German Society at the Close of the Middle Ages

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.

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 mediæval "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 mediæval ideas and a denser coating of civilian conceptions. This transitional Europe, and not mediæval Europe, was the Europe which lasted on until the eighteenth century, and which practically came to an end with the French Revolution.

APPENDICES

APPENDIX A

The following is a rescript issued by a Commission of the Reichstag held at Nürnberg in 1522-23, anent the commercial syndicates which the sudden development of the world-market had recently called into existence: —

"What the small Commission by order of the great Commission hath determined concerning the Monopolia or pernicious and prohibited commerce is hereafter related."

(MSS. of 61 pages in the Ernestine General Archives at Weimar, Margin E. Quoted by Egelhaaf. Appendix, vol. i.)

"In the first place, concerning the origin of the word Monopolia. Monopolia is a Greek word, from the word Monos, that is, alone, and Polonia, that is, a selling. As if one should say: I alone sell this or that, or my Company or I alone sell. Therefore, such separate dealing whereby several dealers or traders unite together in such wise that they alone obtain profit from their handicraft or merchandy is called Monopolia. This is discoursed of in Lege Unica (?), Cod. de Monopoliis.

"Item, the aforesaid Monopolia, Uniting, Combining, Associatings and their Sellings have not now for the first time been found not to be borne; but the same were regarded and known as very noxious to the Commonweal, destructive and worthy to be punished, as aforetime by the Roman Emperors and Jurisconsults, and more especially by the blessed Emperor Justinian, so that such trespassers should be made to lose all their goods, and moreover should be adjudged to eternal misery (exile) from their own homes, as standeth written Lege Unica, Cod. de Monop. Honorius also and Theodosius forbade those of noble birth and those of the richer sort from harmful commerce; so that the common folk might the more easily buy of the Merchants; and in the Reichstag at Köln in 1512 the matter was much debated by the Emperor Maximilian, the Electors, the Princes and the Estates, and the aforesaid increase in the price of Wares was forbidden under great pains and penalties. The decree of the Reichstag sayeth: —

"And since much great fellowship in Trade hath arisen within the Realm in the last years, and also there be several and sundry persons who venture to bring all kinds of Wares and Merchants' goods, such as Spices, Arras, Woollen Cloth, and such-like into their own hand with power to trade in them, to set or to make their own advantage out of them, as it them pleaseth, and do greatly harm thereby the Holy Empire and all Estates thereof, contrary to the Imperial written Law and to all honesty: we have ordered and enacted for the furthering of the common profit and according to necessity, and we do desire that earnestly, and we will, that such noxious dealing be henceforth forbidden, and that they abstain [from it], and that henceforth they may [not] carry it on or exercise it. Those who shall do this contrary to the aforesaid, their Goods and Chattels shall be confiscated and fall to the Authority of the place. And the same Companies and Merchants [shall] henceforth not be conducted [on their journeys] by any authority in the Empire, nor shall it be lawful for such to do so with whatsoever words, opinion or clauses the convoy hath been given. Yet shall it not be forbidden to any man on this account to enter into company with any other save only if he undertake to bring the Wares into one hand and to place upon the Wares a worth according to his own mind and pleasure; or shall pledge the buyer or seller to sell, to give, or to keep such Wares to or for no man but himself, or that he shall not give them save such wise as he hath agreed with him. But when they, to whom it is permitted to pursue such trade, shall seek to make an unbecoming dearness, the Authority shall with zeal and earnestness forbid such dearness, and command an honest sale; but where an Authority be careless, the Fiscal shall exhort the same to perform his duty within the space of one month, failing such hath the Fiscal power to enter process against him.

"But the Authority and the Fiscal have neither done their duty, as is not right nor just, forasmuch as in the present times other small robbers and thieves are punished sorely, and these rich Companies, even one of them, do in the year compass much more undoing to the Commonweal than all other robbers and thieves in that they and their servants give public display of luxuriousness, pomp and prodigal wealth, of which there is no small proof in that Bartholomew Rhem did win, in so short a time and with so little stock of trade, such notable riches in the Hochstetter Company – as hath openly appeared in the justifying before the City Court at Augsburg and at the Reichstag but lately held at Worms. Therefore hath the said Rhem been made prisoner in Worms, and is even still kept in durance. Moreover shall he be sent here to Nürnberg that he may bear witness, and that it may be known with what perils the aforesaid forbidden Monopolies and Trade be practised, also through what good ways and means such may be set aside and prevented.

