into the error of asserting that all law is consciously created to attain ends distinctly discerned: the ends which society strives to realize are not all "subjective," i.e., consciously formulated; "objective" ends play a great part.

It is not easy for men of English blood and traditions to realize the necessity of the task which Jhering had undertaken. The point of view which we naturally take was expressed, a year or so after the appearance of the first volume of the Teleology of Law, by an American fellow-student in Göttingen. “Is it not odd,” he said to me, "that Jhering should be writing a big book to prove what no English or American lawyer would dispute?" A few months earlier, however, I had received striking evidence that what is self-evident to an Anglo-Saxon is not necessarily self-evident to a German. I had had a conversation at Berlin with an elderly German friend — a judge, for many years, of the highest Prussian appellate court. This gentleman had shown a kindly interest in my studies and plans, and to him I spoke of my intention to spend the following semester at Göttingen, for the sake of hearing Jhering. "For heaven's sake," said the judge, "don't do it. Jhering will mix you all up. His Geist was a clever book, but his Zweck is all nonsense [dummes Zeug].”

During the years devoted to his Teleology and to the books that branched out from that main stem, Jhering did not devote all his leisure to fighting philosophy with philosophy. He recurred more than once to his earlier and more congenial mode of attack ridendo dicere verum. The authorship of the Confidential Letters had ceased to be a secret, and a second series had been solicited and promised as early as 1872. In 1880 Jhering redeemed his pledge in a series of "feuilleton" articles, as he himself described them, which were published at Vienna in the Juristische Blätter under the running title: Chats of a Romanist.1 These essays dealt entirely with questions of Roman legal history; and while the practical point of view, the consideration of the "end" subserved, is constantly utilized for

1 Plaudereien eines Romanisten. Reprinted in Scherz und Ernst (1885), pp. 121-243.

the better understanding of the rules discussed, the Chats are more akin to Jhering's Spirit of the Roman Law than to his Teleology; they rather form a part of his constructive work in legal history than of his polemic against abstract jurisprudence. But when, after the appearance of the second volume of the Teleology, he was urged to republish both the Letters and the Chats, he rounded them into a book-Jest and Earnest by adding new matter,1 in which he returned to the theme of the Letters. Employing the time-honored machinery of the dream, Jhering depicts himself as a newly disembodied spirit, transported by the double title of Romanist and theorist to "the juristic heaven of concepts." This lies far beyond the solar system, in outer darkness. "The sun," his guide informs him, "is the source of all life, but concepts cannot accommodate themselves to life: they need a world of their own in which they may exist for themselves solely, remote from all contact with life." The obscurity of this heaven is no disadvantage to the theorist "even on earth his eyes have been trained to see in the dark." Candidates for admission must first pass through quarantine for the removal of any trace of earthly air, and they receive, if necessary, a draught from a spring whose waters efface all earthly points of view, but Jhering is assured that "very few who apply for admission here find it necessary to make use of it." The applicants come chiefly from Germany, and thence only of late years: Puchta was the first. They are for the most part Romanists, but Germanists and criminalists are also received, "provided they share with the Romanists. their faith in the sovereignty of concepts." Professors preponderate, but there are also "members of your Imperial Diet and your Houses of Deputies, whose belief that the world is ruled by abstract principles has remained, thank God, unshaken by your Bismarck." An examination is required for admission: it is indispensable that the candidate show "capacity to construct a legal institution purely from the texts or from the abstract concept, without any consideration of its real practical signifi

1 Im juristischen Begriffshimmel, ein Phantasiebild; Wieder auf Erden, wie soll es besser werden? Scherz und Ernst, pp. 247-383.

cance." Savigny very nearly failed: he was admitted, however, on the strength of his essay on possession, and because, by opposing codification, he had aided in maintaining Roman law in Germany. Arndts and Wächter were both rejected: Wächter's mind "moved always in the lower region of the practical"; and although Arndts had based his Pandects on Puchta, "he had made too many concessions to the needs of practical life at the cost of pure theory."

