Select Historical Documents of the Middle Ages/Book II

by Edward III

BOOK II. THE EMPIRE.

Introduction.

Of all the German stem-tribes that descended upon the Roman provinces and took possession of them either by treaty or by conquest, none was destined to play a lasting role in European history except the Franks. Eastern and Western Goths, Vandals and Burgundians were to lose their power after a brief space and to vanish from their new settlements. But the Franks were to become the leading people in Europe, the patrons of the church, the founders of an almost universal monarchy.

In nothing is the civilizing effect of the conquered Romans on the conquering Germans so clearly to be seen as in the fact that, within half a century after the Franks had settled in Gaul, they proceeded to draw up a code of written laws. Not that the laws themselves contain much that is Roman—the conditions of life were too dissimilar—but it is easy to see in them the Roman desire for order and discipline. There is an effort to assimilate the old institution with the new, to adopt a new modus Vivendi under completely changed circumstances. Tribes that remained on purely German soil—take the Saxons for instance—needed no such rules and regulations; they managed for centuries to live without them. No. I. of our documents—the Salic Law—is particularly interesting from the fact that it illustrates a period concerning which we have almost no other contemporary information. A few charters, the scanty notes for this time of Gregory of Tours and the Roman writers, the contents of a few graves—the most important that of Childerich, father of Clovis (481-511), found at Tournay in 1653—are all that we would otherwise have had to show the extent of civilization under the earliest Merovingian kings.

The Salic Law was composed under Clovis. It concerns itself, as will be seen from the extracts here given, with the most manifold branches of administration. The system of landholding, the nature of the early village community, the relations of the Germans to the Romans, the position of the king, the classes of the population, family life, the disposal of property, judicial procedure, the ethical views of the time, are all illustrated in its sixty-five articles. Directly and indirectly we can gather from it a great mass of information. How clearly, for instance, does the title on insults (p. 181) show the regard paid for personal bravery and for female chastity! The false charge of having thrown away one's shield was punished as severely as assault and battery—and the person who groundlessly called a woman unclean paid a fine second only in severity to that imposed for attempted murder!

No. II., the Capitulary of 802, is, in reality, nothing more nor less than the foundation charter of that long-lived institution, the Holy Roman Empire. The latter, as will be remembered, began its existence on Christmas-day, 800, and ended it on August 6th, 1806. Already in Voltaire's time it had ceased to be "either holy, or Roman, or an empire," but its pretensions were kept up until all Germany fell asunder before the wars and the wiles of Napoleon.

This capitulary of Charlemagne is the programme, so to speak, of the young empire. It is the ideal—an ideal never once to be fulfilled—of what that empire should have been. At the head of all things stands the emperor, whose greatest duty it is to provide for the welfare of his subjects. Every male being in his realm who is over twelve years of age has to plight his troth to him. In his hands are justice, morality, and religion. His realm is to be a haven of rest where all discords are to cease and no one to infringe on the rights of another. In his care are all the churches of God, all widows, orphans, and strangers, "for the emperor himself, after God and His saints, has been constituted their protector and defender."

Quite new, in the present document, is the introduction of the "missi dominici"—regular envoys who were to radiate from the emperor as a centre, and bring peace and justice to all parts of the realm. They were to overlook all the different officials, and to listen to complaints against them. So excellent was the institution that one similar to it was adopted in England, where in the time of Henry II. the itinerant justices formed an important feature of the administration.

It is worth while to notice how completely, at this time, the clergy were under the rule of the emperor. The new empire was to be as much of a theocracy as the kingdom of that David whose name Charlemagne bore in the intimate circle of his learned friends. But too soon, alas, the elements of disruption were to make themselves felt. The clergy were to assert their allegiance to a King higher than any earthly monarch, whose commands, as issued and tampered with by His representative on earth, were to be at variance with all the best interests of the emperor. Nationality was to war with universalism, the accepted principles of heredity with the desire for the necessary unity; and with the death of the last Carolingian emperor the empire itself was irretrievably to be cleft and riven.

No. III. is the document by which Louis the Pious decreed the division of the empire among his three sons, one of whom, however, was to bear the title of emperor and exercise a supervision over the other two. This was a compromise between the unity of the indivisible imperial power and the received principles of heredity.

The greatest advocates of unity had been the clergy, who looked upon the original establishment of the empire as the work of their head, the pope. It was, therefore, from them that the greatest opposition came when, twelve years later, a new son having in the meantime been born to him, Louis tried to nullify the document here given and to undo his own work. Again and again did the luckless emperor have to suffer for trying to disregard an agreement, drawn up and sanctioned, as this had been, by the nobles, the higher clergy and the pope. It is scarcely necessary to remind the reader of how the latter used his personal influence in favour of the elder sons, and of how on the Field of Lies, he successfully exercised his powers of seduction on the troops of the emperor.

After Louis's death the principles of heredity conquered at last the spirit of unity. By the treaty of Yerdun (843)—of which unfortunately no authentic document remains—the three separate kingdoms were called into being which afterwards developed into France, Italy and Germany. The empire waned away, but did not die, although for a time the emperors were little more than petty local potentates. It was reserved for Otto the Great to restore it to its pristine glory.

