CHAPTER V

COUNTRY AND TOWN AT THE END OF THE MIDDLE AGES

For the complete understanding of the events which follow it must be

borne in mind that the early sixteenth century represents the end of a

distinct historical period; and, as we have pointed out in the

Introduction, the expiring effort, half-conscious and half-unconscious,

of the people to revert to the conditions of an earlier age. Nor can the

significance be properly gauged unless a clear conception is obtained of

the differences between country and town life at the beginning of the

sixteenth century. From the earliest periods of the Middle Ages of which

we have any historical record, the _Markgenossenschaft_, or primitive

village community of the Germanic race, was overlaid by a territorial

domination, imposed upon it either directly by conquest or voluntarily

accepted for the sake of the protection indispensable in that rude

period. The conflict of these two elements, the mark organization and

the territorial lordship, constitutes the marrow of the social history

of the Middle Ages.

In the earliest times the pressure of the overlord, whoever he might

be, seems to have been comparatively slight, but its inevitable

tendency was for the territorial power to extend itself at the expense

of the rural community. It was thus that in the tenth and eleventh

centuries the feudal oppression had become thoroughly settled, and had

reached its greatest intensity all over Europe. It continued thus with

little intermission until the thirteenth century, when from various

causes, economic and otherwise, matters began to improve in the

interests of the common man, till in the fifteenth century the

condition of the peasant was better than it has ever been, either

before or since within historical times, in Northern and Western

Europe. But with all this, the oppressive power of the lord of the

soil was by no means dead. It was merely dormant, and was destined to

spring into renewed activity the moment the lord's necessities

supplied a sufficient incentive. From this time forward the element of

territorial power, supported in its claims by the Roman law, with its

basis of private property, continued to eat into it until it had

finally devoured the old rights and possessions of the village

community. The executive power always tended to be transferred from

its legitimate holder, the village in its corporate capacity, to the

lord; and this was alone sufficient to place the villager at his

mercy.

At the time of the Reformation, owing to the new conditions which had

arisen and had brought about in a few decades the hitherto

unparalleled rise in prices, combined with the unprecedented

ostentation and extravagance more than once referred to in these

pages, the lord was supplied with the requisite incentive to the

exercise of the power which his feudal system gave him. Consequently,

the position of the peasant rapidly changed for the worse; and

although at the outbreak of the movement not absolutely _in extremis_,

according to our notions, yet it was so bad comparatively to his

previous condition and that less than half a century before, and

tended as evidently to become more intolerable, that discontent became

everywhere rife, and only awaited the torch of the new doctrines to

set it ablaze. The whole course of the movement shows a peasantry, not

downtrodden and starved but proud and robust, driven to take up arms

not so much by misery and despair as by the deliberate will to

maintain the advantages which were rapidly slipping away from them.

Serfdom was not by any means universal. Many free peasant villages

were to be found scattered amongst the manors of the territorial

lords, though it was but too evidently the settled policy of the

latter at this time to sweep everything into their net, and to compel

such peasant communes to accept a feudal overlordship. Nor were they

at all scrupulous in the means adopted for attaining their ends. The

ecclesiastical foundations, as before said, were especially expert in

forging documents for the purpose of proving that these free villages

were lapsed feudatories of their own. Old rights of pasture were being

curtailed, and others, notably those of hunting and fishing, had in

most manors been completely filched away.

It is noticeable, however, that although the immediate causes of the

peasant rising were the new burdens which had been laid upon the

common people during the last few years, once the spirit of discontent

was aroused it extended also in many cases to the traditional feudal

dues to which, until then, the peasant had submitted with little

murmuring, and an attempt was made by the country-side to reconquer

the ancient complete freedom of which a dim remembrance had been

handed down to them.

The condition of the peasant up to the beginning of the sixteenth

century--that is to say, up to the time when it began to so rapidly

change for the worse--may be gathered from what we are told by

contemporary writers, such as Wimpfeling, Sebastian Brandt,

Wittenweiler, the satires in the _Nürnberger Fastnachtspielen_, and

numberless other sources, as also from the sumptuary laws of the end

of the fifteenth century. All these indicate an ease and profuseness

of living which little accord with our notions of the word "peasant".

