Page:Encyclopædia Britannica, Ninth Edition, v. 21.djvu/346

Rh 326 SAVIGNY SAVTGNY, FRIEDRICH CARL VON (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 Ger- many, and his ancestors filled important official posts in Nassau and other German states. His great-grandfather wrote a work, La Dissolution de la Reunion, as a protest against the conquests of Louis XIV. ; his grandfather was " Regierungsdirector " at Zweibriicken, 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 Reichs- kammergericht 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 Gottingen. 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 cf 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 Concursu Delictorum Formali. 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, Das Recht des esitees, 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, pro- nounced it to be " of all books upon law, the most con- summate and masterly." In 1804 Savigny married Kuni- gunde 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 miscel- laneous works he explains the ground of his admiration. " Dans I'histoire de la jurisprudence moderne, il n'y a pas d'epoque plus brilliante que celle du 16" 16 siecle. C'est alors que la science du droit eut v^ritablement 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 re- pair 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- 1 The object of his investigation is thus described: "Delicta concurrere dicuntur, ubi de pluribus legum violationibus, quarum nonnisi unus est reus, in eodem judicio puniendis agitur." nexion with the law faculty, a " Spruch-Collegiura," or university court, competent to deal with cases remitted to it by the ordinary courts ; and he took an active part in its labours. This was the busiest time of his life. He was engaged in lecturing, in the government of the uni- versity (of which he was the third rector), and as tutor to the crown prince in Roman, criminal, and Prussian law. Not the least important consequence of his residence in Berlin was his friendship with Niebuhr and Eichhorn. In 1814 appeared his pamphlet Vom Beruf unserer Zeit filr Gesetzgebimg vnd Rechtsioissenschaft. It was a protest against the demand for codification, and in particular against the extension of the Code Napoleon to Germany. Fired with the hope that a day of resurrection for the national life of Germany was at hand, Thibaut had written a pamphlet urging the necessity of forming a code for Germany. Savigny wrote a reply, in which were laid down some principles with which wise advocates of codi- fication might well agree. "I regard," he said, "the law of each country as a member of its body, not as a garment merely which has been made to please the fancy, and can be taken off at pleasure and exchanged for another." He laid stress upon the connexion of the present and the past and the consequent limitations of the power of legis- lation. But in the course of his argument he confounded the errors of codifiers in France, Austria, and Prussia, and especially the defects in the Code Napoleon, with the necessary incidents of codification. Put at its highest, his argument comes to little more than others had before crudely expressed by saying, " We are not wise enough to compose a code." 2 In 1815 he founded, with Eichhorn and Goschen, the Zeitschrift fur geschicJMiche RechtswissenscJiaft, the organ of the new historical school, of which he was the represen- tative. In 1816, while on his way to Rome as envoy of Prussia, Niebuhr made at Verona the celebrated dis- covery 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 Holl- weg actually deciphered the manuscript; but there is some truth in Hugo's saying, "Without Savigny one would not have had Gaius." 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 im Hittelalter ; the last did not appear until 1831. This work, to which his early instructor, Weis, had 6rst 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 con- tinuity 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 con- dition. It was the parent of many valuable works which continued Savigny's investigations. 3 In 1817 he was ap- pointed 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 2 See Austin's criticisms in Lectures, ii. 698. 3 See Von Mohl's Siaatswissenschafi, vol. iii. p. 55. For a some- what les favourable view, see Gans's Vermischte Schriften.