Germanic law

“ Moreover, the laws that were written in England were, from the first, written in the English tongue; and this gives them a unique value in the eyes of students of Germanic folk-law, for even the very ancient and barbarous Lex Salica is a Latin document, though many old Frankish words are enshrined in it. Also we notice—and this is of grave importance—that in England there are no vestiges of any “Romani” who are being suffered to live under their own law by their Teutonic rulers. ”

“ In the statutes therefore, we find four different legislations, contending, as it were, with one another: the Longobard, the Roman, the Feudal and the Canon law. These, however, may almost be reduced to two, seeing that feudal law is Germanic, and canon law, in so far as it affects the statutes, is mainly Roman. So that here again403 we are met by the old hostility between Germans and Latins. The two races are opposed, as also their institutions, laws, and ideas; their minds seem to challenge one another wherever they meet, whether in the field of letters, politics, or art. ”

“ In the same spirit, the general usage of the old Germanic peoples—it is remarkable that the Anglo-Saxon customs seem to have been an exception—forbade alienations without the consent of the male children ”

“ Even the mastership of the rolls, which had been held by doctors of Padua and Bologna, fell to the common lawyers. Thomas Hannibal, master of the rolls (1523-1527) , must, one would think, have been an Italian, as were the king’s Latin secretaries Andrea Ammonio and Pietro Vannes.
The heathenry of the Digest. [19] See Janssen, Geschichte des deutschen Volkes, vol. I., pp. 471-501, where the cry of ‘heathenry!’ is raised against the civil law. Janssen’s attempt to praise the canon law as radically Germanic while blaming the ‘absolutistic’ tendencies of the civil law seems strange. ”

“ It is the peculiarity of most of these German laws, in the only shape in which we know them, that, besides the allod or domain of each household, they recognise several subordinate kinds or orders of property, each of which probably represents a separate transfusion of Roman principles into the primitive body of Teutonic usage. The primitive German or allodial property is strictly reserved to the kindred. Not only is it incapable of being disposed of by testament but it is scarcely capable of being alienated by conveyance inter vivos. ”

“ How various have been the lawgivers who have dominated over the lives of individuals--the Jewish priests, the community of apostles, the Jurist schools of ancient Rome, the Longobard kings and the ambitious popes; and, again, together with laws which had originated in past ages and nations, there were the reminiscences from German antiquity--legal decisions, ordinances, codes of law, regulations and privileges. According to their decisions a man preserved or lost his house and farm, wife and child, and his property, either inherited or acquired. ”

“ Another circumstance contributed to Latinize the German races outside of Germany. After the invention of a Gothic alphabet by Bishop Ulfila, and his translation of the Bible, we hear no more of a written German language until the eighth century. There was at least none which was accessible to the people, and the Latin continued to be the language of government and religion. The priests were nearly all Romans, and their interest was to prevent the use of written Germanic tongues. Such learning as remained to the world was of course only to be acquired through a knowledge of Latin and Greek. ”

“ And here we have always been governed by town-meeting, as the old Teutons were, whereas the modern German is only now getting this back by borrowing it from the English precedent. In our private litigations we continue to abide by the customs of our remote Teutonic ancestors, while the German has accepted as a legal guide the Roman law, wrought out by the countrymen of Tacitus.
Second only to a community of language, no unifying force is more potent than a community of law. ”

“ I have already given reasons for anticipating that the French language may not only hold its own, but prevail against German in Western Europe. And there are certain other obstacles in the way even of the union of indisputable Germans. One element in Germany's present efficiency must become more and more of an encumbrance as the years pass. The Germanic idea is deeply interwoven with the traditional Empire and with the martinet methods of the Prussian monarchy. The intellectual development of the Germans is defined to a very large extent by a court-directed officialdom. ”

“ These codes make up the "Laws of the Barbarians," which form our most important source of knowledge of the habits and ideas of the Germans at the time of the invasions. [22] For several centuries following the conquest, the members of the various German tribes appear to have been judged by the laws of the particular people to [Pg 41] which they belonged. The older inhabitants of the Empire, on the contrary, continued to have their lawsuits decided according to the Roman law. This survived all through the Middle Ages in southern Europe, where the Germans were few. ”

“ Can one imagine that in Berlin an Italian or a South American, with very little knowledge of the German language, would be not only entrusted with the management of leading banks and companies, but would be allowed in German clubs to lay down—in their faulty German—the law as to the way in which Germany should be developed? ”

“ All the glory and all the disgrace of our race lies in the power of individualizing which is divinely breathed into our veins. As a natural element, if this be not controlled, it degenerates easily into intractableness, into violence. The Germans need therefore, in order to be educated, severe service, the imposition of difficult tasks; and for this reason they appropriate to themselves, now the Roman law, now the Greek philology, now Gallic usages, &c., in order to work off their superfluous strength in such opposition. The natural reserve of the German found its solvent in Christianity. ”

“ Those doctrines are worked out in careful correspondence with German views of Roman law. And most of the speculative jurists of Germany, from Savigny to Ihering, have been at once professors of Roman law, and profoundly influenced if not controlled by some form of Kantian or post-Kantian philosophy. Thus everything has combined to give a special bent to German speculation, which deprives it of its claim to universal authority.
Why is possession protected by the law, when the possessor is not also an owner? That is the general problem which has much exercised the German mind. ”

