Jest and Earnest in Jurisprudence

The First Letter: On Construction in Civil Law

[Prussian Court Gazette, volume III, no. 41, 16 June 1861.]

The letters that follow belong to the kind written to be printed. Not after the author's death, a liberty only famous people may take, but in his lifetime, which even an ordinary mortal may aspire to, provided he finds a publisher or an editor good-natured enough to risk paper and printer's ink on him. Nearly every science, art and trade has been treated in letters by now. We have chemical letters, botanical letters, zoological letters, musical letters and more. Only our poor jurisprudence, the Cinderella of the sciences, goes away empty-handed as usual and lags at least twenty or thirty years behind the times: so far as I know, not one set of letters has ever been written about it. For jurisprudence, people seem to have expected more from another modern form, the "spirit." Ever since Montesquieu broke the trail with his Spirit of the Laws, there has been no shortage of men who have distilled the spirit of Roman law, of Prussian law and so on, and who offer it to any fancier for a few pieces of silver. If the fashion spreads, we can surely look forward to the spirit of the provincial law of Katzenellenbogen, of the constitutional law of Electoral Hesse, and spirits and spooks of every other description.

For my part I'm reaching for the humbler form of the letter. If I can claim no other merit, I can at least claim this one: to have been the first to carry the letter over into jurisprudence and set it beside the "Leisure Hours," "Legal Reflections," "Discussions," "Tentative Thoughts" and the other accepted forms in which a sober lawyer brings his ideas before the public. And even if jurisprudence were far drier than it is, surely a letter could be written on, say, the rights of the weaker sex under the Prussian Code, or the privileges of the stupid in Roman law, or some other such interesting topic: a letter that a district judge in good standing, an attorney at the high court, even a judge of the Supreme Court of Appeal and Privy Councillor of the Supreme Tribunal might pick up in his leisure hours, instead of spending them, like the late Judge Cramer of the Imperial Chamber Court at Wetzlar, on writing a hundred-odd volumes of "Leisure Hours." How the honorable editors of this paper mean to justify printing my letters in a Court Gazette is their affair. I take no responsibility whatever. In fact, to shake off completely the cramping feeling that I am writing for a Court Gazette, I shall hold firmly, while I write, to the view that I am writing only to the editor, and that anything beyond that is none of my business. For the same reason, so as not to spoil my ease of mind, I shall keep the strictest incognito, a way of appearing in public that is often chosen, and for good reasons, by great lords and traveling adventurers, and, as everyone knows, by authors too. You know, Mr. Editor, what trouble it cost you to overcome the natural shyness of a man so unused to the pen as I am before he would appear in public. You know how dangerous it can be to spend time that the state pays for so handsomely, at 600 thalers a year, on anything besides digests of case files and draft judgments, let alone on such frivolities as legal letters. Before the great readership these pages have had all over Germany since the first German Lawyers' Congress, I therefore call on you most solemnly to keep the secret strictly, even in unguarded moments, if an editor ever has such moments! If it gets out, you alone are to blame, for apart from you and me, and I shall keep my secret, nobody knows who the author is. That is also why I chose the form of letters: to protect you from indiscreet questions. For who will be so pushy as to ask you to break the privacy of correspondence, which even the Second of December respects, once you have publicly sworn to keep it, as I hereby ask you to do in a note?¹

In one direction only, allow me to lift the veil of secrecy a little, and I'll do it by way of an anecdote you probably know. At a court masked ball in Berlin, one and the same mask stood at the buffet for several hours without a break, and showed a thirst and an appetite of a kind not usually found among the people admitted to those balls. Unbelievable quantities of almond milk, lemonade, wine and cardinal punch, with all the matching refreshments, had vanished in this way into the mask, until someone hit on the idea of breaking, just this once, the freedom of the mask, to establish who owned this phenomenal appetite and thirst. Under the mask they found a soldier from the palace guard, and he was already the fourteenth to have quenched his thirst and stilled his appetite that way. Whether you mean to make similar use of the mask of the "Unknown" who writes these letters is your affair. In any case my knowledge is not enough to write all the letters it would take to paint a complete picture of jurisprudence today.

One more thing in this foreword, which may also serve as the pact we are concluding in front of the public. I shall write my letters only as the mood and the fancy take me, and I shall bind myself neither to a schedule nor to any systematic order. In return I stipulate the freedom of the mask: that is, the right to spare nobody my jokes and my attacks. If you find I've gone too far, feel free to enter a protest in a note, or strike out whatever you please.

Enclosed you'll find the first letter.

On Construction in Civil Law

You know the limping devil in Lesage's novel, who lifted the roofs off houses and let his protégé look into the secrets of the rooms. Let me play his part for once and show you the studies of our legal theorists. Here, late at night by lamplight, with the corpus juris at their elbow, that mine of civil-law wisdom, sit the standard-bearers of common-law scholarship, hard at work. What are they doing? I'd be willing to bet that half of them, at least the younger ones, the hope of Germany, are at this moment constructing. What is constructing? Fifty years or so ago nobody had heard of it. People "lived in harmless joy, and their arrows were aimed only at passages of the Pandects." But that has changed enormously! Anyone today who doesn't understand "construction in civil law" had better see how he gets through the world. A lady would no more dare to appear these days without a crinoline than a modern civil-law scholar without a construction. Where this new civil-law fashion actually comes from I don't know. All I know is that one man has even gone so far as to construct the constructing itself and to issue his own instructions for it. He has even added a higher storey to jurisprudence for the work to be done in, which has accordingly been named "higher jurisprudence."² On the lower floor the rougher work is done: there the raw material is fulled, tanned and pickled, in short, interpreted. Then it goes up to the upper floor, into the hands of the civil-law artists, who shape it and give it an artistic civil-law form. Once they have found this form, the lifeless mass turns into a living being. By some mystical process, life and breath are breathed into it, as into the clay figures of Prometheus, and the civil-law homunculus, that is, the concept, becomes productive, mates with others of its kind and has young.

You see that everything depends on that civil-law act of shaping, the construction. If a slip is made there, if the legs are attached to the head, for instance, the nose at the back, and what the rest of us carry at the back in the face, the whole thing is a failure: you get a changeling. No wonder this task, worthy of the sweat of noble men, takes every ounce of strength, and invention and ingenuity labor without rest to fit the pieces together now this way, now that. Let me illustrate how laborious the work is with a few striking examples.

Among the most contrary of "legal figures,"³ those cursed with a positively demonic stubbornness, the first is the correal obligation: the arrangement in which several debtors each owe the whole debt, or several creditors may each claim the whole. Would you like the literature on it in the common law? It would fill a note a yard long.⁴ The lawyers of our day can be divided into two classes: those who have written on correal obligation and those who have not. The concept of the Trinity cannot have given the theologians more headaches than the concept of this civil-law two-or-more-in-oneness has given our lawyers. Is it one obligation with several parties, or does it contain as many obligations as it has parties? Go round and take a poll of who isn't laboring over this problem; count the sleepless nights it has cost the disciples of the science. My head spins when I bury myself in this literature. The more I read, the more confused I get, and when I have a practical case to judge, the only way I can master it is to forget completely everything I've ever heard or read about correal obligations. Between them and the so-called solidary obligations there is supposed to be an enormous difference, something like the difference between an animal on two legs and one on four. But ask our civil-law zoologists how this difference shows itself in practice when you want to hitch the four-footed beast and the two-footed one to a plow, and I believe most of them will owe you the answer, and excuse themselves on the ground that zoology has nothing to do with plowing. When I pointed out this gap in his work to one writer on the subject, he replied that he had excluded the practical side of the question from his inquiry on principle; he had kept strictly to the scientific side. A legal work that ignores on principle whether its entire subject can be put to any practical use: the construction of an ingenious clock that was never designed to go! That is exactly where the trouble lies. Jurisprudence is being hoisted up into a zoology, when it is really the art of plowing with the civil-law beasts of burden.⁵

While we're on obligations, let me take a few more interesting samples of construction from them. How do you picture an obligation, that is, its "legal figure," its "logical structure"? You don't rack your brains about it, you answer; you get along fine without? Oh, you lucky man! Or, as some would say, you poor thing! An obligation can be conceived as a right to the act or a right in the act. In the first case it is aimed at the person; in the second it embraces the act itself as its object. You even have the option of conceiving it as a right over the act. Now take your pick! You'll say: how can anyone have a right in an act that doesn't exist yet? Before it is performed, the object of the right doesn't exist, and when it is performed, that is, at the moment the obligation is fulfilled, the object has already perished again. Ask Puchta how he pictured it.⁶ Others will show you a very similar dialectical conjuring trick. Many define an inheritance as the right in the personality of the deceased. Now you'd think it would be that at no moment more than when the heir takes it up, since that is when his right in the inheritance first arises. No, missed! According to some, that is exactly when the personality comes to an end, like the cloud that dissolves into nothing in the lover's embrace. Others, notably Puchta, are humane enough to let the personality of the deceased live on in that of the next heir and of every heir after him to the end of the world, which would make the Pythagorean transmigration of souls, or personal immortality if you prefer, a reality from the legal point of view! One person is nested inside the next, like the boxes in a grocer's shop, each holding the one inside it. Every one of us carries, by the law of inheritance, an infinitely diluted piece of Adam. Every one of us is a civil-law Atlas, who must help carry the whole of humanity so far on his shoulders as its heir.

You should know that I have touched here on another civil-law "phenomenon" and a much-loved object of construction. It is called the hereditas jacens, the "lying inheritance": an estate lying there between the death and the moment an heir accepts it. If you devoted a note to having its literature listed for you, you'd be amazed at the wealth of civil-law energy that has been spent on it. How little the likes of us often know what we're doing! There a man goes, in all innocence, drawing up an inventory of an estate and listing the rights and claims of the deceased in it, without stopping to think that they cannot exist without a subject. If he nevertheless takes them to be still in existence, he thereby takes the deceased to be still in existence, and so it is not so much the man's property he is inventorying as the man himself. At the thought of picturing the estate without the deceased living on in it, a mind trained in civil law feels much the same horror a religious nature feels at the thought of picturing the universe without God. There is something uplifting in the fact that the gravedigger gets the legal personality under his spade no more than he gets the soul. Rather, at death it enters, as a transfigured spirit, free and released from all earthly bonds, on a new and higher stage of its existence. True, for coarser natures who believe only what they can see, this spirit doesn't exist. But then they don't exist for science either.

It is precisely with the concept of personality that modern science has performed its boldest and most sublime evolutions of thought, and it is admirable how, by skillful use of this concept, it has managed to fill lifeless matter with spirit and bring it to legal life. That state of things Schiller sings of in his "Gods of Greece," when everything that seems to us a mere object of lifeless nature, the springs, the trees, the hills and so on, was inhabited by divine beings: that state of things has been reproduced in jurisprudence, and all I lack is Schiller's talent to sing of it as it deserves. But even in prose it doesn't fail of its effect!

Do you see that old roof there, with the rain dripping off it onto the neighbor's land? What do you take it for? An old roof. Certainly; but don't you see the glow of legal personality pouring over it like an electric light? Let me tell you what it is: the old roof is a juristic person,⁷ for the roof is the subject of the right to let its rain drip on the neighbor.

Do you see the drawer full of government bonds, shares and so on at your banker's over there? You'll take those for objects of ownership, I suppose. Missed again! Let one of our theorists⁸ teach you that they are juristic persons! The subject of a bearer bond is the bond itself. It is the Baron Munchausen of civil law, who pulls himself out of the swamp by his own hair, the puller and the pulled at once, subject and object. Construct for me, if you will, the legal process by which you get into the theater. You'll answer that you bought a ticket and handed it in, and the ticket entitled you to enter. That's no construction! The only construction conceivable is the following. The ticket entitles "the bearer as such." But "the bearer as such" is something abstract, a conceived personality, a juristic person, and if you get into the theater by means of the ticket, that's only because you represent this juristic person. By rights the juristic person itself should have gone in; all the tickets should have taken their seats. Thank the theater management for allowing representation here!

You'll no longer be surprised, then, that the married couple who look, from the outside, like a man and a woman, melt harmoniously into one juristic person for the construction of community of property in marriage. For this sacrifice of her personality the wife is compensated, under certain circumstances, or rather in a certain condition, by a recent lawyer⁹ who raises the nasciturus, the child conceived but not yet born, to the rank of a juristic person.¹⁰ He does not say, I admit, whether, since Roman law bids us be prepared for as many as three nascituri, all three are to form separate personalities or one triple joint personality. At any rate human life has thereby been most beautifully placed between two juristic persons, the nasciturus and the hereditas jacens, and on that basis the juristic person might be called the primal substance out of which human personality forms itself, and into which it dissolves again. The physical existence of mankind is only a passing interval between the higher forms of existence of the person: the purely spiritual, immaterial existence as legal personality.

Now that old roofs, government bonds and so on have pushed their way into the circle of persons, you can hardly blame a human being for longing to get out of such company, if need be even at the price of giving up the honor of being a person. And in fact a recent lawyer¹¹ has shown him the way, by understanding freedom as ownership of the human body. In this way the concept of ownership, scorned by the lifeless objects just mentioned, comes back into honor where human beings are concerned. And why shouldn't it? Whether nature or a dentist puts a tooth in my mouth, the tooth is my property. The curly-headed youth who sells his hair to a wig-maker and the criminal who sells his corpse to an anatomist must both have owned the object themselves before they could transfer its ownership to someone else. And what is the whole human being but the sum of all the parts of his body, and so what is personality but the ownership of them? It was left to an Austrian philosopher of law¹² to deduce from this view the very right that the Marquis of Posa demanded in vain of Philip II in Schiller's play: freedom of thought. Man has "ownership of the organs of speech." To use them, that is, to be able to speak, one must think (which, by the way, does not always apply to writing, not even to writing books); therefore one also has the right to think. Only since this beak theory (the philosopher's name, Schnabel, means "beak") came to my notice have I felt my thinking placed on a secure legal foundation. I know now that my thinking happens no longer de facto but de jure, and I've known since then, too, that I have the right to sweat, to digest, to scratch when I itch and so on: I am only exercising my right of ownership in my body. From now on only the wholly ignorant can still question the legal basis of copyright. It rests on ownership of the organs of speech.

To restore the balance, after transferring the concept of ownership from things to human beings, they have done the reverse with the concept of obligation. Naturally understood, an obligation presupposes a person as debtor; they have transferred it to the thing pledged, and defined a pledge as the binding of a thing. With the age of legal construction a restlessness, a wanderlust, has come over the legal concepts. None of them can stay any longer in the spot where it has stood for centuries. It looks as if they were playing puss in the corner. Ownership is no longer content with being "full legal dominion over the thing"; it demands to be the "right in the purpose of the thing."¹³ The place left empty is taken instead by the servitude, the right in someone else's land such as an easement, which now passes itself off as "ownership of individual qualities of another's corporeal thing, fictitiously treated as independent things."¹⁴

In return for the artificial thing created this way, the real thing plays us a trick: it no longer agrees to serve ownership as its direct object. Ownership consists, instead, in the negative duty of everyone without the right not to infringe it.¹⁵

The pledge has had a similar fit of rebellion. In a recent book on the law of pledge¹⁶ it tried to emancipate itself from its form as a right and to hide behind the action on the pledge, as is supposed to have been the case in the days of Gaius and Ulpian. Against all this it does one's heart good to see concepts that have no need to submit to legal construction submit to it of their own free will. I cannot praise enough how one of the noblest goods granted to mortals, hope, has proved so obliging that we not only know, as the ancient Romans already did, the sale of a hope (emtio spei), but have lately gained a "right to hope"¹⁷ as well, and even a "pledge¹⁸ on hope." This ought to open up the proper legal point of view for women who are, as German puts it, "in good hope" too. For the fruit of their womb the law has already provided in another way (see the note on the nasciturus above).

With that I've reached so conciliatory an ending for this first letter that I'd be acting very much against my own interest if I spoiled it with anything more.

The Second Letter: The Speculative Method in Jurisprudence, Huschke and Lassalle

[German Court Gazette, 1861, no. 85.]

That people have asked you my name on several occasions I count to my credit; that you have kept the secret so faithfully, to yours. I hope you will go on keeping it. All the same, I'm not afraid to lift the veil of my incognito a little of my own accord, by describing my legal career to you in what follows. One or another of my acquaintances may perhaps guess who I am from it.

What a lovely time of my life that was, when I still hung with youthful enthusiasm, not to say at the breast of science, on the lips of my teacher Puchta!¹⁹ Through his mouth Gaius, Paulus, Ulpian and so many other major and minor prophets of the corpus juris spoke to me every day, until I knew them better by name than all the lawyers of the present, with the single exception of him. I owe it to that enthusiasm, and to the persistence with which he supplied us listeners every day with passages from the Pandects, which very few of us looked up, that I came into possession of a corpus juris early on. I overcame the youthful shyness and the mysterious dread that this piece of antiquity bound in pigskin filled me with, and ventured boldly into the dark mineshafts of civil-law wisdom; even then my friends were calling me unpractical. Instead of joining them in the strains of Mantius, the tenor all Berlin was humming, I sought my pleasure alone in my room among the stipulations, wills and lawsuits of Titius, Maevius, Aulus Agerius and the rest of the stock characters in the cases of the Pandects and of Gaius. The springs from which I drew and quenched my thirst were sources of law. Instead of Kroll's Winter Garden I went to the library, and the companions I came home with were Ulpian's Fragments, Gaius's Institutes and the like: all of them figures of weight, and I had to carry every one. More and more I felt that this society was made for me rather than that of my fellow students. More and more the magic of Roman law wound its spell round me, and one day it stood suddenly clear before my soul that my future belonged to science. The future theorist was conceived.

Already the urge to create in theory was stirring in me. Like bubbles in a glass of champagne, ideas for theoretical deeds sparkled and rose in me: the interpretation of a lex damnata, one of the Digest's notoriously "damned" passages; the Life and Writings of Quintus Mucius Scaevola; the nexum; the lex Pesulania on dogs; vadimonium; praedes; servitus luminum, the servitude of light. What a wealth of the most attractive problems danced around me! Then my evil star saw to it that I got stuck on a subject that was to prove fateful indeed for me. It was a task that nearly cost me my reason, though in the end it only cost me something less, if very painful to me: my future as a theorist.

Nemo pro parte testatus, pro parte intestatus decedere potest. (No one can die partly with a will and partly without one.)

These few words are the turning point of my life. Without them my name might now be appearing on immortal works of theory instead of on perishable case files soon put away in the archive. An ordinary, homespun lawyer's soul has no understanding at all of the depth, or the height, of the problem this rule contains. First Hegel had to be born, and a disciple raised up for him in Gans, who went out among the lawyers as the St. Boniface of his dialectical method. Only then could they be told²⁰ that philosophical speculation alone could fathom that rule, forasmuch as "the understanding gives itself useless trouble when it is a matter of grasping the substantial spirit." The rule contains "the whole thought of the Roman law of inheritance." That thought, however, was the thought of Roman history in general: the opposition between the abstract universal and the personality, the struggle of a strict principle and a free one, "whose fate it is to be condemned to face each other. The family and the right of the individual stand toward each other as hostile powers, each of which must overpower the other, and whose union and reconciliation is only the result of mutual exhaustion."

The sublimity of this thought gripped me, but an article Huschke²¹ had written on our subject was to grip me far harder. From it I was to learn, for the first time, the heights of understanding Roman law is capable of, and the narrow limits of my own powers. Because of the decisive influence it had on my life, I must take the liberty of giving you its main passages.

"When a man dies, his person passes over, together with his personal law, into sacred law and becomes Dii Manes, a spirit of the dead. His personality in property law, by contrast, stays behind in the jus humanum, the law of men, and forms the hereditas. The hereditas therefore differs from the living person only in this: it presents the property-law person separated from the real one, and as such it forms a thing."

With this sentence our author still has one foot on the ground. Then he tears the other loose as well and rises, like a daring balloonist, higher and higher into the regions of abstraction, those regions where nothing reminds the intoxicated spirit of the earth any more and it bathes in the pure, clear ether of thought. Inheritance, that fairly sober event on earth, now already appears to him as "a propagation of the family in property, which, just as procreation consists in giving up personal or generic existence into a new member of the species, consists in giving up the individual existence, now effective only in property, into another individual. The one falls in the prime, the other at the end of human life. Procreation is the dying species, inheritance the dying individual. As the one dies in a son, so the other dies in the heir. But since existence in property is no less alive than ordinary existence, inheritance too is conceivable only in such a way that at the very moment this existence in property separates as such, like a seed, it is also received into the new personality. For if the two fell apart, it would no longer be something living that was passed on: it would be like a seed separated but not received, which can produce no procreation. Inheritance can strike only the familia, not, strictly, the hereditas, because the hereditas presupposes someone already dead and is therefore something unliving."

It really spoils the effect, and only proves that the author has not yet risen high enough to lose sight of the real world and its practical questions altogether, when he raises the question of how the hereditas can be entered upon at all. We would have recognized it as a feat of philosophical fearlessness if he had flatly denied that it could be entered upon. He solves the riddle as follows: "What the deceased leaves behind as familia is, on the heir's side, hereditas."

From here on, allow me a few cuts, and in particular allow me to leave out the quotation marks. German calls them "goose feet," and their very name offends me after Gans (Gans is German for goose); besides, I'd hesitate twice before fencing in such profound ideas with them. Familia and hereditas are the same thing and are also not the same thing, depending on how you look at it. They are the same in their object; they differ in their direction. The object is the deceased's freedom in property. But just as the present must be regarded as at once closing the past and opening the future, and passes, with its moment turned toward the past, that is, entirely, into the future, so the freedom in property that the deceased leaves behind as familia is grasped by the heir as hereditas; and in grasping it as such, he has it at the same time as familia. The hereditas, then, is nothing unliving either. It is only the less living side, the side longing to be brought back to life, of something that has behind it at the same time the more living side of the familia.

It was these last sentences that had the influence on my life I hinted at above. Through them Huschke's article became for me a barrier across the road that closed the way to a career in theory forever. To fathom them, to understand that mysterious creature the hereditas, which belongs half to living and half to lifeless nature, an inheritance in front and a deceased behind, a worthy companion piece to the Sphinx's creature that went on four legs in the morning, two at noon and three in the evening: that was the task I tried to solve by straining my mental powers to the point of cramp. By day I tried to help my imagination along, with some success, as I thought, by calling in various objects from ordinary life that likewise represent different things from different sides, for instance a spoon on one side and a fork on the other. But by night a fantastic picture of the hereditas appeared to me in my dreams that mocked every comparison and every point of contact with the senses, and behind it its profound inventor, in the very shape of the Sphinx, getting ready to throw me into the abyss, as the Sphinx used to do, if I failed to solve the riddle. Once, in a night full of dread, I thought I had solved it. I had the hereditas in my hands; it was lifeless, cold, damp to the touch. But as I was about to take possession of it in triumph, something twitched inside it. The phantom came to life, reared up and flung me back with a mighty shove and these words: "Wretched fool, do you think you can grasp the essence of the hereditas with your hands? Until you have broken the slave chains of the understanding, you shall never behold me!"

The next morning I lay on my sickbed in wild delirium, shaken by the most violent fever. The doctors were unsure whether it was simple inflammation of the brain or madness. Of the peculiar form of illness that had seized me, a specifically juristic delirium, they hadn't the least idea. You know how long I suffered then, and how even as a convalescent the mere name hereditas or familia brought out a cold sweat on me. You know how the doctors, when they declared me cured, forbade me ever to go on with my dissertation and advised me, if I valued my sanity, not to become a theorist. I was all the less able to resist this advice because I had learned the truth of Gans's assertion above, "that the understanding gives itself useless trouble when it is a matter of grasping the substantial spirit," in the most frightening way on my own person.

And so I said farewell to the hereditas and to theory, without having got, in my study of that article, even as far as the point where the true reason for the rule Nemo pro parte and so on is developed so convincingly: "If someone appoints himself an heir, it is once again this person who performs this act. In the act of appointing an heir, therefore, subject and object coincide: the familia wishes to transfer itself to the heir; it bequeaths itself. If testator and inheritance thus merge without difference, it follows that, just as the inheritance is objectively indivisible, so the subjective will that coincides with it is indivisible, and therefore excludes the competition of any other will."

That time and its pains lie far behind me, and I thought the memory of them quite dead. But it woke again in me lately, more violently than ever, when the newest Roman law of inheritance came into my hands (Vering, The Roman Law of Inheritance in Its Historical and Doctrinal Development, Heidelberg, 1861).

How I must have felt as I read it, only someone can understand who once owned a lottery ticket that later won the top prize, and threw it away as worthless. The ideas this writer expresses I had already had. If the wretched fear of losing my mind over them had not kept me from working them out and publishing them, that book would now bear my name at its head instead of his. The hereditas appeared to me just as he describes it in those states of heightened mental activity that only a doctor could call feverish delirium, and had I had a stenographer sitting by my bed to take down my talk with myself, that writer could have spared himself the trouble.

He is right to have made the term "familia," which Huschke still used with a certain shyness, his standard term instead of the thoroughly worn-out "hereditas." The thing remains the same, but the new name gives it quite another relief, rather like calling a meager lunch a dinner party. The name ennobles the thing, lifts it out of the sphere of common ideas and middle-class life into that of exclusive society, and the uninitiated reader is involuntarily seized by a sense of his own ignorance and by amazement at the progress of science. If someone tried to explain to him the rule "in Roman law the obligation cannot be separated from its subject" by saying that it is inseparably bound up with its subject, the tautology would hardly win his deep respect. But when the author (p. 101, note 2) puts the explanation like this: "by the obligation the familia, the legal personality, has been ensnared, entitled or bound," the effect is unmistakably quite different. The familia, then, this "immortal being" (p. 89), procures for the heir "the commercium of the deceased" (p. 88), his "private legal capacity" (p. 103). This is a priceless service, beside which the procuring of the property, in which the likes of us see the advantage of an inheritance, shrinks to nothing, especially for an heir of lesser legal capacity, who gets the higher capacity of the deceased in exchange. This personality is indivisible, like "all freedom, every living being, and everything that legally has the character of a personality," and even "the one, undivided sun, which sends its rays out in different directions (without itself splitting apart)" must lighten with its light the darkness of the indivisibility of the "familia" (p. 108). The happy double meaning of this word, which means both an estate and a family, also makes it very easy to prove (p. 115) that "the heir counts as a member of the family, since he takes the familia defuncti, the dead man's familia, into himself and accordingly enters into the most intimate relation with the deceased." It makes it just as easy to find the "natural necessity" of the fictitious personality of the hereditas jacens, a necessity flowing from the concept and nature of the law of inheritance, and the key to the whole Roman law of inheritance, in a peculiarity of Roman family law.

I already felt safe in my practical calling from every assault by the hereditas when fate, in the shape of the bookseller who keeps me supplied with new titles, put into my hands the work that has brought the episode of my life I've been describing to its true conclusion. As I read it, I felt all the shudders of the play of baleful powers of destiny, and I recognized the mysterious riddle of my own life. The work is the second part of the "System of Acquired Rights," recently published in Leipzig under the pseudonym Ferdinand Lassalle. It is entitled "The Nature of the Roman and Germanic Law of Inheritance in Its Historical and Philosophical Development."

I have never seen the author with my bodily eyes, but I know him as well as I know myself, for I carried him inside me and nursed him with my heart's blood. He is myself. He is my double! You know the eerie subject Hoffmann treats in "The Devil's Elixirs": the psychologically so profound idea of the two natures in a man, one of which tears itself loose from the other and takes on bodily form as a double, so as to bring to life as a deed what rises in the soul of the other only as a sinful impulse, as a thought. The wicked doings of the mad monk, the ghostly figure of Brother Medardus, the hair-raising meeting of the two selves: I know now why they have seized me with such irresistible horror these five years. The tragedy of the double was to repeat itself in me! In that night of terror I described, when I sank back on my bed, crushed by the failure of mere thinking by the understanding, I felt a stabbing pain, as if the pia mater, or the cerebrum, were being pulled out of my brain by force. What came loose from me then was speculative thought, my double, who now calls himself not by my name but by the pseudonym Ferdinand Lassalle. What remained to me, what I was condemned from then on to vegetate with alone, was poor, sober, narrow understanding. He had thrown off the yoke of the understanding and left me under it, and he owned the organ that alone can know the essence of things. No wonder the promise of the hereditas was fulfilled in my double, and that she revealed herself to him. Like a blind man who receives his sight after a long night, he shouts and exults over the power of his eye and the glory of the hereditas that has appeared to him, appeared to him first. For "not just this or that particular, but exactly as much the particular as the whole of the Roman law of inheritance has remained, to this day and without exception, completely misunderstood and unrecognized: an unsolved mystery" (p. 8). Even the Church Father Clement of Alexandria saved for himself "a much deeper understanding of the essence of the Roman testament by mancipation (the spiritual continuation of one individual by another) than all the lawyers put together" (p. 152). Gans, too, "was bound to miss the spirit of the law of inheritance, because he too had not yet sufficiently cleansed his soul of empirical views of it" (p. 11). To say nothing of Huschke, whose article above "is one of the greatest and most commendable torturings of the thinking understanding to come near the concept without conceptual thought, and therefore shares the eternal fate of the most strenuous reflection by the understanding: just where it seems to have come nearest to the concept, to miss it most completely again and embrace a shadow" (p. 488). The article "is like the constant attempt of a man who wants to fly without wings, a leap upward after which he must fall back ever more heavily on his feet. It is the restless battering of the understanding against the iron bars of its cage, a battering that only makes a rattling noise and cannot shake those bars" (p. 495). Who should know that condition better than the author, if he has kept any memory at all of the tortures and torments he had to endure before he separated from me? And I'm sure he has, since according to him the "existing unity of will (of heir and deceased)" given with the status of suus, the heir in the dead man's own power, "is able, as something immediately given, to penetrate into the uterus and to seize the person back to the very beginnings of its being a person" (p. 240). Hence that burning hatred of the understanding, that sovereign contempt for it, and at the same time that exact knowledge of its nature which enables him, by dissecting Huschke's article, to supply "a contribution to the physiology of the understanding, which rages in legal matter more exclusively than anywhere else, and has raged there ever since the fall of Rome" (p. 514). What a wonderfully developed organ he has for sensing even the tiniest trace of this juristic od, the imaginary life-force of the naturalists, spread over the widest space, is strikingly shown by the fact that he picked Huschke's article of all things to carry out his "dissection" on, and that the understanding of this writer seems to him "the highest, his acuteness the most gifted and normal." For of the three sorts of understanding he has discovered, he assigns Huschke the third and highest. "There are," he says, "three sorts of understanding. The first is the kind that only ever sees one side of a thing: this is the limited understanding.²² The second is the understanding developed enough to see both sides of a thing, but only ever in turn, never at the same time. This is the educated, developed understanding. Since it sees the two sides of a thing only in turn, it does not feel their contradiction; it therefore lives content with God and the world, above all with itself, puts each side of the thing in a corner of its own, and each time forgets the one completely when it needs the other and takes it out. The rarest and highest understanding is the one that sees both sides of the thing at the same time, and for that very reason also feels their contradiction. Since it feels it, the contradiction becomes its torment, and that is why the judgment falls precisely on this highest understanding" (the judgment the author had to undergo in his day, when I still harbored him as a speculative Brother Medardus, which is why he can describe it so movingly and so true). "Since it cannot reconcile the contradiction in the thing, it wants at least to extinguish it with words, and now begins that wild hunt of words. Out of every formulation, however blurred, the shrill mocking laughter of the contradiction, once recognized, rings out at it anew from the depths of its conscience. ... With all its tugging this way and that, it only drives the torture stake of the contradiction deeper into its own body. ... And when at last, breathless, dripping with sweat, trembling, it has to give up the mad hunt, it is only despair at the impossible task that makes it do so," and so on. In short, exactly his martyrdom and mine in the night I described.

Thanks to his exact physiological knowledge of the understanding, the author has managed to keep this poison so far away from his book that I have not found a single trace of it in all of its 608 pages. And it only bears out what I say when he, who denies positive lawyers any organ for really understanding the law of inheritance, nevertheless believes he can "guarantee that not one of them will have read even the first 20 sections without feeling a compelling conviction take hold of him, which will grow more and more into an unshakeable positivity." The positive lawyer, first declared blind, is supposed to be able to see!

Try it on yourself now, and see whether you carry the organ in you for understanding this "Versöhnung," this "reconciliation²³ of positive law and the philosophy of law," as the work is also subtitled.

"The infinity of the subject proclaimed by Christianity is preceded in history by another, more external infinity of the subject, the infinity of the subjective will" (that is, according to p. 223, the possibility of positing another person as the existence of one's own will, the identity of will, the subjective immortality of the will). "This is what makes up the meaning of the Roman law of inheritance and of the Roman spirit in general. Roman immortality is the testament (p. 23). The testament is the way in which the infinity of the subject dawned on the Roman spirit and was conquered by it. This triumph of pure freedom of the will, of abstract inwardness, enabled Rome to become the immediate dialectical preliminary stage for the still deeper and more abstract inwardness of the Christian spirit. Spiritual immortality in its Roman conception is the immediate preliminary stage of Christian immortality. (p. 223.) The will overcomes finiteness by making another person its continuer and bearer (p. 25). The true meaning of the testament lies not so much in a disposition being made of the property left behind as in a successor of the will being created: in the production of the continuity of the will" (p. 28). To the author property is so much a side issue that "the testator does not bequeath his property to the heir, but only his will, even where the two go together (and the property merely as an accessory of the will)," whereas on the opposing view "property is supposed to have swallowed up the person" (p. 17). That is why, in the testament by mancipation (p. 116), he has "not property, nor thing, but the will-subjectivity of the deceased mancipated to the heir." That is also why, when the next heir on intestacy, appointed in the will, refuses the inheritance under the testament so as to take it on intestacy free of legacies, it is not consideration for the legatees that the law uses to stop him ("that is again the illusion, the appearance") but consideration for the testator, so that the testator may obtain "the preservation of his will most adequate to him and expressly posited by him" (p. 245). For intestate succession really isn't much of anything. The ordinary view of its relation to succession by testament, which takes intestacy as the principal case and the testament as the deviation, represents "one of the most radical and greatest errors" (p. 27). The true relation is exactly the opposite. The original and normal thing is the testament; "intestate succession comes in only as something identical with the individual will, as this presupposed will, as the completion of the individual's own unexpressed will" (voluntas tacita, the tacit will) (p. 386). The suus does not belong among the heirs on intestacy. He is something between an heir by testament and an heir on intestacy, the immediacy of the identity of will (p. 251), or, "conceptually speaking, a living testament" (p. 403). That when the nearest agnate, the nearest relative through the male line, refuses, there is no successio graduum et ordinum, no passing of the inheritance down to the next degree and class, is a speculative necessity. For "it is not the individuals who inherit; the idea of this articulation of the will inherits, and the individual only insofar as he is its present representative" (p. 421). The difference in the old law between the effects of passing over in the testament a son who was among the sui and passing over a grandson or a daughter is likewise "one of the most splendid proofs of the almost miraculous speculative consistency of the old civil law" (p. 261). For the daughter, for example, is indeed also, "as standing in the father's power, identity of will with him and, being unmediated in this relation, immediate identity; ... but she is not total identity with him, as the son is" (p. 257).

But that's enough for a sample, perhaps already more than too much! If I may finally draw the moral from all this, I'll sum it up in two propositions:

1. The old Roman law of inheritance is the realized kingdom of speculative thought. Each and every thing it determines and does not determine, has and does not have, can be developed by speculation; and had not a word of it come down to us, Lassalle would have discovered it a priori. The start of the capacity to make a testament at sexual maturity ("it is the production of one's own self that happens in making a testament and in begetting, in the one case the spiritual and voluntary, in the other the natural [p. 165]," for which the kinship of testiculi with testari, to make a testament, could be put to use!); the status of suus ("it is therefore the triumph of the speculative concept when there develops from it, playfully and of itself, the meaning that belongs to this hitherto mysterious rule of the suus," p. 226); the consequences of passing over sons, daughters, grandsons; the inheritance of the proximus agnatus, the nearest agnate; the exclusion of successio graduum et ordinum; in short, name anything you like, apart from the institutions of the later law, where of course one must be prepared to see "the whole speculative concept of inheritance perish and go under in human fairness" (p. 158): each and every thing is pure child's play for anyone who has once succeeded in "tearing the veiling sensuous veil from the law of inheritance and bringing its pure soul, through the material, to transparent appearance" (p. 5).

The further moral, however, is

2. that the understanding wholly lacks any grasp of these most sublime revelations of speculation. How, for instance, should it comprehend (even if it were understanding No. 3) that when one of two orphaned twins, still at the breast, dies and is succeeded by the other on intestacy, the event takes on the following speculative shape? The deceased, pining for the immortality of the will or continuity of the will, has by a tacit act of will (tacita voluntas, see above) "posited" his brother "as the existence of his own will." Having in this way "overcome finiteness," if with the help of the "general will," and having cast one more grateful glance at the bearer of his will sucking beside him, begotten by him through a representative, he falls gently asleep and withdraws, content, into the substantial primal matter!

I believe I can be sure of this writer's full agreement if, in closing, I put it like this: speculation begins where common sense leaves off; to be allowed to devote yourself to it, you must either never have had any understanding or have lost it. Which of the two alternatives applies to the author has been made clear by my account of his original identity with me. At the same time you now know why, after my speculative half had departed from me as Ferdinand Lassalle and left me with only the half that understands, I was forced to renounce theory and throw myself into practice. My experiences and adventures there will be the subject of my next letter.

The Third Letter: Into Practice, the Examination, and Deciding Cases by the Textbook

[German Court Gazette, volume IV, 1862, no. 55.]

Do you still remember your Anonymous, who wrote you two letters last year about the new jurisprudence (printed in nos. 41 and 85 of last year's Gazette)?

I'd really have deserved it of you if you had forgotten me, and, instead of printing my letter, simply dropped it in the editorial wastepaper basket.

Don't ask me the reason for my long silence. If I were pressed to justify myself, I might hit on the idea of pleading one of the newest defenses to have sprung up on Austrian postal soil, the exceptio Kallabbiana, or, in plain English, the plea of the stolen letters: for slack correspondents one of the most priceless inventions of the nineteenth century.²⁴

If you'll take the trouble to look up my last letter, you'll find that you furnished it with notes (as I had authorized you to) in which you defended the speculative method in jurisprudence against me.²⁵ I could treat your notes the way the Danish cabinet treats the Austrian and Prussian ones on the Schleswig-Holstein question, that is, not let them bother me. But I'd only decide to do that if there were really a difference of opinion between us, and in fact there isn't any. What I meant to fight in that letter was not the speculative tendency as such but its aberrations, and you won't defend those either. I'm glad, by the way, to take this opportunity to do justice to the dazzling talent that the newest champion of this tendency, F. Lassalle, has brought into the lists for it. If I had such a talent, I'd know something better to do with it than write letters like these, and in a few years I'd be one of the leading lawyers alive! For less gifted natures those dangers don't exist at all, the dangers that as a rule have something so tempting about them for the most gifted: it's the chamois and the ibex you meet on the cliffs, never the sheep! There is, admittedly, one more factor: those dangers threaten only theorists, not practitioners. It takes the quiet and seclusion of a study to bring eccentric ideas to ripeness; they don't thrive in offices. However strongly an individual leans toward them by nature, give him a few years of practice and the wildest ibex has turned into a useful, steady domestic animal, content if he can climb, by the law of seniority in the state service, one of those peaks the state holds up before striving ambition in the form of district, municipal, provincial and court judgeships, to say nothing of the posts on the Supreme Court of Appeal. Only now and then does a lawyer turn up whom the feeling that he was born to reform jurisprudence keeps awake at night. He uses the involuntary leisure his clients leave him, for the good of mankind, to hurl ideas of world-historical importance, with raw and untamed force, among the astonished tribe of legal philistines. Perhaps the course of my wanderings across the field of jurisprudence will give me a chance to shed a little more light on this peculiar variety of our modern legal titans too. But I have a long way to go before then, for you'll agree with me that the scholars by profession should go first.

If Roland and Bayard had had to forge their own blades, they would probably have died unknown swordsmiths instead of filling the world with their fame as heroes. Their life of great deeds was possible only because the armorers of their day spared them that trouble. And the moral of this reflection is this. If we practitioners had to manufacture for ourselves the theoretical equipment we need, if we had to edit the Basilica, discover Gaius, write commentaries on the corpus juris, write Pandects textbooks and so on, we'd never get round to our real professional work for all the preliminaries. Instead of wielding the sword of justice we'd have to hammer it and whet it, and we'd be waiting a long while for our Bayards and Rolands. We can't thank Providence enough, then, for relieving us of that trouble, and for seeing to it, by its unceasing production of theorists, that the preliminary work goes on regularly. Here too the law of the division of labor proves what a great blessing it is. For while we, on our side, can give our whole strength, undiminished and undivided, to our share of the task, and spend whatever leisure is left over on hunting, whist, politics and so on, the theorists' exclusive concern with their task allows them to reach the highest mastery in it. In their hands, on the grindstone of theory, the sword of justice has taken on an edge most razors might envy. You can split a hair with it. Anyone not in full command of its use has cut and scraped himself before he even has it in his hand, and wherever he turns it, there is blood and wounding. No wonder the parties to a case often come to dread it, and that many of them pay for one clumsy movement of it by an inexperienced judge with the loss of the whole lawsuit.

We can't blame the swordsmith for not knowing how to wield the blade, and no more should we blame the theorist for not knowing how to handle the sword of justice. What is the division of labor for, if everyone is to do the whole job? The knife-grinder grinds the razor, the barber shaves with it. That's how it should be, and each of them thrives that way, where otherwise they'd both stay bunglers. Anyone who lets the knife-grinder shave him has himself to blame if he leaves with his face skinned. Now in the barbering trade it is admittedly not the custom to send the future barber to a knife-grinder as an apprentice. But that's just where our profession differs from that one: we practitioners serve our apprenticeship with the theorist. There is, I admit, a certain drawback in this, and the purpose of this letter is to bring it vividly before your eyes. If I wanted a pretentious, high-sounding name for my subject, I'd tell you it concerned the relation between theory and practice at the present day. When I add "at the present day," you'll guess that I mean to point to a different shape this relation had in the past. I'm not thinking of ancient Rome, where professors in today's sense, that is, pure theorists, appeared only when jurisprudence was coming to its end, but of times hardly a generation behind us. Our well-known theorists of earlier days were all seasoned practitioners as well. The law faculties that decided the cases courts sent them, and the old benches of lay judges, supplied them with practical work of a richness and variety otherwise found only at a supreme court. This source of practical instruction has not dried up entirely today,²⁶ but compared with earlier times it has grown very poor. On top of that, the upswing our jurisprudence took with the historical school has led it further into the study of the sources, but further away from practice.

If I were to treat this subject as it deserves, in scholarly form and exhaustively, I'd have to give it up for lack of strength. I'll choose instead a form I'm more at home with, one I used once before, in my last letter, in discussing speculative jurisprudence: I'll describe to you how this opposition between theory and practice has made itself felt in my own small life. If the sun, moon and stars are reflected in the smallest pond, the phenomena of our legal firmament can be reflected in the narrow mirror of an ordinary practitioner's modest career.

The life of a lawyer, as everyone knows, falls into two periods: the university years, or the time of sowing, and the years of practical life, or the time of harvest.²⁷ There were times, and they reached into our own century, when it was left to each man how well or how badly he chose to do his sowing. People assumed that whoever sows thistles will reap no figs, and that self-interest ought to guide the future lawyer at sowing time just as it guides the farmer. I mean, in plain words, the times when there was no examination yet. We younger men know this golden age of jurisprudence only from a few traditions that are fading more and more. In those days you went straight from the university to your home town, bought a black hat, the statute book and some legal paper, and there was your practical lawyer, ready-made, at least if he was content to become an attorney. How many a poor law candidate in the agonies of examination may that picture of a vanished age have moved to laments of hopeless longing, like those the memory of the gods of Greece once drew from Schiller! And how deeply such a man may have felt, in his own way, the words:

"Then no ghastly skeleton came striding / To the bedside of the — trying."

Anyone from a good family found, without further examination, a post in the state service that kept its man fed, and very quickly. Many a man in those days even rose like a balloon, all the faster and higher the lighter he was. For the rest, who did better to go into the bar, the bar counted as a common pasture where everyone could let his little lamb graze freely. Now all that is different. Even the born future Minister of State and President has to pass his exam,²⁸ and the attorney's common pasture has been fenced in. He can't get onto it now without going through the barrier, and the toll at the barrier is an examination.

This barrier, which separates the university from practical life, or, let me say it briefly, theory from practice, is entrusted, like all frontier barriers, to certain officials, frontier customs guards, inspectors and controllers, who are known in life, as everyone knows, as examiners. Opinions in Germany still differ on who are the right persons to choose. In principle the difference comes down to this: should the inspection take place where the law candidate leaves, or where he enters? If you regard the knowledge he carries as an export, the inspection must happen on this side of the barrier; if you regard it as an import, on the far side. Put plainly: in the one case the professors examine him, in the other practicing lawyers. Without presuming to pass a binding judgment, I think I may give my plain opinion on the matter. I'm decidedly for the export system. Not that I imagine we're talking about the candidate's former teachers issuing a certificate of origin, still less about paying an export duty. Rather, I believe that the interest not only of everyone concerned but of academic freedom of teaching too requires it. Put yourself in the place of a candidate who comes down the road heavily laden with knowledge and now has to halt before an examining board made up of practitioners. He carries the most beautiful things: fossils from the most ancient times of Roman legal history, mammoth bones, mummies, and the very latest in pioneering discoveries, ingenious theories and bold hypotheses, whatever is to be had. But what good is all that to him with the practitioner? As a rule the practitioner has as little interest in these things, and as little understanding of them, as an ordinary customs officer has for the most precious crystals, fossils and anatomical specimens. But in either case, fetch the connoisseur, and you'll see how he goes into raptures over them! And what did a poor student do violence to his head for, cramming in all those many things he'll never be able to use in later life, if he isn't to be allowed to spread them out at least once in his life, in the exam?

Be that as it may, the decisive consideration is academic freedom of teaching. There are people, it's true, who cite exactly this consideration for the opposite view: they think that through the examination the professors get a kind of compulsory monopoly over their lectures, like a lord whose peasants must grind their corn at his mill. Nothing could be more perverse! What does freedom of teaching mean? Teacher and student are correlative concepts: nobody can teach unless somebody is there to learn. Now if freedom of teaching is not to be a completely hollow concept, care must be taken that there are not only teachers but students too. And since applying ordinary police measures of compulsion goes against our delicate notions of academic freedom, the condition for freedom of teaching can only be secured by handing the state examination over to the professors. I'd like to know what would become of the attendance at many lecture courses, or even of the mere enrolment in them, if the lecturer suddenly stopped being an examiner! His benches would empty until his chair stood alone, and that would be the end of his teaching; some cheeky young unsalaried lecturer (a Privatdozent, licensed to teach but paid only by the fees of the students he could draw) would run off with his whole audience. And what would be the inevitable result? So as not to let his flock of listeners fall into the hands of such an inexperienced fellow and be ruined there for scholarship, the professor, instead of letting himself be guided only by his taste, his inclinations, his gifts, would have to consider the taste and wishes of his listeners. He'd have to put himself under constraint. But constraint is the direct opposite of freedom. There would go freedom of teaching!

If the reasons set out so far could still leave me any doubt on the question, my own experience would be enough to remove it. At the university I had lived, studied and crammed for years together with a friend. I myself enjoyed a certain standing among my acquaintances for my knowledge, but not only their judgment but my own had decidedly awarded the palm for legal learning to my friend. Now what happened in the exam? My friend had to pass his in his home state before a board of practitioners, I in mine before the law faculty. I got the first grade with distinction; he scraped through by the skin of his teeth. My examiners told me how sorry they were that I had given up my earlier plan of an academic career; his examiners told him he had no future at all. How so? As is the custom there, he had been given two case files to write reports on. In our examination it would have been counted to him as the highest merit that after nearly nine months of the hardest work he had produced two reports from which a layman could have learned whole sections of Roman legal history, the Pandects and criminal law. Yet that was exactly what told against him with his examiners. For me, on the other hand, the exam was a sheer pleasure, quite apart from its extremely favorable result. I had heard every lecture course of every examiner and, thanks to my good memory, had learned my carefully written-up lecture notes almost word for word by heart. Wound up like a music box, a walking set of lecture notes, I could reel everything off in the verbis ipsissimis, the very words, and I can still see the fond smile with which my examiners rewarded this echo of their lectures. One of them examined me in Roman law for a full half hour on infamy, the loss of civic honor, and I didn't miss a single question. I had all the cases of infamia mediata and immediata off pat. Of the 25 cases of the first sort that von Vangerow lists in his Pandects textbook, § 47, I had forgotten only no. 22, "anyone who damages or takes away implements or animals intended for agriculture," and in no. 2, "persons of full age who have appeared publicly as actors," I had forgotten the element of full age. The other scholar of Roman law examined me on the capitis deminutiones and on the "unus casus" of the Institutes, which he had loved to occupy himself with for years. He was preparing a "monograph" on it, which, however, because of the difficulty of the subject and the bulk of the literature, has still not appeared. This subject took up so much of his attention that he had little time left for the servitus luminum, also, as is well known, a riddle of legal history, a veritable Sphinx of a servitude, about which an infinite amount has been written.

In Roman legal history I didn't do quite so well. The tres partes and the Infortiatum, it's true, I knew exactly, and to my examiner's great satisfaction I set out, with all its grounds, the view he defended, that this division of the Digest was made on purpose. The seven partes of the Pandects, the umbilicus Digestorum, the navel of the Digest, and the Antipapinian, the libri terribiles, the nicknames for freshmen and old hands at the law schools of Justinian's day, the shortest and the longest lex in the Pandects, the number of titles in the Institutes, the Pandects and the Code: all of these, points on which my examiner laid great weight,²⁹ were firmly in my memory. On the other hand I had completely forgotten the second chapter of the lex Aquilia. The cursed sameness of sound of the lex Atinia, Atilia, Acilia and Aquilia confused me somewhat, and I didn't keep the lex Furia Caninia and the lex Aelia Sentia on the freeing of slaves quite apart. And to finish, I was two short among the famous jurists with the first name "Anton," and one of the two was one of the examiners sitting there.³⁰

But I won't trouble you with exam questions any further. What I've said is enough to show you that if I'd had to pass my exam before practitioners, I'd never have been in a position to display my knowledge. On that assumption I'd have had to give my whole course of study a different direction, especially in the Pandects. Of the Pandects, only certain subjects came up regularly in our exam, the ones the examiners were particularly interested in. From ownership: the doctrine of thesaurus, treasure trove, of accessio and specificatio, of the alveus derelictus, the abandoned riverbed, and of the insula in flumine nata, the island born in a river. From the law of obligations: the various Roman forms of suretyship, the actio de pauperie for damage done by animals, the actions for delict and the actiones adjectitiae qualitatis. From family law: adoption, emancipation, the peculia, and above all the difference between tutela and cura. From inheritance: the bonorum possessio,³¹ the private will, the old Roman law of forced heirship and the difference between legacies and fideicommissa. Anyone well in the saddle on these subjects could be guaranteed a happy outcome in the exam.

Let me now go on with my story. The exam was passed: Exam, Amen! The barrier was raised, and I entered the state service as a trainee, at the district court of X. But how sharply the first impressions I got there contrasted with the last ones of my old life! My well-passed exam had given me a certain self-confidence and trust in myself, but it wasn't a month before they gave way to the bitterest discouragement. I felt like a man who has learned to swim on dry land and is now put into the water. The showpieces of my knowledge proved completely worthless. Some of them, like the various forms of Roman suretyship, served only to leave me wholly at a loss and helpless, and more and more I began to doubt whether I had learned the law at all or only learned about it. In fifteen years of practical work not one of all the questions from Roman law I was asked in the exam has come my way. How glad I'd have been to put to use my hard-won possessions in the doctrine of infamy, which had cost me many days of strenuous study! How I thirsted for "sons of perduelles," of traitors (Vangerow, as cited, no. 15), or for someone "who maliciously interprets individual decrees of the ruler or obtains them by stealth" (no. 19), or for someone "who, in particular cases singled out by the law, petitions the ruler in an unlawful manner" (no. 20)! At a pinch I'd even have made do with "notaries and judges who draw up an assignment of a debt from a Jew to a Christian" (no. 24), or "advocates who, in conducting a lawsuit, are guilty of unnecessary (?) insults" (no. 17). "Prostitutes, adulteresses, widows who break the year of mourning, usurers" (nos. 5, 6, 8, 10) were too common for me and of no interest. But though I didn't doubt that the finest specimens of those categories could be found without beating the bushes, I couldn't see how one was supposed to get at them with infamy. The only means of establishing their infamy in court, to fling the reproach in their faces and then answer the action for insult they brought with the exceptio veritatis, the plea that it was true, seemed to me too risky, especially where notaries, judges and advocates were concerned. The unus casus of the Institutes and the servitus luminum wouldn't show themselves either. And however often I came across cases in life where someone had completely lost his head, not one of them would let itself be subsumed under the Roman capitis deminutio, the "diminution of the head" by which a man lost his legal standing. Life brought me quite different questions from the exam, and I may say that compared with the continuing examination I had to pass in life, the school one was child's play, and that I did as badly in the one as I had done well in the other. The cursed thing about it was that it was the simplest cases that embarrassed me most, and that my books regularly left me completely in the lurch.

What could be simpler than a loan and an IOU given for it? Yet the first such case that came my way humbled and shamed me thoroughly.

Schulze had lent Zwickauer (I hope the Kladderadatsch will let me use its names for my case instead of the Roman Aulus Agerius and Numerius Negidius), well then, Schulze had lent Zwickauer 100 thalers in the presence of two witnesses and had had him sign the following note:

"The undersigned hereby acknowledges owing Mr. Schulze 100 thalers, at interest of 5 per cent, on one month's notice from either side. Schilda, 31 September 1847. Zwickauer."

Below the note came this addition:

"We stand for the above. A. Schmidt and K. Meier."

Schulze had brought an action stating that he had lent Zwickauer 100 thalers against the enclosed note and had called in the loan a month ago, but had not yet received his money. Zwickauer had let the time for his answer go by in default, which in the practice of our country meant that he was taken to have denied the claim. My district magistrate asked me how I would decide, and as I couldn't give him a definite answer on the spot, I asked for time to think it over. At home I then subjected the matter to the most thorough examination, sparing neither Puchta, Vangerow nor the corpus juris, and came to the following result. The action the plaintiff had brought was the condictio ex mutuo, the action on a loan. But in Roman law the concept of a loan includes the passing of ownership, or failing that the later consumption, of the coins lent (Puchta, Pandects, § 304, l. 2 § 1, 4 de reb. cred. 12. 1). Since the plaintiff had alleged in his statement of claim neither his own ownership of the coins, and so the transfer of ownership that only that made possible, nor their consumption by the recipient, the claim failed to make out its case and had to be dismissed "as brought." My old magistrate's laughter interrupted me as I went on developing my view. Whether that rule of Roman law on loans was simply unknown to him, I can't say; in short, he nearly flew into a rage when I appealed, with a theorist's sense of security, to Roman law and to Puchta. He cut off all further discussion of the point with a pasha's decree: if every code in the world contained so senseless a rule, he would never apply it, because it made every loan impossible. My alternative motion, to order proof of the creditor's ownership, or of the consumption, never even came up.

Over the IOU our views were just as far apart. In my view it was worth nothing at all. For one thing, it was dated on a day that doesn't exist in the calendar, the 31st of September, and so contained something legally impossible: for how can anyone come to owe something on a day that doesn't exist? For another, it lacked any statement of the causa debendi, the reason for the debt, and was therefore a cautio indiscreta, unfit either to create a debt or to prove one (Puchta, § 257). It serves the creditor right if his note is worth nothing, when he doesn't insist that the causa be named in it. True, if he has reason to hide the causa, he'll make sure some invented causa, usually a loan, is named in the note for show, and then everything is in order. But honest people ought to keep their IOUs in order, like their passports, and they have only themselves to blame if they get caught in the snares of the police and the law, which can't touch the sly swindler. If an example weren't made of them now and then, what would make the rogues careful? Despite these good reasons, though, I came to grief with theory once more in front of my chief. He said that an acknowledgment of simply "owing" usually meant a loan among ordinary people. And quite apart from that, everyone must be free, by agreement with the other party, to keep the judge from looking more closely into their business and their dealings with each other; that is, to leave the causa out of account when setting up a money debt. I couldn't convince myself of this. I'm glad that despite the growing tendency in practice toward this view, and despite the attempt Bähr made in his book on acknowledgment to justify it scientifically, the theorists have so far stubbornly resisted it, as Schlesinger (On the Doctrine of Formal Contracts, Leipzig, 1858) did again only recently. This scholar rightly counts such a note as nothing, while, to use his own words (p. 141), "the matter suddenly looks quite different if we imagine added to that declaration (of merely owing) the further words: 'and promise accordingly to pay the same.' This promise, together with acceptance on the other side, plainly makes up a binding contract, and indeed, since it announces itself as a promise of something already owed, a constitutum (debiti proprii)." Quite naturally! For if the serious intention of keeping it is so often missing in life even when a promise is expressly made, how much less can we presume it in a mere acknowledgment of debt like this, where the debtor avoids declaring that he actually means to pay. Yet that declaration is so highly necessary to cut off the debtor's excuse that while he did intend to become a debtor and to remain one, he had no intention whatever of later ceasing to be one: of paying, to put it plainly. The mere acknowledgment of debt is a half-measure: it establishes the will to create the obligation, but by no means the will to discharge it. Whether the will to discharge it is adequately documented by the words "and promise accordingly to pay the same," as Schlesinger supposes, I more than doubt. It seems to me rather that the promise must be followed by the further words "and intend actually to keep it." Just as the duty to pay does not follow of itself from the mere acknowledgment of debt, so the duty to keep it does not follow from the mere promise, for promising and keeping, as everyone knows, are two different things.

Theory and practice parted ways widely over the meaning of the two witnesses' signatures, too. My chief declared the transaction, flatly, to be a suretyship. I, on the other hand, followed the rule that in dubio, in case of doubt, the lesser is to be presumed, and believed I had to see in it a mere attestation of what had happened before the witnesses when the debt was set up; all the more since Schmidt and Meier, as was admitted, had been there in the first place to serve as witnesses, and in dubio it must be presumed that they kept that capacity when they signed. And if it had to be a suretyship, what form of suretyship was it? Fidejussio, mandatum qualificatum or constitutum debiti alieni? For that these forms still survive today is the view of tried and tested theorists.³²

If today's law knows no suretyship in abstracto, any more than nature knows a bird in abstracto, but only the Roman species, then one can't rest content with the fact that Schmidt and Meier admittedly had the will to stand surety. For the sake of the action to be brought, if nothing else, the scales must come down for one of the three forms. And if no deciding factor can be found for the purpose, there can be no question of a suretyship at all: the will aimed at it hovers midway between all of them, without declaring itself for any one.

But enough of this first, so completely failed attempt of mine to make my theoretical knowledge count in practice. It was not to stand alone for long. One case after another brought me new embarrassments, and the deeper the theoretical studies I made to master them, the greater the embarrassments. I came at last to the point where I stand now, which I can sum up in one proposition: that you must first have lost your faith in theory completely before you can use it without danger. If you'd be interested to hear a few more of the cases that produced this skepticism in me, let me know, and I'll serve you up a few.

The Fourth Letter: More Cases Decided by the Textbook

[German Court Gazette, volume V, no. 21. [The letter printed in the paper as the fourth is not mine; in my first letter I had expressly allowed insertions of the kind.]]

You have interrupted the series of my letters with a fourth one on an entirely different subject. I can't let that interrupt the systematic course I once laid out for my letters. In this respect I am not as obliging as that legal historian who approved and adopted the interference that chance, in the shape of a gust of wind and a housemaid, had made in the systematic arrangement of his Roman legal history. Do you know the story? Let your punishment for meddling with my letters be that you have to print it.

