A PRINCETON GRADUATE AT GÖTTINGEN. SECOND ARTICLE. STUDY OF LAW AT BERLIN AND GÖTTINGEN. [At the close of the Winter semester (the middle of March, 1863), and a season, it proved, of sickness and low spirits, our Student makes a trip to Berlin, where he was struck "with the energy, I might almost say the agony of preparation," "in which the city resembled a huge camp," two or three years before the formal declaration of war. Here he decided to remain for the Summer semester, and enter on study for the degree of Doctor in Law. ] Brief Exprience of Student Life in Derlin. I obtained from the University secretary the necessary Abgangszeugniss (honorable dismissal), and removed to Berlin about the middle of April. The ceremony of re-matriculation was very simple. Coming as a regular student from another German university, I had only to deposit the Abgangszeugniss with the Berlin secretary, pay a small fee, and give the customary pledge, the hand-shake, to the Rector. I then matriculated in the legal faculty. This transferring one's self from one faculty to another is called expressively by the students, Umsatteln, changing saddles. One can meet students who have performed the operation three or four times; failing in every attempt at a degree, they are content to drift along from semester to semester and bear the title of bemooste Häupter, moss-grown heads. The Berlin University at that time was in its glory. The medical faculty was uncommonly strong. In theology there were such men as Dorner, Hengstenberg, Niedner, and Twesden, in philosophy Trendelenburg, Helfferich, Michelet, in the natural sciences Dove, Rose, Braun, in political economy Helwing and Hanssen, in history Droysen, Ranke, Jaffé, Köpke, Kiepert, in philology Steinthal, Bopp, Böckh, Bekker, Haupt, Weber. Many of these illustrious men have been called to their rest; their places have been taken, we can scarcely say filled, by their successors. In law there were Bruns, Gneist, Holtzendorff, Rudorff, Richter, Beseler, Homeyer, Heffter, and many others; I have named only the most illustrious. Gneist is the well-known politician and leading debater in the Prussian Parliament and the Imperial Diet. Holtzendorff is now professor in Munich; Rudolff, and, I believe, Homeyer and Richter are deceased. The brightest stars of the Berlin legal faculty-Savigny and Puchta -had already set; in fact, as I afterwards discovered, I might have done better for the first semester or two by going to Heidelberg, where Vangerow was then in his primc. Yet the loss was not great. In fact, I may say, once for all, that a student cannot go very far out of his way in selecting any one of the leading universities. Two of the most delightful and most profitable months of my life were once passed in even a very small university, the name and fame of which have scarcely reached America. I mean Marburg, about half way between Frankfort and Cassel. The number of students, all told, did not exceed four hundred, and the professors were correspondingly few. Yet I was surprised at the comparatively large number of eminent men and the general breadth of culture. The reader may be assured that the smaller universitics, such as Marburg, Rostock, Greifswald, Tübingen, differ from the larger ones in extent, in quantity, rather than in quality. Unless the student be engaged in some very limited specialty, he can do well almost anywhere. To decide upon the study of the law is one thing; to carry out the decision is another. By consulting the list-still in my possessionof Berlin lectures for the summer of 1863, I find that there were announced no less than 59 courses of lectures on legal topics, covering 183 hours per week! That the reader, if of a legal turn of mind, may form some idea of what a legal faculty in Germany is, and what it accomplishes, I give the list entire: Encyclopedy and Methodology of the Science of Law, by Professors Heydemann and Holtzendorff, and Dr. Schmidt. Naturrecht, or Philosophy of Law, by Professor Heydemann. Institutes, by Professors Bruns and Gneist. History and Archaeology of the Roman Law, the same. History of Civil Procedure among the Romans, the same. Institutes, by Drs. Rivier and Degenkolb. Select Cases in Roman Law, explained by Dr. Degenkolb. Pandects, by Professor Rudorff. Erbrecht (Doctrine of Inheritance), by Dr. Baron. Pandects and Urbrecht. by Dr. Witte. Select Passages from the Pandects, explained by Professor Rudolff and Dr. Witte. De Solutionibus, (D. xlvi. 3), explained by Dr. Schmidt. Practical Exercises in Roman Law (a sort of Moot Court), by Dr. Baron. Ecclesiastical Law, Catholic and Protestant, by Professor Richter and Drs. Friedberg and Hinschius. Law of Matrimony, by Dr. Friedberg. Practical Exercises in Ecclesiastical Law, by Professor Richter, and Drs. Friedberg and Hinschius. History of German Constitutional Law, by Professors Beseler and Daniels, and Dr. Kühns. History of the Decline of the Roman-German Empire, by Professor