Wimpfeling writes: "The peasants in our district and in many parts of

Germany have become, through their riches, stiff-necked and

ease-loving. I know peasants who at the weddings of their sons or

daughters, or the baptism of their children, make so much display that

a house and field might be bought therewith, and a small vineyard to

boot. Through their riches, they are oftentimes spendthrift in food

and in vestments, and they drink wines of price."

A chronicler relates of the Austrian peasants, under the date of 1478,

that "they wore better garments and drank better wine than their

lords"; and a sumptuary law passed at the Reichstag held at Lindau, in

1497, provides that the common peasant man and the labourer in the

towns or in the field "shall neither make nor wear cloth that costs

more than half a gulden the ell, neither shall they wear gold,

pearls, velvet, silk, nor embroidered clothes, nor shall they permit

their wives or their children to wear such."

Respecting the food of the peasant, it is stated that he ate his full

in flesh of every kind, in fish, in bread, in fruit, drinking wine

often to excess. The Swabian, Heinrich Müller, writes in the year

1550, nearly two generations after the change had begun to take place:

"In the memory of my father, who was a peasant man, the peasant did

eat much better than now. Meat and food in plenty was there every day,

and at fairs and other junketings the tables did wellnigh break with

what they bore. Then drank they wine as it were water, then did a man

fill his belly and carry away withal as much as he could; then was

wealth and plenty. Otherwise is it now. A costly and a bad time hath

arisen since many a year, and the food and drink of the best peasant

is much worse than of yore that of the day labourer and the serving

man."

We may well imagine the vivid recollections which a peasant in the

year 1525 had of the golden days of a few years before. The day

labourers and serving men were equally tantalized by the remembrance

of high wages and cheap living at the beginning of the century. A day

labourer could then earn, with his keep, nine, and without keep,

sixteen groschen[15] a week. What this would buy may be judged from

the following prices current in Saxony during the second half of the

fifteenth century. A pair of good working-shoes cost three groschen; a

whole sheep, four groschen; a good fat hen, half a groschen;

twenty-five cod-fish, four groschen; a wagon-load of firewood,

together with carriage, five groschen; an ell of the best homespun

cloth, five groschen; a scheffel (about a bushel) of rye, six or seven

groschen. The Duke of Saxony wore grey hats which cost him four

groschen. In Northern Rhineland about the same time a day labourer

could, in addition to his keep, earn in a week a quarter of rye, ten

pounds of pork, six large cans of milk, and two bundles of firewood,

and in the course of five weeks be able to buy six ells of linen, a

pair of shoes, and a bag for his tools. In Augsburg the daily wages of

an ordinary labourer represented the value of six pounds of the best

meat, or one pound of meat, seven eggs, a peck of peas, about a quart

of wine, in addition to such bread as he required, with enough over

for lodging, clothing, and minor expenses. In Bavaria he could earn

daily eighteen pfennige, or one and a half groschen, whilst a pound of

sausage cost one pfennig, and a pound of the best beef two pfennige,

and similarly throughout the whole of the States of Central Europe.

A document of the year 1483, from Ehrbach in the Swabian Odenwald,

describes for us the treatment of servants by their masters. "All

journeymen," it declares, "that are hired, and likewise bondsmen

(serfs), also the serving men and maids, shall each day be given twice

meat and what thereto longith, with half a small measure of wine, save

on fast days, when they shall have fish or other food that nourisheth.

Whoso in the week hath toiled shall also on Sundays and feast days

make merry after mass and preaching. They shall have bread and meat

enough, and half a great measure of wine. On feast days also roasted

meat enough. Moreover, they shall be given, to take home with them, a

great loaf of bread and so much of flesh as two at one meal may eat."

