German Culture Past and PresentBax, Ernest Belfort
History
German Culture Past and Present
Bax, Ernest Belfort
Anabaptists; Germany -- Civilization; Germany -- Social conditions; Peasants' War, 1524-1525; Reformation -- Germany
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 Wuertemberg
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 them that 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 cognizant of the principles of Roman law. For
example, the Roman law, of course, making no mention of the right of
the mediaeval "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 overlord 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.
Public-domain text, read in full here on John Shaqi.
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