"There are three questions to be discoursed of: (1) Whether the Monopolies be hurtful to the Holy Empire and therefore are to be destroyed; (2) Whether all Companies without difference shall be done away, or whether a measure shall be set to them; (3) By what means this shall be done, and how these things may be remedied.

"I. Firstly, that the great Companies and the heaping up of their Stocks are everywhere harmful is the one cause as may be seen from the Spice, which is the most considerable Merchandise thus dealt and traded with, in the German nation. It is said with credibility that the King of Portugal hath not to pay more for one pound's weight of Pepper sent from the Indies to Antwerp than three shillings in gold, twenty of which shillings go to a Rhenish Gulden. But also if a Company in Portugal doth send for Spices it hath no trouble and excuse. How dear soever the King doth offer or give the Wares, it payeth him sometimes yet more, but on condition that he shall not furnish such Wares to them who will hereafter buy, save for a still greater price. To this example it may be added that he who hath offered an hundred-weight of Pepper from Portugal for eighteen ducats hath received for them twenty ducats or even more, with the condition that the Royal Majesty shall furnish to none other for the space of one or two years the same Pepper or Wares cheaper than twenty-four ducats, and thereby one hath so outbidden the other that the Spice which at the first could be sold but for eighteen ducats is now sold in Portugal for thirty-four ducats and up-wards. And it hath become at one time well-nigh as dear as it was ever before. The same hath also happened to other Spices with which such Merchants are nothing burdened, nor do they have any loss there-withal, but great over-abounding gain, the while they, for their part, will sell as dearly as they may, and none else in the Holy Empire may have or obtain the same. What loss and disadvantage resulteth to most men, even to the least, is not hard to be comprehended. We may prove this from the Nürnberg Spice convoys. The Saffron of most price, so called from the Catalonian place Saffra, hath cost some years ago, as namely in the sixteenth year, two and a half Gulden, six Kreutzers; now in the twenty-second year it costeth five and a half Gulden, fifteen Kreutzers. The best Saffron, which is called Zymer by the Merchants, hath cost from 1516 to 1519 two Gulden the pound, and even in 1521 two Gulden, twenty-four to twenty-six Kreutzers; now it costeth four Gulden; and even so are all Saffrons more dear, Arragonian, Polish, Avernian, etcetera.

"The Merchants, moreover, do not make dear everything at the same time, but now with Saffron and Cloves, the one year with Pepper and Ginger, then with Nutmeg, etcetera, to the intent that their advantage may not at once be seen of men. It is therefore purposed to make an enquiry of how much Spices are brought into Germany each year, so that it may be known how much the tax upon these Spices would bring in, in so far as the Merchants make a small increase to each pound, as happeneth very commonly. It hath been ordered to the Merchants to make estimation thereof, but their estimations were diverse; yet are the numbers told for the Spices which each year go in from Lisabon [Lisbon] alone, so that there may be had better knowledge. 36,000 hundred-weight of Pepper and not less but rather the more; 2400 hundred-weight of Ginger, about 1000 balls of Saffron do come from Lisabon alone, without that which cometh from Venice. For the other Spices they do not make known the sum. At Antwerp this may be known the more surely, through the due which is there levied.

"The Companies have paid especial note to such Wares as can be the least spared; and if one be not rich enough, it goeth for help to another, and the twain together do bring the Wares, whatsoever they be, wholly into their own hand. If a poor, small Merchant buy of them these same Wares, whose worth hath been cunningly enhanced, and if he desireth to trade with these Wares, according to his needs, then these aforesaid great hucksters are from that hour upon his neck, they have the abundance of these same Wares, and can give them cheaper and on longer borrowing; thereby is this poor man oppressed, cometh to harm and some to destruction. Ofttimes do they buy back their Wares through unknown persons, but not to the gain of them that sell; therefore it is that they have their Storehouses in well-nigh all places in Europe; and here lieth the cause of the magnificence of the heaping up of Stock.