Again, in a bill of fare of the household of Count Joachim von

Oettingen in Bavaria, the journeymen and villeins are accorded in the

morning, soup and vegetables; at midday, soup and meat, with

vegetables, and a bowl of broth or a plate of salted or pickled meat;

at night, soup and meat, carrots, and preserved meat. Even the women

who brought fowls or eggs from the neighbouring villages to the castle

were given for their trouble--if from the immediate vicinity, a plate

of soup with two pieces of bread; if from a greater distance, a

complete meal and a cruse of wine. In Saxony, similarly, the

agricultural journeymen received two meals a day, of four courses

each, besides frequently cheese and bread at other times should they

require it. Not to have eaten meat for a week was the sign of the

direst famine in any district. Warnings are not wanting against the

evils accruing to the common man from his excessive indulgence in

eating and drinking.

Such was the condition of the proletariat in its first inception, that

is, when the mediæval system of villeinage had begun to loosen and to

allow a proportion of free labourers to insinuate themselves into its

working. How grievous, then, were the complaints when, while wages had

risen either not at all or at most from half a groschen to a groschen,

the price of rye rose from six or seven groschen a bushel to about

five-and-twenty groschen, that of a sheep from four to eighteen

groschen, and all other articles of necessary consumption in a like

proportion![16]

In the Middle Ages, necessaries and such ordinary comforts as were to

be had at all were dirt cheap; while non-necessaries and luxuries,

that is, such articles as had to be imported from afar, were for the

most part at prohibitive prices. With the opening up of the

world-market during the first half of the sixteenth century, this

state of things rapidly changed. Most luxuries in a short time fell

heavily in price, while necessaries rose in a still greater

proportion.

This latter change in the economic conditions of the world exercised

its most powerful effect, however, on the character of the mediæval

town, which had remained substantially unchanged since the first great

expansion at the end of the thirteenth and the beginning of the

fourteenth centuries. With the extension of commerce and the opening

up of communications, there began that evolution of the town whose

ultimate outcome was to entirely change the central idea on which the

urban organization was based.

The first requisite for a town, according to modern notions, is

facility of communication with the rest of the world by means of

railways, telegraphs, postal system, and the like. So far has this

gone now that in a new country, for instance, America, the railway,

telegraph lines, etc., are made first, and the towns are then strung

upon them, like beads upon a cord. In the mediæval town, on the

contrary, communication was quite a secondary matter, and more of a

luxury than a necessity. Each town was really a self-sufficing entity,

both materially and intellectually. The modern idea of a town is that

of a mere local aggregate of individuals, each pursuing a trade or

calling with a view to the world-market at large. Their own locality

or town is no more to them economically than any other part of the

world-market, and very little more in any other respect. The mediæval

idea of a town, on the contrary, was that of an organization of groups

into one organic whole. Just as the village community was a somewhat

extended family organization, so was, _mutatis mutandis_, the larger

unit, the township or city. Each member of the town organization owed

allegiance and distinct duties primarily to his guild, or immediate

social group, and through this to the larger social group which

constituted the civic society. Consequently, every townsman felt a

kind of _esprit de corps_ with his fellow-citizens, akin to that, say,

which is alleged of the soldiers of the old French "foreign legion"

who, being brothers-in-arms, were brothers also in all other

relations. But if every citizen owed duty and allegiance to the town

in its corporate capacity, the town no less owed protection and

assistance, in every department of life, to its individual members.

As in ancient Rome in its earlier history, and as in all other early

urban communities, agriculture necessarily played a considerable part

in the life of most mediæval towns. Like the villages, they possessed

each its own mark, with its common fields, pastures, and woods. These

were demarcated by various landmarks, crosses, holy images, etc.; and

"the bounds" were beaten every year. The wealthier citizens usually

possessed gardens and orchards within the town walls, while each

inhabitant had his share in the communal holding without. The use of

this latter was regulated by the Rath or Council. In fact, the town

life of the Middle Ages was not by any means so sharply differentiated

from rural life as is implied in our modern idea of a town. Even in

the larger commercial towns, such as Frankfurt, Nürnberg, or Augsburg,

it was common to keep cows, pigs, and sheep, and, as a matter of

course, fowls and geese, in large numbers within the precincts of the

town itself. In Frankfurt in 1481 the pigsties in the town had become

such a nuisance that the Rath had to forbid them _in the front_ of the

houses by a formal decree. In Ulm there was a regulation of the

bakers' guild to the effect that no single member should keep more

than twenty-four pigs, and that cows should be confined to their

stalls at night. In Nürnberg in 1475 again, the Rath had to interfere

with the intolerable nuisance of pigs and other farm-yard stock

running about loose in the streets. Even in a town like München we are

informed that agriculture formed one of the staple occupations of the

inhabitants, while in almost every city the gardeners' or the

wine-growers' guild appears as one of the largest and most

influential.

