Chapter XII: "No scutage nor aid shall be imposed in our kingdom, (1)

unless by common counsel of our kingdom, except for ransoming our person, for making our eldest son a knight, and for once marrying our eldest daughter; and for these there shall not be levied more than a reasonable aid. In like manner it shall be done concerning aids from the citizens of London."

There is no doubt that it is hard to read in this chapter all that has been found in it by enthusiastic appellants to Magna Charta at many times during the succeeding centuries. As a matter of fact, however, within half a century after it had been promulgated, it was appealed to confidently as one of the reasons why an English Parliament should meet if the King required special levies of money for the purpose of carrying on war. It was during the sixth and seventh decades of the Thirteenth Century that the great principle of English Legislation: "There shall be no taxation without representation"--which six centuries later was to be appealed to by the American Colonies as the justification for their war for independence, gradually came to be considered as a fundamental principle of the relationship between the government and the people. That it had its origin in Magna Charta there seems no doubt, and it is only another example of that unconscious development of a vital principle which, as we know from History, took place so often with regard to chapters of the Great Charter.

Undoubtedly one of the most important chapters of Magna Charta is the very brief one, No. 17, which concerns itself with the holding of a Court of Common Pleas. The whole of the chapter is, "Common Pleas shall not follow our Court but shall be held in some fixed place." This represented a distinct step in advance in the dispensing of justice. It is a little bit hard for us to understand, but all departments of government were originally centered in the king and his household--the court--which attended to royal and national business of every kind. As pointed out by Mr. McKechnie in his Magna Charta, the court united in itself the functions of the modern cabinet of the administrative department--the home office, the foreign office and the admiralty, and of the various legal tribunals. It {357} was the parent of the Court at St. James and the courts at Westminster. Almost needless to say, it is from the fact that the dispensing of justice was a function of royalty, that the places of holding trials are still called courts.

According to this chapter of Magna Charta, thereafter ordinary trials, Common Pleas, did not have to follow the Court, that is the royal household, in its wanderings through various parts of the kingdom, but they were held at an appointed place. In the days of Henry II. the entire machinery of royal justice had to follow the monarch as he passed, sometimes on the mere impulse of the moment, from one of his favorite hunting-seats to another. Crowds thronged after him in hot pursuit, since it was difficult to transact business of moment before the court without being actually present. This entailed almost intolerable delay, extreme annoyance and great expense upon litigants, who brought their pleas for the king's decision. There is an account of the hardships which this system inflicted upon suitors told of one celebrated case. Richard D'Anesty gives a graphic record of his journeyings in search of justice throughout a period of five years, during which he visited in the king's wake most parts of England, Normandy, Aquitaine, and Anjou. Ultimately successful he paid dearly for his legal triumph. He had to borrow at a ruinous rate of interest in order to meet his enormous expenses, mostly for traveling, and was scarcely able to discharge his debts.

All litigation then, that did not directly involve the crown or criminal procedures, could be tried thereafter by a set of judges who sat permanently in some fixed spot, which though not named was probably intended from the beginning to be Westminster. Hence it has been said by distinguished English jurists that Magna Charta gave England a Capital. On the other hand Chapter XXIV. insured justice in criminal cases by reserving these pleas to judges appointed by the crown. This short chapter reads: "No sheriff, constable, coroner, or others of our bailiffs shall hold pleas of our Crown." This last expression did not necessarily mean matters concerned with royal business as might be thought, but had in King John's time come to signify criminal trials of all kinds. It is easy to understand that those accused of crime would look confidently for {358} justice to the representative of the central government, while they dreaded the jurisdiction of the less responsible officials resident in the counties, who had a wide-spread reputation for cruelty and oppression, and for a venality that it was hard to suppress.

It would seem as though these quotations would serve to make even the casual reader appreciate how thoroughly Magna Charta deserves the reputation which it has borne now for nearly seven centuries, of an extremely valuable fundamental document in the history of the liberties of the English speaking people. Some of the subsequent chapters may be quoted without comment because they show with what careful attention to detail the rights of the people were guaranteed by the Charter, and how many apparently trivial things were considered worthy of mention. We may call attention to the fact that in Chapters forty-one and forty-two there are definite expressions of guarantee for the rights even of aliens, which represent a great advance over the feelings in this respect that had animated the people of a century or so before, and foreshadow the development of that international comity which is only now coming to be the distinguishing mark of our modern civilization.

"A freeman shall not be amerced for a small offence, except in
accordance with the degree of the offence; and for a grave offence
he shall be amerced in accordance with the gravity of his offence,
yet saving always his 'contentment'; and a merchant in the same way,
saving his wares; and a villein shall be amerced in the same way,
saving his wainage--if they have fallen into our mercy; and none of
the aforesaid amercements shall be imposed except by the oath of
honest men of the neighborhood.

"If any freeman shall die intestate, his chattels shall be
distributed by the hands of the nearest kinsfolk and friends, under
the supervision of the church, saving to everyone the debts which
the deceased owed to him.

