ab intestato or ex testamento, serve as witnesses, sue in the courts, and engage in business on their own account. They can even make contracts with their lords, and are subject at law to the obligations of such contracts. There is a suggestion of slavery in the fact that the homines proprii are restricted in their freedom of marriage, but even in this case, Zasius says, they still resemble freedmen rather than slaves. In this connection he makes an interesting attempt to soften the contemporary German marriage restrictions by quoting in favor of the peasant two passages from the Digest which limit the patron's right to restrict the freedman's marriage. Zasius thinks this good Roman doctrine might well be inculcated on monasteries and nobles in Germany to the benefit of the peasants.

He then gives a general statement of the various dues-fowls, payments in money, labor services, etc.-owed to the lord, and shows his sympathy with the peasantry by adding that there are many lords in Swabia, both lay and ecclesiastical, who are either poor or reckless in expenditure, who use their superior position to cheat their well-to-do peasants; for they borrow of them but never pay back the debt. Zasius's comments upon the labor services show the same sympathy with the peasantry and show also his respect for German customary law. "Homines proprii, where there is no special agreement, are bound to perform services only so far as they are according to the custom of the manor or of the neighborhood. . . Even then they ought not to be so burdened with hard services as not to have sufficient time left for supporting themselves and their families." He recalls passages in the Digest which say that the patron ought to give the freedman a sufficient amount of time within which to do his services and ought not to demand services which are beyond the freedman's bodily capacity, and exclaims, 'Quod utinam aetas nostra diligenter perpenderet!"

Similarly, referring to the fact that a great many of the peasants have statements of the mutual obligations of lord and peasant written down in a court roll, Zasius again exclaims, "These statements are observed strictly where they are in the lord's favor; would that they were also observed where the rights and advantages of the peasants are described!"

Finally, he considers the question whether homines proprii must provide the lord with the necessaries of life. "If we look at the Roman law the matter is quickly settled because this was the duty of the freedman; but if we look at the German practice the question is doubtful, because clearly this jus alimentorum is not received apud nos nota laborent, propria tamen bona possident, propriis degunt domibus, de familia domini non censentur." Ibid.

by German custom. Wherefore I drop the question; no one shall say that the burdens of the unfree peasants, which already under some lords are too hard, have been increased by my writings."

Zasius, however, did not confine himself to mere sympathy in his study. On several occasions he gave opinions in regard to the status of peasants; on one occasion he protected twenty-two unfree peasants from unjust treatment by the Count of Tübingen;21 on another he showed that when a noble forbade his peasants to pasture their cattle in the woods before a certain day under penalty of ten pounds and the peasants broke the rule, the peasants ought to be regarded collectively, and the penalty of ten pounds need be paid but once by all together.22

Other passages might be cited, but these few give a fair idea of Zasius's legal treatment of, and real sympathy for, the unfree Swabian peasantry of his day. He understands their conditions and respects German customary law. He sees that the homines proprii -the unfree peasants-have little in common with Roman slaves, but do have some resemblances to Roman freedmen; but even here he does not recklessly apply the Roman law.

Of a different character from the writings of Zasius are the legal works of the unknown author of the Richterliche Klagspiegel, of Ulrich Tengler and of Perneder. Zasius was a scholar and wrote in Latin for other scholars. Though he did not neglect the practical writings of the Italian jurists and frequently cited from them with respect, he preferred to study the Roman law of Justinian's time and earlier. The writers now to be considered, on the other hand, wrote in German. They aimed to make practical handbooks of Roman law for German notaries and clerks who might not have had a university training. They were "popularizers". They sought their knowledge from the works of Italians like Azo, Baldus, Bartolus, Durantis, and Roffredus, rather than from an independent study of the Corpus Juris. Their actual influence upon the practical reception of the Roman law was probably greater than that of more learned men like Zasius. Do they apply the Roman law of slavery to German conditions to the injury of the peasant?

