Page images
PDF
EPUB

mann's Hand-lexicon to the corpus juris, and you must read in company with some advanced student who can explain things to you step by step. Call at my room to-morrow, or the day after, and by that time perhaps I shall have some one for you." I felt that a load had been rolled off my mind. These words of sympathy and advice, few, but to the point, had at least pointed out to me the way of knowledge. Henceforth it rested only with myself to follow up the clue.

I have dwelt at length upon this incident, because it will reveal in the brightest light the part played in a German university by the Privat-docent. The professors are, of course, very learned men,

but they are not always amiable, at least not always communicative. Standing on the isolated pinnacles of science, they are rather cut off from the world below, and the student feels reluctant to approach them. But the Privat-docent, still a young man in the prime of physical life, fast growing in greatness, but not so far beyond the recollection of his own student days as to be unable to enter fully into the trials of his younger brethren beneath him, is the Vermittler, the mediator, in the university organism. With one hand he urges on the professor to renewed research, with the other le raises up and cheers the student. A university without Privat-docenten would be like a regiment without corporals, a ship without a boatswain; with them, it is the most powerful and yet the most flexible organization for spiritual purposes in the world. The student who knows one or more Privat-docenten can post himself readily on the literature of every topic as fast as it may come up, can get the latest ideas, pick up any amount of odds and ends of information such as books never give, and always be sure of friendly advice. The relation between Privat-docent and student is purely one of friendship, characterized on one part by elder-brotherly interest, on the other by respect, unrestrained by ceremonial awe.

Within twenty-four hours all the books mentioned by Dr. Maxen were in my possession. A brief examination of Marezoll's Institutionen showed me that the Doctor's estimate of the book had not been too unfavorable. But Puchta's work was something altogether different. Although entitled Institutionen, it was really a Pandecten treatise, but with a large infusion of the historical element. It gave me precisely the help that I had long sought after, a clear, concise exposition of legal ideas and doctrines, and a pretty complete genesis, so to speak, of the body of Roman law. The first volume is a discussion of Roman constitutional history and Rechtsgeschichte. The third volume, unfortunately, was left unfinished in consequence of the author's death, the last half being edited by Professor Rudorff from posthumous notes. For six weeks Puchta was scarcely out of my hand. I not only read through the entire three volumes (nearly 2,000 pages), but committed many of the definitions and distinctions to memory, and reviewed incessantly. In this way I obtained a tolerably clear idea of what law in general is, the difference between statute law and common law, the theory of suspending, abrogating, and retroactive conditions, the distinction between a condition and a dies, ad quem or a quo, the Roman notions as to natural persons and juristic persons, as to hereditas, patria potestas in manu, and the like, the more common kinds of contracts and of real property. Puchta's work is an eminently useful one for the beginner. It gives a good deal of law, but gives it in such a logical shape and in such a luminous style that it captivates the reader. It is much to be regretted that there is no similar work in English for the study of our English common law, in place of the antiquated method and jejune, eighteenth century philosophy called Blackstone's Commentaries. If the reader can imagine Sharswood's. Blackstone, Parsons on Contracts, Washburne on Real Property, and Willard's Equity, condensed into three volumes, infused with the spirit of modern philosophic inquiry and couched in language as fresh and limpid throughout as that of Chancellor Kent, he will form some idea of Puchta as a jurist. With this exception, that no English or American writer goes, after the fashion of the Germans, into the history of the law. There are no such works in English as Savigny's History of Roman Law in the Middle Ages, Keller's History of Roman Procedure by Formulæ, Rudorff's Rechtsgeschichte, and a dozen others that I might mention, where advan. tage is taken of all the results of modern philology and modern historic inquiry. In England and in America, law is regarded as a practice, a mode of earning one's livelihood, a sort of blind swearing in verba magistrorum. In Germany, it is treated as an historic science, in fact, as the twin brother of history. Nearly every German jurist is somewhat of an historian, every historian is a jurist. Indeed, the student in history cannot obtain his. Ph.D. without passing an examination in the rudiments of Roman and German law. We wonder at the firm grasp, the unerring insight of such men as Niebuhr and Mommsen, but we overlook the circumstance that they were jurists as well as historians. Mommsen in particular was for many years full professor in law. Germany has been for half a century under the influence of the so called “historic school,” that is to say, a set of principles which have been advocated by such men as Thibaut, Savigny, Puchta, Goeschen, Vangerow, and which may be reduced to one fundamental idea: that law is a growth and not a product, and that it can be neither comprehended, amended, expanded, nor expounded properly without a full and scientific study of it from its beginnings.