"No constable or other bailiff of ours shall take corn or other
provisions from anyone without immediately tendering money therefor,
unless he can have postponement thereof by permission of the seller.

"No sheriff or bailiff of ours, or any other person shall take {359}
the horses or carts of any freeman for transport duty, against the
will of the said freeman.

"All kydells for the future shall be removed altogether from the
Thames and Medway, and throughout all England, except upon the sea
coast.

"Nothing in the future shall be taken or given for a writ of
inquisition of life or limbs, but freely it shall be granted, and
never denied.

"No bailiff for the future shall put any man to his 'law' upon his
own mere word of mouth, without credible witnesses brought for this
purpose.

"No freeman shall be arrested or detained in prison, or deprived of
his freehold, or outlawed, or banished, or in any way molested, and
we will not set forth against him, nor send against him, unless by
the lawful judgment of his peers and by the law of the land.

"To no one will we sell, to no one will we refuse or delay, right or
justice.

"All merchants shall have safe and secure exit from England, and
entry to England, with the right to tarry there and to move about as
well by land as by water, for buying and selling by the ancient and
right customs, quit from all evil tolls, except (in time of war)
such merchants as are of the land at war with us. And if such are
found in our land at the beginning of the war, they shall be
detained without injury to their bodies or goods, until information
be received by us, or by our chief justiciar, how the merchants of
our land found in the land at war with us are treated and if our men
are safe there, the others shall be safe in our land.

"It shall be lawful in future for any one (excepting always those
imprisoned or outlawed in accordance with the law of the kingdom,
and natives of any country at war with us, and merchants, who shall
be treated as is above provided) to leave our kingdom, and to
return, safe and secure by land and water, except for a short period
in time of war, on grounds of public policy--reserving always the
allegiance due to us.

"We will appoint as justices, constables, sheriffs or bailiffs only
such as know the law of the realm and mean to observe it well.

{360}

"We shall have, moreover, the same respite and the same manner in
rendering justice concerning the disafforestation or retention of
those forests which Henry our father and Richard our brother
afforested and concerning the wardship of lands which are of the
fief of another (namely, such wardships as we have hitherto had by
reason of a fief, which any one held of us by knight's service) and
concerning abbeys founded on other fiefs than our own, in which the
lord of the fee claims to have right; and when we have returned, or
if we desist from our expedition, we will immediately grant full
justice to all who complain of such things.

"All fines made with us unjustly and against the law of this land,
and all amercements imposed unjustly and against the law of this
land, shall be entirely remitted, or else it shall be done
concerning them according to the decision of the five and twenty
barons of whom mention is made below, in the clause for securing the
peace, or according to the judgment of the majority of the same,
along with the aforesaid Stephen Archbishop of Canterbury, if he can
be present, and such others as he may wish to bring with him for
this purpose, and if he cannot be present the business shall
nevertheless proceed without him, provided always that if any one or
more of the aforesaid five and twenty barons are in a similar suit,
they shall be removed as far as concerns this particular judgment,
others being substituted in their places after having been selected
by the rest of the same five and twenty for this purpose only, and
after having been sworn.

"Moreover, all the aforesaid customs and liberties, the observance
of which we have granted in our kingdom as far as pertains to us
towards our men, shall be observed by all of our kingdom, as well by
clergy as by laymen, as far as pertains to them towards their men.

"And, on this head, we have caused to be made out letters patent of
Stephen, Archbishop of Canterbury, Henry, Archbishop of Dublin, the
bishops aforesaid, and Master Pandulf, as evidence of this clause of
security and of the aforesaid concessions."

These last provisions show how closely the Church was bound up with the securing and maintenance of the rights of {361} the English people. The clauses we have quoted just before, need no comment to show how sturdily the spirit of liberty strode abroad even at the beginning of the Thirteenth Century, for Magna Charta was signed in 1215. The rest of the century was to see great advances in liberty and human rights, even beyond the guarantees of the Great Charter.

Magna Charta, glorious as it was, was only the beginning of that basic legislation which was to distinguish the Thirteenth Century in England. About the middle of the century Bracton began his collection of the laws of the land which has since been the great English classic of the Common Law. His work was accomplished while he was the Chief Justiciary during the reign of Henry III. For many years before he had occupied various judicial positions, as Justice Itinerant of the counties of Nottingham and Derby and for seventeen years his name appears as one of the justices of the Aula Regis. This experience put him in an eminently fitting position to be the mouthpiece of English practice and law applications, and his book was at once accepted as an authority. It is a most comprehensive and systematic work in five volumes, bearing the title De Legibus et Consuetudinibus Angliae, and was modeled after the Institutes of Justinian.

