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THE ROMAN LAW AND THE GERMAN PEASANT1
ONE of the most curious and interesting facts in legal history is the introduction or "Reception" of the Roman law into Germany in the course of the fifteenth, sixteenth, and seventeenth centuries.2 Students of the new law began to find places as town-clerks or as councillors of princes, and, as such, eventually had opportunities to apply their legal knowledge in a practical way. Professors of law were frequently asked to act as arbitrators, and more important cases were often taken for advice or decision to the law faculties of the universities. The invention of printing made easy the multiplication of the works of the Italian commentators, and of popular handbooks, written by Germans, but based more or less on the medieval feudalized Roman law which was being actually applied and discussed in Italy. The Reception of the Roman Law was greatly furthered by the establishment of the Reichskammergericht in 1495. Eight at least of its sixteen judges were to be men "learned in the (Roman) law". Many causes brought it about that this imperial court inclined to judge according to Roman rather than German laws. In the sixteenth century, partly under the influence of this imperial court, similar, more or less Romanizing, supreme courts (Hofgerichte, Kammergerichte, Kanzleien) were created in many of the German territories. Roman legal ideas gradually filtered down from the higher to the lower courts, or were incorporated to a greater or less degree in the numerous codifications of law made by princes and cities in the sixteenth and seventeenth centuries.
1A summary of this article was read at the meeting of the American Historical Association in New York in December, 1909.
2 For brief text-book accounts of the Reception, with bibliographies, cf. B. Windscheid, Lehrbuch des Pandektenrechts (ninth ed., Frankfort, 1906), I. 1-8; H. Brunner, Grundzüge der deutschen Rechtsgeschichte (third ed., Leipzig, 1908), pp. 244-252; R. Schröder, Lehrbuch der Deutschen Rechtsgeschichte (fifth ed., Leipzig, 1907), pp. 805-814. The best critical examination of the older writers. and theories is by Georg von Below, Die Ursachen der Rezeption des Römischen Rechts in Deutschland (Munich, 1905). Cf. also Stölzel's review of v. Below in the Kritische Vierteljahrschrift für Gesetzgebung und Rechtswissenschaft (1907), XLVII. 1-49.
Cf. R. Stintzing, Geschichte der populären Literatur des römisch-kanonischen Rechts in Deutschland (Leipzig, 1867), one of the most valuable works on the Reception, quoted hereafter as Stintzing, Pop. Lit.
What was the effect of this Reception of the Roman Law upon the German peasant in the time of Luther? In regard to this I venture to suggest that there has grown up a kind of legend. This legend, in a simple form which has been read by thousands of students in America, runs as follows: "The Roman civil law had indeed been brought in by the ecclesiastics, and the lords favored it because it tended to regard serfs as slaves. The serfs naturally hated it because it hardened their lot. There was no good in appealing to it. It was one of their grievances. So the peasants of each place must fight it out with their own lords. They must rebel or submit." Similar ideas are found very generally accepted by the most noted writers. Professor Maitland wrote: "There seems to be plentiful evidence that the learned doctores juris who counselled the German princes and obtained seats in the courts were cordially detested by the multitude. In modern times they often have to bear much blame for that terrible revolt which we know as the Peasants' War." And Professor Vinogradoff says: "We find the Mirror of Actions (Klagspiegel) 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 servus by Eigen Mann, that is, by 'serf'." "The 'reception' appears. 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 Christions (Die Juristen sind böse 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 Schöffen 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, nick-named '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'."
These same views, that the Reception injured the peasantry and F. Seebohm, Era of the Protestant Revolution (New York, 1896), p. 33. English Law and the Renaissance (Rede Lecture for 1901, Cambridge),
Roman Law in Mediaeval Europe (New York, 1909), p. 119.
