LECTURE V ROMAN LAW IN GERMANY

Authorities : II. Schroder, Deutsche Rechtsgeschichte, 1889; H. Brunner, Grundzüge der deutschen Rechts­geschichte, 1887; J. Bryce, The Holy Roman Empire, 1904; Jansen, Geschichte des deutschen Volks, I, 1890; Stintzing, Geschichte der deutschen Rechtswissenschaft, 1880; Geschichte der populären Litteratur des romisch­kanonischen Rechts am Ende des Mittelalters, 1867 ; Stintzing, Ulrich Zasius, Die Juristen sind bose Christen, 1875; Stobbe, Geschichte der Rechtsquellen, 1860-64; Ti.

i. ^r I ^ΛΗΕ influence of Roman Law on Gcr-

I many is marked by very peculiar conditions. It seemed at the outset as if there would not be much room for Roman doctrine in a country with a German-speaking population of Germanic stock. But yet at a later period, some time in the fifteenth century, the legal 106 life of Germany was forced into an entirely new channel by the wholesale “ reception ” of Roman Law. To give a clear idea of the circum­stances which brought about this startling result, I must first say a few words on the political and legal conditions of Germany at the close of the Middle Ages.

The downfall of the Swabian dynasty and the painful Interregnum in the third quarter of the thirteenth century revealed the unsound basis of the magnificent structure of the Holy Roman Empire.

on Imperial ground for twenty-live years (1444-71). The surrender of sovereign author­ity to the princes was formally recognised in respect of the more important ones, the seven electors (Kurfürsten), by the Golden Bull, but in practice, the measure of political importance enjoyed by all the different “ estates ” of the realm (Stände) depended merely on strength and opportunity. The central court of the Empire, the “ Reichshofgericht,” was hardly more than a name. When a case came up to it for decision, assessors had to be collected for the special purpose, litigation was interminable, while the means for executing the sentence were quite inadequate. It is not to be wondered at that the various representatives of political authority in the country relied much more on alliances and leagues than on Imperial justice, or on the decrees of the Imperial Diet (Reichstag). The towns formed powerful confederations, and they were met by still more powerful leagues of princes. After the two great struggles of 1388 and of 1450 and countless smaller feuds, a certain order was guaranteed by regional leagues, like the Swabian or the Rhenish, in­cluding both princes and towns, for the purpose of maintaining a more or less precarious peace.

It is clear that the legal arrangements of a society living under such political conditions were necessarily peculiar. Jurisdiction and 108 law were, as it were, pulverised into a quantity of smaller and larger fractions. Each princi­pality, lordship, town, followed a law of its own. And apart from the disruption of these circles of territorial customs, numberless varia­tions were produced by the social status of the parties concerned — the law of knights and of fees (Lehnrecht) was differentiated not only from the law of the country in general (Land­recht), but also from manorial law (Hofrecht), municipal law (Stadtrecht), guild law (Zunft­recht), peasant law (Bauernrecht). Besides, there was the great cleavage between lay and ecclesiastical courts. The fundamental princi­ple of German law amounted to a recognition of the right of each group of citizens to apply their own customary ideas in the dealings of their members with each other. This is an excellent principle, productive of freedom and of exuberant development, but it stands clearly in need of strong set-off in the way of co-ordina­tion between the centrifugal forces of all those local groups. And the centripetal tendency, so necessary in such a case, was sadly wanting. The political disruption of the Empire made it impossible to reduce local customs to one common law by the power of the State and of its tribunals. German law as a unity did not exist at the close of the Middle Ages. It was broken up into countless local customs, which, for this very reason, were unable to tackle the wider problems of civil intercourse.

A second difficulty sprang from the composi­tion of the various tribunals and from the manner in which law was laid down in them. Statutory law formed naturally a rare exception. There were some enactments passed by the Diets, chiefly concerning questions of public law, and occasional statutes passed in the different principalities and towns. But most legal questions had to be settled finally by un­written and unenacted law, which had to be ascertained or “ found ” for the purpose.

2. It is interesting to watch the attempts to get rid of the obvious drawbacks of German law by means of institutions of native origin. One expedient, which obtained considerable success in municipal jurisdiction, was the reference of doubtful cases from local to superior courts.