It was during the reign of Edward I., the English Justinian as he has been called, that the English Common Law came to its supreme expression, and this monarch has rightly been placed among the great benefactors of mankind for his magnanimous generosity in securing the legal rights of his subjects and framing English liberties for all time. Not a little of Edward's greatness as a law-maker and his readiness to recognize the rights of his subjects, with his consequent willingness to have English law arranged and published, must be attributed to his connection during his earlier years as Prince of Wales with the famous Simon De Montfort. To this man more than to any other the English speaking people owe the development of those constitutional rights, which gradually came to be considered inalienably theirs during the Thirteenth Century. He is undoubtedly one of the very great characters of history and the Thirteenth Century is by so much greater for having been the scene of his labors, during so many years, for the {362} establishment of constitutional limitations to the power of the monarch, and the uplifting of the rights of subjects not only among the nobility, but also among the lower classes.

It was in Edward's time that the English Common Law was fashioned into the shape in which it was to exist for many centuries afterwards. How true this is may perhaps best be judged by the fact that even the laws with regard to real estate have not been changed in essence since that time, though medieval titles to land would seem to be so different to those of the present day. According to the Encyclopedia Britannica the changes which have been made since that time have been mainly due to the action of equity and legislation, the latter sometimes interpreted by the courts in a manner very different from the intention of Parliament. The same authority is responsible for the statement that the reign of Edward I., is notable for three leading real estate statutes which are still law. One of these was with regard to Mortmain, while the important statute known as _Quia Emptores_ (the eighteenth of Chapter I. of the Laws of Edward I.) had the practical effect of making the transfer of land thenceforward, more of a commercial and less of a legal transaction. It is to this same period that is owed the writ _Elegit_ which introduced the law practice of a creditor's remedy over real estate. How little was accomplished in the matter of law-making in subsequent centuries, may be gathered from the fact that Mr. James Williams who writes the article on real estate in the Encyclopedia Britannica ninth edition, says that from 1290 to the reign of Henry VIII., that is down to the Sixteenth Century, there is no statute of the first importance dealing with real estate.

In a word, then, it may be said that these law-makers of the Thirteenth Century anticipated most of the legal difficulties of the after-time. Their statutory provisions, as in the case of the chapters of Magna Charta, seemed originally only to have a narrow application to certain urgent legal questions of the time, but proved eventually to contain in themselves the essence of legal principles that could be applied in circumstances such as the original law-maker had not even imagined. This is indeed the typical triumph of the century in every line of endeavor, that while apparently it devoted itself only to the {363} narrow problems of its own time, its solutions of them whether in art and architecture or decoration, in literary expression or poetic effectiveness, in educational methods or social uplift, always proved so complete, so thoroughly human in the broadest sense of that word and so consonant with development, that their work did not have to be done over again. No greater praise than this could be bestowed.

SPIRE OF ST. ELIZABETH'S (MARBURG)

{364}

XXIII

JUSTICE AND LEGAL DEVELOPMENT.

It must not be thought because we have devoted so much time to the triumphs of English law-making in the Thirteenth Century that, therefore, there is little or nothing to be said about this same admirable feature of the time in other countries. As a matter of fact every nation in Europe saw the foundation of its modern legal system laid, and was responsive witness to the expression of the first principles of popular rights and popular liberties. Montalembert in his Life of St. Elizabeth of Hungary [Footnote 30] makes no mention in the Introduction which is really a panegyric of the Thirteenth Century, of the progress of English law-making, and yet considers that he is able to bring together enough evidence to show that legislation had its acme of development just at this time. His paragraph on the subject will serve as the best possible preface to the scant treatment of continental law-making and enforcement of justice in this period, that our limited space will allow. He says:

[Footnote 30: Life of St. Elizabeth of Hungary by the Count De
Montalembert, translated by Francis Deming Hoyt, New York,
Longman's, Green and Company, 1904.]

"Legislation never, perhaps, had a more illustrious period. On the
one hand, the Popes, supreme authorities in matters of law as well
as of faith, gave to canon law the fullest development possible to
this magnificent security of Christian civilization; sat themselves
as judges with exemplary assiduity, published immense collections,
and founded numerous schools. On the other hand, that period gave
birth to most of the national legislation of the various states of
Europe; the great _Mirrors_ of Swabia and Saxony, the first laws
published in the German language by Frederick II. at the diet of
Mentz, and the code given by him to Sicily; in France, the
Institutes of St. Louis, together with the _Common Law_ of Pierre
des Fontaines, {365} and the _Statutes of Beauvoisis_ of Philip of
Beaumanoir; and lastly the French version of the _Assizes of
Jerusalem_, in which is to be found the most complete resume now
extant of Christian and chivalric law. All these precious monuments
of the old Christian organization of the world are preserved in the
native languages of the various people, and are distinguished, less
even by this fact than by their generous and pious spirit, from that
pernicious Roman law, the progress of which was destined soon to
change all the principles of the former."