7 Ibid., p. 129; but see note 56, below. Other recent statements in English of the depressing effect of the Roman law upon the peasants are by A. F. Pollard, in Cambridge Modern History, II. 176; by J. S. Schapiro, Social Reform and the Reformation (Columbia Studies in History, etc., 1909, XXXIV., no. 2), pp. 40-53, 61; and in a more extreme form by E. Belfort Bax, German Society at the Close of the Middle Ages (London, 1894), pp. 219-228.
helped to cause the Peasant Revolt of 1525, are expressed with varying emphasis by many German authorities-by Protestants and Roman Catholics," by writers on peasant conditions,10 by historians of the law, and by the philosophers of history.12
For the sake of clearness these ideas in regard to the Roman law and the German peasant which have been indicated above by quotation or reference, and which I have ventured to call a legend, may be briefly stated under three heads: (a) The jurists of the Reformation period did not understand or have any respect for German customary and local law. They recklessly applied Roman legal conceptions to German institutions, and so treated some of the peasants as Roman slaves. (b) Roman law was hated by the peasants because it hardened their lot. They made a "popular opposition" to it as a "foreign" law. (c) It was a grievance of the peasants and one of the direct causes of the Peasant Revolt of 1525.
To determine whether these commonly accepted ideas are true. or legendary it is necessary to consider how far they are supported by contemporary sixteenth-century evidence, and how far they may be traced as a legend which has arisen in later times.
The most eminent German jurist of the sixteenth century is Ulrich Zasius (1461-1535).13 He is cited as a jurist who ignored or despised German law and misapplied Roman law to German conditions. After studying at Tübingen, Zasius became a town-clerk at Freiburg in the Breisgau, a doctor of laws in 1501, and two years later a professor of Roman law in the university. With his academic position he also retained his position as town-clerk, and
F. v. Bezold, Geschichte der Deutschen Reformation (Berlin, 1890, Oncken series), pp. 30-31, 44 seq., 452; Kultur der Gegenwart (1908), Theil II., Abth. V. i., p. 57; G. Egelhaaf, Deutsche Geschichte (Stuttgart, 1889), I. 544 seq. J. Janssen, Geschichte des Deutschen Volkes seit dem Ausgang des Mittelalters (ninth ed., Freiburg, 1883), I. 473-503, especially 486-494; II. 431 seq. 10 W. Zimmermann, Geschichte des Grossen Bauernkrieges (first ed., Stuttgart, 1842), I. 314-315.
11 O. Stobbe, Geschichte der Deutschen Rechtsquellen (Leipzig, 1860-1864), II. 49-56; Stintzing, Pop. Lit., pp. xxiii seq.; Jacob Grimm, Deutsche Rechtsalterthümer (fourth ed., Leipzig, 1899), p. xviii; Theodor Knapp, Gesammelte Beiträge zur Rechts- und Wirtschaftsgeschichte (Tübingen, 1902), p. 380.
12 K. Lamprecht, Deutsche Geschichte (third ed., Freiburg, 1904), V. i. 115-116. 13 The classic work on Zasius is still that of Stintzing (Ulrich Zasius, Basel, 1857), republished more briefly in his Geschichte der Deutschen Rechtswissenschaft (1880), I. 155 seq., and in an article in the Allgemeine Deutsche Biographie. For more recent literature see R. Schmidt, Zasius und seine Stellung in der Rechtswissenschaft (Rektoratsrede, Leipzig, 1904), pp. 48-50. Zasius's works were collected and edited by his son Johann Ulrich and his pupil Joachim Mynsinger: Opera Omnia (Lugduni, apud Sebastianum Gryphium, 1550, in 6 vols. fol.). It is from a copy of the reprint of 1590 (Frankfort), in the library of the Harvard Law School, that the citations below are made.
by practice became perfectly familiar with the town laws and customs. He made his legal influence felt by long years of university lecturing, by numerous writings, and in legislation by his assistance in drawing up a code for the town of Freiburg.
In the Freiburg code the Roman influence is indeed considerable; Zasius himself says that it was drawn up with his own aid and was in large part in conformity with Roman law.1 This was quite natural, for it dealt largely with procedure, contracts, mortgages, and inheritances, subjects which had reached a much fuller development in the commercial society of Rome than in the less advanced towns of Germany. Still, the city fathers, in entrusting. Zasius with this codification, evidently had no fear that he would "utterly disregard the local German laws and customs in his endeavor to apply the comprehensive principles of Roman jurisprudence to German conditions ".15 Nor did he do so. He attempted to co-ordinate and harmonize German and Roman principles. He even modified Roman principles to make them accord better with existing German institutions. He frequently refers to old German customs, quotes them, or corrects mistakes in them. He uses pure German legal phraseology with the exception of a few common Latin words like "testament ", "contract", etc., which were already in common use and generally understood. In short, as Stintzing has rightly pointed out, the whole work bears the stamp of a jurist, but of one who is familiar with the existing conditions of life and who is ready to comply with them rather than anxious to force them. to fit his own theories.16
The Freiburg code is significant of Zasius's practical knowledge of actual life and his respect for the customary law of a town. But as it deals with commercial rather than agricultural subjects, it tells us nothing of his attitude toward the peasantry or his influence upon them. This must be sought in his writings and lecture notes, in which there are several significant passages.