Another powerful influence in the same direction was exercised by the spread of authori­tative treatises on customary law. The most remarkable and influential of these was com­piled by Eike von Repgow on the law of the Saxons (Sachsenspiegel). It may be compared with Bracton’s famous work on the laws of England, with this characteristic difference, that the English author wrote on the common law of his country, while the German treated of the legal customs of one German race. But, in spite of this material limitation, Eike von Repgow’s work was an historical achievement. It provided the courts of Saxon Germany with a firm basis of jurisprudence, which was widely accepted and maintained. A most striking effect of this authoritative statement is revealed by the fact that the Northern territories, armed with the jurisprudence of the Sachsenspiegel, opposed a stubborn resistance to the inroads of Roman Law. This proves that the whole­sale “reception” of Roman rules is not ac­counted for by any inherent incompetence in German law. Where, as in Saxon lands, exces­sive particularism and uncertainty were counter­acted, German law proved quite able to stand its ground.

Other statements of provincial custom testify to the rising tide of Roman ideas. The German Mirror appeals in a general way to the guidance of the masters of law, that is, of the Roman jurists, and the Swabian Mirror shows distinct borrowings from Roman legal sources. Johann von Buch, the author of a gloss to the Saxon Mirror, composed some time between 1325 and 1355, finds it necessary to corroborate the rules of the Saxon Mirror by instituting com­parisons with similar Roman rules ; and at the same time a town clerk, Johann of Brünn, was engaged in the compilation of a regular text­book of Roman Law for German practitioners.

These are sure indications that Roman Law was beginning to assert itself as a remedy for the shortcomings of German jurisprudence. To explain this phenomenon we must take into account, to begin with, that in the view of educated Germans, the Holy Roman Empire had united Germany and Rome ; the Emperors of the German race were deemed the direct succes­sors of Constantine and Justinian. Frederick Barbarossa and Frederick II appealed to their hereditary right as successors of the Roman emperors of old, and actually inserted some of their own enactments as a sequel to the Novellas of Justinian. Mediaeval people had no strong sense of historical diversities. Artists of the period did not scruple to represent the guests at the wedding in Cana in doublets and slouched hats. Nor was there anything incongruous in the idea that the Corpus Juris Civilis was the Imperial law of Sigismund or Frederick 111 as rulers of the Holy Roman Empire. The Church, the other cosmopolitan power of the time, helped to propagate a similar theory. It had worked out a Canon law of its own, and had come to draw definite boundaries between the decrees of that law and the leges of secular authorities. But the jurisprudential affinity of both Codes, the ecclesiastical and the civil, was obvious, and at the universities the studies of both were necessarily allied. It came to be so at Prague and in the purely German universities that followed it—Erfurt, Cologne, Rostock, Heidelberg, Leipzig, Greifswald, etc. It is true that the principal chairs in the law faculties of these universities were chairs of Canon law, but the holders of them were frequently doctors of both laws (ittriusque juris), lecturing in Civil as well as in Canon law. In Prague and in Rostock the former branch of study was already regarded as a necessary part of the system­atic curriculum. At first many of the law pro­fessors were Italians, but gradually Germans came forward, and although no first-rate scholar can be named among them before Ulrich Zasius, professor at Freiburg, and Schiirpf at Wittenberg (about 1500), yet the large number of teachers and pupils proves the increasing practical importance of the study.

3. Even more weighty evidence is forthcoming from the text-books of Roman and Canon law, produced in the fourteenth and especially in the fifteenth century. These books were intended to assist persons who had not suffi­cient time to spend on a thorough and pro­longed study of legal sources, but who, at the same time, desired to make use of the accumu­lated wisdom of Roman jurisprudence. Such was, for example, the Vocabulary of both laws of Jodocus, a work composed by an Erfurt doctor about 1452 and extensively circulated in Germany and other countries. Fifty-two edi­tions of it were issued during the fifty years between 1473 and 1523. The Vocabulary gives short definitions and explanations of all sorts of terms used by Roman jurisconsults and enactments. It is sufficiently clear and well- informed.