Most of Montalembert's paragraph refers to the law-making in France with which he is naturally more familiar. He has supplied ample material for consultation for those who wish to follow out this interesting theme further. Even more significant, however, than the law-making in France, were the new ideas with regard to the enforcement in law that came in during the reign of Louis IX. We have not had to wait until this generation to realize, that as a rule it is not the absence of law so much as the lack of enforcement of such laws as exist, that gives rise to many of the injustices between men. St. Louis made it his business to bring about the enforcement of the laws with proper construction of their terms in such a way as to secure the rights of all. He himself sat under the famous old oak of Versailles as a Court of Appeals, reviewing especially the cases of the poor. It soon came to be known, that it would be a sad occasion for any and every court official who was found to have given judgment against the poor because of partiality or the yielding to unlawful influence. On the other hand, in order to keep the right of appeal from being abused, punishments were meted out to those who made appeals without good reason.

Finding that he was unable to hear so many causes as were appealed to him, Louis chose Stephen Boileau to act as Chief Justice and committed the care of proper legal enforcement with confidence into his hands. Boileau had become famous by having condemned some very near relatives, under circumstances such that relationship might have been expected to weigh down the wrong side of the scales of justice, and in a few years he enhanced his reputation by the utter disregard of all motives in the settlement of suits at law, except those of {366} the strictest justice. How much Louis himself did in order to safeguard the rights of the poor can be judged from the famous incident told by all his biographers, in which he risked the enmity of the most powerful among his barons, in order to secure the punishment of one of them who had put two students to death. This was the first time that the rights of men, as men, were asserted and it constitutes the best possible testimony to the development of law and true liberty in France.

"Three young nobles of the county of Flanders were surprised,
together with the abbot of St. Nicholas, in a wood pertaining to
Coucy, with bows and arrows. Although they had neither dogs nor
hunting implements, they were found guilty of having gone out to
hunt and were hanged. The abbot and several women of their families
made complaint to the king, and Enguerrard was arrested and taken to
the Louvre. The king summoned him before him; he appeared, having
with him the King of Navarre, the King of Burgundy, the counts of
Bar, Soissons, Brittany, and Blois, the Archbishop of Rheims, Sire
John of Thorote, and nearly all the great men in the kingdom. The
accused said that he wished to take counsel, and he retired with
most of the seigneurs who had accompanied him, leaving the king
alone with his household. When he returned, John of Thorote, in his
name, said that he would not submit to this inquiry, since his
person, his honour, and his heritage were at stake, but that he was
ready to do battle, denying that he had hanged the three young men,
or ordered them to be hanged. His only opponents were the abbot and
the women, who were there to ask for justice. The king answered that
in causes in which the poor, the churches, and persons worthy of
pity, took part, it was not fitting to decide them in battle; for it
was not easy to find anyone to fight for such sorts of people
against the barons of the kingdom. He said that his action against
the accused was no new thing, and he alleged the example of his
predecessor Philip Augustus. He therefore agreed to the request of
the complainants, and caused Enguerrard to be arrested by the
sergeants and taken to the Louvre. All prayers were useless; St.
Louis refused to hear them, rose from his seat, and the barons went
away astonished and confused.

{367}

"They did not, however, consider that they were beaten. They again
came together; the King of Navarre, the Count of Brittany, and with
them the Countess of Flanders, who ought rather to have intervened
for the victims. It was as if they had conspired against the king's
power and honour; for they were not content to implore Coucy's
release, but asserted that he could not be kept in prison. The Count
of Brittany maintained that the king had no right to institute
inquiries against the barons of his kingdom in matters which
concerned their persons, their heritage or their honour. The king
replied, 'You did not speak thus in former times when the barons in
direct dependence upon you came before me with complaints against
yourself, and offered to sustain them in battle. You then said that
to do battle was not in the way of justice.' The barons put forward
a final argument, namely, that according to the customs of the
kingdom, the king could only judge the accused and punish him in
person after an inquiry to which he had refused to submit. The king
was resolute, and declared that neither the rank of the guilty man
nor the power of his friends should prevent him from doing full
justice. Coucy's life was, however, spared. The fact that he had not
been present at the judgment, nor at the execution, prevailed in his
favour. By the advice of his counsellors, the king condemned him to
pay 1200 livres parisis, which, considering the difference in the
purchasing power of money, may be estimated at considerably more
than 400,000 pounds, and he sent this sum to St. John of Acre for
the defense of Palestine. The wood in which the young men were
hanged was confiscated to the abbey of St. Nicholas. The condemned
man was also constrained to found three perpetual chapelries for the
souls of his victims, and he forfeited jurisdiction over his woods
and fish ponds, so that he was forbidden to imprison or execute for
any offense which had to do with them. Since Enguerrard's defender,
John of Thorote, had in his anger told the barons that the king
would do well to hang them all, the king, who had been told of this,
sent for him and said, 'How comes it, John, that you have said I
should hang my barons? I certainly will not have them hanged, but I
will punish them when they do amiss.' John of Thorote denied that he
had said this, and offered to {368} justify himself on the oath of
twenty or thirty knights. The king would not carry the matter
further, and let him go."

