J. M. (James Morgan) Hart.

German universities: a narrative of personal experience, together with recent statistical information, practical suggestions, and a comparison of the German, English and American systems of higher education online

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Online LibraryJ. M. (James Morgan) HartGerman universities: a narrative of personal experience, together with recent statistical information, practical suggestions, and a comparison of the German, English and American systems of higher education → online text (page 12 of 26)
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there is the sum of $100 mutually claimed and owed by
all four. This they agree to cancel, leaving the balance
of the claims to run. Some time after, C finds among
the papers of his father, from whom the debt of $120
devolved by inheritance, evidence that this debt had
already been paid to B. What remedy has C, and what
is the legal character of the agreement entered into by
the four to cancel the common claim of $100 ?

These practical exercises are of great advantage to the
students. They are, I believe, better than our Moot
Courts. The questions submitted are generally of a
higher order, and more complicated in their nature,* and
the main point the exercises are better adapted to
teaching the class. The necessity of writing out one's
opinions at length every week and submitting them to
the deliberate inspection of the professor, has the ten-
dency to make one careful. Now and then a Moot Court
case is well argued, but generally the so called arguments
are too wordy and rhetorical. Besides, there is a great
difference between speaking once in three months or six

* The one given above is by no means a fair specimen, but the others con-
tained in my Lecture Ms. are too long and presuppose too much knowl-
edge of Roman law.


months, and writing out an opinion once every week for
an entire semester.

The Pandecten-practicum covers only the substance of
civil law. The more advanced students have practical
exercises of a similar nature in Criminal Law, in Eccle-
siastical Law, and in Procedure and Evidence.

Francke's lectures on the Law of Inheritance were
extremely clear and satisfactory. As the lecturer spoke
slowly, there was no difficulty in taking him down ver-
batim. The subject is complicated, so complicated, in
fact, that I can not hope to give the reader even an out-
line. I can only call attention to one or two cardinal
points. The Roman Law has a much more philosophical
conception of succession by inheritance than the English
Law. It regards the personality of the deceased as in a
measure continued after death, that is to say, all the
property, whether real or personal, all claims held by, all
debts due by the deceased, everything in short that does
not perish with him, devolves as a unit upon one or more
persons who represent him, who continue his existence,
as it were. The heres succeeds to the defunct, is entitled
to all his property, is under obligation to pay all his
debts, heres defuncti locum sustinet. Our Common Law,
hampered from the outset by the feudal distinction be-
tween real and personal property, has never yet succeeded
in elaborating a satisfactory theory of inheritance. The
Roman Law, on the other hand, labored under a diffi-
culty peculiar to itself. It was in the beginning
extremely illiberal in doctrine and rigid in its forms.


The Praetorian edicts effected gradually a thorough
equitable reform, by admitting the claims of kinsmen
who were not entitled under the old law of the XII
Tables, by smoothing over mistakes in drawing up wills,
and by checking as much as possible, in favor of lineal
descendants, the privilege of disinheritance. The de-
velopment of the Roman law of inheritance is, in fine, the
history of a protracted struggle between the narrow-
mindedness of the old hereditas and the equity of the
Praetorian bonorum possessio. The Praetor had no right
to repeal or formally overthrow the old law, but what he
was unable to accomplish directly, he did indirectly.
Like the English Chancellor, the keeper of his Majesty's
conscience, he could not say that such and such a claim-
ant was not legally entitled, but he could in various ways
prevent him from enforcing the claim.

A most interesting course of lectures was that de-
livered by Herrmann on Ecclesiastical Law. The
lecturer's delivery was fluent, almost too fluent for those
who wished to take complete notes, but his language was
clear, and the substance of his remarks was, to me at
least, intensely interesting. I can not but regret that no
one of our law schools has seen fit to introduce such a
topic in its curriculum. Surely, in view of the conflict
between church and state now raging over Europe, it is
of the highest importance that the lawyers and jurists of
every land calling itself civilized should be acquainted
with the principles involved in the issue. The primitive
organization of the Christian Church, the growth of the


hierarchy, the concentration of power first in the hands
of the priests, then of the bishops, finally of the Pope,
the Oriental Schism, the Reformation, the Declaration
of Gallican Independence, Josephismus in Austria,
the scope and functions of Concordates, the claims of
the Church to the exclusive regulation of marriage and
divorce, the provisions of the Council of Trent on this
point, the Westphalian Treaty of Peace, are all subjects
fraught with the deepest interest to every liberal thinker.
Herrmann's lectures were to me a pleasure rather than a
burden, while the notes then taken have since been of
great service to me on more than one occasion. I am^
indebted to them for a very clear and comprehensive
survey of the march of Christian society during eighteen

