The Roman and the Teuton

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 sex.  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 nobler and deeper than that of the man.  The modern experiments for emancipating 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 sex.

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 siliquæ, beans, i.e. one gold piece—though Pope Gregory makes the solidus (aureus) 24 siliquæ—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 classes.

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 classes, nobles, 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.

Dió, 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 ‘Læt,’ or ‘villains’ settled on the land, glebæ 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 grasses, and rotation of crops, as well as the culture of vines, fruit, and olives.

Next to them you have different sorts of slaves; Servus massarius, who seems to be also rusticanus, one who takes care of his lord’s ‘massa’ 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.

Scattered in the vast woodlands and marshes lie small farms, enclosed by ditches and posts and rails, from which if you steal a rail, you are fined 1s., if you steal a post, 3s.  There were stake fences, which you must be careful in making, for if a horse stakes himself by leaping in, you pay nothing; but if he does so by leaping out, you pay the price of the horse.  Moreover, you must leave no sharp stakes standing out of the hedge; for if a man or beast wounds himself thereby in passing, you have to pay full weregeld.

Walking over sown land, or sending a woman of your mundium to do so, in accordance with an ancient superstition, is a severe offence; so is injuring a vineyard, or taking more than tres uvæ (bunches of grapes, I presume) from the vine.  Injuring landmarks cut on the trees (theclaturas and signaturas) or any other boundary mark, is severely punishable either in a slave, or in a freeman.

In the vast woods range herds of swine, and in the pastures, horses, cared for by law; for to take a herd of swine or brood mares as pledge, without the king’s leave, is punishable by death, or a fine of 900s.  Oxen or horses used to the yoke can be taken as pledge; but only by leave of the king, or of the schuldhais (local magistrate), on proof that the debtor has no other property; for by them he gets his living.  If, however, you find pigs routing in your enclosure, you may kill one, under certain restrictions, but not the ‘sornpair,’ sounder boar, who ‘battit et vincit’ all the other boars in the sounder (old English for herd).

Rival swineherds, as is to be supposed, ‘battidunt inter se,’ and ‘scandalum faciunt,’ often enough.  Whereon the law advises them to fight it out, and then settle the damage between them.

Horses are cared for.  To ride another man’s horse costs 2s.; to dock or crop him, eight-fold the damage; and so on of hurting another man’s horse.  Moreover, if your neighbour’s dog flies at you, you may hit him with a stick or little sword, and kill him, but if you throw a stone after him and kill him, you being then out of danger, you must give the master a new dog.

Then there are quaint laws about hunting; and damage caused by wild beasts caught in snares or brought to bay.  A wounded stag belongs to the man who has wounded it for twenty-four hours: but after that to anyone.  Tame deer, it is observable, are kept; and to kill a doe or fawn costs 6s., to kill a buck, 12s.  Tame hawks, cranes, and swans, if taken in snares, cost 6s.  But any man may take flying hawks out of his neighbour’s wood, but not out of the Gaias Regis, the king’s gehage, haies, hedges, or enclosed parks.

And now, I have but one more law to mention—would God that it had been in force in later centuries—

‘Let no one presume to kill another man’s aldia or ancilla, as a striga, witch, which is called masca; because it is not to be believed by Christian minds, that a woman can eat up a live man from within; and if any one does so he shall pay 60s. as her price, and for his fault, half to her master, and half to the king.’

This last strange law forces on us a serious question, one which may have been suggesting itself to you throughout my lecture.  If these were the old Teutonic laws, this the old Teutonic liberty, the respect for man as man, for woman as woman, whence came the opposite element?  How is it that these liberties have been lost throughout almost all Europe?  How is it that a system of law prevailed over the whole continent, up to the French revolution, and prevails still in too many countries, the very opposite of all this?

I am afraid that I must answer, Mainly through the influence of the Roman clergy during the middle age.

The original difference of race between the clergy and the Teutonic conquerors, which I have already pointed out to you, had a curious effect, which lingers to this day.  It placed the Church in antagonism, more or less open, to the civil administration of justice.  The criminal was looked on by the priest rather as a sufferer to be delivered, than an offender to be punished.  All who are conversant with the lives of saints must recollect cases in which the saint performs even miracles on behalf of the condemned.  Mediæval tales are full of instances of the same feeling which prompted the Italian brigands, even in our own times, to carry a leaden saint’s image in his hat as a safeguard.  In an old French fabliau, for instance, we read how a certain highway-robber was always careful to address his prayers to the Blessed Virgin, before going out to murder and steal; and found the practice pay him well.  For when he was taken and hanged, our Lady put her ‘mains blanches’ under his feet, and supported him invisibly for a whole day, till the executioner, finding it impossible to kill him, was forced to let him retire peaceably into a monastery, where he lived and died devoutly.  We may laugh at such fancies; or express, if we will, our abhorrence of their immorality: but it will be more useful to examine into the causes which produced them.  They seem to have been twofold.  In the first place, the Church did not look on the Teutonic laws, whether Frank, Burgund, Goth or Lombard, as law at all.  Her law, whether ecclesiastical or civil, was formed on the Roman model; and by it alone she wished herself, and those who were under her protection, to be judged.  Next—and this count is altogether to her honour—law, such as it was, was too often administered, especially by the Franks, capriciously and brutally; while the servile population, always the great majority, can hardly be said to have been under the protection of law at all.  No one can read the pages of Fredegarius, or Gregory of Tours, without seeing that there must have been cases weekly, even daily, which called on the clergy, in the name of justice and humanity, to deliver if possible, the poor from him that spoiled him; which excused fully the rise of the right of sanctuary, and of benefit of clergy, afterwards so much abused; which made it a pious duty in prelates to work themselves into power at court, and there, as the ‘Chancellors’ of princes, try to get something like regular justice done; and naturally enough, to remodel the laws of each nation on the time-honoured and scientific Roman form.  Nevertheless, the antagonism of the Church to the national and secular law remained for centuries.  It died out first perhaps, in England, after the signature of Magna Charta.  For then the English prelates began to take up that truly Protestant and national attitude which issued in the great Reformation: but it lingers still in Ireland and in Italy.  It lingered in France up to the French revolution, as may be seen notably in the account of the execution of the Marquise de Brinvilliers, by the priest who attended her.  Horror at her atrocious crimes is quite swallowed up, in the mind of the good father, by sympathy with her suffering; and the mob snatch her bones from the funeral pile, and keep them as the relics of a saint.