One of the best evidences of the development of the spirit of law in Germany during this time is the establishment of the famous Fehmic Courts, or Vehmgerichte, which achieved their highest importance during the Thirteenth Century. As with regard to the universities, there is a tradition that carries the origin of these courts back to the time of Charlemagne. They are much more likely to have been developments out of the relics of the ancient free courts of the old Teutonic Tribe. The first definite knowledge of their existence cannot be traced much earlier than a decade or two before the Thirteenth Century. They had their principal existence in Westphalia. Practically the whole country between the Rhine and the Weser was ruled to a subordinate degree by these Fehmic courts. During the Thirteenth Century they were used only in the most beneficial and liberal spirit, supplying a means of redress at a time when the public administration of justice was almost completely in abeyance. As a matter of fact, before their establishment disregard for authority to the extent of utter lawlessness prevailed in this part of Germany.

{opp368}

CITY GATE (NEUBRANDENBURG)

RATHHAUS (STRALSUND)

The significance of these courts has sometimes been missed. They arose, however, out of the justice loving spirit of the people themselves and were meant to supply legal enforcements when the regularly constituted authorities were unable to secure them. They remind one very much of the vigilance committees, which in our own country, in the cities of the distant West, bravely and with the admirable prudence of the race, have so often supplied the place of regular courts and have brought justice and order out of the chaos of lawlessness. The last place most people would expect their prototypes, however, would be here in the Germany of the Thirteenth Century. How much these Vehmgerichte accomplished during the Thirteenth and Fourteenth centuries it would be difficult to say. They represent an outgrowth of the spirit of the people themselves, that constitutes another striking feature of the practical side of the generations of the Thirteenth Century. They had much more to do with bringing about the development of the modern acute sense of justice among the Teutonic peoples {369} than is usually thought. They are the German expression of the same feelings that in England dictated trial by jury, and secured for the English speaking people of all time the precious privileges of even-handed justice and the right to be judged by one's peers.

It was not alone in the western countries of Europe that great advances were made in liberty. The democratic spirit that was abroad made itself felt everywhere and the foundations of rights for the people were laid even in central Europe, in countries which ordinarily are thought of at this time as scarcely more than emerging from barbarism. Hungary may be cited as an example. Andrew II. is usually set down by narrow-minded historians as having been entirely too visionary in his character, and the fact that he led the fifth Crusade, apparently even more fruitless than were most of the others, is supposed to be an additional proof of this. Even Duruy in his History of the Middle Ages says of him, "he organized a state of anarchy by decreeing his Golden Bull, that if the King should violate the privileges of the nobility, they should be permitted to resist him by force and such resistance should not be treated as rebellion." As a matter of fact, his people were thus granted a constitution more liberal even than that of Magna Charta, but containing quite similar provisions in many respects, and the curious historical analogy is heightened when we recall that at the two ends of civilized Europe these constitutions were given in the same decade. One cannot help but wonder whether the Saxon elements which were in both peoples, for many Saxon and Frisian colonists had been induced to settle in certain parts of Transylvania just half a century before, did not have much to do with this extremely interesting development in Hungary, so like the corresponding evolution of the democratic spirit among their western kinsfolk.

In Poland the development in law came a little later but evidently as the result of the same factors that were at work during the Thirteenth Century. Casimir the Great, who was born shortly after the close of the Thirteenth Century, gave wise laws to Poland which have constituted the basis of Polish law ever since. At this time Poland was one of the most important countries in Europe. Casimir, besides giving laws to {370} his people, also founded a university for them and in every way encouraged the development of such progress as would make his subjects intelligently realize their own rights and maintain them, apparently foreseeing that thus the King would be better able to strengthen himself against the many enemies that surrounded him in central Europe.

How much the great Popes of the century accomplished for the foundation and development of law, can only be appreciated by those who realize the extent of their contributions to the codification of canon law. It was the arrangement of this in definite shape that put the civil jurists of the time at work setting their house in order. Innocent III., who is deservedly called _Pater Juris_, devoted a great deal of his wonderful energy and genius to the arrangement of canon law. This placed for the first time the canon law on an absolutely sure footing and filled up many gaps that formerly existed. Gregory IX. commissioned his chaplain, the famous Raymond of Pennafort, who had been a professor of canon law in the University of Bologna, to codify all the decretals since the time of Gratian. This work was officially promulgated in 1234, four years of labor having been devoted to it. The laws are in the form of decisions pronounced in cases submitted to the Pope from all parts of Christendom, including many from the distant East and not a few from England and Scotland. Gregory's decretals were published in five books; a supplement under the name of the sixth book was published under Pope Boniface VIII. in 1298. In this for the first time abstract rules of law are laid down extracted from actual judgments. A compendium of Roman Law was added so as to approximate canon and civil procedure.

