The Roman and the Teuton
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Of course he did not know how far civilization would extend. He could not foretell railroads and electric telegraphs, any more than he could political economy, or sanitary science. But the best that he knew, he taught—and did also, working with his own hands. He was faithful in a few things, and God made him ruler over many things. For out of those monasteries sprang—what did not spring? They restored again and again sound law and just government, when the good old Teutonic laws, and the Roman law also, was trampled underfoot amid the lawless strife of ambition and fury. Under their shadow sprang up the towns with their corporate rights, their middle classes, their artizan classes. They were the physicians, the alms-givers, the relieving officers, the schoolmasters of the middle-age world. They first taught us the great principle of the division of labour, to which we owe, at this moment, that England is what she is, instead of being covered with a horde of peasants, each making and producing everything for himself, and starving each upon his rood of ground. They transcribed or composed all the books of the then world; many of them spent their lives in doing nothing but writing; and the number of books, even of those to be found in single monasteries, considering the tedious labour of copying, is altogether astonishing. They preserved to us the treasures of classical antiquity. They discovered for us the germs of all our modern inventions. They brought in from abroad arts and new knowledge; and while they taught men to know that they had a common humanity, a common Father in heaven taught them also to profit by each other’s wisdom instead of remaining in isolated ignorance. They, too, were the great witnesses against feudal caste. With them was neither high-born nor low-born, rich nor poor: worth was their only test; the meanest serf entering there might become the lord of knights and vassals, the counsellor of kings and princes. Men may talk of democracy—those old monasteries were the most democratic institutions the world had ever till then seen. ‘A man’s a man for a’ that,’ was not only talked of in them, but carried out in practice—only not in anarchy, and as a cloak for licentiousness: but under those safeguards of strict discipline, and almost military order, without which men may call themselves free, and yet be really only slaves to their own passions. Yes, paradoxical as it may seem, in those monasteries was preserved the sacred fire of modern liberty, through those feudal centuries when all the outside world was doing its best to trample it out. Remember, as a single instance, that in the Abbot’s lodging at Bury St. Edmunds, the Magna Charta was drawn out, before being presented to John at Runymede. I know what they became afterwards, better than most do here; too well to defile my lips, or your ears, with tales too true. They had done their work, and they went. Like all things born in time, they died; and decayed in time; and the old order changed, giving place to the new; and God fulfilled himself in many ways. But in them, too, he fulfilled himself. They were the best things the world had seen; the only method of Christianizing and civilizing semi-barbarous Europe. Like all human plans and conceptions, they contained in themselves original sin; idolatry, celibacy, inhuman fanaticism; these were their three roots of bitterness; and when they bore the natural fruit of immorality, the monasteries fell with a great and just destruction. But had not those monasteries been good at first, and noble at first; had not the men in them been better and more useful men than the men outside, do you think they would have endured for centuries? They would not even have established themselves at all. They would soon, in those stormy times, have been swept off the face of the earth. Ill used they often were, plundered and burnt down. But men found that they were good. Their own plunderers found that they could not do without them; and repented, and humbled themselves, and built them up again, to be centres of justice and mercy and peace, amid the wild weltering sea of war and misery. For all things endure, even for a generation, only by virtue of the good which is in them. By the Spirit of God in them they live, as do all created things; and when he taketh away their breath they die, and return again to their dust.
And what was the original sin of them? We can hardly say that it was their superstitious and partially false creed: because that they held in common with all Europe. It was rather that they had identified themselves with, and tried to realize on earth, one of the worst falsehoods of that creed—celibacy. Not being founded on the true and only ground of all society, family life, they were merely artificial and self-willed arrangements of man’s invention, which could not develop to any higher form. And when the sanctity of marriage was revindicated at the Reformation, the monasteries, having identified themselves with celibacy, naturally fell. They could not partake in the Reformation movement, and rise with it into some higher form of life, as the laity outside did. I say, they were altogether artificial things. The Abbot might be called the Abba, Father, of his monks: but he was not their father—just as when young ladies now play at being nuns, they call their superior, Mother: but all the calling in the world will not make that sacred name a fact and a reality, as they too often find out.