But more.  While the Roman clergy did real good to Europe, in preserving the scientific elements of Roman law, they did harm by preserving therewith other elements—Roman chicane, and Roman cruelty.  In that respect, as in others, ‘Rome conquered her conquerors;’ and the descendants of those Roman lawyers, whom the honest Teutons called adders, and as adders killed them down, destroyed, in course of time, Teutonic freedom.

But those descendants were, alas! the clergy.  Weak, they began early to adopt those arms of quibbling and craft, which religious men too often fancy are the proper arms of ‘the saints’ against ‘the world.’  Holding human nature in suspicion and contempt, they early gave way to the maxim of the savage, that every one is likely to be guilty till proved innocent, and therefore licensed the stupid brutalities of torture to extract confession.  Holding self-degradation to be a virtue, and independence as a carnal vice; glorying in being slaves themselves, till to become, under the name of holy obedience, ‘perinde ac cadaver,’ was the ideal of a good monk; and accustomed, themselves, to degrading corporal punishment; they did not shrink from inflicting, even on boys and women, tortures as dastardly as indecent.  Looking on the world, and on the future of the human race, through a medium compared with which the darkest fancies of a modern fanatic are bright and clear, they did not shrink from inflicting penalties, the very mention of which makes the blood run cold.  Suspecting, if not alternately envying and despising, all women who were not nuns; writing openly of the whole sex (until unsexed) as the snare and curse of mankind; and possessed by a Manichæan belief in the power and presence of innumerable demons, whose especial victims were women; they erected witch-hunting into a science; they pandered to, and actually formalized, and justified on scientific grounds, the most cruel and cowardly superstitions of the mob; and again and again raised literal crusades against women, torturing, exposing, burning, young and old, not merely in the witch-mania of the 17th century, but through the whole middle age.  It is a detestable page of history.  I ask those who may think my statement exaggerated, to consult the original authorities.  Let them contrast Rothar’s law about the impossibility of witchcraft, with the pages of the Malleus Maleficarum, Nider’s Fornicarium, or Delrio the Jesuit, and see for themselves who were the false teachers.  And if they be told, that the cruelties of the Inquisition were only those in vogue according to the secular law of the day, let them recollect that the formulizers of that law were none other than the celibate Roman clergy.

I do not deny that there was in all this a just, though a terrible, Nemesis.  What was the essential fault of these Lombard laws—indeed of all the Teutonic codes?  This—that there was one law for the free man, another for the slave.  Ecclesiastical dominion was necessary, to make one law for all classes, even though it were a law of common slavery.  As the free had done to the slave, even so, and far worse, would the Roman clergy do to them.  The Albigense persecutors, burning sixty ladies in one day; Conrad of Marpurg scourging his own sovereign, St. Elizabeth; shaving the Count of Saiym’s head; and burning noble ladies almost without trial; Sprenger and his compeers, offering up female hecatombs of the highest blood thoughout Germany; English bishops burning in Smithfield Anne Askew, the hapless court-beauty, and her fellow-courtier Mr. Lascelles, just as if they had been Essex or Berkshire peasants;—all these evildoers were welding the different classes of the European nations, by a community of suffering, into nations; into the belief that free and slave had one blood, one humanity, one conscience, one capacity of suffering; and at last, one capacity of rebelling, and making common cause, high and low alike, against him who reigned in Italy under the ‘Romani nominis umbram.’

And if our English law, our English ideas of justice and mercy, have retained, more than most European codes, the freedom, the truthfulness, the kindliness, of the old Teutonic laws, we owe it to the fact, that England escaped, more than any other land, the taint of effete Roman civilization; that she therefore first of the lands, in the 12th century, rebelled against, and first of them, in the 16th century, threw off, the Ultramontane yoke.

And surely it will be so, in due time, with the descendants of these very Lombards.  We have seen them in these very years arise out of the dust and shame of centuries, and determine to be Lombards once again.  We have seen a hero arise among them of the true old Teuton stamp, bearing worthily the name which his forefathers brought over the Alps with Alboin—Garibald, the ‘bold in war.’  May they succeed in the same noble struggle as that in which we succeeded, and returning, not in letter, but in spirit, to the old laws of Rothar and their free forefathers, become the leading race of a free and united Italy!