The Richterliche Klagspiegel, which is commonly attributed to Sebastian Brant,23 was written by an unknown author, some time shortly before the invention of printing. Judging from the dialect

21 R. Schmidt, Zasius, p. 69.

24

23 Responsa ad tit. I. de Actionibus Poenalibus (Opera, IV. 31).

23 This mistake is due to the fact that Brant brought out a new edition of it in 1516. He made no corrections or improvements of importance, but allowed many blunders to remain. The best account of this interesting law-book is by Stintzing, Pop. Lit., pp. 337-407.

and other internal evidences, the author must have lived on the border land between Swabia and Franconia-a region of the later Peasant Revolt. His book must have had considerable vogue, as it was printed in at least five editions before 1500,25 and in as many more during the next fifty years. The unknown author had mainly before him, and largely translated from, a treatise by Roffredus, as Stintzing has shown by a comparison of parallel passages; but he often found it very difficult to find a proper German phrase to translate a Roman one. He naïvely asks pardon for omitting some passages which were too hard for him, and for evading his difficulty at other times by setting down untranslated the Roman phrase itself.26 He cannot, for instance, find any German equivalent for libertus; in the few cases where he comes across the term, he employs some circumlocution.27 But he appears to think a consideration of Roman freedmen of little interest for Germany; for he gives very little attention to it-less than half a page—saying in explanation, "dise klag wurt selten geübet, darumb lass ichs fallen ".28 The thing, however, which has been seized upon by modern writers 20 is the fact that the unknown author actually does in a few, though not many cases, translate servus by eigen Mensch. He could find no other good German equivalent. At first sight, therefore, it would seem that he is recklessly applying the Roman law of slavery to the German peasant. But in reality he is quite clear that the Roman law of slavery is not applicable in Germany, for he says emphatically, "Mark the fact that there is no eigen Mensch [i. e., like the Roman servus] either in Swabia or Franconia."30 Not satisfied with this, he takes pains in three other separate passages to reiterate that 'there are none in the German lands.'

9931

25 Hain, nos. 3726-3730. The quotations below are from an edition of 1553 in the Harvard University Library.

20 Cf. fol. 96 a.

27" Wann libertus, das ist der, der eigen ist gewesen " (fol. 1 b).

28 Fol. 42 a.

He refers his reader to Azo for further information.

20 Stintzing, Pop. Lit., pp. 369–371; Vinogradoff, cf. above, note 6.

30 Fol. 34 b: "Merck was auss unseren eigen Frawen geboren würt, ist unser eigen. Merck, auss dem du magst wol verstehen, das in Schwaben kein eigen mensch ist, noch in Franken ".

...

31 Fol. 82 b: "Es mag gepeiniget werden der freigeboren und der eigen mensch, sie seind aber nit in teutschen landen." Fol. 82 b: "Wo der schuldner wissentlich dem glauber hette zu pfand gesetzt ein eigen mensch . . . diss libel setzte ich nit, wann diesselben eigen menschen seind in teutschen landen nit". Fol. 119 a: "Wann wer sie [die fraw, die dz ehebrechen gelitten hat] eigen, so het dise verklagung nit statt. . . . Auch ist nit not mehr davon zu setzen, wann es ist kein eigen mensch in teutschen landen von denen die obgeschriben recht sagen ". When he comes in the treatise which he is following to the actio tributoria, which is an action growing out of a Roman slave relationship, he says (fol. 3 a), "Next comes the action known as Tributoria; but it is not used here and therefore I omit it."

There were, of course, a great many peasants who were commonly called eigene Menschen in southwest Germany in the fifteenth and sixteenth centuries, and while the author of the Klagspiegel was clear in his own mind that they were not at all the same as Roman slaves it is perhaps open to question whether his less-informed readers may not have depressed the German peasant by a blind application of the passages in the Klagspiegel where servus is translated by eigen Mensch. This may have happened occasionally, though I have been unable to find any case of it; but, as will appear from the consideration of Tengler and Perneder, it could not have been very generally done; neither of these writers was led to do it. Moreover, the unknown author was much more interested in forms. of procedure and in criminal law than in the rules of private law. Aside from a very brief treatment of the rules of peculium (fol. 3 b), de servo corrupto (fol. 9 b), de liberali causa (fol. 34 b), and unde vi (fol. 97 b), the passages in which servus is translated by eigen Mensch are in large part merely incidental. They are not passages which discuss status, or other subjects which, if given full treatment on the analogy of Roman slavery, might have tended to depress considerably the legal position of the German unfree peasants.32 The unknown author's use of eigen Mensch for servus is rather a discovery of the nineteenth century than a depressing factor in the hands of sixteenth-century practitioners.

