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with which she looks down upon the uncertainty and circumlocution of the English and the American? It is not my purpose to draw invidious comparisons. It must be admitted that our best judges and our best lawyers will compare favorably with those of any land. But the world is not made up of best men. Allowances are to be made for respectable mediocrity. Here it is that the superiority of the German system, as a system, over our want of system, becomes manifest. That system is briefly as follows. A young German wishing to fit himself for the profession must first acquire the broad general culture of the gymnasium. In the next place, he must attend the university at least three full years, six half-years, and hear certain prescribed lectures, say eighteen or twenty in all. He need not liear them in any prescribed order, but he must hear them at some time. He need not pass the university examination, but he must pass the Staats-examen, which is a serious matter. This state-examination is conducted after a peculiarly German fashion. The candidate presents himself to the Court of Appeals of the state or province, bringing with him his gymnasial and university certificates. The court assigns to him two schriftliche Arbeiten, that is, two cases which have actually come up on appeal, and upon which he must give a reference. He gets fac-similes of all the papers in each case, from the original summons down to the final appeal in error, and also all the evidence. In his reference he must review every point taken on both sides, whether of law or of fact, whether controverted or not. In short, he must subject each case to an exhaustive theoretical analysis, and submit his reports in writing. This is a labor of several months. After the schriftliche Arbeiten have been read and approved by the Court, the candidate is admitted to an oral examination, which lasts from two to three hours. This second ordeal over, he becomes an Auditor. That is to say, he is assigned to some one of the higher courts (Obergerichte) as a compulsory listener to all the proceedings for two years. At the end of the two years, he has his choice either to pass his second examination then and be admitted to practice, or to wait two years longer as Assessor, that is, as one who sits on the bench with the judges, but bas no vote, and then pass a final examination as a candidate for judicial appointment.
A German state, it is evident, does not regard either the practice or the administration of the law as something to be “picked up." While it is perfectly true that no amount of teaching and examining will make a lawyer of a man whom nature intended for something else, yet it can scarcely be doubted that the German system works admirably in suppressing shysters, pettifogers, and low-lived individuals of all sorts. One cannot take the first step toward entering the profcssion without having acquired some substantial knowledge, some elements of culture and breeding. The law itself in Germany has its defects, obvious and grave ones; but these spring from the political and social organization of the country, and are not due especially to the bench or the bar. The whole tendency of the German system is to develop a body of enlightened, upright jurists, and to make the course of justice prompt and inexpensive. The judges, holding their office by royal appointment, and utterly indifferent to so-called public opinion, watch the lawyers very sharply and compel them to expedite matters. Besides, they regard themselves more as equitable umpires, than as judges in our sense. They try as much as possible to bring about compromises, and go far more than our judges into the real merits of the case. A judge, according to the English or American system, contents himself with passing his opinion on points that have been expressly raised; in Germany he will often take cognizance of points that have not been raised. In other words, he regards the equitable rights of the client as the main thing, and is not disposed to let them be sacrificed through the laches or ignorance of the attorney.