And celibacy brought serious evils from the first. It induced an excited, hysterical tone of mind, which is most remarkable in the best men; violent, querulous, suspicious, irritable, credulous, visionary; at best more womanly than manly; alternately in tears and in raptures. You never get in their writings anything of that manly calmness, which we so deservedly honour, and at which we all aim for ourselves. They are bombastic; excited; perpetually mistaking virulence for strength, putting us in mind for ever of the allocutions of the Popes. Read the writings of one of the best of monks, and of men, who ever lived, the great St. Bernard, and you will be painfully struck by this hysterical element. The fact is, that their rule of life, from the earliest to the latest,—from that of St. Benedict of Casino, ‘father of all monks,’ to that of Loyola the Jesuit, was pitched not too low, but too high. It was an ideal which, for good or for evil, could only be carried out by new converts, by people in a state of high religious excitement, and therefore the history of the monastic orders is just that of the protestant sects. We hear of continual fallings off from their first purity; of continual excitements, revivals, and startings of new orders, which hoped to realize the perfection which the old orders could not. You must bear this in mind, as you read mediæval history. You will be puzzled to know why continual new rules and new orders sprung up. They were so many revivals, so many purist attempts at new sects. You will see this very clearly in the three great revivals which exercised such enormous influence on the history of the 13th, the 16th and the 17th centuries,—I mean the rise first of the Franciscans and Dominicans, next of the Jesuits, and lastly of the Port Royalists. They each professed to restore monachism to what it had been at first; to realize the unnatural and impossible ideal.
Another serious fault of these monasteries may be traced to their artificial celibate system. I mean their avarice. Only one generation after St. Sturmi, Charlemagne had to make indignant laws against Abbots who tried to get into their hands the property of everybody around them: but in vain. The Abbots became more and more the great landholders, till their power was intolerable. The reasons are simple enough. An abbey had no children between whom to divide its wealth, and therefore more land was always flowing in and concentrating, and never breaking up again; while almost every Abbot left his personalities, all his private savings and purchases, to his successor.
Then again, in an unhappy hour, they discovered that the easiest way of getting rich was by persuading sinners, and weak persons, to secure the safety of their souls by leaving land to the Church, in return for the prayers and masses of monks; and that shameful mine of wealth was worked by them for centuries, in spite of statutes of mortmain, and other checks which the civil power laid on them, very often by most detestable means. One is shocked to find good men lending themselves to such base tricks: but we must recollect, that there has always been among men a public and a private conscience, and that these two, alas! have generally been very different. It is an old saying, that ‘committees have no consciences;’ and it is too true. A body of men acting in concert for a public purpose will do things which they would shrink from with disgust, if the same trick would merely put money into their private purses; and this is too often the case when the public object is a good one. Then the end seems to sanctify the means, to almost any amount of chicanery.
So it was with those old monks. An abbey had no conscience. An order of monks had no conscience. A Benedictine, a Dominican, a Franciscan, who had not himself a penny in the world, and never intended to have one, would play tricks, lie, cheat, slander, forge, for the honour and the wealth of his order; when for himself, and in himself, he may have been an honest God-fearing man enough. So it was; one more ugly fruit of an unnatural attempt to be not good men, but something more than men; by trying to be more than men, they ended by being less than men. That was their sin, and that sin, when it had conceived, brought forth death.
LECTURE X—THE LOMBARD LAWS
I have tried to shew you how the Teutonic nations were Christianized. I have tried to explain to you why the clergy who converted them were, nevertheless, more or less permanently antagonistic to them. I shall have, hereafter, to tell you something of one of the most famous instances of that antagonism: of the destruction of the liberties of the Lombards by that Latin clergy. But at first you ought to know something of the manners of these Lombards; and that you may learn best by studying their Code.