In a response "on certain unclassifiable things in German law "," Zasius speaks of the proprii homines-the unfree peasants.18
14"... novis legibus municipalibus, jure communi magna ex parte conformibus, ope nostra, superiore anno ita instruxit" (sc. Civitas Friburgum). Opera, I. 118, no. 12.
15 Schapiro, p. 45.
16 Stintzing, Zasius, p. 159.
17 Responsa Singularia, lib. II., cap. VII. (Opera, V. 36): "De anonymis quibusdam in jure nostro. Sic servi anonymi in nostra Germania homines proprii dicti, nec adscriptitii, nec coloni, nec capitecensi, nec statu liberi, nec liberti sunt, de omnium tamen natura aliquid participant. Istas igitur anonymas dispositiones recipi necesse est."
18 Proprii homines is the regular Latin equivalent of Eigenleute, Eigenmenschen, Leibeigene, Halseigene, etc.; these German words are used in sixteenth
He names various Roman social classes, but is perfectly aware that none of the terms is properly applicable to the German unfree peasant. The German peasant is "anonymous" as far as classical Roman law is concerned.
Zasius was also perfectly aware of the variety and complexity of the German agrarian conditions which he had before his eyes daily in the fields about Freiburg. He many times uses such phrases as "hodie proprii homines in varia conditione", "in multiplici differentia", "pacta curialia mirifice variantia", etc. It was a subject on which he had burnt some midnight oil and on which he wrote a very interesting response.19
After discussing at length, as a student of classical Roman law, the text in the Digest of Justinian on the dues of the Roman freedman, he comes to the practical question, "How much of all this is applicable to men who in our own day might resemble slaves or freedmen?" His reply is that the German unfree peasants are like slaves in a certain few respects but are more like freedmen; that as Tacitus pointed out and as the evidence shows, there never have been real slaves in Germany. For the German proprii homines, though marked with some characteristics of slavery, nevertheless possess property of their own, live in houses of their own, and are not reckoned as a part of the lord's household.20 They can inherit century documents in south and west Germany as the ordinary designations for a large part of the peasantry, the part which was personally unfree. In south and west Germany in the sixteenth century all peasants, from a public point of view, were subjects (Untertanen) of a political authority (Gerichtsherr); from an economic point of view, most peasants owed obligations to a landlord (Grundherr); and from a personal point of view, a great many peasants still paid fowls annually or made some recognition of the fact that they were personally unfree subjects (Leibeigene) of a personal lord (Leibherr). This personal unfreedom is Leibeigenschaft; it had been severe in its consequences in the Middle Ages, but was relatively mild in the sixteenth century. Later, in the seventeenth century, Leibeigene was used to designate east-Elbe peasants, who were really subject only politically and economically to a Gutsherr who combined in his single hand the rights of Gerichtsherr and Grundherr; in the seventeenth century these east-Elbe peasants came to have obligations forced upon them as if they were also personally unfree. Cf. below, notes 66 and 71; also the excellent anaylsis of the meaning of Leibeigenschaft by T. Knapp, Gesammelte Beiträge zur Rechts- und Wirtschaftsgeschichte (Tübingen, 1902), pp. 2-38, 85-95, 346-388. Leibeigener is often rendered in English by "serf", but as this word is used in many senses I prefer "unfree peasant" as closer to the true meaning of the sixteenthcentury Leibeigener.
19 Responsa Singularia, lib. I., cap. 111. (Opera, V. 15–19): “De operis, deque obsequiis libertorum ac earundem speciebus, insolita quaedam . . . Meas quoque vigilias ea in re addere placuit." The quotations and statements which follow are from this response.
20" Homines proprii in paucis quibusdam cum servis participant, et plus ad libertos respiciunt. Si quidem Germania pro Cornelii Taciti sententia veros servos nunquam habuit, id quod ipsa docet rei evidentia. Nam licet aliqui servili