It was during the long vacation. The professor was away, and the housemaid had to clean his study of the learned dust that had gathered in it. Door and window stood open facing each other, and the girl, her work done, had gone out. Then, as bad luck would have it, a strong wind gets up, and a mighty gust bursts into the room and in among the lecture notes taking their vacation nap. Institutes, Pandects, civil procedure, Roman legal history: everything is set in motion and uproar, and above all the wind bores and burrows with satanic glee into the legal history, which lay particularly exposed. One strong gust, and the whole of Roman legal history is whirling through the air like a shower of dust: the praetor's edict wrestling with the Twelve Tables, the jus gentium with the jus civile, the decrees of the Senate with the imperial constitutions, Labeo and Capito, those irreconcilable enemies, locked in a tight embrace for a change, Coruncanius and Aelius lying on top of Ulpian and Paulus, Justinian's compilation high above them all. In short, a wild confusion, every bond of Roman legal history burst apart. You'd have thought you were watching a resurrection scene in legal history: everything resting in the graves comes to life and rises! At this decisive moment the maid appears, and like Danaë she is showered with a golden rain of legal history. On the crown of her head, as befitted its rank, settled the legis actio sacramento, the stateliest form of the old procedure "by statute"; a little lower, on her bosom, the pignoris capio; the manus injectio, the laying on of hands, fell into her apron; the judicis postulatio chose her feet. Only the formulary procedure, being a younger formation, felt no urge as yet to settle. The classical jurists sank down toward her in a stirring of sympathy and hovered round her in a ring dance.

What a situation! A housemaid in the middle of the systematic storm and whirlpool of Roman legal history, called on to calm the storm and restore order!

In half an hour she was done. Roman legal history had been rearranged. The format, the color, the age of the paper, the page numbers where there were any, and other outward features were honestly taken into account; for the rest, the arranger gave her talent free rein and arranged things on "a system of her own." It was certainly highly original. The Twelve Tables came somewhere near the end, far behind the jurists who had dealt with them, far behind all the statutes, decrees of the Senate and so on that had followed them and referred to them. The magistrates of the Republic with their edicts had, in some dim urge of loyalty, given precedence to the emperors and their constitutions, and so on. I'll tell the rest of the story briefly. The professor came back from vacation and lectured on Roman legal history as announced, just as if nothing had happened to it, pocketing each day the supply of note-sheets he needed. In this way, without knowing it or wanting it, he got deeper and deeper into the new order forced on him, until at last he couldn't go back, and in the end he made friends with it. Whether he has published this new system of his in the form of an outline, as is now the fashion, or communicated it in some other way, I don't know. In short, the fact is that the peculiar transpositions I've described in Roman legal history are to be found followed in one of the newest textbooks.³³

Since I learned this story, a light has dawned on me, as they say, about many wonderful systematic phenomena in our legal works. What happened in this case, couldn't it have happened again in others? Couldn't the wind for once blow in among the Institutes and the Pandects too, and drive the so-called General Part to the end, and, say, marriage, adoption and legitimation into the first paragraphs of the system, at a point where the concept of a right or of a legal relation has not even been mentioned yet? Wind and housemaids can't be calculated, and what the wise in their wisdom cannot see may perhaps be brought about by the play of chance. That is why, in my opinion, wind and housemaids should always have free access to manuscripts and lecture notes.

I closed my third letter with a proposition that is easy enough to write down but that I had to win slowly and laboriously: that you must first have lost your faith in theory completely before you can use it without danger. How many cases I'd have to report if I wanted to trace the road by which I reached it! They ended just like the one I told you before. In spite of, or more correctly because of, my firm clinging to theory, I found myself each time shamefully lifted out of the saddle and thrown in the sand. I felt like a veterinary student who, after attending the lectures on the anatomy of the horse with the greatest diligence, has trusted his scientific acquaintance with the horse enough to venture onto a wild white stallion, and finds leisure, in the ditch by the highway, to reflect that riding a horse and knowing its anatomy are two different things.

I won't fill the valuable columns of your paper with these cases. But two of them, which became epoch-making in the history of my legal development, you must allow me to tell you. They dealt my faith in theory the blow that finally drove me, with irresistible force, toward the point where I now stand, and from which I shall judge our present-day theory in my following letters. Judge for yourself whether they could have had any effect but to shake my faith to its foundations!

The hero of my first case, which concerned the doctrine of general mortgages, was a charming, scatterbrained musician whose very name had given him a claim to a certain eccentricity: he was called Sausewind, which is to say "Whirlwind." Though a musician body and soul, he now and then felt an irresistible urge to come into closer contact with practical jurisprudence. He had tried in vain, by other means, to bring his spending and his income into balance, and he now tried to do it by putting the theory of the loan to practical use; his creditors added the theory of pledge, by writing onto the IOUs the words sub hypotheca omnium bonorum, "under a mortgage on all his property." Once he had become thoroughly familiar with the theory of the loan and the neighboring subjects, IOUs, bills of exchange, interest and compound interest and so on, and had also struck up a certain acquaintance with civil procedure, he turned to a procedural subject that had so far been completely strange to him. He asked his creditors, instead of their solo performances up to then, as he put it in the language of music, to unite their forces in a joint procedural symphony movement, which a lawyer, in his own language, calls a bankruptcy.

The theme, treated here not so much in counterpoint as in contradiction, was genuinely musical in nature. It consisted of various string and wind instruments, a pianoforte and the necessary sheet music. Proving the claims gave no difficulty at all; ranking them gave all the more, especially as regards the various general mortgages the bankrupt had granted one after another, eight of them in all. Their order of age, it's true, was clear and undisputed. Each general mortgage bore its birthday on its forehead, and they followed one another exactly like the letters of the alphabet A, B and so on to H, which I'll use to denote their holders. The point in dispute was what these mortgages actually covered: whether their object was to be taken to be the property as a whole, or the separate items in it. In the first case, A got paid first out of the total proceeds, then B, and so on. In the second case, A had the first mortgage only on the things that were in the debtor's property at the time his mortgage was granted. On the things acquired later, he had a pledge of equal rank with all the other creditors who had already received a general mortgage by then. In this case, then, everything depended on the moment when each separate item had come into the property.

The first view held good in practice for centuries, but our present-day theory has pronounced a fairly general sentence of condemnation on it, and nobody will be surprised that in the case before me I based my judgment on the second view, which was defended by men like Puchta, Vangerow, Sintenis and others. Applying it was, admittedly, attended by great difficulties. For under it, the question of priority was decided not only by the date the pledge was granted but also by the date each separate object entered the property, and that date, as everyone knows, must be proved by whoever alleges it.

Now the order in which these objects had come in could on the whole be established easily. The pianoforte had been there first. A violin had joined it, which soon got reinforcement from a viola, and both of them in turn from a cello. Then came the period of the wind instruments. It began with an A clarinet, which not long afterward found a companion in its close relative the B-flat clarinet. Once the bankrupt had got into blowing, his unstoppable urge to improve himself made him try the flute as well, which soon had to make way for the French horn. It was in the middle of his promising studies on this instrument that the bankruptcy took him by surprise. The decretum de aperiundo concursu, the decree opening the proceedings, fell right into the slumber aria, and the bailiff, fittingly enough, into the closing cadenza the bankrupt had composed and inserted himself. But establishing this merely relative order in time could not, understandably, be enough. It could have been enough only on the assumption that the bankrupt had kept instruments and creditors in step, slipping in D, for example, between the viola and the cello, E between the cello and the A clarinet and so on: in short, that he had put a new loan and a new creditor on every new instrument. In fact the bankrupt does seem to have kept up this parallel between the growth of his musical studies and of his debts, for in his good humor he had named each new instrument after the creditor who came before, so that his clarinets, for instance, were known not as the A and the B-flat clarinet but as the Schmul clarinet and the Itzig clarinet. On that assumption, the scheme of priorities (turned upside down) came out as follows, showing the general mortgages on each instrument:

But the assumption had in no way been proved in the proceedings, so the judgment on priority couldn't rest on it; the individual dates of acquisition had to be proved. Even the months weren't enough. Into June 1850, for instance, fell, undisputed, the A clarinet as a new asset and the debt to E as a new liability; but whether the clarinet came into the property before or after 13 June, the day the pledge was granted to E, was entirely uncertain and disputed among the creditors.

There was really nothing left, then, but to lay on the eight creditors the burden of proving, for every instrument except the pianoforte, the moment it had come into the bankrupt's property. Exactly the same had to happen with the sheet music. Every string quartet by Mozart, every sonata by Beethoven, even every waltz by Strauss, "My Loveliest Day in Baden," "The Blue Danube" and the rest, might be the object of so-and-so many general mortgages.

What trouble it cost me to formulate these points of proof correctly, let me pass over in silence. The saddest part comes last. When I laid my draft before my district magistrate (you'll remember that worthy but rough old pasha of justice from my third letter), he finished reading it and stared at me fixedly for three minutes. Then he was seized by a fit of laughter that just would not end. A French horn the object of eight general mortgages, a flute of seven, a clarinet of six and so on; a Strauss waltz as the prize in a battle over priority: the thought had something so overwhelming for him that, for all his fondness for me, he couldn't stop laughing, which was most embarrassing for me. To cut the ending short: he didn't throw my draft in the wastepaper basket, as I'd expected, but kept it as a priceless curiosity, and when he dies it will still be found among his papers. What he said about theory on that occasion, let me pass over in silence. But the way he justified the old practice in legal terms does deserve to be passed on. He said that if nobody objected to pledging a stock of goods in a warehouse several times over as a universitas, a single whole, so that A got the first mortgage and B the second on every item in the warehouse at the moment the pledge was enforced, no matter when it had come in, then the parties must also be free to treat a whole property in just the same legal way. Whether the second pledgee knew anything of the first one's pledge could make no more difference in this case than in that one.

The second case I want to tell you about lies in the field of the theory of possession. After Savigny had written on possession and placed that doctrine in the full daylight of legal clarity, I wouldn't have thought it possible that any case from the law of possession could still give me trouble. And what case was it that taught me better? The simplest in the world! I'm seized with horror when I picture the uncertainty of human affairs, which this case brought home to me so glaringly. People speak of a "beatus possessor," a happy possessor, and he himself, the lucky man, when he looks around him and feasts his eyes on all that surrounds him, may boast of his luck and cry out with delight: "All this is subject to me; confess that I am happy!" Happy? Yes, as long as it lasts! A lawsuit over possession can rob you of all your happiness! At least if it is decided by Savigny's theory. Listen to my case!

Peter Habermaier, for that was the noble fellow's name, Peter Habermaier was the brother of Jürgen Habermaier. They were neighbors, and both were that in-between creature, part peasant and part landowner, for which our German language has no word of its own, so that it has been forced to borrow the Greek and call him an "economist," a manager of the household. In 1848 Jürgen had the misfortune to get too deeply into practical politics, and one day he took a hasty, touching leave of his geese, pigs and cows:

"Farewell, you hills, you pastures that I loved, / You geese, you pigs, you cows, farewell!" Then he spoke a few mysterious words with Peter and was quickly over the hills and far away. That same day Peter appeared at the deserted farm to live there and run it, told the people that from now on they were to respect him as master, and took charge of the orphaned geese, pigs and so on. On what legal title he did it, or what the legal nature of his possession was, whether he had taken over the farm as curator absentis, fiduciarius, mandatarius, negotiorum gestor, or as a pledgee by antichresis, a buyer or a tenant, neither he nor his neighbors had racked their brains; people simply respected the fact. Unchallenged, Peter reaped what Jürgen had sown; unchallenged, the cattle roamed the tall grass; and just as in Jürgen's day, the geese, ducks and hens ran about freely in an undiminished sense of their legal security.

This peaceful state of things, however, was soon to come to a tragic end. Hardly six months had gone by when it occurred to a neighbor that the moment might now have come to revive old claims of ownership to certain lands belonging to Jürgen's farm. And one day the whole animal kingdom of the farm came rushing back to it in wild flight, bleating, grunting and crying to heaven over the outrage done to them, just as in the first scene of Reynard the Fox. Raven Henry, as he was known by his nickname, had marched out with his people, his children, farmhands, maids and everything that was his, as if the days of club law had come back to life, and had taken possession of those lands, forcing everything on them, four-footed and two-footed, into hasty retreat. The next day the scene was repeated. Peter Habermaier, made wise by his brother's example, gave up the idea of putting his notions of right into effect by force, and preferred to go to law. He filed a complaint for disturbance of possession and asked to be protected in his possession. I was given the job of drafting the judgment. My old district magistrate had just gone off to take the waters, and the assessor and I were left on our own. If only we had gone to the spa instead of him! How we both landed in hot water afterward over the judgment I drafted and my assessor approved! The Carlsbad spring our old gentleman drank from on the spot was nothing to the one he used to let loose on us whenever the talk came round to that judgment. Yet the judgment itself, as I still maintain to this day, was theoretically quite correct, worked out entirely according to Savigny's theory of possession. But, of course, a proper practitioner would rather have chopped off his fingers than sign it. My assessor kept his fingers. More's the pity! A good many bad judgments and unreadable articles of his would have stayed unwritten. For you must know that he was a legal author too, and of the most dangerous sort.

This is not the place to set out my views on the various sorts of legal authors. But I consider the most dangerous species among them the one my assessor belonged to: those practitioners who think themselves great theorists because an inner voice tells them they are no practitioners. You'll agree with me that it is much easier, with the help of the literature, to turn out a legal article that every writer on the subject and every compiler of textbooks feels bound to cite than to turn out a good judgment or a good brief. Even the stupidest man, with the help of the literature, easily produces an article in which he sits in judgment on every writer who has written on the subject before him. And getting it printed in one of our journals of common law, as everyone knows, is nothing at all. If the Archive for Civil Practice won't take it, the Archive for Practical Jurisprudence will. If one of the two Dioscuri among the yearbooks, the Yearbooks of Gerber and Jhering and the Yearbook of Bekker and Muther, turns it down, there's always the other. And if everything else fails, there's still the Journal for Civil Law and Procedure, which certainly won't refuse the opus, since every contribution to it goes to the printer unseen and unread: a shelter for the homeless, where everyone finds a bed. With a judgment or a brief, though, if the subject is at all intricate, it's another matter. There you can't operate with other people's thoughts; you have to think for yourself. No wonder some men, for whom no laurels grow in that field, look for success in authorship, if only to bring to market the views on which they were outvoted, and the arguments with which they lost at every level of appeal, and to appeal from the narrow judgment of their colleagues and the courts to the enlightened and impartial judgment of the wider public. If, as cannot fail to happen, the author's article is cited by some well-known scholar, Vangerow, say, in many cases he is done for: from then on he counts among the "legal authors" of Germany, and his name belongs to "the literature" as surely as Savigny's and Puchta's. Savigny, Puchta, Vangerow, Hühnerfuss.

"Savigny," we may read in some work, "puts forward such and such a claim; Hühnerfuss, however, rightly objects that, et cetera, which Kohlmeier" (his colleague) "has wrongly disputed."

Beaming with joy, Hühnerfuss shows the passage to his wife. She is used to deciding intellectual rank by who is "right" and who is "wrong," and from then on she revels in the blissful thought that her Hühnerfuss has corrected a man like Savigny: a man her husband ranks unconditionally above Goethe, and who hangs, like Goethe, framed under glass in their home. As for him, the lucky man, the next day he goes into the court session twice as sure of himself, and if, as usual, he is outvoted, it only draws from him a pitying smile at the ignorance of his colleagues, "craftsmen who haven't the least idea of true science."

A few weeks or months later an article appears in which their view is duly chastised as an "aberration" of the practitioners. No wonder, then, that he takes less and less trouble over his reports and judgments, and feels, every time he works on one, like Pegasus in harness.

My assessor was such a civil-law Pegasus.

The less chance he had, while our chief was there, of getting his "theoretical crotchets," as the chief called them, accepted, the more welcome was the chance, at a moment when he had the realm to himself, to give theory its due.

Peter Habermaier was to learn what that meant!

The defendant had admitted the forcible ejection and the factual possession in the person of the plaintiff. But he denied that the plaintiff had juristic possession, or, more precisely, the element that in Savigny's theory distinguishes the second from the first: the animus domini, the intent to hold as owner.

Since the plaintiff had wrongly brought not the summariissimum, the quick interim remedy, but the possessorium ordinarium, there was nothing for it but to lay on the plaintiff the burden of proving his juristic possession, in specie his animus domini; I did not know then, and do not know now, of any presumption of that intent in the possessor's favor. In this sense, then, I drew up the interlocutory order on proof, "that the plaintiff has possessed the lands in question with the intention of an owner." My assessor approved the draft, and so the judgment was published. The plaintiff appealed against it, but unfortunately he let the appeal lapse, and the order on proof became final.

And so Peter Habermaier had to prove his animus domini, and only now, when it came to the proof, did I realize what I had done. Since I'm writing for lawyers, I hardly need to explain that the proof was bound to fail, or why. Let anyone try to prove, when a farmer tills his field, whether he did it animo domini, with the intent of an owner. Can you tell by looking at those two cartloads of manure, hay and so on, whether one is being driven by a detentor, a mere holder, and the other by a possessor? If the requirement of intent is to have any sense, any practical truth, possession must stand and fall with it. Now what if a tenant, in defiance of all theory, has the audacity to want to have the animus domini, and a real juristic possessor, the other way round, wrongly disclaims it? Theory will say: that doesn't count! But if it doesn't count, if every factual or juristic possessor always has the will to possess that he must have by law, what is the whole requirement of the animus domini for? Then it seems to me nothing but the will-less companion of juristic possession, its mere shadow. And to make the existence or nonexistence of possession depend on it seems to me no better than saying: whether a creature has two legs or four is decided by whether its shadow has two legs or four. If only the sun were always shining, it might pass at a pinch!

And so that case cured me forever of my faith in the animus domini. The cure, admittedly, cost Peter Habermaier 373 thalers and 17½ silver groschen, for I hardly need mention that he lost the lawsuit in the end, costs and all.

For me, though, the money was not spent in vain, and I hope that one or another of your readers will benefit from it as well, so that in the end the money won't have been spent uselessly after all. The world is simply arranged that way: lawyers and doctors gain the experience, and the parties and patients pay for it. You have to console yourself with that; it benefits mankind and science.

The many unpleasant hours that case gave me all the same are richly outweighed for me by the good it did me. For to it, I must say, I owe the fact that I broke the slave chains of theory completely and for good. My old district magistrate did his honest share in that, it's true, for from then on he let no opportunity pass to remind me of that case. Whenever I felt the slightest fit of unhealthy theorizing coming on, all it took from his mouth was the question: "Going to habermaier again, are we?" I have adopted the expression from him ever since, and so I usually refer to the whole period of my life that came to its close with this Habermaier case simply as my Habermaier period. Anyone who can't find a better name for it is welcome to mine.

The Fifth Letter: Volkmar's Proposals for Reforming Legal Study and the Examinations

[German Court Gazette, volume V, 1863, nos. 35 and 36.]

[To make the two letters that follow understandable, I think it necessary to reprint Volkmar's motions here.

Motion of Volkmar, Judicial Councillor in Berlin, for the Fourth German Lawyers' Congress (Mainz, 1863).

"May the Congress declare it to be its conviction that:

The study of law at the universities needs further development. The following measures seem suitable for preparing the way:

1. Exegesis and the history of legal literature are to be given more attention than hitherto.

2. In filling professorships, weight is also to be laid on the lecturer's practical training.

3. The needs of practice are to be met by means of a legal clinic.

4. The period of study is to be extended to four years.

5. A single examination is sufficient. Taking part in it as examiners, in equal numbers, are: a) the lecturers of the faculty, without distinction between full and associate professors and unsalaried lecturers;

b) the members of the courts;

c) the members of the bar.

The persons of the examiners change.

6. The collegia publica, the free public lectures, are an essential element of instruction.

7. Freedom to learn is as necessary as freedom to teach. Abolished therefore are: all compulsory attendance at lectures, every monopoly of the home state's university, every stunting of the estate of unsalaried lecturers."

From the statement of reasons I think I should single out the following.

"How many practitioners, whom time and circumstance forbid to attend the paid lecture courses, would be eager listeners at a free public course that offered instruction and stimulus. It is precisely the public courses that should give the lecturer occasion to apply docendo discimus, we learn by teaching, in practice, and to treat there things that had not been fully known to him before, not sufficiently clear. He reads in Dio 60. 33 how Claudius had Julius Gallicus thrown into the Tiber without further ado for having spoken openly and frankly before the emperor's tribunal, and how Domitius Afer therefore refused his help with the words: Who told you I'm a better swimmer than Gallicus? And he takes up the subject of advocates in a public course.

"In Macrobius he reads the words: Ego taceo, non est enim facile in eum scribere, qui potest proscribere, I keep quiet, for it isn't easy to write against a man who can write you onto a death list, etc.; he tries in a public course to solve the problem of the public prosecutor's office."]

You're right, my dear fellow: Volkmar's motions fall squarely within my task. I ought to seize the good opportunity they give me to say how and where our jurisprudence must get better, all the more so since up to now I have played only the comfortable part of the eternal fault-finder, and voices are already being raised that my criticism is no good, being purely negative. What can be asked of a fault-finder is, if not that he do better himself, for fault-finders don't usually do that, at least that he say how others ought to do better. And what more favorable moment could I imagine than just now, when "the combined strength of the German lawyers," as the mover calls the German Lawyers' Congress, is getting ready to do jurisprudence no less a service than the combined strength of the German princes, meeting at almost the same time in Frankfurt, is doing the German fatherland? Happy are we to live at a time when such things are happening; happy is everyone called to raise his voice with the others and put his own hand to the work; and contempt on anyone who keeps out of it from laziness or timidity!

And yet, I'll confess it to you, at first I hesitated and wavered about doing as you asked. Volkmar's motion, you see, came a few years too early for me. It put me in the position of a hunter whose long-awaited game comes within range before he has even loaded. Mr. Volkmar is already at my last letter, and I am only at my fifth. Or, if that's unclear to you: I was still busy with the symptoms, the causes and the nature of the illness, while his motion is already putting the cure on the agenda, the course of treatment. It is a deserved punishment for my slowness. If I had let the dozen letters I promised you appear in quicker succession, I could have finished the eleventh by now and met Mr. Volkmar on his subject in the twelfth. But events don't wait, especially when the question, as here, is one the mover rightly calls burning: burning in the sense, too, that a man can burn his fingers on it. In a few days it comes up for debate in Mainz. I'm unfortunately prevented from attending the Congress this time, and if I don't want to turn up with my twelfth letter post festum, after the feast, and miss a historic moment that may never come again in my life, I must come out with my twelfth letter now, in spite of every systematic scruple. Plenty of doctors do no better! To apply a remedy, a doctor really ought first to have finished his prognosis and diagnosis completely and be quite clear in his own mind about the nature of the illness. But the patient won't wait. He wants a little something, and so he gets a prescription for licorice water or the like.

I can't offer you much more than licorice water this time either. Not so much because I have nothing else myself (at a pinch I could dig up something better) as because the man who is to take it is in no condition at the moment to stomach anything else. Who in Mainz, among all the pleasures and splendors awaiting him there, will have the urge to read a serious letter on Volkmar's motions, especially since he'll find more to read there than he'd like? There is a fate in which the reader exercises his right of self-defense against the flood of printed matter: being tossed aside unread. Many of the publications you'll be scattering there with a generous hand, as usual, will hardly escape it. If this letter of mine is not to share that fate, I have no choice but to fit it to the mood and the circumstances one can expect in Mainz during those days. It must be written so that, like the brandy the well-known verse speaks of,

	Besides, they say, the brandy wine
	Won't do you harm at midnight time,

it can be picked up at midnight too, when a respectable member of the Congress seeks his bed after the day's work is done, with heavy feet and a clouded mind.

But why a letter at all? The days in Mainz are devoted to the spoken word. For a long time I have felt the urge to give a speech at the Lawyers' Congress myself for once, so as to come home from there covered in glory like so many colleagues and to see my name preserved for the most distant posterity in the stenographic reports. Unfortunately I have so far lacked only the one quality some possess in such enviable measure: courage. Or, more correctly, it always came to me at the wrong time. My decision to ask for the floor has regularly coincided until now with the critical moment when those honorable members of the Congress to whom every session is too long and every social gathering too short had already called out the fateful word "Close! Close!" Their whole share in the debate, according to the minutes, can be summed up in that word. But this time they shan't stop me! I ask for the floor right at the start.

President. The Unknown has the floor.

The Unknown. Gentlemen! After the excellent address we have just heard from the lips of Mr. Piepmeier, it is no easy thing for me to take the floor, and on a question, moreover, whose importance I do not overrate when I call it a question of life and death for our profession and our science. It would try your patience if I came back to the points the previous speaker has already developed in a way that cuts off every later speaker from saying anything better, or even anything new. I shall therefore confine myself to points he touched on less thoroughly.

The aim of Volkmar's motion can be summed up in a word as the improvement of the legal breed. Gentlemen! Let us admit it to ourselves frankly: our breeding is bad! I could have wished that the mover had also had the courage to say this openly, instead of only letting us guess it and read it between the lines. You can't wash a fur without getting it wet; nobody has yet invented a dry wash. Whoever wants to reform should take hold of the matter not with fingertips and kid gloves but with a hearty fist. Least of all should such a man take his leave, as the mover does at the end of his statement of reasons, with the assurance that he "gladly gives up his motions in every respect, if," and so on.

Our breeding, then, is bad, but it must and can be improved. Who could fail to share my joyful confidence, looking at the successes that have crowned the improvement of breeds in fields that rank far below ours? What the farmers have managed, should it be too hard for us? If breeding can improve the wool of the sheep (unrest in the hall), if it has solved the problem of raising animals for meat, milk, wool and bone, should not we too (growing unrest) be able, by a suitable change in the legal fodder, to equip the ripening disciple of Themis, instead of the bare theoretical skin in which he goes shivering into practical life, with a solid fur that will protect him against every inclemency of the weather? (General scraping of feet and grumbling.)

Turning now to the proposals the mover makes to this end, I can only compare my position with that of an unbelieving patient at a spa to whom the spa doctor has given a list of rules of conduct. You know, gentlemen, that doctors of this kind love to pile on the rules: wine, beer, tea, butter, fruit and whatnot are forbidden, the patient may sleep neither longer nor shorter than so-and-so many hours, not after meals, not before meals and so on. In short, everything down to the smallest detail has its strictest order and rule. But the skeptic soon learns that all this rigor is unnecessary, and in a confidential moment the doctor may well admit he's right, and that many of these prescriptions are there only to impress believing souls. In the same way I distinguish among the mover's proposals between those he really means in earnest, which I take to be the ones on the practical reform of legal study and on the examination, and those included merely to impress or decorate, which I take to be the ones on the history of legal literature, the public courses, the exegetical courses, and the extension of study to four years. The extremely liberal concession the mover makes through them to the interests of pure science shuts the mouth of anyone who might want to scent a danger to pure science in his reforms. I can state that they have fully achieved this purpose, and that they have been received with great satisfaction, especially in academic circles. The students I had a chance to speak to were in the most joyful excitement over the extension of study to four years, and several of them begged me earnestly to take up this point above all, with all my energy. They find, you see, that the three-year course is too short for the purposes for which, according to the statement of reasons, they use it,³⁴ especially where compulsory attendance at lectures still exists. They are convinced that once compulsory attendance is abolished, as the motion proposes, and the academic triennium is extended to a quadriennium, they will no longer find it hard to carry out their task perfectly. At that price they are even prepared to recognize the necessity that "the apple of God's eye, the philosophy of law, natural law," be tended with all love, and to put up with lectures on the history of legal literature, exegetical courses and public courses of every kind, provided they don't have to attend them and aren't examined on them. This part of the public, then, gentlemen, we'd already have on our side, and that is no small thing; for whoever has youth on his side owns the future. (Voices: Very true! Bravo!)

Most of the lecturers I spoke to were highly satisfied too, the unsalaried lecturers especially, over being taken onto the examining board and over the creation of the two new professorships of exegesis and literary history, which would yield quite a handsome number of new posts across Germany and Switzerland. Only the recipe for a public course that the mover gives in his statement of reasons didn't appeal to them much. Everyone found it convenient enough, to be sure. You need only have questions that "had not been fully known to you before, not sufficiently clear," and read somewhere an incident or an anecdote or the like bearing on them, and "you take up the subject in a public course." For the purpose, they thought, you wouldn't even need to extend your reading, like the mover, to Dio Cassius or Macrobius, books not everyone finds the leisure to read. The most ordinary reading matter, even a newspaper, an advertiser, a novel, especially a modern legal one, would be enough to supply that sort of stimulus. But to give a public course you need a public that wants to hear it, and they feared that the check the mover writes them on "the many practitioners whom time and circumstance forbid to attend the paid lecture courses" would not be honored. Those practitioners would probably find it far more convenient to follow his recipe and make up their public courses for themselves.

If I am to give my own judgment on those doctrinaire proposals, I must declare myself against them in the most decided terms. What doctor will prescribe for a patient who can't stand hot baths that he stay in them longer and turn up the temperature? The patient, however, is the student, and the hot baths are the theoretical lectures. By extending the three-year course to four years, by literary history, natural law and exegetical courses, the patient gets deeper and deeper into theory. The ill we're supposed to cure gets worse instead of better!

Gentlemen! What our patient needs is exactly the opposite (Very right!): cooling down, cold compresses, ice packs round the head, leeches, so that he comes to himself again, and so that he can be let out without danger into the fresh air of practical life. Teaching must become more practical; the proposition that jurisprudence is a practical science must become a truth. So many excellent things have already been said about this in the debate so far that I'll do well, in my own interest, to confine myself to the two points that in my view have not yet been fully exhausted: the legal clinic, and the motion to reduce the examinations to a single one.

The idea of a legal clinic, as I had occasion to observe, struck many people as startling. It didn't surprise me in the least. All that is needed is to understand it in connection with the history of our science's development. On that condition it appears not as something sudden and wholly new, but as something necessarily produced by the direction our science has taken so far, as its final completion and culminating point, so much so that I maintain: if the mover had not said the word, someone else would have, I would have. Gentlemen! In every science there are periods when its own rooms grow too narrow for it, when it must go out into the open to refresh itself and recover, like one of us when he has sat behind his desk of case files the whole year round and needs a trip to recover. I call these the travels of the sciences. A science goes off to its neighbors and dear friends, lodges with them for a while, hears and sees all sorts of new things, and comes home refreshed, strengthened and enriched with new views. In the days of the philosophy of nature, for instance, natural science stayed with philosophy; in the Middle Ages philosophy stayed with theology, to say nothing of other examples. In the same way our jurisprudence has felt the need from time to time to pay her sisters a visit: formerly history, philology and philosophy above all, but in the last decade the natural sciences and medicine. The present phase in the history of our science's development could be called the natural-scientific one, for there is already a "natural-scientific method" of its own in jurisprudence,³⁵ or better still the medical period. The educated lawyer of today, after all, is supposed to subject legal institutions to anatomical and physiological examination if he is to understand them properly, and we practitioners can hardly stir in our professional work without doing something medical. We dissect the case like the best of anatomists; like the doctor at the sickbed, we need a diagnosis; and so on. But where can one acquire this legal-medical training except in the legal clinic? The motion to set one up, then, is so far from surprising that one might rather be surprised it wasn't made long ago. All it still needs is a supplement and completion, which I shall have the honor of laying before you now.

The teaching of medical students, which must always be our model, does not, as everyone knows, begin with the clinic at once, but with the theoretical subjects. To teach those instructively, collections of every kind are needed: an anatomical one, a pathological-anatomical one, a physiological one, a pharmacological one and so on. Now it seems to me an indispensable requirement of practical teaching in jurisprudence, too, to help the imagination along with corresponding collections. My conviction that these collections, and the teaching by sight to be done with them, are necessary rests on an experience from my university years. The teacher with whom I heard the Pandects was not only an outstanding Pandectist but also one of the heaviest snuff-takers, and he always kept his golden snuffbox lying beside him on the lectern. Whether it was this outward nearness or the inward closeness in which it stood to his heart, in short, all the lawsuits in which Maevius and Titius were ceaselessly entangled with each other for a whole semester revolved round the snuffbox. With the same certainty with which we could expect the familiar figures of Titius and Maevius to appear in every new case, we could count on the golden snuffbox being the object of their dispute. It was as if our teacher had felt that to keep the balance between antiquity and the present, his ancient parties needed a thoroughly modern object to fight over. If Titius found himself having to deposit something with Maevius, it was sure to be the golden snuffbox. Did he want to lend something, pledge something, exchange, buy, give, bequeath, conclude an innominate contract? The snuffbox, every time, so that you'd have thought trade and traffic in ancient Rome, and all the interests of Roman life, had turned entirely on taking snuff and on snuffboxes. Now and then the snuffbox did rise above itself and turn into a praedium rusticum or urbanum, an estate in the country or in town, to make clear to us the servitudes over land, mortgages and other legal relations in real property. But this inexhaustible versatility of the demonstration object had its drawbacks. Of one of my acquaintances, with whom I used to go over the Pandects, I dare say outright that the snuffbox kept him from becoming a proper lawyer. The eternal sameness of the object on which his attentive eye hung without a break and with undiminished thirst for learning, which he devoured again and again with a greedy look, never let the differences in its legal relations come through to him. His attention kept shooting past the concepts and over onto the snuffbox, and at the end of the hour he had retained almost nothing of all the demonstrations except the snuffbox. Just the same at the end of the semester. The sum of all his knowledge came down to the snuffbox. The snuffbox had become the essence and the grave of all he knew.

This experience, gentlemen, brought me even then to the insight that teaching law by sight requires a variety of demonstration objects. Following this thought further, I have at last arrived at the idea I now have the honor of laying before you.

At every German university a legal demonstration cabinet, or museum, must be founded for teaching law by sight. It falls into two departments, one for the objects of rights, the other for the subjects of rights; both are at the lecturers' disposal at all times for the purposes of teaching. The cabinet of objects comprises only movable things, but those so completely that calamities like the one above are prevented in the most thorough way. Teaching by sight as regards immovables, for example res publicae and religiosae, things public and things sacred, servitudes over land, superficies and emphyteusis, is carried out by excursions into the neighborhood. The guiding idea in setting up the collection is that for every concept, for every legal relation, a suitable object is chosen and assigned to it alone, so that the two, concept and object, combine in the listener's mind into one single picture. By this well-known trick of memory, the concepts would be impressed on the mind most easily and most firmly. Supposing a book were chosen as the object for the commodatum, the loan for use, every book the student set eyes on would bring the concept of the commodatum before his soul again; along with the object, the concept would pass into his memory. All these objects would therefore be given firmly attached labels and arranged according to the system. In the Institutes and the Pandects, then, the objects of the General Part would come first: simple and compound things, principal and accessory things, appurtenances, fruits, fungible and consumable things. Anyone who had seen this part of the collection even once would be safe forever, by the mere seeing, against any danger of confusing the concepts or applying them wrongly. For good measure, the demonstration objects could be handed over to the listeners after the lecture for a closer look, and in general they could be allowed to visit the cabinet at any time.

A student taught this way, for example, would have it stamped on his mind forever that iron nails, candles, firewood and so on belong to the category of consumables, or consumptibilia. I, by contrast, still remember from my student years a lively quarrel with an acquaintance of mine who denied that those objects should be counted among the things that, as people called them then, are "eaten up," because nobody is in the habit of eating up iron nails, tallow candles and firewood.

After the objects of the General Part would come those of the Special Part. Under ownership, for instance, an instructive collection for the doctrine of accession and specification, with two objects each for specification: the original and the thing made out of it. For the law of obligations, one object would fall to each contract and each application of particular legal interest. The various varieties of the contract of sale, for example, would have to be fully represented: sale on approval, sale by sample, sale per aversionem, in the lump, sale per mensuram, by measure, and so on. For the sale of an inheritance one could, to save costs, borrow the inheritance from the law of inheritance. Otherwise, though, to prevent any danger of confusion, the same object must never be used for two different legal relations. On the contrary, for some relations it would be advisable to acquire two completely identical specimens of the demonstration object, one to represent the normal form of the relation, the other its abnormal form, in the same way as the medical man sets a pathological-anatomical collection beside the anatomical one. For example, one of the two commodatum books would show the object as it was handed over and as it is to be returned, the other as it would look after the borrower's culpa, his fault, had soiled it with an ink blot.

I won't tire you, gentlemen, by piling up further examples. The idea of the cabinet of objects would be carried out for the other branches of law in the same way as here for the Pandects: for the law of bills of exchange, for example, where the various kinds of bills and the separate events in the life of a bill would be shown by specimen forms.

Such a cabinet, set up systematically and completely and used correctly, would work wonders, and would introduce the listener to life without his noticing and without the slightest effort. The costs would not be altogether negligible, but they would be richly outweighed by the benefit. The animals required would probably come dearest, if only because they are capital that eats. Among the animals, though, there must not be lacking: for the contractus socidae, "iron cattle," stock leased out on condition it comes back undiminished; for the aedilician actions, a horse with some defect, the staggers, say; for the actio de pauperie, a few animals with faults contra naturam sui generis, against the nature of their kind, which for that very reason, like the horse, could be had cheap; for the usufruct, a ewe with a lamb. Only the herd needed in the General Part as an example of a universitas rerum distantium, a whole made of separate things, would have to be shown by way of an excursion, to save money.

The second department of my collection, the cabinet of subjects, which would have to supply the necessary material of subjects of rights, would present far greater difficulties, and I don't hide from myself that in the systematic completeness I see before me in my mind, it has little prospect of being realized in the near future. That shall not stop me, however, from laying the idea before you now at least. Let the seed sprout only after centuries!

The task of the cabinet's, or institute's, subjects would be to act out cases from start to finish before the listeners' eyes. They would make contracts, wills and codicils, draw bills of exchange, conduct lawsuits, give evidence, swear false oaths, certify documents, issue warrants of arrest, commit delicts and crimes: in short, each and every thing that is at all possible in the field of law. To save costs, several roles that could stand it might be played, as in small theaters, by one and the same person. The institute's seller and buyer, for example, could act at the same time as landlord and tenant, lender and borrower and so on, and in short conclude all the two-sided contracts. Only for the one-sided ones would two others have to be engaged, to stress the difference between two-sided and one-sided transactions. They would also have to take on all the other one-sided transactions, making wills and entering upon inheritances, for instance, but would in any case have to stand out from the performers of the two-sided transactions by some outward mark: the contrast of thinness and stoutness would serve best. Despite this simplification, though, the number of persons to be engaged would still be considerable. I would have to insist on the following as wholly indispensable. First, for procedure: a judge, two attorneys, the necessary collection of witnesses, competent, incompetent and suspect, and a bailiff. To save costs, these persons would also have to be used for criminal procedure and, in civil matters, for the second and third instance. For the action against a judge, where two judges would be needed, the judex qui litem suam fecerit, the judge who made the case his own, could be played by any available member of the institute. For jurors, so far as the institute's staff didn't suffice, one would have to hire street porters temporarily for each case. For private law, the stages of life would first have to be represented from the General Part: an infans, then. (The nasciturus would be assigned to the woman who, at the missio ventris nomine, the putting of the unborn child in possession, would take the role of the venter, the womb; for obvious reasons she would not be engaged permanently but hired each time she was needed.) Then an infantia major, an infantiae proximus and a pubertati proximus, a pubes, a minor and a major. The persons taken on for these could stay in the institute permanently and move up from one stage to the next; on coming of age, they would have a claim to the next post that fell vacant. As for the difference of sex, one could disregard the hermaphrodite, or refer the listeners to the anatomical cabinet. A few women would have to be on hand, though, at least one unmarried and one married, to illustrate betrothal, marriage, the dowry, the paternity suit and the SC. Vellejanum, the decree of the Senate that forbade women to stand surety. Under certain circumstances, namely when they found themselves in a certain condition, they could also be used for the missio ventris nomine, with a change of costume every time, of course. For the role of a persona turpis, a person of ill repute, on the other hand, a suitable person would have to be hired when required. This would not only keep costs down; it would be called for by the consideration owed to the other persons in the institute, and even for the sake of the students. Among the men, a miles and a rusticus, a soldier and a countryman, and a blind man could not be missing, if only because of the forms of will. I would not recommend taking a furiosus, a madman, into the institute. Indispensable, however, would be the diligens paterfamilias, the careful head of household, and as his counterpart, to illustrate culpa lata, gross negligence, an unusually careless and slovenly person: a post one might fill with a poor poet, which would do the Schiller Foundation a service at the same time. From the Special Part of private law, the tutor and the curator would be added to the persons named above; for the rest one could make do with those already there. For criminal law, on the other hand, there must be an ample supply of criminals, for by our supreme principle the roles of the petty thief, the grand thief and the aggravated thief, the murderer and the manslayer could not be filled by the same persons. (Unrest in the hall.)

President. I must ask the speaker to be somewhat briefer. The examples given seem to me quite sufficient to explain his idea.

Voice from the hall. How does the speaker propose to represent an absens, a missing person? (Laughter.)

Unknown. I don't fail to see the difficulties in the way of carrying out my idea with complete consistency, and a certain resignation is quite unavoidable here. I confess, for instance, that I have not yet managed to represent the juristic personality of a charitable foundation. But, gentlemen, that doesn't stop us from adopting the idea as far as it can be carried out now. With what vividness the practical life of the law could be made plain to the listener with the means I have named alone! How this legal theater would stir and fire his interest, help his imagination, lighten the work of his memory! You know, gentlemen, that some teachers of law still hold on to the distinction between tutor and curator for the law of today, and perhaps you still remember from your university years how much trouble it costs a poor student to grasp it. How clear it would suddenly become if the teacher had the institute's tutor interpose his auctoritas before the listeners' eyes, and the curator merely give his consent! How plainly it would come to light that the one completes the incomplete personality, while the other only takes part in managing the property. The curator could also be used, beyond the purposes of academic teaching, in a way that would be the greatest blessing to the trading public. The view that a minor cannot bind himself by his contracts without his guardian's approval has, as everyone knows, a good many supporters. Only a few years ago the Supreme Court of Appeal at Rostock dismissed, on this ground, a merchant's action against a lieutenant who was a minor for clothes supplied, requiring for it an allegation that the lieutenant was still enriched at the moment of litis contestatio, when the issue was joined.³⁶ This view simply won't go into the plain head of the layman. No waiter will hesitate to bring a lieutenant the bottle of wine he ordered without asking whether, despite his mustache, he might still be a minor, and whether, despite the splendid financial circumstances the waiter knows him to be in, he might have no cash in his pocket. If unfortunately that is the case, or if the guest has simply forgotten to pay, the pitiable waiter is condemned to sue the lieutenant "up to the amount of the enrichment at the moment of joinder of issue"! On this view the doctor called out at night to a sick man would, to be safe, first have to ask whether the patient was a minor, and if so, have the curator fetched out of bed to give his approval. The apothecary would have to do the same before handing over the medicine, and before guardian, doctor and medicine arrived, the patient might in some cases already have departed this life. An innkeeper would have to turn away every guest who might possibly be a minor under guardianship, or have himself paid in cash in advance. No tailor or shoemaker could measure for a coat or boots, or at least make them, without the guardian's special approval or payment in advance. That all these good people don't do so, that as a rule they haven't the faintest idea a rule of law so abnormal is in force until they make its acquaintance at heavy cost, daily life can convince anyone. How instructive it would be for them, then, if this rule were put before their eyes now and then, say at fairs and public festivals, in vivid, dramatic form by our institute's guardian. The guardian would have to accompany his lieutenant at every step, as this rule of law tacitly requires, and at the conclusion of every transaction either give his consent or open his own purse. To mark his ward's complete dependence even more forcefully, he could, if the ward weren't too heavy, carry him on his arm like a baby in swaddling clothes.

If I may be allowed to present a few more such tableaux — (No! No! To the point, to the point! Great unrest.)

President. I must ask the speaker, in his own interest, to keep to the point. He was going to speak about the legal clinic; he seems to have forgotten that.

Unknown. Gentlemen! But I'm keeping to the point the whole time. What are my collections but the consistent carrying out of the idea of the legal clinic? How can the teacher give clinical instruction without the necessary material? And you can't expect him to acquire it at his own expense; the costs are far too great for that. For a mere outpatient clinic, a walking clinic, that is, the legal excursions I've mentioned several times, won't do the job. If clinical teaching is to be really fruitful, it needs, as with the medical men, an inpatient clinic as well, and that, as I've said, is impossible without my cabinet. I'm finished with this subject now; just allow me one more remark. Setting up the cabinet of subjects, or, as I'd rather call it, the legal institute, would seem to involve such enormous expense that our German parliaments would hardly grant it. But handled correctly, the thing can be set up very cheaply. Most of the posts could be filled with lawyers, and you know, gentlemen, we aren't used to making high demands. Many of us serve the state ten years and more for nothing at all until at last we get 300 thalers a year, and a man who can do that can do it at the legal institute too. If the lack of income were made up for by a tempting title, Councillor of Instruction, say, or Councillor of the Institute, or if a daily allowance were even granted for each performance, I don't doubt that a great number of applicants would agree to do their practical training at the institute. Another means of economy would be to create salaried posts but have them filled by acting appointees without salary, as is done in some German states with great success. For decency's sake, a few posts at full salary could be given out as pensions to retired judges, loyal elderly advocates and hopeless unsalaried lecturers. In short, I am convinced that the costs could be brought down to a level out of all proportion to the benefit of the institute.

I turn now to the question of the examination. Up to now I have been in the happy position of supporting the mover and developing his idea further. On this second point I unfortunately find myself forced to oppose him in the most decided manner. Far from believing that the examinations should be reduced, I am, on the contrary, of the view that they must be increased. (Oho! Oho! Loud grumbling.) Yes, gentlemen, the examinations must be increased, and I don't doubt that I shall win you over to my view despite your lively objections. I sum it up in one proposition: the examination is eternal!

On the question of the examination I can recognize only two views as justified. Either there is no examination at all, or it must be repeated without a break as long as a man lives. Everything else is a pitiful half-measure. For either the examination is superfluous or it is necessary. If the first, it should be given up altogether; if the second, it is necessary for as long as the reason for its necessity lasts. The purpose of the examination, as everyone knows, is to give the state the assurance that the man to be appointed has the required measure of knowledge, and indirectly to make him acquire it. Now if knowledge were a lasting possession, acquiring it once, and so one examination, would be enough. But as a possession of the mind, knowledge unfortunately has the same property as spirits of wine: it evaporates with time. If the cask isn't filled up again and again, one fine day it's empty. How many of us would trust ourselves to conjugate τύπτω, "I strike," the verb every schoolboy learned his Greek on, all the way through, and yet each of us managed far harder things in Greek at school! What follows from that? It follows that the examination must be repeated from time to time all our lives. If each of us, judge or attorney, needs a definite measure of knowledge, and the state thinks it its duty to make sure by an examination that the requirement is met, what guarantee does an examination held thirty or forty years ago give that the required measure of knowledge is still there today? Forty years ago the cask was full to overflowing, but now perhaps there isn't a drop left in it. What matters is not only the first filling but the topping up. If people think the first can only be achieved by compulsion, how will they do without compulsion for the second? There is another consideration besides. The lawyer is supposed not merely to preserve the original capital of knowledge he brought with him from the university, but to increase it. He is supposed to keep pace with the progress of science, to go on educating himself without a pause. I ask again: what other guarantee is there that he will do it than an examination repeated at intervals?

Gentlemen! Forgive the frankness with which I express myself, but I speak as I think. In my view it is irresponsible for the state to entrust the life, the honor, the security and the property of its subjects to persons of whom it is not convinced that they are fully equal to their task, not at some time or other, but still, now. With equal right a railway administration could rest content with testing its carriages once, at the very beginning, to see whether they were fit for service. But for the same reasons that call for repeated testing of railway carriages, the same is called for with lawyers, who after all may be regarded in a certain sense as freight wagons — (Voices: That's going too far! We won't have such a comparison! General unrest.)

President. I must call the speaker to order for this unseemly comparison. (Bravo!)

Unknown. Gentlemen! I apologize for the comparison, which escaped me without thinking. Allow me just a few more words. (No! No! Close! Close!) Gentlemen! I should like at least to put a motion. (Close! Close! Other voices: He must at least be allowed to put his motion!)

President. Surely you'll allow him his motion?

Unknown. My motion is an amendment to the first sentence of no. 5 of Volkmar's motions and reads as follows:

The review of the knowledge a practicing lawyer needs at all times, that is, the examination, must be repeated from time to time, without regard to age or position.

Gentlemen! To recommend this motion I hardly need add anything to what I have said. Only with this arrangement does the idea of the examination reach its full logical unfolding; only with it does it become a truth. Everything else is miserable patchwork. For the same reasons for which the state authorities audit the public treasuries from time to time, they must also audit the knowledge of lawyers. That knowledge represents a capital far more valuable than the contents of those treasuries: the intellectual working capital with which the state carries out its highest and most important task, the administration of justice and the maintenance of the legal order. The thought of such an audit has something sublime about it. It would be a grand inventory of the entire legal intelligence of the land, a spiritualized revival, worthy of the nineteenth century, of the idea of the ancient Roman census. Everyone would have to be assessed; nobody could be left out, not even, for instance, the Minister of Justice. (Laughter.) What a sublime thought, gentlemen, to see the Minister of Justice subjected to the examination and possibly made to give up his place for mistaken views of constitutional law or for gross offenses against the theory of the art of interpretation! Gentlemen! This extension of the examination to all servants of the state and to all lawyers, practical and theoretical, without distinction, would be a triumph of justice and of equality before the law, and I can imagine none higher or finer. It would inspire in the people a trust in lawyers such as they hardly enjoyed even in ancient Rome.

You'll ask me now: if everyone has to play the part of the examinee, who will take on the part of the examiners? Nothing easier: all it needs is to carry the Bell-Lancaster method, in which the pupils teach one another, over to the examination. Put briefly, the examination is mutual. One year one half of us examines the other, the next year the other half examines us, and so on. What an uplifting spectacle, every year anew, to see the entire legal profession locked in a wrestling match of the mind before the eyes of the whole country, for I am assuming, you see, that the examination will be public. How the people would flock to it! What an opportunity to distinguish oneself and stand out! Perhaps, following the example of the gymnastics clubs, or, to call on shining models from older times, after the manner of the Olympic Games of the Greeks or the tournaments of the Middle Ages, it could be made a national festival. (Great hilarity.)

Gentlemen! You may laugh, and perhaps I've gone a little too far in decorating my idea, but the idea itself, the thought that the examination is eternal, is entirely justified and, what is more, it can be carried out. (Oho!) Yes, gentlemen, it can not only be carried out; in several German states it is already being carried out. In Prussia there are already three examinations: how far is it from there to realizing my idea? (Unrest. Close! Close!) In China — (Close! Close!) Gentlemen! Must I close with China, then? Is Germany then — (Close! Close! Close! Because of the great unrest, nothing more of the speaker's closing sentence could be made out at the stenographers' table but the broken words: Examinations ... Chinese institutions.)

The Sixth Letter: The Literature, and the Outside Pressure to Write

[German Court Gazette, New Series, vol. 1, pp. 309 ff., 1866.]

The idea I put forward in my first letter, which saw the light of day, I'm horrified to see, as long ago as no. 41 of the year 1861, has been carried out more splendidly than I ever expected. The mask of the "Unknown" has in fact become that domino in which the whole company of the palace guard, one after another, went to the court masked ball and helped themselves at the buffet. Now this Unknown, now that one slips into it, without one knowing anything of the other. Now I'm the civil-law Unknown, now the criminal-law one, now the civil-procedure one,³⁷ and lately (issue 2, p. 153) even the "extra seriem" one, the one outside the series. I split and multiply before the eyes of the public like a worm cut into pieces. Every piece wriggles and crawls on its own, and all these wriggling, crawling Unknowns are, in the end, me. If it weren't so eerie to grow unsure of one's own self and keep running into nothing but doubles of oneself, one might really call it an enviable lot to multiply like this, and to display a great literary fertility without any trouble or effort of one's own. Why did Savigny and Puchta never hit on the idea of putting on someone else's cap and sending their works into the world under the name of, say, Brackenhöft or Rosshirt? What a surprise it would have been for those two to get their hands on a work of their own that they actually understood! You know that Hauff published his "Man in the Moon" under Clauren's name; the public never suspected the fraud. Who knows whether the legal public isn't played a similar trick more often? At least, reading many works by recent authors, I can't fight off the suspicion that they don't come from the authors themselves, but that a damned old washerwoman is up to mischief in our literature. Not long ago I had another piece of hers in my hands: a whole tub of washing water, some 300 pages long, with nothing in it but one small, thin and, what's more, incorrect thought. If I ever catch the creature, who doesn't even spare men of name and standing, she'll be sorry! Couldn't you get the Law Society in Berlin to offer a reward for the capture of the legal washerwoman who plays her game under the name of legal authors?

Whatever the truth of that suspicion, in my own case it's a fact: others are writing under my mask. Let others complain that people steal their eggs of the mind and pass off the hatched chicks as their own. With me the idea of literary theft is turned round in the most pleasing way: people secretly lay their eggs in my nest and hatch them under my name. What astonishing learning I display in every field of law! Roman law, Prussian civil law, legal history, criminal law, civil procedure: nothing is foreign to me! What I'm most eager to see is what knowledge of constitutional law I'll display next. Knowing anything there is the great art just now. The constitutional law of the German Confederation, of Hanover, of Electoral Hesse, of Nassau: it has all gone missing overnight. Only the professors' lecture notes are left. They lie idle in the desk drawer, sulking at wicked Bismarck. Perhaps they too are dreaming of a happy resurrection, when the world that slipped out from under their hands will come creeping back, repentant, under the notes, and the deposed sovereigns will return to their "realms" and their "peoples."

But I'm wandering off again, as is my habit. What I meant to do was to thank publicly all those kind people who have laid their eggs in my nest unasked. I can't do it privately, since I don't know their addresses, and you, my esteemed Mr. Editor, simply won't give them to me. I welcome you all under my wings, unknown brothers, or rather fellow brooders! But above all you, newest arrival in the nest, who send your contributions anonymously with a Leipzig postmark. Promising offshoot of mine, bring more such gifts as your first letter (no. 16 of 1866, p. 61); dive more often into the wide sea of legal nonsense, to bring up from the depths of the abyss such precious pearls as Strippelmann's mother-in-law, a cabinet piece of the first rank. United, all of us, and anyone else who cares to join us, will begin the fight against the excesses of our literature afresh, and the tinsel finery of learning, of acuteness and of profundity in which they have decked themselves shall not stop us from recognizing them in their true shape and exposing them. Let others fight them with heavy artillery, bringing up batteries to sink gnats and flies. We, for our part, will make do with the fly swatter and the jester's slapstick: one well-placed blow with it often does more than a whole cannonade of passages from the corpus juris. I don't know which Englishman it was who owed his life to laughter. He had an internal abscess that the doctors couldn't reach with fire or knife, and it burst when he saw his poodle sitting in front of him in a full-bottomed wig and broke into hearty laughter. Our jurisprudence has no lack of internal abscesses either. Let's try the poodle and the full-bottomed wig; perhaps we'll make it laugh, and so bring it back to health. Anyone who has once laughed at an unhealthy view is protected against it forever; the diaphragm is a most valuable part of the understanding.

Every voice agrees that our administration of civil justice is not quite in order. The theorists, with Savigny at their head, think the root of the trouble is that practice is not theoretical enough; the practitioners, that theory is not practical enough. One explains the patient's upset stomach by his having taken too much medicine, the other by his having taken too little. Every day new prescriptions are written for him in the shape of fat books, none without the comforting assurance that the patient has been on the wrong road so far, but that the way to his salvation has now been found. Legal history, exegesis, philosophy of law, political economy, the study of nature, the Church Father Clement of Alexandria, Shakespeare, Portia and the Doge of Venice in The Merchant of Venice: what isn't supposed to give him better digestion and a sounder constitution! Poor patient, if you wait until your physicians have agreed on what is wrong with you and how to help you, you may die on their hands. Meanwhile just go on quietly with your bodily functions: petitioning, registering, presenting, serving, decreeing, publishing, defaulting, appealing and all the other -ings. In Seuffert's Archive of Decisions of the Supreme Courts you have a faithful mirror of yourself and a reliable guide. In science's Cloud-Cuckoo-Land they may brand you a heretic for trusting yourself to his guidance rather than theirs. In my opinion you do well, for no one can show you the way from heaven; your guide must come down to earth, and as long as science scorns to do so, it has only itself to blame that you put no real trust in its guidance. I have only one fault to find with Seuffert's enterprise, and I shall try, on my part, to make it harmless by a new enterprise, which, as the author of the idea, I have the right to christen, and which I hereby christen the Anti-Seuffert. If you want to show someone the path of virtue, it isn't enough to hold up shining examples of the virtues before him; you must also put the frightening examples of vice before his eyes. But Seuffert gives only the shining examples. How could it be otherwise, since he confines himself to decisions of the supreme courts? What's missing is the frightening examples: judgments that make plain ordinary common sense lose its hearing and its sight. I set great store by frightening examples. My whole upbringing, which I owe to my grandfather, was founded on them. What's the use, he used to say, if I hold up shining examples of moderation before the boy to teach him, say, the virtue of moderation? One drunk man, to say nothing of a plastered one,³⁸ preaches this virtue to him more forcefully than a hundred sober ones. If I've never in my life been tempted to ruin my stomach with too many plums, I owe it solely to the fact that my grandfather, who was out for every frightening example like a vulture, led me to the bedside of a boy who had given himself a ferocious colic, with vomiting obbligato, by eating too many plums. To come back to my Anti-Seuffert, I ask: what impression would it make if judgments of the kind I have in mind were publicly nailed up, for the use and edification of mankind and the special deterrence of lawyers, like owls on the barn door or false coins on the shop counter? A gallery of legal monstrosities, a cabinet of legal pathology! Imagine the right anatomist at it: with what relish he would dissect and prepare such showpieces, slit open the belly of the nonsense, so to speak, and bring to light in its entrails the blockages of an undigested theory. What a service to the administration of justice! A judgment prepared in this way and kept in our legal-pathological collection as a general deterrent would never see the light of day a second time.

Admit it, you envy me this idea. To disarm your envy, I'll grant you a share in it too. You shall be the Anti-Seuffert's publisher; that is, from now on it shall form an integral part of your journal. Whatever usable material comes my way I'll send you, and if I find the proper support among my colleagues, it would be a wonder if the Anti-Seuffert didn't become a standing feature of your paper from now on. I hereby urgently ask everyone in a position to give this support to give it; contributions may be sent for the time being to the editors of this journal. It's settled, then: from now on we're partners in the Anti-Seuffert. "But the scandal the thing will cause," you say, shaking your head. My esteemed patron! Ever since Pythagoras slaughtered a hundred oxen to the gods to celebrate the discovery of his well-known theorem, all the oxen, as a well-known saying has it, tremble and bellow at every new discovery. What living creature doesn't cry out when it's about to be slaughtered? Any outcry from our colleagues would only prove to me that my Anti-Seuffert has the right to take its place among the most important discoveries of all the centuries. In any case, since I care about the thing and not about persons, I'll gladly concede that the name of the case and of the court will be left out entirely, or replaced by invented names. Anyone who still feels hurt should consider that this kind of criticism of his judgment is infinitely mild compared with the kind once usual in Germany. In the old German procedure, "rebuking the judgment" meant that the judge had to defend his judgment with weapons in his hands. How our streets would run with blood if this way of challenging judgments were still the custom! Apart from the Privy Councillors of the Supreme Tribunal and the Supreme Court of Appeal, whose judgments, after all, can't be rebuked, no judge would be sure of his life. Promotion, oddly enough, would gain by it. Wouldn't you agree that next to such a slaughter of judges in the flesh, the slaughter by criticism is mere child's play?

With my Anti-Seuffert a weight has fallen from my heart that I've carried around with me for a long time, and now I can go on my way unhindered. From now on it will lead me, leaving practice aside, back to theory alone. A long, long road, but thank God not one to make the time seem long: I've seen to that.