It is evident that such conditions of life would be impossible with

town-populations even approaching only distantly those of to-day; and,

in fact, when we come to inquire into the size and populousness of

mediæval German cities, as into those of the classical world of

antiquity, we are at first sight staggered by the smallness of their

proportions. The largest and most populous free Imperial cities in the

fifteenth and sixteenth centuries, Nürnberg and Strassburg, numbered

little more than 20,000 resident inhabitants within the walls, a

population rather less than that of (say) many an English country town

at the present time. Such an important place as Frankfurt-am-Main is

stated at the middle of the fifteenth century to have had less than

9,000 inhabitants. At the end of the fifteenth century Dresden could

only boast of about 5,000. Rothenburg on the Tauber is to-day a dead

city to all intents and purposes, affording us a magnificent example

of what a mediæval town was like, as the bulk of its architecture,

including the circuit of its walls, which remain intact, dates

approximately from the sixteenth century. At present a single line of

railway branching off from the main line with about two trains a day

is amply sufficient to convey the few antiquaries and artists who are

now its sole visitors, and who have to content themselves with

country-inn accommodation. Yet this old free city has actually a

larger population at the present day than it had at the time of which

we are writing, when it was at the height of its prosperity as an

important centre of activity. The figures of its population are now

between 8,000 and 9,000. At the beginning of the sixteenth century

they were between 6,000 and 7,000. A work written and circulated in

manuscript during the first decade of the sixteenth century, "A

Christian Exhortation" (_Ein Christliche Mahnung_), after referring to

the frightful pestilences recently raging as a punishment from God,

observes, in the spirit of true Malthusianism, and as a justification

of the ways of Providence, that "an there were not so many that died

there were too much folk in the land, and it were not good that such

should be lest there were not food enough for all."

Great population as constituting importance in a city is

comparatively a modern notion. In other ages towns became famous on

account of their superior civic organization, their more advantageous

situation, or the greater activity, intellectual, political, or

commercial, of their citizens.

What this civic organization of mediæval towns was, demands a few

words of explanation, since the conflict between the two main elements

in their composition plays an important part in the events which

follow. Something has already been said on this head in the

Introduction. We have there pointed out that the Rath or Town Council,

that is, the supreme governing body of the municipality, was in all

cases mainly, and often entirely, composed of the heads of the town

aristocracy, the patrician class or "honorability" (_Ehrbarkeit_), as

they were termed, who on the ground of their antiquity and wealth laid

claim to every post of power and privilege. On the other hand were the

body of the citizens enrolled in the various guilds, seeking, as their

position and wealth improved, to wrest the control of the town's

resources from the patricians. It must be remembered that the towns

stood in the position of feudal over-lords to the peasants who held

land on the city territory, which often extended for many square miles

outside the walls. A small town like Rothenburg, for instance, which

we have described above, had on its lands as many as 15,000 peasants.

The feudal dues and contributions of these tenants constituted the

staple revenue of the town, and the management of them was one of the

chief bones of contention.

Nowhere was the guild system brought to a greater perfection than in

the free Imperial towns of Germany. Indeed, it was carried further in

them, in one respect, than in any other part of Europe, for the guilds

of journeymen (_Cesellenverbände_), which in other places never

attained any strength or importance, were in Germany developed to the

fullest extent, and of course supported the craft-guilds in their

conflict with the patriciate. Although there were naturally numerous

frictions between the two classes of guilds respecting wages, working

days, hours, and the like, it must not be supposed that there was that

irreconcilable hostility between them which would exist at the present

time between a trade-union and a syndicate of employers. Each

recognized the right to existence of the other. In one case, that of

the strike of bakers towards the close of the fifteenth century, at

Colmar in Elsass, the craft-guilds supported the journeymen in their

protest against a certain action of the patrician Rath, which they

considered to be a derogation from their dignity.