Puchta was to me at that time a sort.of condensed student-library, it contained nearly everything that I needed for preliminary instruction. But Puchta did not make me overlook the Quellen, upon which my friend had laid such stress. Thanks to Dr. Maxen's

.

coöperation, I was put in the way of becoming one of a trio to read the Institutes of Gaius. Fifty years before, the thing would have been impossible, for the work was reckoned among the lost treasures of antiquity, like the Comedies of Menander. To explain this point fully, I must go into details, which, I trust, will not prove uninteresting. The codification of Justinian was made in the early part of the sixth century. The Roman law had undergone so many and so radical changes, the legal literature had accumulated to such an enormous extent that the emperor, thinking to simplify matters, appointed a commission, of which the jurist Tribonian was the chief, to elaborate a reform by classifying and simplifying things. The work done by this commission was subdivided into three parts: 1, the Institutiones, a short, easy text-book for beginners; 2. the Digesta seu Pandecten, & vast compilation of principles and opinions taken from the leading jurists of the classic era of the Roman law (under the empire before the partition) and arranged in fifty books under appropriate headings; and, 3, the Coder, a similar collection of imperial statutes down to the reign of Justinian himself. These three parts, as one work, were declared to be of equal authority, and to be the sole legal guide and standard in the realm of Justinian. Everything else was expressly abrogated. The codification thus prepared was to be regarded as self-explanatory. After it had been published, the emperor enacted from time to time a number of subsequent statutes, many of them very important ones, which were collected under the title of Novellos, or new laws. These four works, then, the Institutes, Digest, Code, and Novels, taken as one, with a short appendix of feudal law, and the so-called Authenticæ Fredericine, added in the reigns of the emperors Frederick I. and II., constitute the Corpus Juris Civilis.

Concerning the Institutes in particular, it was known that Tribonian's commission, in preparing their text-book for beginners, had made liberal use of a similar treatise written by one Gaius during the reign of the emperor Marcus Antonius. They had simply taken the Institutes of Gaius and adapted them to the usages of the sixth century, by omitting certain portions regarded as obsolete, inserting fresh matter, and slightly altering the phraseology of the portions retained. But what had become of the original Gaius? No one could answer the question, and it was generally believed, until the beginning of the present century, that the Institutes of Gaius perished in the confusion of the Dark Ages. But in the year 1816, Niebuhr, who was then exploring the library at Verona, stumbled upon a manuscript that looked to him like a copy of the long lost work. Being unable himself to follow up the discovery, for want, of time, he simply announced it. In 1817, Goeschen, then professor at Göttingen, was sent to Verona, on Niebuhr's recommendation, to undertake the critical editing of the manuscript. It was far more serious than had been supposed, and the final success was one of the greatest triumphs of modern scholarship and ingenuity. Not only was the manuscript a palimpsest, a manuscript of which the original text had been covered by a second, but sixty-two of the one hundred and twenty-five pages of the MS. were even a double palimpsest; the second writing had been in its turn covered by a third. For over a year Goeschen, assisted by Bethmann-Hollweg, worked assiduously; by the most careful application of certain chemicals, he succeeded in erasing the second and third writings—thc epistles of St. Jerome -and deciphering nearly all the original text. His first edition appeared in 1820, the second, containing the emendations of Blume, in 1824; they created a revolution in the study of the Roman law. I doubt whether any other literary discovery ever wrought such woaders. Let the reader imagine, if he can, Greek literature without Homer, and then let him imagine a copy of the Iliad or the Odyssey suddenly unearthed in some convent of Wallachia. The study of the Roman law in Germany has been reconstructed from top to bottom, to such an extent that Vangerow dismisses the entire early literature on the subject of Roman pleadings, in the following pithy sentence: All books written on this subject before the year 1820 are useless. But not only was the theory of pleadings understood for the first time, the entire body of the Roman law was overhauled. Passages in the corpus juris, upon which whole libraries of angry controversial pamphlets had been written to no avail, were now found to be quite plain; technical terms, once unintelligible, explained themselves in a very simple manner. The student had at last a small portable key with which to unlock three-fourths of the mysteries that had haunted the corpus juris for a thousand years. I hazard little in asserting that at the present day the veriest tyro in the Roman law can glibly rattle off correct answers to many a grave question, and translate intelligibly more than one passage of the Digest that proved itself too difficult for the entire body of Italian, Dutch, French and German glossators and commentators from Irnerius down to Pufendorf and Glück.