Do you still remember my fourth letter? I have to pick up from that one; the fifth was a carnival joke and doesn't count. I described to you how I entered practice as a harmless young man with complete faith in theory, and how that faith was then thoroughly shaken by the bitter experiences I had with theory in application, and gave way to a way of seeing things that I summed up earlier in the proposition that you must first have lost your faith in theory completely before you can use it without danger. You'll understand that by "theory" I don't mean the writings of seasoned practitioners, nor those of theorists on the philosophy of law, legal history and other harmless disciplines. I mean the works of pure theorists on the law actually in force. In my opinion, with few exceptions (see below), writing on this subject ought to be forbidden them once and for all. Justinian already saw what comes of writing, when he strictly prohibited all authorship on his codes. The fine, simple Edict, he reports, had been so tousled and plucked to pieces by the writers that nearly the whole of the law had fallen into confusion. Now he had restored order, just barely; if the book-writers got at it again, the whole old story would start over. Therefore any of them who dared such a thing was to be punished as a falsarius, a forger, and his books committed to the flames. But what can fire and sword do against writer's cramp! Rumor had it of a certain recent lawyer that even in a place where one usually seeks relief of a different kind, he sought relief in the literary direction too, as if, at this spot so fateful for the consumption of literature, he had to restore the balance between consumption and production: dulce est desipere in loco, it is sweet to play the fool in its place. Old Glück in Erlangen couldn't bear the thought that his listeners should have to make do with just his lectures, his dictations and his printed sheets on the Pandects. He sat down to give them a little commentary on the Pandects in six volumes to take home for private study. Faithful soul! When he died he had got as far as 34 volumes and somewhat past the middle of the Pandects. Then came Mühlenbruch, then Fein. The first breathed his last at the title si quis aliquem testari prohibuerit vel coegerit (XXIX, 6), the second at XXIX, 7 de jure codicillorum, the first leaving behind 9 volumes, the second 2. How many generations of lawyers will die over it before the work is finished! What will the world look like then! Why has none of the many stiff-necked scholars of Roman law who want to uphold every letter of the corpus juris ever hit on the idea of declaring Justinian's penal provision above to be in force, and denouncing old Glück or Savigny or Puchta as a falsarius? But there, suddenly, their love of the law runs short. Who chops off his own fingers? And yet there's no help for it: if things are to get better, we must go after all this scribbling. The evil can't be rooted out entirely, of course, but at least we must see to it that it's kept within reasonable bounds. After long thought I've arrived at an idea that I'll take the liberty of laying before you now.

Let's first establish where the trouble really sits. In my opinion it lies in a traditional arrangement of our German universities: they open their gates only to a man who can show a "literary achievement," that is, who has had something he wrote set in type and printed. The road to a professorship runs through the printing shop: no typesetter, no professor! What German unsalaried lecturer won't write his fingers raw for such a prize? If his first work doesn't succeed, a second and a third are quickly there, and he goes on bombarding the locked gate with articles, monographs, textbooks and so on until at last it opens to him. You don't bombard fortresses with six-pounders; that takes heavy artillery, and the thicker the book, the more effective the result. Hence that curse and terror of our literature, the artificial and violent inflation of the thinnest content to the greatest possible volume: one small, sorry, threadbare thought with a whole book built round it. And sometimes even the thought is missing. There they stand, then, the disciples of science, drawn up in rank and file, and every fair catalogue, every issue of a legal journal brings a new cannonade. As soon as one has been happily let into the fortress, another has stepped into his place and starts bombarding it afresh. And it will go on like this until the Day of Judgment, unless our governments and the German nation show some sense.

But what harm does it do, you'll say? Why stop people from taking this harmless exercise of mind and body? Whether you require them to turn somersaults or write a book to vault into a professor's chair is, after all, a matter of complete indifference. The books they write don't bite anybody; anyone can get out of their way, and whoever doesn't, whoever buys them and reads them, has only himself to blame for any harm. No, my most esteemed friend, the matter is otherwise. Bad goods spoil the market for good ones. Ameier, Bmeier, Cmeier and the other Meiers right through the alphabet to Zmeier on correal obligations, natural obligations, indivisible obligations and so on, written purely from the sublime standpoint of the "purely scientific method," without the slightest reference to the cases and needs of our present-day life, at last make a poor practitioner so skittish that in his annoyance he finally turns his back on the whole literature. Why has our German linen industry as good as lost its old sales abroad? Answer: because the dishonest weavers mixed cotton into the linen. And the dishonest ones have cost not only themselves their sales but the honest ones too.

It's the same in our legal literature. The bad books spoil the market for the good ones. Who still buys books?³⁹ Dear God, hardly one lawyer in a thousand! I know legal books that are veritable marvels of learning, Buchholz on prelegacies, for instance (700 pages!), of which barely fifty copies may have been sold, and I'm convinced that in many German states you couldn't scrape up a single copy of many legal works. I myself stopped buying any long ago. I have an old uncle, a curious old bird, who has to have everything that comes out. Since he doesn't read the books himself but only uses them to decorate his rooms (an expensive luxury, by the way: the running foot costs him 60 marks, more or less), I take one or another home with me from time to time, since I need them for my legal letters. In that respect, I admit, they give me extremely rich material, which you'll often profit from yet. But with very few exceptions the impression is always the same: whoever reads much of them feels it in his stomach. The fault lies not with the good people who write them but with the circumstances. The books on Roman law, and it's only Roman law I speak of in my letters, must necessarily get worse and worse from century to century. Justinian's threat, volumina autem eorum omnimodo corrumpentur, "and their volumes shall be spoiled in every way" (Const. Tanta, § 21), lies like a curse on our legal literature. Hear my proof!

I don't know whether you've ever been in a position to press wine on the banks of the Spree, but you'll certainly not contradict me if I tell you this: if the two of us had to press the same quantity of grapes one after the other, the first of us would come off best and the second worst, and if a third and a fourth and so on took their turn, in the end not a drop more could be got out even with a hydraulic press. The application to Roman law is plain as day. For seven or eight centuries thousands upon thousands, not to say millions, of lawyers have toiled to squeeze it out. There were times when the new wine ran out in a stream as thick as your arm, when the biggest tubs and casks, I mean folios, were needed to catch it: in the days of Cujacius and Donellus, for example. Then pressing was still a pleasure! On the doctrine of usufruct alone, Galvanus wrote a folio you could have killed an ox with. Then came the age of the quartos. The new wine was already flowing somewhat thinner by then, and its taste was already turning bitterer. And now the age of the octavo volumes, which we live in at present, for jurisprudence has not yet come down to duodecimo and sextodecimo:⁴⁰ what is there much left of now? A comparison will tell you. When the champagne makers of Assmannshausen and Ingelheim have pressed the grapes enough for their purposes, the ordinary winemaker pours water on the skins and presses them again. Then spirit and sugar are added, and there's your Assmannshausen and your Ober-Ingelheim red. Water, spirit, sugar: those are the only ingredients with which anyone today can still hope to make a drinkable wine out of the squeezed-out Roman law. But it is and remains an artificial product: "you can't sing over it, you can't be merry over it." The proportions in which these various ingredients are added differ with individual taste. In most, water quite decidedly predominates. One man did try it with spirit alone, but without his knowing it, they say, a good deal of water ran into his "spirit" too. If you'd like to test the recent publications in this field for these ingredients, you won't find it hard to classify most of them correctly. Perhaps I'll try it myself in a later letter.

I repeat expressly: the fault for these procedures lies not with our authors but with the circumstances. Write they must. They may not simply reproduce the views already in existence: that doesn't count as a "literary achievement." What is left, then, when their predecessors have already taken all the good ones, but to take the bad? If the conceivable sensible views on the subject are completely exhausted, well, who can hold it against a poor author who must still put forward a new view that he has had to reach for a senseless one? Several things by a Dr. Asher, unsalaried lecturer at Heidelberg, have come into my hands these last days: priceless contributions, which I'll put to use, along with many others, in one of my next letters. But I ask you: how is this man to blame, though in those pieces he has achieved the incredible, that Cujacius lived three centuries before him and took the best away from him in advance? Had he been born then and Cujacius in our century, he might perhaps have become Cujacius and Cujacius Dr. Asher. Everything depends on who sits at the wine press first! It's easy for you to say that when no new intelligent view is possible any more, one should rather adopt one of those already in existence. You don't understand! Better a senseless view all to yourself than a sensible one shared with others. It's like women: who wouldn't rather have an ugly one to himself than a beautiful one shared with others? Or like children: who doesn't prefer his own to other people's, however stupid his own may be? Who adopts other people's children while he still has hopes of producing some himself? In short, if you want to be an author, you must make your views yourself; otherwise give up being one altogether.

Well, have I made my proof? Must not the literature on Roman law grow ever more barren, emptier, more dismal? Must not the views grow ever unhealthier, more unnatural, more twisted? You want me to prove a posteriori what I have deduced here a priori? Very well! It shall be done in my next letter. I'll gather you such an anthology of legal nonsense that your heart will laugh inside you. You think the matter is anything but a laughing one, that it has its very serious side? Certainly! It depends on what you think about Roman law continuing to be in force in Germany. If you want it to come to a speedy end, you can only rejoice at the literary exhaustion of Roman law I've described above. It is the surest sign that Roman law is coming to its end: it has grown decrepit and is dying of marasmus senilis, old age, and boredom. If you wish it a longer life, then the evil must certainly be stopped as soon as possible, and that brings me back to the remedy I have in petto, up my sleeve. The most dangerous where authorship is concerned are, as I remarked above, the German unsalaried lecturers. Without ever having had a single practical case in their hands, they write away unabashed on the most intricate subjects, ones that could embarrass the most seasoned lawyer. To the ignorant everything is easy and clear. Anyone who can't see past the corpus juris, and is furnished with the necessary self-confidence and the proper self-satisfaction, won't find it hard to brand as an aberration born of ignorance of the sources or faulty interpretation the development our practice has given a Roman idea, rightly weighing the changed circumstances and the needs of our present-day commerce, or to look down with a pitying smile on the president of the highest court, grown gray in the school of life. It strikes me the same way as if a philologist, with Aristotle and Pliny in his hand, presumed to lecture Cuvier and Liebig on questions of natural science.

In my opinion there is a very simple means of making the unsalaried lecturers harmless as authors. In Rome, as everyone knows, there was an arrangement from the time of Augustus that anyone who wanted to take under a will had to show a certain number of children: the liberi were the condition of "capacitas," the capacity to inherit. Persons the emperor favored he spared the trouble by granting them the jus liberorum, the right of the children: the children were taken as fictitiously existing, or dispensed with altogether. In this way, among others, Diana of Ephesus, from whom, as the chaste goddess, one could not decently require compliance with the law, came into possession of the capacitas. What bodily fertility meant in Rome, mental fertility means with us. "No liberi, no inheritance," it ran there; "no libri, no professorship," it runs here. Children there, books here. I consider this principle a most unhappy one, and think the "capacity" of an unsalaried lecturer should be judged more by his teaching than by his writing. If, however, the universities won't let go of the requirement of writing, then at least make it harmless in its application to jurisprudence. On the analogy of the Roman jus liberorum, grant legal unsalaried lecturers the jus librorum, the right of the books, as soon as they get ready to come before the public with a work; that is, make them professors, just as if they had had the necessary books printed. At some universities, after all, they aren't so very strict about the books even now. They practice the same indulgence the Romans allowed themselves in judging the liberi, which l. 135 de V. S. (50. 16) justifies in a way so humanly beautiful, and so apt for the case before us, that I can't resist printing the whole passage here:

L. 135 de V. S. (50. 16): Quaeret aliquis, si portentosum vel monstrosum vel debilem mulier ediderit vel qualem visu vel vagitu novum, non humanae figurae, sed alterius magis animalis quam hominis partum; an, quia enixa est, prodesse ei debeat? Et magis est, ut haec quoque parentibus prosint, nec enim est, quod iis imputetur, qui qualiter potuerunt, statutis obtemperaverunt, neque id, quod fataliter accessit, matri damnum injungere debet. (Someone will ask: if a woman has given birth to something prodigious, or monstrous, or feeble, or something strange to see or to hear crying, not of human shape but the offspring of some other animal rather than of a human being, should it count for her, since she did give birth? And the better view is that these too count for the parents. For nothing is to be held against those who have obeyed the statutes as best they could, nor should what happened by fate bring loss upon the mother.)

Freely translated for our case: how are the unsalaried lecturers to blame, who have complied with the university statutes (statutis obtemperaverunt) as well and as badly as they could (qualiter potuerunt), if, by fate (quod fataliter accessit), the book they have produced bears the character less of a normal literary product (non humanae figurae) than of a literary monstrosity (portentosum vel monstrosum), or shows the marks of feeble-mindedness (vel debilem partum ediderint)? After all, they have brought something into the world, and that's enough (quod enixi sunt, prodesse eis debet). The jus librorum and the professorship would of course be granted only against an undertaking not to publish the book submitted, or at least not for a long period, say the classic nine years (nonum prematur in annum, "let it be kept back until the ninth year"). The safest course would be to entrust it to the law faculty for safekeeping. When the nine years were up, and the professorship happily attained, the author would hardly still insist on publishing. Presumably he would even thank God that a wise, fatherly government had saved him from a literary blunder. What shape would our literature take if this institution of depositing manuscripts for nine years were made quite general? I maintain it would cause a greater revolution than the needle gun. How countless the books that would stay unwritten, and if written, unprinted! And how much those finally printed after all would gain by it! It's an idea I rather pride myself on, a worthy companion piece to my Anti-Seuffert, and I mean to have a friend bring it before the German Reichstag as a motion. If the police forbid the sale of unripe fruit and sour beer, why not of unripe books too? Should the German governments not take up my proposal to grant the jus librorum, because of the resistance the universities are sure to put up against it, there's nothing for it but for us lawyers to take the matter into our own hands. To that end I propose a national collection, from whose proceeds all the finished manuscripts of the legal unsalaried lecturers would be bought up, or more correctly, taken into sequestration, so that they could be kept under lock and key for the nine years. Besides us lawyers, the publishers would have to be called on too, and I'm counting on lively participation from them. They'll know where they do the better business, under the present arrangement or under the one I propose.

That disposes of the unsalaried lecturers; now for the professors! I've already declared that I think them far less dangerous than the former. They already possess what the unsalaried lecturer wants to win by his writing, a professorship, so for them that motive for writing falls away. Then, a large part of their time is taken up by lectures and official business, while they need the holidays to recover, so that in the end not so much time is left for writing; many unsalaried lecturers, by contrast, are on holiday all year round. At most the surplus time available for writing might be reduced a little by shortening the holidays. And finally, and above all: the more one learns, the more one notices that not every new thought is worth publishing. To the young stork that pokes its beak out of the nest for the first time, everything is new. It makes the most wonderful discoveries; in the dunghill it sees a mountain, in the puddle a lake. But the old stork, who has made his long journeys, can cover great distances before anything meets his eye that he thinks worth his attention. By all means, then, let the law professors be granted the right to write on doctrinal questions too, under certain restrictions and safeguards. Roman law gives us a point of reference here again, in the jus respondendi, which arose at the same time as the jus liberorum. Under the Empire the more eminent jurists were authorized by the state to give responsa juris, legal opinions. On the model of this jus respondendi, give our outstanding theorists the jus scribendi, the right to write; give it to the more doubtful ones subject to recall, say, as is done with appointments to the civil service in southern Germany, so that they have the chance to prove themselves. If they pass the test, make it permanent; if they fail it, take it away from them entirely. I had intended at first to add proposals naming persons, but in drafting them I ran into such scruples and doubts that I refrain from them altogether, and confine myself to passing on to you and the reader, for your own use, the following list of living scholars of Roman law (put into memory verses for law candidates, for the purposes of the examination)!

	Lawyers ending in an r?
	Wächter, Bekker, Muther are,
	Römer, Neuner, Samhaber,
	Schirmer, also Schlesinger,
	Pagenstech-, Regelsberger,
	Unger, too, and Müller, sir.
	Four in -ing you'll want to bring:
	Böck-, Fitt-, Stintz-, and then Jhering;
	Vering, too, if you're willing.
	Very few will end in o:
	Sanio is one we know;
	Vangerow is spelled just so.
	Three in l, and that is all:
	Büchell, Wetzell, Sell we call.
	Rudorff, Kuntze, Fritz
	Lead the list of wits;
	Dernburg, Köppen, Witte
	Hold the middle of the ditty.
	Ribb'ntropp, Windscheid, Francke
	Write to earn my thanks, eh?
	Two in -eist you must commit:
	Gneist and Leist, and that is it.
	One syllable is all they've got:
	Arndts, Bruns, Brinz, Fritz, Scheurl, glad of their lot.
	Then add Schmidt and Danz to these,
	And you have the lot with ease.
	Anyone not found in here,
	Get another name, my dear.

If you'd like to add a few more verses yourself, I hereby give you the necessary authority. The rising generation of civil-law scholars sees to it that new names keep coming. In my next letter comes the promised anthology from the recent literature on Roman law.

A Letter to the Editors, by Way of Introduction

[Juristische Blätter, edited by Max Burian and Lothar Johanny, vol. IX, Vienna 1880, no. 10.]

You've reminded me again of a promise I made you years ago, shortly before I left Vienna. It was at one of those evenings at the Golden Duck, the gatherings by which the Vienna Law Society struck so happy a balance between its need for company and its need for law, and the promise was that I would send you something for the Juristische Blätter.⁴¹ Heaven knows what I wouldn't have promised, in the cheerful mood that takes hold of a mind let off the weight of jurisprudence for a night of that kind! People who promise easily usually have the happy gift of forgetting just as quickly. That is how nature evens out the gap between their good nature and their capacity to deliver. My promise to you had sunk without a trace into oblivion, until your reminder called it back. Thus the ghosts of long-vanished hours rise from the grave and present a man with the bill he signed in high spirits. I'll pay it.

But you must allow me to do it in a manner suited to the place and the circumstances in which the promise was given. I gave my promise at the Golden Duck, and at the Golden Duck I mean to keep it. That is: I shall imagine that I'm sitting there with you over a glass of wine and talking with you about legal matters. I shall, to put it plainly, chat with you, and you will print as much of the chatter in the Juristische Blätter as you think fit.

The title under which I offer you my contributions, "Chats of a Roman-Law Scholar," has never been used before, to my knowledge, and I flatter myself that with it I've brought a new literary form for the treatment of legal subjects into the world. It is the feuilleton, the light essay at the bottom of the newspaper page, applied to law. The name is meant to give me, in matter and in manner alike, the ease and freedom of a conversation entirely unprepared. I mean to chat. Everyone must decide for himself whether he cares to listen.

You know now that these chats make no claim to belong to literature. They have done their job if they give your readers some passing entertainment or a nudge to think for themselves. They are not meant to be cited by German professors. They come up and go down with the moment, for me, who means to dash them onto paper, and for the reader, who is welcome to forget them once he has read them.

That, then, is the pact I make with you and your readers: leave to chat to my heart's content, without any preparation at all. What with all the serious things I've been occupied with these last years, and the atmosphere that hangs over our worthy Georgia Augusta, the University of Göttingen, I have grown so grave that I feel the need, for once, to unbend thoroughly, to laugh and play the fool. If I hadn't already given our talks the name above, then since by our arrangement they are to take place at the Golden Duck over a glass of wine, I'd recommend calling them "legal duck eggs." If they were golden ones I'd keep them myself; since I'm not keeping them, you know what to think of them! And if a few legal canards hatch out of them on the occasion (a breed of duck, to my knowledge, not yet recorded by science), you mustn't be surprised.

I have a great store of these eggs; I think I could hand them out by the dozen. For now they lie about in wild disorder, or, more accurately, they aren't there at all yet. They're still unlaid, inside me. I carry a whole nest of them around in my head!

It's remarkable how a man who has lectured systematically all his life comes at last to find system and classification an irresistible need, a second nature. I have to classify even the eggs I haven't laid! You know that a Roman-law scholar really consists of two halves: half doctrinal scholar of the law in force, half legal historian. And if the essential character of what a man is extends to what he produces, then the products of a Roman-law scholar will bear this double character too. You'll have to set up two compartments for my future eggs, then: a doctrinal one and a legal-historical one.

A "legal-historical" one? you ask, shaking your head. I know what that's supposed to mean. The readers of the Juristische Blätter, you mean to say, are mostly practitioners of Austrian law: what is Roman legal history to them?

I'll risk it all the same. I've taken it into my head to win Roman legal history some respect among your readers. Not by artificial means, the kind by which, as everyone knows, even the most tasteless dishes can be made tasty. It's held to be the test piece of a real French chef that he can cook shoe leather so that the unsuspecting diner believes he has never had anything better on his tongue. One of the first authorities in the field of sauce theory found the perfect motto for the culinary irresistibility of a certain sauce: "Avec une telle sauce on mangerait son père," with a sauce like that, a man would eat his own father. I don't doubt that a man with the right humor and wit could bring off that test piece with legal material too (some of it is a match for any shoe leather), and perhaps the man is already born who will one day present us with an "Elegy on Non-Use," the non usus by which a right lapses when nobody exercises it, or "Scenes from the Life of the diligens paterfamilias," the careful father of a family by whom Roman law measures everybody's negligence.

Roman legal history has no need of such artificial charms. It can do without the sauces; all that matters is to treat it properly. For Roman legal history I have a method of my own. It departs from the prevailing one. But it has proved itself. Until now I've kept it a secret; I judge that the time has now come to publish it for the use and benefit of others.

The main thing it calls for is a good, fine cigar, not too heavy, not too light, and besides that a sofa or couch. When you have fed yourself full on the solid material of legal history, you lock the door so that nobody can disturb you, light the cigar and throw yourself onto the sofa. Whether you also stick your legs up in the air, as I have found effective in my own case, depends on the individual. Then you turn your whole mind, with all the force of your will, on the old days, forgetting everything around you and yourself as well. You think your way into the thought that you once lived in that time yourself, and have turned up again in the nineteenth century, by a strange whim of nature and the transmigration of souls, as an unsalaried lecturer or professor of Roman law at this university or that. Originally you were an old Roman, and the little you know about the old days from books is only the last remnant of your own memory, which you need only bring properly back to life by a vigorous effort. Greek philosophy already thought as much possible, in its doctrine of the transmigration of souls. When you have lain there like this for a while, dreaming with your eyes open, the memory of the old days does in fact wake again. The picture of them rises up out of the depths of the soul (the region of the "unconscious") and is mirrored in the clouds of cigar smoke you blow out. You see yourself walking the streets of ancient Rome and take part in all the lovely things of Roman legal history: a mancipatio, the solemn sale with scales and a bronze bar; an in jure cessio, the transfer of a thing by a sham lawsuit before the magistrate; a marriage with manus, in which the wife passed into her husband's power; an in jus vocatio, the summons to court, and so on. It's unbelievable what you can learn that way from a single cigar! But of course you have to know how to smoke, and some people don't. That's why they see nothing, even when they light a cigar and throw themselves onto the sofa. They produce tremendous clouds of smoke, thicker than some others who know how to smoke, but they see no pictures in them. And so they claim that nobody else can do it either, or, if he says he can, that his pictures are nothing but the fancies of an imagination stirred up by tobacco poisoning, which science is bound to reject under protest: where the sources stop, science stops. For my part, I say that's exactly where it starts . . . and I'm sticking to my cigars.

I still have a decent stock of cigars in my box. Now and then I'll light one and report to you what I've seen. I shall call these reports "Pictures from Roman Legal History." It's a pretty title, and a pretty title is worth something in itself, especially with a subject of such doubtful appeal as Roman legal history. I don't see why we men of learning should leave the good titles entirely to the writers of fiction, whose title is sometimes the only new and spicy thing in the whole work. My happy instinct taught me the value of a good title early on, and the titles of my books have done not a little to help them spread and become known. Imagine my "Spirit of Roman Law" under the name "On the Character and Significance, etc." or "An Attempt to Determine the Characteristic Features, etc.," or my "Struggle for Law" under the title "On the Moral Obligation of the Private Person to Assert His Right in Certain Circumstances, etc." Who would have remembered a title like that? A title must have the qualities of a military word of command: short, precise, definite, categorical. It must be a literary word of command, shouted out into the world.

The name the future child is to have has now been found. All that's missing is a trifle: the child itself. I'm curious to see what it will look like. I feel like a mother before the birth: will it be a boy or a girl, beautiful, healthy and strong or sickly and ugly, or a changeling? In short, let it be what it will, it doesn't much matter. It's only meant to live for a day.

Pictures from Roman Legal History, I: The Right to Seize Ownerless Things, Then and Now

[Juristische Blätter, 1880, no. 11.]

A Roman-Law Elegy

I have the unfortunate habit of comparing everything that comes my way: my own with other people's, now with then. The unfortunate habit, I say, because my comparisons don't always leave me with a comforting result. I'd be better off simply enjoying what fate has dealt me, without reflecting on it. But my itch to compare isn't confined to what concerns me personally. It extends to everything that crosses my path; nothing is safe from me. The richest pickings, naturally, come from my own field, and there's hardly a subject that can turn up on it that I haven't compared with others. That is how I came to compare the old Roman law with the later Roman law and to try to make the contrast clear to myself and to others (that was the motive behind my "Spirit of Roman Law"), and how I have also compared our present-day law with the Roman. Here too I've arrived at the conclusion that the present can't measure up to the past in a number of respects. For an action for damages, for instance, I'd rather have had a Roman judge than a modern one. And it holds to a quite exceptional degree on the point that forms the subject of my present elegy: the right of occupation, as lawyers call it, the right to make ownerless things your own by seizing them.

If you have an attentive eye for the historical development of law, you'll have come with me to the painful conviction that we have taken a regrettable step backward from the Romans when it comes to getting something for nothing, a kind of acquisition that, the psychologists tell us, holds a quite special charm for human beings. How richly the Romans were provided for here! How long the list of ownerless things, how wide the scope for occupation, in their law! Game of every kind, birds, fish, four-footed beasts, or as our sources put it,⁴² the animals born in the water, in the sky and on the earth (in coelo . . . nascuntur, "born in the heavens"), could be hunted without hindrance. Nature herself had so ordained it; so it stood written in the law of nature, which, after all, came into the world at the same moment as man.⁴³ Those were the days when it was still a pleasure to be a hunter, a fowler, an angler. Amber, pearls and precious stones belonged to the finder too. You could become a millionaire without the slightest capital outlay. Nobody yet troubled about the strawberries, blackberries, raspberries and other berries of the forest, or the mushrooms, which have recently become the subject of legislation in Prussia. Even buried treasure, toward which the treasury in so many states now greedily stretches out its bony hands to snatch it from the lucky finder (in such a case, more accurately, "the unlucky finder"), stayed in those days with him and with the owner of the land.

And then there was the soldier, with his occupatio bellica, the right to take whatever he captured in war! The enemy had no rights at all. Everything he had belonged to the gallant soldier who chased it off him; all that mattered was that he got it, or, as we say in German, kriegte it. As I write down the word "kriegte," I make a linguistic observation entirely new to me and surprisingly profound. You'll remember that the old Romans, according to a report by Gaius,⁴⁴ regarded booty taken from the enemy (nowadays we call it "annexation") as the best way of acquiring ownership, and I have always seen in this a peculiarly Roman way of looking at things. Now chance, as I write the word "kriegte" in connection with the occupatio bellica, leads me to discover that our forefathers thought exactly like the old Romans on this point. We are probably dealing here with a primeval idea of the Indo-European peoples. "Kriegen," to get, in the sense of capere, nancisci, is etymologically connected with "Krieg," war, bellum. "Kriegen" therefore originally means to acquire by war (bello capere); it is the Romans' occupatio bellica in one single word instead of two. The forms of war have grown more refined over time. The open field has given way to enclosed spaces, the stock exchange, business premises, shops and so on, and the heavy, crushing broadsword of our ancestors has given way to the pen. Finally, the concept of the "enemy" has been widened too: an enemy is anyone who has something you can get off him. That is the shape of our modern law of war.

While we're on this stretching of the concept of "enemy" by analogy, a parallel occurs to me that concerns Austria in particular; it's a fruit of my stay in Vienna. You have there a foundation set up by an old warhorse under Prince Eugene for Austrian veterans disabled in the Turkish wars. The man looked on the Turkish wars as a chronic evil for Austria, one that came round periodically from time to time with the same certainty as hailstorms, floods and failed harvests, and in his day he was no doubt perfectly entitled to. In the meantime, however, the Turkish wars have, as I would put it as a Pandectist, lost their doctrinal interest for Austria. You needn't be a prophet to know that wars between Austrians and Turks are over for good. What is to become of the foundation now? Is it to go on existing for all eternity, piling interest on interest, without ever again doing a human being any good? A Roman-law scholar isn't stuck for an answer. Roman law puts the right remedy in his hands for keeping the foundation alive, which is to say always up to date: the fiction. If you have no real Turks to make war on, you make do with fictitious ones. A statute is passed declaring, for instance, that Russians shall count as Turks, or, if that's thought too risky, the government is empowered, whenever war breaks out, to declare the enemy a "Turk" in each individual case. In this way "Turk" would become a legal concept, which might live on in the law long after the real Turks had vanished from Europe or from the world. A Roman-law scholar would be delighted to see the fiction put to practical use again for once, so that he no longer had to take his examples of fictions from the Roman sources alone, and so that the example in Gaius of the foreigners who are treated by fiction as Romans could at last be given a rest. That example, by the way, is quite interesting; it only needs to be put in the right light. If the action for theft is to be given to a foreigner or against a foreigner, says Gaius,⁴⁵ he must be treated by fiction as a citizen. Put juristically, that means: theft is something national and Roman; a foreigner can neither steal nor be stolen from. When a stranger was to be hanged in Schilda, the proverbial town of fools in German folk tales, the citizens protested that the gallows was there only for them and their children. If a stranger wanted to be hanged, let him first become a citizen! In the same way, strictly speaking, a foreigner who wanted to steal or be stolen from in Rome ought first to have acquired Roman citizenship. The Romans were obliging enough to make up the lack by a fiction.

But back to the Romans' occupatio bellica, the primal source of Roman ownership. In Rome it really was a pleasure to be a soldier, an incomparably greater one even than being a hunter, fowler or angler. There the song from "The White Lady," "Oh, what a joy to be a soldier," made good sense, for the whole world outside the Roman one belonged to him. All it took was the trifle of actually laying hands on the treasures it held potentially. It always makes me feel wistful when I have to lecture on the peculium castrense, the "camp fund," the property a son still in his father's power could earn in military service and call his own, especially when there are filii familias milites, soldiers who are still sons in their fathers' power, among my audience. You show them all the lovely things they can get in that capacity, the spoils of the enemy, gifts from the emperor and the empress and so on, and make their mouths water, and yet all of it is nothing but shams. The only practical part of the peculium castrense, the one they have to make do with, is the inheritance from a rich wife.

To the long list of movable things I have shown you so far, Roman law adds certain immovable things that you could have entirely free. It's always a great joy to me when I deal with this part of the Pandects. Not for the practical prospects it might hold nowadays (sadly there are none!). I take a purely historical standpoint instead: I call up an old Roman who has come into a gain of this kind, and share his joy from inside his skin. First there are the insula in flumine nata, the island that arises in a river, and the alveus derelictus, the riverbed the river has abandoned: two tidbits for the Pandectist. The acquisition is made so easy for the owners along the bank that they don't even need to seize anything; the law makes them a present of it without their having to lift a finger. Incidentally, have you ever wondered why the Romans, in both these cases, though what's at stake is ownerless things, didn't allow the consequence that follows from ownerless things, the free right of occupation? Imagine the scene that exercising it would cause: the scuffles in the water before the island has fully come up out of the river or the bed is clear of water (while nature, I'd almost say, is still in labor!), the attempts to replace the slow natural birth with a forceps delivery, and you'll see why the Romans were sensible enough to rule out occupation here.

With the insula in mari nata, the island that rises in the sea, the theory of ownerlessness comes back into its own with full consistency: the island goes to whoever seizes it. There's something uplifting in seeing the theory of occupation, far out in the distant ocean, on a lonely isle barely risen from the womb of nature, win once more the recognition it was refused in those two cases on the mainland. A pity that the value of the concession is considerably weakened by the jurist's added remark of natural history, that the case seldom happens (quod raro accidit, "which rarely occurs").

The last immovable thing you can get ownership of for nothing, which we Pandectists mustn't pass over either, is the ager desertus, the deserted field, and it doesn't amount to much. First you have to cultivate the field with great labor, and once you've done it, brought the run-wild land back into order, rooted out the weeds and carted on the manure, you can't be sure the former owner, who has now taken a fresh liking to his property, won't buy it back. I made up my mind long ago that I shall never cultivate an ager desertus.

That brings us to the end of the immovable things. But I've saved the best for last: the occupation of things belonging to an inheritance. Among all the cases of occupation it unquestionably takes first place. In it the idea of occupation rises to its ideal non plus ultra, to such a height that the distinction between movable and immovable things, which, to speak in the manner of Hegel, it had not yet overcome at the stages of its dialectical self-development I have just described, now seems to it no more than an insubstantial show. Gold, silver, valuables of every sort, cattle, wine, land, houses, whole estates even, anything at all that can be found in an inheritance, could be taken by anyone who felt like it. It wasn't theft. "Rerum hereditariarum furtum non fit," "things belonging to an inheritance cannot be stolen," ran the rule brought into the world for this very purpose. The only difference from the other cases of occupation was that the occupier didn't get ownership at once. He first had to hold the things for a year, which he will have been delighted to do.

You'll understand why I've saved this kind of free acquisition of ownership for last: after it, all the others taste flat. I shall save this case for our next meeting.

And now the passage from this rich table of Roman law, where each dish outdid the last, from this lavish banquet of ownerlessness, to the beggar's soup of modern law, in which as good as nothing is left of all that splendor. Every seat at the table is taken by ownership. No place has been laid for ownerlessness. It can stand and watch, and wait until ownership throws it a bone it has no further use for itself. The poetry of occupation in the law is over; the prose of ownership (that glutton, ownership!) has destroyed it all. The island born in the river and the island born in the sea are taken by the state, and so is the abandoned riverbed. As objects of private occupation they figure only in the textbooks. I should like to know when the last case of them actually happened! They belong among the stuffed legal concepts of our juristic museums, the mummies and specimens in spirits. What Justinian said of a relic of the same sort in his own day, the dominium ex jure quiritium, the ownership of the old citizen law, holds true of them: "Nec umquam videtur nec in rebus apparet, sed vacuum est et superfluum verbum," "it is never seen and never shows itself in things; it is an empty and superfluous word."⁴⁶ That leaves only the ager desertus. If only someone could be found nowadays to make it possible! I have never heard of a case.

Thus all the immovable things vanish from the stage. You could get over their loss if only the movable ones remained! But they too leave one after another. You're reminded of Haydn's Farewell Symphony, in which one member of the orchestra after another leaves his music stand and puts out his candle. The usucapio pro herede lucrativa, the free gain of an inheritance's goods by a year's possession "as heir"; the occupatio bellica; the free hunting of fish and game; the free search for amber, fossils and so on; in some states even the finding of treasure: candles put out, one and all. General darkness! Wherever a man turns, he bumps into private property, which calls out to him: "Thus far and no farther!" It stretches its protecting hand even over the enemy. The easygoing plunder of earlier times is over, and even game, which by the jus naturae, the law of nature, belongs to whoever takes it, has been brought by positive enactment under the ban of the hunting laws. Our age has lost all understanding of the idea that things in an inheritance are free for the taking; we'll have to wait and see whether the Communists teach it again. Only the forest was still free. There at least the children could look for their strawberries, blackberries and raspberries, a good housewife for her mushrooms, and her husband for his woodruff for a bowl of May wine. Here in Prussia that's over too now. Not even the children's right to go hunting through the woods is respected any more.

I have lost my pleasure in the law. I'm glad I'm not a child any more. I say, with the joiner in Hebbel's "Maria Magdalena": I don't understand the world any more. If only I didn't have to lecture on the Pandects! There, by every lovely Roman case of occupation, I have to put a cross, mortuus est, "he is dead," and warn my students not to exercise it in practice, or they'll come into conflict with the criminal code. Poetry has vanished from the law. I lament with Schiller in "The Gods of Greece," with a small change in the text:

	Lovely world, where are you? Law of Nature,
	Turn again and come to us once more!
	Only in the fairyland of doctrine
	Lives the fabled trace you left before.
	Desolate and mourning lie the meadows,
	Not one prize of booty greets my eye;
	Even game and berries, even mushrooms,
	"Hands off!" cries the law as I pass by.

Pictures from Roman Legal History, II: The Mousetrap of the Old Law of Inheritance

The Mousetrap of the Old Law of Inheritance⁴⁷

I don't know whether I may assume that what you learned at university about the usucapio pro herede lucrativa of the old Roman law has lasted you to this day. The knowledge a man acquires at university behaves in the opposite way to most things: the less use you make of it, the faster it dwindles; in contrast to the res, quae usu consumuntur vel minuuntur, the things that are used up or diminished by use, it could be described as res, quae non-usu consumuntur vel minuuntur, things used up or diminished by not being used. You'll allow me, then, to try to refresh your memory about our institution a little.

Our sources, with Gaius⁴⁸ at their head, give us the following picture of it. When someone died without leaving any sui heredes, the "household heirs" (the children in his power, who became his heirs automatically), anyone who felt like it was allowed to get in ahead of the appointed heir in taking possession of the things in the estate, and that was not furtum, theft. Only people who already held things of the deceased were barred from changing their existing relation to them, or, as the Romans say, their existing title, into the title "as heir" (nemo sibi ipse causam possessionis mutare potest, "nobody can change the ground of his possession by himself"). That is to say: taking possession of the things in the inheritance had to be visible, as an outward act, and the heir, when he came, was to know who had taken possession and whom to sue to get it back. For this he was given a year; if he let it pass, whether because he accepted the inheritance late or brought his action late, his right was forfeited, and the possessors had now become owners by the usucapio pro herede, and not only owners but heirs. For what was acquired by the usucapion was regarded as being not the individual things but the inheritance itself; it was the inheritance that was usucapted in them, and the consequence of this way of looking at it was that even immovable things, for which the usucapion period was otherwise two years, were acquired in one. Once the heir had accepted the inheritance and taken possession of it, this right of occupation, as I shall call it,⁴⁹ was shut out; anyone who grabbed now was guilty of furtum, just as he was when there were household heirs.

That is the rough outline of the institution as the sources draw it for us. It does, admittedly, leave a number of questions unanswered, but they don't concern me, because I have no intention of giving you a learned lecture on the usucapio pro herede lucrativa. I only mean to set out for you my own idea about one peculiar side of the institution, which, to my knowledge, nobody else has noticed so far.

Gaius adds only one thing more, and that is his remark on the legislative purpose of the institution. He asks himself what could have led the old law to allow so wicked an institution (tam improba possessio et usucapio, "so dishonest a possession and usucapion"), and he gives the answer: it was meant to put pressure on the appointed heirs to accept the inheritance quickly, in the interest of the creditors and of the proper keeping up of the sacra, the family's religious rites, which passed with the estate.

That exhausts our historical material; I'm lighting my cigar now . . . you know what that means.

It's wonderful what a few strong puffs on it do for me. In the clouds of smoke I see Gaius. Tall, gaunt man; liver spots on his forehead; knock-kneed; a schoolmaster's face.

A few more puffs and I find myself in conversation with him.

Gaius?

"That's what I call myself."

I didn't know whether I might call you that. A recent writer⁵⁰ has claimed it was only a "vulgar name," or, as people say in everyday life, a nickname for you, which your students called you by, the way they still do nowadays with popular teachers.

"Students? What are those?"

Your listeners, who heard your Institutes, your elementary course, and to whom we owe your notebook on the Institutes.⁵¹

"Notebook? What's that?"

The written notes of the listeners, either dictated to them by the teacher or put on paper by themselves after his lecture.

"When I spoke, my listeners were in the habit of listening, not writing."

You lectured freely, then! Then your Institutionum commentarii quatuor, your four commentaries on the Institutes, were written by you yourself?

"They were. Does anyone still know of them, then? It seems a long time ago that I wrote them."

About seventeen hundred years. Ever since Niebuhr found you again in Verona, my most honored sir, you've been the daily bread of us Roman-law scholars.

"Roman-law scholars? What are those?"

They're your modern successors. We Germans (you are at present in one of our loveliest cities, in Vienna, at the Golden Duck) still study Roman law just as much as your countrymen did in your day, and the professors who lecture on it at our law schools are called Roman-law scholars; I myself have the honor of introducing myself to you as one, and lecture on the Institutes and the Pandects once every year.

"A colleague, then? Delighted to make your acquaintance, my dear fellow. You know my Institutes, then?"

As I said, our daily bread. Learned a great deal from them; very grateful for it. But sadly a great many gaps in the manuscript. The old monks treated you without mercy: scraped you off and wrote a Christian saint over you, Saint Jerome, and he swallowed up a good deal of you. And then there was Bluhme, or Blume, as he later wrote himself without the h, in anticipation of Puttkamer's spelling reform, who gave you a thorough going-over. You could do us the greatest service if you made up your mind to fill in the gaps.

"We'll think it over. No time or inclination at the moment. What made you conjure me up out of the underworld?"

I wanted to ask you about the usucapio pro herede lucrativa. What you report about it is most valuable, quite new light on the old law. But (with all respect to your authority) your view of the legislative reason for the institution doesn't seem to me to be the right one.

"Why not?"

If you would kindly permit me, my most honored teacher and master, I'll explain my opinion to you.

"Speak!"

Your view of the legislative reason for the institution starts from the following assumption. There was a time when the usucapio pro herede did not yet exist, though the law of inheritance had otherwise already been worked out. Then people had the unpleasant experience that the appointed heirs put off accepting the inheritance unduly, for which, unless the testator had happened to set a cretio, a formal deadline for accepting, there was no time limit at all; it was in their interest, since it put off the paying out of the legacies by just so much, so that they pocketed the fruits and the interest, and since it also saved them the expense of the sacra. This can't go on, said the creditors, we want our money; and we, added the pontiffs, can't put up with it either, the sacra can't bear so long an interruption; and the legatees and the substitute heirs joined in the chorus too. Then the fathers of the city met and deliberated: what was to be done? If they'd asked the two of us for advice, we'd have told them the right remedy. Fix a time limit by statute for accepting, we'd have answered them, or instruct the praetor to do what he later had the sense to do of his own accord, that is, at the request of the interested parties, to set a "tempus ad deliberandum," or, as we say nowadays, a spatium deliberandi, a time to make up one's mind, on pain of forfeiting the right to inherit; and, for the sake of the pontiffs worried about their sacra, order a fine to be paid into the religious fund that rises from month to month, an avalanche of penalties after the fashion of the German Rutscherzins, the old "sliding rent" that kept doubling the longer it went unpaid. That would soon do the trick!

But the fathers of the city resolved otherwise. We will introduce the usucapio pro herede lucrativa, they said: we hereby give everyone permission to take possession of the things in the estate, with the effect that if the heir doesn't accept within a year and chase the taker off, the taker shall become owner and heir at once; if the appointed heir turns the inheritance down, it is ownerless, and anyone who likes may take it.

Have I got your view right, great master?

"You have."

Then permit me one question. Have you any specific record of this event?

"I followed the account of Varro."

Just as I thought! He has a lot of odd things in him.

"You are . . . but I forget that, to borrow the apt phrase of your Bismarck, my social manners forbid me to give you the answer you deserve. You presume to know things about Roman antiquity better than Varro, whose praises filled all Rome in his lifetime and after his death, whom Cicero acknowledges as 'diligentissimus investigator antiquitatis,' the most diligent investigator of antiquity, and Quintilian as 'vir Romanorum eruditissimus,' the most learned of the Romans?"

We've presumed to, ever since Niebuhr. Varro could learn a great deal from us moderns; how things went at the founding of Rome, for example, we know much better nowadays than he did. He has the advantage of us in wealth of material, admittedly, but we have the advantage of him in method, and thanks to that method we're in a position to correct Varro, Festus, Livy and all the rest of them, whatever their names may be, and you as well. It's the critical-historical method, which I can't explain to you at the moment; if you do me the pleasure again some time, I'll make up for it.

To come back now to your opinion on the origin and the purpose of the usucapio pro herede, I make so bold as to tell you to your face: the thing cannot have happened the way you imagine it. Your explanation bears the stamp of historical untruth on its forehead. It belongs to the category of explanations we nowadays call rationalistic.

"Another new word I don't understand. What does that one mean?"

Don't take it amiss if I give you no answer to that just now: my cigar is already half smoked, and before it's finished I have to be done with the usucapio pro herede. I'll give you a critique of your view, from which you may perhaps gather what the word means, and I'll do it as frankly as if I were standing in front of my students.

You confuse purpose and consequence. The consequence of there being thieves is that honest people have locks put on their doors, but nobody has yet hit on the idea of claiming that stealing was introduced to bring about the making and buying of locks. You do no better when you claim that the usucapio pro herede was introduced to speed up the accepting of inheritances: that was its consequence, but not its purpose. Stealing doesn't need to be introduced; it happens of its own accord, and your ancestors, too, will hardly have waited for an invitation from the law before helping themselves to whatever they could get out of an inheritance whose heir wasn't there yet; they knew how to do that well enough.

"I must ask you to spare me any malicious allusions to my ancestors. They're entirely beside the point anyway, because the old Romans weren't my ancestors at all. Theodor Mommsen has proved that I was a provincial jurist.⁵² On the matter itself, though, let me point out to you that everything you've brought forward concerns only the fact of the appropriation, the occupation of things without an heir, while what I was talking about was the legal form of the thing, the stamp the law put on it: the usucapion, the acquisition of ownership and of the right of inheritance to the estate."

That's just the point I was heading for myself. It's precisely there that your view is refuted. If the old law had aimed at nothing more by the usucapio pro herede than getting the appointed heir to accept the inheritance as quickly as possible, then allowing people to take the things in the inheritance without punishment (I'll call it inheritance privateering) would have been enough by itself, for when there are privateers to fear, a ship takes care to get into harbor fast; at the very most they might have added the usucapion of the things in the inheritance. But why on earth, for that reason, they should have introduced the usucapion of the inheritance is inexplicable, completely incomprehensible. That's the decisive point, and you haven't said a word about it! How do you explain it, Gaius?

"I've had enough of being called to account and cross-questioned by you, as though I had to pass an examination with you. You needn't have told me that you're a professor and that I'm in Germania, the land of the northern barbarians. I'd have known it at once from the tone you've taken with me, and from all the wine you've drunk in the meantime, and neat, at that. I prefer to break off this conversation with you, and I'll see to it that it isn't repeated. I shan't appear to you again, not if you smoke ten cigars!"

He spoke, and he was gone!

A convenient way to get out of a tight spot! When you don't know what to answer any more, you vanish, and on parting you may even hurl a piece of rudeness at the awkward questioner's head. You, gentlemen of the editorial board, will bear me witness that in my conversation with Gaius I never for one moment overstepped the bounds of scholarly debate or the rules of good manners. This Gaius! Touchy as an operatic tenor!

I'll go on with my conversation with you. You'll be convinced that Gaius's view suffers from an internal contradiction: if he hadn't felt it himself, he'd have had no need to do a vanishing act. But I see my cigar has gone out. A light, if you please. There. It's drawing again. Allow me a few moments. I can make out the faint outlines of a picture; they're growing sharper, clearer; now the picture is there.

I find myself in the earliest times among the old Romans. A man has died without wife or children; the heir he appointed in his will, made before the assembly of the people, is away with the army, facing the enemy. And now people are running in and out of his house, and everyone who goes in empty-handed comes out loaded: creditors, legatees, neighbors, good friends. It's the interregnum in ownership that we nowadays call the hereditas jacens, and everyone is making the most of it.

I mingle with the people.

How can you take all this? I say to them. You're a regular pack of thieves! This doesn't belong to you, you're laying hands on another man's property!

"Another man's property? Anyone can tell you're a stranger in Rome. Where there's no owner there's no property; where there's no emperor, the emperor has lost his rights. The appointed heir may take it back off us when he comes home from the field and accepts the inheritance; for now he isn't here. Do you Germans do it any differently? When a ship runs aground on your inhospitable coasts, don't you come running too and take whatever you can get? You call that the right of wreck. We do just the same: it's our inheritance-law right of wreck, and the things in an inheritance float masterless on the waves."

But what good does it do you to take it? You'll have to give it back anyway when the heir comes home.

"Whether he'll come home is still the big question: he's facing the enemy, and maybe he'll fall, maybe he'll be taken prisoner; and even if he does come back, it remains to be seen whether we'll have to give it back to him."

On what legal ground can you keep it from him? I know your law, you know: I know you needn't fear the actio furti, the action for theft, because your law has been indulgent enough not to treat this as furtum, but you're forgetting that the man has the hereditatis petitio against you, the heir's action to recover his inheritance.

"Then let him pay me what he owes me first; I'm a creditor of the deceased, and nobody can blame me for looking to my security, for seeking cover, as you call it."

But you there, are you a creditor too?

"Not me; but the deceased left me in his will the things I've taken possession of, and I'm not handing them back."

But you'll have to. The praetor gives the interdictum quod legatorum against you.⁵³

"Doesn't exist yet! You're mixing up the different periods of Roman legal history. We haven't got that far yet."

And you there, did you take the things too because you're a creditor or a legatee?

"No! I just took them, just like that,⁵⁴ as you Germans say. I'm waiting to see what happens; the worst that can happen to me is that I'll have to hand them back."

Thank God, the picture is fading. It won't put up with me among these people any longer.

A new one rises. This scene is set in Rome too, but some thousands of years later. The setting is the Vatican. The Pope has died. Would you believe it possible? He has barely closed his eyes when everyone in the palace is running hither and thither, taking whatever can be had. When I ask how they can do such a thing, the answer is: the right of spoils!⁵⁵ Worthy grandsons of their grandfathers!

Away with the picture! I don't care about modern times, or the right of wreck, or the right of spoils. I want to know what became of the usucapio pro herede lucrativa.

The cigar does its work. I see a new picture, set in the time after the Twelve Tables, Rome's first written code. A meeting of jurists, among them some well-known figures: Appius Claudius and his clerk Flavius, the one the author, the other the publisher, of the jus Flavianum, the first published collection of the forms of legal action.⁵⁶ Something important is going on. Let's listen.

"The people have plundered a whole inheritance again," says one of them. The others call him the consul L. Volumnius. "We must put an end to it. It's a relic of the barbarism of the old days, it doesn't fit with the ideas of our advanced age, and it makes any orderly winding up of an inheritance impossible. Everyone grabs, and afterward, when the heir comes, he's supposed to gather it all back together from every nook and cranny, while he himself, the moment he has accepted, is liable to the creditors at once. This can't go on! As consul I shall bring a bill before the people abolishing the right of occupation in inheritances, and punishing any exercise of it from now on as furtum."

I can't go along with you, my most mighty colleague, Appius Claudius is heard to say.⁵⁷ The people wouldn't pass your bill: they've grown used to the thing over the centuries and count it among their "legitimate peculiarities," which even mighty monarchies are careful to spare in annexed provinces, let alone republics. We'll leave the people their fun, but we'll salt it so well for them that they lose their taste for it. We'll take the same road as with the lex Furia testamentaria, the Furian statute on wills. When at the time of that statute the task was to set a ceiling on the size of legacies, in contradiction to the rule of the Twelve Tables, uti legassit super pecunia tutelave suae rei, ita jus esto, "as a man has disposed of his property and the guardianship of his household, so let the law be," the rule itself was left untouched, but anyone who had a legacy over the legal amount paid out to him was made to pay a penalty of four times the excess: the statute was saved and the purpose achieved. We'll do the same in the present case. We'll leave the old institution untouched and go along entirely with the people's idea: the things in the estate that the heir has not yet taken possession of are ownerless, and anyone may take them. Indeed, we'll go a step further: the inheritance itself is ownerless. If it is, the consequence follows that the man who has taken it and held it for a year becomes heir by usucapion. We'll bring the inheritance under the "ceterae res," the "other things" of the Twelve Tables, for which the statute set a year as the period of usucapion.

"But my dear Appius, an inheritance isn't one of the things, the bodily objects, that the statute has in view."

Please don't interrupt me, Volumnius. We jurists have already brought a husband's manus, his power over his wife, under the "ceterae res," though it isn't a thing but a right. Stretching the concept of res, a thing, to cover rights has its precedent, then. From now on we'll call rights "res incorporales," incorporeal things, as they'll still be called a thousand years from now.⁵⁸ That settles it.

You can guess, gentlemen, what I'm aiming at. If the usucapient becomes heir, he also has to take over the debts and the sacra. I mention the latter especially for the benefit of the most reverend pontiffs present, whose agreement with my proposal I set very particular store by.

"For our part, we could declare ourselves entirely in agreement," was the reply of the gentlemen of the cloth.

Delighted. I was sure of it in advance. You wish to make a remark, Marcus Valerius? The advice of a man who, like you, has held the praetorship four times⁵⁹ can only be of great value to us.

"I only wanted to remark that we have little prospect of getting the proposal through with the people. The people will soon see what it's aimed at, and the tribunes, who have so often crossed our most finely laid plans, will veto it."

It wasn't my intention at all to bring the matter before the people. It's a question for us jurists to settle among ourselves, and one on which the people and the tribunes have no business telling us anything: it belongs to the "interpretatio," the interpretation, of the Twelve Tables, and that, as every jurist will shortly learn from the Encheiridion, the Handbook, of Pomponius,⁶⁰ is the domain of the pontiffs and the jurists. To the people we'll even present the thing as a great concession we're making them; we're giving the occupiers of the estate's goods more than they had before: they get ownership of them and the right of inheritance. What more could they want?

"A real Greek gift, that," said a voice, but it fell silent at once when the former dictator Papirius took the floor.

"You really are unbeatable, Appius Claudius. Nobody among us can match you for cunning. If we didn't have to save the name of 'Slyboots' for your great-grandson Sextus Aelius Paetus, who will write the jus Aelianum and whom the world will call Catus,⁶¹ the Shrewd, we'd decree the name to you."

All I care about is the matter itself, Appius replied. I'm not finished, by the way, with the grounds for my proposal; I have another very weighty reason up my sleeve that supports it. You know, gentlemen, that it's not at all rare for appointed heirs to refuse to say whether they're accepting the inheritance, because they mean to put off as long as possible paying the debts and handing over the legacies and even (I'm sorry to have to record this sign of the bad, irreligious spirit of our age) fulfilling their duties to the gods. We'll put a stop to that too. If they've held the inheritance for a year, then once my proposal is adopted they can be sued as heirs without the plaintiffs having to prove the act of acceptance first. And one thing more, gentlemen. You've seen from some celebrated cases of recent years what trouble it causes when an acquisition of an inheritance that the world had regarded as entirely safe and beyond doubt is challenged years afterward by a nearer heir who is only now in a position to assert his right. Meanwhile most of the things have been sold, the debts paid, the claims collected, and now the true heir, who has been knocking about somewhere abroad, comes home and demands that everything be turned upside down again. Gentlemen, that is not to be borne. Whoever has a right had better assert it at the right time; if he fails to, it's forfeited, and we can't keep it for him forever: rights are among the things that, like fruit, won't keep if they're left lying too long.

"I find that very unfair to a prisoner of war who comes back from captivity only after years," I couldn't help putting in.

The whole assembly turned its eyes on me, and only then did I notice how far I'd forgotten myself.

It's plain, the speaker answered, turning to me, that you, who by the way had no right whatever to speak here and are only taking part just like that, are a stranger in Rome. The case you put happens in Rome quite infinitely seldom. Either the relatives are able and willing to pay the ransom for the prisoner of war, and then he's bought free at once, or they aren't, and then he never comes back; in my whole practice I've come across only a single case of a prisoner of war who came home after years, and that was a man of the plebs, the common people, who escaped captivity by a crafty flight. We can't let cases so infinitely rare, which are moreover to be feared almost only in the lowest layers of the plebs, keep us from measures that are otherwise called for. Kindly look at the dictum of Celsus in l. 4 and 5 de leg. (1. 3);⁶² you can learn our maxim from it. The praetor, by the way, will take the matter up later and grant the prisoner of war restitutio propter absentiam, restoration on account of absence, but at present the time isn't ripe for that: we're only in the year 447 of the city, and the praetor mustn't permit himself that yet.

"Certainly not!" came the general echo from those present. "That would upset the whole order of Roman legal history; we are living in the time of which it will later be said: edicta praetoris nondum in usu habebantur, the edicts of the praetor were not yet in use."⁶³

I have nothing further to add for my part, Appius went on. Does anyone else wish to speak? Nobody. Then I put the matter to the vote. . . . I see my motion is carried unanimously. Delighted; it will do the job. I hereby close the meeting. Only allow my clerk Flavius to read the minutes. Flavius, read the minutes.

With that the meeting was over, and I see that so is my cigar. Before I light it again and let a new picture rise, I'll use the pause to attach a few reflections to what I have just heard.

While I was watching that scene, the plan took shape in me of giving you a lecture one day on the cunning of the old Roman law. Cunning people indeed, those old Roman jurists; we moderns can't hold a candle to them. You have to go to North America to find their equal. A real American lawyer could put ten of ours and a hundred professors in his pocket. The trick Appius Claudius used to make the old institution harmless reminds me of the way they stop salt meant for industry or farming from being used in the kitchen. They add coal, or something else that spoils the taste, or, to use the technical term, they denature it. In the same way the old Roman jurisprudence "denatured" the occupation of things in an inheritance. It saw to it that the people, to put it their way, would "find a hair in it" from then on. As a superlative of that phrase, which might be in place here, I once heard the word "wig." It came from a droll old gentleman who had not come to know marriage from its most inviting side. When the death of his wife had given him back the long-missed quiet and peace of his home, and people urged him to marry again, he would always answer with the same words: he hadn't just found a hair in marrying, he'd found a whole wig.

You ask me whether this hair might not have been in the usucapio pro herede lucrativa from the very beginning? I answer the question with a firm No! Applying usucapion to the incorporeal object of the hereditas, the inheritance as a whole, implies a maturity and virtuosity of legal abstraction that you can't possibly put back into the earliest times. Even a Seneca saw a piece of lawyers' hair-splitting in it.⁶⁴ Before a jurist could hit on the idea of carrying the concept of usucapion over from objects the senses perceive to the merely imagined object, resting on pure abstraction, that is the inheritance in the technical legal sense, both concepts, usucapion and inheritance, must long have been fully developed, fully grown. The transfer can only have happened at a time when abstract legal thinking had already reached a high degree of training and confidence.

If, then, the whole institution, by which I mean occupation and usucapion joined into one, belongs not to the earliest times but to the age of the jurists, only two possibilities remain. Either the jurists introduced it entirely new, or they merely grafted the new shoot of usucapion onto the old stock of occupation, which had long been there. The first is Gaius's view, and I've already said what I think of it. I believe you need only picture the thing clearly once to be convinced it's impossible. For centuries the Roman people had respected the right of the appointed heir. Everyone had known that he mustn't lay hands on another man's estate, or the penalty for furtum would fall on him. Then, at an advanced stage of civilization, the occupation and usucapion pro herede were introduced. That is to say: permission was given to plunder other people's inheritances, and to that end the rule that it was furtum was withdrawn, and all this merely for the sake of a purpose that could have been reached incomparably more surely and easily in other ways. Gaius's view is no better than if, thousands of years from now, a jurist ignorant of history, who had found the right of wreck mentioned in documents of the eighteenth century but had come across no evidence of it from earlier times, were to put forward the claim that the right of wreck was first introduced in the eighteenth century and had been unknown before. The right of wreck of our ancestors and the Romans' right of occupation in inheritances were both remnants of the roughness of the earliest times.

If, then, our institution as a single creation comes neither from the earliest times nor from the age of the jurists, there remains only a third possibility, which I hold to be the only possible one: the two sides of the institution arose at different times. The one, the unpunished occupation of the things in an inheritance (with which the usucapion of ownership may have been joined), is the original stock of the institution, a survival from the earliest times. The other, the usucapion of the inheritance, is a new addition to it.

Now I don't for a moment deny that other reasons besides the motive I've just put into the mouth of Appius Claudius, scaring people off from taking other men's inheritances, may have helped bring about the change. In particular there was the wish, when the claims of the heirs were in doubt, to arrive at a state of security as fast as possible. There was also, perhaps, the aim of relieving the narrowness of the old law of intestate succession, under which it may not have been rare for an estate to have no heir at all: the blood relatives (cognates), called to the inheritance by the voice of the people though not by the statute, would get a legal way into it. All I claim is that the prospect of perhaps having to answer for the debts of the inheritance as its usucapient must have scared people off. If the usucapient became heir, it went without saying that he was liable for the debts and the sacra.