Like the masters, the journeymen had their own guild-house, and their

own solemn functions and social gatherings. There were, indeed, two

kinds of journeymen-guilds: one whose chief purpose was a religious one,

and the other concerning itself in the first instance with the secular

concerns of the body. However, both classes of journeymen-guilds worked

into one another's hand. On coming into a strange town a travelling

member of such a guild was certain of a friendly reception, of

maintenance until he procured work, and of assistance in finding it as

soon as possible.

Interesting details concerning the wages paid to journeymen and their

contributions to the guilds are to be found in the original documents

relating exclusively to the journeymen-guilds, collected by Georg

Schanz.[17] From these and other sources it is clear that the position

of the artisan in the towns was in proportion much better than even that

of the peasants at that time, and therefore immeasurably superior to

anything he has enjoyed since. In South Germany at this period the

average price of beef was about two denarii[18] a pound, while the

daily wages of the masons and carpenters, in addition to their keep and

lodging, amounted in the summer to about twenty, and in the winter to

about sixteen of these denarii. In Saxony the same journeymen-craftsmen

earned on the average, besides their maintenance, two groschen four

pfennige a day, or about one-third the value of a bushel of corn. In

addition to this, in some cases the workmen had weekly gratuities under

the name of "bathing money"; and in this connection it may be noticed

that a holiday for the purpose of bathing once a fortnight, once a week,

or even oftener, as the case might be, was stipulated for by the guilds,

and generally recognized as a legitimate demand. The common notion of

the uniform uncleanliness of the mediæval man requires to be

considerably modified when one closely investigates the condition of

town life, and finds everywhere facilities for bathing in winter and

summer alike. Untidiness and uncleanliness, according to our notions,

there may have been in the streets and in the dwellings in many cases,

owing to inadequate provisions for the disposal of refuse and the like;

but we must not therefore extend this idea to the person, and imagine

that the mediæval craftsman or even peasant was as unwholesome as, say,

the East European peasant of to-day.

When the wages received by the journeymen artisans are compared with

the prices of commodities previously given, it will be seen how

relatively easy were their circumstances; and the extent of their

well-being may be further judged from the wealth of their guilds,

which, although varying in different places, at all times formed a

considerable proportion of the wealth of the town. The guild system

was based upon the notion that the individual master and workman was

working as much in the interest of the guild as for his own advantage.

Each member of the guild was alike under the obligation to labour, and

to labour in accordance with the rules laid down by his guild, and at

the same time had the right of equal enjoyment with his

fellow-guildsmen of all advantages pertaining to the particular branch

of industry covered by the guild. Every guildsman had to work himself

_in propriâ personâ_; no contractor was tolerated who himself "in ease

and sloth doth live on the sweat of others, and puffeth himself up in

lustful pride." Were a guild-master ill and unable to manage the

affairs of his workshop, it was the council of the guild, and not

himself or his relatives, who installed a representative for him and

generally looked after his affairs. It was the guild again which

procured the raw material, and distributed it in relatively equal

proportions amongst its members; or where this was not the case, the

time and place were indicated at which the guildsman might buy at a

fixed maximum price. Every master had equal right to the use of the

common property and institutions of the guild, which in some

industries included the essentials of production, as, for example, in

the case of the woollen manufacturers, where wool-kitchens,

carding-rooms, bleaching-houses and the like were common to the whole

guild.