A curious expression of this striving towards the acquisition of Roman legal ideas and forms may be found in a widely diffused branch of the juridical literature of the time, namely, the so-called “ trials of Satan.” It was a favourite concept of theologians to expound the doc­trine of salvation by using the form of a fictitious trial. The object was to show that by the Saviour’s sacrifice, hell had lost its power over mankind, and that the atonement, consequent on this sacrifice, could be claimed as a matter, not only of grace, but of justice. One of these tracts was ascribed, and probably rightly, to no less a jurist than the Bolognese Doctor, Bartolus, and a German translation, named after Belial, lays stress on the excellent information it supplies on questions of procedure. The sub­stance of the latter discourse is as follows. Satan appears before the tribunal of Christ under the name of Mascaron, and presents a complaint against mankind. Christ assigns a hearing. The defendant failing to put in an appearance on the assigned day, the plaintiff claims judgment by default, but Christ declares that He grants an adjournment on the ground of equity and on the strength of His discretionary powers as judge. The next day the Virgin Mary appears as an advocate for mankind. Mascaron objects to her being admitted to represent the defendant, firstly, because she is a woman and therefore unfit to be an advocate, and secondly, on account of her relationship to the judge. Christ overrides the objection and the case proceeds. The action brought by Mascaron is an actio spolii, an action for despoil­ing hell of its possession. The Virgin demurs, on the ground that hell was only entitled to the Detinue of mankind, and was bound to safe­keeping in the interest of God. The actio spolii is not allowed by the court. Satan tries then to bring a petitory action ; he demands a sentence against mankind on the ground of original sin and of the words of God : on “the day when thou eatest of the fruit of the tree, thou shalt die/’ The Virgin excepts against this : hell itself was the cause of the Fall and is not entitled to reap the benefit of its own fraud (dolus). Satan comes with a replication : even were this right, mankind ought to be condemned officio judicis, by the action of the court, be­cause justice ought not to leave crime un­punished. The Virgin protests against such a new departure as an illegal alteration of the count. Besides, there is a decisive argument for the defendant, namely, that Christ has suffered punishment fin’ mankind, and satisfied justice by His voluntary sacrifice. Mascaron is therefore dismissed by the court.

It may be observed that all sorts of points on procedure arc introduced in this example, evidently with the idea of acquainting beginners with technical terms and fundamental forms of plead­ing, such as summons, default, equity, possessory and petitory action, exception, replication, count, fraud, etc.

A popular work of another kind is the Mirror oj Actions, a production dating from the beginning of the fifteenth century. The author, probably some town clerk, wrote his book in the frontier district between Swabia and Franconia, perhaps in the little town of Schwäbisch Hall. He is deeply grieved at the uncertainty of German legal customs, the greed and violence of princes, the slackness of the Emperor. He wants his fatherland to build up its laws on the basis of the Roman code, without neglecting ancient and reasonable customs. His first book, dedicated to private law, is partly derived from a work of Roffredus, a Bolognese doctor, and partly from the more elementary treatise of John de Blanosco (de actionibus, 1259). The German author endeavours, for the most part, to give a plain and useful statement of Roman rules, and avoids pedantic subtleties. It is not easy, of course, to combine German legal principles with the learned apparatus and the peculiar distinctions of Roman jurists, and it cannot be said that our author has succeeded in producing a thoroughly logical and clear amalgamation of both bodies of law. Yet his attempt is of the utmost im­portance, in that it shows that the introduction of such technical machinery as the Roman scheme of actions was, as early as the fifteenth century, not merely a subject for book learning, but directly affected practitioners. We find the Mirror 0/ Actions (Klagspicgel) trying to fit German class distinctions into the social classi­fication of Rome in the same manner as this was done by Bracton. It translates fluently the Latin servits by Eigen Mann, that is, by ‘serf.’ The equivalent in modern German would be Leibcigen, a man whose body is owned by another. Some­times, however, the author is startled by the in­congruity of such an identification, and is careful to add that slavery or even serfdom does not exist in German law. But then in the country, if not in the towns, there were numerous rustics who might appropriately be termed serfs (lcibeigen), and therefore the Klagspicgel “receives,” copies, many of the rules originally laid down for Roman slaves. In the same way there is a good deal of Romanesque learning in the treatment of obli­gations. Yet the author of the Klagspicgel does not seem to notice the difficulties felt by Roman lawyers in regard to the enforcement of ‘ nude ’ promises. He admits that they should be made the subject of actions. Again, his treatment of emphyteusis, of the hereditary lease of Roman Law, is strongly coloured by the fact that he uses the peasant tenancies of German mediaeval custom as concrete material for his scheme. Rents and services become the chief feature in the relation between the lord and his tenant (Hintersasse) ; the rights of the lord to supervise the cultivation, and to exercise a disciplinary power over the tenant, are recognised as an ancient incident of the tenure, etc. As a com­mentary on Roman sources, all this is erroneous, but in the history of “ reception ” this and similar variations from the orthodox doctrine are inter­esting and significant. They prove that we are confronted with something different from mere literary borrowings ; we witness the struggle between Roman and German theories in practice.