The reading of Gaius was not completed by the end of the vacation, but continued for some time into the winter semester. My associates were at first P— of the Westphalians, and M— of the Saxons, both candidates at the approaching state examination in Celle. They were of course far more advanced than myself, and also older by two or three years, so that I derived great benefit from their superior knowledge. We constituted a comfortable “cloverleaf,” as the Germans call social trios. Our meetings were regular, but perfectly informal. We met at one another's rooms in rotation for an hour or more every day. Each man had his own copy of Gaius, and the owner of the room was held to have in readiness the dictionaries and other works of reference. Our practice was to translate a paragraph at a time, in turn, trying to make the rendering as close as possible, in fact, to make it what would be in print an interlinear version, line by line, word by word. The listeners had the right to interrupt the one translating, and call upon him for explanations. Our progress was very slow. Although the style of Gaius is simplicity itself, we spent often ten or fifteen minutes over a single phrase to get its exact technical signification. Thus the phrase hanc rem meam esse aio ex jure Quiritium, means one thing, and hancrem in bonis meis esse means something very different. It was the object of our reading, then, to bring out all such distinctions, to discuss them thoroughly, and, if necessary, trace them through the text-books. A German text-book on law always contains, besides the index of topics, an index of passages quoted from the corpus juris, just as an English law book contains the list of cases cited. By consulting these indexes of passages and comparing Gaius with Justinian, we were ablo to find whether the paragraph in question was cited by Puchta or Arndt or Vangerow in their works, and if so, what were the various interpretations put upon it, and deductions made from it. This naturally took a good deal of time, but the results were very gratisying. I found that, by dint of repetition and collateral reading, not only the outlines of the law were fixing themselves in my mind, but I was acquiring a high degree of facility in construing law-Latin. This, it may not be superfluous to observe, is a language by itself, differing from the ordinary classic Latin as the phrascology of Blackstone differs from that of Byron. The corpus juris abounds in terms and phrases fully as technical as the reliefs, primer seisins, estoppels of English legal treatises, and unless one understands them precisely, the corpus juris is a sealed book. The best Latin scholar, not a jurist, could not read a title of the Digest without being “floored " in every paragraph by one or more of them. The Institutes of Gaius are not comprised in the corpus juris, it is true, but they serve all the better as a propaedeutic by reason of their exhibiting the Roman law in an earlier stage of development. Whoever has worked his way faithfully through Gaius, can read the Institutes of Justinian off-hand, and after he has read these, he can construe readily passages taken from the Digest at random.

Besides reading the text of Gaius, we questioned one another every day on the substance of the preceding day's work, and tried to catch one another in a friendly way. This necessitated diligent review and preparation at home. The larger share of the benefit fell to me, of course, as the beginner. In one sense, my co-workers could teach me everything and I had nothing to give in return. But on the other hand, the duty of setting me aright obliged them to keep their own knowledge constantly in hand, as it were. They could not correct, they could not even interrogate me properly, without first putting their own idcas in perfect order. No one can realize-until he

« PreviousContinue »