Needless to say, the relations between master and apprentices and master

and journeymen were rigidly fixed down to the minutest detail. The

system was thoroughly patriarchal in its character. In the hey-day of

the guilds, every apprentice and most of the journeymen regarded their

actual condition as a period of preparation which would end in the

glories of mastership. For this dear hope they were ready on occasion to

undergo cheerfully the most arduous duties. The education in handicraft,

and, we may add, the supervision of the morals of the blossoming members

of the guild, was a department which greatly exercised its

administration. On the other hand, the guild in its corporate capacity

was bound to maintain sick or incapacitated apprentices and journeymen,

though after the journeymen had developed into a distinct class, and

the consequent rise of the journeymen-guilds, the latter function was

probably in most cases taken over by the latter. The guild laws against

adulteration, scamped work, and the like, were sometimes ferocious in

their severity. For example, in some towns the baker who misconducted

himself in the matter of the composition of his bread was condemned to

be shut up in a basket which was fixed at the end of a long pole, and

let down so many times to the bottom of a pool of dirty water. In the

year 1456 two grocers, together with a female assistant, were burnt

alive at Nürnberg for adulterating saffron and spices, and a similar

instance happened at Augsburg in 1492. From what we have said it will be

seen that guild life, like the life of the town as a whole, was

essentially a social life. It was a larger family, into which various

blood families were merged. The interest of each was felt to be the

interest of all, and the interest of all no less the interest of each.

But in many towns, outside the town population properly speaking,

outside the patrician families who generally governed the Rath,

outside the guilds, outside the city organization altogether, there

were other bodies dwelling within the walls and forming _imperia in

imperiis_. These were the religious corporations, whose possessions

were often extensive, and who, dwelling within their own walls, shut

out from the rest of the town, were subject only to their own

ordinances. The quasi-religious, quasi-military Order of the Teutonic

Knights (_Deutscher Orden_), founded at the time of the Crusades, was

the wealthiest and largest of these corporations. In addition to the

extensive territories which it held in various parts of the empire, it

had establishments in a large number of cities. Besides this there

were, of course, the Orders of the Augustinians and Carthusians, and a

number of less important foundations, who had their cloisters in

various towns. At the beginning of the sixteenth century, the pomp,

pride, and licentiousness of the Teutonic Order drew upon it the

especial hatred of the townsfolk; and amid the general wreck of

religious houses none were more ferociously despoiled than those

belonging to this Order. There were, moreover, in some towns, the

establishments of princely families, which were regarded by the

citizens with little less hostility than that accorded to the

religious Orders.

Such were the explosive elements of town life when changing conditions

were tending to dislocate the whole structure of mediæval existence.

The capture of Constantinople by the Turks in 1453 had struck a heavy

blow at the commerce of the Bavarian cities which had come by way of

Constantinople and Venice. This latter city lost one by one its

trading centres in the East, and all Oriental traffic by way of the

Black Sea was practically stopped. It was the Dutch cities which

inherited the wealth and influence of the German towns when Vasco da

Gama's discovery of the Cape route to the East began to have its

influence on the trade of the world. This diversion of Oriental

traffic from the old overland route was the starting-point of the

modern merchant navy, and it must be placed amongst the most potent

causes of the break-up of mediæval civilization. The above change,

although immediately felt by the German towns, was not realized by

them in its full importance either as to its causes or its

consequences for more than a century; but the decline of their

prosperity was nevertheless sensible, even now, and contributed

directly to the coming upheaval.

The impatience of the prince, the prelate, the noble, and the wealthy

burgher at the restraints which the system of the Middle Ages placed

upon his activity as an individual in the acquisition for his own

behoof, and the disposal at his own pleasure, of wealth, regardless of

the consequences to his neighbour, found expression, and a powerful

lever, in the introduction from Italy of the Roman law in place of the

old canon and customary law of Europe. The latter never regarded the

individual as an independent and autonomous entity, but invariably

treated him with reference to a group or social body, of which he

might be the head or merely a subordinate member; but in any case the

filaments of custom and religious duty attached him to a certain

humanity outside himself, whether it were a village community, a

guild, a township, a province, or the empire. The idea of a right to

individual autonomy in his dealings with men never entered into the

mediæval man's conception. Hence the mere possession of property was

not recognized by mediæval law as conferring any absolute rights in

its holder to its unregulated use, and the basis of the mediæval

notions of property was the association of responsibility and duty

with ownership. In other words, the notion of _trust_ was never

completely divorced from that of _possession_.