Nobody says that this consequence followed only when the appointed heirs had turned the inheritance down, so we have to assume it also held when they had accepted it. Nor does anybody say that the occupier became heir only in proportion to the value of the thing he took. That would indeed have run against the very foundation of the Roman law of inheritance, under which, as is well known, the shares in an inheritance don't depend on the things the heir actually receives. Anyone who had carried off even the smallest piece from the inheritance had to expect, then, that when the year was up the creditors and the pontiffs would claim him as heir to the whole.

That made the inheritance a noli me tangere, a touch-me-not, and gave it an invisible rampart, in some circumstances an incomparably more effective one than the actio furti would have provided. Whoever stole things could foresee the extent of his liability if he was found out. At worst it was four times the value of the thing, at best twice. Whoever, on the other hand, took even the most trifling object from an inheritance that wasn't his could end up paying for his supposed gain with the loss of his whole fortune.

Do I still need to explain to you how my mousetrap of the old law of inheritance works? The things in the inheritance were the bacon; whoever took them was the mouse; and the rule that he became heir was the spring that held him fast.

But the danger I have described so far wasn't the only one the occupier exposed himself to. Others came with it. It was a treacherous institution, this usucapio pro herede lucrativa, and everyone had better watch his step with it. If the family or the creditors caught a man trying to help himself to something, he couldn't complain if they simply threw him out of the house, and many a man must have gone home with blows and bruises instead of the things he'd hoped for. And if he had managed to get the booty he wanted without mishap, it was by no means certain that he'd get off with simply returning it to the heir. If the heir, without his knowing it, had accepted the inheritance and taken possession of it, then from that moment any taking of the things by a third party was furtum. If the heir caught him at it, it was furtum manifestum, theft caught in the act; otherwise it was furtum nec manifestum, theft not caught in the act. In the first case he paid for his attempt with four times the value, in the second with twice. Whether in the old days anyone would have listened to the excuse that he knew nothing of the heir's taking possession, I'm inclined to doubt.⁶⁵ The prospect of a rough reception, beatings, bruises; the duplum, the quadruplum, double and fourfold damages; liability for the debts and the sacra: a high stake indeed for the usucapio pro herede. Gaius calls it lucrativa, gainful. I think in many cases it would have deserved the name luctuosa, grievous, with better right!

It seems to have been precisely this excess of severity and danger that turned the later Romans against this institution, as against many another captious institution of the older law. Gaius tells us that later the idea of the usucapion of the inheritance was dropped and the institution confined to the usucapion of the things in the inheritance. About the reason for the change he adds nothing. He presents it as though it was a theoretical scruple of the jurists that brought the turnabout ("postea creditum ipsas hereditates usucapi non posse," "later it was held that inheritances themselves could not be acquired by usucapion"), and in that he has surely hit the mark no better than with his view, discussed above, of the reason the institution was introduced.

With that the development of the institution had reached its peak. It was the golden age of the usucapio pro herede. In this form it really did deserve the name lucrativa. You could grab without worry, so far as that was physically possible, and if the heir didn't happen to chase the thing back off you within the year, you had indeed made a gain of it; you had got it entirely free. Even for land the one year carried over from the usucapion of the inheritance held its ground. This was the state of things I had in mind in my elegy on the ownerlessness of things,⁶⁶ and you'll understand the lively interest with which I spoke there of the usucapio pro herede. In my young days I was never so enthusiastic about any institution of Roman law as I was about this one. How I envied the Romans for being able to usucapt pro herede! How gladly I'd have done it!

But beauty is granted no long life on earth.

The degenerate age of the emperors had no understanding for the thoughtful, naive and good-natured character of the usucapio lucrativa. It branded the taking of things from other men's inheritances as theft under another name, the crimen expilatae hereditatis, the crime of plundering an inheritance. And so an institution took leave of Roman soil forever, whose first beginnings reached back into the earliest times, and which, after going through two transformations, had held its own ever since with the indestructible vitality of Roman institutions.

A passage of Cicero⁶⁷ enables us to establish one more peculiar phase in the development of the institution, which plays out on the ground of the sacred law. On the liability of the usucapient of an inheritance for the sacra, the pontiffs had introduced a rule. Whether they did it at once, when the usucapio pro herede was extended to the right of inheritance, or only later, we don't know, but since Cicero mentions Coruncanius it dates in any case from the beginning of the sixth century of the city. They had introduced, I say, a rule that departed in principle from the doctrines the jurists held to on the legal position of the heir. It said that the usucapient was to be charged with those burdens only if there was no heir, and where there were several usucapients, only the one who had usucapted the most. What considerations decided this we can't determine. In any case the legal principles followed in the field of secular law were disregarded. Under those, liability for the debts of the deceased was divided among all the heirs. All the usucapients, then, ought to have been liable, and not only the one who had usucapted the most, and not only when no heir at all had accepted, but even when the appointed heirs had accepted, since the usucapients too had become heirs, and on what ground, by will, by statute or by usucapion, made no difference. That the usucapients should not be liable alongside the heirs was not said expressly in the pontiffs' ordinance, which set out the various classes of persons liable for the sacra. But it followed from their being named after the heirs.⁶⁸

The rule that the one who had usucapted the most should be liable could lead to great disputes in practice. Who had usucapted the most? You would have to know nothing about the old Romans to suppose that the pontiffs, in an ordinance they drew up themselves, would have taken on a burden of proof that in many cases they wouldn't have been in a position to meet, and that would in any case have been extremely tiresome, awkward and long-winded. The rule can only have meant this: whoever was seized on by the pontiffs could free himself if he showed that someone else had usucapted more than he had. It was the potioris nominatio of the later law of guardianship, which allows a man the authorities have picked as guardian to name someone who is, as we say, "closer to it." It was the release from one's own liability granted to the king's evidence in England and to the index, the informer, in the Roman criminal courts. You could call it an informer's bounty. It ensured that what went on in the occupation of inheritances came to light. One informed on the next. All that was needed was to catch one, to get hold of the ball of yarn at any one point, and then it unwound by itself.

Though it was introduced only for the sacra, the rule was also of extraordinary value to the creditors. Each new denunciation gave them a new debtor, and the official inquiry, as we may call it, before the sacred court into where the things in the inheritance had got to supplied them with the evidence for pressing their claims afterward by civil action. Here again is one of those sly arrangements of the old law, of which I could give you many more examples: infallible in their effect and unassailable in their legitimacy, for who would have disputed the pontiffs' right to lay down whatever rules they thought fit in the field of the sacra entrusted to their care? And here too the cunning wore the mask of mildness and leniency. What could be milder than not being too particular about trifles, and, reversing our modern saying, "we hang the little thieves and let the big ones go," catching the big ones and letting the little ones go? The one who had taken the most could pay the bill. The nibbling of the others was overlooked; it was put on his account. But who had taken the most? With that, the mutual informing was set in motion.

In its new wording, the pontiffs' ordinance on the sacra contained one more provision, which has been no better understood so far than the one I have just discussed. In fourth place it laid the liability on the man "qui de creditoribus plurimum servet," "whichever of the creditors secures the most." Nobody has quite known what to make of it. The rule can't possibly have meant that whichever of the creditors of the estate was paid the largest sum in the winding up of the estate, as we would say (plurimum servet in that sense), had to take on the sacra. Since all the creditors were paid the same percentage in proportion to their claims, the one who had received the most was at the same time the one who had lost the most, and he, who instead of profiting from the estate had actually lost by it, couldn't possibly have been saddled with the sacra. He might then have had to pay in on top! In this difficulty Savigny proposed an emendation of the text of Cicero. Instead of qui de creditoribus plurimum servet we are to read qui creditoribus plurimum servet, "who saves the most for the creditors," and understand by it the bonorum emtor, the buyer of the insolvent estate, who had made the creditors the highest bid and had the estate knocked down to him. As though the injustice to the creditors that lay in charging an insolvent estate with the sacra were avoided by laying the liability on the bonorum emtor! He would naturally reckon the capitalized cost of the sacra into his bid for the estate, and pass it on to the creditors by bidding just so much less, the way indirect taxes are passed on.

The matter is quite simple. Let's picture the case in practice: someone in old Rome has died whose estate was clearly not going to cover his debts, and so no heir took possession of it. What will the creditors have done? Certainly they didn't sit on their hands! The correct thing would have been to take joint measures to protect themselves, say by appointing a trustee (the later "magister" of the praetor's edict, "per quem bona veneant," "through whom the goods are to be sold," Gaj. III. 79), who was given the job of guarding the estate and everything else. But a creditor might also hit on the idea⁶⁹ of looking after himself alone and taking possession of things to secure himself, "servare."⁷⁰ What position should the law take toward him? Without doubt it had to try to scare him off with the threat of some painful disadvantage. But what disadvantage? The penalty of being treated as usucapient of the inheritance, as with the ordinary occupier of heirless things? That plainly didn't fit him. He had occupied, if I may put it so, not pro herede, as heir, but pro creditore, as creditor. He didn't mean to enrich himself out of another man's inheritance. He had merely taken a pledge out of the estate, which the heir, if he accepted later, could redeem. But he still had to be put off the idea, and the pontiffs saw to that by charging the man "qui de creditoribus plurimum servet," that is, the one who had set aside the most to secure himself, with paying for the sacra if it came to that. Here again, then, from the position of the sacred law, protected against any objection, an influence was exerted on the civil law that the civil law had every reason to acknowledge with thanks. "Whichever of the creditors takes the things in his debtor's estate on his own initiative," the rule ran, "runs the risk of having to answer for the sacra. If someone else has done the same, he can escape the liability by showing that the other set aside even more."

It made no difference at all whether he had achieved his aim of getting cover at the other creditors' expense or not. Even if they had chased all the things back off him, he stayed caught in the noose he had once put his head in. The text didn't say "qui servaverit," "who has secured," but "qui servet," "who secures," that is, who takes. What happened later doesn't come into it. That's also why there was no need for a year to pass, as with the usucapion of the inheritance.⁷¹ What for? The law knows nothing of a "usucapio pro creditore."

Whether a creditor had taken much or little from the estate, then, if he couldn't show that someone else had taken more, he was liable. For if nobody else had taken anything, even the man who had taken only a penny's worth was "is, qui plurimum servet," "the one who secures the most." If others had done the same, the road of denunciation discussed above opened up to him, to shift the burden off himself and onto the others who had taken more. In this way light was let into the matter here too. The honest creditors, who had kept their hands off, learned where the things in the estate had gone and whom they had to turn to. The sacred court supplied them with the addresses.

Whether the effect of the sacred law on the civil law that I've described, both in the case of the usucapio pro herede and in that of the creditors' occupatio, was a mere consequence (a reflex effect, as I like to call it) or was intended, a purpose, I don't propose to get into a fruitless quarrel with anyone about. For my own part I take the first view. But since I know I have a much better chance of winning people over to my opinion by counting on their spirit of contradiction than on their agreement, I hereby assert the second, and now expect the next man who writes on the usucapio pro herede to set me right. If only I'd had the sense earlier to refute the new views I meant to put forward, as entirely untenable opinions someone had urged against me! I'd have got them accepted much more easily.

My cigar is coming to an end. I'm obliged to close my lecture.

But I have something more with me that I must pass on to you, since it contains a direct confirmation of my view of the captious character of the usucapio pro herede lucrativa. It's a copy of a valuable piece of Roman antiquity bearing on our subject, discovered only very recently. Last year in the Vatican, in a palimpsest of the Septuagint (F. 115), on a leaf containing Psalm 137, the older text underneath was restored, and it turned out to be a single piece from a larger collection of hymns and songs written in Latin. The song on our leaf is listed as No. 34 and bears the heading "Carmen creditorum debitoris sine herede defuncti," "Song of the creditors of a debtor who died without an heir." By a wonderful coincidence the upper and lower texts agree in their wording so closely that one might get the idea that one was modeled on the other. In any case the agreement of the first two verses is quite astonishing, and in the manuscript they even coincide physically, each one lying over its fellow. The only difference is that the lower text holds the song of rejoicing of the Roman creditors, while the psalm above holds the lament of the Jews captive in Babylon.

I set down the first verses of the psalm for you so that you can see the agreement for yourself. I have translated the Latin text freely; it has not been published yet.

Psalm 137. The Lament of the Captive Jews.

1. By the rivers of Babylon, there we sat down, yea, we wept, when we remembered Zion.

2. We hanged our harps upon the willows in the midst thereof.

Hymn 34. The Creditors' Song of Rejoicing.

1. We sat still at home and were sore afraid, whether the heir would come to accept the inheritance and pay our claims.

2. We laid our notes of hand in the strongbox,⁷² which is fast, that they might be safe and ready to hand when we had need of them.

3. But no man came to accept the inheritance, neither ex testamento nor ab intestato, by will nor without one, for every man knew that there was nothing to be had.

4. Not even a bonorum possessor showed his face,⁷³ one granted the estate by the praetor; not even the wife sought bonorum possessio unde vir et uxor, the praetor's grant to husband and wife; and the last glimmer of hope in our souls went out.

5. Then came he, the man who was to walk into the snare,⁷⁴ to deliver us out of our distress.

6. He saw the plow of our debtor, the scoundrel,⁷⁵ standing in the field, where we had left it on purpose in our cunning.⁷⁶

7. And it found favor in his eyes, and he resolved to take it unto himself when the time was ripe.

8. And when it was night and darkness fell, he went and fetched it and hid it in his stable under much hay.

9. But our watchman,⁷⁷ whom we had left behind, pierced the dark night with the eyes of Minerva's bird, and told us what had been done.

10. And we heard the tidings with open ears and buried them in the quiet chamber of the heart, as the seed corn in the earth, until the time of ripeness should come.

11. Still we sat and stirred not, and waited until the sun in the heavens had run his yearly course.⁷⁸

12. "Stolen from me is a plow; in the hay Caius has hidden it; I shall search it out myself, with my dish and my apron of leather."⁷⁹

13. Thus spoke the watchman; we others followed as witnesses.

14. And out of the hay came the plow. It was not the watchman's, to be sure; he himself saw his mistake. "You yourself are the owner; by law you acquired it, for you became heir to Stichus."

15. "So the law will have it," we all cried out in chorus. "Heir you are, and debtor therefore: here, take all of our notes."

16. "Hail to you, three times and four, happy possessor of the inheritance! Hail no less to ourselves, that we have found us an heir."

Here the creditors' song of rejoicing ends. I propose to call it the psalm of the law of inheritance, or the Song of Songs of the mousetrap of the old law of inheritance.

A Letter to the Editors⁸⁰

You ask whether I've fallen silent? Very nearly. I've been intimidated. I hardly dare go on with my chats in the old way. It has come to my ears that my chats have given offense in certain circles, and I even possess direct evidence of it from Prague, in which the writer does his honest best to say the bitterest things to me. The writer hasn't given his name; he signs himself collectively as "the readers of the Juristische Blätter up to now." Since this robs me of any chance of letting him know something privately, I'll use the present opportunity to inform him that I don't live in Giessen, where he addressed his letter, but in Göttingen. If the post office in Giessen hadn't known my present whereabouts better than he did, his letter would never have reached me, and I'd have been deprived of knowing the impression my chats have made on the "readers up to now" of your paper in Prague. The letter writer who speaks in their name plainly has the best will in the world to say really nasty things to me, and his letter would leave nothing to be desired if his wit were on the same level as his good will. From the sample of it he has given me, I understand why he can't take any pleasure in my chats. I'd feel just the same in his shoes. It reminds me of the answer a witty fellow once gave when someone in his presence called another man a mope who went about with his head hanging: "If I had a head like that, I'd hang it too!" If I had a head like my anonymous friend from Prague, the world would have been as safe from the Chats of a Roman-Law Scholar with me as it will be with him.

If he alone had taken offense at them, I wouldn't take the matter so seriously. But according to his signature it is all your subscribers in Prague who have sent me their letter of dismissal through him, and in your own interest I feel bound not to put you at risk, by going on with my chats, of losing your Prague subscribers and others of like mind. You mustn't take this too lightly. Your subscribers are entitled, after all, to their weekly helping of the plain legal home cooking they're used to, and you mustn't set before them anything that has no claim to the name. If, then, as I gather from your letters reminding me, you want the interrupted Chats of a Roman-Law Scholar to go on, there's only one way to do justice to the interests and the tastes of the two circles of readers of your paper, one of which insists on the usual solid fare while the other is willing, alongside it, to put up with something lighter now and then. You'll have to bring out every number of your paper in a double edition, one with my chats and the other without. The purpose of these lines is to urge this proposal of mine on you most earnestly, in the interest of your paper. A double edition of one and the same paper is not without precedent. There was a time when one of our leading German newspapers brought out two editions of every number: one for Metternich's Austria, tame, harmless, inoffensive; the other for the rest of the world, less timid and less carefully dieted. The history of literature too knows of cases where copies of one and the same work were printed differently for certain persons into whose hands they were to go. An author who wished to dedicate his work to several persons, not jointly but to each one separately, solved this seemingly insoluble problem by having a special dedication page printed for each of the presentation copies, bearing only the name of the person he was presenting it to. It was an ingenious imitation of the correal obligation in the field of literature; but for it to work, it presupposed that no correus ever heard about the others, which in that case was not so. You for your part wouldn't need to go about the double edition so cautiously. Announce it publicly, and leave each of your boarders to choose the one that suits his taste.

That concludes my letter. Let us both repair to the Golden Duck and go on with our chats there. If they should turn out a little more serious than before, put it down to the low spirits the letter above has put me in.

Pictures from Roman Legal History, III: Rich and Poor in Old Roman Civil Procedure

You're surprised to hear me name a different subject from the one I had in view for our next meeting? You remind me that I promised you the second showpiece from my collection of legal curiosities, the civil-procedure sham. I've left it at home today. I was afraid of overdoing the curiosities all at once; let the readers recover a little from the mousetrap first. On the mousetrap, by the way, I find myself obliged to make a shameful confession: I was hoaxed over the creditors' hymn of rejoicing (at the end of no. 15 of your paper). As I have since learned, it is invented from beginning to end. It's a little piece in the manner of Sanchuniathon, Simonides and other forgers, to whom, as the celebrated case of the forged Moabite antiquities of recent years has shown, even learned bodies can fall victim, and in the present case, as I'll add in my own defense, it fooled others as well as me. Several people have asked me⁸¹ where the Latin original of the hymn is to be found, and whether it has been printed already, or whether we must wait until Bruns makes it the common property of the learned world in a new edition of his Fontes juris Romani antiqui, the sources of ancient Roman law. These inquiries led me to look into the matter, with the regrettable result I've told you. A pity! It would have been so lovely if the hymn had been genuine! But don't think any the worse, for that, of my view of the usucapio pro herede lucrativa, which believed it had found support in the hymn. The hymn could have been genuine. It had inner truth, and that is more than can be said of some attempts to restore the gappy genuine texts of antiquity. The hymn needn't be ashamed beside many a restoration of the text of our sources by quite eminent scholars.

Now to our present subject.

"Rich and poor in old Roman civil procedure?" you ask me in surprise. "I've never heard of that contrast in the old law. Was there a different law of procedure in old Rome for the rich than for the poor? Did our modern legal aid for the poor perhaps reach back into hoary antiquity?" You're right to be surprised. I've never heard of the subject either. It's my own invention, "myne eegene Inventie," as a Dutchman in Karlsbad proudly answered. He had turned up wearing a decoration nobody had ever seen, and it drew so much public attention that someone took the liberty of asking him about it, and got the answer: myne eegene Inventie, my own invention! You know the source from which I draw my discoveries in legal history: my legal-historical cigar. For this subject I wouldn't have needed a fine Havana. An ordinary Austrian government-monopoly cigar would have done the same service. Or, less figuratively, the things I mean to tell you below can be found without much trouble. They need no violent racking of the brain, only plain reflection. But of course you do have to know how to read between the lines of our sources, because not one word of what I mean to take from them is there in black and white, and because nobody has tried reading between the lines on this point either, the subject above has remained entirely unknown to science to this day. I hope to bring it such credit that nobody will pass it by unheeded again. If the only gain I promised myself from my work lay in shedding light on an overlooked side of old Roman procedure, I might hesitate to treat the subject before readers who are mainly Austrian lawyers. But the interest attached to it goes far beyond old Roman procedure. It's a piece of Roman history I shall show you, and in fact a contribution to the history of the class struggle between patricians and plebeians.

The ground our inquiry moves on is the old Roman procedure, the procedure of the legis actiones. I won't go into its peculiar character here, since I'd only be copying out my own book.⁸² You'll know that it consisted in the strict carrying through of the principle nulla actio sine lege, no action without a statute, or, as I called it there, in the peculiar method of citing the statute, by which every claim had to appear in court in the very words in which the statute had provided for it.

According to Gaius (IV, 12), this old procedure knew five different kinds, of which only two concern our purpose for the present: the legis actio sacramento and the legis actio per manus injectionem, by the laying on of hands. Since I don't know whether you and your readers still remember them from your university studies, I think it necessary to set out what my purposes require.

We turn first to the legis actio sacramento. It was the normal form of old Roman procedure (generalis erat, "it was the general one," as Gaius IV, 13 says), used wherever no other was specially prescribed. What was peculiar to this form of procedure was the sacramentum, the forfeit money that the losing party paid. Where the thing in dispute was worth 1,000 asses or more, it was 500 asses; where it was worth less, 50. Formally the lawsuit didn't turn on the thing in dispute itself but on the question which of the two parties had forfeited its sacramentum. The judgment ran: sacramentum (Auli Agerii, or Numerii Negidii) justum esse, "the sacramentum of Aulus Agerius," or of Numerius Negidius, the Romans' stock names for plaintiff and defendant, "is just." It was like the action on a sponsio praejudicialis in the later formulary procedure, where the dispute was put in the form of a wager the parties made with each other, and the judge likewise ruled on it only indirectly, by deciding which of the two parties had won the bet. But in this modern form of the courtroom wager the stake was awarded to or taken from the party himself, and set so tiny that its very size announced its true, that is purely formal, procedural meaning. With the sacramentum it was otherwise. It didn't go to the party but to the treasury (Gaius IV, 13: in publicum cedebat, "it went to the public purse"). The original form, from which the sacramentum also got its name, consisted in my view in its going to the religious fund, to be spent on worship. That use is expressly attested by Festus.⁸³ To this note of his Varro (de lingua latina V, 180) adds another, which in my judgment enables us to reconstruct the original shape of the thing completely: that the parties deposited their sacramentum "in sacro," in a holy place, or "ad pontem," at the bridge, that is, at the pons sublicius, the old wooden bridge where the pontiffs had their seat. The deposit, then, was made with the pontiffs. The winner got his back; the loser's was forfeit. In the later form of the thing, which Gaius has before him, the sacramentum was no longer deposited at the start of the lawsuit. Instead the parties gave the praetor security for it (praedes, sureties), and the losing side's sacramentum was then collected after the end of the lawsuit, as Festus reports in the passage above, under the lex Papiria, by the triumviri capitales, the three officers entrusted with enforcement, and paid into the treasury.

That these two different ways of raising the sacramentum, by immediate deposit and by later collection against security given beforehand, represent two different stages in the development of the institution, the first the older and the second the younger, is a matter on which legal historians are almost unanimous,⁸⁴ and I don't think it necessary to set out the obvious reasons for the assumption any further. Anyone who knows anything about the development of Roman law will not be in doubt, where two forms of one and the same institution are attested, a sacred or religious one and a profane or worldly one, about assigning the first to the older and the second to the newer time. Linguistically, sacramentum shows its originally religious meaning in its very name. To this is added the factual note that it was spent for worship and collected by the religious authority, the pontiffs. And whatever one may think of the hypothesis I have put forward,⁸⁵ according to which the legis actio sacramento in its original form meant proceedings before the religious court, this much at least is attested in the sources:⁸⁶ in the old days the pontiffs had a decisive share in the administration of justice, and the profane period of jurisprudence, which begins with Coruncanius, was preceded by a religious one. The legis actio sacramento in its original form comes from that period. We can call that form the religious one, and the one Gaius reports to us the profane one. The advance from one to the other was marked not only by a change in the fund into which the sacramentum flowed (church fund, treasury), and accordingly in the authority that had to collect it (pontiffs, praetor), but also by a change in the manner of collecting (beginning of the lawsuit, end of it). In my opinion the prevailing view makes too little of this last change when it sees in it only a change in the way the money was raised, not also in the way it was used. Since that change, in my view, the revenue from the sacramentum procedure belonged to the state, "in publicum cedebat," as Gaius says. Varro agrees, in the passage cited: ad aerarium redibat, "it went back to the treasury." Only he assumes this already for the time when the sacramentum was still collected by the pontiffs, which I think is wrong, since paying the money into the state treasury, which would have allowed it to be spent on profane purposes, could not be squared with its being earmarked by religious law (Festus: consumebatur id in rebus divinis). We may therefore call the change that came about when the sacramentum passed from the pontiffs to the praetor, in a modern phrase, the secularization of the sacraments.

What could have led the state to this measure? Certainly not a desire to enrich itself at the church's expense. Compared with the enormous sources of income the Roman state had at its command in the heyday of the Republic, the income from the sacramenta was so trifling that it couldn't have tempted the state to encroach on the rights of the church for its sake. It must have been some other reason. One might be inclined to see it in the turnabout that, according to our sources, came about in the law roughly a century after the Twelve Tables: the law's emancipation from the dominant influence of the college of pontiffs. Once that influence stopped, once it was no longer the pontiffs who kept the store of procedural formulas, the legal ground for their going on collecting the sacramenta fell away too. But much as I recognize the connection between the secularizing of jurisprudence, to put it briefly, and the change in collecting the sacramentum, that alone isn't enough to explain the change that came about in the rest of the form of the legis actio sacramento. Why was the former deposit of the sacramentum replaced by crediting it against security? That question is entirely independent of the other change. Legal historians so far have neither answered it nor even raised it. They're content with the bare fact and don't go into the reasons for it. And yet it would surely have deserved some thought. I hope to show you shortly that the measure was of eminent social significance.

With this I've gathered the material on the legis actio sacramento that my purposes require. I now turn to the legis actio per manus injectionem.

Suppose a man owed a sum of money that had been awarded against him by a final judgment, or admitted by him in court, or contracted in the well-known form of the nexum, the solemn loan made before the libripens, the holder of the scales, and five witnesses (and the legacy per damnationem, which bound the heir to pay, belonged here too). In modern language, a debt on a bill of exchange. If he wanted to dispute it, he wasn't heard in his own person. He had to produce a vindex, a champion to take up his case, who, if he lost, had to pay the amount of the debt alongside the debtor, as a penalty for interfering with the creditor's right. This was the original shape of all those claims in which, under the later law, a debtor who disputed the claim and lost was punished for his denial with double the amount (ubi lis crescit inficiando in duplum, "where the claim grows to double by denial").

The legis actio per manus injectionem, then, agreed with the legis actio sacramento in threatening the losing side with a penalty, and quite regardless of whether he had disputed his opponent's claim mala fide or bona fide, in bad faith or good. Whoever is in the wrong is for that very reason at fault and must be punished.⁸⁷ The opponent's wounded sense of justice demands it, since he feels the disputing of his right as an attempt to take it from him, and it also suits the public interest. For the community has the liveliest interest in curbing as far as it can the itch to quarrel and go to law, which, at low stages of civilization above all, has an inexhaustible source in the wildness and roughness of the people, and which holds the greatest dangers for the community's well-being. Wrangling and quarreling, an evil at all times and in all conditions, since they waste energies that could be better used, carry a heightened danger in the ages I have in view. Here the fire of discord, once kindled, only too easily spreads beyond the narrow hearth on which it was first lit. It draws in a whole set of other people besides those immediately concerned, friends, relatives, partisans, and so threatens to start a general blaze. With us, lawsuits as a rule are played out between the two parties alone. Other people, however close they stand to them, aren't touched by them. Our lawsuits today are like cases of illness that threaten no infection to third persons. But in times of roughness, when a quarrel as such still holds a strong psychological charm (the charm of letting off wild surplus strength, of a trial of strength in which a man proves his courage and character, of a duel moved into the courtroom), in these times, when the chief task of the law must still be to tame the defiance of the individual and to accustom the people to discipline and order, even a quarrel conducted in the forms of the law holds a danger we nowadays have no more notion of than of the Black Death of the Middle Ages: the danger of a ruinous plague that can spread far beyond the house where it broke out and draw in wide circles. A lawsuit that began as a fight between two people alone can turn into a general calamity here. And so in these conditions a strong counterweight is needed against the lure of litigation. The measures the law takes against the itch to sue here are on a par with those of our modern public-health police for stopping the spread of an epidemic. You could fairly call them the public-health measures of civil procedure.

This point of view explains the procedural penalties (for that's what they must be called, if you want to name what they really are, not costs of procedure⁸⁸) that we meet in so many undeveloped legal systems. Their purpose is to be an economic deterrent against going to law, a penalty for the danger a lawsuit brings down on the community. To leave no doubt about this point of view, let the following scale of penalties from the Twelve Tables serve. The statute set 25 asses for cutting down another man's trees, the same for ordinary insults, and for a broken bone (os fractum) 300 asses if it was a free man's and 150 if it was a slave's. In a sacramentum lawsuit over an object worth 1,000 asses or more, on the other hand, the forfeit was 500 asses, and in the legis actio per manus injectionem the penalty even rose to the whole amount of the debt, so possibly to many thousands of asses: sums, that is, that left all the penalties fixed by statute far behind. As a further help in rightly judging the size of these procedural penalties, I'll add two rates from that time. When the lex Aternia Tarpeja (300 A.U.C., the 300th year of the city) fixed the fines (multa) by statute, a sheep was reckoned in money at 10 asses and an ox at 100. Probably a pretty moderate rate, but one that can't in any case have stood in glaring disproportion to what the two were worth in money at the time.

Besides this economic deterrent, Roman law knew a moral one too: the oath, the juramentum calumniae, by which a party swore he was not going to law in bad faith.

You'll grant me that the old Romans knew how to judge rightly the dangers litigation posed to the community and how to meet them with vigor. In old Rome a lawsuit was a decision every man had to think over carefully. He might sooner break his opponent's arm or leg, box his ears and give him a beating; then he paid only the tariff of 300 or 25 asses, and the matter was settled. But in a lawsuit more was at stake. In a lawsuit over the smallest object worth a few asses, the sacramentum was already 50 asses; over an amount of 1,000 asses, 500. And these sums had to be paid at once, in cash. This is a point of eminent importance that has had far too little attention so far, and we'll now give it our whole attention.

When it comes to deciding on an expense, it no doubt makes a big difference whether you have to meet it straight away in cash or can put the payment off to the future. As a practitioner you'll grant me that if clients, when they started a lawsuit, had to pay the whole final bill straight down on the table in cash, instead of the relatively small advances they make to their counsel, many a one of them would think the matter over carefully and would probably shrink from the lawsuit. Many parties have no idea at all how high the costs of a lawsuit can grow. They aren't conscious of the high stake they're playing for. The old Roman knew it!

And even between knowing and paying cash there is still a big difference. When you merely know, you often console yourself with the familiar thought that it will sort itself out later: the familiar bill a man is so fond of drawing on the future. With cash payment this putting off to the future falls away. The present stretches out its greedy hand and won't be satisfied with a bill. In the old Roman lawsuit, as at the gaming table, you played only for cash. The stake had to be paid at once, at the start of the lawsuit. The procedural penalties stood, if I may put it so, at the entrance to the court, not at the exit. A preacher once praised it as proof of God's goodness and wisdom that He had put death at the end of human life and not at the beginning. With lawsuits one might be tempted to praise it as proof of a legislator's wisdom if he put the payment of costs at the beginning of the lawsuit instead of the end.

Do I mean that seriously, you ask me? Honestly: No! When the task is to do justice to the different sides of one and the same institution, I'm in the habit of thinking my way into whichever one I'm dealing with at the moment with complete, deliberate and conscious one-sidedness. I might almost say: of falling in love with it, as if it were the only one that counted. With the next one in line I do the same, and the previous one is then entirely forgotten (that's often the way with falling in love, too!). That way I'm sure none of them gets short shrift. And that's what I've done here. I've praised the advantages of that Roman arrangement so warmly that anyone who has followed me so far must think I know nothing more perfect in the world. You'll learn below that I have an open eye for its dark side too, and I'll do my best to put it in as bright a light as the bright side I've just dealt with.

Instead of speaking myself, I'll let an old Roman of the fourth century of the city have the floor, a poor man of the plebs. It costs me only a few puffs on my cigar, and there he is.

The scene is the Forum, before the praetor. Our man appears before him as plaintiff, accompanied by a rich patrician whom he has summoned to court. While the plaintiff was away as a soldier in the field, his father died, and his neighbor, the present defendant, used the opportunity to take possession of the father's farm. Since he refuses to hand it over, it comes to a lawsuit. The plaintiff has put the case to the praetor, and the following conversation develops between them, in which the praetor, as a person of rank, shall enjoy the honor of quotation marks.

"How much are your lands worth, over or under 1,000 asses?"

At least 1,500 asses.

"Then before the case can be brought you first have to deposit 500 asses with the pontiffs. Go to them, pay in the sum and bring me the receipt for the deposit, and then I'll accept the action."

I can't possibly raise the money. Where am I, a poor man whose whole property is being kept from him by the defendant, to find 500 asses in cash?

"That's your affair. Without the sacramentum deposited first I can't accept the action."

But my case is the clearest in the world. The witnesses I've brought are ready to swear to every word I've said. It isn't me but the defendant who'll lose the lawsuit and have to pay the sacramentum in the end.

"Everyone says that. I can't help you myself; my hands are tied. Turn to the reverend fathers. Perhaps they'll let you off the deposit."

Here the first scene ends. The second takes place at the pons sublicius, before the member of the college of pontiffs entrusted that year with lawsuits. It turns on the deposit of the sacramentum.

The plaintiff asks to be let off the deposit, since he isn't able to raise the cash.

"Whether you're rich or poor makes no difference. With us there's no respect of persons. Before the law everyone is equal."

A fine equality! What's a trifle for the rich man is an insurmountable obstacle for the poor one. It's the equality that sets the weak child the same load to carry as the strong man. The rich invented the sacramentum rate of 500 asses to make going to law next to impossible for us poor devils.

"Take care not to blaspheme the laws of Rome, or things might go badly for you. I can only apply the laws, not make them."

Give me credit for the 500 asses. You can do it without any risk. My lawsuit can't possibly be lost.

"The gods don't give credit. They stick to cash, and I mustn't give away any of their rights. The sacred books forbid it. But borrow the money from somebody else."

Who'll lend it to me? If I had my inheritance in my hands it would be easy, but that's exactly what's being kept from me.

"Then there's nothing to be done for you. You may go."

With that the man goes off. The kindly pontiff, for his part, goes in the afternoon to the defendant, his cousin, and reports to him on what happened.

"Your opponent can't scrape the sacramentum together. Congratulations. His field is as good as yours already. You owe it entirely to us and to our wise institution of the sacramentum. In return you can dedicate one of your fat oxen to the church."

That's no great matter to me. I'll show you my gratitude. There's an ox in this for me, never fear.

That ends the play. The poor man can't raise the money, and the rich man keeps the field. It's the parable of Nathan, of the rich man and the poor man's ewe lamb, and in Rome it will have been played not once but a thousand times.

This point, the raising of the sacramentum, gives our legal historians not the slightest difficulty. I've yet to find one who has stumbled over it. The theorist makes short work of the conditions the law has attached to the existence or the enforcing of claims. He thinks them, and there they are. You're reminded of the Psalmist's words: "For he spake, and it was done; he commanded, and it stood fast." Thinking and being are one. There is no human brain in which the thought of the philosophy of identity comes true so easily as in the brain of the theoretical jurist. What does he care how the conditions he lays down in abstracto are to be proved in concreto, or how the razor-fine distinctions he manages to uncover in the concepts are to be recognized? That's the practitioner's business. Let him see how he copes with it. For the theorist the only question is how to think things correctly. His bold flight of thought would be brought to a dead stop, a lead weight would be fastened to his heel, if he had to answer for how his thoughts were really to be put into practice in applying the law.⁸⁹

But in reality, alas, things don't go so easily. The finest right can founder on some wretched condition the theorist hardly thinks worth noticing. Five hundred asses are a trifle for someone who only needs to think them; but for the man who has to pay them they may be a sum beyond raising. An admirable specimen of the theorist's knack for disposing of real things by mere thinking has been supplied by one of our most learned legal historians (one may well call him, without slighting anyone, the most learned of all now living): I mean Huschke.⁹⁰ He is innocent enough to suppose that the deposit of the sacramentum wasn't prescribed by statute in Rome at all, but that the parties deposited the sum voluntarily, "to express by it their confidence in the justice of their sacramentum." In the Rome he imagines, everyone, even a poor devil, always had 500 asses on hand, so as to be able to deposit them even where the statute didn't require it of him. That by depositing he lost the interest he might otherwise have earned didn't come into it, given the well-known indifference of the old Romans to making money. What did such an old Roman, whose only concern was "to document the justice of his case," care about interest? A mere bagatelle, just like the capital. For the old Roman à la Huschke, having the capital was just as easy as it was for his creator to think it into his hands!

For those of my readers who don't know this scholar's name, I'll add that he is the man who enriched zoology with the Bovigus by pure thought. This was an animal that was later lost, and of which no fossil remains have survived either, but which must nonetheless have existed on rational grounds. In his "Constitution of Servius Tullius" (Heidelberg 1838), Huschke arrives at the conviction that the five property classes of the census must have been matched by five animals belonging to the res mancipi, the class of property that could only be transferred by the formal sale, so that each class had its own, as each of the four Evangelists has his. The Romans, it's true, know only four, but that doesn't bother Huschke. He makes up the lack by inventing the missing fifth, which, after establishing its logical necessity, he introduces on p. 252 into the circle of real creatures, and of which he draws a vivid picture. He rests the logically compelling reason for its existence on this: that "in plowing, a man must walk beside the ox, drive it and guide the plow, but this bodily motion must be taken off man entirely, by reason of his universal nature," because otherwise "creation as it came from God's hand would have remained imperfect." Unfortunately he doesn't go into the question whether the toil of chopping wood, baking bread, blacking boots and so on was not also originally taken off man by special animals, because of his universal nature and because creation would otherwise have remained imperfect. The townsman was entitled to the same relief by a special animal as the countryman received, and if the plan of creation was fully carried out, there must have been a fine collection of interesting domestic animals that "took the bodily motion off man entirely." With the same right as the farmer could demand a special animal, so could the woodcutter, the baker and the cobbler. However that may be, the farmer at any rate was lucky enough to receive such an animal, "which took off man those three bodily motions (walking beside the ox, driving it, guiding the plow) and left him only the mental direction of the act." It drove the ox, "which presumably happened by means of a trunk and tusks" . . . "the holding of the plow was no doubt done by a strong tail," while the man sat on its back, which was built "supple" for the purpose. In the supplement (p. 716) he corrects his idea that "in the perfect creation the Bovigus held the plow with its tail": "on renewed examination" he "considers this mistaken, and believes rather that a trunk served the purpose," which he proves by quite convincing speculative reasons.

You now know enough of Huschke not to find it strange that, according to him, the Romans deposited the sacramentum of their own free will without being forced to by the statute. For anyone who believes in the Bovigus, believing this will be child's play! But anyone who doesn't command that measure of faith can hardly help voicing his weighty doubts. An old Roman is supposed to have let money out of his hands when he didn't have to? Not even the richest would have done that, if only because of the interest he'd have lost, since money lay at the temple without interest. But what is the interest the parties would lose for nothing to Huschke? "What's Hecuba to him?" And what even the richest man in Rome wouldn't have done we're supposed to think possible for the poor! But of course, from the region of clouds from which Huschke views the Roman world, the difference between rich and poor can no longer be seen at all. It has been entirely overcome. Everything earthly that clings to things is done away with in those regions. Nothing exists there any more but legal concepts, the transfigured beings who inhabit the jurists' hereafter and bathe there in the pure ether. Blessed the spirit who, in blissful contemplation of them, shakes off the cares of this world and dwells with them in the jurists' heaven,⁹¹ if only he wouldn't step out of his part, wander down to earth and start talking about practical things!

To be fair to Huschke, I must add that he names a second reason as well, no less original than the view it is called up to support. He has discovered that by bringing a sacramentum lawsuit the parties consecrated themselves to the gods and so put themselves in the state of a homo sacer (in the work cited, p. 367). By depositing the sacramentum beforehand, they meant to free themselves from that state at once in case they lost. And indeed they'd have been well advised to, in all seriousness! For the homo sacer, the "accursed man," that is, the wicked villain whose crime cried to heaven and could be wiped out by no punishment, could be killed by anyone.⁹²

A companion piece to this homo sacer of civil procedure is the old Roman daughter-in-law who took it into her head to quarrel with her mother-in-law. For that, according to the discovery of another recent scholar,⁹³ she too became an outlaw (sacra). Anyone might kill her, so the mother-in-law herself had least reason of all to hold back. A shudder runs through you when you picture the lot of the poor women of Rome: one quarrel with the mother-in-law and they were dead. I'd like to see the angel of a wife a proper mother-in-law couldn't pick a quarrel with. But in old Rome the mothers-in-law must have been an entirely different breed from ours. Happy city! For that alone one would have liked to live there, to say nothing of the rich stores of ready cash available there even to the poorest.

Let's come back from the daughter-in-law to our poor man in his lawsuit. I believe I've shown you so far how hard it was made for him to go to law with the legis actio sacramento, and I'll now show you the same for the legis actio per manus injectionem.

The penalty for a losing defendant there was so enormous that a poor man could risk a lawsuit only when his case was beyond all doubt. In the sacramentum lawsuit, for sums up to 1,000 asses, he risked only the rate of 50 asses. In this form of procedure, on the other hand, that rate was reached with a debt of just 50 asses; with a debt of 500 asses it reached the highest rate of the sacramentum lawsuit, and beyond that it exceeded it. Then there was another circumstance that made the defendant's position in this lawsuit, against the plaintiff's, far more unfavorable still than in the sacramentum lawsuit. In the sacramentum lawsuit the plaintiff risked just as much as the defendant. In this one he risked nothing. If the creditor lost, he was simply turned away, whereas the principle of equality would have required him to pay the defendant, as a penalty, the amount of the debt he had wrongfully claimed, just as the defendant or his vindex had to pay it to him if they lost. That the creditor risked nothing in the legis actio per manus injectionem isn't expressly reported to us, admittedly. But quite apart from the conclusion one may draw from the silence of our sources on the point, it follows plainly from this: since in the proceedings against the vindex the creditor, as plaintiff, asked for the vindex's condemnation, he could not himself be condemned, on the principles of Roman procedure. Nor, indeed, was there any such condemnation in those cases of the later procedure where the defendant was condemned to double as a penalty for denying (ubi lis inficiando crescit in duplum), which contain only the modernized form of the old manus injectio. The position of the two parties, then, in shameless disregard of every principle of procedural justice, was made highly unequal, and attack was given an enormous advantage over defense. In practice that amounted to the advantage of the capitalist over the needy. For the capitalist the ways of the law were made smooth; for the poor man they were made as hard as could be. Pressing a doubtful or entirely groundless claim in the form of the manus injectio held not the slightest danger for the rich creditor; disputing it held the greatest danger for the poor man. In the legis actio per manus injectionem the disfavor with which the law treated the poor reached its height. In the sacramentum lawsuit what was at stake was in the first place ownership, inheritance, family and freedom, and for these some measure was still observed. In a lawsuit over a man's freedom, indeed, the lower rate of 50 asses was always applied, however much the alleged slave or free man was worth (Gaj. IV, 14). But in the manus injectio, whose subject was the interests of the Roman capitalist, all consideration stopped. Here we come face to face with the Roman usurer, that vampire of Roman society, about whose ruthlessness and greed the reports of that time have so much to tell us. It was he who had cut the manus injectio, with its penalty of double, to his own measure and twisted it into one of those nooses he threw over the neck of his unhappy victim.

In one point only does the poor man's position in this legis actio seem to have been more favorable than in the sacramentum lawsuit: he needed no ready cash to go to law. But that is only how it looks. A junior clerk had put down among his official expenses a hat he had bought for the installation of his new chief. The chief struck it off the account. The next year the hat appeared again. The chief struck it off once more and told him in all seriousness that the hat was not to be charged again. On the next account it was missing. "Now the account is in order; the hat has finally been left out," the chief remarked. Answer: "Oh, the hat's in there all right, but Your Excellency can't see it." In the same way the cash was in the legis actio per manus injectionem; it just didn't show on the outside. Let's follow the debtor in his efforts to find a vindex. The hat will turn up, never fear!

Since the vindex was liable himself if he lost, he naturally had his client give him security. With a rich man a bare promise was enough. For a poor patrician, his relatives or his gens, his clan, would find him a vindex on the same terms. But what did the poor plebeian do? He knocks at this door and that one, presumably those of people with a reputation for knowing the law, but everywhere he gets the same answer: "I can't take on your case without an advance. If I lose, I have to pay the amount of the debt myself, because I disputed the creditor's claim. Get me the advance."

But my case is beyond all doubt. You don't run the slightest risk.

"Everyone says that. You may have a good case, but who can foresee how it will end? In court nothing is impossible; we've seen examples of it."

Then I'll give you sureties.

"I can't agree to that. In return for the service I do you, am I supposed to go chasing the money I laid out afterward? You can see that won't do. But if you have friends willing to stand surety for you, why don't they advance you the money?"

They haven't any themselves.

"That's exactly why I won't take them as sureties."

The result, then, is just the same as with the sacramentum lawsuit above, where the poor man couldn't raise the 500 asses: no cash, no lawsuit. The supreme principle of the procedure by statute, nulla actio sine lege, no action without a statute, had its counterpart for plaintiffs in nulla actio sine aere, no action without money.

You'll be convinced that the clerk's answer above, "The hat's in there all right, but Your Excellency can't see it," fits here too.

For the poor man, then, this form of procedure also repeated the requirement of depositing the amount in dispute beforehand, with only the difference, a matter of complete indifference to the party, that in the sacramentum lawsuit the deposit was made with the pontiffs and here with the vindex.

I needn't explain to you what influence this requirement will have had in practice. Wherever cash is needed to reach an end, the man who hasn't got it or can't raise it is shut out, and it makes no difference that he only has to pay it temporarily, only deposit it, and will get it back afterward. Suppose that to visit one of the private picture galleries or gardens in your Vienna that the generosity of their noble owners opens to the public, you had to pay an entrance fee of 100 gulden or more, refunded when you left. The inevitable result of this arrangement would be that a crowd of the people one is used to seeing in those places now would have to give up visiting them. The poor and most of the nursemaids would vanish from then on. And if such an arrangement were made, say on the pretext of security in case of damage, nobody would be in any doubt that its true meaning could only be this: the poor are to be kept out. Instead of saying so openly, you set an entrance fee the poor can't pay. That's enough to keep them away, just like the high fare for the first class on the railway or the high prices of a smart hotel. The Romans too knew very well what it meant to make having ready money a condition of going to law. For the rich it was no obstacle; for the poor it was a great hardship. And that, I maintain, was what it was aimed at. The purpose of the whole arrangement was to give the rich man an advantage over the poor one in litigation.

Am I not taking too dark a view, you ask me? Don't try to teach me about the old Romans! I've kept company with them in spirit for forty years now; I think I know their turn of mind. The whole of the old days rings with the complaints of the plebeians about oppression by the patricians and the arbitrary conduct of the patrician magistrates. In the early Republic, once the natural protectors of the plebs had fallen with the kings, the pressure grew so unbearable that the plebs made the desperate decision to leave Rome (the secessio in montem sacrum, the walkout to the Sacred Mount), or, to put it in modern language, to go on strike. One of the oldest strikes on historical record, incidentally. Man must leave the glory of inventing the strike to the donkeys, who, according to Herodotus, staged one during the building of Babylon by refusing to work when their loads went beyond the usual measure: a precedent one is often reminded of by the corresponding events in the human world. The remedy worked in Rome as it did in Babylon, and the patricians gave way. But the same thing happened twice more. The complaints about the economic squeezing of the poor by the rich, the harshness of the law of debt and the partiality of the patrician magistrates never stopped. The codification of the Twelve Tables was meant to close the convenient hiding place the uncertainty of the unwritten law had given the patrician magistrates,⁹⁴ but it still left them room enough to go on with their old game. The dominant position the college of pontiffs had held in the possession of legal knowledge, its monopoly of official legal learning, the oppressive legal guild-monopoly it thereby exercised over the people, lasted for more than a century after that. The administration of justice too stayed for a long time in the exclusive hands of the patricians, and what arbitrary use they made of it despite the law of the Twelve Tables is shown, as a dreadful example, by the flagrant abuse of power of the decemvir Appius Claudius in the well-known case of Virginia.

When I gather all these features, and many others I pass over here so as not to stray too far from my subject, into one picture, the picture of the old days that results leaves me no doubt about the true purpose and the deliberateness of the procedural arrangements I have described. If you find a gun in the house of a notorious poacher, you won't stop to ask what he uses it for. He doesn't keep it for sparrows and target practice! I've come to know the economic poacher of old Rome well enough, and with that I know the purpose of the gun I find in his house too.

With this comparison I've stated where the question I'm concerned with stands. No evidence in the sources gives me direct support for my claim that the old Roman procedure was calculated to give the rich an undue advantage over the poor. But as circumstantial evidence takes the place of direct proof in a trial, so too in history, and here we have a case of historical circumstantial evidence.

Up to now I've dealt with only two of the five legis actiones Gaius names for us. What about the other three? Perhaps they bring to nothing everything I've set out so far.

I'll set aside the legis actio per condictionem, by formal notice, for the moment, to deal with it later. That leaves me only the legis actio per pignoris capionem, by seizure of a pledge, and the legis actio per judicis postulationem, by request for a judge.

Of the last we know nothing from Gaius; the manuscript has a gap here. Nothing is left to us, then, but conjecture: a delightful field for the legal historian's ingenuity and gift of divination! If you care to hear my view, it is that this form of procedure was meant for cases where the question was not the being or not being of a claim, which the judge could decide with a plain yes or no, but cases where the judge, taking the existence of the claim for granted, had to settle its amount himself, or the particular form in which it was to be carried out. Two co-heirs want the inheritance divided by the court (judicium familiae erciscundae), two co-owners their property divided (judicium communi dividundo), two neighbors their boundaries fixed (judicium finium regundorum). Are they to put their lawsuit in the form of a sacramentum lawsuit? That would mean the loser pays the penalty of 50 or 500 asses. But neither party loses. Neither makes an assertion the other contradicts. Both simply put a request to the judge, and the very same one: Divide. How, then, could it be justified for one of them, or rather both, to be punished by losing the sacramentum? We have shown that the procedural disadvantages we've come to know so far really were penalties and were intended as such. Here, then, a different form of procedure from the sacramentum lawsuit was needed, and it can only have been the legis actio per judicis arbitrive postulationem, by request for a judge or arbiter.⁹⁵ Even in later times these actions for division bear above all the names judicia and arbitria, preserving in them the memory of the old name of the action. The judex or arbiter in the sense of this legis actio, then, we might describe as a judge whose ruling carried no penalty for the party. He cost no money!

Another case from the oldest law in which only this form of action can have been used is offered by the membrum ruptum, the maimed limb, of the Twelve Tables. The statute provided: "ni cum eo pacit, talio esto," "unless he settles with him, let there be retaliation in kind." The form in which the plaintiff brought his claim to court cannot possibly have been the legis actio sacramento, since, the claim not being about property, there would have been nothing to go on in measuring the sacramentum. And even when practice replaced retaliation with a money penalty to be awarded by the judge,⁹⁶ the form of action used for the claim until then could not possibly be exchanged for the legis actio sacramento, since the parties had a statutory right to the former. I suspect that the same form of action was also used for the penalty for theft, which in the old law was loss of freedom for furtum manifestum and double the value of the thing for furtum nec manifestum. I see evidence of it in the peculiar wording of the intentio, the statement of claim, of the actio furti in the formulary procedure. It did not run "dare oportere," "that he ought to give," where the amount would have had to be stated, but vaguely "damnum pro fure decidere oportere," "that he ought to pay damages as a thief," which on principle avoided naming the amount, as would have been necessary to fix the sum of the sacramentum.

That this did not exhaust the field in which this legis actio was used I regard as beyond doubt. The Twelve Tables mention a series of claims for which the legis actio sacramento is ruled out from the start, for example the actio pluviae arcendae, to ward off rainwater from a neighbor's land, de glande legenda, for gathering acorns fallen onto a neighbor's ground, de arboribus caedendis, for cutting overhanging trees, damni infecti, for threatened damage, the actio noxalis, for wrongs done by a slave or son, and de pauperie, for damage done by an animal. Since the legis actio per pignoris capionem and per manus injectionem were unthinkable for them too, only the one per judicis postulationem was left. In the attempts to restore the Twelve Tables, all these cases are found in Table VII, followed in Table VIII by the delicts, the wrongs. It may be that both Tables had as their subject the field in which the legis actio per judicis postulationem was used, and that the "tres arbitri," the three arbiters, in the sense of the Twelve Tables (which differs essentially from that of the arbitria of the later law) also came under the concept of the judex or arbiter of the judicis postulatio, for which the formula of Valerius Probus above gives a long-used foothold. In the Pandects the actions for division (Book X) are placed together with certain actions for delicts (Books IX, XI), and years ago Heffter⁹⁷ drew from this the ingenious conclusion that they originally belonged together in procedure. The conclusion is supported by the fact, already noted by others,⁹⁸ that in the Pandects the chief cases of the old legis actio sacramento (actions for inheritances, Book V; for ownership, Book VI; for servitudes, Books VII, VIII) come before these presumed cases of the judicis postulatio (Books IX-XI), and that in Books XII and XIII they are followed by the condictiones, the cases, that is, of the youngest legis actio, the one per condictionem.

I arrive at this result. The legis actio per judicis postulationem had its own field of use, definitely marked off, and it wasn't up to the parties, in cases where the legis actio sacramento was in place, to choose this form of action instead. Quite apart from the legislative and political point of view of the procedural penalties argued earlier in this Picture, they could have done the religious fund out of its income from the sacramenta that way, and it hardly needs saying that the pontiffs would not have stood for it.

The advantage I've described, of carrying no procedural penalty, the legis actio per judicis postulationem shared with the legis actio per pignoris capionem. For certain claims the person entitled had the right to seize a pledge on his own authority. If the other side disputed that the claim existed, there followed a peculiar procedure that bore the name of legis actio per pignoris capionem, in which the man who had taken the pledge appeared as plaintiff and had to make good his claim and ask for the defendant to be condemned.⁹⁹ Here too neither party paid a procedural penalty if it lost. But this privilege (and this is highly characteristic) was confined to claims not of private law but of a military, religious or public character.¹⁰⁰ Only in cases where the interest of religion or the state is indirectly at stake is the severity relaxed. Ordinary private claims don't enjoy the privilege. This difference in the treatment of the two kinds of claim shows us the tendency behind the whole system of procedural penalties. The private person is made to find going to law hard; for a claim that religion and the state have an interest in seeing enforced, the way is made smooth.

I've finished describing the old procedure, and you may now decide whether one can fend off the suspicion that it was deliberately calculated to make going to law hard for the poorer classes. For my own part, I can't shake off the conviction. It has become second nature to me to scent purpose, calculation, slyness, cunning, ambushes and snares everywhere in the old Roman law. The pious faith with which I once came to Roman law, taking things simply as they presented themselves to me, has been lost entirely over the years. With every rule I always ask: what's behind it? And regularly I've found that something quite different is behind it from what one would expect at first sight. I'm toying with the idea of writing you an article one day on the cunning of the old Roman law. You'll then have the chance to make up your mind whether I'm so very wrong in my suspicious way of seeing things. For the present question, unfortunately, I can't refer you to that article yet, and I must put up with meeting a disbelief that I can't disarm for now. But there are two objections I must be ready for, and I'd rather not leave them standing.

The first objection runs: lawsuits are expensive elsewhere too, where the motive I trace them to in old Rome can't possibly be assumed. In England, for example. English legal costs exceed anything imaginable. Complicated cases can swallow a whole fortune, and anyone whose purse isn't stuffed to overflowing with pounds sterling had better allow himself any other luxury than a lawsuit. In England a lawsuit is merely a luxury article for the rich! How oppressively this makes legal help hard to get in England is shown by an institution for which we on the Continent have no counterpart at all, and which throws a harsh light on the state of English law: the societies for helping penniless foreigners with their lawsuits. Yet nobody will claim that the expense of English procedure is calculated to make legal help hard for the poorer classes to get. How, then, is the claim justified for the old Roman procedure? The objection would be a telling one if I had drawn my conclusion from the bare fact that old Roman procedure was expensive. But it isn't the expense alone that I bring into the field. It's the peculiar soil of old Rome on which I find it, the historical background, the surroundings, that lead me to read this meaning into it. My view has as its historical foundation the systematic economic exploitation of the poorer class by the richer, to which the Romans themselves bear witness.

The second objection that may be raised against me runs: the legis actio sacramento was ancient, and was certainly not introduced in the first place with malicious intent. Certainly not! But that by no means rules out that fixing the rate of the sacramentum in the Twelve Tables, or in earlier statutes, rested on malicious intent. They could just as well have taken 10 and 50 asses as 50 and 500. Even if, as I have tried to argue myself elsewhere,¹⁰¹ that action was religious at bottom, what did religion have to do with the sum? And why the deposit beforehand? Why, further, the vindex in the legis actio per manus injectionem, and why the enormous penalty of double there?

But let the question remain open whether the expense of old Roman procedure was calculated for the purpose I assume, of making legal help harder for the poorer classes. All the more firmly do I hold that this was its consequence.

Let's be clear about what that means. Let's look at the effects the procedural arrangements I've described were bound to have on Roman society. In doing so we turn our eyes not to the single individual but to the effect on the mass: the result of old Roman procedure on the actual shape of the system of property in life, its influence on the distribution of wealth. In short, we judge old Roman procedure from the socio-economic point of view.

At roulette, if the game goes on long enough, the banker is bound to fleece the player (I don't mean the single player but the player in abstracto, the sum of all who take him on), because the game is set up so that the banker has one chance (the zero) over the player, a chance that by the law of large numbers inevitably brings the winnings to his side in a long game. Popular wit compares a lawsuit with a game of chance. It speaks of "winning and losing" one, and of "gambling away" your case, and we lawyers know the comparison has a certain justice. In a country where the administration of justice is properly organized and the judges are morally sound, the personal circumstances of the parties nowadays have not the least influence. Neither has an advantage in the odds. Rich and poor, high and low, make no difference; indeed, thanks to legal aid, the poor man is if anything at an advantage. For two parties of essentially equal means this held in old Rome too. The poor man suing the poor man, the rich man suing the rich man, stood on entirely equal terms. Neither had an advantage over the other. The weapons, light in the one case, heavy in the other, were equally matched. But in a dispute between the poor man and the rich man it was different. Here the odds were unequal. The rich man (taken as a class) had over the poor man (taken as a class) the banker's zero at roulette, secured to him by the rules of procedure no less than the banker's is secured to him by the rules of the game. What it consisted in, I've shown you above. In doubtful cases the rich man could venture the stake with confidence. The poor man had to watch his step. For him the loss of the sacramentum meant something entirely different from what it meant for the other. We'll not go wrong, then, if we say: of the doubtful cases, quite a considerable percentage were the rich man's zero.

To this first obstacle to gambling in court was added a second, the requirement of a cash stake. At the Roman gaming table, we've seen, you play only for cash. The rich man has the stake in his pocket. The poor man must first scrape it together with great labor, and if he doesn't manage it, he must give up the idea of playing: another zero for the rich man!

To bring about this result there was no need for partiality on the part of the patrician magistrates entrusted with the administration of justice, or for ill will on the part of the patrician pontiffs and jurists approached for legal advice or help, any more than roulette needs a dishonest banker for the same purpose. The machinery of procedure was set up so that, even with the most perfect honesty of everyone employed in it or taking part, it had to produce this result. The injustice, the dishonesty, of the arrangement took the place of that of the person. Where the strength is otherwise equal but the weapons are unequally shared, the side with the worse weapons must necessarily lose, and the opponent comes out the winner.