This gives the best possible idea of how deeply the popes and the authorities in canon law of the century were laying the foundations of canonical practise and procedure for all times. The origins of modern law are to be found here, and yet not, as might be anticipated because of the distance in time, in such a confused or unmanageable fashion that they are not worth while consulting, but on the contrary with such clarity and distinctness and with such orderly arrangement, that they have been the subjects of study on the part of distinguished {371} jurists for most of the centuries ever since, and have never lost their interest for the great lawyers and canonists, who prefer to know things from the foundation rather than accept them at second hand.

Some of the commentaries, or glosses as they were called, on canon law serve to give an excellent idea of the legal ability as well as the intellectual acumen of the canon lawyers of the century. The system of teaching was oral, and careful study was devoted to original authorities in law. Explanatory notes were added by the professors to their copies of the text. When later these texts were given out or lent for transcription, the notes were also copied, usually being written in the margin. After a time the commentary, however, proved to be, for students at least, as important as the text and so was transcribed by itself and was called an apparatus, that is a series of mechanical helps, as it were, to the understanding of the text.

Of the names of some of the most distinguished glossatores the memory has been carefully preserved because they produced so much effect on legal teaching. The gloss written on Gratian by Joannes Teutonicus (John the German), probably during the first decade of the Thirteenth Century, was revised and supplemented by Bartholomew of Brescia about the middle of the Thirteenth Century. Some ten years later Bernard of Parma wrote a commentary on the decretals of Gregory. All of these are important fundamental works in canon law, and they were of very great influence in bringing out the principles of law and showing the basis on which they were founded. It is almost needless to say that they aroused additional interest and made the subject much more easy of approach than it had been. The fact that all of these magnificent contributions to the science and literatures of law should have been made during our Thirteenth Century, serves only to emphasize the fact that everything that men touched during this period was sure to be illuminated by the practical genius of the time, and put into a form in which for many centuries it was to be appealed to as a model and an authority in its own line. How much of legal commentary writing there was besides these, can be readily understood from the fact that these represent the activity only of the University of Bologna {372} which was, it is true, the greatest of universities in its law department, but it must not be forgotten that many other universities throughout Europe also had distinguished professors of law at this time.

All this would seem to be of little interest for the secular law-making of the period, but it must not be forgotten that civil law was closely related to canon law at all times and that the development of canon law always meant a renewed evolution of the principles, and practise, and procedure of the civil law. In such countries as Scotland, indeed, the canon law formed the basis of the civil jurisprudence and its influence was felt even for centuries after the so-called reformation. On the other hand it must not be forgotten that the popes and the ecclesiastics helped to fight the battles of the middle and lower classes against the king and the nobility in practically every country in Europe. A very striking example of this is to be found in the life of that much misunderstood Pope Boniface VIII., the last pope of the century, who had received his legal training at Bologna, and who was one of the great jurists of his time. Circumstances differ so much, however, and obscure realities to such a degree, that at the present time we need the light of sympathetic interpretation to enable us to realize what Boniface accomplished.

{opp372}

PORTRAIT OF POPE BONIFACE VIII. (GIOTTO, ROME)

He did much to complete in his time that arrangement and codification of canon law which his predecessors during the Thirteenth Century had so efficiently commenced. Like Innocent III. he has been much maligned because of his supposed attempt to make the governments of the time subservient to the Pope and to make the Church in each nation independent of the political government. With regard to the famous Bull Clericis Laicos, "thrice unhappy in name and fortune" as it has been designated, much more can be said in justification than is usually considered to be the case. Indeed the Rev. Dr. Barry, whose "Story of the Papal Monarchy" in the Stories of the Nations series has furnished the latest discussion of this subject, does not hesitate to declare that the Bull far from being subversive of political liberties or expressive of too arrogant a spirit on the part of the Church, was really an expression of a great principle that was to become very prominent in {373} modern history, and the basis of many of the modern declarations of rights against the claims of tyranny.

He says in part:

"Imprudent, headlong, but in its main contention founded on history,
this extraordinary state-paper declared that the laity had always
been hostile to the clergy, and were so now as much as ever. But
they possessed no jurisdiction over the persons, no claims on the
property of the church, though they had dared to exact a tenth, nay,
even a half, of its income for secular objects, and time-serving
prelates had not resisted. Now, on no title whatsoever from
henceforth should such taxes be levied without permission of the
Holy See. Every layman, though king or emperor, receiving these
moneys fell by that very act under anathema; every churchman paying
them was deposed from his office; universities guilty of the like
offense were struck with interdict.