4. The next point to be observed concerns the influence of the knowledge of Roman Law acquired in the Universities and through popular or learned treatises on practice. We can easily discern that the persons who had recourse to Roman texts and to Romanistic literature in the fifteenth century belonged for the most part to one or other of three classes. There were, firstly, ecclesiastics desirous of confirming their con­tentions on church matters and private matters by reference to Civil law, to which Canon law was closely allied ; secondly, town clerks acting as jurisconsults to cities and to princes, and taking part in the discussions of ordinary tri­bunals as assessors ; thirdly, barristers in search of arguments for their clients ; they displayed a natural bent towards the written Common law of Rome, in preference to the native wisdom of German assessors (the Schoffen). But through what channels was Roman Law introduced into courts of law or into administrative offices ?

Juridical consultation formed the principal medium for its application in the earlier stages of the process. Officials in doubt as to some in­tricate problem of private or administrative law, and also parties to complicated suits, began to seek the advice of well-known jurists, especially of doctors of laws at the Universities. An early example is presented by the action of the Council of Cologne at the close of the fourteenth century in connection with the so-called Brotherhoods of Common Life (Brüder des gemeinsamen Lebens) —associations of fervently religious persons of both sexes, who joined in a common life of work and prayer. Consultations have been preserved on the question as to whether such associations were to be allowed or not, whether they were collegia licita, according to Roman terminology, or not. The first of these consultations is signed by two doctors and two licentiates of laws of the University of Cologne, of whom the two first were holders of regular chairs of law (legum doctorcs acht rcgentes in legibus). The case is put in the following manner :

“ In certain places persons join to live in common. Some are ecclesiastics dwelling in one house, where they are engaged in writing lawful books. Others, who cannot write, are engaged in mechanical crafts in another house. Or else they do manual work. These persons living in the two houses work and live on the results of their labour, and divide among them­selves the proceeds and their own goods, should they have any. They take their meals together, and do not beg for alms, and they have a rector who takes charge of the hall. They obey him as good disciples obey their master, and they settle the hours for work and the hours for rest, and similar matters. They choose to enjoy their goods in common, that they may live more quietly. The principal object in such a life is not to make profit, but they hope that by so living they may please God and serve Him. Such is the theme. It is asked whether such a college is an allowed one, and whether they have a right to elect a rector, to make by-laws for themselves, and to do other things allowed to colleges. And also what is the law in regard to women who live apart from their husbands, and sew and spin and exercise textile crafts on which they live in the same way (as described above) ? ” The doctors of Civil law gave an entirely favourable opinion on the authority of Bartolus, with the adjunct that women could only join in such a college provided their work was not repugnant to womanhood (si statui muliebri non repugnet). The consultation of the canonists based on Jo-

hannes Andreac was to the effect that no attempt to start new religious beliefs was permissible, but that life in a society was not illicit in itself. I may add that the brothers of Common Life had to endure many attacks from jealous Church­men, but the Council of Constance supported them, and their communities and schools con­tinued to flourish throughout the fifteenth cen­tury. In any case, the above-mentioned con­sultation is interesting from two points of view ; its subject is the momentous apostolic revival of Gerhard de Groot and his lay brotherhood ; it also marked a step in the introduction of the Roman theory of corporations into Germany. The ruling both of the legists and of the canonists is based on the Roman conception of the universitas as a juridical person, of the creation of a fictitious moral being endowed with the same rights as an individual, and organised in such a way as to ensure action for certain allowable aims in a continuous manner. A rector and obligatory by-laws are necessary to ensure such action ; civil rights arc ascribed to the society in question on the pattern of other lawful societies ; the individuality of its members is merged in certain respects in the higher being of the corporation ; the only point admitting of doubt concerns the allowable aim of the latter. Once this is established everything else follows of itself from the Roman theory of the juridical person. We are able to understand now why a consultation was needed, and what it supplied from the legal point of view to the authorities in Cologne. The Germanistic point of view as to corporations was a different one—it amounted to the admission of joint action by a plurality (Gesammthcit) acting as a union (Genossenschaft). This conception had not, however, reached a stage of theoretical com­pleteness and of a conscious co-ordination of all details under the ruling principle. The Roman doctrine supplied this very requirement, and it was substituted as being more scientific and thorough.