Gottingen being an exclusively Protestant university,
nearly all the professors and students were in my day
Protestant. Herrmann treated the subject of Ecclesi-
astical Law, accordingly, from the Protestant point of
view, but without becoming polemic. His exposition of
the theory and doctrines of the Catholic Church, being
based upon Catholic authorities, was eminently fair.
Indeed, the object of the course was to acquaint the
hearer with the facts of history and the actual shaping
of principles and doctrines, rather than to defend or to
controvert any one system. Herrmann now occupies the
most important ecclesiastical position in Prussia, to wit,
the presidency of the Upper Consistory in Berlin.

Before leaving this subject, I may add that, although



Prussia is nominally a Protestant country, a very large
number, six or seven millions of its population, are
Catholics. They are to be found chiefly in the Rhine
provinces and in Polish Prussia. In organizing its
system of education, the government has taken their
wishes and needs into account, by constituting what are
called paritetic universities, in addition to the Catholic
gymnasiums. Bonn is one of these universities, Breslau
another,* and Munster is an exclusively Catholic
academy, falling very little short of a university. In
such paritetic institutions, all departments where there is
conflict of religious opinion are supplied with double
sets of professors. The Catholic professor of Ecclesi-
astical Law at Bonn was Walter, between whom and
Richter, the Protestant professor in Berlin, there was un-
ceasing warfare. Both men being aggressive by nature,
neither could let the other alone. It is entertaining to
read their respective treatises and observe the numerous
flat denials, corrections, and sneers that each hurls at the
other. Schulte, probably an abler man than the other
two, is less dogmatic and positive ; his text-book of Cath-
olic Ecclesiastical Law is the best of the kind produced
in modern times.

The reader can perceive that two lectures a day, and
an elaborate opinion in writing once a week, to say noth-
ing of collateral reading, did not leave much unemployed
time. But the most searching part of the semestrial work
has yet to be mentioned. Dr. Maxen succeeded -in

* TUbingen is also paritetic, although not a Prussian university.


forming his Repetitorium, or Exegeticum, as he called it.*
The three members beside myself were students in their
sixth semester, preparing for the State examination at
Celle in the fall. We met six times a week, at the doc-
tor's rooms, from twelve to one o'clock. The exercise
was what medical students call a " quiz, " and did ample
justice to the name. We students naturally thought that
we knew at least some law, but one or two quizzes were
sufficient to convince us that we knew nothing. The doc-
tor's method was, in appearance, as immethodical as one
could imagine. We never knew before the hour what
topic he might take up, and consequently were unable to
prepare ourselves. This seemed to me unsatisfactory,
and I ventured to say as much to the doctor, in private.
At this he only laughed, and replied : " That is precisely
what I aim at doing, to make you dissatisfied. If I gave
you ten or twenty pages of Vangerow or Arndts to
recite upon, you would get the work by heart, I dare say,
and forget it again in a week. But if I catch you to-day
on some point that has never occurred to you, you will
feel vexed at yourself, and when you return to your
room you will look it up carefully, and then you will not
forget it. My business is not to discover what you know,
but what you do not know, and the best way of doing that
is to keep changing the subject unexpectedly. I wis*h to
catch you unprepared, for then I shall certainly detect

* It was in reality a course of private lessons. Each one's share of the
expense, as well as I can remember, amounted to thirty or thirty-five cents an



the defects in your reading. Besides, is it not the best
preparation for the examination ? What you need is not
only the knowledge of facts and principles, but the
ability to answer all sorts of questions that may be
sprung upon you. Relieve your mind by considering
that every hour spent with me is an informal examina-
tion, and not a recitation, and be assured that you are not
the first set of young men that I have had in training."