"Robert of Winchelsea, Langton's successor as primate, shared
Langton's views. He was at this moment in Rome, and had doubtless
urged Boniface to come to the rescue of a frightened, down-trodden
clergy, whom Edward I. would not otherwise regard. In the Parliament
at Bury, this very year, the clerics refused to make a grant. Edward
sealed up their barns. The archbishop ordered that in every
cathedral the pope's interdiction should be read. Hereupon the
chief-justice declared the whole clergy outlawed; they might be
robbed or murdered without redress. Naturally, not a few gave way; a
fifth, and then a fourth, of their revenue was yielded up. But
Archbishop Robert alone, with all the prelates except Lincoln
against him, and the Dominicans preaching at Paul's cross on behalf
of the king, stood out, lost his lands, and was banished to a
country parsonage. War broke out in Flanders. It was the saving of
the archbishop. At Westminster Edward relented and apologized. He
confirmed the two great charters; he did away with illegal judgments
that infringed them. Next year the primate excommunicated those
royal officers who had seized goods or persons belonging to the
clergy, and all who had violated Magna Charta. The Church came out
of this conflict exempt, or, more truly a self-governing estate of
the realm. It must be considered as {374} having greatly concurred
towards the establishment of that fundamental law invoked long after
by the thirteen American Colonies, 'No taxation without
representation,' which is the corner stone of British freedom."

We have so often heard it said that there is nothing new under the sun, that finally the expression has come to mean very little, though its startling truth sometimes throws vivid light on historical events. Certainly the last place in the world that one would expect to find if not the origin, for all during the Thirteenth Century this great principle had been gradually asserting itself, at least, a wondrous confirmation of the principle on which our American revolution justified itself, would be in a papal document of the end of the Thirteenth Century. Here, however, is a distinguished scholar, who insists that the Colonists' contention that there must be no taxes levied unless they were allowed representation in some way in the body which determined the mode and the amount of taxation, received its first formal justification in history at the hands of a Roman Pontiff, nearly five centuries before the beginning of the quarrel between the Colonies and the Mother Country. The passage serves to suggest how much of what is modern had its definite though unsuspected origin, in this earlier time.

DECORATION THIRTEENTH CENTURY PSALTER MS.

{375}

XXIV

DEMOCRACY, CHRISTIAN SOCIALISM AND NATIONALITY.

Democracy is a word to conjure with but it is usually considered that the thing it represents had its origin in the modern world much later than the period with which we are occupied. The idea that the people should be ready to realize their own rights, to claim their privileges and to ask that they should be allowed to rule themselves, is supposed ordinarily to be a product of the last century or two. Perhaps in this matter more than any other does the Thirteenth Century need interpretation to the modern mind, yet we think that after certain democratic factors and developments in the life of this period are pointed out and their significance made clear, it will become evident that the foundations of our modern democracy were deeply laid in the Thirteenth Century, and that the spirit of what was best in the aspiration of people to be ruled by themselves, for themselves, and of themselves had its birth in this precious seed time of so much that is important for our modern life.

Lest it should be thought that this idea of the development of democracy has been engendered merely in the enthusiastic ardor of special admiration for the author's favorite century, it seems well to call attention to the fact that historians in recent years have very generally emphasized the role that the Thirteenth Century played in the development of freedom. A typical example may be quoted from the History of Anglo-Saxon Freedom by Professor James K. Hosmer, [Footnote 31] who does not hesitate to say that "while in England representative government was gradually developing during this century, in Germany the cities were beginning to send deputies to the Imperial Parliament and the Emperor, Frederick II., was allowing a certain amount of representation in the {376} Government of Sicily. In Spain, Alfonso the Wise, of Castile, permitted the cities to send representatives to the Cortez, and in France this same spirit developed to such a degree that a representative parliament met at the beginning of the Fourteenth Century." In none of these countries, however, unfortunately did the spirit of representative government continue to develop as in England and in many of them the privileges obtained in the Thirteenth Century were subsequently lost.

[Footnote 31: Scribners, New York, 1890.]

Certain phases of the rise of the democratic spirit have already been discussed, and the reader can only be referred to them now with the definite idea of recognizing in them the democratic tendencies of the time. What we have said about the trade guilds constitutes one extremely important element of the movement which will be further discussed in this chapter. After this comes the guild merchant in its various forms. After all the Hanseatic League was only one manifestation of these guilds. Its widespread influence in awakening in people's minds the realization that they could do for themselves much more, and secure success in their endeavors much better by their own united efforts, than by anything that their accepted political rulers could do or at least would do for them, will be readily appreciated by all who read that chapter.

Hansa must have been a great enlightener for the Teutonic peoples. The History of the league shows over and over again their political rulers rather interfering with than fostering their commercial prosperity. These rulers were always more than a little jealous of the wealth which the citizens of these growing towns in their realm were able to accumulate, and they showed it on more than one occasion. The history of the Hansa towns exhibits the citizens doing everything to dissemble the feelings of disaffection that inevitably came to them as the result of their appreciation of the fact, that they could rule themselves so much better than they were being ruled, and that they could accomplish so much more for themselves by their commercial combination with other cities than had ever been done for them by these hereditary princes, who claimed so much yet gave so little in their turn.