The Roman law rested on a totally different basis. It represented the

legal ethics of a society on most of its sides brutally and crassly

individualistic. That that society had come to an end instead of

evolving to its natural conclusion--a developed capitalistic

individualism such as exists to-day--was due to the weakness of its

economic basis, owing to the limitation at that time of man's power

over Nature, which deprived it of recuperative and defensive force,

thereby leaving it a prey not only to internal influences of decay but

also to violent destructive forces from without. Nevertheless, it left

a legacy of a ready-made legal system to serve as an implement for the

first occasion when economic conditions should be once more ready for

progress to resume the course of individualistic development, abruptly

brought to an end by the fall of ancient civilization as crystallized

in the Roman Empire.

The popular courts of the village, of the mark, and of the town, which

had existed up to the beginning of the sixteenth century with all

their ancient functions, were extremely democratic in character. Cases

were decided on their merits, in accordance with local custom, by a

body of jurymen chosen from among the freemen of the district, to whom

the presiding functionaries, most of whom were also of popular

selection, were little more than assessors. The technicalities of a

cut-and-dried system were unknown. The Catholic-Germanic theory of the

Middle Ages proper, as regards the civil power in all its functions,

from the highest downward, was that of the mere administrator of

justice as such; whereas the Roman law regarded the magistrate as the

vicegerent of the _princeps_ or _imperator_, in whose person was

absolutely vested as its supreme embodiment the whole power of the

State. The Divinity of the Emperors was a recognition of this fact;

and the influence of the Roman law revived the theory as far as

possible under the changed conditions, in the form of the doctrine of

the Divine Right of Kings--a doctrine which was totally alien to the

Catholic feudal conception of the Middle Ages. This doctrine,

moreover, received added force from the Oriental conception of the

position of the ruler found in the Old Testament, from which

Protestantism drew so much of its inspiration.

But apart from this aspect of the question, the new juridical

conception involved that of a system of rules as the crystallized

embodiment of the abstract "State," given through its representatives,

which could under no circumstances be departed from, and which could

only be modified in their operation by legal quibbles that left to

them their nominal integrity. The new law could therefore only be

administered by a class of men trained specially for the purpose, of

which the plastic customary law borne down the stream of history from

primitive times, and insensibly adapting itself to new conditions but

understood in its broader aspects by all those who might be called to

administer it, had little need. The Roman law, the study of which was

started at Bologna in the twelfth century, as might naturally be

expected, early attracted the attention of the German Emperors as a

suitable instrument for use on emergencies. But it made little real

headway in Germany itself as against the early institutions until the

fifteenth century, when the provincial power of the princes of the

empire was beginning to overshadow the central authority of the

titular chief of the Holy Roman Empire. The former, while strenuously

resisting the results of its application from above, found in it a

powerful auxiliary in their Courts in riveting their power over the

estates subject to them. As opposed to the delicately adjusted

hierarchical notions of Feudalism, which did not recognize any

absoluteness of dominion either over persons or things, in short for

which neither the head of the State had any inviolate authority as

such, nor private property any inviolable rights or sanctity as such,

the new jurisprudence made corner-stones of both these conceptions.

Even the canon law, consisting in a mass of Papal decretals dating

from the early Middle Ages, and which, while undoubtedly containing

considerable traces of the influence of Roman law, was nevertheless

largely customary in its character, with an infusion of Christian

ethics, had to yield to the new jurisprudence, and that too in

countries where the Reformation had been unable to replace the old

ecclesiastical dogma and organization. The principles and practice of

the Roman law were sedulously inculcated by the tribe of civilian

lawyers who by the beginning of the sixteenth century infested every

Court throughout Europe. Every potentate, great and small, little as

he might like its application by his feudal overlord to himself, was

yet only too ready and willing to invoke its aid for the oppression of

his own vassals or peasants. Thus the civil law everywhere triumphed.

It became the juridical expression of the political, economical, and

religious change which marks the close of the Middle Ages and the

beginnings of the modern commercial world.

It must not be supposed, however, that no resistance was made to it.

