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.