"The great Companies do lessen trading and consuming in the lands. They do all their business in far countries and by letters; where now there is a great Company, there aforetime did twenty or more [persons], it may be, nourish themselves, who must all now wander afar, because they cannot hold a storehouse and servants in other places. By these means came it to pass that roads, tolls and convoy dues were multiplied, as innkeepers and all handiworkers of use and pleasure have knowledge; for many sellers bring good sale and cheapness into the Wares.

"Furthermore, the good gold and silver Monies are brought out of the land by the Companies, who everywhere do buy them up and change them. Within a short time Rhenish gold will have been changed and melted from far-seeking lust of gain. Therefore are there already in divers towns risings of the poor man, which, where it be not prevented, will, it is to be feared, extend further and more.

"II. Now it be asked, are all Companies to be therefore destroyed? We have now already shown cause why the great Companies mighty in money should be scattered and not be borne with. But, therefore, it is not said that all Companies and common trading should be wholly cut away; this were indeed against the Commonweal and very burdensome, harmful and foolish to the whole German nation; for therefrom would follow (1) that one should give strength, help and fellowship to Frenchmen and foreign nations, that they should undertake and carry out that which with so much pains we have gone forth to destroy. These foreign nations would then suck out the whole German land. (2) Furthermore, if each would trade singly and should lose thereby, that would then be to his undoing, and also to theirs who had entrusted to him their Goods. That may not happen where divers persons join together with moderation. (3) Such a forbidding would solely serve the rich to their advantage, who in all cases everywhere do pluck the grain for themselves and do leave the chaff for others. Of these rich, some are so placed that they are able even to do that which now great Companies do and which is thought to be so sore an oppression. Therewith would the matter not be bettered, but only a covering would be set upon it. (4) Trading and industry do bring this with them, that the Wares should not be sought in one place alone. One man is not able, and more especially not at the time when there is need thereof. The issue would be that trade in the land would be forbidden and it would serve the gain of foreign nations, and especially at this time [hurt?] the Germans; but to hire servants and to send such in his stead to another place needs money, and small Stocks will hardly bear the holding of domestics; many there be, indeed, who are not able to provide for themselves, let alone for servants.

"III. What proposals are now to be put forth for the staying of the aforesaid forbidden practice?

"(1) Companies or single persons shall use no more than twenty thousand, forty thousand, or for the most fifty thousand Gulden Stock for trade, and shall have no more than three Storehouses outside their family dwelling.

"(2) They shall be held by their bodily sworn vows to declare to their Authority that they have no more money in trade.

"(3) Their Stock may not be enhanced by gain; but rather, at farthest, account must be made every two years and the gain divided, also a notifying to the Authority must be made that the reckoning and the distributing hath been fulfilled.

"(4) No Money may be lent with usury for purpose of trade, for this is ungodly and usurious, also harmful and noxious to the Commonweal, without weighing of gain and of loss to take or to give monies or usury.

"(5) No sort of Ware may be brought into one hand.

"(6) Dispersed Companies may not join themselves together, on pain of losing all their goods.

"(7) No Merchant may buy at one buying more than 100 hundred-weight of Pepper, 100 hundred-weight of Ginger, and of no manner of Spice which hath the name, more than 50 hundred-weight; also after such buying he may not buy or trade any more of the same Ware for the fourth part of a year.

"(8) Inasmuch as especial nimbleness is used by the great Companies, the which have their knowledge in many lands, when the Wares spoil or when they come into greater worth, so as they make foreign Merchants buy up from others that have such Wares and bring the same into their hands before the others do know of such loss. Therefrom there followeth a great dearness of the Ware. For the other part the punishment may be best set in such wise that should such a harmful sale be disclosed within four weeks from the making thereof, the buyer shall be bound thereunto that he surrender his Ware again to the seller for the one half that was paid therefor; the other half part of the price falleth to the Authority.

