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J. M. (James Morgan) Hart.

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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, Par-
sons 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 Formula,
Rudorff's Rechtsgeschichte, and a dozen others that I
might mention, where advantage is taken of all the results
of modern philology and modern historic inquiry. In
England and in America, law is regarded as a practice,



WIESBADEN THE INSTITUTES. 127

a mode of earning one's livelihood, a sort of blind swear-
ing 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 won-
der at the firm grasp, the unerring insight of such men as
Niebuhr and Mommsen, but we overlook the circum-
stance 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 funda-
mental 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 stu-
dent-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 co-operation, 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



128 GERMAN UNIVERSITIES.

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 com-
mission, 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: i. the Institutiones, a short, easy text-book
for beginners; 2. the Digesta seu Pandecten, a vast com-
pilation 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 Codex, a^similar
collection of imperial statutes down to the reign of Jus-
tinian 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. Every-
thing 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 Novella, 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
Authentic^ Fredericiana added in the reigns of the



WIESBADEN THE INSTITUTES. 129

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 Antoninus. They had simply taken the Insti-
tutes 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 begin-
ning 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 Gottingen, was sent to Verona, on Niebuhr's recom-
mendation, to undertake the critical editing of the manu-
script. 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 orig-
inal 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



130 GERMAN UNIVERSITIES.

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 the
epistles of St. Jerome and deciphering nearly all the
orfginal text. His first edition appeared in 1820, the sec-
ond, 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 wonders. 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 bot-
tom, 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 sub-
ject 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 unin-
telligible, 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



WIESBADEN THE INSTITUTES. 131

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 Pu-
fendorf and Gliick.

The following extract may serve as a sample of the
style of Gaius. It is taken from Lib. iv., 16. Si in
rem agebatur, mobilia quidem et moventia, quae mo do in jus
adferri adducive possent, injure vindicabantur ad hunc mo-
dum. Qui vindicabat festucam tenebat. Deinde ipsam rem
adprehendebat, velut hominem (i. e., a slave), et ita dicebat :

HUNG EGO HOMINEM EX JURE QuiRITIUM MEUM ESSE
AIO SECUNDUM SUAM CAUSAM SICUT DIXI. ECCE TIBI

VINDICTAM IMPOSUI, et simul homini festucam imponebat.
Adversus eadem similiter dicebat et faciebat. Cum uterque
vindicasset. Praetor dicebat: MITTITE AMBO HOMINEM.
//// mittebant. Qui prior vindicaierit, ita alterum interro-
gabat : POSTULO ANNE DICAS QUA EX CAUSA VINDICAV-
ERIS. Ille respondebat: Jus PEREGI SICUT VINDICTAM
IMPOSUI. Deinde qui prior vindicaverit dicebat : QUANDO

TU INJURIA VINDICAVISTI, D AERIS SACRAMENTO TE PRO-

voco. Adversarius quoque dicebat: SIMILITER EGO TE,
etc., etc. Nothing could be simpler than the wording of
the above passage, but one must be more than a Latin
scholar to understand it. Gaius is describing the old
method of bringing a suit (legis actio] in the peculiar way
called sacramento. The parties appear before the Prae-
tor, with the object in dispute, if it is movable. Each
claims it for his own. Thereupon the plaintiff challenges



132 GERMAN UNIVERSITIES.

the defendant to a wager of fifty or five hundred asses,
according to the value of the object, that he is the lawful
owner. The money is deposited in some temple (hence
the expression in sacro ), and the judge settles merely the
point who has lost the wager. The ownership is settled
only indirectly, by implication.

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 com-
fortable " clover-leaf," 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 prac-
tice 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 inter-
rupt the one translating and call upon him for explana-
tions. 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 meant esse aio



WIESBADEN THE INSTITUTES. 133

ex jure Quiritium, means one thing, and hanc rem in
bonis meis esse means something very different. It was
the object of our reading, then, to bring out all such dis-
tinctions, 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 able to find whether the para-
graph in question was cited by Puchta or Arndt or Van-
gerow 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 gratifying. 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 phrase-
ology of Blackstone differs from that of Byron. The
corpus juris abounds in terms and phrases fully as techni-
cal 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
12



134 GERMAN UNIVERSITIES.

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 con-
stantly in hand, as it were. They could not correct, they
could not even interrogate me properly, without first put-
ting their own ideas in perfect order. No one can realize
until he tries it how much benefit he can derive from
teaching, and how carefully he must overhaul his own