Notwithstanding the doctor's assurances, and the firm
confidence that I had in his ability and sincerity, I felt
many misgivings for the first month or two. It seemed
as though we were making no progress, as though our
modest but hard-bought attainments were a sort of ten-
pins, set up only to be knocked down again. Perhaps
the reader has taken boxing lessons himself, or at least
has seen one or more of them. In that case, he will be
able to appreciate the simile, when I liken myself and my
three fellow-victims to pupils in the manly art of self-
defense being " punished " mercilessly by the master.
Mr. Bristed, in his book on Cambridge, p. 193 sqq. (ed.
of 1873), has given a very racy account of the way in
which " coaching " is conducted in an English univer-
sity. I regret extremely my inability to sketch a like
tableau of our quiz in the Georgia Augusta. Dr. Maxen
" slanged " us plentifully, in the technical sense of that
term ; that is, he did not smooth over our ignorance with
lavender-water, but made us feel it keenly. Yet his
method differed radically from that followed by Mr.
Bristed's coach, Travis, and, furthermore, the subjects



themselves, the Supplices of ^Eschylus and the body of
the Roman Law, can scarcely be treated after the same
fashion. Mr. Bristed's coaching is a mere recitation, that
is, a literal translation, with running commentary, of a
given passage in the Supplices, reproduced, I presume,
from notes taken at the time. The reader, even if not a
classical scholar, can at least follow the recitation line
by line. With regard to our quiz, on the other hand, I
must remark, in the first place, that the subject is so
foreign to the reader that, in order to make a description
barely intelligible, I should be forced to give about six
pages of prefatory explanation to one of description, and,
in the next place, that the quiz was an examination, not
a recitation, the subject being changed abruptly every
few minutes. My note-book is filled with names and
dates, detached fragments of law, references to authori-
ties, queries to be pursued at leisure, and the like, but it
contains nothing that would give the reader a satisfac-
tory idea of how the work was done.

At all events, there was the satisfaction of perceiving
that my three co-workers were not much better off than
myself. They knew more law, but they did not hav6
their knowledge in a more available shape. Practically,
we were on an equality. The real benefit of the quiz
came after the hour. Having the afternoons and even-
ings to myself, I spent the time in reviewing, with the
utmost care, what the doctor had run over hastily in the
forenoon. Still smarting under the lash of criticism, to
speak figuratively, and having some definite object of


search, I ransacked Puchta, Arndts, Goeschen, Vangerow,
and my notes, for everything that might throw addi-
tional light on the topics that were started by the doctor
from day to day. I made no attempt to prepare for the
doctor in advance. There was enough to do to follow
up his hints as fast as they were given. After pursuing
this method for two months, the conviction finally
dawned upon me that the doctor was correct. The quiz
was not only a powerful stimulant, but it gave some
object to my private reading. Instead of droning over
one book at a time, page after page and chapter after
chapter in consecutive order, I was forced to go through
each book every day, from cover to cover, in search of
examples, definitions, exceptions, authorities, whatever,
in short, might aid me in understanding more clearly
half a dozen points raised but not exhausted in the

By the end of the semester I made a further discovery.
Dr. Maxen's plan, seemingly immethodical, was in truth
the highest kind of method. Running over my note-
book, I could see that the doctor had covered the law of
obligations, at least in its general principles, almost
entire, and had taken in a large share of the law of real
property and family relations, and not a little of the law
of inheritance. While zigzagging to right and left in a
manner that gave no indication from one day to the next
of a deep-laid plan, the doctor had succeeded neverthe-
less in starting us on all the more important subjects.
One object he had certainly realized : he had taught us


how to study. When the last quizz was ended, and we
broke up as a class, I felt that I had been shifted to an
altogether new stand-point, that success in the examina-
tion would probably resolve itself into a matter of time
and endurance.

I have stated, on a previous occasion, that the relation
between student and professor is generally formal, savor-
ing little of intimacy. There are brilliant exceptions,
however, and it was my good fortune to profit directly by
one of these exceptional cases. About the middle of
July, Dr. Maxen said to me : " It is time that you should
call on Ribbentropp and confer with him on the subject
of your examination. He is not the Dean of the faculty,
but he is the oldest and most influential member. You
must make him interested in you. There is no need of a
letter of introduction ; you will find him very charming
and affable."