"(9) On pain of loss of the Goods, as hath been determined in Köln, the seller may not make condition that the buyer shall not dare to give away the Wares for a lesser price.

"(10) In order that foreign nations may not be healed and bettered the while German land is oppressed and despoiled, it is commanded that this ordinance shall bind all foreigners born without who have their Storehouse within the Empire; so that a foreigner, whether a Frenchman or whatsoever he may be, that tradeth in the Holy Empire and is encompassed by this ordinance, shall and must suffer all penalties even as other Merchants born in this country, that do transgress. This shall also bind all Principalities, Lordships and Cities, even though they be free, to the intent that it shall be held equally for all men, and that none shall therein be spared.

"(11) Through the voyaging of German Merchants to Portugal there ariseth great evil, in that in Lisabon, because of the shipping from Portugal to the Indies with Spices and other matters, there be great Storehouses and very bold buying and selling, such as can in no wise else exist in one place, and therefore in that place ariseth the great due and enhancement of every manner of Spice and Ware which are borne away from thence, the same also with the pennyworths which they use up even in Portugal, and may not succeed with till they be once more shipped from the Indies to that city. To this end must every Ware that cometh from Portugal be ventured on the sea by Germans and be bound upon the Wheel of Fortune; and the voyage to Portugal is well-nigh more fearsome and dangerous than is that to the Indies. In few years on this same sea hath the worth of fifteen hundreds of thousands of Gulden been drowned and perished; and yet nevertheless are the Merchant folk, who have inherited but little, become so unspeakably rich. Therefore shall all shipping to Portugal be forbidden; the Portuguese shall themselves take in hand the venture and their Wares, and those that they may not keep they shall bring to Germany; for if one doth not thus pursue them, they must perforce sell at a lesser price. Others do affirm, indeed, that if the Portuguese do bring their Wares to Antorff (Antwerp), then would the great Companies find there also means to buy up the Wares; and the King of Portugal may be moved to get the Ware to Danzig or Egen Merten (Aigues Mortes) in France, so that the Germans must fetch them thence. But others would show, forsooth, that because of his receiving of the metals he cannot spare Germany, and without them he can do no trade to the Indies; one must therefore but hinder his receiving of the metals, and thus shall one compel him not to trade to France.

"(12) There shall be a fixing of the price of some Wares, to the end that not merely is it ordered for the common hucksters and Merchant folk, but also for them that buy these Wares for their own use and pleasure. It is to fear that also the scattered Companies do agree together secretly to sell over the price; moreover, hath the King of Portugal the Spices in his power alone, and since that time can he set the prices as he will, because for no manner of dearness will they rest unsold among the Germans. Moreover, it hath been related from Refel and Lubeck that the King of Denmark and the Fuggers stand in trade, the one with the other, that all Merchants' goods that have hitherto come from Muscey (Moscow) into the German trading cities shall further come to Denmark, and into the might of the King thereof and of the Fuggers, to the end that they may enhance the same at their pleasure. Thus far have men not punished such things with just pains, but have wittingly borne with them. Such can alone be made riddance of by a forbidding, that they and the Wares may not be sold in Germany higher than for a price determined. The Regiment (Imperial Governing Body) shall tax each Ware by the hundred-weight to a fixed sum. As measure shall the customary middle prices serve as they have been wont to be before the Wares have come into the power of the King of Portugal and of the great, hurtful, forbidden Companies. But question may be made: what though the Wares should miscarry? Then shall the Merchant folk recover themselves in them that do succeed. But what if there be lack of those Wares? The foreigners can far less spare our money than we their Wares; therefore is there in the Empire no long enduring, hurtful lack to be feared; unless it should be that one should esteem the not giving out in vain of Money for a lack. By such ordinance shall the danger of the overweening raising of prices be best hindered. In the matter of the dues the remoteness of the places can be made consideration of, also the diversness of the measures and the weights; thus will the Pepper in the storehouse in Frankfort be taxed at one Kreutzer the pound and even so in Nürnberg. The due shall begin one half-year after the determination thereof by the Imperial Estates.