People will find it strange that the Romans' reports tell us nothing about this fateful working of the old Roman procedure, which we can compare to a pump in the hands of the richer class turned against the poorer. They so often mention the need and misery of the poorer classes and their oppression and plundering by the richer, and they don't fail to name the means that served the purpose either, in particular the high rate of interest and the severity of the old execution against the debtor's person.¹⁰² But the share that the arrangement of the old procedure I've described had in it they mention with not a word. Whether one may conclude from this that it didn't exist, or even the lesser conclusion that the people never became aware of it, everyone can judge for himself from what I've set out so far. For my part I'm firmly convinced that in Rome the evil was not only quite rightly recognized by those who felt it, but that for a long time it was one of the grievances of the plebs, and that the tribunes made it the subject of their agitation and their proposals for reform. I've arrived at the result that in Rome there was a question of civil-procedure reform, brought about not by technical reasons, as with us, but by social reasons, and that it ended with the reform of civil procedure. That brings me to a second part of my lecture. Its subject is: the reform of the oldest civil procedure so as to make legal help easier for the poorer class.

Up to now I've described the contrast between the classes on which the interest of these procedural arrangements turns as that of the poorer and the richer class. You'll know that in Rome it did not coincide with the contrast of plebeians and patricians. Even in early times there were rich plebeians and poor patricians in Rome. But I don't think I'm wrong in assuming that in fact it was only the poorer plebeians who suffered under the pressure of those procedural arrangements. The poor patrician found support in his gens, which protected him against the danger of having to give up his good right for lack of means. I believe, then, that I may call this question of civil-procedure reform a specifically plebeian one, and I see a confirmation of it in the fact that it was the tribunes of the people who took it in hand.

Their efforts at reform in this direction had two aims: to replace the cash payment of the losers' penalties with provisionally crediting them, and to lower their amount.

Festus (under sacramentum) has preserved for us the name of a statute that created a special authority for collecting the sacramenta, the triumviri capitales. It was the lex Papiria, brought in by the tribune Papirius. What this statute really did is hotly disputed.¹⁰³ The one thing that's certain is that it falls after the creation of the praetor peregrinus, the praetor for foreigners (507 of the city). It puts the care of having that authority elected by the people each year not into the hands of the praetor simply, but of the praetor qui inter cives jus dicet, "who shall give judgment between citizens," that is, the praetor urbanus, and that implies the contrast with the praetor peregrinus.¹⁰⁴ I'll spare you the list of the different views and simply tell you mine.

Whether the lex Papiria itself introduced the crediting of the sacramentum, or only ordered afterward, as a supplementary measure, the setting up of a collecting authority that had become necessary because crediting had been introduced before, is open to doubt. I take the first view, because I can't imagine that Roman legislation could have made so extraordinarily important an innovation as replacing the deposit of the sacramenta with crediting them without settling at the same time how it was to work in detail. The opposite view would have us suppose that the Romans resolved only in principle to replace the deposit system with the credit system, and put off every question about carrying the measure out in practice. In my eyes that would have been as half-finished a measure as a statute introducing limitation periods without saying how long they were.

By this road I arrive at the following result, which for clarity's sake I'll break up into separate propositions.

1. The purpose of the lex Papiria was to put the crediting of the sacramenta in place of their immediate deposit.

What I've said above about how oppressive the old arrangement was for the poorer classes will leave no doubt about the meaning and tendency of this innovation. It was conceived and intended as a way of making it easier for the poorer classes to go to law: as a social measure. You'll understand, then, why I lay decisive weight on the fact that it was a tribune of the people who proposed it. You have to picture the situation of the time to see that the old state of things couldn't be kept up any longer. Into the proceedings before the praetor peregrinus, on the correct view, the sacramentum and the manus injectio, and with them the principle of procedural penalties, had not been taken over. Here, then, the Roman had before his eyes the strange imbalance that a foreigner was better placed than he was, the Roman, in going to law: that the stranger was treated better than the native. In excuse for this one might point to the following circumstances. It isn't the foreigner but the Roman who owes the sacramentum to the national gods, as their worship requires. And the levy he pays is justified by what the pontiffs give him in return. They are the trustees of the legal knowledge he needs for his lawsuits, and for this they are owed a tribute, which, after all, they don't ask for themselves but for the gods. They used to be, answers Papirius, as spokesman for the plebeians. The guild monopoly on your knowledge, he cries to the pontiffs, has been broken. Your formulas were published long ago by Flavius, and in our own day Coruncanius (500 of the city) has made knowledge of the law common property. Time has passed you by, and with your old monopoly of the law, the sacramentum you collect has lost its justification too. From now on it belongs to the state, which is man enough to run the courts without you. If it is transferred to the state, the obstacle you put in the way of crediting (see the scene with the pontiff, earlier in this Picture) is removed too. The gods, you say, don't give credit. The state does. I shall bring a bill before the people transferring the sacramenta to the treasury and so making it possible to credit them.

2. The amount of the sacramentum is no longer fixed, as before, at the start, but only after the end of the lawsuit. The praetor has both sides give him sureties (praedes) for the future amount. Fixing the amount afterward, and the collecting that follows, is done by a commission of three men (triumviri capitales), whom the praetor is to propose to the people at the start of the year.¹⁰⁵

The size of the sacramentum depended on the valuation of the thing in dispute, and when its value hovered around the limit of 1,000 asses, the valuation will clearly have been fiercely fought over. A small difference in the valuation, 1,000 instead of 980 asses, say, meant the jump from the sacramentum rate of 50 to 500: a difference of 20 in the thing in dispute made the quite enormous difference of 450 asses in the sacramentum. Expensive, those 20 asses! As long as the sacramentum was paid to the pontiffs, settling this preliminary point naturally fell to them, and whether they settled it in person or through special assessors they appointed, they will certainly have seen to it that their interests didn't go short. I don't think I'm wrong, then, in assuming that the valuation of the thing in dispute was not infrequently the subject of heated complaints from the parties, and this is how I explain why Papirius extended his reform proposal to this point too. He gave the triumviri capitales not only the collecting ("exigunto sacramenta," "let them exact the sacramenta") but also the decision on their amount ("sacramenta judicantoque," "and let them judge the sacramenta"). Nobody has known what to do with this last word, and in their difficulty, overlooking what lay nearest, people have grabbed at the most artificial and untenable explanations.¹⁰⁶ If they had pictured the thing in practice, they'd have found that the question whether the thing in dispute in a given case was worth more or less than 1,000 asses didn't settle itself, but could be the subject of fierce contests between the parties on one side and the authority on the other. They need only have thought of today's quarrels over assessments for income tax. They'd then have found that a statute making a rule about collecting a fee mustn't fail to provide too for who is to decide on the amount in case of dispute. The only thing that might raise a doubt about my reading is that in the passage of Festus I quoted, sacramenta exigunto judicantoque, the judging comes after the exacting, when the reverse order would seem more natural. The doubt is cleared up by this: exacting was always necessary, while there was occasion for judging only when the value of the thing in dispute hovered around the limit of 1,000 asses. In most cases the rate of sacramentum to be applied was so entirely beyond doubt that no dispute could arise. There the bare exacting was enough. Only in the very rare exceptional cases where the value hovered around the limit, and the losing party thought it could claim the lower rate of 50 instead of the sacramentum of 500 the triumvirs demanded, did they come to a decision. That decision would naturally have to be made by the whole commission, by majority, whereas a single member will have been enough to collect or receive the sacramentum. That was the "judicium triumvirum," the judgment of the three men (Varro de L. L. IX, 85).

In this respect too the statute of Papirius was unquestionably an advance. In place of the one pontiff, answerable to his college for guarding the interests of the church fund without mercy,¹⁰⁷ it put an authority entirely safe from influence of that kind.

Why was the sacramentum no longer fixed at the start, as before, but only after the end of the lawsuit? One might say this made the old law worse: before, the parties knew at the start of the lawsuit what risk they ran, while now the important question of the amount of the sacramentum was left open until the end, and they were kept in uncertainty about it. I can see the reason only in this, that it is often the lawsuit itself that first brings the true value of the thing in dispute to light. Think of the hereditatis petitio against a defendant who was supposed to have taken things from the estate worth, all told, far more than 1,000 asses, when in the course of the hearing it turned out to have been only one thing worth less than 1,000. Or of a claimant to an inheritance in good faith, some of whose things had perished by accident, through no fault of his, so that his whole holding no longer reached 1,000 asses. Or of the claim to a flock of sheep, where the defendant met it with a counterclaim to certain head of them,¹⁰⁸ so that the number of animals to be handed over could only be settled after the judgment. There's no denying that fixing the sacramentum after the lawsuit was over suited the parties' real interests incomparably better than fixing it at the start. They didn't risk losing a sacramentum measured by the value of the thing originally claimed, when the value of what was really owed afterward turned out to be far smaller.

I turn now to the legis actio per manus injectionem, to prove that the same passage from the deposit system to the credit system that the lex Papiria brought about for the sacramentum lawsuit was repeated there too.

It came about by doing away with the vindex. Only in two cases, given by Gaius (IV, 25), was the requirement kept. Otherwise the debtor was allowed to take on the role of vindex himself, that is, to conduct the lawsuit himself (manum sibi depellere, "to push the hand off himself"). If he lost, it's true, he had to pay double the debt he had disputed, in his double capacity as original debtor and as vindex (lis inficiando crescit in duplum). But he gained the important advantage of being able to take up the fight without ready money. Just as the lex Papiria had made it possible even for the poorest man, against whom a wholly unjustified claim was brought in the form of a sacramentum lawsuit, to take up the lawsuit and win it without ready money, so now he could resist a claim brought in the form of manus injectio and win. The poor man had been made able to go to law even without cash. According to Gaius (IV, 25), this important innovation was brought in by a lex Vallia.¹⁰⁹ Since the Vallii are nowhere named in prominent positions, we're entitled to look for the author among the plebs and to see in the statute a plebiscite, a resolution of the plebs, obtained by a tribune with the same tendency as the lex Papiria. This general measure had already been preceded by special statutes that first brought in this easing of procedure for particular cases, and Gaius (IV, 23) names two of them for us, a lex Furia and a lex Marcia. Both had in common that their subject was challenging a payment made against the law: the first, the paying of a legacy above the 1,000 asses that statute fixed; the second, the paying of unlawful interest. The Furii were an old patrician family. What could have led a patrician to soften the severe legis actio per manus injectionem like this? Are we perhaps to welcome in it the first stirring of a humane feeling toward the poorer classes, the awakening of a sense of justice in the higher ones? Certainly not! The lex Furia was concerned not with the interest of the poorer classes but with that of the richer. You didn't need to prescribe moderation in leaving legacies to the poor man! For the rich, the vindex, still insisted on for the poor until the lex Vallia, was pushed aside as superfluous. The rich man who had accepted a legacy over 1,000 asses, and was being sued for the four times the excess that he had thereby forfeited, was allowed to conduct his case in person. The same went for the usurer under the lex Marcia. The poor man he sues for the debt needs a vindex; he himself, when the poor man sues him for the return of unlawful interest, does not! This statute too betrays the partial pen of the rich. The Marcii were early among the richest and most distinguished families of the plebs, who made common cause with the patricians.¹¹⁰ It was the rich, then, who brought the manus injectio pura, the "plain" laying on of hands without a vindex, into the world in their own interest. For them the vindex, meant to keep the poor man from going to law, was done away with as meaningless. But the innovation bore them bitter fruit. The lex Vallia extended what they had invented for themselves to the poorer classes too, and with that the procedural advantage of the rich creditor over the poor debtor, which rested on the difficulty of finding a vindex (as we saw earlier in this Picture), was broken. Only in two cases (Gaius IV, 25) did the old severity of the procedure with a vindex hold its ground until the procedure by statute itself went under. When the formulary procedure came in, this last remnant ended too.

With that, going to law was freed from this burden too. Let's now see what finally became of the procedural penalty.

Its existence wasn't touched in the least by the change in the way it was collected. The two were entirely different matters. The requirement of a deposit made litigation hard for the innocent and the guilty alike, whereas the procedural penalty fell only on the guilty, that is, the guilty in the sense of the lawsuit, the one who had lost it. You could make going to law easier for the innocent and still punish the guilty as before. And that the Romans weren't willing to give up. The procedural penalty lived on for a long time, if in a weakened form; in a few scattered offshoots it survived even into the law of Justinian.

In the procedure by statute it went on unchanged in the legis actio sacramento and per manus injectionem. But in the former it had in fact been weakened little by little, through the constant devaluation of the old copper currency and the fall in the value of money, until by the middle of the sixth century of the Republic the rate of 500 asses wasn't worth much more than the rate of 50 asses had been in the old days. The real money value of the latter at that time was, in today's currency, about 3 florins, Austrian currency, or 6 marks; that of the former, then, 30 florins or 60 marks.

Pliny¹¹¹ mentions a lex Papiria by which the as was reduced to half an ounce, that is, 1/24 of its original weight of a pound, and the way he puts it entitles us to place the statute in the second half of the sixth century of the city. That used to be the general view,¹¹² while now, on the strength of newer research by Borghesi,¹¹³ it is put in the year 665. The thought has struck me whether the statute of Papirius in Festus already discussed, on collecting the sacramenta after the end of the lawsuit, and this statute in Pliny on reducing the standard of the coinage may not have been one and the same. That would bring the two measures into a connection that, to my knowledge, nobody has noticed so far, and each would explain and complete the other. Papirius's idea would have been: to make the sacramentum lawsuit easier, in the interest of the poorer class. To that end, first, putting off the collection of the sacramentum until the lawsuit was over; second, reducing the as to so tiny an amount that the old arrangement could be kept outwardly, while inwardly, that is, in the cramping pressure it put on going to law, it was as good as abolished. At a time when the real value of money had also fallen quite extraordinarily, because of the enormous growth of the national wealth and the introduction of the silver currency (at the end of the fifth century), reducing the as to 1/24 of its original weight meant far more for the sacramentum than a cut to 1/24 of its former amount.

This explains not only why the old sacramentum lawsuit was kept despite the reform that was seen to be needed, and was left in being for the centumviral court, the great court of a hundred judges, even after the formulary procedure came in. It also explains how they came to make a change in the copper money of the old days (in practice pushed into the background by the rise of the silver currency) that left far behind even the one they had been forced into at a time of the direst need, in the distress of the Punic War. My conjecture offers just as plausible a practical reason for this coinage measure as it brings the procedural reform of Papirius attested by Festus to completion and puts it in a bright light. Nor is it without significance that it was a Papirius who made it. It was a Papirius who (in 324) put a money tariff in place of sheep and oxen for the multa, so close a relative of the sacramentum (a disciplinary fine for defying the orders of a magistrate): 10 asses for the sheep, 100 for the ox. And as it was not rare in Roman history for later members of a family to take up again a happy legislative idea of one of their ancestors (the Valerii, for example, Liv. 10, 9: tertio . . lata est semper a familia eadem, "carried the third time . . . always by the same family"), so here too the Papirius of the sixth century may have taken the ancestor of the fourth as his model for a procedural and fiscal measure of the same kind.

The old sacramentum lawsuit, then, went on outwardly unchanged, but was inwardly transformed entirely: a companion piece to the many Roman institutions that were allowed to vegetate on outwardly after they were as good as dead in practice.

But an important field of its use had already been taken away from it before this, one we can describe as that of the ordinary obligation (as opposed to the privileged one enforced by manus injectio). An ordinary loan, that is, one not clothed in the form of a nexum, had once had to be sued for in the form of the sacramentum lawsuit, and so had the claims, the only ones then enforceable, to the dare, the handing over, of a res certa, a definite thing. In this direction a considerable easing came about while the procedure by statute still lasted, taken over in my view from international dealings, which knew no procedural penalty: the youngest of the five legis actiones, the legis actio per condictionem. It was first introduced by a lex Silia for money claims (Gaj. IV, 19): not only for loans of money but for money claims of every kind in which the plaintiff claimed an exactly fixed sum (certa pecunia). Originally he could, and indeed had to, claim an exact sum even under contracts that in later times, once the contractus bonae fidei, the contracts of good faith, became actionable, gave an action for an indefinite sum of money (incertum: "quidquid dare facere oportet," "whatever he ought to give or do").¹¹⁴

By a lex Calpurnia (Gaj. IV, 19) this innovation was extended to all other claims for a "certum," a definite thing, in particular, then, to stipulations, the formal question-and-answer promises, by which someone had been promised the "dare," the handing over (not the mere "habere licere," "the being allowed to have," as in a sale), of a res certa, that is, an individually fixed object or a quantity of fungible things. In them too, as in all actions of the formulary procedure apart from the preliminary actions, the judge had to give judgment in money. Yet the plaintiff himself didn't need to state the amount in his claim. He left it to the judge's assessment with the words "quanti ea res est," "however much the matter is worth."

The authors of both statutes were plebeians, that is, tribunes of the people when they brought in their bills, and you'll understand what I mean when I stress this fact especially. I use it as a foothold for the claim that their measures pursued the same purpose as those of their fellow plebeians Papirius and Vallius discussed above: to make going to law easier for the poorer classes.

For the lex Calpurnia the fact of such an easing is beyond any doubt. For the lex Silia it can be disputed. For in three places (IV, 13, 171, 180), Gaius tells us of the condictio certae creditae pecuniae of the formulary procedure, the action for a definite sum lent, which was modeled on the legis actio per condictionem: the losing side paid a penalty of a third of the sum claimed, which both sides had to take on at the start of the lawsuit by stipulatio and restipulatio, promise and counter-promise. He doesn't say that this arrangement was already made by the lex Silia, but it is certainly highly probable.¹¹⁵ But (and this is highly important) it was not, as is usually assumed, compulsory. Gaius (IV, 171) uses a phrase that shows the added penalty could come in, not that it had to: sponsionem facere permittitur, "it is permitted to make the wager," which means the parties were free to demand the wager or do without it.¹¹⁶ Compared with the legis actio sacramento and per manus injectionem, where the added penalty was compulsory, this action at any rate was an advance.¹¹⁷ Compared with the latter, this held even of the amount of the penalty, which it cut from the whole amount of the debt to a third. Another advantage was that the plaintiff, if he lost, was threatened with the same danger as the defendant. The risk was two-sided here, where in the other action it was only one-sided. The unfairness of the older law, which put the penalty only on the debtor and let the creditor who was turned away go free, was removed, and the balance restored.

In the condictio under the lex Calpurnia, the procedure by statute already goes beyond itself, that is, beyond its basic design, built in principle on the procedural penalty. It forms the passage to the formulary procedure, built in principle on the rule of no penalty. I'm sure this way of putting the contrast between the two systems of procedure will meet with firm opposition. Perhaps the following remarks will help win acceptance for my view.

The formulary procedure too knows all sorts of procedural penalties. Some of them were taken over from the old procedure, only with a fitting change of form. Thus the penalty of double for denying certain claims that used to be enforced by manus injectio; the sponsio tertiae partis, the wager of a third, in the condictio certae pecuniae; and the fructus licitatio, the bidding for the interim possession, in the possessory procedure (Gaj. IV, 166-170), which took the place of the old penalty of paying double the fruits for the possessor who lost an action for ownership. Others arose new, or at least aren't attested for us from older times: the penalty wager in interdict procedure (Gaj. IV, 162-165), the penalty of a fifth or a tenth in the contrarium judicium, the counter-action (Gaj. IV, 177, 178), the judicium calumniae, the action for vexatious litigation (Gaj. IV, 175, 178), and the sponsio dimidiae partis, the wager of half, in the praetor's actio de pecunia constituta, on a promise to pay a debt (Gaj. IV, 171). But despite these numerous cases, which certainly prove that the idea of the earliest times, that the losing side deserved a penalty, was not given up in later times either, I believe I can still maintain my claim. It is not, mind you, that the procedural penalty is foreign to the formulary procedure, but that it isn't, as it is for the procedure by statute, an essential member, an organic institution of it. The formula (and in my eyes this is the decisive point) knew nothing of the penalty. Apart from the actions for double modeled on the manus injectio, the penalty had to be added from outside by a separate act, or pursued by a separate action alongside the main one. To the legis actio sacramento and per manus injectionem it was inherent: both covered the main claim and the penalty at once.

And even the severity of the penalty (always leaving aside the relic of the old law just mentioned) is considerably reduced in the formulary procedure. The rates are lower (1/10, 1/5, 1/3, 1/2), and none of them reaches the duplum of the old days any more. Or setting the limit of the penalty is left entirely to the parties' choice, as with the fructus licitatio, where each may bid as high as it likes. And even avoiding the penalty altogether has been made possible: the sponsio tertiae partis in the condictio certae pecuniae and the sponsio dimidiae partis in the actio de pecunia constituta (Gaius IV, 171: sponsionem facere permittitur), and shutting out the procedure cum periculo in interdict proceedings by choosing sine periculo (Gaj. IV, 162-164). And then the element of subjective fault, which the old law hadn't given the slightest attention, is taken into account, at least in certain relations. The judicium calumniae, which the acquitted defendant can bring against the plaintiff who has been turned away, depends on proof of conscious wrongdoing (Gaj. IV, 178), and heirs, women and wards, as defendants, get off with the mere juramentum calumniae in cases where other persons have to enter into a penalty wager (Gaius IV, 172).

Suppose the view is right, as I believe it is, that the whole formulary procedure had its ultimate origin in the proceedings before the praetor peregrinus,¹¹⁸ and that introducing it consisted in nothing other than taking over the procedure worked out there for international dealings, with the particular modifications that joining it to the old Roman procedure made necessary. If that view is right, it also explains the fundamentally different attitude of the modern Roman form of procedure to the question of the procedural penalty. Penalties were in principle entirely foreign to international dealings. The praetor peregrinus even found himself obliged to borrow the indispensable penalties for private wrongs from the Roman civil law by means of a fiction (Gaj. IV, 37). Nowhere is there the slightest trace of a procedural penalty in any of the actions a foreigner could bring in Rome, for example the bonae fidei actiones, the actions of good faith, of the law of obligations, or the in rem actio per petitoriam formulam of the law of ownership. And so I believe I can justify the claim: as the procedure by statute rested, in its original design, on the principle of the procedural penalty, so the formulary procedure rested, in its basic design, on its absence. The cases above where the legis actio per judicis postulationem and per pignoris capionem carried no procedural penalty can no more be set against the first claim than the scattered cases of procedural penalties above can be set against the second. They were simply exceptions, which don't rule out putting the contrast in principle that way. I close by remarking that the law of Justinian did away with all the procedural penalties still present in the formulary procedure in classical times (among which we must count that of the plus petitio), apart from a few quite insignificant remnants you can find in any textbook (for example Arndts, Lehrbuch der Pandekten, Textbook of the Pandects, § 252).

Now we can part. Our meeting today has done its job if it has given you the chance to look at the old Roman procedure for once from a different point of view, and, I think I may add, a more fruitful one than the present state of our literature allows. If I've achieved what I set out to, the picture of the poor man in old Rome, fighting with unequal weapons for his right against the rich man, patrician or plebeian, must go home with you. For my own part I'm not sure I won't dream of it. If I smoke one more of my legal-historical cigars before going to bed, two pictures appear to me in my dreams. The first: the poor man pursued, hounded and exploited by the rich, with the law lending the rich a helping hand. The second: the four tribunes of the people, Papirius, Vallius, Silius and Calpurnius, with their bills that put an end to that state of things.

To finish, as a complement to my retrospective reflections so far, one more look into the future: a prophecy that concerns me. It's about a doctoral dissertation. Its title runs: Refutata Jheringii opinio asserentis aliam fuisse in legis actionibus conditionem pauperum quam divitum, "The Opinion of Jhering, Asserting that the Condition of the Poor in the Legis Actiones Was Different from that of the Rich, Refuted." Should the author wish to write in German, then, since he won't be able to use my title, "Rich and Poor in Old Roman Civil Procedure," I suggest the title: "The Alleged Plutocratic Tendency of the Legis Actio Procedure Shown to Be Groundless, by Dr. Knowbetter." That marks the subject as a suitably academic one, and faculties could even use the description for a prize question. You'll grant that it's a fine subject. It has the merit of being new, which, as everyone knows, can't be said of most doctoral dissertations. A pity I've already written mine! How I'd refute a view that finds not the slightest support in the sources! And that says it all, because whatever isn't positively attested in the sources rests on mere fancy, in the present case on the narcotic of the legal-historical cigar. I console myself that even if I'm no longer in a position to write doctoral dissertations myself, I can at least still give others usable material for them. Whatever else a new view of mine may have failed to achieve, it has always been sure of at least one success: being refuted. What else would people live on who can't manage an opinion of their own?

Pictures from Roman Legal History, IV: A Sham in Roman Civil Procedure

[Newly added. The subject was promised at the start of the third Picture.]

A sham in Roman civil procedure? A strange field for one to turn up in!

The dictionaries of foreign words define the Attrappe, the sham, as a thing set up to deceive, designed as a tease. Let's see whether Roman civil procedure has an institution the name fits.

The picture I'm about to show the reader is anything but made to leave a teasing impression. It's the picture of the old Roman usurers getting ready to cool their thirst for revenge on a debtor who has gone bankrupt, and to stage on his body the well-known "in partes secare," the cutting in pieces, of the law of the Twelve Tables.

I light my legal-historical cigar. I see the creditors with the debtor on the Forum. But the cutting in pieces doesn't seem about to happen: the men aren't even carrying a knife, as Shylock did.

"What's this?" I ask. "You aren't cutting? The law allows it, you know, and you don't look to me at all like men capable of human feelings."

Would you care to do it in our place? The people would tear you to pieces. In the earliest times it may have happened, but it won't do any more now. Those silly modern ideas of humanity, which our worthy forefathers knew nothing about, have made the thing impossible.

"Then you're in a bad way! Your law is like a scarecrow, which the birds soon find out does them no harm. Your debtors will surely be as clever as the birds, and they'll laugh at a threat that stands only in the statute and is never carried out."

It isn't quite as bad as that. True, we wouldn't dare cut a piece of flesh out of the man's body, which would kill him on the spot; but if we suspect him of having put property aside, or can suppose that his relatives or friends would do something for him, nothing stops us from trying whether cutting off his ears, his nose or other parts of his body might make an impression on him and on them. The mere threat of it is enough to make him and them do their utmost.

"But if the remedy fails, because the man has nothing himself and neither his relatives nor his friends come to his aid, what then? Since the law doesn't give you the right to sell the man, and regard for the people keeps you from hacking him to pieces, you'll have to let him go free. The statute says expressly: tertiis nundinis partes secanto, 'on the third market day, let them cut him in pieces.' If the third market day has passed without the cutting in pieces, your right is gone, and you're left empty-handed."

We see to it beforehand that the day doesn't pass without our having settled the matter.

"What can you settle? You can only cut the debtor up, not sell him. Selling him is allowed, as far as I know, only when there's just a single creditor."

That's exactly what marks out the road we have to take. What would you do if, instead of the debtor here present, you imagined a horse, a painting or a statue as the object of execution, and the statute laid down that one creditor had the power to sell it, but several creditors only the power to cut it up or smash it? How would you bring about the possibility of selling the thing, entirely by lawful means?

"I'd supply the statute's condition of one creditor by having all the creditors transfer their claims to one of them."

We know nothing of transferring claims, but the thing comes to the same. One of us buys out the others, and the debtor, who used to belong to all of us, now belongs to him, is his adjudicatus, assigned to him by the court.

"But if the cutting in pieces comes down to that in the end, why didn't the lawgiver allow sale in this case just as he did when there's a single creditor?"

You think, then, that the statute should have provided for the creditors to sell the man?

"Exactly."

That would be a very bad statute. How is the sale to take place? It mustn't happen here in Rome.

"Why not? Because the man can't become a slave here, perhaps?"¹¹⁹

That isn't the reason. The thief caught in the act becomes the slave of the man he robbed and stays in Rome. The reason is a different one. If all the debtors sold as slaves for not being able to pay stayed here in Rome, they could become very dangerous to us. They'd agitate and plot against us without stopping, stir up the people against us with their friends and relatives, and keep the great number of our victims constantly before its eyes; they'd be, so to speak, the living, walking statistics of execution against the person. How the tribunes, who give us so much trouble already, would use that material to set the people against us! A decent businessman would almost lose his taste for business and for life. No! The man has to get out of Rome (out of sight, out of mind!), and then he's soon forgotten, and we're safe from any intrigues he might spin against us. The rule that he be sold abroad is one of the wisest provisions of our excellent law of debt; without it that law wouldn't be worth a hollow nut.

"You've convinced me: for your sake, selling him abroad is indispensable. Thieves caught in the act can stay in Rome; everybody thinks their fate serves them right; but not the debtors who've been sold, for all the common people sympathize with them."

I'm glad you agree. But foreign parts, abroad, are a long way off, and first the buyers have to be found; they aren't standing by the highway. Let's suppose one of us takes on the job of finding a buyer. He sets off with the debtor, chained, of course, so that he won't run away. First he goes to neighboring Fidenae, which isn't exactly tempting at the moment, since we Romans are anything but popular there (we're in the year 320 of the city). There they offer him only 600 for the man, who is worth at least his 1,000 asses here. Then on to Veii. Offer: 650, too little again. Our man doesn't let the trouble put him off; he travels to Falerii, where he gets them up to 670. Too little again! On and on, then, to Clusium, Arretium, Faesulae! Slaves are said to fetch higher prices in northern Etruria than in southern. That's what the other creditors would say, and it's easy for them to talk, but the man who has spared them the trouble of the journey is tired of wandering about by now and comes back to Rome. Here he comes, and makes his report. Let's hear how he's received.

(Chorus of creditors) "For so sturdy a man, only 670 asses at most? Why, that's no price at all. You must have been very clumsy, or not taken any trouble at all, not to get a higher bid."

This is the thanks for my efforts, then? I'll never take on a job like that again. Send somebody else and see if he does any better.

"That's just what we'll do. Since it's in all our interests, someone willing will soon be found. Who volunteers?"

(Voices) I'm too old.

I can't get away, on account of my business.

I've got a court date in the next few days.

I have my land to till.

A single voice: I'm ready, but I won't sacrifice my good time for nothing. You'll have to pay my traveling costs.

"We know what that means! You have to go to Clusium on your own business anyway, and we're supposed to pay for your trip. And if you don't manage anything either, what then? Then we're no further along than before, and we've thrown our money away for nothing. Nothing doing."

Well, stranger, you think you can improve our law. What's to be done now?

"I'm coming to see that selling him abroad through a consortium of creditors has its difficulties."

And there's one circumstance you haven't even considered. By the statute the debtor must leave Rome forever on the day fixed for the sale. The way you've set it up, he keeps coming back to Rome until a suitable bid has been obtained and the creditors have accepted it.

"True, that won't do. But the difficulty is easily got round if the creditors entrust the sale itself to the man of confidence they've chosen."

What do you say to this new proposal, honorable fellow creditors?

(Chorus of creditors) The man doesn't seem to know much about business. Let him try it out with us himself. What are we to do, then?

"You're to entrust the sale to one of your number."

With or without a fixed minimum price?

"With one would certainly be the better way."

Very well! The price shall have a limit. Set the limit.

(Voices) I put it at 1,000 asses.

We'll never get rid of him for that. I put the limit at 800.

Far too low. I won't let him go for under 950.

That's easily said! What's to happen if, as is likely, so high a limit can't be reached? The limit has to be set as low as possible. I put mine at 700.

I, for my part, at 750.

I at 850.

There, stranger, now you decide. How high is the limit to be set?

"If the creditors can't agree on the sum, then there's simply no limit. Nothing is left but to authorize the man of confidence you choose to close the deal as circumstances allow, to the best of his knowledge and conscience."

(A voice) Then please choose me. I don't even claim payment for the journey and the trouble.

(Chorus of creditors) We can well believe it. On those terms we all volunteer. There'd be no better business in the world. We know what that means! What guarantee have we that our man of confidence won't put half the money he gets into his own pocket?

"Of course you must choose a reliable, honest man."

Reliable, honest? We all are. If that's all it takes, every one of us can hold his own.

"Then go ahead and choose!"

I choose myself.

Me too. Me too. Me too. And so on.

"But this way you'll never get a choice made at all."

Is it only now that you see that? You could have known it in advance. Among us everyone trusts only himself, nobody the next man.

"If you're as distrustful as that, there's nothing for it but for you all to set off on the road together, to keep an eye on one another."

Now that's enough of the game, stranger. You'll have seen that you have no vocation for lawgiving, and that we Romans know better how to arrange our law. A sale by a consortium of creditors is an absurdity. The creditors can't all go traveling, and they'll never agree on one man, because they know the risk they'd run. Selling the debtor abroad can only be managed by a single man guided by his own interest. That's the shape in which we've settled the matter so far, and I think it's the only right one. You've arrived just at the moment when the matter is being done this way. I shall start it off myself.

Honorable men and fellow creditors here assembled, how much do all the claims come to?

Two thousand asses all told.

Will any of you take the debtor for that sum?

Not even for 1,000. I bid 900.

I bid 950.

"I'll give 1,000."

Nobody higher?

"The bid is too low. The man is worth at least 1,100 asses."

Will you bid that?

"No!"

Then the bid of 1,000 stands, and we'll let the man go for that.

"I protest! By law you can't force me to give my consent. In these circumstances I prefer to exercise my legal right of cutting in pieces."

(Chorus of creditors) We know very well what you're after: to break your opposition, we're supposed to pay you your whole claim. But nothing doing; then anyone could come along and stand against what the common interest requires, to feather his own nest at the others' expense. Here we all pull on the same rope. Your demand to cut is a mere shot in the air, meant to frighten us. But we won't be frightened! We know very well that, like us, you'd rather have the money than a piece of human flesh. Just try carrying out your threat; it'll cost you dear, and we'll make you pay for the rest of your life for having done us out of what's ours.

"I'll risk it, on those terms."

Very well, then, cut. Here's a knife. Come here, Quirites, citizens of Rome, here's something to see. Spurius Postumius means to cut.

Well, you hesitate? We knew it all along: with you it was only ever an empty threat. Another time, leave off such obstruction. It gets you nowhere with us and only holds the matter up for nothing.

Who made the highest bid?

"I did, Titus Aufidius. I'll pay each of you the 50 percent that falls on his claim at once. Here's the money."

Well, stranger, what do you think of that? Was it done right or not?

"Perfectly right! The thing ends exactly as it does in the venditio bonorum, the sale of a debtor's whole estate, which of course you can't know yet, since it belongs only to the praetor's edict. The bankrupt's estate is put up publicly and knocked down to whoever offers the creditors the highest percentage. I used to think that was an invention of the praetor, and originally, as I believed, of the praetor peregrinus, but I'm now convinced he only borrowed it from you.

"But I still have a few questions. First: why do you auction only the debtor's person, and not his property as well?"

Some of us had already chased the debtor off his property beforehand. If he'd still had any property at all, it would have gone to the man who bought him, and would have been reckoned in with the bid. The debtor who has been assigned to a creditor goes to the creditor with everything he is and has.

"I see his wife and children beside him, taking leave of him. Since everything that belongs to him falls to you, you could have sold them along with him."

The man had taken his precautions. When he saw there was no saving him, he emancipated them, released them from his power, and now we're left empty-handed. In the poorer classes the women already protect themselves when they marry: for fear of the fate that could befall them, of following their husbands into bondage, they don't enter a marriage with manus; and we even have to put up with their or their fathers' claiming their share of the estate ahead of us on the strength of their claims to the dowry. For that purpose they put those claims in the form of a stipulation, the cautiones rei uxoriae, the promises to return a wife's dowry. In the good old days the wife got nothing of her dos, her dowry, back out of a bankruptcy; but those times are gone, and people have grown far too clever.

"I have one more question. If the decemvirs, the Ten Men who wrote the Twelve Tables, weren't serious about inflicting bodily punishment on the debtor, if instead they foresaw the road you usually take, why didn't they mark it out expressly?"

Anyone can see you're not from Rome. Just look at the rule of the Twelve Tables I'm pointing to with my finger. How does it read?

"Si membrum rupit, ni cum eo pacit talio esto, 'if a man has maimed a limb, unless he settles with the injured man, let there be retaliation in kind.' What has that to do with my question?"

You'll find out. The statute threatens retaliation, but in fact it hardly ever comes to that. The parties agree on a sum in settlement, which turns out very differently depending on their means and on how determined, firm and stubborn they are. It has happened, it's true, that they couldn't agree and retaliation was about to be carried out, but at the last, decisive moment one side or the other gave way: the one dropped something from his exaggerated demands; the other added something to the sum he'd offered. That's exactly what the statute intended: the threatened retaliation is only meant as a means of pressure, to force the parties to come to an amicable settlement, as the addition "ni cum eo pacit," "unless he settles with him," plainly shows. But the decemvirs wisely took care not to prescribe the settling directly, for it would have been entirely useless without the retaliation standing behind it; that alone holds both parties in check. And it's just the same with the threat of cutting in pieces: it only serves as a means of pressure. To the words of the statute, in partes secanto, you must add in thought, in its spirit: ni pacunt, "unless they settle." The settling is what the statute is aiming at, and it chose its means so well that it never fails to do the job it was meant for, as you've just seen for yourself.

"The means is cleverly chosen indeed; it reminds me of an institution of our own day, the English jury. Its verdict requires unanimity, and the law forces the jurors into it by not letting them leave the jury room until they're all agreed."

My cigar has come to an end, and the picture vanishes. From now on I'll light no new one; I don't need them any more, for I've discovered in myself the gift of conjuring up legal pictures in dreams, and that's more convenient: I do it in my sleep and save my working hours by day. Below, I tell the dream in which I first discovered the gift in myself.

In the Heaven of Legal Concepts: A Fantasy

I had died. As my soul stepped out of my body, a figure made of light was there to meet it.

"You are free now of the bonds of the senses; the chains that held your soul fast to your body have snapped, and from now on you are nothing but spirit. That means you no longer have to go hunting, the hard way, for the 'spirit' of anything, because everything around you, the whole world, is spirit: Geist, which is to say, as a learned man once proved, Ge—ist, pure and simple Is.¹²⁰ The world you thought you were perceiving existed only in your mind, and so did time and space: they were forms of your subjective intuition, as you must already know if you have read Kant and Schopenhauer and understood them, and it was all illusion and trickery of the senses. True being is immaterial; the whole world is spirit, and you are a piece of it. Whatever you think, is: thinking and being are one. That is the source of the power of the will raised to its own highest pitch, a will you knew on your earthly foothill only in its imperfect form, in its first tentative beginnings in the world of appearances. The torment of the will, as your philosophers call it (they have only the earthly kind in view), is over for you; from now on, merely to think is to will: what you've thought, you've willed, and what you've willed is real: thought and reality are one."

Thank you for the explanation. I had imagined it more or less that way, but I'm glad to hear it confirmed from your own lips. What should I call you?

"We spirits have no names; we aren't individuals any more, the way a human being is one. Individuality is another of the forms of cramped earthly existence; like all the rest, it depends on spirit being chained to a body. Once spirit comes loose from the body, it dissolves into the spirit-substance that is the true world, like a drop falling into the sea. I am you, you are me, we are all one without distinction, one and the same spirit-substance. You have been living until now under the notion that you exist for yourself as an individual, and it will go on working in you for a while yet, but you will soon see through it and realize that it isn't you who exist, it isn't you who think, but that It exists and It thinks, and that your being and thinking are no more independent of being and thinking in general than a drop is independent of the river, or a wave of the sea. Have you understood?"

I couldn't honestly say so.

"You should have done more philosophy while you were on earth. Your philosophers haven't the slightest difficulty grasping impersonal being and thinking. Never mind; it will come to you in time. The step from subjectivity to impersonal being isn't easy for a beginner. I had to get used to it myself.

"At the moment you're still in a transitional stage, like the chrysalis that has stopped being a caterpillar and hasn't yet become a butterfly. While it lasts, you won't know whether you're awake or dreaming, whether what you see and live through is idea or reality. That's the first symptom of your consciousness of being a subject fading away. You'll know that every difficult transition goes by way of stages in between.

"To make myself understood, by the way, I'm going to climb down to your old standpoint and adapt myself to your ideas of time, space and individuality. You may think of me as an individual, then, and call me by a name, to keep the two of us apart, though in reality we're only one."

Then what may I call you?

"Call me Psychophoros, the guide of souls. I'm the one whose job it is to lead you to the place of your destiny. I say 'place' and 'lead' to fit what's happening to you to your way of picturing things. If you were further along, you'd know that the idea of a definite place in space comes from the imperfection of human thinking, and that you don't need me to lead you at all, since you only have to think of the place of your destiny to be there."

I'll give it a try. Where am I supposed to think myself to?

"Since you're a scholar of Roman law, you're bound for the heaven of legal concepts. There you'll meet again all the legal concepts you spent so much of your life with on earth, not in their imperfect form, though, not mangled the way the legislators and the practitioners mangle them down there, but in their perfect, spotless purity and ideal beauty. This is where the legal theorists are rewarded for the services they did the concepts on earth. Down there they saw them only through a veil; here they behold them in perfect clarity, see them face to face and keep company with them as equals. The questions they hunted for answers to in vain in this world are answered for them here by the concepts themselves. Here there are no riddles of civil law left: the construction of the hereditas jacens, of the correal obligation, of rights in rights, the nature of possession, the difference between precarium and commodatum, the pledge on one's own property, and all the other problems, whatever they're called, that give a disciple of the science such trouble on his pilgrimage through the earthly vale: here every one of them is solved."¹²¹

"That is the heaven you'll now share in, as a theorist."

Only for theorists, then? Where do the practitioners go?

"They have their own hereafter, and it still belongs to the solar system. The sun shines into it, and it has an atmosphere, the kind that suits the coarse constitution of a practitioner, who simply can't survive in the vacuum that concepts require. Life there goes on exactly as it does on earth; in short, the practitioner finds all the conditions of earthly existence waiting for him. In the theoretical heaven he couldn't breathe, and since his eyes aren't made for the deep darkness that reigns there, he couldn't take a single step."

You mean it's dark there?

"Pitch dark! The blackest night. The heavenly body that holds the theorists' hereafter isn't part of the solar system at all, and not one ray of sunlight reaches it. The sun is the source of all life, and concepts can't abide life; they need a world to themselves, where they exist entirely on their own, far from any contact with life."

But how can the theorists who go there see in such darkness?

"A theorist's eyes are trained to see in the dark while he's still on earth. The darker his subject, the more it attracts him and the better he can show off his keen sight on it; he's like the owl, Minerva's bird, which sees in the dark. How little charm Roman legal history would have for him if the sources let him give a clear, definite answer to every question! It's the gaps in the sources, and their frequent dead silence, that make it so delightful; the darkest stretches are the most interesting, because they leave the imagination free to roam without a tether, and that roaming is the whole joy of owning them. Put light where the darkness was, and it would all be gone! And the Pandects, the lectures on Justinian's Digest! What would become of those if the sources had no obscurities, no dark passages? The dark passages are the spice of the course; the professor looks forward to them for weeks. Think what science would lose if the passages that have given many thousands of Roman-law scholars, century after century, the chance to show their ingenuity were explained so that no doubt remained: there'd be nothing more to do with them, and all their charm would be gone.

"But that's enough talk! Get ready. We're setting off, and all you have to do is picture the hereafter I've just described to you with all your might. Then it will be there."

I'm doing it.

"Here we are already! My mission is over. I may come back for you, if you fail the exam."

An exam in heaven? I'd have thought a person was examined enough on earth, and that once he was dead the examining would finally stop.

"Do you imagine any lawyer at all gets into the heaven of concepts? Then the practitioners could turn up and ask to be let in too. It's meant only for theorists, and only for the elect among them. Your exam will show whether you're one of those; if not, you'll have to move on to the general heaven for lawyers. Report to the guard you see over there."

I'm to report to you. I'd like to go to heaven.

"We'll see whether you're admitted. First you have to get through quarantine, then the exam."

Quarantine? What for?

"To make sure you aren't bringing any atmospheric air in with you."

Can't you tolerate it?

"It's poison to us. That's exactly why our heaven has been put in the farthest corner of the universe, where no breath of air and no ray of light can get in. Concepts can't bear contact with the real world; wherever they are to live and rule, the real world has to stay far away, with everything that belongs to it. The world of concepts you see before you has no life in your sense of the word: it is the realm of abstract thoughts and concepts, which have formed themselves out of themselves, by a logical generatio aequivoca, a spontaneous generation, with no help from the real world, and which therefore shy away from any contact with the earthly one. Anyone who wants to be admitted here must have shed even the memory of that world entirely, or he is neither worthy nor capable of contemplating the pure concepts, and that contemplation is the highest joy our heaven has to offer. For those who haven't managed it yet there's a well here, like the river Lethe in the underworld of the Greeks: the Well of Forgetting, and one drink from it is enough to sink in oblivion whatever notions of real life still cling to them. But very few of those who apply to us find they need it."

Do you get many?

"Only a few, and those almost all from Germany, and even from there only for a while now. For centuries nobody came from there at all; the theorists of those days went along with the practitioners into the general heaven for lawyers. The first ones arrived only five or six decades ago. The very first to apply gave his name as Puchta, and after him the numbers rose most gratifyingly. Some who applied did have to be turned away, of course."

That interests me. Do you still remember their names?

"I can still give you two. They were called Arndts and Wächter."

Wächter? I can understand that: the man had no feeling for the higher things in jurisprudence; his mind always moved in the lowly region of the practical. But Arndts, I'd never have believed it. Why, his Pandects textbook was only a reworking of Puchta's.

"He must have broken away from him a little all the same; his views were criticized for not being theoretical enough: he was said to have conceded too much to the needs of practical life at the expense of pure theory. In short, he failed the exam."

Now I'm getting nervous for myself. On quite a few points, back on earth, I sided more with Arndts than with Puchta.

Savigny is here, though?

"That one gave a great deal of trouble in his day. He didn't yet quite understand constructing, and he very nearly failed, but in the end his book on possession tipped the scales. It was felt that it showed well enough the ability everyone must prove who wants to be admitted here: to build a legal institution up purely out of the sources or out of the concept, without any view of what it means in real practice,¹²² and with that in mind they turned a blind eye. His essay 'On the Vocation of Our Age for Legislation and Jurisprudence' also counted in his favor, for its good intentions and the good effect it had on his contemporaries, since it was thought that without it the motions to get rid of Roman law in Germany and draw up a native code would have succeeded much earlier than they did."

Do you really have an interest here in keeping Roman law?

"How can you even ask such a question! What's to become of us once it's gone? I don't like to think of the day; it will get very lonely here."

Then you count only on the scholars of Roman law?

"Not only, but mainly. Roman law supplies us with the best. But we aren't exclusive: we take scholars of German law, criminal lawyers and others too, so long as they share the Roman-law scholars' faith in the rule of concepts. Most of them are professors, but you'll also find members of your Reichstag and your state parliaments here, who, thank heaven, never let your Bismarck shake their faith that the world must be governed by abstract principles. An unshakable faith in the rule of concepts and abstract principles is common to everyone you'll meet here. It keeps them entirely safe from the temptation to worry about the practical consequences, which as a rule don't fall on them anyway, but on other people."

"Now report to quarantine for admission. Whatever atmospheric air is still on you will evaporate there. Then you'll get your entry pass, which you show at the gate."

I'd like to ask to be let in.

"Your pass is in order. Serial number 119, professor of Roman law. You may enter. Do you want to take your exam right away, or would you like to look around our heaven first? You're free to do that."

Then I'd like to do that.

"I'll give you a spirit to show you round and explain everything. In his lifetime he was a professor of Roman law too, like you."

And what do you call yourself, my most esteemed colleague?

"Since I drank from the Well of Forgetting I've forgotten my name, along with the whole of my past. I was probably a professor on earth, and will have written thick books, as a professor should; otherwise I'd hardly be here. I suspect they were about the correal obligation, because whenever I catch sight of it in the Hall of Concepts a quite peculiar feeling comes over me, a sympathetic shiver, as if there had once been a closer relationship between us."

A great many people could have the same feeling. There's hardly a Roman-law scholar who hasn't had his say on it, and not a year goes by without new books and articles about it.

"And it deserves them! It's one of the most profound legal formations in our whole heaven; for the lawyer it holds a problem as interesting and inexhaustible as the Trinity does for the theologians, and you can sink yourself into it so completely that you lose all feeling for anything else. Whoever has once seen it face to face in our heaven falls under its spell forever and is lost to everything else."

Then please be good enough not to take me to it. I'd rather not lose my taste for other things.

Where are we going?

"First to the gymnasium, the palaestra, the wrestling school of the Greeks. It's the ground for the exercises the blessed spirits relax with when they're tired of contemplating the concepts. You'll be brought back here later to take your exam."

What strange things I see here! What on earth is this odd machine?

"That is the hair-splitting machine. When you take your exam you'll have to split a hair on it into 999,999 exactly equal pieces, and if even a single one proves too light on the scale beside it, which a sunbeam would be enough to tip, you've failed. First you're given a hair you can still see with the naked eye, then finer and finer ones, which, with your eyesight not yet trained, you'll only be able to make out with a magnifying glass. Later on you won't need that at all; it's unbelievable how the eye develops and how skill at hair-splitting grows with practice, and we have some here who split the standard piece into another 999,999. Whoever does it best receives the master's prize: a wreath, after the fashion of a laurel wreath, woven from the hairs he has split himself, and he keeps it until someone outdoes him. Hair-splitting has never yet come to an end with us."

And what's that long pole over there?

"That's the climbing pole of difficult legal problems. It's so smooth that a sunbeam, if one were possible here, would slide off it. You may try three times; if you don't make it, you've failed. You see the pole has three crow's nests. In your exam you have to climb to the first, fetch down any one of the problems kept there, and then take it back up again. The other two can be reached only by those who have already acquired great skill at climbing. I needn't tell you the difficulties increase with each level. Only one spirit has ever reached the top crow's nest, and only once, and afterwards he had the greatest trouble getting the problem back up."

Why does that have to be done?

"What a foolish question! All the fun would stop if there were no more problems up there to fetch down. Our problems are there to spur people on to climb, not to be solved. What would all those who feel the urge to climb do with themselves if there were no problems left at the top? That's why they always have to be taken back up."

Then it's the same with your problems as with the three hares I was told about in a town where I used to be a professor. They were the only hares in the whole district's hunting grounds, and the sportsmen knew each one of them personally. There was a tacit agreement among the hunting men that they would hunt them and shoot at them, but never hit them; they wanted to keep the pleasure of the hunt. One day one of them hit one of the hares, by accident, as he firmly insisted, and roused general indignation. The hares, people said, were there to be hunted, not to be shot. It seems to be exactly the same with your problems.

"You've hit the nail on the head. Our legal heaven seems to be dawning on you at last."

Let me ask one more question: the difficult legal problems you've put up there, are they of a practical kind, do they matter for life?

"Now you show once again that you still haven't the least understanding of our heaven. Of a practical kind? You mustn't so much as say the word practical here; if anyone but me had heard it, you'd have been expelled on the spot. Do the problems matter for life? Is there any life here? Here only pure science reigns, legal logic, and the condition of its reign, and of all the glory that flows from it, is precisely that it has nothing whatever to do with life. Later, when we inspect the concepts, you'll see what becomes of them when they have to bend to life. Next to the Hall of Concepts, where you'll behold the pure concepts, that is, the ones that live for themselves alone, released from every relation to life, there's a separate anatomical-pathological cabinet of concepts, which holds the deformities and dislocations the concepts have suffered in the real world, all of them preserved specimens. Freaks like that may scrape along on earth, but in our heaven they can't live, because here nothing lives but what is scientifically healthy, that is, conceptually pure and logically correct. The life you're thinking of is the same thing as the death of true science. It is science in bondage, the concepts at forced labor: instead of living for themselves, as they have every right to, they're harnessed to the degrading yoke of the needs of earthly life. Here the concepts live for themselves, and if you don't want to cut off all hope of admission, never ask anyone what everything you see here is supposed to serve. Serve! That's all we'd need, concepts that serve in our heaven too. Here they rule, and make up for the servitude they had to endure on earth."

"Let's move on. I'll show you a few of our legal machines. I can't explain them all to you, and they aren't all equally interesting. Some, like the Fiction Apparatus here, whose great value for legal purposes you know from experience, you'll understand without my help. I'll pick out only the most interesting."

"This one is the Construction Apparatus. We're in luck: it happens to be running. Let's see what the spirit using it is up to."

"Sublime spirit, permit me to ask: what are you engaged on at the moment?"

"I'm constructing the contract."

The contract? But that's a perfectly simple thing. What is there left to construct about it?

"A great deal, precisely because it's so simple! You must be new here, or you'd know that. It's the simplest things that give the art of construction its most interesting and rewarding objects. Anyone can grasp the simple, and his grasp is about what you'd expect. The connoisseur knows that the simplest legal phenomena hold the greatest difficulty, and as for the contract, which looks so simple to you, I don't even know yet whether I'll manage to construct it at all. I'm close to declaring the contract a logical impossibility."¹²³

But how is anyone supposed to...

"Silence! I can guess what you were going to say. You mean, how is anyone to get by in life without the contract. As I've told you already, you mustn't say the word life here, or you're lost. Correct your question."

I... I... I meant: what is to become of tasks like constructing rights in rights, the hereditas jacens, the pledge on one's own property?

"Mere trifles! I finished with those long ago. The more complicated the relationship, the easier the construction; the simpler, the harder. The only things besides the contract that still have any charm for me are the obligation and direct agency."

May I ask what result you've reached on them?

"On the obligation, that it is a right in the debtor's act."

But I can't conceive of that at all. As long as the act hasn't been performed, it doesn't exist yet, so there can't be a right in it.

"Exist? One can tell you don't belong among us. What we think, exists. The debtor's act, which for your limited thinking, still apparently not past the category of time, exists only in the future, exists for me already, since I know no such limit to thought. I think it, and it's there. For us thinking and being are one."

That's one way to do it, certainly. And how did your construction of direct agency turn out?

"It's simply impossible. One cannot conceive that A's act is B's, which would be necessary if its effects were to benefit B. One person can no more perform an act for another than he can take a dose of medicine for him: the second is a physical impossibility, the first a logical one. The effect can arise only in the person in whom the cause preceded it. If positive law provides that a contract made on someone else's instructions and in someone else's name gives rights and duties only to the principal and not to the agent, that is the purest caprice, an offense against all the laws of legal thought, and so the Romans hit on the one correct solution when they had the effects of the contract arise first in the person of the agent and passed them on from him to the person he represented."

But in acquiring possession and ownership they let the effect arise directly.

"Bad enough! That belongs to the period when Roman legal thought was in decline."

"Don't get into any arguments with anyone here. You aren't yet at the height of conceptual thinking."

"Let's go on."

"What you see here is the dialectical-hydraulic interpretation press. With it you can get anything you need out of any passage. Of the two pumps beside the main cylinder, one holds the dialectical infiltration apparatus, the injector, which forces into a passage thoughts, assumptions and restrictions that were wholly foreign to the man who wrote it. It's an invention of the theologians; the lawyers merely copied it, and their apparatus can't begin to compare with the theologians': it does barely a tenth of what theirs does, since they use it to force whole systems into a single word, but for legal purposes it's quite enough. The other pump is the elimination apparatus, the eliminator, which removes any positive statements in a passage that happen to be inconvenient. Handled properly, the machine can reconcile the most contradictory passages."

And the machine beside it?

"That's the dialectical boring machine. It's for getting to the bottom of difficult questions: it is the mechanical realization of the problem of scholarly thoroughness. It takes great skill to handle, mind you. Used less skillfully, it bores so deep that the drill comes out again on the other side, which always gives us blessed spirits great amusement. To humble the clumsy and warn the rest, the failed test pieces are kept and put on display. You see them here in front of you."

They don't surprise me. I was quite prepared to find no shortage of bores in your heaven.

"Kindly refrain from all spiteful insinuations. And to give you no further occasion for them, I shan't show you the rest of the machines and apparatus at all. We'll go straight on to the last thing you're to see in the gymnasium: the Vertigo Wall, which closes off the grounds."

Why, it rises to an immense height. My eye can barely reach the top.

"Strain your eyes a little. Don't you see something moving up there on the wall?"

So I do! It looks like one of your spirits. What's he doing up there?

"He's training against the assaults of vertigo. The wall rises in ledges. On the lowest, the path along it is still as broad as the foot of us spirits; on the ones above it gets narrower and narrower, until at last it tapers to the sharpness of a razor's edge. It is the path of dialectical deduction, on which reason, at the slightest misstep, risks falling into the abyss of nonsense. Many fall from the higher ledges. Look up, here's an example for you: the man is falling."

How dreadful! From that height! And he's landed on his head, too. How badly he must be hurt.

"That doesn't bother him much. You see, he's getting straight up again to try the experiment afresh. Our heads are built to take a knock. You'll have to go up the Vertigo Wall for your exam too, but only to the lowest ledge."

After everything you've told me so far about the tests I'll have to pass in my exam, I'm so anxious that I despair of getting through. I may not apply at all in the end.

"That's your affair. I'll take you now to the Academy of Legal History."

An academy all to itself for legal history?

"Not for legal history in general, only for Roman, and not even for all of that, only for one branch of it, which far surpasses all the others in scholarly value and interest."

The earliest history?

"No! We give that only second place here. First place goes to the restoration of Roman formulas and texts. It counts as the hardest and most valuable part of the study of Roman legal history; anyone who isn't good at it isn't admitted to the Academy."

Then I don't suppose you have many academicians?

"Oh, but we do! Not so many dare tackle the texts, it's true; most of them lack the courage or the philology for it. But of those who try their hand at restoring Roman formulas we have, thank heaven, no shortage. The Academy is therefore divided into two classes: one for restoring texts and one for restoring formulas. The first is the higher, the second the lower. Only the members of the first class count themselves full members, and when they're among themselves they call themselves 'the Wholes,' while they call the members of the second class merely 'the Halves.' The Halves know this, and they're extremely touchy about it. They make up for it in their turn by looking down on the legal historians who can't even manage to restore a Roman formula."

May I go inside the Academy?

"Certainly! Only, since you aren't an academician yourself, you mustn't speak to anyone present. If you want to know something, ask me."

"I'll take you into the first division only; the second is of no great interest."

What's this board hanging up here?

"It's the trial board for restorations. Gappy texts from Roman law tablets are written up on it to be restored, a new one every month for variety's sake. For trying your hand at restoring written Roman texts there are various mutilated codices lying over there; on some pages only a few letters can be made out, on some not even that. Let's see what's on the board at the moment." FRU . . . . . . . . . ITL . . . . . . . . . ESS . . . . . . . . . . SP . . . . . . . . . ECU . . . . . . . . . . LAT . . . . . . . . . I . . . . . . . . . ONS . .

"Would you venture to complete this fragment?"

I've never tried my hand at restorations, and I shrink from it here too. At most I'd read the letters S P, where a Q and an R must have dropped out, as Senatus Populus(que Romanus), the Senate and People of Rome.

"All the academicians have assumed that too. It's the only point they agree on; otherwise their restorations of the text go completely separate ways. So far not one of them has got it right, not on this one and not on any earlier task. Whoever gets it right becomes President of the Academy, and stays President until someone else unseats him the same way. So far the post has never been filled."

But that must be terribly discouraging. I'd give up trying altogether.

"You don't understand. Every one of them is firmly convinced that he has got it right, and in that belief he finds his satisfaction. For anyone who has once tasted the charm of this scholarly pursuit there's no higher pleasure, because it gives him the feeling of having brought a lost piece of antiquity back into the light of day, of being a Schliemann of the Roman legal sources. Anyone can read sources; making sources, that's the art. There in Festus and Varro, the old Roman word-collectors, lie all sorts of words from the early days, jumbled together like rubble and mold, worthless junk to anyone who doesn't know their value. But along comes the right man, and with the help of these words he gives us a new clause of the Twelve Tables. Gaius too... but here I find the academician who has had Gaius under treatment for some time now, hard at work. Let's hear what he's doing at the moment."¹²⁴

"Sublime spirit, what are you doing to Gaius at the moment?"

"I've just finished filling the gaps in Gaius, and now I'm correcting the text. I've come to the conclusion that Gaius made several gross slips of carelessness, for instance in giving the Roman formula for making a will (II, 104), where he left out the words ex jure Quiritium meam esse ajo, 'I declare it mine by Quiritary right,' that is, by the law of Roman citizens. I've just put them into the text."¹²⁵

It seems to me...