Preparatory Study for Legal Practice. Having thus given a brief outline of the way in which law is studied in Germany, I must say a few words about the substance of the instruction, reserving a fuller discussion of it for a subsequent chapter. The law of Germany has a threefold origin: it is either Roman, or German, or the product of recent legislation. By Roman law is meant that set of rules and principles which is contained in the Corpus juris civilis, the codification made at Constantinople in the sixth century by order of the Emperor Justinian. To explain how the corpus juris came to be adopted in Germany, would lead me too far out of my way. The adoption grew out of the intimate political relations existing between Germany and Italy, where the old Roman Law, as Savigny has shown, had never gone out of use. It was begun under the Hohenstaufen or Swabian dynasty, but proceeded very slowly, and was not thoroughly completed even at the advent of the Reformation. Its career was a prolonged struggle between the "illiterate”law of the folk and the subtleties of the clerks and doctors at the seats of learning. A somewhat similar phenomenon, but attended with very different results, may be observed in the course of English Common Law. The Canonists and Civilians of Oxford :ried to introduce the corpus juris into England, and came nearer to success than is commonly known. In Germany, the passages of the corpus juris not annotated by the Glossators of the Italian school are not regarded as received. But these are few in number. Practically, the corpus juris may be said to have been adopted entire by the common consent and common practice of the German mediæval courts, so that the presumption is in its favor. Whoever attempts to controvert the applicability of any one annotated passage must show either that it has been specifically rejected, or that it has been
altered or abrogated. Even in countries that have a modern code of civil law, a thorough knowledge of the Roman law is regarded as indispensable, inasmuch as that law is still applicable in cases not provided for by the code. The German law, i. e., the law of German origin, has chiefly to do with marital and domestic relations, and the rights and obligations of real property, more exactly, entailed and peasant estates. But all general ideas on legal topics, the entire legal nomenclature, the theory of contracts, payment, time, conditions, everything in short that is not limited or local, is derived from the Roman la:v.. A complete and accurate understanding of the principles embodied in the corpus juris is therefore justly considered as the basis of the lawyer's education. The Canon Law, i. e., the principles and rulings embodied in the corpus juris canonici, or body of mediæval Roman Catholic law, has not been adopted to , the same extent as the corpus juris civilis. Although the university title of LL.D. is doctor juris utrinsque (sc. tam romani quam canonici), the Canon Law as such is no longer taught in Germany. The corpus juris canonici embodies the rules that governed the mediæval ecclesiastical courts during their existence. As those courts had cogni. zance of everything relating to the church and church property, to marriage and divorce, crimes committed by or against the clergy, the sanctity of the oath, etc., their jurisdiction covered many cases that modern usage has vindicated for the secular courts exclusively. The terms Canon Law and Modern Ecclesiastical Law, thercfore, do not coincide; the former is the law, whether spiritual or secular in its nature, administered by the old spiritual courts; the latter is the law now applicable to spiritual matters exclusively, whether that law be derived from the corpus juris canonici or from modern statates and concordats, whether it be Roman Catholic or Protestant law. The universities of Germany teach at the present time, only Ecclesiastical Law. The Canon Law made its influence upon Roman and German law felt chiefly in practice and procedure, and most especially in the theory of evidence. All these matters, however, have been thoroughly revised and put upon a new basis by the modern codes of procedure.
As regards the Roman law more particularly, the course of instruction embraces ordinarily four sets of lectures, which I give by their German, names: Institutionen, Rechtsgeschichte, Pandecten, Erbrecht. The Institutionen are a condensed exposition of the outlines of the Roman law. The order followed is usually that of the Institutes of Justinian, and the object of the course is, not the exhaustive statement of all the principles in all their details, but rather the historic development of the leading principles, from the earliest times of the Republic, through the Empire, to the age of Justinian. In other words, the organic growth of the Roman law during seven or eight centuries forms the substance of the course called Institutionen. The
Rechtsgeschichte, or Aeussere Rechtsgeschichte, as it is more exactly called, is a history of Roman legislation rather than of Roman law. It treats of the various phases of the Roman constitution, the growth of the plebs, the power of the Senate, the scope of the senatus consulta, the functions of the prætor and the prætorian edict, the rescripts, and decrees of the emperors, the responsa prudentium, the history of Justinian's codification. The Rechtsgeschichte, then, aims at acquainting the student with the various agents and means at work in producing the body of the law. The Pandecten are in one sense merely the Institutionen expanded; in another sense, they are quite different. The professor who lectures on the Pandects, taking for granted that his hearers are already familiar with the Institutionen and Rechtsgeschichto, develops the Roman law as a matter of scientific thcory. He does not follow the order adopted by Justinian in his Liber Digestorum. He seeks to define law in general, to define persons, things, the rights of persons, family relations, the rights of things, modes of acquiring and losing property, modes of entering into, suspending, and annulling contracts, and the like, fortifying each position as he goes by citations from the corpus juris. The treatment of Erbrecht (the doctrine of inheritance) as a separate course is purely arbitrary; it belongs rightfully to the Pandecten. But inasmuch as it is the most complicated and difficult part of the whole, it is more conveniently treated by itself. Vangerow read it in his course on the Pandects.