They are valuable to you, as giving you a fair specimen of the laws of an old Teutonic people. You may profitably compare them with the old Gothic, Franco-Salic, Burgundian, Anglo-Saxon, and Scandinavian laws, all formed on the same primæval model, agreeing often in minute details, and betokening one primæval origin, of awful antiquity. By studying them, moreover, you may gain some notion of that primæval liberty and self-government, common at first to all the race, but preserved alone by England;—to which the descendants of these very Lombards are at this very moment so manfully working their way back.
These laws were collected and published in writing by king Rothar, A.D. 643, 76 years after Alboin came into Italy. The cause, he says, was the continual wearying of the poor, and the superfluous exactions, and even violence, of the strong against those who were weak. They are the ‘laws of our fathers, as far as we have learnt them from ancient men, and are published with the counsel and consent of our princes, judges, and all our most prosperous army,’ i.e. the barons, or freemen capable of bearing arms; ‘and are confirmed according to the custom of our nation by garathinx,’ that is, as far as I can ascertain from Grimm’s German Law, by giving an earnest, garant, or warrant of the bargain.
Among these Lombards, as among our English forefathers, when a man thingavit, i.e. donavit, a gift or bequest to any one, it was necessary, according to law clxxii., to do it before gisiles, witnesses, and to give a garathinx, or earnest, of his bequest—a halm of straw, a turf, a cup of drink, a piece of money—as to this day a drover seals his bargain with a shilling, and a commercial traveller with a glass of liquor. Whether Rothar gave the garathinx to his barons, or his barons to him, I do not understand: but at least it is clear from the use of this one word that the publication of these laws was a ‘social contract’—a distinct compact between king and people. From all which you will perceive at once that these Lombards, like all Teutons, were a free people, under a rough kind of constitutional monarchy. They would have greeted with laughter the modern fable of the divine right of kings, if by that they were expected to understand that the will of the king was law, or that the eldest son of a certain family had any God-given ipso-facto right to succeed his father. Sixteen kings, says the preface, had reigned from Agilmund to Rothar; and seven times had the royal race been changed. That the king should belong to one of the families who derived their pedigree from Wodin, and that a son should, as natural, succeed his father, were old rules: but the barons would, as all history shews, make little of crowning a younger son instead of an elder, if the younger were a hero, and the elder an ‘arga’—a lazy loon; and little, also, would they make of setting aside the whole royal family, and crowning the man who would do their business best. The king was, as this preface and these laws shew, the commander in chief of the exercitus, the militia, and therefore of every free man in the state; (for all were bound to fight when required). He was also the supreme judge, the head of the executive, dispenser and fountain of law: but with no more power of making the law, of breaking the law, or of arbitrarily depriving a man of his property, than an English sovereign has now; and his power was quamdiu se bene gesserit, and no longer, as history proves in every page.
The doctrine of the divine right of kings as understood in England in the seventeenth century, and still in some continental countries, was, as far as I can ascertain, invented by the early popes, not for the purpose of exalting the kings, but of enslaving them, and through them the nations. A king and his son’s sons had divine ‘right to govern wrong’ not from God, but from the vicar of God and the successor of St. Peter, to whom God had given the dominion of the whole earth, and who had the right to anoint, or to depose, whomsoever he would. Even in these old laws, we see that new idea obtruding itself. ‘The king’s heart,’ says one of them ‘is in the hand of God.’ That is a text of Scripture. What it was meant to mean, one cannot doubt, or by whom it was inserted. The ‘Chancellor,’ or whoever else transcribed those laws in Latin, was, of course, a cleric, priest or monk. From his hand comes the first hint of arbitrary power; the first small blot of a long dark stain of absolutism, which was to darken and deepen through centuries of tyranny and shame.