"Make no remarks in his hearing, or you'd have to leave the hall at once for improper conduct. Whisper it in my ear. What seems to you?"

It seems to me to fit like a saddle on a cow. The familiae emptor, the "buyer of the estate" who speaks the formula, wants precisely to stress that he is not becoming owner but only, to borrow a term from Germanic law, a trustee, a Salmann: that he is taking the estate into his keeping and management, nothing more (familia pecuniaque tua endo mandatela(m) custodela(m)que mea(m) ... est emta, "your household and your money are bought into my charge and keeping"). Ex jure Quiritium meam esse ajo would imply exactly the opposite. If the familiae emptor had become dominus ex jure Quiritium, owner by Quiritary right, he could have sold off everything in the estate, and the heirs and legatees would have been left empty-handed. That's precisely why all he gets in the estate is the mandatela custodelaque, the charge and keeping.

"That's my view too. But scruples like that don't trouble him. 'Ex jure Quiritium meum esse' sounds fuller to his ear than plain 'meum esse,' and wherever the addition is missing, he adds it."¹²⁶

Now he's putting Gaius aside. What's he taking up now?

"Paulus. In the formula of the interdictio bonorum, the order that took a spendthrift's property out of his hands, as Paulus hands it down (Sententiae III 4a, 7), he's correcting the ea re of the closing words, ob eam rem tibi ea re commercioque interdico, 'for that reason I forbid you that property and all dealing in it,' into lare."¹²⁷

What does he mean by that?

"Lar, the household god, is presumably meant to stand for the household worship, which would have surprised the Romans every bit as much as it seems to surprise you. On that reading the spendthrift would not only lose the management of his property but be barred from taking part in the household worship as well."

By the praetor? But in Rome the praetor had nothing to do with religious matters. Those, as everyone knows, belonged to the pontiffs, and I've never heard of the praetor trespassing on their province. One really does learn things in your heaven that one never dreamed of on earth: the praetor as head of the church! But why not? With us it does happen that the president of a high court, or of a provincial government, is made president of the High Consistory as well.

"We don't let such trifles bother us here. In heaven the questions of jurisdiction that give the authorities on earth so much trouble come to an end."

Maybe so! But the Roman jurists speak only of bonis interdicere, forbidding someone his property. Just as they say aqua et igni interdicere, forbidding someone water and fire, they could and should have said lare bonisque.

"You know already from the passage of Gaius just now that they aren't to be relied on in matters of language."

So I do! But this carelessness puts their religious feeling in a very poor light. All they care about is the money; the lar isn't worth a mention. Only when the spendthrift comes before the praetor does he find out that it isn't just a matter of the interdictio bonorum, the only thing he has ever heard the jurists talk about, but that the lar has a word to say too.

"He should have made more careful inquiries beforehand."

All very well! But even if I give up the objections I drew from the praetor and the Roman jurists, I still can't see what religious excommunication has to do with squandering and being declared incompetent. One might as well forbid a spendthrift or a bankrupt to set foot in church today. What interest did the children, whom the formula names as the people the measure was ordered for,¹²⁸ have in their father's no longer taking part in the household worship? One would have thought the opposite: taking part in the household worship might have brought him to his senses and reformed him. And if the spendthrift was unworthy to appear at the household worship, how much more so thieves, robbers, murderers, adulterers and perjurers! I've never read anywhere that the "lar" was forbidden to them as well.

And there's something else I can't make out: who conducted the worship from then on, in place of the spendthrift removed from his household priesthood. The curator, his guardian? He had nothing to do with it. The sons of the house? As sons still in their father's power they couldn't hold the father's priestly office. The wife? She could hold it only alongside her husband. The household worship in the spendthrift's house would therefore have had to be suspended: a result that some, in the age of religious decline, when people felt the family rites as a burden and tried to shake them off, would certainly have been glad of, but which the pontiffs will not have tolerated.

I'm not at the end of my objections yet. With the "ea re" of the formula, as it reads in every manuscript alike, the praetor forbids only the sale of the "bona paterna avitaque," the father's and grandfather's property named in the first half of the passage; the spendthrift keeps the right to dispose of what he has acquired himself. The original point of the interdictio bonorum was simply to keep inherited property in the family, and inherited property in the narrowest sense: what had come to the spendthrift from his forefathers by intestate succession.¹²⁹ Whatever he owed not to the law but to some act of acquisition of his own, and accepting an inheritance was one, he could do with as he pleased. But the lar spoils all his plans! Write "lare," and the "ea re" is gone, the words by which the praetor confined the ban on dealing to the bona paterna avitaque, and the measure is stretched to anything and everything the spendthrift has or acquires. The man pays dearly for that scholar's turning an e into an l!

But the case remains most interesting all the same. It shows what you can do, or undo, by changing a single letter. It reminds me of the compositor who mixed up an i and a t in a poem and turned the "intoxicating scent of Mairosen," of May roses, into the scent of "Matrosen," of sailors. Another moral I draw from it is that it's easier to turn one letter into another than to see clearly how far the change will reach.

By now, by the way, I've had quite enough of your Academy, and I understand too why it was built next to the Vertigo Wall. What else is there to see?

"The highest and best, which I've saved for last. You see it over there, in that splendid building. The high dome in the middle arches over our holiest sanctuary: the Hall of Concepts. Beside it, in one wing, is the Cerebrarium, in the other the anatomical-pathological cabinet of concepts. We'll go to the Cerebrarium first."

Where's the entrance? I can't find a door anywhere.

"We don't have doors here. We're used to running our heads against the wall; then it gives way and lets us through. If on earth you'd had the courage of full consistency in principle, the kind that, knowing the path once taken is right, goes straight on, unswerving, or as you people say these days, undeterred, looking neither left nor right, not caring whether the path leads into swamps and over precipices, or, to put it less figuratively, paying no attention to the practical consequences: if you'd had that courage on earth, it would be easy for you here too to run your head against this wall and force your way in. I'll do it for you. Follow me."

"We're in the Cerebrarium."

What's that?

"It's our spiritistic laboratory. This is where the brain substance for the theorists is made."

Do they need a special brain, then?

"You of all people ought to know that, having carried yours around with you all your life. Did you never notice that it's organized differently from an ordinary practitioner's?"

I felt something of the kind, but it never became clear to me.

"Here's your chance to learn about it after the fact. For comparison, two brains are on display here, exact copies in wax, one of a theorist, the other of a practitioner. Don't you notice a difference?"

Certainly! In the first there's a peculiar bump in the substantia medullaris, the white matter.

"That's the mons idealis, the mount of the ideal. It is the mark that distinguishes the legal theorist from the practitioner. The substance from which it gradually develops in the lawyer called to be a theorist is made here. In atmospheric air it evaporates, and that's how it can be given to the woman who is blessed to bring a theorist into the world: she breathes it in at conception without noticing at the time. Afterwards she can already tell from the restlessness of the unborn child that it's something special. The future theorist announces himself in his mother's womb by being unable to wait to get himself talked about."

What does the mons idealis do?

"It gives the theorist the gift of ideal thinking, which you mustn't confuse with abstract thinking. Everyone needs abstract thinking, the practical lawyer first of all, and his profession sees to it that it's developed in him as far as his work requires, even if nature didn't equip him particularly well in that respect. But ideal thinking is the special privilege of the legal theorist. It rests on the ability, when thinking about legal things, to free oneself from the conditions of carrying them out in practice. Questions of application and of proof don't come into it for him: what he thinks, exists. That relieves him of all the difficulties that give the practitioner so much trouble: how the fine distinctions he has drawn are to be recognized in concreto, in the actual case; how the differences of will that are possible in abstracto can be proved in the individual case. His realm is the abstract alone; the concrete he leaves to the practitioner, who can see how he copes with it. In this way the opposition between thought and reality, which gives all other mortals so much trouble, is done away with for him. He stands at the summit of philosophical idealism, for which the real world is mere appearance, a mere idea in the subject's mind. To Descartes's cogito ergo sum, 'I think, therefore I am,' he opposes the infinitely richer cogito ergo est, 'I think, therefore it is.' Armed with this creative power of thought, which posits being and so takes its place, he knows no obstacle in the field of law that can call a halt to his combinations of ideas. Like the eagle soaring into the clouds, he rises into the regions of ideal thought and bathes there in the pure ether of thought, untroubled by the real world, which lies far below him, out of his sight."

Thank you for the instruction. I'd pictured it much like that. I've always thought of jurisprudence as the mathematics of law. The lawyer calculates with his concepts as the mathematician does with his quantities; as long as the result is logically correct, he needn't trouble himself about anything else.

"So he should, if he wants to prove worthy of the name. But the practitioner is weak enough to let a glance at the practical consequences lead him astray from consistent logical thinking. It's not to be held against him, of course: his brain lacks the mons idealis."

How is the substance for it made?

"You can't understand that yet; the procedure is very complicated. Besides, the substance it needs isn't the only one prepared here. The substance for intuition in legal history is made here too. It depends on adding the right amount of imagination to the general theoretical brain substance."

Is it only the legal historian who needs imagination? I remember reading in a work of Thomasius that no lawyer, not even the practical one, can manage without a proper dose of imagination; it's needed, he says, "to picture to oneself the strange casus juris," the odd cases of the law.

"That's the quite ordinary kind, the phantasia communis seu vulgaris, the common or vulgar imagination. It isn't enough for the legal historian. He needs his own very special kind, and that's what is prepared here. Making it depends on adding just the right amount of poetic imagination, the phantasia poetica seu eximia, the poetic or exceptional kind, to the legal-theoretical brain substance. If the right proportion is exceeded even slightly, the future owner of the brain suffers considerably. The poetic imagination, which the purely historical problems of law don't satisfy, which they don't absorb or tie down, ferments and rages and rumbles inside him, and the poet and the lawyer fly at each other. Then everything depends on which of the two gets the better of the other. If the poet proves the stronger, the poetic substance finds an outlet that does jurisprudence no further harm: the man writes poems, plays, stories and novels, as happens with scholars in other fields who are equipped the same way. But it's bad when the lawyer wins. Then the whole surplus of poetic imagination, since it has to find an outlet somewhere and settle somewhere, turns up in legal literature. It is the feeble trickle that, not strong enough like a full river to cut its own bed, spreads out over the flat plain with no firm banks to hold it, this way and that, forming puddles, ponds and swamps: the flooding of jurisprudence by half-poetry. Whole poetry is no danger to it, since it isn't tempted to lay hands on legal material. But the half kind, that's another matter! Unable to rise to pure poetic form, it uses jurisprudence to relieve itself. And it isn't choosy about where it unloads its effusions. Nothing, not even the driest legal things, is safe from its going into raptures at the sight of them and moving heaven and earth to transfigure them with poetic glory. What could be more sober than the fiction? And yet a recent writer has managed to conjure up Olympus and Olympian Zeus, hurricanes and volcanoes, lightning and storm, springtime and buzzing bees, to show its nature in the proper light: the fiction lit up by Bengal fire.¹³⁰

"When the first of these people came to us, they were sent on to the poets' heaven, but the poets sent them back with a protest. They had borrowed from the poets, it was said, only the outward finery, the phrases. A true poet feels an inward aversion to all phrase-making and all affectation in language; he knows that form must suit content, and would never be in danger of hanging poetic rags on legal concepts. They came back to us, then, and we put up with them, but most of us avoid them. Usually they sit in a corner, withdrawn and brooding darkly, until something catches their attention. Then they leap up, throw their arms about and fall into a state of ecstasy that could frighten anyone who doesn't know them. But they're quite harmless people, who never hurt anyone, and when the fit is over they talk perfectly sensibly, and often see further than others who laugh at them. They have one advantage over those others, who work with the intellect alone: imagination and nimbleness of mind. If only they had the strength to keep their minds in check, they could hold their own with the rest handsomely. But that is just what they lack.

"We'll go now to the rotunda: the Hall of Concepts. Since you haven't been admitted yet and so have no right to enter the hall, I'll take you up to the gallery. You can look at things from there."

What a throng I see before me! It reminds me of the Hamburg Stock Exchange. Only the figures moving about here are quite different from the kind you see there. What majestic, imposing apparitions! And what variety of expression, every one a sharply drawn type! How far the human face falls short of the concepts' in expression!

"That shouldn't surprise you! The face expresses what is inside. Think how much goes on inside a person over a whole long life, how varied the feelings and sensations that visit him, and on how infinitely many objects human thought tries itself out. But the thinking of the concepts is confined to themselves alone. From the beginning of the world to this day they have had nothing else to do but think themselves. The only temptation to emotion and passion they're exposed to comes when they fall out with one another over the borders of their territories; then they can get very lively indeed, even unpleasant. Given the intensity of their thinking, which apart from such passing fits is always untroubled and turned wholly on themselves, it's no wonder their nature shows unmistakably in their expression and even in their bearing. You'll surely have no trouble recognizing most of them at once. What do you take those three concepts standing together over there to be, for instance?"

The crafty face of the first marks him unmistakably as dolus, fraud; you can see the malice he hides in his heart. The second, with the extremely simple face, can only be culpa lata, gross negligence: thoughtlessness perfected. The third, from his carefree expression and his shambling walk, I can only take for culpa levis, slight negligence.

"Right! You could also have told from the fact that he's just this moment trodden on the feet of the concept lying over there in the corner with its legs stretched out."

And who's that? He seems to be asleep.

"That's mora, default. She usually lies sprawled lazily in the corner. If a creditor's formal demand didn't startle her awake now and then, she'd never stir at all."

"You'll surely recognize the concept who's just going up to dolus."

That must be bona fides, good faith. The unmistakable look of openness, honesty and truth in her face proclaims it.

"She was easy to recognize, of course. Nor will the concept standing right in the middle of the hall give you any trouble."

It can only be ownership. It matches the picture I'd formed of it: square-built, solid, robust of limb, well fed, with a look of comfortable satisfaction on its face. You can see that nothing disturbs it, that it feels perfectly secure, in glaring contrast to the other concept standing beside it, whose features wear the utmost anxiety and worry.

"That's obligatio, the obligation, who is always worried whether she'll get what's due to her. The only ones who know how to take her mind off it are suretyship and the pledge; in their company she's always in good spirits."

I see some thoroughly sour-faced fellows too, sulking in the corner.

"They're annoyed at getting so little attention. The two standing together there are capitis deminutio, the loss of civil status, and infamy. They once had it better, but their day is over. From the trembling of their hands and their whole bearing you can tell they're quite frail and doddering, and they've probably given up any hope of ever being honored again themselves. For a while they took fresh hope. One of the recent jurists¹³¹ had given them a place in his textbook and his lectures on present-day Roman law and treated them with the tenderest care. You should have seen how confident they became again, and what a welcome they gave the man when he arrived here. But nobody here took any notice; they're regarded as spent forces. By rights they belong in our legal-historical churchyard, but out of piety they're still tolerated."

You have a churchyard too, then?

"Certainly! I didn't show it to you because at present it's still quite empty. We shrink from burying concepts, even when all life and strength have gone out of them; out of regard for their past we allow them here, like retired civil servants, an otium cum dignitate, a leisure with dignity. Habitatio and operae animalium, the right of residence and the right to an animal's labor, who are standing in the sulking corner over there too, were to be buried one day, and everything was ready for their funeral, but it couldn't be pushed through for them either, and to this day they're still here among the concepts of present-day law."

There are three more concepts there who have also withdrawn from the crowd and stand in the corner, sullen and bored; but they seem quite vigorous and hale.

"Certainly! They're superficies, the right to a building on someone else's land, emphyteusis, the hereditary lease, and usus, the bare right of use. They're annoyed at how few people talk to them, and they envy the other jura in re, the rights in another's property, their lively trade, especially the servitudes that go with land, and the pledge. They're green with envy, all three, and extremely monosyllabic fellows besides; it's best not to get talking to them. I know that from experience. Not long ago I had an argument with usus over the extremely important question of what effect the ademptio fructus, the taking away of the fruits, has on a legacy of usufruct. He maintained it couldn't touch him, and proved so impervious to all my counterarguments and remonstrances that I broke off the conversation firmly resolved never to have anything to do with him again."

I notice a considerable difference in size among the concepts. Is that chance, or is there a reason?

"With us nothing is chance! You could have answered the question yourself: the size of the concepts goes by their importance. That's how the general concepts, for instance, stand out from the special ones. You have an example right below you: the contract is just now chatting with the loan and the commodatum. Conversation between the general and the special isn't frequent; their relations are settled and hardly give rise to quarrels. Those among the special ones themselves rarely give matter for a dispute either; only precarium and commodatum have still not agreed to this day on their distinguishing marks. All the more do the general concepts have to do with one another. Some of their quarrels date only from the most recent times; they were stirred up by a few newly arrived theorists. There you see nullity and voidability, for example, in the most heated conversation. They used to get on famously, but lately they've been at each other's throats. Worse still, if possible, are the correal and the solidary obligation: there's no end to their wrangling, it starts up afresh every day! They used to live together on the most peaceful terms, but a jurist who arrived here some time ago set them against each other. Since then the peace is over. They live on the tensest of terms, say the bitterest things to each other, and every attempt to reconcile them has proved fruitless. For my part I've long been tired of the feud and take no part in it any more."

But there oughtn't really to be any quarreling in your heaven at all.

"Fool that you are! Dispute is the true spice of science. Without it our heaven would be unbearably boring. Even one of us gets tired in the long run of contemplating the concepts forever; only dispute and the arrival of newcomers bring some life and variety into it."

Do the concepts quarrel only among themselves, or with the spirits too?

"Oh no! They consider that beneath their dignity, and no one has yet been presumptuous enough to try. But they don't disdain to chat with the spirits quite intimately and instruct them about their true nature. Only yesterday possession had a long and thorough talk with Savigny."

Do you know what they discussed?

"Certainly! They took up the question whether possession is a right or a fact."

What a pity I didn't hear the conversation; there was something to learn there! Possession interests me enormously. I haven't caught sight of him yet. Be so good as to show him to me.

"I can't find him at the moment. Most of the concepts here have a fixed spot, like the businessmen in your stock exchanges on earth, where you can always be sure of finding them. Only a very few have refused to go along with that. They're restless by nature and can't stay long in the same place; now they're here, now there. There you see the pledge, for example, standing at the moment among the rights in things. But I'm not sure it won't take itself off into the law of obligations the next moment. Even the law of inheritance, which otherwise stayed quietly in its place, once looked as if it would move over into family law, though it calmed down again afterwards. But the worst of all the concepts is possession. He's an extremely restless fellow who never stays long in one place. Sometimes he has his stand in the General Part,¹³² sometimes in the law of personality,¹³³ sometimes in the law of things,¹³⁴ usually next to ownership, whether in front of it or behind it; but he has even poached on ownership's own preserve once,¹³⁵ and he's pushed his way into the law of obligations as well.¹³⁶

"Now I see him. He's standing in the law of things section at the moment, over there next to ownership."

That's possession, then? How odd! I'd pictured him differently. I took him for a right, and here he presents himself as a fact.¹³⁷

"Just wait. You'll see him as a right too. He's forever changing; he's the Proteus among our concepts.

"Look at him now. What is he now?"

Sure enough, now he's a right.¹³⁸

"Now wait just a moment."

"And what is he now?"

Both at once: "a fact in its nature, but equal to a right in its consequences."¹³⁹ Extraordinary! A moment ago I'd have sworn he was a right by nature, since he has everything about him that belongs to the nature of a right.¹⁴⁰ But it's no use: his nature seems to consist precisely in not being what he is, or in being at every moment whatever happens to occur to him: now "in truth not a right," "not a legal relation," but a fact, then a right "like all others," then "both at once." He's like an eel that mocks every attempt to grab him; you think you have him in your hands, and he has slipped away again.

"You've hit it exactly. He behaves the same way in acquisition and loss: you'll never be able to say for certain whether he's there or not.¹⁴¹ And exactly the same goes for the protection of possession. One moment you think it a masterstroke of the Roman praetor, the next a gross blunder of his, and you're persuaded you've been deceived by a dazzling appearance."¹⁴²

Yes, that cursed protection of possession! It gave me plenty of trouble on earth too. I thought that as a lawyer I ought to raise the question of its reason, and a fine reception I got: I was told that was a philosophical question,¹⁴³ and I concluded that the Roman jurists didn't know the border between jurisprudence and philosophy either, since they too let themselves be tempted into raising the question of the "philosophical reason" for usucapion, the acquiring of ownership by long possession.¹⁴⁴ The example they set me on that effect of possession tempted me into raising the same question about the protection of possession, and I'm not entirely alone in it. One of our jurists even called up the dogs to help him explain the reason for protecting possession.¹⁴⁵ On cooler reflection, though, he seems to have found the alliance a little doubtful himself, because later he discharged the dogs from service. It's his brief attempt to harness the dogs to the theory of possession that is to blame if wicked tongues have said that jurisprudence, with its theory of possession, has gone to the dogs.

"Serves it right. Why does it go asking for the reasons for legal institutions? It need concern itself with the reasons for the law of possession exactly as much, and as little, as with those for all other rights.¹⁴⁶ Savigny did it himself, it's true, but from the standpoint of the Savigny school, that is to say of the jurisprudence of the nineteenth century, the method so far favored of fathoming the reason for the protection of possession must be rejected."¹⁴⁷

Then I can see I don't belong to that school. I've never been able to suppress the question of the legislative reason for institutions; it's become second nature with me to ask, of every legal rule, what its purpose is.

"From the fact that you equate purpose with legislative reason, it's clear you're completely in the dark about an important distinction: the one between the legislative reason of the lex lata and that of the lex ferenda, the law as it has been made and the law as it is still to be made."

I confess I've never heard of it.

"I'll instruct you. The legislative reason de lege lata coincides always and everywhere with the historical reason for the legal protection; we have no reason to exclude from the historical reason the considerations without which the law would never have come into being."¹⁴⁸

I can agree with that. I can imagine that the need for a law first comes to light in some especially glaring case, what we call the occasio legis, the occasion of the law. But how could that single case have brought about the making of the law if the reasons de lege ferenda hadn't shown up in it especially clearly? Those reasons haven't changed their nature because the law has been made. The supposed reasons de lege lata after the law is made are nothing but the reasons de lege ferenda before it was made. One might just as well call the motives that led someone to an act his motives before the act and its historical reason after it. To my understanding, which admittedly hasn't yet been raised to the height of your thinking, that looks like playing with words.

"Precisely because it hasn't yet been raised to it, refrain from judging. And while we're on it I must repeat, in all seriousness, the warning I gave you before: never ask why here in our heaven. Nobody here asks why; 'the Savigny school, that is to say the legal school of the nineteenth century,' is long past that. That would be the last straw, for our sublime concepts to have to answer to a worm of the earth like you for their whence and their why. They might even have to reckon with your not liking the answer. The concepts you see here are, and that says it all. They are absolute truths: they have always been, and they will be forever. To ask about their nature and their why is no better than asking why twice two is four. It is four. With that Is, everything has been said; there is no reason for it. It's just the same with the concepts: they rest in themselves as absolute truths, and there is no reason for them. The one duty of the thinking mind toward them is to sink itself into them with full and unreserved devotion and bring to light, for knowledge, the wealth of content shut up in them. What it brings to light that way is truth, and like every truth it has a claim to absolute validity."

In your heaven, maybe! But on earth...

"Don't talk to me about your earth! There truth shares the fate of Pegasus in harness: it is enslaved by your legislators and practitioners, who have no feeling for truth, though truth should be the only guiding star in law. In their blindness they put the practically useful, which is passing and perishable, in the place of the true, which is eternal. What power has the legislator over truth? Can he decree that twice two is five? No more can he decree that something contrary to the reason of law shall be valid. The practitioner may be weak enough to submit to it, but the theorist who wants to prove not unworthy of the name refuses obedience to so absurd a law;¹⁴⁹ to him truth stands higher than the fear of men. Fortunately he no longer finds himself in the position of having to apply the law in practice, and this separation of theory and practice is one of the greatest achievements of our age. Only through it has science won the complete freedom of movement it must have in the search for truth. Standing on the rock-solid ground of theory, released from every consideration for practical life, like the natural scientist who seeks to fathom the secrets of nature, the researcher in the field of law knows no other goal than to unlock the wonderful secrets of the legal world and lay bare the fine veins in the logical organism of law. And it's astonishing what he achieves with the help of logical thought alone: the finest dialectical filigree, true wonders of human ingenuity, monuments to the thinking power of the nineteenth century that, like those of the scholastics, will compel the admiration of the most distant ages and fire them to imitation. But all this has become possible only since theory was completely emancipated from practice and made to stand on its own, because the condition of this free, creative, dialectical activity is keeping clear of any contact with practical life, which has the same ruinous influence on the theorist as, in the judgment of an expert authority, war has on the soldier.¹⁵⁰ The much-praised Roman jurists are a horrifying example of this: for the sake of life they often let themselves be guided by stale reasons of utility, and that's why you won't find a single one of them in our heaven. The abolition of the judging faculties, the law faculties the courts used to send their case files to for a verdict, has removed the danger of contact with life for our present-day science of law."

I think you rate the danger they held too high. I've seen judgments from judging faculties that left nothing to be desired from a strictly scholarly point of view.¹⁵¹

"Maybe so. I'm not thinking of the time when the true science of law reawoke, but of the time before it. Then the institution certainly proved harmful. The halfway position the members of the judging faculties held between theory and practice may have done their judgments good, but it had the most damaging influence on their writing. A great many of their views have turned out to be 'errors of more recent jurists.'"¹⁵²

Now I know what you demand of a theorist here, and I'd like to see whether I can meet the demands and apply the correct theoretical method. Give me a problem.

"Try your hand at quasi-possession."¹⁵³

If I let myself be guided by my earlier view, I'd say: where the law recognizes no protection of quasi-possession, none should be assumed to exist. Now Roman law ties that protection to an uti, a use, repeated from time to time;¹⁵⁴ so without it, from the practical standpoint, there's no quasi-possession to be assumed. But when I rise to the theoretical standpoint, the thing takes on a completely different shape. This kind of possession is acquired by the same conduct as the possession of the thing itself. This possession is continued, like every other possession, by the uninterrupted possibility of reproducing the original control, and lost, therefore, when that possibility is removed.¹⁵⁵ A single exercise of the servitude is therefore enough to establish quasi-possession, and since, like possession of a thing, it lasts until the possibility of reproducing the original relation turns into an impossibility, it goes on unchallenged even if for years there are no further acts of exercise.

"Quite good for a beginner. We've rid ourselves of the element of repeated uti, which with its sensory reality suits only the earth, by putting in its place the concept of quasi-possession, which is tied to nothing the senses can touch and belongs wholly to the legal imagination. It is the elevation from the reality of being to the ideality of thought. The only concession we make to reality is the requirement that the right must have been exercised once. That single exercise means no more to quasi-possession than the umbilical cord does to a child: we cut the cord, and the concept is detached from reality forever. Like the child, it leads its own life from then on; reality is done with, and the concept exists for itself."

"Now I'll put you to a new test. How do things stand with the quasi-possessor's claim to the quasi-possessory interdicts?"

They don't concern me. It's enough for me that quasi-possession exists. Its protection is a matter for positive enactment, which theory does not allow to put it off its stride as it develops the concept of quasi-possession. If positive law denies protection to the man to whom we grant quasi-possession, as Roman law irresponsibly did, he must bear it with composure, like so many acts of caprice that the weak on earth have to put up with from the powerful. It won't be hard for him, since he has the comforting knowledge that theory recognizes him as a quasi-possessor.

"Good again! Now we've detached the concept of quasi-possession from the inconvenient element of protection as well. From now on no practical condition can touch it."

"But my questions aren't over yet. You still have to tell me how quasi-possession stands to the extinction of a servitude by non-usus. Suppose the holder of a predial servitude performed his last act of exercise on 31 December 1799, and then didn't stir for ten years. How do the quasi-possession and the servitude stand on 1 January 1810?"

Quite simple! The possession he had on 1 January 1800 he keeps as long as the possibility of reproducing the original state of affairs continues without a break. What does it matter to quasi-possession that the servitude is extinguished by non-usus? By its concept it is completely independent of the servitude. There can be quasi-possession without an existing servitude, and a servitude without quasi-possession, and so it can also go on without the servitude.¹⁵⁶ Indeed, I go further: it can bring the extinguished servitude back to life. For a servitude, as everyone knows, can arise by prescription, and wherever there is possession, prescription attaches to it, provided the other requirements are met.¹⁵⁷ So this is how it goes. In the decade from 1800 to 1810 the servitude is extinguished by non-usus; in the next, since the quasi-possession continues, it arises anew by prescription; in the next it is extinguished again; and so on until the end of days, since the quasi-possession passes eo ipso, of itself, to each new owner of the land,¹⁵⁸ or if we suppose a legal person holds the servitude, always assuming the possibility of reproducing the original state. Quasi-possession is eternal. It ranks with the action on a loan, which can never be barred by lapse of time, because so long as the creditor hasn't asked for the money back no right has been violated,¹⁵⁹ and with the defense of set-off from an obligatio naturalis, a natural obligation, for which there is no prescription either. What an uplifting feeling for the lawyer! Thrones fall, nations pass away, the whole world is subject to change, but in the jurisprudence of concepts there are legal relations that defy all the changes of earthly things, that no time can touch.

"Without knowing it, you've described one of the showpieces of our world of concepts: the legal perpetuum mobile, perpetual motion. The problem mechanics has tried in vain to solve, jurisprudence has made real in its own field. Once quasi-possession is established, the predial servitude keeps up its motion in an even rhythm, without stopping, for all eternity. In one decade it arises by prescription, in the next it is extinguished by non-usus; in one decade it turns its quasi-possession side outward, in the next its non-usus side."

But it has to keep the two sides strictly apart. If it ever mixes them up, it won't move from the spot at all.

"You mean because arising and extinction would then fall in the same decade, and two opposite forces or motions cancel each other out?"

That's what I meant.

"That is just what the supreme perfection of our perpetuum mobile rests on. It combines the possibility of eternal motion with that of eternal standstill, and so realizes, for the predial servitude, the idea of absolute freedom. For it there is no must. It can not only arise and be extinguished but stand quite still, just as it pleases. No one can know in advance, then, what it will do. Not long ago, for instance, it stood still for a whole year; it evidently felt the need to rest for once and enjoy the comforts of the praescriptio dormiens, the sleeping prescription. Then it started running again and completed the decade of prescription."

A legal phenomenon without its equal, indeed! There's nothing to beat quasi-possession. Of all the concepts I'd give it the prize.

"Don't forget that it owes everything it achieves to the possession of things; it is nothing but a copy of it. Once you've properly grasped the concept of possession in the case of a thing, its application to rights follows of itself. All our spirits have long agreed that the possession of things outdoes all others in the wonderful texture of its concept, and the concepts themselves unanimously give it first place, though they otherwise quarrel violently over their order of rank. What it brings off, none of them can copy. In its origin a fact, in its nature it is now a fact, now a right, now both together, and finally 'as a real non-right, an independent third concept beside those two.'¹⁶⁰ Starting from sensory reality, it tears itself loose from it at once; the mere possibility is enough for it. No visible relation to the thing, no act, is needed any more to keep it alive; the mere idea in the thinking lawyer's mind will do. In this it outdoes even the rights. Servitudes and actions die out when they aren't exercised, but the absence of the factual relation that answers to it can't harm possession at all. The order of rank between it and the rights is therefore exactly the reverse of what one would expect from the natural point of view: possession proves stronger than right; the fact leaves the right far behind. Roman law had not yet risen to the height of the ideal view in this respect. It credits the right with greater vitality, or power of resistance, than possession, putting the time it takes a right to die at twice that for possession, and it makes a second mistake besides, letting itself be swayed by the distinction between movable and immovable things, which is quite irrelevant to the concept, and giving the legal protection of immovables twice the period it gives movables.¹⁶¹ In its excuse one may add that these rules date from a time when the Romans had not yet come to understand purely conceptual thinking. How our possession stands out against that! In it the concept has completely overcome reality. Possession of a thing that a servus publicus, a slave belonging to the city of Rome, left lying in the woods or buried there in Caesar's day lasts to this very day.¹⁶² It is the triumph of legal thought, which by means of the category of possibility has overcome that of reality. Beginning with 'the idea of possession,' it ends with 'possession in the idea':¹⁶³ the possession that, stripped of all its real effects, still proves strong enough to live on as 'possession in abstracto.'¹⁶⁴"

"But we've spent longer than we should in the Hall of Concepts. It's time we went to the anatomical-pathological cabinet of concepts."

"So far you've had the concepts before you in their pure form. Here you'll get to know the disfigurements they've had to suffer on earth."

At the hands of the Romans too?

"Sad to say! I'd say nothing if it were only legislation that had sinned against them that way among the Romans, but the Roman jurists too were weak enough to put the strictly logical working out of legal concepts second to purely practical considerations, utilitas, as they call the thing. That is how the deformities you see here came about."

Really ugly ones! After seeing the concepts in their perfect purity and ideal beauty, one is positively startled at the sight of these deformities. What do the colors on the specimens mean?

"Black marks the legal rules that are purely positive, laid down by the lawgiver, but contain no contradiction of the concept: here, for example, with the limitation of actions, the various rules about the limitation period, which are perfectly compatible with the concept of limitation. Likewise there, with the law of intestate inheritance, the rules on the order of intestate succession. You see the number of these positive rules is not small, and it would be desirable for it to be smaller; some of them would be better missing. But on earth, where law is wanted only for the sake of applying it, not for its own sake, a certain stock of positive rules can't be done without, and science can tolerate them as long as they don't presume to lay down anything contrary to the concept. How often and how variously that has happened you can see from the two other colors, red and blue. Red marks the disfigurements the concepts suffered already among the Romans, blue those they have suffered only in the modern world; and the lighter shade of each color marks those charged to the legislator, the darker those charged to the jurists. These last are the gravest and most deplorable. They show jurisprudence falling away from itself, making eyes at the needs of practical life, which are none of its business and which it ought to leave entirely to the legislator. For that is its own particular task and calling: to guard the purity of the concepts and keep everything contrary to concept away. One can perhaps forgive the legislator the outrages he commits against the concepts. He knows no better; he commits them in all innocence. But for jurisprudence, the guardian of the concepts, such interference is the gravest offense it can be guilty of, a true sin against the Holy Ghost. Now you'll understand the symbolism of the shading. It matches the guilt: the pale shade is for the legislator, the dark for jurisprudence, each graded by the gravity of the offense. I'll show you a few examples."

"First, ownership. Its concept has suffered nothing either from the legislator or from jurisprudence. All the more, though, have the ways of acquiring ownership and the reivindicatio, the owner's action to get his thing back. Here first you see the thesaurus, treasure trove."

I didn't come across him at all in the Hall of Concepts.

"He couldn't stand there either, because he contains an abnormality in open contradiction with the other principles on acquiring ownership. Ownership of a treasure passes, as everyone knows, from the man who first hid it to his heirs, even if they know nothing about it, from them to their heirs, and so on for all eternity. It can't be lost by mere non-use. If the treasure is finally found, be it after a thousand years, there can be theoretically not the slightest doubt that it still has an owner, possibly, if there were plenty of heirs at each succession, millions of owners. With five heirs at every succession there would be over ten million of them by the tenth. Each one's share is therefore extremely minute, diluted homeopathically, and proving that each separate claimant is an heir would involve some difficulty. As a rule nobody comes forward. But whether claimants come forward or not can make no difference to the legal assessment of the case. We know the treasure has its owners; we just don't know who they are."

"Here you have a glaring case of the conceptual aberration of Roman jurisprudence before your eyes. It says that the thing no longer has an owner.¹⁶⁵ Granted that, consistency would have required awarding the treasure to the finder, by the principles on seizing ownerless things. But now positive law meddles too, and awards the treasure half to the finder and half to the owner of the land. One aberration breeds another: once you leave the firm ground of consistency, there's no stopping on the slippery slope of caprice.

"In honor of our present-day jurisprudence I think I may assume that if the question of treasure had been an open one for it, it would have carried through here the one theoretically correct point of view, just as it did with the prescription of the action on a loan that we spoke of in the Hall of Concepts: that a right for whose extinction no ground can be found goes on, and so there can be no more talk of ownership of a treasure being lost than of an action being lost by prescription when the requirement for the action's birth, the violation of a right, is missing. That would have put ownership on a level with the personal action, and the thesaurus could have held its own perfectly well with the action that never expires."

I see another way of acquiring ownership over there, with an exceptionally heavy dark-red stripe.

"That's usucapion. The Roman jurists treated it badly. By its concept it presupposes possession; a usucapion without possession is a logical absurdity, a conceptual monster. But the Roman jurists didn't shrink even from this abnormality. Although they teach that possession ends with death, they let usucapion run on: a man running without legs! And as if that weren't enough, they let usucapion go on in the person of a debtor who has pledged a thing and handed the possession of it to his creditor. Another charming quid pro quo is usucapion continuing on a runaway slave. Here, though, their legal conscience seems to have stirred after all, because they gloss over the abnormality by assuming that possession of the slave continues. But that's driving out the devil with Beelzebub. Possession of a runaway slave! How such a slave, sitting comfortably and safely in some corner of the earth far from Rome, must have laughed at his master's possession of him!"

"And all of it for the sake of wretched utilitas! The ideal interest in the correctness of concepts thrown away, just so that this or that Roman nobody could acquire by usucapion."

What does this piece of the theory of ownership represent?

"It's the reivindicatio. Here too the Romans sinned grievously. By its purpose and original design it ought to go straight ahead unstoppably and shrink from no obstacle. But what does it do? It shies and pulls up before the miserable tignum junctum, the beam built into someone else's house: the owner of the beam has to make do with double its value. It is an open breach of law, a strangling of ownership; the most ideal of all goods, the principle of law, is sacrificed to the wavering principle of utility. And all just so that the defendant needn't pull down his house. As if a miserable house, amply paid for with a few thousand, could count for anything against the idea of ownership! In excuse one can say that this sacrifice of the idea of ownership is to be laid at the door of an age that had no feeling yet for legal idealism.

"The legislator's bad example bore rich fruit among the Roman jurists. They disfigured the old reivindicatio so badly you'd hardly recognize it: it's a pitiful hybrid between the actio in rem and the actio in personam, the action against the thing and the action against the person. Aimed at getting the thing handed over, it had as its conceptually necessary precondition that the defendant possessed it. What do the jurists do? They release it from this precondition and grant it even against a non-possessor, qui liti se obtulit aut dolo desiit possidere, 'who offered himself to the suit or fraudulently ceased to possess'; that is, they turn it into a claim for fraud. An actio de dolo dressed up as an actio in rem, a true monstrosity! Every student of the Institutes knows that the contrast between those two actions is among the most elementary things in Roman law."

"Once off the right road, the Roman jurists stray further and further. The basic idea of the actio in rem is given up, and both parties are allowed to press claims of a purely personal kind: the defendant for reimbursement of what he has spent on the thing, the plaintiff for surrender of its fruits. The first may just pass at a pinch; it stands and falls with the exc. doli, the defense of fraud, and with that, as everyone knows, you can do anything. I undertake to lift the whole law off its hinges with it; with it I'll beat back any legal rule I don't like. But the claim to the fruits is nothing more nor less than a punch in the face of legal logic! The action reads rem meam esse, 'that the thing belongs to me.' Do the fruits come under the concept of res, the thing? No! They're things in their own right. Does meum esse, 'is mine,' fit them? Only the fruits taken by a possessor in bad faith that still exist; not those taken by a possessor in good faith, because he becomes their owner; not those consumed, because there can be no ownership of a thing that no longer exists."

I agree with you entirely. I wouldn't have advised any of our present-day jurists to bring such a notion to market. He'd have been stoned, and even the legislator wouldn't have escaped the charge of caprice;¹⁶⁶ but the Roman jurists get away with everything.

"They have a great deal more on their conscience with the reivindicatio. Just look at the jus tollendi here, the right to take away."

It has a very heavy red stripe.

"Rightly so! It contains a grave logical blunder. If the possessor has made improvements to the thing, they fall to the owner, as everyone knows, by the principles of accession, and so a jus tollendi, a right for the defendant to take them away, is logically impossible. Yet it is granted. But how! If the plaintiff offers to pay the defendant what the improvement will be worth once it has been taken off, it may not be exercised; and likewise if it will be worth nothing at all. Malitiis non indulgendum est, 'spite is not to be indulged,' say the Roman jurists, and so they carry a pure principle of morality over into law. A fine principle! With that too I'd undertake to lift the whole law off its hinges. A creditor demands payment at a moment when paying at once would cause the debtor the greatest inconvenience, while it wouldn't cost the creditor the least thing to wait a while. What do I do? I dismiss his claim: malitiis non indulgendum est! Is it spite, if I exercise my rightful claim? Deny the possessor the jus tollendi by all means, but once you've granted it, don't take back with one hand what you've given with the other."

I've always been of the view too that the Roman jurists sinned gravely on this point. That's where it leads when one is guided by the point of view they're not ashamed to state openly: ne urbs ruinis deformetur, "lest the city be disfigured by ruins."¹⁶⁷ One may forgive the old law for applying it to the tignum junctum, but the Roman jurists ought to have known that the principle of law stands higher than all considerations of utility. Much as I revere them, I can't spare them the reproach that in the rule on the jus tollendi I've just described they gave up the principle of law irresponsibly. They don't shrink from asserting this principle of utility at the expense of the principle of law even against the state. Someone has built without any right on public land, and no one has objected. What happens? If the building doesn't get in the way of traffic, it stays, and the builder is charged a ground rent (solarium). Why? Ne urbs ruinis deformetur!¹⁶⁸ We moderns have got further than that. With us, when a building has gone up that the neighbor needn't tolerate, it has to be pulled down without mercy, even if the neighbor failed to protest in time (by the operis novi nunciatio, the formal notice against new work). That's what the principle of law demands, and there's an end of it.¹⁶⁹ What does it matter whether it's a palace, perhaps, or a magnificent railway station that is destroyed that way? The actio confessoria and the actio negatoria, the actions to assert a servitude and to deny one, simply read jus esse and jus non esse, "there is a right" and "there is no right," and nothing can stand in the way of this jus or non jus: it realizes itself with the force of logical necessity, as inescapable as the necessity of nature. Fiat justitia, pereat mundus: let justice be done though the world perish! The concept of ownership, or of servitude, has held its ground; nothing else matters. Here again the Romans lacked the courage of full consistency. They let the judge condemn the defendant to pay money if he didn't comply with the arbitrium, the order to restituere, to restore, which here means pulling the building down. The building stayed standing, just like the one built on public ground: ne urbs ruinis deformetur! But with us, who know nothing of this thoroughly unlegal Roman reluctance to destroy buildings, the law takes its free course. It is an uplifting picture that meets our eyes. On the ruins of the demolished building sits the logic of law in triumph, casting a grateful glance at "the legal school of the nineteenth century," which has freed her from the unworthy fate the Romans gave her, of having to bow to the principle of utility. If her hands weren't tied by positive rules, all the inconsistencies the Romans committed would be foreign to our law today.

"Then you wouldn't find the actio finium regundorum, the action for settling boundaries, which you see here beside the reivindicatio, any more either. Its very dark shading points to two great abnormalities: one, that it sets aside the principle that the possessor is free of the burden of proof; the other, that in it the judge may draw the new boundaries on grounds of mere expediency. Expediency, when it's a matter of establishing ownership: sheer mockery of the idea of ownership! A river has cut a new course through the land of two owners; a scrap of the one man's land now lies on this side of the new bank, a scrap of the other's on the far side. On grounds of mere expediency the judge awards each of the two scraps to someone other than the man it belongs to."

I've had enough of ownership. I'd never have believed it combined so many contradictions and offenses against the concept as your colors have shown me here. Show me other concepts.

"Would the jura in re interest you, perhaps? In concept they haven't been disfigured quite as badly as ownership, but there's a fair amount to see with them too. Here, for instance, the usus of things that allow no uti, no using, at all; there the quasi-usufruct, the usufruct of things that are used up in the using, that deformity of the usufruct, which, though by design a jus in re, a right in another's thing, so far forgets itself as to take on the shape of ownership. There the pledge, which falls into the aberration of jumping from things over to rights, and so brings forth that monstrous formation, the right in a right, which has cost present-day jurists so many sleepless nights. On the pledge you'll find a good many blue patches; they tell you of the conceptual mistreatment the modern age has been guilty of toward the pledge. There you see, for instance, the land charge, in which the pledge has freed itself entirely from the personal debt: a monstrosity that a head properly organized for Roman law cannot begin to understand. And then the keeping open of a senior mortgage for a future debt when junior mortgages are created."

That's the worst of all! It contains a plain logical impossibility. How can a lower mortgage exist without a higher one? The lower presses upward of necessity, with the same necessity with which atmospheric air rushes into a vacuum: it is the horror vacui, which holds for the world of law just as it does for the world of nature.

I've had enough of the law of things now, and altogether I'm so disgusted already that I long to get away from here. Just show me the obligation, and then let's go.

"Here she is. You'll find few red patches on her, but all the more blue ones."

But I do see one very dark red patch on her. What does that mean?

"The rule of the Roman jurists that a debtor who by mistake has paid the wrong person, for a reason the creditor is responsible for, is discharged. I needn't tell you there's a logical impossibility in that."

Certainly not! An obligation can be extinguished only in the person of the creditor, or of someone he has authorized to receive payment. Payment to the wrong person is no payment, so it's a logical impossibility for the debtor to be discharged by it. Let him see how he gets the money back from whoever received it; that's no concern of the creditor's, not even if he had authorized that person to accept payment but later withdrew the authority. The authority no longer exists, and it makes no difference whether the debtor was told of this or not: a person with no right to it can't validly receive payment from him. These things are the ABC of jurisprudence.

"You'll find a good many other offenses against the nature of the obligation here, but they belong to modern times."

"There's the concept of assignment, for instance. The Roman jurists, as everyone knows, saw in assignment only a transfer of the exercise of the claim, and here among us there's no doubt at all that they got it right. But modern legislators and practitioners have made it into the thing you see before you: the transfer of the claim itself. A succession into a claim: can you imagine anything more absurd? A claim is not an object one has, but a quality one is. It stands to its subject just as the predial servitude stands to the land it benefits (the dominant estate): both are legal qualities. How in the world is one to imagine this quality, being a creditor, passed to someone else? Then beauty, health, strength and intelligence could be passed on too, which would certainly be most desirable, but unfortunately can't be done. Just as little, unless one wants to make a mockery of all the laws of legal thought, can one maintain that a claim can be transferred. It came into existence in the person of this particular creditor and by its concept is bound to it inseparably: 'inhaeret personae ut scabies ossibus,' 'it sticks to the person like the itch to the bones,' as a medieval jurist put it, none too elegantly. If B is a different person from A, then the claim in B's person is a different thing from the claim in A's; detached from A's person it is destroyed, and can arise in B's only as a new one, by way of novation."

"But even this modern concept of assignment, much as it mocks every principle of logic, has been outdone by the bearer paper you see here. By means of it the obligation, that purely ideal thing that exists only in legal imagination, is handed over like a parcel: it has been caught and locked up in a piece of paper. That's the worst thing that has ever happened to it. A thief steals your obligations! A Roman jurist would have thought he had a madman in front of him if you'd told him that. The concept of the public offer of a reward, standing over there, would have astonished him no less. A one-sided promise that the other party hasn't yet accepted, which therefore still hangs in the air without having come down on any particular person, and which is supposed all the same to have the power to bind the man who made it: can you imagine such a thing? No more than that a horse is held by a bridle hanging loose on its neck; the rider has to take it in his hand first. The offer of a reward is the bridle no one has in his hand... and the man who offers it is supposed to be bound by it!"

"But I can see you've had enough. You don't seem to be paying proper attention any more."

It's beginning to tire me, I admit. Take me somewhere else.

"There's nothing more to see now. You've finished. Now I'll enter you for the exam."

The exam? No, sublime spirit, that risk I won't run. I can see already that I'd fail. And besides, I must honestly confess that your heaven doesn't tempt me much. For all the glories to be seen here, and all the games the blessed spirits pass the time with, it strikes me as a little boring. I'd rather go to another heaven.

"That's your affair. We don't want you here; you've shown plainly enough how little you fit in with us. Which heaven do you want to go to? I have to know, so I can order your guide."

Which can I get into?

"For you, as a lawyer, there are two more: the heaven of the philosophers of law and the heaven of the practitioners."

The first would tempt me.

"But you won't get in so easily. There's an exam to pass there too."

Do you know how it's set up?

"Certainly! Philosophy of law is strictly banned in our heaven. It doesn't sit with the rule of concepts, because it undermines orthodoxy. But I learned how their exam is set up from one of our spirits, who failed it and then came to us. In the heaven of the philosophers of law reason rules, as the concepts rule with us. With us you have to derive law from the concept; there, from reason."

That doesn't seem so very hard to me. With Hegel's dictum, "Whatever is, is rational," I'd undertake to manage anything. Whoever disagrees with me, I simply deny the capacity to recognize what is rational. How else is one to get by, given how completely different peoples and ages disagree about what is rational? What we have is rational; what they have, if it contradicts it, is irrational. They too invoke reason for what they have, and our institutions and views that conflict with theirs seem just as irrational to them as theirs do to us. But what they call reason isn't the right kind. Since I feel sure that I possess the right kind myself, it shouldn't be hard for me to derive the whole of law, which of course can only be the law of our own time, from reason. When I meet institutions or rules I can't agree with, I simply appeal to my reason; when my opponents appeal to an "Is" different from ours, I dispose of it by saying it isn't the true "Is." The true "Is" is only what coincides with reason.

I'm not afraid of the exam in philosophy of law.

"Don't think it so easy. The exam doesn't keep to the generalities of legal philosophy; it goes deep down into detail. There are some very tricky exam questions there that many have failed on, for instance whether 'nosy questioning, coming in at the door without being asked' is permitted by natural law.¹⁷⁰ Nor is everyone at home straight away with the consequences of the natural right to freedom of movement. How easily one might overlook, for instance, that 'every obstacle to travel, and the nuisance of passports and tolls belongs here,' is contrary to natural law."¹⁷¹

"I'll put a few questions to you, which you are bound by natural law to answer, 'since everyone has the right to address another and demand an answer from him, whether the address be made orally or in writing (!).'¹⁷² Be glad you get off with an oral answer here."

"What right is offended by 'laying mantraps and spring guns, fixing broken glass on walls, and spikes on the backs of coaches'?" (Röder, loc. cit., p. 81.)

I really can't answer that question.

"The right concerning the body." (p. 76.)

"Do the Jews have the right to circumcise themselves?"

Now that you've given me the relevant point of view, it isn't hard for me to give the right answer: No! (p. 80.)

"Are meager rations for prisoners, dark cells and hard beds permitted by natural law?"

No again! (p. 81.)

"You're getting the hang of it. What do you think of 'the regulation dress of soldiers, still in many places as harmful as it is unsuited to its purpose (especially the headgear, the stiff neckband, the straps across the chest and the squeezing in of the body)'?" (p. 82.)

Decidedly against natural law. If I were a military hatter, tailor, saddler and so on, my conscience would forbid me to have any hand in it. A soldier may even fall asleep at his post, since sleeping at night is a natural right of man, and it must not be taken from the soldier either.¹⁷³

"May the state forbid its officials to wear a beard, or order them to? The question once came up for me in practice. When I was still a professor at X., I wasn't allowed to grow a beard, because of the edictum de barbis, the edict on beards, in force there, since I hadn't reserved the right when I took the post."

Impossible! The right to a beard is one of the primal rights of man: what nature meant him to have, no human statute may take from him. Even the billy goat is allowed his beard. "Whoever gives up the hair¹⁷⁴ cannot object either to the (half) shaving of the heads of the men sent to Siberia." (p. 81.) One might even raise the question whether shaving off one's beard and hair of one's own free will isn't contrary to natural law too, since it might be seen as self-mutilation, "which is impermissible by natural law." (p. 80.)

"After these samples I don't think it impossible that you'll pass the exam in philosophy of law. Before you're admitted to it, though, you must make the legal-philosophical profession of faith."

How does it go?

"I believe that all legal truths are given to man by nature, are innate in him, and that therefore all it takes is his energetic thinking to bring to light their whole wealth, which lies in embryo in his reason. In his sense of right, which, being planted in him by nature herself, is eternally the same among all peoples and at all times, man carries all general legal truths within him; the historical diversity of laws, which seems incompatible with this, is to be put down partly to imperfect thinking, partly to positive legislation guided by caprice or mere expediency."

I can't make a profession of faith like that. On earth I defended exactly the opposite view.

"After all I'd heard from you, I thought you wouldn't be able to make the legal-philosophical profession of faith. On your earthly pilgrimage your eyes were turned far too much on the earth and earthly things. Instead of acknowledging the concepts and ideas in their absolute existence, tied to no historical conditions, in their logical or legal-philosophical autarky or aseity, their being of and through themselves, you kept asking the foolish question of their historical or practical why. With it you degraded them and proved that you lack all sense and understanding for the idealism of law. With this one question, why, you've shut yourself out of our heaven and the philosophers' too. Only the practitioners' heaven is left for you."

Will they take me there, as a theorist?

"Everyone is taken there who has passed his law exam, and that, as everyone knows, doesn't take much. They may give you a case to decide, since you're a theorist, but you needn't worry at all; they aren't too particular about the decision. They don't set very high standards for themselves in that respect either: so long as the case gets decided, how it's decided doesn't matter to them."

"I'll send for the guide of souls now."

"Here he is. Farewell."

I was moving again, crossing immeasurable spaces with the speed of thought. The darkness that had surrounded me till then grew less; the first faint glimmer of light fell into my eyes, and soon after I had the sun before me in all its splendor. We were approaching a planet.

"That is where you're bound," said my guide.

The words were hardly spoken before we were there. I breathed atmospheric air again, and a feeling of freedom, of life, of blissful well-being went right through me. I saw trees, forests, green meadows, houses, even skittle alleys. Practitioners live here, I told myself; here there is life, here you'll be happy.

"I'll leave you now," said my guide. "Go into that building and knock at the first door. That's the registration office for new arrivals; they'll enter you in the books there and give you your number."

"Come in!" a loud voice called.

I had called it myself. There had been a knock at my door: it was the postman, bringing me a letter from a friend. I rubbed my eyes, still drunk with sleep, and collected myself. I found I was stretched out on my sofa, with an open book in front of me and a lamp burning brightly on the table. My memory came back. I had fallen asleep on a fine summer evening over one of the latest works on Roman law. When it grew dark, the maid had brought the lit lamp into the room without my noticing it in my deep sleep. Everything I thought I had lived through had been only a dream, and its elements had been supplied by my peculiar reading, the slowly gathering dusk, the curtains of the open window fluttering like ghosts in the wind, and last of all the lamp, which I had greeted as the sun coming back into sight.

The letter I received discussed the very book to which I owed my sleep and my dream, and my friend gave his verdict on it in the words of Goethe's "Erlking":

"In withered leaves the wind is sighing."

He asked me for my verdict too. I gave it to him by telling him that I had fallen asleep over the book. Might the author not have given in to the same temptation while he was writing it? In his place, I think, my eyes would have closed on the third page and the pen would have dropped from my hand. I shall never pick it up again. I don't know whether a repetition of its effect on me would turn out as amusing as the first time. A second dream might carry me off to hell instead of heaven, and give me a taste of its terrors instead of heaven's joys. As punishment for having let out the secrets of heaven, they might sentence me there to pick up that book again and study it right through, or else to read all the notices, criticisms and reviews that will pass a well-deserved sentence on me for the present work. Both of these I can, and shall, spare myself on earth!

Notes to Part Three

Note 1

This harsh judgment will be borne out by a good many samples below; I have given others in my essay On the Reason for the Protection of Possession (Über den Grund des Besitzesschutzes), 2nd ed., Jena 1869. One of the worst is Savigny's complete failure to understand the practical point of the interdicta adipiscendae possessionis, the interdicts for obtaining possession, which (The Law of Possession, 7th ed., pp. 382-388) he puts on a level with the corresponding petitory actions, the actions on the right itself. There would be, he says on p. 384, "no reason to exclude the latter from the indefinite concept of possessory actions," and according to p. 383, "the int. retinendae and recuperandae poss. are the only possessory actions there are, and the int. adipiscendae poss. have nothing in common with them. Indeed, more than that: these have nothing in common even with one another." No one could have shown more plainly a complete ignorance of what the possessorium, the suit over possession, means in practice as against the petitorium, the suit over the right.

Note 2

Compare the deductions of Siegmund Schlossmann, The Contract (Der Vertrag), Leipzig 1876, §§ 7-10. We learn there, for example (p. 59), that "for the prevailing doctrine consent is indeed the essential element in the contract, but it cannot manage with consent alone; it finds itself obliged to add to consent an element not contained in consent itself (!): the declaration of consent"; on p. 61, that the prevailing doctrine commits a great inconsistency in requiring the declaration of will to be made to the other party; on p. 75, that the essence of legal construction consists in this, "that one calls things something other than what they are, and then treats them legally as that other thing which they are not"; on p. 72, that jurisprudence "complicates a mental operation that needs only one step by proving that one, two, three are needed." The author sums up his result on p. 79: "The contract is not a concept of any use whatever in jurisprudence. There are numerous sets of facts that are contracts; but that they are contracts and are called so gives us not the slightest insight into their legal nature, that is, into the reason why they bind." Other samples from this work will be given below, on another occasion.

Note 3

That one may not add "ex jure Quiritium" wherever the sources have a suum esse ought not to need saying. The Romans distinguish very precisely. The rei vindicatio by legis actio sacramento, the old procedure by wager, and by the sponsio praejudicialis reads m. e. ex J. Q., "mine by Quiritary right" (Gaj. IV, 16, 93); by the formula petitoria, plain meum esse, "mine" (Gaj. IV, 92). The first was confined to Romans; the second could be used by foreigners as well, and was probably first introduced for them by the praetor peregrinus, the praetor who heard foreigners' cases. The contrast between the two formulas recurs in the two forms of representation in a lawsuit, the procurator and the cognitor. Of the procurator Gaj. IV, 86 says: in rem quoque si agat, intendit P. Maevii esse ex jure Quiritium, et condemnationem in suam personam convertit, "if he brings a real action too, he claims that it belongs to Publius Maevius by Quiritary right, and turns the judgment onto his own person"; of the cognitor Gaj. IV, 83 says simply: quod fundum peto, in eam rem etc., "whereas I claim the farm, in that matter," and so on. The first form was that of the jus civile, the law of Roman citizens, the second that of the jus gentium, the law common to all peoples; hence the first in the "vindicatio" of a farm, the second in its "petitio." The double term actor and petitor also seems originally to have been connected with this. I think it a mistake for Lenel, The Perpetual Edict (Das Edictum perpetuum), Leipzig 1883, to put the addition ex J. Q. into the intentio, the claim clause, of the hereditatis petitio (p. 138) and of the formula petitoria of the reivindicatio (p. 146). Where the sources use petere for an action (si ususfructus, ager vectigalis, hereditas petitur, and likewise with the Bon. Poss.), a reference to the jus Quiritium is ruled out. What it meant in the oldest law (its connection with lawfully permitted self-help) I hope to show elsewhere. That it was not a simple reference to the law in force follows from the fact that it would then have had to recur in every action of the jus strictum, which, as is well known, was not the case and would have made no sense. Where the old law, exceptionally, thinks such a reference necessary in a legal transaction, it uses secundum legem publicam, "according to the public law," as for example in Gaj. II, 104. Had people paid closer attention to the contrast in Gaj. IV, 83, 86 and 92, 93, they would not have taken the ex J. Q. so lightly.