“ An incessant conflict has been waging in Germany between the Roman Law of the Empire and the native law as perpetuated in the special enactments of the separate provinces and municipalities. During the sixteenth and seventeenth centuries the preponderance of power lay with the Roman system, which was further supported by the German science of jurisprudence— a science identified exclusively with the common law of Rome. Science looked upon the native systems of legal procedure as irrational and barbarous ”

“ The significance of this law itself can indeed be comprehended as a whole, as we have comprehended it by the instance of the Germans as an original people; it can even be better understood in many of its further provisions by considering the manifestations of such a people; but it can never be completely grasped by the mind of anyone, for everyone continually remains under its influence unknown to himself, although, in general, it can be clearly seen that such a law exists. ”

“ And he assimilates changes in law to changes in language. “As in the life of individual men no moment of complete stillness is experienced, but a constant organic development, such also is the case in the life of nations, and in every individual element in which this collective life consists; so we find in language a constant formation and development, and in the same way in law.” German jurisprudence is darkened by metaphysical thought, and weakened, as we believe, by defective analysis of positive law. ”

“ German was to become the language of central Europe. Interposed between the territories of Romanic and Slavic languages, the area of German speech occupies a magnificently commanding position. Originally the language spoken west of the Elbe and Saale rivers, it had advanced considerably to the east in the first century of the Christian era. The imposition of Teutonic language on Slavic populations is one of the results of this ancient expansion of Germanic peoples. During the past thousand years very little change in the distribution of the main German dialects is believed to have taken place. ”

“ This was the time when Roman law was [8] driving German law out of Germany or forcing it to conceal itself in humble forms and obscure corners [12] . If this was the age of the Renaissance and the age of the Reformation, it was also the age of the ‘Reception.’ I need not say that this Reception—the reception of Roman law—plays a large part in modern versions of German history, and by no means only in such as are written by lawyers. ”

“ Those German peoples who had continued to live outside of the Roman Empire, or who, during the invasions, had not settled far enough within its bounds to be led, like the Franks in Gaul, to adopt the tongue of those they had conquered, naturally adhered to the language they had always used, namely, the particular Germanic dialect which their forefathers had spoken for untold generations. From the various languages spoken by the German barbarians, modern German, English, Dutch, Swedish, Norwegian, Danish, and Icelandic are derived. ”

“ Within the limits of Germany itself, there was, as we have seen, no united nationality. Even the consolidation of the smaller tribes under the names of Goths, Franks, Saxons and Alemanni, during the third century, was only the beginning of a new political development which was not continued upon German soil. With the exception of Denmark, Sweden, Russia, Ireland, Wales, the Scottish Highlands, and the Byzantine territory in Turkey, Greece and Italy, all Europe was under Germanic rule at the end of the Migration of the Races, in the year 570. ”

“ These Normans, who in Neustria had lost their old Teutonic tongue so rapidly, kept in England their new Latin tongue for some three centuries. It was Edward the Third’s reign before English came to be used in law-pleadings and spoken at court. Why this difference? Both in Neustria and in England the Normans were a handful; but in Neustria, as Teutons, they were in contact with a more advanced civilisation than their own; in England, as Latins, with a less advanced. The Latinised Normans in England had the sense for fact, which the Celts had not ”

“ Let us look both at the alleged natural law and the German creature so camouflaged by it that he deceives himself into believing that he is really the superman that his philosophy paints him. For it is quite true that many Germans, many educated Germans, do believe what they say of themselves and of their Holy Crusade under the banner of Natural Law. ”

“ For he who has sinned against the German language has desecrated the mystery of all our Germanity. Throughout all the confusion and the changes of races and of customs, the German language alone, as though possessed of some supernatural charm, has saved herself; and with her own salvation she has wrought that of the spirit of Germany. She alone holds the warrant for this spirit in future ages, provided she be not destroyed at the sacrilegious hands of the modern world. ”

“ A man must first and foremost be "German," he must belong to "the race"; then only can he pass judgment upon all values and lack of values in history—then only can he establish them.... To be German is in itself an argument, "Germany, Germany above all," [4] is a principle; the Germans [Pg 124] stand for the "moral order of the universe" in history; compared with the Roman Empire, they are the up-holders of freedom; compared with the eighteenth century, they are the restorers of morality, of the "Categorical Imperative." ”

“ Her soil is the original birthplace of those motive powers of character, those mental tendencies and those ideal aspirations which most distinguish the Germanic race from others—peculiarities common to Germanic peoples which more or less distinctly reveal themselves in their fundamental conceptions of right and wrong, their collective consciences, their ideals of liberty, their methods of truth-seeking, their philosophies and an almost endless variety of things denoting common instincts. ”

“ As a people made up of the most extraordinary mixing and mingling of races, perhaps even with a preponderance of the pre-Aryan element as the "people of the centre" in every sense of the term, the Germans are more intangible, more ample, more contradictory, more unknown, more incalculable, more surprising, and even more terrifying than other peoples are to themselves:--they escape DEFINITION, and are thereby alone the despair of the French. It IS characteristic of the Germans that the question: "What is German?" never dies out among them. ”

“ There are here and there a few enthusiastic champions of dialects, particularly of Low-German, who still cherish a hope that High-German may be thrown back, and Low-German restored to its rights and former dominion. Yet, whatever may be thought of the relative excellences of High and Low German,—and in several points, no doubt, Low-German has the advantage of High-German,—yet, practically, the battle between the two is decided, and cannot now be renewed. The national language of Germany, whether in the South or the North, will always be the German of Luther, Lessing, Schiller, and Goethe. ”