Another characteristic set of consultations given by the Cologne jurists in the course of the fourteenth and the fifteenth centuries concerns difficulties arising from the adjustment of political and private rights in cities and principalities. The formation within the precincts of the Empire of commonwealths of different types created by express delegation, by force, by custom, and by prescription, gave rise to constant disputes and complications both in Italy and in Germany. One of the great Italian jurists of the fourteenth century, Bartolus, had instituted a new treat­ment of this troublesome department of municipal law. He adapted and developed Roman con­ceptions of the authority of the people as a source of power, of the part played by coercion in the creation of law (vis coactiva), of the delegation of political authority and jurisdiction by the Emperor, and the like. His commentaries on the subject became the basis of the public law of central Europe, and it is significant that the professors of Roman Law in Germany appropriated his doctrine in preference to the teaching of Justinian’s Code itself. The modern elements of Bartolus’ teaching made it the more acceptable for the solution of problems arising out of the tangled web of affairs in fifteenth-century Ger­many. It is in its Italian garb that Roman Law was received by the Germans, and this modifi­cation explains to a great extent the reason of the comparative ease of its adoption.

It is needless to add that in a state of govern­ment and society as that which prevailed in Germany in the fifteenth century, the cross relations between different political units and social groups were constantly producing friction and juridical disputes. And in all such questions, German legal arrangements, based primarily on local customs, failed signally. Recourse to Roman Law as “ Common law ” was natural and unavoidable. It assumed the form of awards as well as of consultations. It became more and more usual for parties to a suit to submit the points in dispute to the arbitration of doctors of law. One characteristic method of submitting cases for decision to learned lawvers was the institution of the so-called “ Aden versendung,” the transmission of the documents relating to a case by the court which had jurisdiction, to the law faculty of a famous university. The professors of the faculty acting in corpora considered the evidence and pleadings, sometimes demanding supplementary material, and ultimately formulated a decision. This was forwarded to the court. Need­less to add, that this “ transmission of acts ” could only take place in connection with a pro­cedure based on written documents. The rules of such a procedure followed the practice of ecclesiastical courts, and were largely derived from usages of later Roman Law. Thus the “Acten- versendung,” apart from the fact that it was an appeal to colleges of jurists trained in foreign law, furthered the process of Romanisation by the procedure necessary to effect it.

5. I have dwelt more particularly on the be­ginnings of “reception ’’ in the fifteenth century, because the motives and reasons of the process are, as usual, more clearly apparent in their origins than in later developments. But the practical side of the process, the harvest of results in jurisdiction and legislation, belongs chiefly to the sixteenth century. The German courts of law, with their peculiar procedure and customary lore were overwhelmed by tribunals following Roman doctrine, primarily in consequence of the organisation of a central Imperial court, the “ Reichskammergericht.” This court deliber- atcly adopted Roman Law for its guidance as the common law of the Empire. This occurred in 1495, when the “ Reichskammergericht ” was definitely constituted as a standing tribunal. The event took place in connection with a move­ment towards the strengthening of Imperial institutions in the reign of Maximilian I. The Empire was reformed as a federation for main­taining public peace, divided into regions and circles, and subordinated in a legal sense to the “ Reichskammergericht.” This High Court never attained, of course, the decisive influence of the English Royal courts, or of French Parlements, but, nevertheless, it provided a point of concen­tration for the Common law of the Empire ; and, in spite of its dilatoriness and weakness in execution, it exercised a considerable influence on the juridical institutions of all the estates of the Empire. At the outset, it was enacted that half of its sixteen assessors should be doctors of laws, the other half being knights. Later on, it was decreed that even the knights should, so far as possible, be chosen from among persons learned in the Civil law. A tribunal thus con­stituted threw all its weight into the scale of the “reception” of foreign law against native customary jurisprudence. The law of^ Justinian was received in complexu, in its details and in its entirety, with the characteristic limitation, how­ever, that it was adopted not directlv from the original sources, but from the texts as glossed by Italian scholars. The rule that doctrines not recognised by the glossators are not to be taken into consideration by the judges {quod non ag­noscit glossa non agnoscit forum), was more than a confession of literary subordination to the greater knowledge of Azo, Accursius, Bartolus, Baldus, etc. It was necessary in order to avoid details too intimately connected with ancient life, and entirely unsuited for importation.