The Geheimjustizrath v. Ribbentropp occupied a
most enviable position. He had made his reputation as
a jurist while still a young man, by his treatise on the
law of Correal Obligations. Coming into the possession
of a handsome property by inheritance, in addition to
his salary as professor, he was able to live in what, for
Gottingen, was decidedly style. He occupied a large
house by himself, something very unusual in a German
university town ; the parlors and dining-room were on
the second floor, his study and private apartments on the
third. Over the ground-floor the housekeeper reigned
supreme. Gossip had it that the housekeeper was the


only person in the town who disturbed the mental quiet
(Gemuthsruhe) of the Geheimjustizrath. Not that she
was vinegar-aspected or harsh of manner ; but, like all
spinsters of a certain age, she had come to regard men
in general, and old bachelors in particular, as helpless
beings, whom it was never safe to trust too long or too
far out of sight. The object of this anxious supervision
often made a jest of it to his friends.

Summoning up courage, I called upon the Geheim-
justizrath one evening, and running successfully the
gauntlet of the housekeeper and under-servant, obtained
admission to the sanctum sanctorum, the library. I
found a gentleman not over sixty, as well as I could make
out, of decidedly distingue bearing, rather short in
stature, but with a superbly shaped head, a winning
smile, and 'the most fascinating pair of eyes that I have
ever encountered. Whether perfectly black, or only of a
very dark brown, I am unable to state from memory ; but
the play of lambent light emitted from them, joined to
the witchery of a humorous smile around the corners of
the mouth, gave to the massive forehead and classic
features a grace and an animation that were irresistible.
I perceived, at the very first glance, that I was dealing
with one of nature's noblemen. Speaking frankly, I fell
quite in love with the elderly gentleman who received
me with such an uncommon blending of French
suavity and German simplicity. It was the gracious
commencement of an acquaintance that to me cer-
tainly was to be fraught with benefit and pleasure.


I stated as briefly as possible the object olf my visit,
mentioned the lectures I had already heard or was then
hearing, the text-books I was using, the amount of private
reading already accomplished, the private instruction
received from Dr. Maxen. I said that I was perfectly
aware of the incompleteness and hurried nature of my
course of study as a jurist, but that it would be impossi-
ble to remain in Germany beyond the coming Christmas,
and that I was anxious to take back with me to America
tangible evidence of my industry in the shape of a
degree. Would he have the kindness to give me his
opinion frankly as to my chances of being admitted to
examination, and advise me generally as a friend ?

He listened patiently, with the same bright, flashing
look of the eye, and the same good-natured smile.
" Stop a moment," he said, " don't you smoke ? " I hesi-
tated. I was a smoker, but then it did not seem to be
exactly " the thing " to be puffing at such a solemn
audience in the sanctum of a Gcheimjustizrath. " Ah ! "
he continued, " you hesitate. I know you smoke, but
you don't like to say so. Wait a moment." So the great
jurist frisked into the adjoining room with the alacrity of
a boy let loose from school, and returned, presenting a
box of unimpeachable Havanas. " There," he exclaimed,
"now we can talk up this matter of yours at our

Under ordinary circumstances, the offering of a cigar
means very little. But when you call upon a great man
for the first time, without any other recommendation than


yourself and your own story, and he insists upon your
smoking one of his best cigars, you may safely take for
granted that he is kindly disposed toward you.

My visit was protracted until a late hour. The
Geheimjustizrath had a great many questions to ask me,
but they were about everything else than jurisprudence.
He wished to know what I had seen of Switzerland and
Germany ; what I thought of the war in my own country
(then approaching the crisis) ; how I liked Germany as
compared with America. In fine, I passed a most
delightful evening in easy conversation. I was treated,
not as a student, scarcely even as a very young man, but
as a welcome guest, or as one who had presented strong
letters of recommendation. I did not elicit any definite
expression of opinion as to my chances of a degree. In
truth, that was not what I expected. I knew enough of
the ways of the world to refrain from urging the matter
to an immediate decision, and to be satisfied, and more
than satisfied, with having created a favorable impression
and excited the interest of the most influential member
of the Examining Faculty. On my taking leave, the
Geheimjustizrath said : " Herr Hart, you must come and
see me often, once a week. Come to tea, and then we
can have the entire evening to ourselves. Just consider
that as part of your legal education. I must become well
acquainted with you."*

* It may surprise the reader to learn that I waited so long before making the
acquaintance of the Geheimjustizrath, and that I heard none of his lectures.
The latter circumstance is easily accounted for. Ribbentropp read the Insti-
tutes and Rechttgtschichie in the winter, and Pandects in the summer. My first


On relating my experience to Dr. Maxen, the next day,
he said, in his blunt, off-hand fashion : " Well, I think
you will do. Keep on as you have begun."