Note 4

J. E. Kuntze, The Obligation and Singular Succession in Roman and Present-Day Law (Die Obligation und die Singularsuccession des römischen und heutigen Rechtes), Leipzig 1856, p. 89. I give the passage word for word, but to set a counterweight against the impression it will make, I say first that no one acknowledges the author's great gifts, and the valuable services he has done the science, more readily than I. That cannot stop me, though, from using this work of his here, where my concern is to show the aberrations of recent jurisprudence for what they are. It does not stand alone in this respect, to be sure; I could give plenty of other samples from lesser writers. But it undoubtedly stands at the top, and the literary historian must be left free to pick the most suitable object for his purpose. The passage reads as follows:

"The praetorian fictions mostly had only the task of historical mediation. They flashed forth from the magistrate's tribunal like the storms in which nature discharges herself, to lure the bursting spring onto the fields and ripen the budding blossom into fruit; they recall the thunderbolts of Olympian Zeus, who, armed with them, moved the world on its hinges from the throne of omnipotence and cleansed the heavy atmosphere, for the praetor's tribunal is the Olympus of Roman legal life, which under the new rule is delivered from the toil of the Titanic primeval age; they take no place among the freely organic formations of nature, but resemble the eruptions of volcanoes or the rushing past of hurricanes, and are stripped off as husks no longer needed (curious hurricanes, that turn into husks in order to be stripped off) when the legal idea reared within them has grown ripe enough to hold its place in the doctrinal edifice by its own energy; they are the busy, buzzing bees that hover, active and industrious, round the abundant blossom of the healthy tree and, sucking fast, drink of its sap as if they had grown organically into the blossom. It is illusion!

"A demonic power is at work in this wondrous realm of fictions; it is the gaze of the upright human body toward the free, bright heights of the ether, where it dreams itself unbound from earthly fetters."

There are many more passages like it. On p. 408, for instance, "the Roman spirit climbs the first steps of civil-law lyric poetry"; the field of obligations is "the lyric poetry of property rights"; the reciprocal obligation, "the lyric poetry of obligations"; "their round dance forms the overture of civil-law lyric poetry" (a round dance that is an overture).

From p. 408 I give one more passage, and that will be enough.

"What music is in the realm of the arts, the law of obligations is in the domain of property rights: the Romans chiefly laid the epic foundation; the aspiring world of columns and pillars sprang chiefly from the fertile soil of the Germanic outlook, so overflowing with motifs; and in the mature legal idea of modern commercial life the dramatic reconciliation will succeed. Work on it is in progress. And the current of this modern intellectual labor reflects once more, in miniature, the picture of that course of historical development; for we see in the bound (personal, sole) bill of exchange the epic foundation, in the bearer paper with its... unbridled soul of fire the mysterious lyric, and in the order paper the calming, reconciling turn toward drama... Music and the law of obligations are the lyrical mysteries, the veiled images of the aesthetic and the legal world, and skepticism is the youth searching in the moonlit night."

There we shall leave him to search in peace, until at the end of the work (p. 422) he meets "the ripened guardian spirit of jurisprudence, through whose hair an olive wreath shall one day twine, in whose right hand the goddess of victory shall beckon, in whose left the eagle scepter shall rule in peace." Then he may be able to calm down.

Note 5

Savigny, loc. cit., p. 30: "Since possession is not a legal relation, disturbing it is not a violation of a right either." P. 43: "... it is clear that possession in itself, in its original concept, is a fact." P. 44: "in its nature a fact." P. 51: "apart from this violation, possession gives no right at all." P. 55: "possession appears to us first as mere factual control over the thing, and therefore as a non-right (different from a wrong), as something legally indifferent." P. 58: "in truth not a right." P. 59: "possession has no place in the system as a right, since it is not a right."

Note 6

The passage from fact to right does not come easily to possession, naturally; he manages it by intermediate stages. P. 58: "accordingly it is protected against certain violations, and for the sake of this protection rules are laid down on the acquisition and loss of possession, just as if it were a right." Here he doesn't yet dare to pass himself off openly as a right; he merely acts "as if it were." But he plucks up courage on p. 58, where he "becomes capable of producing effects similar to those of a right," and still more on p. 44, where he gets from mere similarity to equality: "in its consequences equal to a right." On p. 206 he has got his way: "Possession is recognized as a right," and so it is "nothing special at all that, like all rights whatever, it can be acquired through slaves and through children in paternal power" (p. 308).

Note 7

I refer to my discussion in my essay On the Reason for the Protection of Possession, 2nd ed., Jena 1869, pp. 160-179, where I criticized Savigny's theory of the acquisition and loss of possession. The two tests Savigny lays down, physical control and the possibility of reproducing the original relation at will, yield in quite a few cases the exact opposite of what he draws from them; you have to close not just one eye but both to think them still apt in those cases. Never perhaps has a writer played such a game with concepts of his own making as Savigny with these two. They are pure rubber concepts, which fit themselves obligingly to any case.

Note 8

Bekker, loc. cit., p. 12: "The question of the so-called philosophical reason for the protection of possession is simply to be rejected." On pp. 357-358, however, the question of the philosophical reason for the law of possession surfaces all the same, and I grant that the comparison this writer uses to make fun of "the chasing after the reasons for the protection of possession" (see note 10) fits the problem exactly, as he poses it. For he thinks it "not impossible to discover a possession of world-historical significance, which would have to be present among the most varied peoples as soon as they had reached a certain level of civilization. For this universal possession there certainly also exists an equally universal, and therefore lasting and philosophical, reason." When the author adds that "this universal possession is unknown to him for the present, and that for that reason too he despairs of ever gaining an adequate knowledge of it," I agree with him entirely, and remark that I for my part, far from all idle back-and-forth on the question of what possession is in itself, which in my eyes is a foolish one, considered and took as my basis throughout my inquiry only the Roman form of the institution of possession, and tried to answer the question of the reason for protecting possession for that form alone. The question was therefore not a philosophical one but a practical or legislative one, and to get clear about it I took the same road as with every institution whose practical meaning I want to understand: I imagine it away and see what then becomes of the law in practice. The gaps that open up show me what the institution is there for.

Note 9

Bruns, in his otherwise excellent account of present-day Roman law in Holtzendorff's Encyclopedia of Law (Rechtsencyclopädie), vol. 1, 1st ed., p. 387: "From a dog I take a thing by force; if I take it from a man that way, I treat him like a dog and not as a person. That is the core and the starting point of the whole protection of possession." The core is badly worm-eaten! From a mere holder, who holds the thing for someone else, I may take it by force, and the remedies for possession are denied him: is he a dog? The same used to be true of the injustus possessor, the wrongful possessor, in relation to the justus, the rightful one. Protected against third parties, that is, in Bruns's terms recognized as a person, he was defenseless against the rightful possessor, that is, a dog. Roman law does not accept that res extra commercium, things outside commerce, can be possessed, because they cannot be owned, though otherwise it allows them legal protection. In Bruns's terms, refusing them the protection of possession would once again imply the same proposition as in those other cases: that in this relation, under Roman law, the person may be treated as a dog. It is hard to understand how a man like Bruns, who made the theory of possession the subject of his special study and of a rich output of writing, and to whom its history owes so much, could so completely misunderstand the Roman view of the protection of possession. His very dog argument should have opened his eyes and taught him that the protection of possession does not have the idea of personality as its ground, or the protection of personality as its purpose. The protection a person receives for his own sake, and therefore in the relation of mere holding as well (l. 5, § 2, 4 de injur.; 47. 10), is provided, like the protection of the person in general, by the actio injuriarum, the action for insult and assault; in my lectures I call it spurious protection of possession. To the act. injuriarum, Roman law already added a few special remedies for the mere holder, which there is no point in naming here. That the canon-law action for spoliation also belonged to the field of this spurious protection of possession needs no comment.

Note 10

So, word for word, Bekker, loc. cit., p. 14. Applied in particular to the reason for the protection of possession, p. 12: "A good friend of ours, who does not wish to be named here (I understand that; I shouldn't wish it either!), says that whenever he watches modern jurisprudence chasing after the reason for the protection of possession, he is reminded of the picture of an eager quadruped, leaping merrily round in a circle, trying to catch the appendage with which Mother Nature has adorned his hindquarters." From which we learn that the dog is an extremely instructive animal for the theory of possession, though with Bruns, of course, in exactly the opposite direction from Bekker. The first uses him to discover the reason for the protection of possession, the second to frighten people off "chasing after" it.

Note 11

This really happened in a German judging faculty a few years ago! The member who taught Roman law rejected the authority of the General German Commercial Code, whose provisions, contrary to Roman law, had to be applied in the case, simply on the ground that the Commercial Code had no power against the reason of law and against Roman law. The view has been formulated in theory by Siegmund Schlossmann, The Contract, Leipzig 1876, pp. 175-206. I pick out a few samples. P. 175: "Here too we deceive ourselves, in giving out statute and custom as sources of positive law; and when it is asserted that what comes from those sources, that is, what the state commands, and what has been applied as a norm of decision for a long time even without a statute, in the conviction that so it ought to be, should and must be applied by the judge, the very opposite can be asserted with equal right." P. 178: "Any kind of compulsion by which the judge could be held to apply a particular rule, whether it derives from statute or from custom, is impermissible, and the punishment of a judge who, convinced that such a rule cannot be applied, refuses to apply it is excluded." (!!)

According to p. 180, "a single case of conscious and approved neglect of the law is enough to overturn the received doctrine of the sources of law, since a scientific dogma simul cum in aliquo vitiatum est, perdit officium suum," "loses its function as soon as it is faulty in any point." A single crack-brained or derelict judge who renounces his obedience to the law overturns the whole doctrine that the judge owes the law obedience! A scientific dogma that falls because some crank denies it, a law that loses its binding force because someone breaks it! And as authority for this, the well-known words of the Roman jurist in l. 1 de R. J. (50. 17), which contain nothing but the self-evident proposition that a scholarly formulation of the law that does not fully match it (cum in aliquo vitiatum est) has no validity (perdit officium suum). And out of this logical discrepancy between the law and its theoretical formulation the author makes a practical one, between the law and its actual observance: an actual breach of the rule abolishes the rule! How the thieves will rejoice if this doctrine catches on. They won't be short of "conscious and approved (by their accomplices) neglect of the law." Is the judge in a different position toward the law from them?

On p. 182 we read: "The investigation and exposition of so-called positive law can be called scholarly activity only in a subordinate sense." ... "The restoring of the disturbances of the order marked out by the idea of justice forms the content of the judge's calling." P. 180: "Statutes, customs, scholarly dogmas, rules of equity are the weights in the scales of justice, which, now united with one another, now working against one another, turn the pointer now this way, now that." The reader can now picture for himself how the judgments will turn out, should this new gospel of the realization of the idea of justice by the judge make converts among this scholar's students... May the author be the first to try it on himself in a lawsuit!

Against such attempts at scholarly subversion no word, in my opinion, is too sharp. The reform they hold out to jurisprudence is on a par with the one the children of an acquaintance of mine once carried out on the living room furniture while their parents were away. Everything was turned upside down: the table stood on its top on the floor, the chairs were built into a tower, the books into a pyramid, the mirrors and pictures faced the wall; in short, the transformation left nothing to be desired. I owe it to reading the work above that this story, long gone from my memory, has come back to me.

Note 12

That was the formula with which Savigny used to dispose of them in his lectures. "The more recent jurists" always seemed to me in those days the shabbiest of people, and every one of us in the audience felt superior to them. Later, of course, I came to a different judgment of them, and saw that their supposed errors often contained valuable truths, which only their critic, caught up in a rigid Roman-law purism, lacked the eye and the understanding to see: see my Spirit of Roman Law (Geist des römischen Rechts) II, 2, p. 466. Savigny complains, in the preface to his System of Present-Day Roman Law (p. XXV), of the ever-widening gap between theory and practice. Who was more to blame for it than he? He, the champion of the historical school, was the first to set the example of simply ignoring how Roman law had developed historically on our native soil. The spoliation suit and the summariissimum, the summary hearing on possession, serve him only to show up the aberrations of practical jurisprudence in a glaring light. His belief that he could cure the evil of the gap between theory and practice by making theory correct to the sources reminds me of the young, inexperienced wife who was to boil soft eggs for her husband and couldn't understand why, however long she boiled them, the eggs wouldn't go soft.

Note 13

So Savigny, loc. cit., p. 474 (on the possession of personal servitudes), and p. 480 (on predial servitudes that consist in acts of the holder of the right). Of the acquisition of quasi-possession of them, we are taught here that the act forming the object of the right "must have been exercised at some time, and exercised as a right." Even in the owner's absence, then? If someone takes possession of another man's empty summer house in winter and settles in it for the whole winter, he has, despite corporalis possessio, bodily possession, lasting a full half year, no possession of the thing; if he walks once across another man's land in the owner's absence, he has quasi-possession! The same law that protects the owner in the one case against the other side's one-sided seizure of possession, providently, in the interest of keeping his legal position, leaves him wholly unprotected in the other. But what does the owner's interest matter, if the concept requires quasi-possession to arise? On the loss of quasi-possession we read on p. 481: "Of loss, exactly the same holds here as was remarked above of the personal servitudes." But according to p. 474, "this possession, like every other, is continued by the uninterrupted possibility of reproducing the original control, and lost, therefore, when that possibility is removed." A. Randa, Possession in Austrian Law (Der Besitz nach österreichischem Recht), 3rd ed., Leipzig 1879, § 34, p. 650, note 1, says the same: "Quasi-possession consists in exercise no more than possession of a thing consists in taking hold of it. By exercise quasi-possession is only acquired. Quasi-possession consists in the possibility, shown by at least one exercise and willed, of exercising a right again for oneself." P. 653 (for Austrian law): "If the right consists in certain repeated acts (acts of use), possession is not lost when the prescription period runs out, so long as within it the act was performed, even if only once." P. 655: "even if it could be objected against the plaintiff that he had made no further use of the right apart from the one (for example, nearly thirty years) ago." I have already criticized this theory, together with the consequences it leads to (see the next note), in my essay On the Reason for the Protection of Possession, 2nd ed., p. 174 ff., but I could not pass up this example here as an illustration of the aberrations of formalistic conceptual jurisprudence.

Note 14

So Puchta, loc. cit., p. 73. His deduction here turns against Savigny, who on p. 474 pronounces as follows: "For since by mere non usus, at the end of a fixed period, the servitude itself is lost, possession must have been lost during the whole interval, although that reproduction may have been possible all along" ... Possession meanwhile, then, and afterwards none after all, and that despite the admitted presence of its conditions the whole time, and despite the factual nature of possession! "Therefore nothing remains (one would have expected: but to see that the formula laid down is worthless) but to assume that during mere non-use possession is in suspenso, in suspense, and that only by renewal of the use, or by the running of the whole period, does it appear whether it was there during the whole interval or not." With all legal relations that are in suspense, as everyone knows, one has to wait for the outcome; the party who stands to gain has no action in the meantime. What about here, then? I ask: if the quasi-possessor, prevented by the other side from exercising the servitude, seeks the protection of the law, does he get it or not? According to Savigny, undoubtedly yes! Then possession is not in suspense at that moment; it is there. And this state of affairs, granted for the whole ten years, is then turned upside down by Savigny afterwards, once they have run out. We thought, all that time, that possession was there. But quasi-possession is a joker. He has been leading us up the garden path for ten whole years; afterwards we find he was never there at all.

We can give the case a sharper form. The quasi-possessor who performed his last act of exercise on 31 December 1799 met resistance from the other side when he tried to exercise the servitude again in 1805, brought an action, and won before a judge who applied Savigny's theory. No further acts of exercise took place before 1 January 1811. Here the servitude has undoubtedly been extinguished by non usus from 31 December 1799 to 1 January 1811, while on the other hand the existence of possession in 1805 has been established by a final judgment. Is the final judgment to bow to Savigny's verdict here, that possession must have been lost during the whole interval?

Savigny gives us, then, the picture of a man who has run himself into a blind alley. Had he had the courage of full consistency, the kind that laughs at the argumentum ab absurdo, the reduction to absurdity, he would have gone bravely on to the end with Puchta. Let us hear the pupil, in whom the master has this time met his own master in conceptual jurisprudence.

"It is now indeed assumed," Puchta says, loc. cit., p. 72, "that mere non usus does not end possession; but that if it has lasted so long that the right is destroyed by it, one must then regard possession too as lost, and from the time the non usus began. This seems to be an arbitrary assumption; it would appear justified only if there were so essential a connection between the existence of the right and the possession of it that the latter could not continue without the former. But this is no more the case with quasi-possession than with bodily possession. Just as someone can acquire possession of a right without having acquired the right itself, so he can remain possessor when the right has perished. In itself, then, nothing stands in the way of regarding as still possessor the man who has lost the right through non usus.¹⁷⁵ But it is another question whether this possession still has for him the legal effects connected with possession, and so whether his possession has not become ineffective, and so in effect ceased to exist." To this the answer for prescription is: "even if we cannot deny possession to the man who has once come into possession and has not lost it in the way just stated, still this possession does not help him to prescription, because prescription presupposes real and continuous exercise." As to the interdicts: "The requirement of present possession for the plaintiff is laid down for them in so peculiar a way that mere acquisition and non-loss of possession is not enough for this effect either" ... But nonetheless "the proposition stands that quasi-possession of these rights cannot arise without real exercise, but can be continued; this proposition, however, is without practical effect, because the two effects of possession here demand not merely its existence in abstracto but a state of real exercise."

So: a possession without the effects of possession, "a possession in abstracto," "propositions without practical effects, which nonetheless stand"!

Puchta supplied a companion piece to this quasi-possession without effects (Pandects § 11, g) in customary law, which, when the legislator excludes it, is "merely deprived of its effects on the judge"! A fire that doesn't burn, a light that doesn't shine! On this, see my Law as a Means to an End (Der Zweck im Recht) I, p. 321 (2nd ed., p. 322).

Has the criticism I have made of conceptual jurisprudence so far been too harsh?

Note 15

Savigny had assumed this tacitly in the first five editions of his book. Only in the sixth does the following addition appear (p. 475): "The case is somewhat (sic!) different with the continuation of possession insofar as it is to lead to acquisition by prescription. Here Unterholzner (The Doctrine of Prescription, § 214) assumes that possession continues even though ordinary interruptions of the exercise occur (inexactly put! What Unterholzner says is: if the individual acts are separated only by intervals such as usually occur), but that it is interrupted if the exercise has been left off for a quite unusually long time (inexact again! Unterholzner says: 'if the path stays unused for longer than usually happens with servitudes of way'). This assumption, which admittedly makes a very free discretion on the judge's part unavoidable, seems right."

Now, then, we have one concept of possession for prescription and another for the protection of possession. For the first, the supposedly quite general formula of the mere possibility of reproducing the original relation is given up, and its reality is required; for the second it is kept. What could have been more natural than to restore the unity of the conditions for prescription and for the protection of possession, thus abandoned, by carrying the element of continued uti over to the possession the interdicts protect as well? It is stressed every time in the wording of the interdicts (see my note above, in the Hall of Concepts, where the interdicts are quoted). But then it would have been all up with the formula.

Unterholzner had earlier drawn the full consequence of the formula for prescription too: "If, of course, no opportunity for exercise arose during the whole period of prescription, the single fact of taking possession could suffice for exercise!" A servitude arisen by prescription, exercised for the first and last time ten years ago!

Note 16

Röder, Outlines of Natural Law or the Philosophy of Law, Division II, 2nd ed., Heidelberg 1863, p. 91: "Intrusiveness of every kind (for example, nosy questioning, coming in at the door without being asked, and the like) is mostly regarded, it is true, only as an offense against good manners and polite behavior, and judgment of it is left wholly to educated people; but it unquestionably violates right as well, and may be warded off by every legal means (what can the author have had in mind?) and if need be by the injured party himself." The right it violates figures in the heading of the section as the "right of one's own life, or of keeping company with oneself": a company that may have its difficulties and, as things go, be worth little. The prisoner has it! A violation of this right is also committed by "the theft of time through tiresome visits, intrusive peacemaking (especially by law and the courts), even official prosecution for adultery, rape and fornication instead of first waiting for a complaint from those most directly concerned" (p. 92). You see that natural law is no joking matter: nobody is safe from offending against its rules. Even "forcing on others a view, correct perhaps, but still too high for their understanding, by ruthlessly asserting our intellectual superiority, belongs here, strictly speaking."

The author has an uncommonly sharp eye for offenses against natural law. On p. 94 the cases above, which belong to mental intrusiveness, are joined among others by these, as examples of the bodily kind: "the shamelessly public examination of pregnant women in some lying-in hospitals, all unnecessary physical inspections of those liable for military service and of others, the searching of supposed smugglers by customs officers, or of prisoners, especially female ones, by coarse jailers." Every smuggler and every prisoner will gladly put his name to that last passage, I'm sure. I am of the view altogether that they do far better under natural law than under positive law.

Note 17

Röder, loc. cit., p. 98, where "preventing emigration on the pretext of the duty of military service" is also named, and disposed of with the argument that "no one can any longer have duties conditioned by citizenship once he gives citizenship up." A whole host of other offenses that the state commits against equality in private law are to be found on p. 144, for instance the postal, mining, salt and tobacco monopolies. How much has still to change in the world before natural law is fully realized!

Back on Earth: How Are Things to Be Made Better?

The reader who has followed me this far is not taking away a flattering picture of German Roman-law scholarship as it stands today, and I am ready to be told that the picture is distorted, the work of a cartoonist rather than a portrait painter. For my part I think it a true likeness. Here, where earnest is to take over from jest, I declare in all seriousness that I stand by everything which, because of the dress I chose to put it in, some may have taken for a mere game of jest, wit and humor. I am in bitter earnest about my attack on "conceptual jurisprudence" (Begriffsjurisprudenz), that is, the scholasticism of present-day Roman-law scholarship. If I used the weapons of jest, humor, mockery and satire, it was because I thought them the most effective. I know that nobody uses them without paying for it, and I am prepared to pay. If I resign myself to that, it is not because I am thick-skinned, but because I consider it my duty to put my own comfort below the interests of the cause.

For a good many years now I have been convinced that the road our Roman-law scholarship has taken, and which I walked too as a young man, is the wrong one. I found it out first in myself. There was a time when Puchta was my master and my model of the correct legal method, and I was so deep in that method that I could have outdone the model. I still have a stack of works begun in its spirit, some of them far along. One was a theory of things, in which I believed I could build up the whole Roman law of property in strictly logical fashion out of the purely formal categories of form and substance, unity, identity, modality and the rest. Another was a theory of damages, in which I meant to take what our sources decide about valuing objects that exist and apply it to objects destroyed or not delivered, which to my mind was the law of damages, and to build that law on the logically unassailable proposition that X is the same quantity whether you give it a plus sign or a minus. That the law in both fields had been shaped by considerations other than the interests of an a priori logical construction never occurred to me, and I still remember how little I thought of friends in practice who could not grasp the compelling force of my ideas and deductions. In short, hardly anyone can have been such a fanatic for the logical method as I was then, and my writings of the time bear its marks in many places, above all the program I wrote to open my Yearbooks for the Doctrine of Present-Day Roman and German Private Law (volume 1, 1857, no. 1, "Our Task").

Then came the turn. It did not come from within; it came from outside. It came from the lively dealings with practitioners that I always sought out, cultivated and profited by. It came from the occasions for practical work of my own, brought to me by the faculty's bench of opinion (the university court to which judges sent their case files for a ruling) and by requests for legal opinions, which often made me recoil from applying views I had once defended.¹⁷⁶ And not least it came from my practical class on the Pandects, which I have held all my life, and which in my view gives the teacher himself one of the most valuable correctives against unhealthy theories. It was in the fourth volume of my Spirit of Roman Law (1865) that I first publicly tilted at the "cult of the logical" and "school dialectic" (§ 59), having already done so without my name in the Confidential Letters on Jurisprudence Today (1861 and after), reprinted in Part One of this book.

Once I saw that mere negative opposition had to be followed by a positive sketch of the right road, I decided to set that work aside for the time being and take up my book on "Law as a Means to an End," which is devoted to exactly that task. It was not easy to part from a work in which I had seen my life's task, with all the groundwork for continuing and finishing it lying before me. But I thought it my duty, and I would not have been kept from that duty even by the certainty that finishing the first work would have earned me far more thanks and recognition from my colleagues than starting and finishing the second. The real interests of the present matter more to me than the historical study of the past, and if I can make myself useful in the first direction, the fruit I might have been granted in the second may stay on the tree. In my eyes that success is not too dearly bought at the price.

The same frame of mind has guided me in publishing the present book. I know that it will bring me more nettles than laurels, but I also know that it will have an effect, and for that I will gladly take the nettles. It is the work of a man who was himself under the spell for years that he now wants to free others from. Whoever has been a slave knows what slavery means. It is precisely as a former zealous champion of the school I now fight that I consider myself called to take the field against it. Whatever people may think of the hard judgment I have passed on it, nobody will dispute my competence to pass one. If the reproaches and objections I have not been sparing with came from a practitioner, people would try to blunt their moral weight by saying that he was, after all, only a practitioner, unable from where he stood to do justice to theory. But I am a theorist myself, and that line of defense will not work against me. Anyone who wants to answer me cannot do it by questioning my competence. He can do it only by showing that the reproaches I have made are unfounded in substance. I have backed them up with a string of examples throughout this book; let him show me that they do not justify my judgment. From the rich horn of plenty I have been filling for twenty years I have pulled out only a few samples, and if they are thought insufficient, I reserve the right to follow them with so many more that even the blindest will have his eyes opened. Every other reproach that will be made against this book, and I need not supply its critics with them, I get over by thinking that it had to be written exactly this way, and no other, to have its effect.

Its effect? Getting the laughers on my side? Certainly! I hope so! But that effect is only a means to another, which is what I am really after. It is not hard to make serious things look ridiculous; the most sublime and sacred things have not been safe from it. There is an immoral frivolity that wants only to show off the light of its own wit and let off a firework display, never caring whether the squibs and rockets it sends up set fire to other people's precious property. It is another thing altogether to shine the light so that the faults and defects of a thing stand out in the brightest light, in order that they may be recognized and put right. That alone is what I am after. Our Roman-law theory must and shall change; it cannot go on in the old way. It must give up the delusion that it is a mathematics of law, with no higher aim than calculating correctly with concepts.

There is something seductive about this delusion, and nobody has felt its charm more strongly than I have. Once I looked to it alone for the scientific character of jurisprudence, for release from the mental weight with which the merely positive, the law that simply happens to be laid down, pressed on me. My need as a scholar was for something lasting, firm, true in itself, and the lower world of the positive, this way today and that way tomorrow, gave it no satisfaction. I escaped from it into the higher world of concepts resting in themselves, which the legislator's power could not reach. I have recognized the mistake I fell into.

What were all those concepts, in which I thought myself free of the spell of the positive, but sediments of positive legal rules, brought by the Romans into a logically concentrated, that is, a conceptual form? Is the concept of Roman ownership, which rests essentially on the reivindicatio, the owner's action to recover his thing, not positive in kind? Does the concept of ownership logically demand the reivindicatio? Then we should be no more able to conceive of ownership without it than of a knife without a blade. Whoever believes that can learn better from our modern codes. The reivindicatio is purely a question of expediency, and for movable things I am so far from thinking it necessary to allow it without limit that I consider it, from the standpoint of present-day commercial law, a mistake. Does the quasi-possession of servitudes have a claim to be law because Roman theory formulated it as a concept? Again purely a question of expediency, which can be answered, to say the least, one way or the other. Is it in the nature of an obligation, as we so often have to hear, that the action on it can be brought only against the debtor himself, never against a third party? What then if the law provides that the creditor shall also have an action against a third party who knowingly acquired from the debtor the thing he owed (one rented to the creditor, say, lent to him, deposited with him or sold to him)? Theory may file this action under the heading of an actio de dolo, an action for fraud, but the fact remains that the creditor here gets an action against the third party purely on the strength of his claim under the obligation.¹⁷⁷ And do the Romans themselves not give us plenty of examples of concepts being reshaped like this? They extend usufruct to things that are used up in the using, and the right of pledge to rights. A conceptual jurist of today would have said: that won't do; usufruct and pledge are jura in re, rights in a thing, and the res, the thing, is their conceptually necessary condition. But it did do, all the same, and the Romans knew why they did it and did well by it. To meet a legal rule that the legislator has judged necessary in practice with the objection that it is conceptually impossible, absurd or mistaken is the worst charge a lawyer can bring against himself. The reproach of defective legal thinking falls back on his own head. It is an admission that his power of conceiving cannot conceive the real world, a plain declaration of intellectual bankruptcy. And at the same time it is irrefutable proof that he has never got clear about the true nature of the concepts he declares untouchable. Otherwise he would know that they contain just as much of the positive and historical as the new thing he is shutting out, and that only habit makes the old thing he inherited look different to him from the new. How far the Roman jurists went in allowing what is "contrary to the concept," I showed by a striking example in Part Three, in the anatomical-pathological cabinet of concepts: after the possessor's death they let usucapion, acquiring ownership by long possession, run on without any possession at all. What a heretic a modern legislator would have been called if he had taken such a liberty!

It is a delusion, then, that concepts can claim the force of irrefutable logical truths merely because they happen to exist. They stand and fall with the legal rules they were drawn from. If the rules are done away with because they no longer fit, the concepts must go too, or take a new shape, just as a case has to be thrown away, enlarged or altered when the thing it was made for is swapped for another, or made bigger or smaller. And instead of resisting the change, jurisprudence ought to welcome it with joy, since it gives jurisprudence a chance for fresh work in shaping concepts.

It is just as much a delusion that concepts, once accepted, may claim unconditional acceptance of every consequence that lies in them. Consistent thinking is a fine thing, and hardly any science except mathematics gives it as much room as jurisprudence does. That is exactly what gives it the extraordinary pull it has always had, and always will have, on every mind with the right gifts. I still remember the time when, my studies finished, I was preparing for an academic career and buried myself in the Roman sources. What incomparable delight they gave me! It was as if a world of the mind were opening before me that nothing I had known until then could match. I felt like a sailor steering out to the open sea, the majestic ocean before him and the sky above him, breathing the fresh, bracing sea air with delight, free of all the cramping chains and ties of the land, thrown entirely on himself and his compass.

But this very freedom, this wide room that a man's own thinking finds there, stirred rather than hindered by everything others have thought before him, holds a great danger alongside its enchantment: the danger of running onto sandbanks and reefs and missing the final goal. The comparison with the sailor fits the theorist in both its halves: he is to reach his port of destination, and he is to avoid straying from the set course and the reefs and sandbanks. He is not to drift about on the open sea for his own pleasure; he is to land, and the voyage has to pay for itself by the goods he unloads. And that is exactly what I hold against conceptual jurisprudence: it sails without caring whether, when it finally arrives after its long voyage, it has real goods to unload, goods that are worth something to life. By following its concepts with the utmost rigor it arrives at distinctions so finely pointed that they snap in the hands of the practitioner who has to work with them. It simply unloads them and leaves him to worry about how to apply them. But he leaves them lying on the quay. They are theoretical ballast he cannot use, and the whole voyage was for nothing, a game of the intellect that may have given pleasure to the man who played it and to others who amuse themselves the same way, but has borne no fruit for life.

Or is it any different when theory has won by logical deduction legal rules that defy all application because the result is so completely absurd? Take the view I made fun of in the Fourth Letter, that when a debtor pledges his whole estate, the rank of the pledges is settled by the date on which each separate item came into the estate. Or rules that contradict the declared purpose of the institution, like Savigny's view, mentioned in the Hall of Concepts in Part Three, that certain actions can never be barred by lapse of time because no right has been violated. These are the sandbanks and reefs where theory, had it not been so set on always going straight ahead, would have turned back and seen that the course it had set was wrong. Doctrinaire formulas and abstractions that lead to results absurd in practice, or to a contradiction with the declared will of the law, pass sentence on themselves: a mistake must have been made in framing them. Take Savigny's formula on the continuance of possession, which cuts possession loose entirely from fact and lets it go on, on the strength of the bare possibility of reproducing it and without any reality at all, for a whole lifetime in a natural person and for ever in a legal person (as we saw in the Hall of Concepts). By that very result it proclaims its utter perversity, and if not only its author held to it all his life but the doctrine at large could give it general assent, that is proof that people had lost sight of the practical aim of law altogether. In practical matters the answer is the check on how the sum was set up. If the answer is wrong, there must be an error in the setting-up, and the setting-up has to be examined afresh. The practical result must serve as the corrective of theoretical thinking.

With that I have touched on the point that marks present-day conceptual jurisprudence, as I call it. All jurisprudence works with concepts; legal thinking and conceptual thinking are the same thing. In that sense all jurisprudence is conceptual jurisprudence, the Roman first of all, and for that very reason the adjective need not be added. If I add it all the same, what I mean is that aberration of our present-day jurisprudence which loses sight of the practical end of law and the conditions under which law can be applied, and sees in law nothing but an object on which logical thinking, left to itself and carrying its charm and its purpose within itself, can try its strength: an arena for logical evolutions, a gymnastics of the mind, where the palm goes to the greatest virtuoso of thought.

Where does such an aberration come from, in a science as practical as jurisprudence? Nobody will be at a loss for the answer. It has to do with the contrast between theory and practice, or more exactly with the outward form that contrast takes in two different professions, one of which is chiefly given the care of theory and the other the care of practice. Every practical science carries the inner contrast of theory and practice within it. It does so not only in the sense that we can objectively tell apart, in our minds, the body of rules, principles and tricks of the trade from their application, but even subjectively, in the sense that individuals differ in their gifts or training for the one or the other. There are practitioners of great theoretical learning but little practical skill and eye, the "scholars" among them whom every capable practitioner so dreads; and there are others, the other way round, with little theoretical learning but an eminent knack for hitting the mark in practice.¹⁷⁸

The natural arrangement is surely to unite both sides in a single profession. There they are in the liveliest exchange, furthering each other, fertilizing each other and keeping each other in balance. Then where did the split into separate professions come from? The motive was the interest of teaching: the theorist in jurisprudence grew out of the teacher. Not out of the man whose leisure and position in life allowed him to make law the object of a deeper study, out of scholarly interest, than is possible in the press and bustle of practice: the scholarly hermit. Such figures are isolated, and nothing in the conditions of life compels them. But the work of the teacher is compelled. It is compelled once the bulk of the law and the development of theory have gone so far that a beginner can no longer master both by private study and a practical apprenticeship with a man of affairs. That was how it was in Rome at the end of the Republic. The practical course that everyone had gone through until then with some respected jurist (the instruere, the "equipping") was now joined by a separate introductory course in theory (the instituere, the "grounding"). At first it was purely a private matter, a passing relation between this pupil and this teacher; then it was organized permanently in the form of public places of instruction, the well-known law schools of Labeo and Capito and their successors.

This separation of teaching into a profession of its own did so little harm to the development of Roman legal theory that, on the contrary, the famous rise of that theory, which culminates in the classical jurisprudence, dates only from it. In my opinion the great importance of this fact has been far too little stressed. To my eyes it marks the turning point in the history of Roman jurisprudence, the passage from its practical epoch to legal science proper. Once knowledge of any kind is taught, by word of mouth or in writing, it faces a necessity that the bare knowing in no way brings with it: it has to be formulated, correctly and exactly. It is well known that knowing something and making it clear to someone else are two different things. The second task forces you to get completely clear yourself first, to raise what is more or less unconscious, merely felt or half known, to the form of consciousness or full knowledge. The saying docendo discimus, "by teaching we learn," does not mean that in order to teach you have to learn a good many things besides. It means that by teaching you first bring to clarity in yourself what you carried about in yourself more or less unclearly. German has a similar and very apt turn of phrase: sich klar schreiben, to write oneself clear. I have found it true in myself countless times. Even with ideas I have carried around and worked over for years, I find again and again that I have mastered them completely only when I have set them down in writing. I am convinced that in many richly gifted minds the world never heard of there slept intuitions, ideas and insights that would have won their owners the highest fame if some outward necessity had forced them to bring them out. Perhaps as much is lost inside a human being as in outward nature. Very little seed comes up, and often it is the weed seed that thrives and runs riot, while the good seed, under unkind conditions, rots in the ground or withers by the wayside.

If this is right, then the professional teacher, even if he falls behind another man in the range and depth of his knowledge, is ahead of him in its form. His profession forces him to keep his capital, so to speak, always in ready coin, carrying cash about him, while the other has his capital tied up in long-term investments and turns it into cash with more difficulty. The strength of the legal practitioner lies in the sureness and ease of immediate application; the strength of the legal theorist lies in the ability to formulate, easily and accurately. Here the profession has a decisive influence, as it can hardly fail to: the same man would have turned out differently in the one profession from the other. I do not mean to deny the influence of an inborn gift in one direction or the other, though only in the rarest cases will it be present to an unusual degree.

But it is not only on the individual that the teaching profession does its work; it works on the science too. What individuals learn about the conditions of teaching and learning benefits the science, which is enriched by a distinctive element that I will call, for short, the didactic. The practitioner may be content to possess the knowledge and insights at his command; he masters them in the sense that at any moment he can pull what he needs out of the fund he has. But the teacher has to put the sum of what he means to pass on to his pupil into a form suited to the purpose of learning.

That purpose is reached only by learning step by step and with method.

A painter does not start a picture by finishing its separate parts one by one; he first draws the outlines, then lays in the underpainting, and only at the end works out the details. In the same way the right kind of teacher will not plunge straight into a single topic and lecture on it in its whole extent. He will prepare the ground for understanding it by getting clear in his own mind which knowledge, ideas and concepts it presupposes. Roman jurisprudence solved this problem in a form that has remained ours to this day: the Institutes,¹⁷⁹ the beginner's textbook. The arrival of this teaching form, which the Romans took over from the Greeks, was of the utmost importance for the systematic development of Roman legal science. With it the didactic way of presenting law took its place beside the purely practical way, the commentaries on the statutes and the praetor's Edict, and brought law what it had lacked until then: an inner system. That was an advance for scientific understanding whose great importance I need not spell out here.¹⁸⁰ Closely bound up with it came the sharp marking-off of contrasts within the law: the divisions that matter so enormously in every discipline, and then the framing of short, precisely worded rules and definitions. For the scientific penetration and conscious grasp of the particular, that was an advance no less important than the system was for understanding the connection of the whole.

I sum up what I have said in one proposition: the scientific finish of Roman law, and a considerable part, though not the whole, of its value for our own day, rests on the fact that it has gone through the school. How much this has also eased the practical application of Roman law anyone can easily see by comparing the position of a lawyer on the Continent with that of an English one. The first gains a sure command of the entire law within a relatively short university course. English lawyers are specialists; not one of them can master the entire law. The reason is that Roman law has gone through the school, and English law has not. Only now are the first attempts being made, and English jurisprudence will have an endless amount to do before it has raised English law to the height of the Roman and of the Continental law that grew out of it. Schooling pays for itself in practical life!

It has to be the right schooling, though, and with that I come to the crux of the relation between theory and practice. In a practical science, theory must stay in constant touch with practice if it is not to go astray. In Rome that was the case with jurisprudence: we know of many of the most respected Roman jurists that they combined teaching with practice.¹⁸¹

Only in the Christian period of the Empire does this double role end. Teaching becomes an office of its own, exactly as it is today, a profession for life; the teacher is appointed and paid by the state. And that was the end of the science. We have not one scholarly work from that period, and how completely the school lacked any influence on practice is shown strikingly by the fact that practice looked for its theoretical footing solely in the works of an age that lay centuries behind it. A testimonium paupertatis, a certificate of poverty, for the theory of the time, and a worse one cannot be imagined.

The rebirth of Roman law in modern Europe began, as everyone knows, with teaching: it was the school that gave Roman law its practical force. From then on Roman law faced the conflict of two interests. One was the purely scientific: let us say, reproducing it in the same pure form as any other piece of antiquity. The other was the practical: dressing it up for the purposes of life. Varying with individuals, ages and nations, now one tendency wins, now the other, and you are reminded of the swings of a pendulum. Modern jurisprudence begins with what I will call for short the scientific tendency, in the age of the Glossators. In the age of the Postglossators it turns one-sidedly to the practical. Then, when the science awakens again, it takes up the first once more, using every aid won in the meantime, with the utmost energy but with the same one-sidedness. That was an immeasurable service to the scientific understanding of Roman law, but it was bought by neglecting the interests of practical life. That the works of the Postglossators kept their old authority even in the days of a Cujacius, and that hackwork of the most wretched kind could flood the market in countless editions, proves better than anything else that the science had not met the needs of life. The backlash duly came. But twice more the spectacle of a renewal of purely scientific jurisprudence was repeated: once at the beginning of the last century in Holland, and once at the beginning of the present one in Germany. The leadership in theoretical jurisprudence passed from the two Romance nations, the Italians, who had held it twice, and the French, whom no other nation can match in this respect, to the Germanic ones, the Dutch and the Germans.

This quick survey of the epochs of Roman-law jurisprudence, which shows us an ever-changing picture, will put in the right light what I said above about the opposing ways of treating Roman law, to which it gave rise by its double nature as a piece of antiquity and a part of modern law. This periodic alternation of two completely opposite ways of treatment is peculiar to the modern history of Roman law; it has happened with no other law in the world. In legal science, as in every other science, schools and methods may succeed one another, and development may take the form of a wave, showing us the science at a crest at one time and in a trough at another. But a polar opposition between two ways of treating one and the same object, each pursuing a completely different purpose from the other, such as the modern history of Roman law shows us, stands without parallel and always will. At its height, in the Renaissance, it grew so sharp that the most outstanding works on one side were next to worthless for the purposes the other pursued. A man who had to apply Roman law in life could do as little with the works of Cujacius as a man who wanted to understand it scientifically and enter into its spirit could do with those of Bartolus and Baldus. The two tendencies aimed at such different goals that they treated their subject in completely different ways, and in the one form and the other it was hardly recognizable as the same thing.

Our own time has seen that the two can be united. Academic teaching today is designed as much to give the student a view of pure Roman law and its historical development, and to lead him into its spirit through the study of the sources, as to put him in a position to apply it in life. It will remain the lasting merit of Savigny to have inaugurated the first of these ways of treating Roman law, in the lecture hall and in print. He did it, as everyone knows, with his "Law of Possession" (1803), a scholarly feat of the first rank, achieved by a man of barely twenty-four, and from then on the authoritative model, the canon, for the doctrinal treatment of Roman law. It is one of those rare works that form the initial letters of a new chapter in the history of a science. But however outstanding the work is as a creation of the mind, however admirable the independence and strength of the young man who breaks with tradition and, relying wholly on himself, strikes out on his own path, the book is nonetheless, by the practical yardstick, unhealthy through and through. It is written without any real view of the relation it treats and without regard to whether its propositions could be applied. Nowhere does it try to work them through case by case and test them; Savigny hardly ever goes beyond the cases in the sources. Had he done so, he would have seen that his propositions defy all reliable application: they are soft as wax and elastic as rubber, and you can do anything you like with them. That is why, for all his outward adherence to the sources, he did not reproduce the Roman theory, and later progress in the doctrine has shown Savigny's fundamental propositions to be wrong one after another, until hardly one stone of the whole building is left on another. His complete indifference to what possession does in life, which I call the book's basic flaw, shows itself also in the author's rejection of the entire modern development of the institution in the direction of wider protection for possession (the spoliation action and the summariissimum, the most summary proceedings). The thought that this development must have had its ground in some pressing need never occurs to him. He dismisses it simply because it is not Roman, as "errors of modern legal scholars" (p. 327). It was Bruns, in his model work "The Law of Possession in the Middle Ages and the Present" (1848), who earned the credit of putting this side, which Savigny passed over entirely, in its proper light, an achievement that in its lasting value leaves Savigny's, in my opinion, far behind.

The model Savigny set in this work became authoritative for the time that followed, for good and for ill.¹⁸² Every year brings us new publications on Roman law that leave you asking in astonishment what purpose and value all the problems and questions can have, which their authors strain every nerve to solve. For the application of law, not the slightest. And for the school? I will give the answer to that below. More and more, theory is losing sight of life. It behaves as if law were there for its sake, a rewarding object for logical thinking, a circus for dialectical acrobatics.

How did such an aberration become possible? We must get clear about the causes before we can answer the question whether there is any prospect of improvement.

In my view there are two, and only working together could they produce this result: the confinement of the theorist to teaching, and the peculiar nature of the subject to which his teaching and writing are devoted, Roman law. Neither cause alone would have been enough. The teachers of German private law, commercial law, criminal law, procedure, constitutional and church law are confined to teaching too; since the abolition of the faculties' benches of opinion they get no more chance of practical work than the Roman-law scholar does, apart from the rare case of a legal opinion. Yet in those fields conceptual jurisprudence has not managed to settle in, though there has been no lack of isolated beginnings. Why not? Because those fields stand in the middle of the current of the mighty movement of our age; because every year brings new questions and facts that theory has to take notice of and form a judgment about. Willing or unwilling, theory is lifted to the standpoint of practice and legislation. The most important legislative changes in most of these fields have not been made without the theorists too having had occasion and need to speak their minds about them beforehand. The burning questions of the day always give them a welcome chance to put their knowledge to use for life. And the extraordinarily rich supply of new material in several of these fields, and the need to fit it into a scientific order or even build a whole discipline anew, protects them all by itself from the danger of frittering away their strength and time on useless questions. Nobody in those fields is in a position to waste time on questions of the kind that make up the order of the day in Roman law; they have more important things to do. A man who can hunt game is safe from the temptation to catch gnats.

How completely different is the position of the Roman-law scholar! The legislative current of the age has passed over Roman law without a trace, apart from a few changes of little importance in principle, for instance about interest. It enjoys the most undisturbed peace. No new problems come to the man who represents it, no questions of the day he must take part in, no new material he must give shape to: for him everything has stayed as it was. The doctrine of Roman law knows no tasks, questions or difficulties other than those that thousands of theorists have toiled over since the days of the Glossators. The same difficult or mutually contradictory passages in the sources, which have challenged the art of the interpreter countless times already, still figure on its program to this day, and there are still people who take them on afresh. A lack of great and important tasks: that is the disease from which Roman-law theory suffers. The main work is done, and what remains to be gained for practical doctrine is vanishingly small. It is the plight of the theorist who has no rich objects of research and no great problems, and who therefore, to prove himself as an author, has to reach for questions that have no significance at all for life and can claim only the interest of classroom questions. I do not underrate the value of such questions for legal teaching. But I am so far from believing that the analysis of our inherited legal concepts, pushed into the smallest and finest detail, and often ending in throwing them out altogether, has brought any advance for teaching and education that I am convinced of the opposite. The simple, vivid form of a relation is given up in favor of a complicated and highly artificial one. Concepts and definitions which, though not perfectly correct, have the priceless advantage of being easy to grasp and to apply are replaced by supposedly or really correct ones that have no such advantage at all. In my judgment, for legal teaching as for every other kind, the one deciding consideration is expediency. An inaccuracy that helps the purpose of teaching is dearer to me than an accuracy that defeats it. The right teacher, to put it as a paradox, must have the courage to be unthorough in the right place. The instrument he puts in the pupil's hand may be imperfect, but if the pupil learns to play it better than a more perfect one, it deserves the preference for the purposes of teaching. I have let myself be guided by this consideration in my own teaching for years, and experience has shown me that the method is right. For teaching purposes I have been unable to use most of what today's jurisprudence believes it has brought to light by searching criticism and analysis of the basic legal concepts. The mental effort that the science has spent in this direction has not, in my opinion, paid for itself even in the school.

Then where is it supposed to pay for itself, if neither in life nor in the school? I can find no other answer than this: only for those who take pleasure in investigations of the kind. I am not one of them. My interest in legal science has not shrunk over the years; on the contrary, it has grown, and I know no higher pleasure and no nobler aim in life than to try my strength on law and do my part toward seeing it understood in all its greatness and significance. And Roman law, to which I owe everything I am and everything I have achieved, has lost none of the power and attraction it has had over me from the first moment. But when I ask myself what I have gained that was new in thirty years (I am speaking, mark you, not of Roman legal history but of the doctrine of Roman law), it shrinks to so little that I regret the time I had to spend acquiring that little, and look with envy at other fields of knowledge that can show the richest yield over the same period. I cannot suppress the confession: I have lost my joy, not in Roman law, and not in my own lecturing on it, but in the Roman-law literature of today. I cannot get any taste out of most of the writings it brings me. If I were young again, I would choose another subject. Will a time to come perhaps win a rich harvest yet from the soil of Roman law, so unproductive at the moment, by treating it in a different way, the legislative and political, say, or the comparative? Who can tell? At any rate the present yield is hardly worth the toil and trouble. It is the autumn's second mowing in a dry year: thin and parched, and the little hay mixed with a great many weeds. Only those can be deceived about its value who have put their own labor into it and have a natural interest in rating it high.

To a certain extent the soil itself is to blame for this meager harvest. For practical doctrine and for the interpretation of texts it is as good as exhausted, now that the aids that came with the discovery of new legal sources, Gaius above all, have been essentially used up. In only one respect did it still seem to promise a yield, and with that I believe I have named the cause which, if it did not bring our present-day conceptual jurisprudence into being, did most to push it along. Conceptual jurisprudence alone still opened the possibility of new work. And with this charm of novelty it combined another: the charm of free, independent thinking, drunk on itself; in short, the seductive charm of dialectic. History shows how often science has fallen to this danger before. Scholasticism, the casuistical moral literature of the Jesuits, and Talmudic literature offer examples that far outdo even our conceptual jurisprudence in barrenness and hair-splitting. If conceptual, concept-forming thinking that moves forward by strict consistency belongs anywhere, it belongs in law, and in Roman law above all it has shown its finest achievements and proved its practical worth. Conceptual jurisprudence therefore seems to be covered by the example of the Roman jurists, merely following the lead they gave it. That is how it seems. In reality it is otherwise. The Roman jurists go down the road of consistency only as far as practical need does not call a halt; in their legal logic they always keep their eye on life. Present-day conceptual jurisprudence knows nothing of this regard. It goes straight ahead even when it finally arrives at a result wholly incompatible with the purpose of applying law, a result that destroys itself by its own impossibility. Legal logic is no longer there for life's sake, as in Rome; life is there for the sake of legal logic.

This overstraining of a method that is in itself given with the very nature of jurisprudence is of the most recent date. In my opinion, as I remarked above, it was inaugurated by Savigny in his first book. Unconcern about whether the propositions won by abstract development of concepts and by consistency can be applied in life: that is the basic trait of present-day conceptual jurisprudence. In a jurisprudence like the Roman, which stood in the middle of life, such indifference to the demands of life was impossible. But our theorists today do not have to apply law, only to teach it, and that is what makes it possible for them to disregard whether their theories can be applied.

How is this to be changed? If the theorist could also hold a practical post, as advocate or judge, the remedy would be found: the practitioner would keep the theorist in check. In Italy this is the rule at present. Most of the Italian professors I have got to know on my travels in Italy were advocates or held posts at a court. But it is not a state of things to be wished for. The practitioner has to earn the bread for the theorist, who cannot live on his professorship, and the practitioner robs the theorist of his time. The two professions are so incompatible that excellent teachers have found themselves forced to give up their chairs and devote themselves to the bar alone.

The separation of the theorist's profession from the practitioner's, as it exists with us in Germany and in most other countries, therefore seems to deserve the preference after all, for all the estrangement from life it brings the theorist, and I believe it will hold its ground in the future too. It is true that the union of the two has proved workable in other practical sciences, medicine for instance. Far from having to yield the field to the ordinary practitioner, the teachers of the practical branches of medicine, the clinician and the surgeon, enjoy the greatest confidence of the public, and so prove that a man can be a great theorist and a great practitioner at once. Why, then, should the same not be possible for the lawyer, or (since I have only the Roman-law scholar in view here) for him? Why should he not be a judge or an advocate at the same time? Because his field of study is historical in far greater measure than the clinician's and the surgeon's. Those two stand with both feet on the ground of the present; the Roman-law scholar stands with one foot in the present and the other in the past. And the scientifically hard-pressed position of the Italian teachers of law, which I mentioned just now, together with the valuable achievements in legal history that their German colleagues can point to, in Roman as in Germanic law, which only entirely free scholarly leisure made possible: the two together seem to me to leave no doubt that it is better to keep the two professions apart.

But even if we accept this arrangement as unchangeable, the question remains whether some means might not be found that would, if not remove, at least to some extent soften the drawbacks it brings the theorist. It is a question I have thought about a great deal, and in what follows I set out the views I have formed on it.

There are three means from which I promise myself success.

The first is that the theorist should pass through practice during the period the law lays down for training for it. That is, only a man who has passed his assessor's examination, the second state examination that qualifies a lawyer for the bench, should be admitted as an unsalaried lecturer in Roman law and in our future civil law. His later start on an academic career is made up for by the practical outlook he brings with him, and anyone who has such a career in view will find time and opportunity enough to prepare for it during his years of practical work.

Our academic curriculum does not split Roman law outwardly into its two sides, the doctrinal and the historical. The Roman-law scholar has to represent both, and so we can also demand that he do justice to the task on both sides. Even if his inclination draws him more to the historical side, the practical view of law he has gained will benefit him richly there too. I am convinced that only a man who understands the law of the present can grasp the law of the past, that is, a man who brings with him a practical outlook and a judgment about the demands of life. I can see the ultimate cause of many a thoroughly unhealthy and mistaken view in legal history only in this: that its authors lacked this condition.

The second means is to shape academic legal study in the way its practical end requires. I do not so much mean arranging the purely theoretical lectures properly by constantly illustrating the rules taught with practical cases and examples. That can only be wished, not enforced; it is nothing but a pious wish, which each lecturer is free to fulfill or ignore. But what can be enforced, that is, secured by an institution, is the supplementing of the theoretical lectures with practical exercises, for the Pandects the so-called practical classes on the Pandects or on civil law. I demand them not only for the sake of the students but for the sake of the lecturer, as a corrective against theoretical one-sidedness. He should apply himself what he has taught; then it will appear whether it is fit for application. He will then convince himself that drawing a distinction in abstracto is one thing, and answering for how it is to be recognized in concreto quite another; that it is the easiest thing in the world for a theorist to think something up, but very hard for a party to prove it; that taking responsibility for the logical correctness of a result is one thing, and taking it for its practical fitness another. I speak from experience here. For more than forty years I have held such a practical class on the Pandects, and I cannot praise enough how much it has done for me. It has become second nature to me to picture, for every legal rule, concept and distinction, how it applies to a concrete case and to let it stand the test there; in short, to check abstract thinking by thinking through cases.

But it is not enough for the teacher to present cases and decide them himself. For him and for the students alike, such exercises are worth something only through the liveliest exchange between the two sides, through a constant trading of views. The teacher must not merely tolerate contradiction of what he asserts, and attempts to refute it; he must provoke them. He must put himself on one level with his students, as if he and they were members of a bench of judges, and in the end what decides for him must be not the outward authority of the teacher but the inner weight of the reasons. Held in this way, these exercises further and stimulate both sides equally. To this day they attract me more than anything; it is always a pleasure to hold them, I always learn something from them, and I will not hide the confession that a capable student has often drawn my attention to a point of view that had escaped me until then.

These exercises have their discomforts for the lecturer too, of course. He has to climb down from his height and be ready for the roles of questioner and questioned to be swapped, and for questions to be put to him that he was not prepared for. He must not only command sure and exact knowledge; he must be able at any moment to apply it to the question in front of him, in the tightest and most precise form, without a great apparatus and long deductions. But precisely because these exercises make demands on the teacher that not everyone willingly submits to, the state authorities ought to make them compulsory. No lecturer in Roman law should receive the venia legendi, the license to lecture, without the obligation to offer them. A man who thinks himself called to teach others a practical discipline should also prove that he can apply it himself. In later years, when a Roman-law scholar may lack the agility of mind and the freshness to run these exercises with profit to his students and satisfaction to himself, let him be allowed to stop them then. Before that, nobody should be excused. The practical class is to be not only the school of the Roman-law scholar, which everyone must pass through, but the lasting corrective that guards both him and the interests of sound academic teaching against the danger of theoretical one-sidedness.

The third means I propose concerns a reform of the present system of legal examinations, in two directions: first the manner of examining, and then the make-up of the examining boards.

The purpose of any examination is to convince the examining authority that the candidate has the necessary measure of knowledge in his subject. The subject may be theoretical, like history, linguistics or certain natural sciences, or practical, like medicine, theology or law, and the difference calls for differently arranged examinations. In subjects of the second kind the candidate must show not only that he has enough theoretical knowledge but that he has the skill to apply it correctly. Medicine and theology do this: the medical student takes his practical examination at the sickbed, at the dissecting table and in the maternity ward, and the theologian has to preach and teach the catechism. Only for the lawyer is the first examination, in most German states, aimed exclusively at theory. In Prussia the written examination regularly sets a theoretical topic; only in Hanover (at Celle) is a court file still chosen now and then, as was always done in the past. As far as I know, the oral examination too keeps by and large to the same theoretical line, and setting actual cases in the first examination is probably a rarity. The theoretical cast of our present-day jurisprudence repeats itself in the examination as well.

I consider the arrangement entirely mistaken, and its bad fruits have not failed to appear. Practitioners' complaints about the inadequate training of young lawyers are the order of the day, and I myself, examining junior lawyers for the doctorate, have had experiences that made me ask in astonishment how a man could possibly have passed the state examination when his whole knowledge of Roman law consisted of a few mechanically memorized definitions and divisions, and he lacked any legal sense whatever and any firmness of knowledge. Where that is possible, the examination is not doing its job.

What is to be done, then?

To that end some theorists have proposed in recent years that legal study be lengthened from three years to four. I cannot agree with this at all. I consider a period of three years perfectly sufficient, assuming of course that the man does his duty and does not spend part of the time serving his volunteer year in the army, which is as good as lost for study. I base my claim on long experience, both as an examiner and in my practical class. The young men who had studied longest were regularly the worst, and on the other hand I have examined men who had studied no more than three years and who compelled my full respect by the range, solidity and sureness of their knowledge and their ability to apply it to a given case. Lengthening the period of study would, to my mind, benefit only the less capable. The time of idleness they had planned for from the start would be stretched by a year, and the capable would have to pay for it: a measure very burdensome and unjustified for the capable, and useless for the rest. Only experience can judge such questions; they cannot be answered from an abstract, a priori standpoint. On the strength of my long experience, which hardly any other theorist's could surpass, I have no hesitation in declaring the proposed lengthening of study a thoroughly mistaken measure, an experiment whose pointlessness and worthlessness people would surely see very soon. It would be like a doctor ordering a patient who needs fresh air and exercise to stay in bed.

What is to blame for the meager training of so many lawyers entering practice is not the shortness of the period of study but the arrangement of academic study and of the examination. Both suffer from the same defect: the dominant, often downright exclusive, orientation toward theory, and the neglect of the practical purpose of legal study.

How academic teaching can remedy the defect I have set out above: by practical exercises. Anyone who does not know them from his own experience, as student or as teacher, has no judgment at all about their value. Only through them is the student's understanding of what he has learned so far really unlocked and his hold on it made secure; with interest in practical decisions comes interest in theory too, and the capable student is won for jurisprudence and comes to love it. I found this abundantly true of myself as a student. My understanding of jurisprudence first dawned in the practical class on civil law that I attended at Göttingen under Thöl, then my teacher, later my colleague and my unforgettable friend. It was the turning point of my academic life. Only from then on did jurisprudence have the attraction for me that it had lacked until then. I have had the same experience as a lecturer with my students, and I have it again every year.

My ceterum censeo, then, my "and furthermore I say," on the reform of legal study runs: as with doctors and theologians, so with lawyers, practical exercises must be made compulsory.

I turn to my proposals for reforming the legal examination.

I consider the present arrangement of the written examination in Prussia entirely mistaken. It is pure sham! The written work the candidate hands in gives not the slightest guarantee of his legal training. With the help of the textbooks and the literature, even a man who has no such training at all can turn out a piece of work that fully meets what can fairly be asked of it. Is that such a great art? The roads he has to take are laid out for him; all he has to do is not stray from them. The systematic arrangement of the material, the various possible and impossible views, the criticism of them by authors of note, the explanations of the passages, the whole apparatus of literary history: everything lies ready before him, and he has only to reach out his hand to take possession. The whole task comes down to reporting on other people's solutions, and whichever view the candidate decides for, he always finds an authority of note to shelter behind, whom the examiner, whether he approves of the view or not, has to respect.

Here too I simply appeal to experience. In doctoral examinations I have had in my hands written work by junior lawyers that could not be faulted, while in the oral examination its author showed a complete lack of any legal training whatever. I have had a similar experience now and then with students who had won a prize essay competition: they had bought their solution, by concentrating all their strength on a single topic, at the cost of their training as a whole. The examination in history has had similar experiences of the deceptive value of such written work by students: successful seminar papers and a frightening ignorance in the oral examination. Learned confectionery and no daily bread.

