roman jurisprudence history possession life modern born
SAVIGNY, FRIEDRICH Cum Vox (1779-1861), was born at Frankfort-on-the-Main on February 21, 1779. He was descended from an ancient family, which figures in the history of Lorraine, and which derived its name from the castle of Savigny near Charmes in the valley of the Moselle. When Lorraine passed into the possession of France, his family attached itself to Germany, and his ancestors filled important official posts in Nassau and other German states. His great-grandfather wrote a work, La Dissolution de la Manion, as a protest against the conquests of Louis XIV. ; his grandfather was " Regierungsdirector " at Zweibriieken, and his father was a noble of the empire and "Kreisgesandter " of several princes of the diet of the circle of the Upper Rhine. His father, Carl Ludwig von Savigny, died in 1791, his mother in 1792, and he was brought up and educated by his guardian, Herr von Neurath, assessor of the Reichskammergericht or imperial chamber at Wetzlar, a master of the "Staatsrecht" of the time.
In 1795 Savigny went to study at Marburg, and derived great advantage, as is gratefully recorded by him, from the teaching and friendship of Professors Weis and Bauer. For six months he studied at Giittingen. It is noted as a curious circumstance that, though Hugo, the great civilian, was there lecturing, Savigny did not attend his course. He suffered much for two or three years from ill-health. Savigny visited, after the fashion of German students, Jena, Leipsic, and Halle ; and he returned to Marburg, where, on December 31, 1800, he took his doctor's degree. His inaugural dissertation was entitled De Ccncursu Delictorum Forntali.1 At Marburg he lectured as privat-docent on criminal law, the pandects, the law of succession, obligations, and the methodology of law. In 1803 he published his famous treatise, Des Recht des Besitzes, or the right of possession. It was at once hailed by Thibaut as a masterpiece ; jurists recognized that the old uncritical study of Roman law was at an end. It quickly obtained a European reputation, and still remains a prominent landmark in the history of jurisprudence. It was the fountain-head of a stream of literature which has not yet ceased to flow. Austin, no partial judge, pronounced it to be " of all books upon law, the most consummate and masterly." In 1804 Savigny married Kunigunde Brentano, the sister of Bettina von Arnim and Clemens Brentano the poet. In that year he visited Paris, chiefly with a view to make researches in the National Library into the life of the jurist Cujas, whom he greatly admired. In a letter to be found in his miscellaneous works he explains the ground of his admiration. "Dans Phistoire de la jurisprudence moderne, it n'y a pas d'epoque plus brilliants que cello du 16'n° siècle. C'est alors que la science du droit eut veritablement un grand et noble caractere qu'elle n'a pas retrouve depuis." A story not without significance as to his character relates to this period of his life. On his way to Paris, a box containing papers in which were the results of laborious researches was stolen from his carriage. He bore the loss with equanimity, and managed with the assistance of Jacob Grimm, his wife, and one of her sisters to do much to repair the loss.
In 1808 he was appointed by the Bavarian Government ordinary professor of Roman law at Landshut, where he remained a year and a half, and where he left many pleasant memories. In 1810 he was called, chiefly at the instance of William von Humboldt, to Berlin to fill the chair of Roman law, and assist in organizing the new university. One of his services was to create, in con In 1815 he founded, with Eichhorn and Giischen, the Zeitsehrift fur geschichtliche Rechtswissenschaft, the organ of the new historical school, of which he was the representative. In 1816, while on his way to Rome as envoy of Prussia, Niebuhr made at Verona the celebrated discovery of the lost text of Gaius. He communicated to Savigny the fact, and also his conjecture that it was the work of Ulpian. Savigny made known the discovery to the world in an article in the Zeitschrift, and pointed out Gaius as the real author. Goschen, Bekker, and Hollweg actually deciphered the manuscript; but there is some truth in Hugo :s saying, " Without Savigny one would not have had Gains."
The record of the remainder of Savigny's life consists of little else than a list of the merited honours which he received at the hands of his sovereign, and of the works which he published with indefatigable activity.