I cannot revert to my semester in Berlin with much satisfaction. The fault was not with the university or the professors, but lay in myself. I committed the mistake of attempting to begin a new study in a large city. One who has advanced beyond the rudiments, and has a clear idea of what he really needs, and what he can dispense with, will derive benefit from the concourse of intellect and character in a capital like Berlin. But the beginner, I am persuaded, cannot do better than by remaining in a small town for a term or two at least. He loses less time in finding out things, in making acquaintances among thoso who are pursuing the same study, and in catching the spirit of that study.
After pondering over the distracting list of leetures given above, and getting the advice of one or two acquaintances to whom I had letters of introduction, I made the following selection of lectures: Institutionen and Rechtsgeschichte, by Professor Gneist, and Encyclopedie und Methodologie der Rechtswissenschaft, by Professor Holtzendorf. As the reader will readily understand, the lectures were “all Greek »
The German was not difficult, and both lecturers spoke slowly and clearly enough to let me take full notes. But the subject itself was a strange world of terms and ideas, I forced myself to write down paragraph after paragraph without being able to see into the connection or practical bearings of the whole. Fortunately I caught up a hint thrown out by Professor Gneist in one of his lectures, and purchased a copy of Mommsen's Roman History. Here, at least, was something that I could understand. Although my recollections of early Roman history, the fabulous dynasty of kings, the law of the Twelve Tables, the centurial constitutions and the like were as shadowy and imperfect as those of the average American graduate, still it was scarcely possible not to learn much from a master like Mommsen. I read through the two large volumes of the original with great interest and care. Then it was that something like light began to shine upon me, that I caught something likc an insight into the growth of that wonderful organism called the Roman Constitution and the Roman State. Using Mommsen as a running commentary, I succeeded in understanding my lectures after a fashion. I purchased also Gneist's edition of the Institutes of Gaius and Justinian, but could make little out of the book. The Latin was easy enough, but I had no appreciation of the technical terms, and no friend to whom to go for enlightenment.
(Before the close of the Summer semester, our Student leaves Berlin, and before returning to Göttingen, spent three weeks at Wiesbaden, where the climate, the waters, and a quiet life, wrought a perfect curc in his bodily ailments, and his conferences with Dr. Maxen, Privat-docent at Göttingen, settled his course and method of legal study for the next two years.]
Value of a Privat-docent. One afternoon, at a garden-concert, I was presented to Dr. Maxen, Privat-docent in the legal faculty, a stout, bluff, but genial and intelligent man in the thirties. Our conversation soon shook off all idle formality. Emboldened by the signs of friendly interest on his part, I told him my story; how I had made an attempt in Berlin and failed; how much, or rather how little, I had done; what a maze of doubt and ignorance I was in, even as to the best books to read. At all of which he laughed good-naturedly. “Well," said he, “ I do not think that you have done much worse than other students in their first scmester. Rome, you know, was not built in a day. What you need is to read certain books well, and especially to go at the Quellen. Let me draw up a scheme of work for you, In the first place, read through Marczoll's Institutionen. The book is not worth much, but it will familiarize you with terms and definitions, and the general ground plan of the law. Then, after reading Marezoll, take up Puchta's three volumes of Institutionen. This will give you every. thing you want to know in a clear, logical, thoroughly scientific shape. But, above all else, you must read the Institutes of Gaius and Justinian in the original. This study of modern text-books is all very well, but it cannot absolve you from the knowledge of the Quellen." I replied that I had Gneist's edition of the Institutes already in my possession, and had tried to read it, but without success. “Of course you can't understand it alone. You must have Heu