Away, then, with these theoretical assignments that give not the least guarantee! But in case they should be kept after all, I will not fail to report an experience I have had of the scarcely credible blunders occasionally made in choosing the topics. I have come across topics of such difficulty and such scope that they would have cost the most seasoned theorist twice or three times as many months as the candidate was given weeks. I even remember a question on usucapio pro herede, acquiring an estate by possessing it as heir, which I myself was quite unable to understand; and the candidate, who had answered it to the examiner's satisfaction, told me that Bruns in Berlin, whom he had gone to for advice, had fared no better. To prevent such mischief, if the topics are to stay, should they not be submitted to the Ministry of Justice for review and approval? I am convinced that an examiner who sets topics like the ones I have in mind does so only because he has no idea of their difficulty and scope. He knew them only from hearsay, or he would not have set them; he himself would surely have been the last man able to work them out. Only a man who does not know the difficulties of a task himself can blunder so badly in choosing it as to take an insoluble one for a soluble one and a hard one for an easy one.

What, then, is to take the place of that theoretical work? If what I have said so far about its practical worthlessness is right, dropping it leaves not the slightest gap. The written examination could be given up altogether, and the time it frees for examiners and candidates could be used to make the oral examination longer, which compared with the present arrangement would already be quite a valuable improvement. He must be a poor examiner who cannot form a judgment of the candidate's maturity or immaturity from a longer oral examination alone. I find only one reason for keeping the written examination: consideration for the shyness and nervousness under whose pressure even quite capable candidates often do less well in the oral examination than they could have done without that handicap. The written examination rules out that danger (which, by the way, in my opinion means little with a humane and experienced examiner), and in that respect it would be worth keeping as a compensation, a corrective for the peculiar circumstances of the oral examination that work against the candidate.

But only on condition that it is arranged so as really to give the guarantee people look to it for. And for that I know of only one arrangement: easy written questions that the candidate has to work out under supervision, shut in a room without any books to help him. I came to know the value of a written examination of this kind, which of course depends on strict and conscientious supervision, over more than sixteen years as a member of the examining board at Giessen. Its results never deceived me; they always held good in the oral examination.

Naturally there must be several questions, chosen so that they can be answered in a short supervised session (at Giessen, two hours). In Roman law three questions were set there, which, like all of them, needed the board's approval. In my case one of them was always a legal case, and an easy one, as the purpose requires; the second a doctrinal task, which I broke up into a series of separate questions that could be dealt with in relatively few words; the third sometimes a question of legal history, sometimes the interpretation of a passage from the sources. Working out the case and interpreting the passage always gave me the surest basis for judging the man's legal training. Mechanically memorizing definitions, legal rules and notes on legal history was no use for either. The knowledge had to be solid, and the man had to be able to apply it, to solve those two tasks. The more capable candidates always welcomed these two questions, the practical and the interpretive, while the less capable feared them most; both knew that no other question would bring the real state of their training to light as these did. That says all there is to say about their practical value!

Replacing the present written work of the first examination with supervised papers would also save both parties a good deal of time. At present the candidate is given six weeks to write his papers, and about four more are added for the examiners to read them. To my mind two days would be quite enough for the supervised papers. I do not think it right to keep the candidate shut in all day, as I understand is done in Oldenburg. At Giessen the supervised session lasted two hours for each paper, and during that time the candidate was not allowed to leave the room. Two papers were set in the morning, with a short break after the first to give the candidate a chance to recover a little; only one was set for the afternoon. At Giessen the number of supervised papers was 14, which I do not think necessary. Six seem to me entirely sufficient: two questions in Roman law, one in German private law or commercial law, one in civil procedure, one in criminal law, one in constitutional or church law. The time the examiners would need to read these papers would be cut to a third of the present time at the very least.

Up to this point I have had only the first legal examination in view, and I sum up my proposal for change as a choice between two things: either drop the present, entirely worthless written examination altogether and replace it with a longer oral one, or turn it into a supervised examination, which alone can give the guarantee one expects of any examination.

For the second examination too, the assessor's examination, I would move that the theoretical assignment be done away with. Working it out may give unusually capable men a chance to show themselves to advantage, but experience shows that it is no sure test of maturity or immaturity, and the candidates themselves regard it as the easiest part of the examination, while what frightens them most is the court file sent to them for drafting a judgment. In my eyes the theoretical paper has a purely decorative purpose. It is meant to give the examination a scientific gloss, to stress that what counts is not only the candidate's practical ability but his scientific training. As if, in a practical science, the application of knowledge were not the surest measure of the knowledge itself! As if the oral examination did not give ample opportunity to hold forth on theory! In the second examination, just as in the first, the theoretical assignment is a pure piece of decoration with no real sense or value. It owes its introduction and survival solely to a false fear of the reproach of being unscientific, a reproach that can come only from those who declare theory without application to be true science and deny the name to theory in application. They seem to have no idea how easily the candidate proves his qualification in the first respect, his "theoretical training."

In every other respect the second Prussian examination leaves, in my opinion, nothing to be desired. A court file assigned for drafting a written judgment, with a fairly long time to work on it, and a court file delivered three days before the oral examination, on which to report in the oral examination: these are two arrangements that fully serve the purpose of testing the man's practical ability and legal judgment, and the oral examination gives ample opportunity to establish the range, solidity and sureness of his theoretical knowledge.

But I cannot hold back the remark that the first Prussian examination, in my experience, leaves a very great deal to be desired. As I said above, I have examined men who had passed it and who nonetheless lacked any legal training whatever, who could not even tell apart the most elementary concepts of Roman law, possession and ownership, for instance. That an examination which such perfect ignoramuses have managed to pass must be thoroughly badly arranged needs no comment. Where does the cause lie? In the examiners being too lenient? That may play a part here and there, but I see the decisive cause in the wrong manner of examining. It comes partly from the clumsiness and lack of practice of the examiners, a point I shall come back to below, and partly from the prejudice that because the first examination is purely theoretical, questions about applying what has been learned must be kept out of it. The practitioner called on to examine thinks he can do his job only by keeping the examination as theoretical as possible and artificially playing the theorist. He disowns the fit examiner in himself and swaps him for an unfit one. He keeps to the supposed heights of the abstract and asks for definitions, divisions and so on, instead of steering the examination onto the ground where he himself is perfectly at home: the application of legal rules.

In my opinion no first examination, written or oral, should be without a legal case. Not a difficult one, of course, but an easy one, of the kind that anyone who has studied law in earnest must be able to judge, and can. Only a man who can apply a legal rule to a given case, only a man who can recognize the abstract distinctions in concreto, has really made them his own; everything else is pure show, a worthless possession. Everything abstract in law exists only to be realized in the concrete, and a man who cannot recognize it in its concrete form, in a case, or apply it to a given simple set of facts, proves by that very failure that he has not really grasped it.

To the case or cases there should be added, in my opinion, a chance to interpret a passage from the sources, and I mean not only from the Corpus juris but also from the Commercial Code, the Criminal Code and the Code of Civil Procedure. Deciding a case and interpreting the law: those are the two tasks of the practicing lawyer, and a man who applies to enter a practical legal career may no more be spared them than the theologian may be spared the sermon or the medical student the examination at the sickbed and the dissecting table. Learned theoretical work belongs to the future theorist: the lecturer, when he qualifies to teach. The future practitioner is to show that he is equal to the particular tasks of his profession at least as far as can be asked of a beginner. If his theoretical study does not equip him for this, either the study is to blame or he is. The study is to blame if it does not give him the opportunity, which must and will be changed where it has not been the case at some universities so far. He is to blame if he does not use the opportunity offered him.

Having set out my views on the changes needed in the manner of examining, I turn to the second point I named above: the make-up of the examining authorities.

I have, to be frank, no real confidence that the proposals I mean to make on this will ever be carried out; they will founder on the question of money. For that very reason I do not think it necessary to set them out at length, quite apart from the fact that outward reasons too are pressing me to finish. I put what I have to say in the form of short theses, which as such make it easier to test whether they are right.

1. The whole value of the examination depends on the fitness of the examiners.

2. Their fitness is measured not only by the range and solidity of their knowledge but, to a very considerable degree, by their skill in examining.

3. Examining is a hard art, which even a man with a natural gift for it has to learn by practice.

4. Only the practiced examiner is the fit one. He alone can tell the appearance of knowledge from real knowledge. His experience lets him see at once, when an answer is wrong, whether the candidate has merely chosen the wrong words or does not know the thing itself. He gives the capable candidate a chance to correct himself, and the ignorant one a chance to display his ignorance in all its nakedness.

5. The examiner must therefore be given the opportunity to train himself in this art. Appointing an examiner for a limited time is an evil, alike for him, for the candidates and for the purpose of the examination.

6. The right thing is to appoint examiners permanently.

7. The examiner must be released from his other professional work. He must have time to follow the progress of the science, and more than that: he must be given the chance of independent, searching scholarly study.

8. Examining authorities arranged in this way form the link between theory and practice. Trained in practice and equipped with the experience and practical eye they owe to it, the members of these boards are called, by the leisure for theoretical study they are granted, to have a wholesome effect on theory through their writings. Equal to their task on both sides, they would in the future become the leading authorities on legal doctrine. Faced with them, the doctrinal theorist would drop to the second rank in this respect, unless he made up for it by quite unusual gifts, and only in legal history would the first place remain, as before, with the theorist of the universities.

I know what offense this prophecy will give in the circles of my colleagues. Daring to hold out to practitioners the prospect of first place in doctrinal legal science will be enough to earn me the reproach of having deserted science. I accept it willingly; I add it to the pile of those that this whole book will bring down on me. To calm anxious minds, let me add that my prophecy will not come true as long as it and I are alive. The only prophecy with any prospect of coming true is this one: everything will stay as it was!

I do not let this prospect put me off developing my proposals for reform further.

9. Besides the senior members, who would be drawn from among outstanding practicing lawyers, and who would have to be given a motive, by higher salary and rank, to exchange their present posts for membership of the examining board, younger assessors or judges, outstanding in knowledge and ability, would be seconded to the board for a time. If they prove themselves, they stay; if they do not, or if they wish to return to practice, they are free to leave with their seniority preserved. They too would have to be given higher pay and a correspondingly higher position. Being an examiner must count as a distinction, a recognition of unusual strength and ability.

10. The examining authorities' middle position between theory and practice is to benefit both. An academic teacher who has grown tired of teaching and no longer feels the ability or the desire to go on with it, to his own satisfaction or anyone else's, should find in the examining board a chance to exchange the teacher for the examiner, an advantage alike for him and for teaching. Conversely, the boards should give the law faculties a chance to recruit from them. Their younger members who had distinguished themselves by their writings would be born professors for every branch of legal doctrine: civil law, civil procedure, criminal law. That would prevent the shortage of suitable men which is making itself felt so badly at present in filling chairs of law. Among doctors too it is nothing unusual for a man to be called from a practical post to a professorship. Why should that be ruled out among lawyers? The ablest is the best. Whoever begrudges him that may become the best himself. And the future lecturer in the law faculties may know, and take to heart, that in the talented assessor or district or regional judge of the examining boards, with his writings to show for himself, he has a dangerous rival, against whom he will have to hold his own by valuable work of his own. Faculties that put the interest of teaching above the interest of those who teach could only welcome such competition, and if they were narrow-minded or weak enough to prefer the mediocre academic to the able non-academic, the highest authority would have the sense to make the right choice.

11. The number of examining boards for the first examination would have to be cut very considerably from what it is now; perhaps a single one would be advisable, large enough to form several sections. Centralizing them in one place would have the advantage that, by changing the make-up of the sections periodically, a uniform standard could be reached, which is entirely lacking at present; in this respect the first legal examination would be raised to the level of the second.

With that my proposals are concluded. But the last word is still missing. It is the same as for the third part of this book: I have dreamed. But I do not regret having dreamed both dreams. Perhaps they will do some good after all.

Preface to the Fourth Edition (1891)

The present edition of this book is an unchanged reprint of the first three editions; only a few additions have been put at the end. I could not attach them to the sections of the book they belong to, because the publishers had the book cast in stereotype plates when it first came out. The reader will do well to read them, for the sake of the connection, alongside the parts concerned: Addition I with the second Picture of Part Two, The Mousetrap of the Old Law of Inheritance, and the rest with the third, Rich and Poor in Old Roman Civil Procedure. The stereotyping has allowed the publishers to bring the price of the book down very considerably from what it was (8 marks, or 9 bound) to 3 marks, or 3.50. May this reduction serve to spread the book further among students than it went at the old high price.

Göttingen, 14 October 1891.

Rudolf von Jhering.

Addition I: The Mousetrap of the Old Law of Inheritance

I owe to the kindness of one of this book's readers a pointer to an interesting parallel to the view I developed in the essay above on the purpose behind the usucapio hereditatis, the acquiring of an inheritance by possessing it. Under old Scots law, a man who took possession of an inheritance without the authorities taking part was liable for all the debts of the deceased. The notice of it is in The Life of Samuel Johnson by James Boswell, vol. 1, p. 119, and I print the passage here as my correspondent sent it to me, adding a translation for readers who know no English.

It was held of old and continued for a long period, to be an established principle in that (scotch) law that, whosoever intermeddled with the effects of a person deceased, without the interposition of legal authority to guard against embezzlement, should be subjected to pay all the debts of the deceased, as having been guilty of what was technically called vicious intromission.

That is: it was a principle of Scots law, in force from of old and kept for a long time, that anyone at all who had meddled with the estate of a dead person without the authorities taking part had to pay all the dead person's debts, as a safeguard against embezzlement, on the ground that he had made himself guilty of what was technically called a wrongful meddling.¹⁸³

Old Scots law, then, had the same noli me tangere, "touch me not," about an inheritance that I have assumed for old Roman law, except that Roman law required, besides the meddling, that a year should pass; that is, it allowed the occupant to hand back what he had taken possession of to the heirs or creditors and so escape liability for the debts. This evidence should be enough to dispose of the objection that my view is improbable in itself. Old Roman law even stopped a step short of old Scots law, since under the Scots law the occupant of things from an estate was liable at once, under the Roman only after a year.

Addition II: Rich and Poor in Old Roman Civil Procedure

I. The Origin of the Sacramentum Procedure: Trial by Ordeal

Since the first edition of this book appeared I have come to a new view of the origin of the sacramentum procedure, and I set it out below. The sacramentum was the stake each side put up and the loser forfeited, and its name, its deposit with the pontiffs and its use for religious purposes leave no doubt that in its original form it had something to do with religion. Starting from that fact, I first thought I could account for the connection by bringing in the oath.¹⁸⁴ Later¹⁸⁵ I gave that up, and found the connection simply in this: that the pontiffs, as the learned men of letters of early times, were the ones called above all others to decide hard questions of law, and that the sacramentum was the fee for the judgment, paid into the sacred fund. The religious link, I suggested, was that the sacramentum was to compensate the gods for the time the pontiff took from their service by deciding lawsuits. I must now pass sentence on this view too. In the first place, the religious link it tries to supply is a very distant one: it rests merely on the accident that the judge was also a priest. And in the second place, the extraordinarily high sacramentum of 500 asses for objects worth 1,000 asses or more fits very badly with the idea of a mere fee for judgment. Consider that when the cattle and sheep originally due were converted into money, an ox was reckoned at 100 asses and a sheep at 10; that the penalty for breaking a bone was only 300, and for a slave's bone only 150; that for an insult or for cutting down another man's trees it was only 25. A fee for judgment fixed at 500 then seems unthinkable. I believe I have at last solved the riddle, which, as I now see, I twice wrestled with in vain. The solution runs: the sacramentum procedure took the place of the trials by ordeal of primitive times, and the sacramentum was a sum paid to buy out the jurisdiction that had until then belonged to the deity. Paying with the body, luere in corpore, was replaced by paying in bronze, luere in aere.

Trial by ordeal was an institution of the ancient Aryans, and it can be traced in all three branches into which the Aryan parent people later split: the Indians, the Iranians and the Indo-Europeans.¹⁸⁶ But while four of the Indo-European peoples, the Greeks, the Celts, the Germans and the Slavs, kept it in part far into historical times, the Romans had done away with it before history begins.¹⁸⁷ It was a deed worthy of the people born for law, one of the mightiest achievements they ever accomplished. It meant not only a complete break with the past, to which the Romans otherwise clung so anxiously, but, what weighed more heavily still, it required abolishing a religious institution: Hercules strangling the serpents in his cradle. How firmly the conviction that ordeals were deceptive must have been rooted in the people, to overcome the scruples that stood in the way of such a step! It meant nothing more and nothing less than stripping the deity of the office of judge it had held until then, an encroachment on the deity's right. How could the pontiffs, the appointed guardians of the deity's right, give their consent to that?¹⁸⁸

The answer is that the deity's jurisdiction wasn't simply abolished but bought out, and not once and for all but case by case. That was the job of the sacramentum, which the losing side forfeited. It consisted of sacrificial cattle: for things worth 1,000 asses or more, five cows; for things worth less, five sheep. The deity did better out of this than out of the pains and wounds the losing side carried away from the ordeal. We know from Festus that there was a time in Rome when sacrificial animals were scarce, and it is with this very scarcity that he connects the sacramentum.¹⁸⁹ Not, admittedly, its first introduction, but only the transfer of the name sacramentum to the money that had taken the place of the earlier sacrificial animals. But the connection that this fact of language is supposed to have with the scarcity of sacrificial animals is impossible to make out. It must have been a different one, which Festus misread. In the sources at his disposal he will have found the note that the sacramentum owed its origin to a scarcity of sacrificial animals, and then he shifted this connection of substance onto language in the way described.

How did the sacrificial animal in the sacramentum procedure come by the name sacramentum? Just because it was used for sacrifice? Then every sacrificial animal would have had to bear the name. And as is well known, that isn't the case. Why does only the sacrificial animal in the sacramentum procedure bear the name sacramentum?

Clearly the answer can only lie in the sacramentum procedure itself. There must have been some religious connection at its root, peculiar to it as against all the other forms of court procedure. But no such connection can be found in the form it has in Gaius's description; there it appears as a thoroughly secular form of procedure like all the rest. The connection can therefore only have lain in its prehistory: the sacramentum procedure must have replaced a religious procedure of primitive times. Such a procedure is attested for all the Indo-European peoples: the ordeal. Only among the Romans is it missing. Where did it go? Was it simply thrown overboard? That wasn't the Roman way. The Romans never broke completely with the past; everywhere they built a bridge between the old and the new and tied the new to the old. And with a religious institution hallowed by thousands of years, like the ordeal, of all things, are they supposed to have been untrue to their way? Whoever says so doesn't know the Romans. The only road they can have taken was to replace it with another procedure, and that is exactly what the sacramentum procedure did. The innovation didn't consist in robbing the deity of its old right to pronounce judgment. In principle the right was kept, and only bought out in each case by the sacrificial animals the deity was given.

That explains how these animals, and only these, could come to share the name sacramentum. They weren't sacrificial animals like all the others; they had a quite special function that belonged to no others. For the deity they were compensation for not exercising its office of judge. For the party they were a penalty in property that took the place of the bodily harm he would have suffered had he lost in the ordeal: paying with the body replaced by paying in goods, luere in bonis. That explains the high sum of the sacramentum, five oxen and later 500 asses, which as a fee for judgment would be quite incomprehensible, as I said at the outset. The compensation for the deity could only be substantial, and if you consider what was at stake for the party in the ordeal by fire (on the ordeal by water, see below), you will understand that the sacramentum could only be set very high. The apparent disproportion between this figure and the 300 asses for the os fractum, the broken bone, is thereby disposed of.

When the original object of the deposit in the sacramentum procedure, the cattle, was converted into money (an ox at 100 and a sheep at 10, which made 500 asses for the high sacramentum and 50 for the low), and the deposit at the start of the suit was replaced by payment at its end, the collection of the forfeited sum was entrusted to a special body: the triumviri capitales, the "board of three for capital matters." Why not the quaestors, who otherwise collected all forfeited penalties? Why was a special body needed here, and why was it given only the collection of the sacramenta and not of other penalties or dues as well? And how does the title triumviri capitales square with collecting money, which fits so badly with the rest of their duties?

The question has never even been raised, let alone answered; we are facing a riddle of legal history. Its solution, I think, is given by what has gone before. The ordeal was a causa capitalis, a proceeding that went to life and limb, to skin and hair! Hence the triumviri capitales, who had to collect the sum that had taken the place of the body staked in the old procedure; hence their being confined to collecting this money and no other. In their title, then, a memory in words of the ordeals of primitive times has survived. At the time the duty was given to them, the memory must still have been alive among the people, or the quaestors would have been given it instead.

Might other memories in words not have survived too? If the ordeal lived on in the sacramentum procedure, what was more natural than to transfer the name it had borne until then to the new procedure? That is what happened with the name condictio when the condictio of the formulary procedure took the place of the legis actio per condictionem, and every probability suggests that it was no different with the name sacramentum. It would then not have been newly coined for the sacramentum procedure but carried over to it from the ordeals.

Sacramentum, as everyone knows, has another meaning in Latin: the oath. Might sacramentum in this sense not be connected with sacramentum in the sense of the ordeal? The testimony we owe to Sophocles about the link between ordeal and oath among the Greeks of the heroic age puts it beyond doubt. He has the guard in the Antigone (lines 265 ff.) say:

	We stood prepared to grasp the glowing iron,
	To walk through fire, and with a sacred oath
	To call the gods to witness we had not done it.

Here the ordeal appears as the seal on the truth of an oath sworn beforehand: an oath of purgation, as we would call it in today's legal language, an oath by which a man clears himself of a charge. I was therefore not entirely on the wrong track when I once supposed a connection between the sacramentum procedure and the oath. My only mistake was to suppose it for the sacramentum procedure, when I ought to have supposed it for the form of procedure that came before it, the ordeal.

Of the three other Indo-European peoples among whom the ordeal is attested, we meet the oath, as far as I know, only among the Germans, not among the Celts and Slavs. Among the Germans it appears in two cases: in the ordeal by single combat (still in the Mirror of the Saxons, the Sachsenspiegel, 1, 63) and in Frisian law (lex Frisionum 4, §§ 8, 9), for theft caught in the act (the Romans' furtum manifestum), in the cauldron ordeal (see below). In both cases both parties are to swear and to make good their oath by the ordeal. The fact that single combat was unknown to the old Aryan law, which knew only the ordeals by fire and by water (see below), doesn't weaken the evidence of the oath being found with it. We are entitled to conclude that when the Germans added this third trial to the other two, which happened before history begins (Vellej. Pat. II 118: solita armis discerni, "accustomed to be decided by arms"), they carried the oath over to it. The addition of the oath can't be placed in the time when the Germans became Christian, since the Christian Church tried rather to restrain the oath than to encourage it, and exactly the same holds for the oath in the cauldron ordeal of Frisian law. We shall therefore have to see in the oath at the ordeal an institution of the primitive age of the Indo-European peoples. If it can't be traced among the Celts or the Slavs, and isn't even mentioned in most of the Germanic folk laws when they describe the ritual of the ordeals by fire and water, the reason may be either that it was passed over in silence as something everybody knew and that needed no mention, or that the Christian Church had got rid of it there. In any case the testimony of Sophocles is enough to show that the oath was an integral part of the ordeals of ancient times.

The ordeals of ancient times would thus appear as the seal on the truth of an oath that had been sworn. The idea they rest on, then, isn't that the deity is called on to make a decision that men don't feel equal to when the facts are unclear. It isn't the inadequacy of human knowledge taking refuge with the deity in its need. What brings the deity in is the oath sworn by it. The deity is to pronounce not so much on right and wrong in the matter itself as on whether the man has sworn true or false. That decision belongs to the deity alone, and it gives it by the outcome of the trial the man has to undergo: if he swore true, it lets him pass; if false, not. The deity is just. It takes the innocent under its protection, and even the red-hot iron can't harm him. Only the guilty is injured by it, and the pains, wounds and bodily harm he carries away are the punishment with which the deity avenges the perjury he has committed.

Only in this way, by tying the ordeal to the oath, does it take on a satisfying shape. It explains not only why the deity was brought in (only the deity could decide on the oath sworn by it) but also justifies the heavy harm that struck the man who failed the trial. It was the deserved punishment for his perjury,¹⁹⁰ whereas as a consequence of merely losing a lawsuit it would have been out of all proportion to the fault he was charged with. And the form of judgment in the sacramentum procedure is lit up in an unexpected way. As is well known, it didn't run, as the natural form of a judgment does, for acquittal or condemnation, but in the one case sacramentum justum esse, in the other sacramentum injustum esse: the sacramentum is just, or unjust. Why this merely indirect decision of the suit instead of a direct one? I have looked in vain for an answer. It is given by the view I have developed. At the ordeal the question put to the deity wasn't "is the man right or wrong?" but "has he sworn true or false?", that is, sacramentum justum an injustum esse, whether the oath was just or unjust; and this form of question, with the form of judgment that answered it, was carried over into the sacramentum procedure when oath and ordeal were replaced by it. The indirect decision of the question of law in the sacramentum procedure is therefore nothing but the historical residue of the direct decision about the oath in the ordeal that preceded it.

The oath at the ordeal wasn't a simple assertory oath but an oath of purgation. The defendant, as we may call him, purged himself by it of a charge made against him. It isn't the plaintiff who swears it¹⁹¹ to prove his claim, but the defendant, to defeat the charge the plaintiff has brought against him: he swears himself free. Now if any charge at all had been enough to force a man to take the oath of purgation and submit to the trial that went with it, the life, limb and honor of even the most blameless and respected man would have been in the hands of anyone who wished him ill. Anyone could have brought this fate on anyone, there would have been no end of ordeals, and lies, malice and vengefulness would have had free play. Against such a danger, which would have meant a complete absence of law, a safeguard was needed, and it can only have been this: the man who brought the charge was required to produce facts that justified it, circumstantial evidence or the statements of witnesses. To this proof brought by the plaintiff the defendant opposed his sworn assertion of innocence, calling on the deity as witness and submitting to its verdict by means of the trial. That is what happens in the case above from Sophocles' Antigone, where the guards' negligence had already been proved by the fact that the body was gone.

In this sense, then, the oath at the ordeal was an oath of purgation. It was to purge the accused of the guilt that clung to him in the judgment of men, by the verdict of the deity, which could tell dazzling appearance from truth; that is, it was to defeat a proof that had been given. But, and this is of the utmost importance for understanding what the ordeal meant, not within the same proceeding, as if the case begun before men were carried to its end before the deity. The first proceeding is closed; it has ended with the condemnation of the accused, and now a second begins, as the condemned man lodges an appeal to the deity. The deity judges not at first instance but on appeal. Irrefutable proof of this lies in the solemn formula that opened the sacramentum procedure, the provocare sacramento (Gaj. IV, 16: D. aeris sacramento te provoco, "I challenge you with a sacramentum of five hundred in bronze"), a turn of phrase that has so far been passed by without a glance, though it ought to have set people thinking. Provocare is the technical term of the old law for lodging an appeal to a higher authority: from the criminal judgments of the kings, or of the duumviri perduellionis they appointed, the two judges for high treason (Liv. I 26: si a duumviris provocaverit, provocatione certato, "if he appeals from the two judges, let him contend by appeal"), and of the magistrates, to the people. Its use for the sacramentum procedure therefore proves that this procedure was conceived, when it was introduced, as a procedure of appeal, and on the relation I have set out between it and the ordeal, that was possible only if the ordeal had been seen the same way from primitive times. Provocare sacramento accordingly meant in primitive times an appeal to the ordeal, and the formula was kept, exactly like the formula sacramentum justum, injustum esse, when the ordeal was replaced by the sacramentum procedure.

It is true that in later usage, even among the jurists (for instance Gaj. IV 93, 165: provocare sponsione, "to challenge to a wager"), provocare took on the meaning of a simple challenge. But it was never used in that sense in a formula, and least of all can this loose usage be read into a formula of the old law. The conclusion that the formula was meant to mark the sacramentum procedure as a procedure of appeal therefore can't be avoided, and since the procedure itself gives not the slightest ground for it, nothing remains but to find the explanation in the procedure that came before it. The provocare sacramento, like the word sacramentum itself, the form of judgment sacramentum justum, injustum esse and the triumviri capitales, is a residue in language from the age of the ordeals.

With the idea of purgation set out above is bound up, in my opinion, the choice of the two trials that alone were known to primitive times: the ordeals by fire and by water. Those of the consecrated morsel and of single combat are of later origin and aren't found among the Aryans. Why only the ordeals by fire and water, and why these in particular? A presumptuous question, it will be said: how can we find out what guided the ancient Aryans in choosing these trials? To my mind it lies open for all to see. It can't have been the danger of the trial, which holds only for fire and not for water, since the water ordeal threatened the accused with no danger whatever, whether he passed or failed (see below). Had danger been the point, there were many trials far more dangerous than water to choose from, if one wanted others beside the fire ordeal. It must therefore have been some other consideration, common to both trials, and it appears once you consider what fire and water meant for the purpose of the trial. The trial was to show that the accused was free of guilt, that is, pure; and fire and water are the two pure elements, by whose behavior toward him it could be tested whether he was really pure.

The water ordeal consisted in throwing the accused into the water. If he sank, he counted as innocent (on the natural assumption that he was pulled out again at once, or he would have drowned in spite of his innocence); if he stayed afloat, he counted as guilty. Strange! One would expect exactly the reverse. Sinking, one would think, ought to have counted as proof of guilt and floating as proof of innocence: the guilty man goes under and drowns, the innocent stays on top and the water can't harm him. But it is precisely in this reversal of what seems natural that the idea of the meaning of water set out above proves itself. Pure water takes in the pure man; it agrees with him. The impure man, who would pollute it, it will not suffer within it: it casts him out.

The fire ordeal, of which there were several kinds, among them the ordeal of hot water (the cauldron ordeal), formerly wrongly counted as a water ordeal,¹⁹² rests on the same idea as the water ordeal. Fire, like water, suffers no filth. It destroys only the impure, scorching and burning him; the pure it can't harm, since no filth clings to him for it to burn away.

In this way both trials fall under the basic idea of the ordeal, the testing of the purity of the accused, and at the same time they support the view I developed above of the oath as an oath of purgation. The two parts of the procedure, the oath of purgation and its confirmation by the two pure elements, fire and water, support each other, and they flow into one and the same idea: purity.

When was the one trial used and when the other? Of that we know nothing, but I regard it as beyond all doubt that there were fixed rules about it. Without them, had the choice been left to the accused, he would naturally always have chosen water: all it held out to him if it went against him was that his counter-proof failed, without his coming to the least harm. Nor can the choice have been left to the plaintiff; he would always have chosen fire. Nor to the judge or the priests who took part in the ordeal, for that would have put the fate of the accused as good as in their hands: they would have given water to the man they liked and fire to the man they disliked. There must therefore have been fixed rules about when the fire ordeal and when the water ordeal was to be used, and the same will have held for the various kinds of fire ordeal. That there were in fact rules of this kind we know. From Germanic legal sources we learn that for the cauldron ordeal there was a "mos solitus mensurae," a customary rule of measure. For a "single charge" the hot stone was placed so high that the hand had to be plunged in only up to the wrist; for a "triple" one so deep that it had to go in up to the elbow.¹⁹³ A similar distinction held in Anglo-Saxon law for carrying the red-hot iron: for a single charge it weighed one pound, for a triple charge three (in simplo unum pondus, in triplo tria).¹⁹⁴ That proves that the difference in the case decided the difference in the trial. And if it did so in the lesser matter, the grading within one and the same trial, how much more will it have done so in the greater: in the choice of one trial or the other.

Let us now see what became of the ordeals by fire and by water in the sacramentum procedure.

The fire ordeal corresponds to the sacramentum of five oxen (500 asses), the water ordeal to that of five sheep (50 asses). That explains

1) why only two rates were fixed. Nobody has taken the least offense at this so far, and yet they should have, for setting two rates contradicts the usual ways of Roman law as flatly as anything can; there isn't a single other case where it happens. Wherever the old law, and even the later, takes the value of an object as its basis for measuring the size of a penalty, it does so by proportion, either as a multiple¹⁹⁵ or as a fraction.¹⁹⁶ Only in the sacramentum procedure, although the value of the thing in dispute is the basis for setting the sacramentum, is the amount fixed not in proportion but in the abstract: 50 and 500 asses. Why? Because the sacramentum served to buy out the trial at the ordeal: two trials, two rates of sacramentum. Had the idea of the value of the thing been the deciding one, the sacramentum would have been fixed in proportion, as everywhere else. But it wasn't. What decided was the idea of replacing the trial by the sacramentum: hence the low rate for the harmless water ordeal and the high rate for the menacing fire ordeal. The value of the thing in dispute came in only to settle when the one rate or the other applied.

2) why there is such an enormous jump from the single (five sheep, 50 asses) to the tenfold (five oxen, 500 asses). If fixed rates were wanted at all, why not a scale that followed the value of the thing in dispute, in steps of 100, say, or of 250? Picture the glaring disproportion to which the double rate was bound to lead in particular cases, depending on the value of the thing in dispute, and you will understand how compelling the reasons must have been that made the Romans accept it. In a suit to recover a sheep the sacramentum was five times its value; for a piece of land worth 950 asses, one nineteenth; worth 1,000, a half; for an inheritance worth 50,000, a hundredth! What an absurd result! How could a people of the Romans' sound practical sense have hit on the idea of lending a hand to it, if they had otherwise had a free hand? But that is just what they didn't have. The double rate was prescribed by the double trial that it was meant to buy off. Whether the rate was set high or low, it had to stay at two rates; the deity had a right to that, and the priests had to guard that right when they gave their consent to its being bought out in sacrificial animals. Take away this regard for the deity's right, and it would be impossible to understand how the Romans could have brought themselves to an arrangement that stands in the sharpest contradiction to everything else in the way of legal institutions that ever came from their hands.

3) finally, why the water ordeal was rated low and the fire ordeal high. It follows from the difference in how menacing they were. If you consider that the os fractum, the broken bone, was rated at 300 asses in the Twelve Tables, you will have to admit that 500 asses for the fire ordeal was set rather too high than too low, and the same goes for the water ordeal: the priests had made sure that the deity wasn't short-changed when the ordeals were bought out.

The double rate of the sacramentum and the strange distance between the low rate and the high one therefore not only fit satisfyingly into the historical course of the development I assume; I believe I have found in them a very considerable argument for the correctness of my view.

Only one point remains that may raise doubts. In the ordeal only the defendant has to undergo the trial, not the plaintiff; in the sacramentum procedure both sides are placed on an entirely equal footing, and both have to deposit the sacramentum. In legal terms, the ordeal was a one-sided procedure and the sacramentum procedure a two-sided one, a difference so fundamental that it seems to rule out the idea of one being modeled on the other, or even any attempt to link the two.

The objection is disposed of by what I set out above about both parties having to prove their case at the ordeal. Both had to prove. Only when the plaintiff had brought his proof did it come to defeating it by the ordeal, and in this sense the procedure can be called two-sided: each had to do exactly what the other did, except that the counter-proof was brought in a different way from the main proof. When the ordeals were abolished, this difference in the manner of proof fell away, and from then on both parties used the same means of proof. With that the need to let one proof precede the other in a separate proceeding fell away too, and a single proceeding was enough. It rests on the idea of the complete equality of the two parties. Both count equally as plaintiff and defendant (judicium duplex, the two-sided suit); both prove their assertions at the same time and in the same way (by the same means of proof); both have to put up the same stake, and forfeit it if they lose. The last point is surprising. If the sacramentum served to buy out the trial, how could it be imposed on the plaintiff, who didn't have to undergo the trial? The answer is obvious. Had only the defendant had to deposit the sacramentum, the deity would have been left empty-handed whenever he was acquitted, whereas its claim to the price for which its right of decision was bought from it had to be secured in every case, however the suit turned out. And even if the plaintiff in the earlier procedure had no trial to undergo, he had something else to do in it: he had to bring his proof before it came to the ordeal. In the sacramentum procedure he was admitted instead with an unproved assertion. If he proved it, he suffered no more harm than in the earlier procedure; if he didn't, it wasn't only fair that he should suffer the same harm as the defendant in the same case, but necessary in the defendant's interest, to protect him against wholly groundless claims. Otherwise, if the suit went against him, the plaintiff would have risked nothing and the defendant, in the same case, his sacramentum, and that would have been no better than if, in the old procedure, the plaintiff could have forced the defendant to undergo the ordeal on unproved assertions. The plaintiff's sacramentum was the price at which he had to buy the advantage he owed to the new procedure: being able, with unproved assertions, to put the defendant in exactly the position that in the ordeal had needed proved ones.

I have come to the end, and I now ask the reader to make up his mind about the view I have put forward. I haven't been able to bring any direct proof of it; it is nothing but a hypothesis, and whoever rejects hypotheses as such must reject it too. From readers capable of judgment I need fear no such danger. A hypothesis has the same justification in finding out historical truth as circumstantial evidence has in finding out the truth in a court of law; one may call it historical circumstantial evidence. It is indirect proof, which tries to establish unproved facts by inference from established ones, as against direct proof, which tries to prove them immediately. The standard to apply to both kinds of circumstantial evidence is compelling conclusiveness: the facts used as evidence must support the inference to the fact to be proved so firmly that any other assumption is ruled out. A hypothesis that leaves another assumption open shows us only the possibility of the state of affairs it asserts, and even that can be valuable to science, because it widens the horizon and opens new paths for research. A hypothesis that rules out every other assumption gives us reality; it stands on the same footing as direct proof.

I believe I can count the hypothesis I have put forward in this second category, and I ask leave, in closing, to set out here in order the decisive grounds it rests on. They are of two kinds.

First, the arguments from language.

1. The word sacramentum, which is used nowhere else for a sacrificial animal, can't have been coined for it in the sacramentum procedure and must have been carried over to it. The meaning it has elsewhere is that of an oath. Conclusion: the sacramentum procedure must have been connected with the oath.

2. The form of judgment: sacramentum justum, injustum esse, the sacramentum is just, or unjust. It fits the oath and the ordeal, where the deity had to pronounce on whether the man had sworn false or true. It doesn't fit a procedure aimed at enforcing a claim, in which the form of judgment could only have run for acquittal or condemnation.

3. The formula: sacramento te provoco, "I challenge you by sacramentum." Inexplicable from the sacramentum procedure as such, it becomes intelligible only by reference to the ordeal, which really was a procedure of appeal, and which the sacramentum procedure was to replace.

4. The triumviri capitales, for which I refer to what was said earlier, in the first section of this Addition.

Then the arguments from substance.

1. The absence of ordeals among the Romans. This is a fact that shouldn't be passed over in silence in lectures on Roman legal history, even by someone who doesn't accept my hypothesis. What is not there must be mentioned too, when, as here, we should otherwise have to expect it (as I said in the first section). To my eyes it is a failing of scholarly research in a great many fields of historical knowledge that it pays far too little attention to the negative, which can in some circumstances mean more than the positive. The fact that the Romans got rid of the ordeal as early as primitive times is no less telling of the spirit that moved them from the start than a great many of their positive achievements in law. But they can't simply have thrown it overboard. That would flatly contradict the conservative streak that governed them in every change to their existing law, and would least of all fit the religious character of the institution. They can only have reshaped it in a way that solved the problem at issue: to reconcile the interests of the deity with those of men, to find a diagonal between law and religion. The means was to buy out the ordeal in the form of the sacramentum.

2. The connection of the sacramentum with the deity: its deposit with the pontiffs and its use for sacrifices. In all other suits this connection is missing; the deity has nothing to do with the dispute.

3. The doubleness of the rate of sacramentum, matching the doubleness of the trial at the ordeal.

4. The enormous distance between the two rates of sacramentum, matching the distance between the fire ordeal and the water ordeal.

Every point named so far points, like the radii of a circle, to the hypothetical center I have assumed: the replacement of the ordeals by the sacramentum procedure. Take that point of view away, and we face nothing but incomprehensible things, in language and in substance alike. The riddle the sacramentum procedure sets everyone who becomes aware of it should thereby be solved, and the striking disappearance of the ordeal in Rome explained at the same time.

II. Rich and Poor in the Old Law's Penalties for Offenses against Property and the Person

What follows is a companion piece to Rich and Poor in Civil Procedure, drawn from the substantive law, and specifically from the old law of private penalties. Old Roman criminal law is ruled, as is well known, by a contrast that has as good as lost its meaning for our own time: the contrast between private and public penal law. On one side stood the offenses whose punishment was left to the injured party himself, by self-help or by an ordinary private suit, and whose penalty went to him (delicta). On the other stood those that the state either prosecuted by public accusation or that carried the penalty of sacertas, being made "accursed," an outlaw whom anyone might kill (crimina). The private penal law knew two kinds of offense: those against property and those against the person. In what follows the penalties it fixed for them are to be put to the test of rich and poor. The test will show that here again the rich man's stylus wrote the law; that is, it set the penalties up to suit the class interest of the propertied.

If a man had broken another man's arm or leg (os fractum, the broken bone), he paid for it under the Twelve Tables with 300 asses. If he was caught trying to make off with even the most worthless thing (Gaius III 184 gives olives or grapes as examples), or if it was found in his house in a solemn search (furtum licio et lance conceptum, theft discovered "with loincloth and platter"), he paid with a flogging and the loss of his freedom: he became the slave of the man he had robbed. For stealing crops by night the penalty was death. What a disproportion in the value set on the person and on property! Breaking a bone can leave a man unable to work for ever, and for that he gets 300 asses in compensation, a pure mockery compared with what he has lost.¹⁹⁷ But if a man has reached out his hand for another's goods, he is overtaken by the heaviest penalty conceivable short of death: for the rest of his life he is exposed to the most pitiless exploitation, and even to the abuse and cruelty, of the man he robbed. Who can help asking what such a glaring disproportion can have been based on? The question should have been asked long ago, but our legal historians have passed it by without a glance. As so often, they thought here too that they had done their job perfectly by simply listing the rules as laid down, without troubling about their reasons. But perhaps the question can't be answered at all? That depends on trying. Let us try whether the contrast of rich and poor doesn't give us the explanation we want.

The rich man doesn't steal; only the poor man does. And the other way round, it isn't the poor man who is in danger of being robbed; only the rich man need fear that, for the poor man doesn't rob the poor, he robs the rich. That explains the excessive penalty the old law set on theft: it was aimed at the poor. The victim it had in mind was the rich man, the thief the poor one. That is why property, the citadel of the rich, is ringed with palisades, on whose points anyone who takes it into his head to climb over runs the risk of impaling himself. The rich in Rome knew how to protect their property!

But they seem not to have known how to protect their persons. What do 300 asses mean to a rich man when somebody has broken his bones? To him they are beggar's money. And that is supposed to settle the pain and the maiming he has suffered? Had he been the one who had to fear the danger, the penalty would have turned out differently. But the danger didn't threaten him. Not from the rich: men of standing didn't break each other's bones in Rome any more than they do today. Not from the poor: the poor man's respect for wealth and high position took care of that, as it does today. That left only the man of the lower class as the one threatened. If the danger to him had come only from his own kind, the class interest of the propertied wouldn't have been involved in the size of the penalty at all; high or low, it would have made no difference to the rich. But that wasn't the case. The rich man had a strong interest in keeping the penalties as low as possible. To understand this, you have to know that in early times, when slaves weren't yet as plentiful as later, the need for labor on the estates of the rich was met (as it still was later) by free men of the lower class: day laborers and men working by the job;¹⁹⁸ servants, men and women, given by their father into mancipium, a kind of bondage;¹⁹⁹ and debt-bondsmen.²⁰⁰ Of these three relations only the second and third concern us. Both created a relation of personal dependence that had a certain likeness to slavery, and that could all too easily make an imperious, hot-tempered master forget that he was dealing with free people. By law these people were indeed protected against ill-treatment by their master, but their position all too easily gave a passionate master occasion to lay hands on them in fact when they had done something wrong. If he did, he had to pay for it. But with what? If he had beaten them black and blue, he paid a mere 25 asses (see below); if he had broken an arm or a leg, a mere 300.

With this I believe I have given the reason why the old law set such an extremely low penalty on the os fractum. The scene of the offense it has in view is the rich man's house; the offender is the rich man himself; the injured are the debt-bondsmen, menservants and maidservants in his household. Had all the penalties of the older law been set as low, there would be no reason to look for a slanted motive behind them. But the sharp contrast the actions for theft make with it forces us to assume a deliberate intent behind both penalties. In both cases the penalty was fixed by the interest of the rich: low in the case where he has wronged the poor man, high in the case where the poor man has wronged him. Old Roman justice had two sets of weights, a heavy one for the rich and a light one for the poor. Outwardly this favoring of rich over poor doesn't appear in the legislation at all. Both are measured by the same measure; rich and poor are perfectly equal before the law. But that very equality before the law held in reality, by the maxim summum jus summa injuria, the strictest law is the greatest wrong, the utmost inequality.

Apart from a passing mention of the 25 asses for injuriae, insults and blows, I have looked so far, among the offenses against the person, only at the penalty of 300 for the os fractum, because it seems to me to give irrefutable support for my point of view. But beside the os fractum the older law knows another bodily injury: the membrum ruptum. Our legal historians regularly avoid the question of what we are to understand by it. Only in one of them (Rudorff, Roman Legal History, II, p. 355) have I found an answer: membrum ruptum is supposed to mean "the mutilation or destruction of a limb." If that were right, membrum ruptum and os fractum would coincide, for a broken bone includes "the mutilation or destruction of a limb." And for the worst stab or cut wounds one would have had to make do with the 25 asses for injuriae, since they fell under neither offense: no bone was broken, no "limb," in our sense of the word, was mutilated or destroyed, and the injured man had carried away nothing but his pain and a serious wound. But in the language of the older law rumpere doesn't mean to break; then it would coincide with frangere, from which it is carefully distinguished, both in the os fractum and membrum ruptum of the Twelve Tables and in the "fregerit ruperit" of the lex Aquilia. It has the quite general meaning of to damage,²⁰¹ and membrum ruptum therefore means bodily injury. But the os fractum is a bodily injury too. How are the two to be told apart? By a quite simple test. The os fractum is an internal injury, which a third person can only feel, not see; the membrum ruptum an external one, visible to his eye.²⁰² What they have in common is that both leave traces the senses can perceive, and this is what separates them from the third offense of the Twelve Tables, the injuriae, where that isn't so, and which, as is well known, covered not only insults in words but insults by deed.²⁰³ Blows and beatings that left no visible traces on the body fell under injuriae; otherwise, under membrum ruptum. The three offenses were so clearly distinguished that applying them to a particular case couldn't be open to the slightest doubt.

The extremely wide range of the membrum ruptum, which ran from quite minor wounds to the bloodiest, to cutting off a whole limb and gouging out the eyes, makes it understandable that the law didn't fix a sum of money but ordered talio instead, retaliation in kind, an eye for an eye. It was a double-edged sword that the law put in the injured man's hand with it; he could hit himself with it as easily as his opponent. You would have to know the Romans badly not to know that if the injured man didn't inflict on the offender exactly the same injury the offender had inflicted on him, he had to pay in his turn for exceeding the talio. He faced the same danger as Shylock in cutting out the pound of flesh. How the Romans of early times looked on such an overstepping of his right by the injured party is clear from the fact that the Twelve Tables thought it necessary, for the in partes secare, the cutting of the debtor in pieces, to add the cautious clause: si plus minusve secuerint, sine fraude esto, "if they cut more or less, let it be without offense." No such saving clause was made for the talio, so it had to match its model exactly; if it went beyond it, it sprang back on the man entitled to it like a recoiling missile. That alone was bound to make the injured man willing to lend a ready ear to his opponent's offers of a settlement in money, quite apart from the fact that if he turned them down he would have gone away with nothing at all. For a man of the lower class, whom we must think of as the usual claimant in the membrum ruptum just as in the os fractum, the choice couldn't be in doubt. Agreed in principle to a money settlement, his only question was how much he could get out of it, and the usual result will have been that they came to terms. That is exactly what the law was after: the parties were to settle. That was the aim of the clause added to the words talio esto, "let there be retaliation": ni cum eo pacit, "unless he makes terms with him." The order of talio, then, was no different from the order of in partes secare. Both were meant only as means of pressure to force the parties to a friendly settlement. Talio esto meant: do not retaliate, just as in partes secanto meant: do not cut, and the action of Frisian law against the thief mentioned above meant: do not sue, and the usucapio pro herede lucrativa meant: take nothing from another man's inheritance. In the law's intention all four cases were conceived as a noli me tangere, a "touch me not." The reason the law granted the right all the same was that it didn't believe it could avoid it, as a legal consequence; but it counted on the parties, in their own interest, not putting it into practice. If the parties couldn't agree on the size of the settlement in a case of membrum ruptum, the sum was fixed by the judge, according to the testimony of Gellius (XX, 1).

If we keep to this form of the matter, which probably belongs only to the later development of the law, the difference between the penalties for os fractum and membrum ruptum lay in this: the first was fixed in the abstract, the second measured case by case by the judge. How he will have gone about it when the injured man was poor and the offender rich needs no comment, after all we know about the partiality of the patrician magistrates in early times.

I believe I can sum up the result of my argument so far in one proposition: the rich had made sure that their offenses against the poor didn't cost them too dear. Here too they had cut the law to fit their interest, just as with the arrangements of procedure and the protection of property, under the outward appearance of equality before the law: in reality the most glaring inequality.

For the charge I am making against the propertied classes of early Rome, that their laws were framed with a bias, purely in their class interest, I add one more argument below,²⁰⁴ which scholarship hasn't noticed at all, true here too to its habit, pointed out above, of ignoring the negative.

Among the offenses against the person that the Twelve Tables punish, one is missing altogether, though the Germanic folk laws, which in other respects stand so far below them, provide for it: rape. That the Tables passed over it I regard as beyond doubt; had they mentioned it, some notice of it would have to turn up in later writers. Was the idea so remote from the Decemvirs, the ten men who drew up the Tables, that they could overlook it? Appius Claudius would have been just the man to think of it, he who himself planned the rape of Virginia. What danger threatened women from men's lust the Roman people had already learned in the case of Lucretia, in a way that the consequences which followed had stamped on its memory for ever. And this danger, set before the people's eyes once more by what happened with Virginia, could have been overlooked? No: they knew it, but they didn't want to check it. Why not? Picture the maidservant in the rich man's house, and you have the answer. A rape of a woman or girl of the better classes wasn't to be feared after the deterrent example of the younger Tarquin; the backing both had in their families ruled out any thought of it. Even the wife and the daughter of the poor man, who lived with him in his house, were hardly exposed to the danger in practice. But the maidservant who lived in the rich man's house in mancipium was exposed to it in the very highest degree. What happened to the master who had raped his maidservant? Since the conditions of membrum ruptum or os fractum didn't apply, the only penal rule that could be applied was the one on injuriae: the offender paid 25 asses, and that was the end of it. The child she might bear was no concern of his; the law knew no duty of an unmarried father to support his child. For 25 asses, then, the rich man in Rome could satisfy his lust on his maidservant: the pleasure didn't cost him dear! Let anyone see whether he can find another explanation.

In Rich and Poor in Civil Procedure I showed how the advantage the rich man had managed to secure over the poor in early times, through the arrangements of procedure, was broken in later times. The same holds for the disproportion shown above, produced by class interest, in the value set on the property of the propertied class and on the person of the class without property: it later gave way to an entirely different valuation of the two goods. The passionate agitation into which any touching of his property threw the old Roman owner, as if a piece of his own person were at stake, and which dictated the law's attitude to property, couldn't hold its ground in the face of the changes, to be shown in a moment, that had taken place in the economic life of the people. The Romans of the later age measured property by a quite different standard from the Roman of early times, and exactly the same change, only the other way round, was brought about by the upheaval in political conditions in the view of what a person is worth. The old contrast turned into its exact opposite: before, a high valuation of property and a low one of the person; now a low one of property and a high one of the person.

Let us look at property first.

The old law made no distinction as to whether the man who kept an owner from his thing did so in the belief that he was in the right or not. If he lost the suit, he had to give the plaintiff double the fruits even in the first case, and to make good the value if the thing had perished by accident. The owner's passionately aroused feeling rejects the measure of fault; it demands satisfaction for the threat to his property, whether in good faith or bad, and the law gives in to the demand. The later law is quite different. It has one standard for the possessor in good faith and another for the possessor in bad faith, and even the latter isn't liable beyond what the plaintiff would have had if the thing had been returned in time. The same in bankruptcy, where only a man who has brought his insolvency on himself by his own fault suffers the disgrace of the bonorum venditio, the public sale of his whole estate, while the blameless one enjoys the privilege of the cessio bonorum, the voluntary surrender of his goods. And even theft is seen with other eyes. Under the praetor's Edict the thief caught in the act gets off with four times the value of the stolen thing, a penalty that hardly hurts when what was stolen is worth little. The praetor had fallen into the exact opposite extreme to the older law: a mildness that went badly with the interests of legal security. Only the later law made good this mistake, by adding prosecution under criminal law to the civil action for theft.

The law of the person shows us the exactly opposite course of development. The rules of the Twelve Tables on os fractum, membrum ruptum and injuriae are replaced by new and more perfect ones: the first two by the actio legis Aquiliae utilis, the extended action under the Aquilian law, and the third by the actio injuriarum aestimatoria, the action for outrage with damages assessed. Both actions put the judge in a position to do full justice to the claims of the injured party. And to the protection of private law criminal law adds its own, not only for offenses against the person that the older law hadn't provided for at all, such as false imprisonment (lex Fabia) and rape (lex Julia de vi publica), but also for serious affronts to honor (lex Cornelia de injuriis). The penalty laid down by the lex Cornelia wasn't a money penalty,²⁰⁵ which, given the actio injuriarum, would have been quite superfluous, but a capital penalty,²⁰⁶ that is, banishment, and the criminal practice of the imperial period went even further.²⁰⁷ A painless blow, struck at the humblest man of the people, punished with banishment:²⁰⁸ what a contrast with the 25 asses of early times, for which you could beat a man black and blue! How high the sense of honor of the later age must have been strung, or more correctly how overwrought it must have been, to call for such penalties, beyond all reasonable measure. Telling of this touchiness too is the extraordinarily wide extension the Roman jurists gave to the concept of an affront to honor.²⁰⁹ They allow the actio injuriarum in cases where a Roman of early times wouldn't have seen the faintest shadow of an affront: for instance, a frivolous summons to court (in jus vocatio), demanding payment from the surety while passing over the principal debtor, or knowingly pressing an unfounded claim.²¹⁰

Where did this excessive tension in the Roman national sense of honor come from? Are we to see in it nothing more than the result of advancing refinement? I think not. I believe rather that what contributed very largely was the political self-esteem of the Roman citizen of the later age, raised to its highest pitch. You have to put yourself in his soul to feel with him what the proud words civis Romanus sum, "I am a Roman citizen," held for him. In his mouth civis Romanus meant: I possess a legal security and a freedom that nobody may dare to touch. Subject only to the law, I share in deciding, in the popular assembly, the most important affairs of the state: the passing or rejecting of proposed laws, the election of officials and calling them to account, the life and death of citizens. And as a member of the sovereign people that rules the world, I am at the same time a co-ruler of the world.

True self-esteem is at the same time a sense of honor. The sense of honor shows itself in tolerating nothing that is incompatible with one's own self-respect, with the idea a person has of his ideal worth, and that not only in others' conduct but in one's own. The higher a person rates that worth, the more sensitive his sense of honor, in individuals and in nations alike.

With this I believe I have explained the extraordinary increase in the legal protection of the person in the later law. The worth of the person had itself changed, and the legislation recognized the fact by protecting the person more strongly where honor was concerned. The counterpart is the stricter demand of the later age that a man uphold his own honor by avoiding everything incompatible with it, for which it may be enough to point to the censor's mark of disgrace, the nota censoria, the well-known provisions of the Edict on infamy, and life's widening of them in the form of turpitudo, disrepute.

Only for the extraordinarily wide extension that the jurisprudence of the imperial period gave to the concept of an affront to honor in the actio injuriarum do I think I must look to another cause. It can no longer be put down to the political self-esteem of the Roman citizen, since it falls in a period when that self-esteem had shrunk rather than grown. I can see in it only the product of the social sense of honor of the upper classes of the imperial period, heightened to the utmost touchiness. The healthy ambition of the upper classes under the Republic, which had looked for its satisfaction in positions of power and in the consciousness of having served the common good, had given way to a morbid craving for honor that was content if it received the name instead of the thing, the appearance of power instead of the reality. It was a means the emperors used to the full to make the upper classes dependent on them. By stretching the concept of an affront to honor so far in the action for insult (examples are given above), the jurists only gave in to the morbid overexcitement of the sense of honor of the upper classes of society. They were children of their time. To the jurists of the Republic this wide stretching of the concept of honor was entirely foreign, as it was even to the jurists at the beginning of the imperial period. They breathed a healthier air than the sultry air of the imperial age, and it took the hothouse atmosphere of that age to bring forth the hothouse plant that jurisprudence lavished its care on. It didn't prove able to live. Our present-day courts know nothing of this excessive stretching of the concept of honor.

Just as the higher value set on the person had its ground in outward conditions that raised the person's worth in the eyes of the people, and with it of the law, so too did the lower value set on property, brought about by the weakening of the sense of property. The ground lay in two enormously consequential changes that had taken place over time in the nation's economic life. One was the quite enormous growth of national wealth. The mass of goods in the hands of the state and of individuals had grown beyond measure by the time Rome won world dominion, compared with the time of the Twelve Tables. Every victorious war brought vast booty; the gold and the treasures of half the world streamed together in Rome. The second change was in the manner of earning. The old Roman tilled his field himself; he worked. The Roman of the later age had it tilled by slaves. The despised crafts fell to freedmen, or were carried on by capitalists in the form of workshops where slaves did the work. The Roman of the age of world dominion no longer worked. He had other sources of income that spared him hard labor of his own. As governor, or a governor's companion, he plundered the provinces through violence and extortion of every kind. As a capitalist he had the money business, wholesale trade, shipowning, marine insurance, the farming of public revenues, contracts for public supplies and public works, and much else. As a soldier he had his pay and the prospect of booty and a grant of land. As a voting member of the popular assembly or of a jury court he had the sale of his vote. The mass of the proletariat in Rome, which ran to several hundred thousand, lived at the expense of the state and the generosity of the great. Nobody in Rome needed to lift a finger to keep from starving.

The relation between labor and earning, as it stood in early times, had thus turned into its exact opposite in the later age: there, hard-won earnings with modest prosperity; here, immeasurable wealth with effortless earning. That this real change in the conditions of earning was bound to lower the value of property in the Roman's eyes is obvious. The old Roman held it in high regard. He knew what sweat and toil it had cost him, and he wasn't merely thrifty but stingy. The idea of giving something to someone else was beyond him: Polybius tells us that for many centuries no gift was ever made in Rome. That makes it understandable that the old law knew no special form for a gift. Luxury and extravagance were unknown, and anyone who fell so far from the ways of the fathers as to be guilty of them was called to account by the censor and could even be placed under guardianship. How completely different was the Roman of the later age! Money is worth little to him any more; easily earned, it slips easily through his fingers. Luxury and extravagance are the order of the day to such a degree that legislation finds itself forced to step in against them with a whole string of laws (the lex Oppia, Orchia, Fannia, Didia, Licinia, Cornelia, Julia). Even the taste for generosity (not the generosity of self-denying goodwill but the ostentatious generosity of vanity, which wants to be talked about) it finds itself forced to oppose, by setting limits to gifts between the living (lex Cincia), to the freeing of slaves by will (lex Furia Caninia) and to legacies (lex Furia, Voconia, Falcidia).

A weakening of the sense of property, a heightening of the sense of honor, both the result of the real changes that had taken place in the life of the nation, both plainly visible in the law of the later age: that is the result with which I close my inquiry.

Of the contrast of rich and poor, once so influential in shaping private law and procedure alike, not a trace is left in the later law. Only in the field of public criminal law does it reappear in the imperial period, in a somewhat changed form: as the contrast between the upper and the lower orders (honestiores, honestiore loco positi, on one side; humiles, tenuiores, plebeji and the like on the other),²¹¹ which was allowed an influence on the measuring of punishment that went as badly with the demands of justice as the wrong the early age had done the poor. In view of this one may say that Rome never overcame the contrast of classes in its law. Have we? To anyone interested in the question who is willing to spend time and trouble on it I recommend the topic: Rich and poor in relation to fines in present-day criminal law. He will not lack material.