In 1815 appeared the first volume of his Geschichte des Romischen Rechts int 2littelalter ; the last did not appear until 1831. This work, to which his early instructor, Weis, had first prompted him, was originally intended to be a literary history of Roman law from Irnerius to the present time. His design was in some respect narrowed ; in others it was widened. He saw fit not to continue the narrative beyond the 16th century, when the separation of nationalities disturbed the foundations of the science of law. His treatment of the subject was not merely that of a bibliographer ; it was philosophical. It revealed the continuity in the history of Roman law ; and it was an emphatic protest against the habit of viewing the law of a nation as an arbitrary creation, not connected with its history and condition. It was the parent of many valuable works which continued Savigny's investigations.8 In 1817 he was appointed a member of the commission for organizing the Prussian provincial estates, and also a member of the department of justice in the Staatsrath, and in 1819 he became a member of the supreme court of cessation and revision for the Rhine Provinces. In 1820 he was made a member of the commission for revising the Prussian code. In 1822 a serious nervous illness attacked Savigny, and compelled him to seek relief in travel. He always considered that he had benefited much by the homoeopathic treatment of Dr Necker, and he remained a firm believer in homosopathy. In 1835 he began his elaborate work on the modern system of Roman law. The eighth and last volume appeared in 1849.
In March 1842 he ceased to perform his duties as professor in order to become "Grosskanzler" of Prussia ; and in that position he carried out several important law reforms in regard to bills of exchange and divorce (a subject on which he had meditated much). He held that office until 1848, when he resigned, not altogether to the regret of his friends, who had seen his energies withdrawn from jurisprudence without being able to flatter themselves that he was a great statesman. In 1850, on the occasion of the jubilee of his obtaining his doctor's degree, appeared in five volumes his Vermischte Schriften, consisting of a collection of his minor works published between 1800 and 1844. This event gave rise to much enthusiasm throughout Germany in honour of "the great master" and founder of modern jurisprudence. Professor Scheurl, in his Einige Torte iiber Savigny, notes the fact that on the 31st of October Luther first revealed to the world the light of evangelical truth, and Savigny on that day began his work as a law reformer. In 1853 he pub- lished °his treatise on Obligations, a supplement to his system of modern Roman law. Savigny died at Berlin on October 25, 1861. His son, Carl Friedrich von Savigny, born September 19, 1814, was Prussian minister of foreign affairs in 1849. He represented Prussia in important diplomatic transactions, especially in 1866, and died February 11, 1875.
In the history of jurisprudence Savigny's great works are the Becht des Besitzcs and the Beruf unserer Zeit fiir Cesclzgebung.
The former marked an epoch in jurisprudence. Prof. Ihering says: "With the Becht des Besitzes was the juridical method of the Romans regained, and modern jurisprudence born." It marked a great advance both in results and method, and it tendered obsolete a large literature. Savigny sought to prove that in Roman law possession had always reference to usticapion or to interdicts, that it is not a right to continue in possession, but to immunity from violence, and that possession is based on the consciousness of unlimited power. These and other propositions were maintained with great acuteness and unequalled ingenuity in interpreting and harmonizing the Roman jurists. The book also seeks to solve the problem of generalinterest, common to almost every system of jurisprudence, why possession, rightful or wrongful, as distinguished from property, should be protected. This general problem suffers by being almost solely discussed with reference to Roman law. His leading principle, that every "exercise of force " is illegal, is not incontestible, and, if true, it does not clear up the whole problem. The attempt to treat the historical accidents of Roman law as juridical necessities is the weak side of a work in other respects masterly ; and there is a difficulty in understanding Austin's eulogy that it was of all books he knew " the least alloyed with error and imperfection." The controversy which has been carried on in Germany by Ihering, Baron, Gans, and Bruns shows that many of Savigny's conclusions have not been accepted.' The Beruf lingerer Zeit expresses the idea, unfamiliar in 1814, that law is part and parcel of national life, and combats the notion, too much assumed by French jurists, especially in last century, and countenanced in practice by Bentham, that law might be arbitrarily imposed on a country irrespective of its state of civilization and past history. Of even greater value than his services in founding or consolidating "the historical school of jurisprudence" is the emphatic recognition in his works of the fact that the practice and theory of jurisprudence cannot be divorced without injury to both. Writing at a time when the influence of Hegel was in the ascendant, and in a city where ho was official philosopher, Savigny was not carried away by metaphysical theories. In all his writings there is not a word betraying acquaintance with the labours of his great contemporary, Bentham; nor had Bentham more than the most superficial knowledge of him (see Gans's Riickblicke auf Personen). Perhaps a study of both would do more than anything else to aid in the construction of a true science of jurisprudence, consisting neither of platitudes and logomachies nor of a worthless catalogue of legal curiosities. (J. Mt.)