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 on custom, and independent of the duke. Likewise, the charter in which the duke claims to have acquired the lands granted “legitimately by other just means, according to the judgment of the senior nobles of Bohemia” asserts that the Přemyslid ruler was indeed bound by such laws. Transactions were performed and disputes resolved in the company of various lay and ecclesiastical magnates as well as the duke. These, and the other witnesses assiduously noted in twelfth-century charters, must have served as de facto coadjudicators. Justice was too important to be treated in private, to be left to one man alone, and their presence must have assured that the duke abided by custom.
Castles
The duke of Bohemia controlled all castles within his territory. Archeological evidence shows that the destruction and rebuilding of castles accompanied the Přemyslid expansion of power in the ninth and tenth centuries.80 Whether this process established the duke’s direct and absolute lordship over castles in the Czech Lands, or some legal justification prevailed, all fortifications of any size and function without any doubt belonged to the duke in the eleventh and twelfth centuries. He built and refortified them, and assigned his followers to them at will. Castles as structures were less valuable than the allegiance of those that manned them; oversight rather than ownership was the real issue, and in many cases their importance was more political than military. The ruler’s delegation of authority over castles and his means of maintaining control profoundly affected the social, political, and economic conditions of laymen, especially those of middling and high rank. For this reason, questions of appointment and oversight will be treated more fully in the next chapter. We need here, however, to reflect upon the number and function of castles in the Czech Lands and upon the duke’s monopoly.
As usual, the evidence demands a cautious approach: it is impossible to determine the total number, location, or relative prominence of castles throughout Bohemia and Moravia at any given time. Many more fortifications of various sizes and functions must have existed than are noted in the written sources. On the basis of topographical, archeological, and written evidence, Jiří Sláma lists 144 known or suspected castles in Bohemia, but this number has not been adjusted to account for changes over time or to specify sites of activity during particular eras.81 How many of the ninth- or tenth-century walled sites were destroyed or declined in importance by the eleventh or twelfth centuries therefore remains unknown. Sláma’s own analysis of Přemyslid expansion and consolidation demonstrates that castles were systematically destroyed.82 Cosmas describes ancient sites overrun with trees.83 A few of the older fortifications are known or presumed to have been put to more benign uses, becoming sites of early monasteries: Ostrov, Hradiště (at Olomouc), Rajhrad, Postoloprty, and later Mnichovo Hradiště.84 Even Mělník and Stará Boleslav, two castles of considerable importance in the tenth century, were later notable mainly as sites of collegiate chapters.85