§ 2. indigenous German law and were entirely foreign to Roman law. A substantial portion of the native German private law thus held its ground notwithstanding the reception of the foreign system-for the most part, it is true, in the shape of special local laws, but in a few instances as part of the common law of Germany.

The private law which had sprung from German soil-German private law in the fullest sense of the word-had obviously as much claim to scientific treatment as the law of the Pandects. The latter, however, continued to engage the almost exclusive attention of students of private law in Germany down to the eighteenth century. But from the eighteenth century onwards 'German Private Law' (Deutsches Privatrecht)—as the new branch of legal study came to be called-definitely took its place in the legal curriculum side by side with the Pandect law. As distinguished from the books on the Pandects, which were concerned with the 'received' private law of foreign origin, the books on 'German Private Law' were concerned with the private law of Germany so far as it was of native origin. The subject-matter of 'German Private Law' accordingly comprised both the indigenous portions of the common private law of Germany— that is, besides the institutions already mentioned (family trusts, charges on land, and ‘Erbverträge,' supra, p. 3), the feudal law of the Lombards which had likewise been 'received'—and further those portions of the native law which had survived the reception in the shape of 'particular' laws. Inasmuch, however, as the native German law found its principal stay and refuge in these particular laws, 'German Private Law' became pre-eminently the general science of the various particular laws of Germany, as opposed to the 'Law of the Pandects,' which was the science of the common law of Germany.

Thus the private law of Germany was dealt with in two distinct branches of study corresponding to its twofold origin: first, in the 'Law of the Pandects,' and secondly, in 'German Private Law,' the former having for its subject the common private law of Roman origin, the latter the indigenous private law, existing for the most part only in the shape of 'particular' laws. Of the two branches the law of the Pandects was the older, the larger, and the more powerful. But the younger branch grew steadily in importance; inwardly it became

less and less dependent on its older rival, and as a result its outward § 2. power increased, so that it gradually became the stronghold of national legal ideas as against the claims of the foreign ideas. imported from Roman law.

§ 3. The Law of the Pandects and Codified Law.

The law of the Pandects had established itself in Germany as § 3. being the common private law of the so-called 'Holy Roman Empire of the German Nation.' The decline of the ancient Empire necessarily involved a decline of the authority attaching to the law of the Pandects.

From the eighteenth century onwards the initiative in regard to legislation was taken by the governments of the separate German states. Some of the legislatures, more especially those of the smaller states, contented themselves with legislating on single topics, that is, they confined themselves to working out the 'particular ' law of their respective states, leaving the subsidiary force of the common Pandect law within their territories untouched. In the larger states, however, the idea of a codification struck root, the idea, in other words, of recasting afresh the law as a whole, private law, criminal law, and the law of procedure. The formal effect of a codification is to set aside the existing law in its entirety, as far as the territory affected is concerned, and to substitute for all the laws transmitted from the past a single new code. The condition of the private law of Germany called for a remedy of this kind. The dualism of the private law, the antithesis between the common Roman law and the particular German law-which latter was of the most heterogeneous character— could only be removed by means of a new code which should fuse Roman and German law into one complete whole. But as long as no strong German Empire was forthcoming, the necessary momentum for such an achievement was lacking, and the task of codification therefore devolved on the separate legislatures of the larger German states. Thus it came about that the law was codified for considerable parts of Germany-the private law, as well as the criminal law and the law of procedure-and within these parts the law of the Pandects ceased henceforth to have the force of law.

§ 3. The whole of Germany was accordingly divided into two great territories corresponding to the form in which its private law presented itself. This division continued till January 1, 1900.

The territory of the law of the Pandects, or (as it was also called) the territory of the common law, was that portion of Germany in which Roman private law-in the form in which it had obtained recognition as the common law of Germany-maintained its formal validity and continued to be enforced, except where expressly altered by distinct local laws. This territory embraced Holstein with some parts of Schleswig', the Hanse towns, Lauenburg, Mecklenburg, part of Hither Pomerania (Neuvorpommern) and Rügen, the greater part of Hanover, Oldenburg (except the principality of Birkenfeld), Brunswick, the Thuringian duchies, Lippe-Detmold, Schaumburg-Lippe, Waldeck, the district of the former Appellate Court of Ehrenbreitstein, Hesse-Nassau, Hesse-Darmstadt (except Rhenish Hesse), Hohenzollern, Württemberg and Bavaria (except the Palatinate and the Franconian principalities). It constituted one large and continuous stretch of land, extending from SchleswigHolstein in the north to Bavaria in the south. In all these countries many laws had been enacted setting aside the rules of Roman private law, in some parts but sparingly, in others on a larger scale. But the force of Roman private law as a subsidiary common law remained unaffected throughout the whole of this territory, in other words, it continued to be valid in all cases where not directly overridden by the contrary provisions of particular laws.