But to plead the divine right of kings, in a country which has thrown off its allegiance to the pope, is to assert the conclusion of a syllogism, the major and minor premiss of which are both denied by the assertor. The arguments for such a right drawn from the Old Testament, which were common among the high-church party from James I. to James II. and the Nonjurors, are really too inconsequent to require more than a passing smile. How can you prove that a king has the power to make laws, from the history of the Jewish nation, when that very history represents it all through as bound by a primæval and divinely revealed law, to which kings and people were alike subject? How can you prove that the eldest son’s eldest son has a divine right to wear the crown as ‘God’s anointed,’ when the very persons to whom that title is given are generally either not eldest sons, or not of royal race at all? The rule that the eldest son’s eldest son should succeed, has been proved by experience to be in practice a most excellent one: but it rests, as in England, so in Lombardy, or Spain, or Frankreich of old time, simply upon the consent of the barons, and the will of the thing or parliament.
There is a sentimental admiration of ‘Imperialism’ growing up now-a-days, under the pretentious titles of ‘hero-worship,’ and ‘strong government;’ and the British constitution is represented as a clumsy and artificial arrangement of the year 1688. 1688 after Christ? 1688 before Christ would be nearer the mark. It is as old, in its essentials, as the time when not only all the Teutons formed one tribe, but when Teutons and Scandinavians were still united—and when that was, who dare say? We at least brought the British constitution with us out of the bogs and moors of Jutland, along with our smock-frocks and leather gaiters, brown bills and stone axes; and it has done us good service, and will do, till we have carried it right round the world.
As for these Lombard kings, they arose on this wise. After Alboin’s death the Lombards were for ten years under dukes, and evil times came, every man doing what was right in his own eyes; enlarging their frontier by killing the Roman landholders, and making the survivors give them up a portion of their lands, as Odoacer first, and the Ostrogoths next, had done. At last, tired of lawlessness, dissension and weakness, and seemingly dreading an invasion from Childebert, king of the Franks, they chose a king, Autharis the son of Cleph, and called him Flavius, by which Roman title the Lombard kings were afterwards known. Moreover, they agreed to give him (I conclude only once for all) the half of all their substance, to support the kingdom. There were certain tributes afterwards paid into the king’s treasury every three years; and certain fines, and also certain portions of the property of those who died without direct heirs, seem to have made up the revenue. Whereon, Paul says, perfect peace and justice followed.
Now for the laws, which were reduced into writing about sixty years afterwards. The first thing that you will remark about these laws, is that duel, wager of battle under shield, ‘diremptio causæ per pugnam sub uno scuto,’ is the earliest form of settling a lawsuit. If you cannot agree, fight it out fairly, either by yourself or per campionem, a champion or kemper man, and God defend the right. Then follows ‘faida,’ blood-feud, from generation to generation. To stop which a man is allowed to purge himself by oath; his own and that of certain neighbours, twelve in general, who will swear their belief in his innocence. This was common to the northern nations, and was the origin of our trial by jury. If guilty, the offender has to pay the weregeld, or legal price, set upon the injury he has inflicted. When the composition is paid, there is an end of the feud; if after taking the composition the plaintiff avenges himself, he has to pay it back. Hence our system of fines.
This method of composition by fines runs through all the Teutonic laws; and makes the punishment of death, at least among freemen, very rare.
Punishments by stripes, by imprisonment, or by cruel or degrading methods, there are none. The person of a freeman is sacred, ‘Vincire et verberare nefas,’ as Tacitus said of these Germans 600 years before.
The offences absolutely punishable by death seem to be, treason against the king’s life; cowardice in battle; concealment of robbers; mutinies and attempts to escape out of the realm; and therefore (under the then military organization) to escape from the duty of every freeman, to bear arms in defence of the land.
More than a hundred of these laws define the different fines, or ‘weregelds,’ by which each offence is to be compounded for, from 900 solidi aurei, gold pieces, for a murder, downwards to the smallest breach of the peace. Each limb has its special price. For the loss of an eye, half the price of the whole man is to be paid. A front tooth is worth 16s., solidi aurei; their loss being a disfigurement; but a back tooth is worth only 8s. A slave’s tooth, on the other hand, is worth but 4s.; and in every case, the weregeld of a slave is much less than that of a freeman.