What has been said of the Klagspiegel of the fifteenth century is confirmed by two of the most popular and influential writers of the first half of the sixteenth century-Ulrich Tengler and Andreas Perneder. Both lived in the region of the Peasant Revolt, and wrote handbooks explaining existing German law and popularizing so much of the Roman law as they considered applicable in Ger

32 Professor Vinogradoff makes the interesting suggestion (Roman Law in Mediaeval Europe, p. 119) that "we find the Klagspiegel trying to fit German class distinctions into the social classification of Rome in the same manner as this was done by Bracton." But Bracton was greatly interested in just this question of status (cf. the parallel passages of Azo and Bracton, with notes by Professor Maitland, in the Publications of the Selden Society, VIII. 42-82). As Professor Vinogradoff himself points out (pp. 97 seq.) "Bracton follows Azo as to the principal and very important generalization all men are either free or slaves'. ... Villains are equated with slaves. . . . [He] maintained that there was no difference between a serf and a villain." The unknown author of the Klagspiegel, on the other hand, completely avoided any consideration of this fundamental Roman dilemma, omnes homines aut liberi sunt aut servi." I venture to think, therefore, that the analogy between him and Bracton is not complete and that it would be dangerous to apply for him in Germany Professor Vinogradoff's conclusion for Bracton in England (p. 101) that "the infusion of Roman doctrine made the legal treatment of villainage harder than might have been the case otherwise."

many. Tengler describes conditions shortly before, and Perneder shortly after, the Peasant Revolt.

33

Tengler, as town-clerk of Nördlingen and then as provincial judge for the Duke of Bavaria at Höchstädt, had ample opportunity during a long life to become familiar with the law. He did not confine himself, however, he says in his preface, to his own study and practice, but sought information from others "learned in the law". He took as his model the Speculum of Durantis; but he realized that not all Roman law was applicable in Germany and that a great deal of the law in force depended on "well-founded (German) regulations and praiseworthy customs". From these The draws largely. In the single very brief passage-less than half a page-in which he discusses the unfree he suggests in a perfunctory way how persons become unfree, contrary to natural law, by birth, captivity, or debt, and refers to the similar passage in Justinian's Institutes (I. 3); he then concludes with the statement that “the obligations which the unfree owe to their lords depend on all sorts of burdensome usages and customs which cannot be briefly explained. in the Laienspiegel, but can only be learned by experience in practice of the law."34 That is, he does not treat the German Leibeigener as a Roman servus nor define his obligations in Roman terms; he regards him simply as one of the German social class whose obligations are heavy, and vary from place to place according to local German custom, and can only be learned by observation and practice. It is noticeable also that he does not include Eigenleute in his list of persons who may not sue in the courts (fol. 6 a) nor in the list of those who cannot serve as witnesses (fol. 50 b).

35

Perneder, legal adviser of the city of Munich and later councillor of the Duke of Bavaria, being of a studious and practical turn of mind, compiled in his leisure hours a popular law-book.3° As,

33 The best account of Tengler and his work is by Stintzing, Pop. Lit., pp. 411-447. Cf. Stobbe, II. 170-173. The first edition of the Laienspiegel was published at Augsburg in 1509. Its popularity is attested by the frequency with which it was reprinted: at Augsburg in 1509, 1511, 1512, at Strassburg in 1510, 1511, 1514, 1516, 1518, and at least six more times before the middle of the century. The quotations below are from a Strassburg edition of 1510 in the Hohenzollern Collection, Harvard University.

34 Laienspiegel, fol. X a: "Auch wes sie [die eygenleüthe] iren herren müssen verpflicht, des sein menigerley beschwerlich gebreuch und gewonheit, die hierinn mit kurtz nit zu erkleren, sonder bey den erfaren der recht zu erfinden sein mogen". Eigenleute, used here, is another common equivalent for Leibeigene; cf. above, note 18.

85

35 Cf. Stintzing, Gesch. d. Rechtswissenschaft, I. 573-579; Stobbe, II. 173174; F. Litten, Röm. Recht und Pandekten Recht (Berlin, 1907), pp. 53-54.

26 Institutiones Auszug und Anzaigung etlicher geschriben Kaiserlichen und des Heyligen Reichs Rechten (Ingolstadt, 1555; printed first in 1545, and often reprinted).