Everywhere in contemporary literature, side by side with denunciations

of the new mercenary troops, the _Landsknechte_, we find

uncomplimentary allusions to the race of advocates, notaries, and

procurators who, as one writer has it, "are increasing like

grasshoppers in town and in country year by year." Whenever they

appeared, we are told, countless litigious disputes sprang up. He who

had but the money in hand might readily defraud his poorer neighbour

in the name of law and right. "Woe is me!" exclaims one author, "in

my home there is but one procurator, and yet is the whole country

round about brought into confusion by his wiles. What a misery will

this horde bring upon us!" Everywhere was complaint and in many places

resistance.

As early as 1460 we find the Bavarian estates vigorously complaining

that all the courts were in the hands of doctors. They demanded that

the rights of the land and the ancient custom should not be cast

aside; but that the courts as of old should be served by reasonable

and honest judges, who should be men of the same feudal livery and of

the same country as those whom they tried. Again in 1514, when the

evil had become still more crying, we find the estates of Würtemberg

petitioning Duke Ulrich that the Supreme Court "shall be composed of

honourable, worthy, and understanding men of the nobles and of the

towns, who shall not be doctors, to the intent that the ancient usages

and customs should abide, and that it should be judged according to

them in such wise that the poor man might no longer be brought to

confusion." In many covenants of the end of the fifteenth century,

express stipulation is made that they should not be interpreted by a

doctor or licentiate, and also in some cases that no such doctor or

licentiate should be permitted to reside or to exercise his

profession within certain districts. Great as was the economical

influence of the new jurists in the tribunals, their political

influence in the various courts of the empire, from the

_Reichskammergericht_ downwards, was, if anything, greater. Says

Wimpfeling, the first writer on the art of education in the modern

world: "According to the loathsome doctrines of the new jurisconsults,

the prince shall be everything in the land and the people naught. The

people shall only obey, pay tax, and do service. Moreover, they shall

not alone obey the prince but also them that he has placed in

authority, who begin to puff themselves up as the proper lords of the

land, and to order matters so that the princes themselves do as little

as may be reign." From this passage it will be seen that the modern

bureaucratic State, in which government is as nearly as possible

reduced to mechanism and the personal relation abolished, was ushered

in under the auspices of the civil law. How easy it was for the

civilian to effect the abolition of feudal institutions may be readily

imagined by those cognizant of the principles of Roman law. For

example, the Roman law, of course, making no mention of the right of

the mediæval "estates" to be consulted in the levying of taxes or in

other questions, the jurist would explain this right to his too

willing master, the prince, as an abuse which had no legal

justification, and which, the sooner it were abolished in the interest

of good government the better it would be. All feudal rights as

against the power of an overlord were explained away by the civil

jurist, either as pernicious abuses, or, at best, as favours granted

in the past by the predecessors of the reigning monarch, which it was

within his right to truncate or to abrogate at his will.

From the preceding survey will be clearly perceived the important rôle

which the new jurisprudence played on the Continent of Europe in the

gestation of the new phase which history was entering upon in the

sixteenth century. Even the short sketch given will be sufficient to

show that it was not in one department only that it operated; but

that, in addition to its own domain of law proper, its influence was

felt in modifying economical, political, and indirectly even ethical

and religious conditions. From this time forth Feudalism slowly but

surely gave place to the newer order, all that remained being certain

of its features, which, crystallized into bureaucratic forms, were

doubly veneered with a last trace of mediæval ideas and a denser

coating of civilian conceptions. This transitional Europe, and not

mediæval Europe, was the Europe which lasted on until the eighteenth

century, and which practically came to an end with the French

Revolution.

FOOTNOTES:

[15] One silver groschen = 1-1/5d.

[16] The authorities for the above data may be found in Janssen, i.,

vol. i., bk. iii., especially pp. 330-46.

[17] _Zur Geschichte der deutschen Gesellenverbände._ Leipzig, 1876.

[18] C. 1/5d. The denarius was the South German equivalent of the North

German pfennig, of which twelve went to the groschen.

German Culture Past and Present · 第 5 / 10 章