Before attempting the examination, Jhering finds that it is admissible to inspect the abode of the theorists, and of this opportunity he gladly avails himself. He examines the palæstra, or field for gymnastic exercises in construing, interpreting, etc.; the legal-historical academy, where defective inscriptions and corrupt texts are "restored"; the museum of pure concepts (which has no doors, and to enter which it is necessary mit dem Kopf gegen die Wand zu rennen); and the pathological cabinet, which displays these same concepts as they have been defaced and distorted on earth from the days of the Roman jurists down, through considerations of expediency. In the examination of these and other objects of interest, and in conversation with his guide and other blessed spirits, Jhering finds full opportunity to satirize his abstract contemporaries and their theories. Convincing himself, before long, that he does not belong in this heaven, Jhering finds that two other localities are open to him the heaven of the legal philosophers, where reason takes the place of abstract ideas, and the heaven of the practitioners. The former is the abode of the advocates of natural-law doctrines; and the information which Jhering receives concerning the examination held there and the confession of faith exacted of all applicants shows him that he cannot hope for admission to that paradise. He decides, accordingly, upon the heaven of the practitioners, and is conducted thither. As he knocks at the gate, he awakes.

In a closing section, from which I have already made citations,1 Jhering discusses seriously the evil results of an over-abstract jurisprudence, its causes and its remedies. The chief cause he

1 POLITICAL SCIENCE QUARTERLY, X, pp. 687 (December, 1895), et seq.

His rem

finds in an undue separation of theory and practice. edies are that the university teachers of law be required first to pass a number of years in the practical work of the courts, as assessors; that the case system of instruction be more largely employed in the universities, and that participation in the Practica be required of the students; that in the state examinations less stress be laid upon written themes and more upon the oral examination, and that in the latter more weight be attached to the solution of concrete cases. He is speaking, of course, of the state examinations for admission to the judicial service and to the bar, not of the academic examination for the doctorate. Two changes suggested by others he emphatically disapproves. The law professors are not to combine practice with instruction, nor is the three-year course of academic study to be lengthened. Three years, he thinks, are enough if properly employed.

Of the justification of Jhering's crusade against abstract jurisprudence of the necessity of such a reaction in Germany as he strove to produce I have already spoken. The tendency to undue abstraction was of course at no time universal: there were contemporaries of Jhering as practical as he himself could desire, and among them were professors (like Eck) who strove always to impress their students with the importance of the practical point of view. But the tendency which Jhering combated was certainly dominant, and Jhering made himself the most prominent champion of the opposite movement.

Of the effect of his opposition it is hard to form a definite judgment. That German legal science is to-day more practical than it was thirty years ago, no one who has followed its development ever so cursorily can for a moment question. But how far this change is due to Jhering's efforts, and how far it is due to the pressure of practical legislative problems in the new German Empire, is a question on which it would be rash to express an opinion. MUNROE SMITH.

SEEBOHM'S TRIBAL SYSTEM IN WALES.1

THA

2

HAT the appearance in 1883 of Mr. Frederic Seebohm's English Village Community opened a new period in the study of medieval social and economic history, no longer needs saying. That book did two things: it gave us a knowledge, such as we had not possessed before, of the daily life of the mass of the English people; and it created a presumption that the explanation then currently accepted of the genesis of those conditions was altogether inadequate. But it has to be confessed that it did not quite succeed in making clear to its readers the directions in which its author himself looked for a solution of the problem. It was understood that Mr. Seebohm abandoned the theory which traced back the manor to a free village community; it was frequently supposed that he substituted a purely "Roman" origin. This impression was a natural result of the emphasis Mr. Seebohm laid, and very properly laid, on the late-Roman villa and on its resemblance to the mediaval manor : it was confirmed by the natural association in many minds of Mr. Seebohm's name with that of M. Fustel de Coulanges. But a more careful reading will show that Mr. Seebohm was even then not disposed to find in the Roman villa the last word in the discussion. He will be found arguing that "the tribal system" of early Germany itself showed a tendency toward a manorial organization. The later "manor" may thus, as he frequently remarks, have had "a complex origin"— in German tribal conditions on the one side, as well as in Roman methods of estate management on the other. So far, however, as the argument in the English Village Community goes, the "tribal" element is looked for mainly in the German migration: and, as a result of an examination of early Celtic evidence, Mr. Seebohm goes so far as to say that "the pre-Roman tribal system in Britain was evidently not the parent" of the later manor."

3

1 The Tribal System in Wales, being part of an Inquiry into the Structure and Methods of Tribal Society. By FREDERIC SEEBOHM, LL.D., F.S.A. London and New York, Longmans, Green & Co., 1895.- 238 pp., and Appendix, 111 pp. 2 See, for instance, Vinogradoff, Villainage in England, p. 33; Digby, History of the Law of Real Property, Preface to fourth edition.

8 E.g., p. 345.

4

E.g., pp. xiv, 346, 414, and "compound product,” p. 422.

5 P. 252; cf. p. 345, "The Welsh system was not directly approaching the

manorial arrangement, except perhaps on the mensal land of the chiefs," and side