I obeyed the Geheimjustizrattis friendly injunction to
the letter. Scarcely a week passed without my dropping
in to tea in an informal way. I always found the same
hearty, unaffected welcome, and the same animated flow
of conversation. The host was not merely a profound
jurist, but thoroughly versed in the classics, and in the
literature of his own country, and an amateur in art.
His collection of engravings was not large, but it was
very choice. I cannot better illustrate his genial charac-
ter and his thorough, unselfish appreciation of the best
efforts of human genius in every line, than by narrating
the following incident. One evening the conversation
happened to turn upon Goethe. I believe that I intro-
duced the subject by alluding to the great number of
poets who had begun their career as students of the law,
" J a > J a " sa -id the Geheimjustizrath, " Goethe, das war
ein ganzer Kerl ! You know, of course," he continued,
with a most mischievous twinkle in his eye, " you know,
of course, his stupendous lines in Faust on the study of

summer as a student of law was passed at Berlin, where I heard the Institutes
from Gneist. On returning to GSttingen for the winter, I was ready to take
up the Pandects, which were read in winter by Mommsen, not by Ribben-
tropp. As for the acquaintance, it was none the worse, but probably all the
better, for the delay. Professors are not apt to interest themselves in Fuckse.
It is too much of a bore to have to deal with a mere beginner, one who is not
yet out of the rudiments The circumstance that a student may pass nearly
two semesters before making the acquaintance, or even recognizing by sight,
the most prominent professor of his own faculty, throws a strong side-light on
the character of German university life.


law." I had read the Faust, as already stated, very care-
fully in my second semester. But what with Pandects
and Erbrecht, Practica and Exegetica the muses had been
strictly banished from my thoughts for many a month.
I had become a stranger to everything that could not be
demonstrated logically from the corpus juris^ and was
forced to plead forgetfulness as to the passage in ques-
tion. " What," exclaimed my host, " you don't mean to
say that you, a studiosus juris^ have forgotten the very
best thing ever said by mortal man on the science of
law ? Really, I must give it to you on the spot. Take
it to heart." Thereupon, assuming somewhat the pose
of an actor on the stage, but not rising from his seat, he
declaimed, from memory, in a rich, sonorous voice, and
with the most expressive emphasis, the magnificent lines :

Es erben sick. GesetJ und Rechte

Wie eine ew'ge Krankheit fort,

Sie schleppen von Geschlecht sich zum Geschlechte,

Und riicken sacht von Ort zu Ort.

Vernunft wird Unsinn, Wohlthat Plage,

Weh Dir, dass Du ein Enkel bist I

Vom Rechte, das bei uns geboren ist,

Von Dentist leider nie die Frage I *

* I am unable either to make a metrical rendering of the passage, or to quote
one. Bayard Taylor's translation of the Faust, so admirable in the main,
breaks down signally in this very passage. Put into tame prose, the lines

Our laws and legal systems do transmit themselves

Like an inherited disease ;

They drag themselves along from race to race,

And softly crawl from land to land.

What once was sense is turned to nonsense, the boon becomes a torment.

Alas for thee, that thou'rt a grandchild !

The right that's born with us,

Of that good lack we never hear the mention.

The reader must bear in mind that the speaker is Mephistopheles, who,
wrapped in Faust's mantle and seated in his chair, proceeds to give the young
student advice as to his studies, aud the respective merits of the different


" Now, just see how the great poet has hit the thing
off. What venom there is in every line, in every word !

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Online LibraryJ. M. (James Morgan) HartGerman universities: a narrative of personal experience, together with recent statistical information, practical suggestions, and a comparison of the German, English and American systems of higher education → online text (page 12 of 26)