[27] C. 1/5d. The denarius was the South German equivalent of the North German pfennig, of which twelve went to the groschen.
CHAPTER VIII.
THE NEW JURISPRUDENCE.
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 recognised 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 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 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 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 in 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.