The training in self-government that came with the {377} necessities for defense as well as for the protection of commercial visitors from other cities in the league, who trustfully came to deal with their people, was an education in democracy such as could not fail to bring results. The rise of the free cities in Germany represents the growth of the democratic spirit down to our own time, better than any other single set of manifestations that we have. The international relations of these cities did more, as we have said, to broaden men's minds and make them realize the brotherhood of man in spite of national boundaries than any other factor in human history. Commerce has always been a great leveler and such it proved to be in these early days in Germany, only it must not be thought that these German cities had but faint glimmerings of the great purpose they were engaged in, for seldom has the spirit of popular government risen higher than with them.

How clearly the Teutonic mind had grasped the idea of democracy can be best appreciated perhaps from the attitude of the Swiss in this matter. These hardy mountaineers whose difficult country and rather severe climate separate them effectually from the other nations, soon learned the advisability of ruling themselves for their own benefit. Before the end of the Thirteenth Century they had formed a defensive and offensive union among themselves against the Hapsburgs, and though for a time overborne by the influence of this house after its head ascended the Imperial throne, immediately on Rudolph's death they proceeded to unite themselves still more firmly together. They then formed the famous league of 1291 which represents so important a step in the democracy of modern times. The formal document which constituted this league a federal government deserves to be quoted. It is the first great declaration of independence, and its ideas were to crop out in many another declaration in the after times. It is an original document in the strictest sense of the word. It runs as follows:

"Know all men that we, the people of the valley of Uri, the
community of the valley of Schwiz, and the mountaineers of the lower
valley, seeing the malice of the times, have solemnly agreed and
bound ourselves by oath to aid and defend each other with all our
might and main, with our lives and property, {378} both within and
without our boundaries each at his own expense, against every enemy
whatever who shall attempt to molest us, either singly or
collectively. This is our ancient covenant. Whoever hath a lord let
him obey him according to his bounden duty. We have decreed that we
shall accept no magistrate in our valleys who shall have obtained
his office for a price, or who is not a native or resident among us.
Every difference among us shall be decided by our wisest men; and
whoever shall reject their award shall be compelled by the other
confederates. Whoever shall wilfully commit a murder shall suffer
death, and he who shall attempt to screen the murderer from justice
shall be banished from our valleys. An incendiary shall lose his
privileges as a free member of the community, and whoever harbors
him shall make good the damage. Whoever robs or molests another
shall make full restitution out of the property he possesses among
us. Everyone shall acknowledge the authority of a chief magistrate
in either of the valleys. If internal quarrels arise, and one of the
parties shall refuse fair satisfaction, the confederates shall
support the other party. This covenant for our common weal, shall,
God willing, endure forever."

In England democracy was fostered in the guilds, which, as we have already seen in connection with the cathedrals, proved the sources of education and intellectual development in nearly every mode of thought and art. The most interesting feature of these guilds was the fact that they were not institutions suggested to the workmen and tradesmen by those above them, but were the outgrowth of the spirit of self help and organization which, came over mankind during this century. At the beginning they were scarcely more than simple beneficial associations meant to be aids in times of sickness and trial, and to make the parting of families and especially the death of the head of the family not quite so difficult for the survivors, since affiliated brother workmen remained behind who would care for them. During this century, however, the spirit of democracy, that is the organized effort of the people to take care of themselves, better their conditions, and add to their own happiness, led to the development of the guilds in a fashion that it is rather difficult for generations of the modern time to {379} understand, for our trades' unions do not, as yet at least, present anything that quite resembles their work in our times.

It was because of the effective social work of these guilds that Urbain Gohier, the well-known French socialist and writer on sociological subjects, was able to say not long ago in the North American Review:

"When the workmen of the European Continent demand 'the three eights'--eight hours of work, eight hours of rest and refreshment, physical and mental, and eight hours of sleep--some of them are aware of the fact that this reform already exists in the Anglo-Saxon countries; but all are ignorant of this other fact that, during the Middle Ages, in an immense number of labor corporations and cities, a work-day was often only nine, eight and even seven hours long. Nor have they ever been told that every Saturday, and on the eve of over two dozen holidays, work was stopped everywhere at four o'clock." The Saturday half holiday began it may be said even earlier, namely at the Vesper Hour which according to medieval church customs was some time between two and three p. m. and the same was true on the vigils, as the eves of the important church festivals were called.

The only possible way to give a reasonably good idea of the spirit of the old-time guilds which succeeded in accomplishing such a wonderful social revolution, is to quote some of their rules, which serve to show their intents and purposes at least, even though they may not always have fulfilled their aims. Their rules regard two things particularly--the religious and the social functions of the guild. There was a fine for absence from the special religious services held for the members but also a fine of equal amount for absence from the annual banquet. In this they resemble the rules of the religious orders which were coming to be widely known at the end of the Twelfth and the beginning of the Thirteenth Century, and according to which the members of the religious community were required quite as strictly to be present at daily recreation, that is, at the hour of conversation after meals, as at daily prayer. An interesting phase of the social rules of the guild is that a member was expected to bring his wife with him, or if not his wife then his sweetheart. They were franker in these matters {380} in this simpler age and doubtless the custom encouraged matrimony a little bit more than our modern colder customs.