German Society at the Close of The Middle Ages. Belfort Bax

Chapter VIII
The New Jurisprudence.

THE impatience of the prince, the prelate, the noble, and they wealthy burgher at the restraints which the system of the Middle Ales 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 medieval man’s conception. Hence the mere possession of property was not recognised by mediaeval law as conferring an absolute rights in its holder to its unregulated use, and the basis of the mediaeval 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 power, 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 civilisation as crystallised 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 crystallised 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 fur 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 recognise 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 organisation. 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 over-lord 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 its town and in country year by year”. Wherever 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 those 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 cognisant of the principles of Roman law. For example, the Roman law of course making no mention of the right of the mediaeval “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 over-lord 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, crystallised into bureaucratic forms, were doubly veneered with a last trace of medieval ideas and a denser coating of civilian conceptions. This transitional Europe, and not mediaeval Europe, was the Europe which lasted on until the eighteenth century, and which practically came to an end with the French Revolution.