The example set by the “ Reichskammergericht ” was immediately followed by the High Courts of the various principalities, and “ reception ” spread from the top to the bottom of the ladder. The importance of this gradual assimilation by the lower courts, of the leading principles of the superior tribunals, is well illustrated, for example, in the history of “ reception ” in the principalities of Jülich and Berg (in the Rhine province). The estates of these principalities resolved in 1534 and 1537 to remodel their laws on Roman patterns, in order to avoid clashing with the superior court of the “ Reichskammergericht.” Under the influence of such various considerations, a movement towards the codification of local laws on the basis of their reformation and of the reception of Roman doctrine, sweeps over Germany. The towns of Worms and Xiirenberg (a.d. 1479) are among the first to carry through such reformations. Most of the monarchicallv organised principalities follow suit, with the notable exception of some of the North German states, which remained faithful to a jurisprudence based on the “ Sachsenspiegel.”

The “reception ” appears in this light mainly as a movement of the upper classes and of the political authorities connected with them. It encountered a good deal of opposition in the lower orders. Jurists were regarded as bad Christians (Die Juristen sind bose Christen). Every now and then one or the other among them was ex­posed to contumelious treatment, as, for example, two Constance doctors, whom a court of Schoffen in Thurgau put to flight, because it did not want to hear about Bartele and Baldele (Bartolus and Baldus), and was resolved to uphold its ancient customs. The revolutionary peasantry in 1525 declared in a fictitious document, nicknamed “ The Reformation of the Emperor Frederick III,” ” that all doctors of laws should be abolished, and that justice should be administered according to the law of Moses, because it is not good for men to get better law than that proclaimed by God.” Ulrich von Hutten was never tired of inveighing against the greedy, ignorant, pedantic set of lawyers, who spread darkness over the simplest questions, and use their pretentious learning to fleece the poor public. But, on the whole, the “ reception ” of foreign Common law was affected with much less strife and opposition than might have been expected from the radical nature of the experiment. The learned judges of Germany became judges in Civil law. The fundamental incongruity of the attempt was only realised much later, when native legal customs were resuscitated from oblivion and contemptuous relegation to the lowest local courts. The revenge of German law against artificial reception was achieved in our days by men like Heusler, Beseler, Gierke. And the weapons they wielded were forged from the general doctrines of German law, reconstructed by the help of its history.

Is it allowable to draw a moral from a complex historical process like the one we have been examining ? It seems as if, in spite of all varieties of tone and mood, two or three leading strains were constantly recurring in its course. It is evident, to begin with, that the reception of Roman Law depended largely on political causes ; this legal system was subordinated to the idea of the State towering over individuals or classes, and free from the intermixture of private and public interests characteristic of feudalism. It was bound to appeal to the minds of all the pioneers of the State conception—to ambitious Emperors, grasping territorial princes, reforming legists, and even clerical representatives of law and order. Coming, as it did, from an age of highly developed social intercourse, Roman Law satisfied in many respects the requirements of economic development. Although history never repeats itself, and the conditions of industry and trade in fourteenth­century Europe differed widely from those pre­vailing in the Roman Empire, the results of a vast experience in setting legal frames to business dealings had been accumulated in the Roman law­books, and the progressive classes of the closing Middle Ages did not fail to utilise them. This influence is especially manifest in the law of contracts. Lastly, from the jurisprudential point of view the scientific value of Roman Law could not be contested ; it asserted itself as soon as there reappeared theoretical reflection on legal subjects. And when the elaboration of Common law became a social necessity, the Roman system grew to be a force not only in the schools, but also in the courts. Altogether, the history of Roman Law during the Middle Ages testifies to the latent vigour and organising power of ideas in the midst of shifting surroundings.