* If the reader is desirous of testing his ingenuity by a rather difficult pas-
sage, let me recommend the following from the Institutes of Justinian, 2 I.
Ill, 29. Stipulatio enim Aquiliana novat otnnes obligationes, et a Gallo
Aquilio ita composita est : " Quicquidte mihi ex quacumque causa dare facere
epportet, opportebit, praesens in diemve, quarumque rerum mihi tecum actio,
quaeque abs te petitio, vel adversus te persecutio est, erit, quodve tu meum habeas,
tents, possides, possedisti, dolove ntalo fecisti quominus possideas* quanti
quaeque earum rerum res erit, tantam pecuniam dari stipulatus est Aulus
Agerius (one of the parties), spopondit Numerius Negidius (the other party).
Item ex diverso Numerius Negidius interrogavit Aulum Agerium : u Quic-
quid tibi hodierno die Per Aquiliana m stipulationem spopondi, id omne habesne
acceptum f " respondit A ulus Agerius : ^Habeo acceptunique tu/i." The entire
transaction is simply a drawing up of all claims held by one party against the
other, with a view to making a formal release.



WIESBADEN THE INSTITUTES. 135

information before he will succeed in imparting it to a
beginner.*

As well as I can remember, we finished the Institutes
of Gaius four or five weeks after the beginning of the
winter semester. The six weeks from September i. to
October 15. passed like a pleasant dream, yet not without
yielding permanent fruits. The work on which I was
engaged, although difficult, was not discouraging, and
was performed with pleasure, while the weather was
simply faultless. The mornings and evenings were hazy,
but the afternoons were resplendent. I devoted them
religiously to recreation, either going over my rambles of
the year before or playing an unlimited number of games
of Kegel. The German game of nine-pins is different
from our ten-pins. The pins are set up in diamond shape,
and not in a triangle, and the count increases in a sort of
geometrical ratio instead of an arithmetical with the
number of pins thrown down. Each side begins with a
minus number, say 300 or 400, and adds every count as a
plus quantity. The game is over when the plus above
zero on one side equals the minus below zero on the
other. The alleys are much inferior to our own, but the
game can be made to develop any amount of fun. The
alleys are generally in the open air, in the garden of the
restaurant, merely protected from the weather by a shed
overhead. The game therefore affords a healthy exercise,
free from the musty, whisky-laden atmosphere and other

* It was part of Dr. Maxen's plan to make his advanced students "coach"
their weaker brethren.



136 GERMAN UNIVERSITIES.

disagreeable associations of the American bar-room. I
look upon Kegel as the climax of amusement in the minor
German towns. But then one must have an agreeable
set of companions, and must be perhaps still in the
twenties and a student, to enjoy it in perfection.



A



CHAPTER IX.

Anniversary of the Battle of Leipsic. Commer.

S the middle of October came around, I looked
back upon the preceding six months with a pardon-
able feeling of satisfaction. Although some time had
been lost by the false start taken at Berlin, I had made
the loss good by industry during the vacation, and was
fully prepared for the heavy work of the approaching
winter. Becoming more and more intimate with Dr.
Maxen, I fell into the habit of looking up to him as gen-
eral adviser and father confessor and giving him a full
and impartial account of my studies. He gave me in
return the comfortable assurance that I was rather in
advance of the average student of like standing. " Do
not be discouraged, he often said, you have done almost
work enough for two semesters. At all events, you are
fairly started. Remain here in Gottingen, lose no more
time, and all will be well."

After finishing Gaius, my friends P and M

left for Celle, to enter the state examination. I had yet
the Institutes of Justinian to read. Dr. Maxen was suc-
cessful, however, in arranging a second "clover-leaf"
quite as good as the first. The two new members were
E and S , both Westphalians. E was my

*I2



138 GERMAN UNIVERSITIES.

superior in age and academic standing, being then in his
fourth semester. He was also a young man of decided
legal acumen and of quick perceptions, but had not yet

developed into a very steady worker. S was &Fuchs

in his second semester, like myself, but having spent his
time after the approved fashion in Kneipen and Paufeen,
knew very little law. So far as he was concerned, then, I
occupied the dignified position of teacher. Indeed,
thanks to the regular working habits acquired in the

vacation, I put E himself on his mettle to retain the

lead. Between us, we succeeded in keeping our Fucks
busy. It always affords high moral satisfaction to know
that there is somebody worse off than yourself, toward
whom you can assume the air of superior information.
We finished the Institutes by the middle of November.
I should state that the edition which we used was that
prepared by Gneist, of Berlin. It is a very handy, prac-
tical book. Each page is divided into two parallel col-
umns. The left hand column is reserved for Gaius,
the right for Justinian. The two works are thus placed
side by side, so -that the reader has the greatest facility
for comparing them, and also for reviewing his studies.
I improved the opportunity, while reading Justinian, by
reviewing Gaius entire, passage for passage.