No. IV. is a treaty, entered into in 870, regarding the subdivision of the central one of the three kingdoms founded by the treaty of Verdun. It is given here as showing the beginning of the thousand years' struggle between France and Germany for the possession of the border provinces. It was preliminary to the treaty of Mersen.

No. V. is the so-called Truce of God (Treuga Dei) published by the emperor Henry IV. in 1085 to put bounds to the numerous feuds which were looked upon—much as the duel is still looked upon by the German nobility—as the only possible means for wiping away the shame of certain real or fancied wrongs. To forbid such feuds absolutely was not feasible; no attempt was made to do so until the year 1495. The present effort to restrict them met with no success—certainly not in the reign of the unfortunate monarch who made it, and who was finally deposed, ostensibly because he was unable to restore peace and quiet to his land.

No. VI. is a similar document issued eighty years later by Frederick Barbarossa. It will be seen from § 10 that knights of good family might still engage in wager of battle against their equals, although, in other respects a breach of the peace was to be severely punished.

No. VII. concerns the establishment of the Duchy of Austria in 1156. Austria had hitherto been simply a margravate and been comprised in the duchy of Bavaria. The act was performed by Fred. Barbarossa as a compromise. There were two claimants for Bavaria—one the son of that Henry the Proud who had expected to be made king in 1137, and who had been rejected for the apparently paradoxical reason that he already was the most powerful noble in Germany. Conrad III. had been made king in his stead and had soon found cause to quarrel with his powerful rival, conferring Bavaria on his own half brother the margrave Liutpold. After the death of Henry the Proud there had been concessions and reconciliations with regard to Bavaria—but at the end of Conrad's reign the young Henry the Lion still considered himself the heir, while the duchy was actually held by the king's brother Henry of Austria. Frederick Barbarossa in 1156, intent on the Italian expedition which was to gain him the imperial crown, hastened to heal the discord between his two powerful subjects. Henry the Lion received Bavaria, and, in order to appease Henry Jasomirgott, a new duchy was carved out for him. As will be seen from the charter it was enriched with almost unheard of privileges. But great as these were they did not satisfy one of the later dukes of Austria; and some of the most successful of mediæval forgeries distorted in the 14th century the original terms of Frederick's grant.

No. VIII. is the charter issued by Frederick Barbarossa at Gelnhausen in 1180. It commemorates a most important event in German constitutional history. The partition of Saxony was a death blow to the old ducal influence in Germany. There was, henceforth to be a new nobility, basing its claims on its services to the crown and not on its hereditary territorial power.

No. IX. is an interesting decision of a Nuremburg diet rendered in the year 1274. The election of Rudolf of Hapsburg after the long interregnum signified a renewal of the empire even though Rudolf never bore any title but king of the Romans. But how curtailed were his prerogatives compared to those of his predecessors! Future candidates were to be bound more and more by engagements and promises, to submit more and more to the arrogant assumptions of the electoral college. And in certain questions the Count Palatine of the Rhine, and not the King of the Romans was to speak the decisive word.

No. X., the Golden Bull of 1356, was issued for the purpose of determining the form for the election and coronation of the emperor, and also of regulating the duties, rights and privileges of the elector princes. It distinctly defines to whom the electoral rights belong. There had been no doubt about the three archbishoprics or about Bohemia, but disputes had arisen between rival lines both in Saxony and Brandenburg, and the seventh vote was claimed alike by Bavaria and by the Palatinate.

To the electors the Golden Bull gave sovereign rights within their districts. No one could appeal from their decisions; tolls, coinage and treasure trove were to be their perquisites, and offences against their persons were to be punished as high treason. They were to have an important share in the government of the empire.

The Golden Bull is not a law which introduced new features into the constitution. It determined, however, a, number of questions that had long been wavering and became an unquestioned authority that was appealed to for centuries. The election of an emperor took place according to its articles so long as the empire lasted. It is important to note that nothing is said concerning the right of the pope, which had been recognized by Louis of Bavaria, to confirm the election.

The Golden Bull was oppressive to the lesser nobility as well as to the cities. The princes who were not electors were now only of secondary rank, and it was probably at this time that one of them, Rudolf IVth, Duke of Austria, took the opportunity of forging privileges to raise his sinking prestige (see above, No. VII.). The regulations concerning Pfalburgers and confederations were a severe blow to civic pride—however expedient they may have been,—and the cities were driven into permanent opposition to the crown. Thus the Golden Bull served to further a process of disintegration which was to lead almost to anarchy and to deaden all feeling of loyalty for the empire. No. VI. is the formal charter which commemorates the founding of Heidelberg. The Elector of the Palatinate, Ruprecht I., had sent large sums of money to Eome to induce the Pope to confirm the foundation. This papal confirmation was not received until 1385 although the actual work of founding the university had long been in progress. It was the pope who commanded that the arrangement should be that of the Paris university, also that the chancellor should regularly be the prevost of the cathedral at Worms.

Ruprecht was unwearying in his care for his new creation and often spoke of it as his "beloved daughter." The university was consecrated on the 18th of October 1386, and, on the 19th, Marsilius began to lecture on logic, Reginald on epistle to Titus, Heilmann on the natural philosophy of Aristotle.

Up to the year 1390, when Ruprecht died, 1050 students had attended the university.