to testify before judges; that trespass, counterfeiting, and especially theft carried heavy penalties; that mitigating circumstances were recognized, whether in favor of the accused or the victim. It does, however, show the exercise of ducal jurisdiction, specifically stipulating that the duke should decide cases of homicide and certain instances of theft. It may be that the duke simply held special jurisdiction in and around Prague or specifically over foreign communities. However, evidence of ducal jurisdiction over capital crimes surfaces in other documents in which property is declared to have been acquired by the duke from men whowere hanged.71 More fundamentally, it was for the duke to give these jurisdictional rights to the Germans’ judge, to reserve certain decisions to himself, and to prejudge particular circumstances. The duke not only granted these privileges, he must also have been the sole authority ensuring their enforcement.
No cases involving peasants, free or unfree, are recorded to indicate whether ordinary people had access to the duke’s justice. Cosmas, in an anecdote he uses to prophesy the death of Spitihněv, relates that on his way to war the duke was approached on the road by a widow who asked him to vindicate her against her adversary. When he tried to put off her case, she asked whom he would send to vindicate her if he did not return from the campaign. According to Cosmas, “immediately, at the petition of a single widow, he interrupted the expedition and vindicated her against her adversary by a just judgment.”72 Since Cosmas follows this with an injunction to “modern princes” not to neglect the defense of widows and orphans, a common trope of good Christian rulership, this story can hardly be admitted as proof that the duke’s jurisdiction was accessible to any Czech who asked for it. On the other hand, Gerlach of Milevsko reports that Soběslav II was such a just judge that he was commonly called the “prince of the peasants” because he defended the claims of the poor against the magnates and rendered judgment without respect to person.73 Since Gerlach’s point is to emphasize Soběslav’s particular zeal, it was probably not common for dukes to put peasants before the more powerful men of the realm. Yet even if “prince of the peasants” was meant with irony or as outright ridicule, it must argue that, whatever the practical obstacles, no legal impediment existed to prevent the lowest freemen and women from appealing to the duke.
The privilege granted the Prague Germans includes a clue about procedure: cases were initiated when brought to the attention of the duke’s chamberlain, who made some decision about venue before they went before the duke. About this same time, first ca. 1170 and regularly thereafter, the iudex curiae appears in witness lists among other court officers, although his precise function is unknown.74 The few actual suits described in charters, however, reveal that controversies between lay or ecclesiastical magnates were not decided by the duke and his servants alone. In the dispute over Němoj’s grant to the chapter of Vyšehrad, the old charter was read aloud before the duke and his court.75 The chronicles report the same. In 1130, when Soběslav I got wind of a plot to assassinate him, he called “three thousand” men, “noble and ignoble,” to Vyšehrad for the interrogation and sentencing of those involved.76 The duke possessed jurisdiction over the important men of the realm, but their fellow magnates could expect to be present and consulted when such matters arose. Concerning lands exchanged with and then denied by the sons of Slavek, Hartmann of Miřkov avowed: “But producing witnesses, from the law of this land I obtained my right before the king and all the princes of the land.”77 In important cases, not merely the duke but the “princes of the land” were also present.78
More than any other right, jurisdiction was explicitly associated with rulership. The need for respected persons who could solve disputes was seen, by Cosmas at least, as a natural political development, and it was the belief that such judges needed the power to enforce their decisions which, in the tale of Libuše and Přemysl, led to the appointment of the first Czech duke.79 That jurisdiction could be a formidable, and easily abused, basis for power is expressed in Libuše’s own admonition to the Czechs. Her speech seems to voice the worry that the duke would be the sole arbiter of the law, standing virtually above it. Yet Hartmann pressed his case not merely before the duke but according to “the law of the land.” The phrase ius terrae appeals to a law recognized among the Czechs, founded