The territory of the codified private law was that territory where the formal validity of Roman private law had been set aside in favour of exhaustive local codes governing the entire private law of

In the greater part of Schleswig, the so-called 'Jütisch Low' of King Valdemar II of Denmark (A.D. 1240) was in force in the form of a Low German translation dating from the end of the sixteenth century. Roman law had never been 'received' in the territory governed by the Jütisch Low. Apart from isolated institutions to which it applied, it operated, for the rest, merely as a ratio scripta,' i. e. so far only as it gave expression to such requirements as sprang

the land. Nevertheless all these codes had, in substance, adopted § 3. a large number of the principles of Roman law. This territory comprised those portions of Germany which were governed by the Prussian Landrecht of 1794, the French Civil Code of 1804 (which was in force on the left bank of the Rhine, as well as in Baden in the shape of the Baden Landrecht of 1809), and the Royal Saxon Civil Code of 1863. In the western territories of the Austro-Hungarian Empire (on this side of the Leytha) the law of the Pandects prevailed till 1811, in which year it was superseded by the Austrian Civil Code. Almost the entire eastern half of Germany to the right of the Elbe, and the extreme west to the left of the Rhine, were already governed by civil codes.

The time for definitively putting an end to the legal authority of the Pandect law had now arrived.

§ 4. The German Civil Code.

On August 18, 1896, the German Civil Code, together with an § 4. Introductory Statute (Einführungsgesetz), was promulgated for the German Empire. It came into force on January 1, 1900. This date marks the final completion of a development extending over 400 years, and commencing, about 1500 A.D., with the reception of Roman law in Germany.

We have already referred to the formal effect of codifications as such (supra, p. 5). In the case of the German Civil Code the effect is to sweep away, in its entirety, the private law as it has heretofore existed in any part of Germany, whether common or particular private law,-the Imperial private law (based on the legislation of the new Empire) alone excepted. The Introductory Statute, however, contains (Article 56 ff.) certain express reservations in favour of the State private law, and to this extent the latter remain in force. Many of the legal rules embodied in the Code are indeed borrowed in substance from Roman law; formally, however, the common Pandect law as such ceased, as from January 1, 1900, to have the force of law for any part of Germany.

A strong central power was needed to carry through the task of codification. Such a power was found in the new German

§ 4. Empire. The condition of the private law of Germany-repre

sented, on the one hand, by a motley collection of petty local laws devoid of vital force, and, on the other hand, by a foreign code which, though speaking in a foreign tongue and in many respects obsolete, was nevertheless clothed with statutory authority-stood in urgent need of reform. The separate codifications, so far from removing the difficulties caused by the multiplicity of particular laws, had merely aggravated them. The territories where the private law had been codified were inevitably out of immediate touch with the national jurisprudence, whose energies continued to be devoted to the common law. In order to give formal unity to the private law of Germany, and at the same time to create a body of law, endowed with true vital force and capable, by its inherent strength, of attracting the genius of German scientific research, a German Civil Code was required. This, accordingly, was the task which devolved on the new Imperial legislature when the German Empire had at last been re-established.

Early in the sixteenth century Roman law had been received in Germany; four hundred years later-such are the changes wrought by time-it was abolished. But the law of the Pandects, though now dethroned from the commanding position it has so long held in Germany, has served a useful purpose. Roman law was, so to speak, the taskmaster under whose discipline the law of modern Germany became what it is. For the transition from Roman civil law to a German civil law, from the reception of Roman law to its supersession, marks a process of steady advance in the inward development of the law of Germany. The new Code does not re-introduce mediaeval German law. The private law which it contains is essentially modern private law, in which legal conceptions of native growth, dating back to the oldest times, are combined with the results achieved in working out the Pandect law, and with modern ideas on the principles which should regulate human intercourse. The Holy Roman Empire, in its impotence, had to take refuge in the private law of Rome. The new birth of the German Empire has resulted in a new birth of the private law of Germany. After passing through a Roman, a German, and a modern stage,