Before proceeding to give an account of the winter
lectures, I wish to say a few words about Kneipen in con-
nection with the most imposing student affair of the kind
that I attended. The word Kneipe has a double meaning.
It denotes the place where drinking is done, the drinking-



BA TTLE OF LEIPSIC. COMMERS. 139

hall or room or house, or it denotes the drinking itself,
the carouse. The verb Kneipen means to drink, being
used promiscuously with trinken ; bekneipt, for instance, is
the same as betrunken.

In whatever other respects the German student may
be irregular, he always kneips according to rule. It is
not necessary to go into all the particulars of the Ger-
man beer-code; to be frank, I do not know them all
myself, for they are as complicated and numerous as the
provisions of the Notherbenrecht (doctrine of disinherit-
ance) of the corpus juris. The reader who wishes to post
himself thoroughly can study the famous Heidelberg
Bier-comment or Sauf -comment. The chief point is that
when you sit down with other students to a Kneipe, you
must drink with the others and not according to your
own fancy. Even if you are an invited guest, you will
commit a breach of etiquette by drinking by yourself.
You must always " come " to the^health of some one in
particular. The modus operandi is this. A calls out to
B : Es kommt Ihnen (Dir) etwas, Ich komme Dir einen
halben, einen ganzen vor, that is : " Here's something to
you, a half glass, a whole glass," as the case may be.
This is called Vor komme n. B's duty is to respond,
which he can do in a variety of phrases, such as : Prosit,
trink'ihn, Trinken Sie ihn> sauf'ihn, in die Welt, etc. B
must also drink exactly the same quantity. This he can
do either immediately, saying Ich komme mit, literally,
" I come along with you," or after an interval, when he
says, Ich komme nach, " I come after you." When B



140 GERMAN UNIVERSITIES.

comes mit or nach to A, he can at the same time come
vor to any third man C, thereby making one potation do
double service. If A wishes to drink to the health of
B without putting him under the obligation of mitkom-
men or nachkommen r he says : Auf Ihr (deiri) Specielles,
i. e., " To your especial good health." This is the usual
way of showing attention to an invited guest, particularly
one rather advanced in life or in social standing.

Every Kneipe has a master, or presiding officer, whose
duty it is to see that each man meets the requirements
of the Comment, and from whose decision there is no
appeal. He gives tone and character to the entertain-
ment, selecting the songs to be sung, and appointing the
editor of the so called Beer-gazette. This is a sort of
comic paper, either in prose or verse, composed im-
promptu, and devoted to the persiflage of the members
of the kneipe and the incidents of the week. The
master can punish disorder or disobedience, by ordering
the unruly member to drink a quantity of beer pro poena^
as it is called.

One of the side performances of a Kneipe is a " beer
duel." Two students, wishing to ascertain which one is
the better man, i. e., the faster drinker of the two,
choose an umpire. This umpire places the duelists side
by side, sees that each one has his glass properly filled,
and calls off: One, two, three. At the word three, each
one must put his glass to his mouth and empty it as fast
as he can. The one who can rap his glass first on the
table is the victor. It is the umpire's duty to see that



BA TTLE OF LEIPZIG. COMMERS. 141

the duel has been fairly conducted, i. e., that no heel-tap
is left in the glass. The victor has the right to call the
other his beer-boy, Bierjungen. To challenge another
to the duel is, in technical parlance, ihm einen Bierjungen
aufbrummen. I advise my countrymen not to venture
upon a beer-duel without considerable preliminary prac-
tice, for the greenhorn may be sure of getting the worst.
The veteran student has a knack at swallowing beer that
would horrify any respectable professor of anatomy and
hygiene. In truth, he does not swallow at all ; he throws
his head slightly back, opens his mouth and, holding his
breath, simply pours the beer down the esophagus as if
it were a long funnel. The rapidity with which a glass
of beer can be made to disappear by this process is
something incredible.

The 1 8th of October, 1863, was the semi-centennial
anniversary of the great battle of Leipsic. German
patriotism rose to fever-heat, the students of course
catching the contagion. It was resolved to hold a grand
Studenten-kneipe on the evening of the eighteenth in the
large hall of the Deutsches Haus, outside the Geismar
Gate. To those who know Germany merely as she is
now, a compactly united empire, under one supreme
head and one legislative body chosen by direct election,
the days of the old Bund will appear, I suspect, a
mystery. In 1863 there was no Germany, so far as con-
cerned form, concert of action, anything beyond hope*
and sentiments; there were thirty German countries
pulling as many different ways.



142 GERMAN UNIVERSITIES.

In 1864, for instance, some of the students at Gottin-
gen assembled in the railway station and gave three
groans for Bismarck, as he passed through on his way to
Berlin ; the university thought it advisable to transmit to
the Prussian government an explanation and formal dis-
avowal. Prior to 1866, certainly, the old saying, that
wherever two Germans met there were sure to be three



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 9 of 26)