Lancizolle. Law of Promissory Notes, by Dr. Kühns. Practical Exercises in German Law, by Professor Beseler. Public and Private Rights of German Sovereigns, by Professors Beseler and Holt zendorff. German Constitutional Law, by Professor Daniels. Church and State, by Friedberg. Practical Exercises in State Law, by Professor Holtzendorff. International Law, by Professo's Heffter and Holtzendorff. Civil Procedure, according to the Common Law of Germany and the Prussian Code, by Professors Heffter and Bruns. The same, including also the Code Napoleon (for the Rhine provinces), by Dr. Hinschius. Practical Exercises in Procedure, by Dr. Hinschlus. Criminal Law, by Professors Gniest and Berner. Criminal Procedure, by Professors Heffter, Gneist and Berner. Practical Exercises in Criminal Law, by Professor Berner. The Death Penalty, by Professor Holtzendorff. Penitentiary System, the same. Prussian Code, by Professors Daniels and Heydemann. Special Questions under the Prussian Code, by Professor Heydemann. Franco-Rhenish Rights of Real Property between Husband and Wife, by Professor Daniels. English Constitutional History, by Professor Gneist. The total number of professors and doctors (Privat-docenten) on the list is twenty-one. A few qualifying and explanatory remarks will not be superfluous. In the first place, not all the lectures announced, especially at a university like Berlin, are actually read. The professor, or Privatdocent, upon whom has been conferred the venias docendi, the privilege of lecturing, is held to announce at least one publice each semester. But if auditors fail to present themselves in sufficient num⚫bers, as not infrequently happens, the course is not delivered, the lecturer is exonerated. This may seem an odd procedure, but the explanation is not remote. A German university faculty consists of professors (either regular or extraordinary), and Privat-docenten, who are nothing more than candidates for professorships. The university looks to its professors for bearing the burden of instruction; the Privat-docenten keep the professors up to the mark by competing with them. A Privat-docent is free to lecture on any topic connected with his department, even although a course of lectures on that same topic may have been announced by a professor. The reader will observe that the above list contains several instances of such direct competition. But ordinarily the Privat-docent prefers to compete indirectly, as it were, by reading on some special topic that is not taken up by any of the professors. These special-topic lectures are the germs of future essays and monographs; after the Privat-docent has worked his lectures into the proper shape by repeated readings, he publishes them in book-form, with a view to wider reputation, and a "call." But if the topic is too remote, too special, the lecturer will not find hearers. In fact, a professor, or even a Privatdocent, whose reputation is already established, and whose time is occupied with pricatim lectures, will purposely select a very special topic, so as not to attract hearers and yet comply with the regulations. On general principles, then, I should say that twenty per cent. of the lectures announced in the above list were not read. On the other hand, the reader should bear in mind that it was the summer semester, which is always and everywhere "lighter" than the winter. I am inclined to believe that we should get the actual amount of winter work by restoring the twenty per cent. Legal Profession in Germany. The study of law in Germany is treated seriously. No one is admitted to the bar or to the bench who has not been through the full university course. This of itself presupposes the gymnasial course. The consequence is that every practitioner and every judge, down to the humblest justice of the peace, has had a thorough classical and legal education. Can we wonder, then, at the pride with which Germany points to her judicial system, and the scarcely concealed disdain with which she looks down upon the uncertainty and circumlocution of the English and the American? It is not my purpose to draw invidious comparisons. It must be admitted that our best judges and our best lawyers will compare favorably with those of any land. But the world is not made up of best men. Allowances are to be made for respectable mediocrity. Here it is that the superiority of the German system, as a system, over our want of system, becomes manifest. That system is briefly as follows. A young German wishing to fit himself for the profession must first acquire the broad general culture of the gymnasium. In the next place, he must attend the university at least three full years, six half-years, and hear certain prescribed lectures, say eighteen or twenty in all. He need not hear them in any prescribed order, but he must hear them at some time. He need not pass the university examination, but he must pass the Staats-examen, which is a serious matter. This state-examination