The sacredness of the household, and the strong sense of the individual rights of property, are to be remarked. One found in a ‘court,’ courtledge (or homestead), by night (as we say in old English), may be killed. You know, I dare say, that in many Teutonic and Scandinavian nations the principle that a man’s house is his castle was so strongly held that men were not allowed to enter a condemned man’s house to carry him off to execution; but if he would not come out, could only burn the house over his head. Shooting, or throwing a lance into any man’s homestead, costs 20s. ‘Oberos,’ or ‘curtis ruptura,’ that is, making violent entry into a man’s homestead, costs 20s. also. Nay, merely to fetch your own goods out of another man’s house secretly, and without asking leave, was likewise punished as oberos.
So of personal honour. ‘Schelte’ or insult, for instance, to call a man arga, i.e. a lazy loon, is a serious offence. If the defendant will confess that he said it in a passion, and will take oath that he never knew the plaintiff to be arga, he must still pay 12s.; but if he will stand to his word, then he must fight it out by duel, sub uno scuto.
The person, for the same reason, was sacred. If a man had lain in wait for a freeman, ‘cum virtute et solatio,’ with valour and comfort, i.e. with armed men to back him, and had found him standing or walking simply, and had shamefully held him, or ‘battiderit,’ committed assault and battery on him, he must pay half the man’s weregeld; the ‘turpiter et ridiculum’ being considered for a freeman as half as bad as death. Here you find in private life, as well as in public, the vincire et verberare nefas.
If, again, one had a mind to lose 80 shillings of gold, he need but to commit the offence of ‘meerworphin,’ a word which will puzzle you somewhat, till you find it to signify ‘mare warping,’ to warp, or throw one’s neighbour off his mare or horse.
A blow with the closed fist, again, costs three shillings: but one with the open hand, six. The latter is an insult as well as an injury. A freeman is struck with the fist, but a slave with the palm of the hand. Breaking a man’s head costs six solidi. But if one had broken his skull, then (as in the Alemannic laws) one must pay twelve shillings, and twelve more for each fracture up to three—after which they are not counted. But a piece of bone must come out which will make a sound when thrown into a shield twelve feet off; which feet are to be measured by that of a man of middle stature. From which strange law may be deduced, not only the toughness of the Lombard brain-pan, but the extreme necessity of defining each particular, in order to prevent subsequent disputes, followed up by a blood-feud, which might be handed down from father to son. For by accepting the legal fine, the injured man expressly renounced his primæval right of feud.
Then follow some curious laws in favour of the masters of Como, Magistri Comacenes, who seem to have been a guild of architects, perhaps the original germ of the great society of free-masons—belonging, no doubt, to the Roman population—who were settled about the lake of Como, and were hired, on contract, (as the laws themselves express,) to build for the Lombards, who of course had no skill to make anything beyond a skin-tent or a log-hall.
Then follow laws against incendiaries; a fine for damage by accidental house-fire, if the offender have carried fire more than nine feet from the hearth; a law against leaving a fire alight on a journey, as in the Australian colonies now. Then laws to protect mills; important matters in those days, being unknown to the Lombards before their entrance into Italy.
Then laws of inheritance; on which I shall remark, that natural sons, if free, are to have a portion of their father’s inheritance; but less than the legitimate sons: but that a natural son born of a slave remains a slave, ‘nisi pater liberum thingaverit.’ This cruel law was the law of Rome and of the Church; our Anglo-Saxon forefathers, to their honour, held the reverse rule. ‘Semper a patre, non a matre, generationis ordo texitur.’ Next, it is to be remarked, that no free woman can live in Lombardy, or, I believe, in any Teutonic state, save under the ‘mundium’ of some one. You should understand this word ‘mund.’ Among most of the Teutonic races, women, slaves, and youths, at least not of age to carry arms, were under the mund of some one. Of course, primarily the father, head of the family, and if he died, an uncle, elder brother, &c. The married woman was, of course, under the mund of her husband. He was answerable for the good conduct of all under his mund; he had to pay their fines if they offended; and he was bound, on the other hand, to protect them by all lawful means.