The Roman and the Teuton Part 13

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 ma.s.ses 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 G.o.d-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 primaeval model, agreeing often in minute details, and betokening one primaeval origin, of awful antiquity. By studying them, moreover, you may gain some notion of that primaeval 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 s.h.i.+lling, and a commercial traveller with a gla.s.s 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 const.i.tutional 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 G.o.d-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 G.o.d, but from the vicar of G.o.d and the successor of St. Peter, to whom G.o.d 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 G.o.d.' 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 a.s.sert the conclusion of a syllogism, the major and minor premiss of which are both denied by the a.s.sertor. 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 pa.s.sing 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 primaeval 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 'G.o.d's anointed,' when the very persons to whom that t.i.tle 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 t.i.tles of 'hero-wors.h.i.+p,' and 'strong government;'

and the British const.i.tution 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 const.i.tution 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 t.i.tle 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 s.h.i.+eld, 'diremptio causae 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 G.o.d 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 pa.s.sion, and will take oath that he never knew the plaintiff to be arga, he must still pay 12_s._; 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, 'c.u.m 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 a.s.sault 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 s.h.i.+llings 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 s.h.i.+llings: 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 s.h.i.+llings, 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 s.h.i.+eld 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 primaeval 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.

This system still lingers in the legal status of women in England, for good and evil; the husband is more or less answerable for the wife's debts; the wife, till lately, was unable to gain property apart from her husband's control; the wife is supposed, in certain cases of law, to act under the husband's compulsion. All these, and many others, are relics of the old system of mund for women; and that system has, I verily believe, succeeded. It has called out, as no other system could have done, chivalry in the man. It has made him feel it a duty and an honour to protect the physically weaker s.e.x. It has made the woman feel that her influence, whether in the state or in the family, is to be not physical and legal, but moral and spiritual; and that it therefore rests on a ground really n.o.bler and deeper than that of the man. The modern experiments for emanc.i.p.ating women from all mund, and placing them on a physical and legal equality with the man, may be right, and may be ultimately successful. We must not hastily prejudge them. But of this we may be almost certain; that if they succeed, they will cause a wide- spread revolution in society, of which the patent danger will be, the destruction of the feeling of chivalry, and the consequent brutalization of the male s.e.x.

Then follow laws relating to marriage and women, of which I may remark, that (as in Tacitus' time), the woman brings her dowry, or 'fader fee,'

to her husband; and that the morning after the wedding she receives from him, if he be content with her, her morgen gap, or morning gift; which remains her own private property, unless she misbehaves.

The honour of women, whether in fact or merely in fame, is protected by many severe laws, among which I shall only notice, that the calling a free woman 'striga' (witch) is severely punishable. If any one does so who has the mund of her, except her father or brother, he loses his mund.

On the whole, woman's condition seems inferior to man's on some points: but superior on others. e.g. A woman's weregeld--the price of her life--is 1200 solidi; while the man's is only 900. For he can defend himself, but she cannot. On the other hand, if a man kill his wife, he pays only the 1200 solidi, and loses her dowry: but if she kill him, she dies.

Again. If a free man be caught thieving, up to the amount of 20 siliquae, beans, _i.e._ one gold piece--though Pope Gregory makes the solidus (aureus) 24 siliquae--he replaces the theft, and pays 80 solidi, or dies; and a slave one half, or dies.

But if a free woman is taken in theft, she only replaces it; for she has suffered for her wrong-doing, and must lay it to her own shame, that she has tried to do 'operam indecentem,' a foul deed. And if an aldia or slave-woman steals, her master replaces the theft, and pays 40 solidi, minus the value of the stolen goods--and beats her afterwards, I presume, if he chooses.

And now concerning slaves, who seem to have been divided into three cla.s.ses.

The Aldius and Aldia, masculine and feminine, who were of a higher rank than other slaves.

The Aldius could marry a free woman, while the slave marrying a free woman is punishable by death; and, as experimentum crucis, if an Aldius married an Aldia or a free woman, the children followed the father. If he married a slave, the children followed the mother, and became slaves of his lord.

The Aldius, again, may not sell his lord's land or slaves, which indicates that he held land and slaves under his lord.

What the word means, Grimm does not seem to know. He thinks it synonymous with 'litus,' of whom we hear as early as Tacitus' time, as one of the four cla.s.ses, n.o.bles, freemen, liti, slaves; and therefore libertus, a freedman. But the word does not merely mean, it appears, a slave half freed by his master; but one rather hereditarily half free, and holding a farm under his lord.

Dio, however, is said to be an old German word for a slave; and it is possible that aldius (a word only known, seemingly, in Lombardy) may have signified originally an old slave, an old Roman colonus, or peasant of some sort, found by the conquerors in possession of land, and allowed to retain, and till it, from father to son. We, in England, had the same distinction between 'Laet,' or 'villains' settled on the land, glebae adscripti, and mere thralls or theows, slaves pure and simple. No doubt such would have better terms than the mere mancipia--slaves taken in war, or bought--for the simple reason, that they would be agriculturists, practised in the Roman tillage, understanding the mysteries of irrigation, artificial gra.s.ses, and rotation of crops, as well as the culture of vines, fruit, and olives.

Next to them you have different sorts of slaves; Servus ma.s.sarius, who seems to be also rustica.n.u.s, one who takes care of his lord's 'ma.s.sa' or farm, and is allowed a peculium, it seems, some animals of his own, which he may not sell, though he may give them away. And again, servus doctus, an educated household slave, whose weregeld is higher than that of others.

The laws relating to fugitive slaves seem as merciful as such things can be; and the Lombards have always had the credit of being kind and easy masters.

Connected with fugitive slaves are laws about portunarii, ferrymen, who appear, as you know, in the old ballads as very important, and generally formidable men. The fight between Von Troneg Hagen and the old ferryman in the Nibelungen Lied, is a famous instance of the ancient ferrymen's prowess. One can easily understand how necessary strict laws were, to prevent these ferrymen carrying over fugitive slaves, outlaws, and indeed any one without due caution; for each man was bound to remain in his own province, that he might be ready when called on for military service; and a traveller to foreign parts was looked on as a deserter from his liege- lord and country.

Then follow a great number of laws, to me both amusing and instructive, as giving us some glimpse of the country life of those Lombards in the 8th century.