is conducted after a peculiarly German fashion. The candidate presents himself to the Court of Appeals of the state or province, bringing with him his gymnasial and university certificates. The court assigns to him two schriftliche Arbeiten, that is, two cases which have actually come up on appeal, and upon which he must give a reference. He gets fac-similes of all the papers in each case, from the original summons down to the final appeal in error, and also all the evidence. In his reference he must review every point taken on both sides, whether of law or of fact, whether controverted or not. In short, he must subject each case to an exhaustive theoretical analysis, and submit his reports in writing. This is a labor of several months. After the schriftliche Arbeiten have been read and approved by the Court, the candidate is admitted to an oral examination, which lasts from two to three hours. This second ordeal over, he becomes an Auditor. That is to say, he is assigned to some one of the higher courts (Obergerichte) as a compulsory listener to all the proceedings for two years. At the end of the two. years, he has his choice either to pass his second examination then and be admitted to practice, or to wait two years longer as Assessor, that is, as one who sits on the bench with the judges, but has no vote, and then pass a final examination as a candidate for judicial appointment. A German state, it is evident, does not regard either the practice or the administration of the law as something to be "picked up." While it is perfectly true that no amount of teaching and examining will make a lawyer of a man whom nature intended for something else, yet it can scarcely be doubted that the German system works admirably in suppressing shysters, pettifogers, and low-lived individuals of all sorts. One cannot take the first step toward entering the profession without having acquired some substantial knowledge, some elements of culture and breeding. The law itself in Germany has its defects, obvious and grave ones; but these spring from the political and social organization of the country, and are not due especially to the bench or the bar. The whole tendency of the German system is to develop a body of enlightened, upright jurists, and to make the course of justice prompt and inexpensive. The judges, holding their office by royal appointment, and utterly indifferent to so-called public opinion, watch the lawyers very sharply and compel them to expedite matters. Besides, they regard themselves more as equitable umpires, than as judges in our sense. They try as much as possible to bring about compromises, and go far more than our judges into the real merits of the case. A judge, according to the English or American system, contents himself with passing his opinion on points that have been expressly raised; in Germany he will often take cognizance of points that have not been raised. In other words, he regards the equitable rights of the client as the main thing, and is not disposed to let them be sacrificed through the laches or ignorance of the attorney. Preparatory Study for Legal Practice. Having thus given a brief outline of the way in which law is studied in Germany, I must say a few words about the substance of the instruction, rescrving a fuller discussion of it for a subsequent chapter. The law of Germany has a threefold origin: it is either Roman, or German, or the product of recent legislation. By Roman law is meant that set of rules and principles which is contained in the Corpus juris civilis, the codification made at Constantinople in the sixth century by order of the Emperor Justinian. To explain how the corpus juris came to be adopted in Germany, would lead me too far out of my way. The adoption grew out of the intimate political relations existing between Germany and Italy, where the old Roman Law, as Savigny has shown, had never gone out of use. It was begun under the Hohenstaufen or Swabian dynasty, but proceeded very slowly, and was not thoroughly completed even at the advent of the Reformation. Its career was a prolonged struggle between the "illiterate" law of the folk and the subtleties of the clerks and doctors at the seats of learning. A somewhat similar phenomenon, but attended with very different results, may be observed in the course of English Common Law. The Canonists and Civilians of Oxford tried to introduce the corpus juris into England, and came nearer to success than is commonly known. In Germany, the passages of the corpus juris not annotated by the Glossators of the Italian school are not regarded as received. But these are few in number. Practically, the corpus juris may be said to have been adopted entire by the common consent and common practice of the German mediæval courts, so that the presumption is in its favor. Whoever attempts to controvert the applicability of any one annotated passage must show either that it has been specifically rejected, or that it has been |