Fritz Schulz (1879–1957)
Fritz Schulz (1879–1957)
Abstract and Keywords
Fritz Schulz (1879–1957) was one of the most successful Roman law scholars in Germany when the Nazi rule ended his career in 1933. Forced into early retirement, he and his wife held out in Germany until 1939, when they escaped first to Leiden (The Netherlands) and then, by a narrow margin, to Oxford. There the family was kept afloat by a patchwork of support, coming mainly from Oxford University Press, whose Kenneth Sisam unlocked funds of the American Rockefeller Foundation for a full range of outstanding émigré scholars, from Balliol College and friends like F. A. Mann. Free from professorial duties, Schulz wrote two remarkable books, widely translated and reprinted ever since. He was the first to understand the Roman lawyers' writings as expressions of a professional, ‘scientific’ activity, opening up Roman law as a field for the study of history of science.
I. From Bunzlau to Freiburg im Breisgau (1879–1906) 106
II. The Cursus Honorum (1906–1932) 114
III. The Catastrophe (1933–1938) 122
IV. Escape to Freedom (1939) 144
V. Oxford (1939–1946) 160
VI. English Publications 171
VII. The Late Years (1947–1957) 187
VIII. Honesty, Independence, and Willingness to Admit Ignorance 196
IX. Appendix 198
X. Sources 202
The more honestly we attempt to compute the number and quality of the things wherein the value of life consists even in our own generation and at our own doors, the more complex and difficult does such a calculation appear. How much less then, shall we be able to pluck out the innumerable secrets of the past, count them [and] weigh them … (G. M. Trevelyan)
Denn dies scheint mir die Hauptaufgabe der Biographie zu sein, den Menschen in seinen Zeitverhaltnissen darzustellen.1 (J. W. Goethe)
I. From Bunzlau to Freiburg im Breisgau (1879–1906)
1. Family background and early years
Fritz Heinrich Schulz was born on 16 June 1879 in Bunzlau, Lower Silesia (now Boleslawiec in Poland).2 He was the second child of (Johann August) Julius Schulz (11 May 1848–31 May 1897) and Clara Maria Landsberger, daughter of the well-to-do merchant Meier Landsberger (3 August 1852–10 December 1930) from neighbouring Lowenberg (now Lwowek Slaski). Julius Schulz, sensing that the home-shop weaving of his paternal ancestors in Halbau (now Ilowa)3 had little future, obtained a job in a modern spinning factory in Bunzlau4 and quickly rose from workman to director. The factory was English-owned5 and at some time Julius Schulz was called to the old woollen mill town of Bradford on Avon to receive advanced training. He brought some English habits home.6 Julius Schulz's family rose in society.7 He was elected a member of the (p.107) city council of Bunzlau. While the Schulzes were Protestants (a religion Fritz Schulz's own family would continue to adhere to), the Landsbergers’ religion was Jewish. Schulz's mother became a Christian in 1888.8 Fritz had five younger siblings, Käthe, Else, Marie, Max, and Hans. Käthe (born 9 May 1878) and Else (born 12 June 1880) died as infants. Marie (16 September 1882–19 January 1935) studied classics and then worked as a teacher and headteacher in Gera, where she became a member of the Landtag of Thüringen for the Deutsche Demokratische Partei (DDP).9 Hans (‘Johannes Paul’, born 6 June 1886), whom Fritz considered to be the brightest of the four, after his Habilitation in 1910 became Privatdozent of Germanic Philology at the University of Freiburg im Breisgau. His Habilitationsschrift was devoted to Abraham a Santa Clara.10 Apart from many other works, most notably a German grammar which is still in print,11 he conceived the Deutsches Fremdwörterbuch 12 and finished the initial volume of what is now a seven-volume standard work of reference.13 Hans Schulz was killed on the French front on 10 January 1915.14 Max (11 April 1885–16 December 1952) was to pursue a career in the Inland Revenue service. He married Margarethe Leist (born 2 April 1896), the daughter of Alexander Leist (1862–1918), Professor of Law at Gießen and Göttingen.15 After the Second World War, Max Schulz was appointed Director of the regional revenue authority (Oberfinanzdirektion) in Schleswig Holstein.
In 1897, when Fritz was not yet 18 years old, his father died of typhoid. His mother suffered a severe nervous breakdown and had to be hospitalized. Fritz was left with responsibility for his mother as well as for Marie, Max, and Hans, who were three, six, and seven years younger than him. In these circumstances it took him two more years to finish the Gymnasium of the Königliche Waisenund Schulanstalt at Bunzlau (Easter 1899).16 While he went to study law in (p.108) Berlin, he moved the rest of the family, including his mother,17 to Freiburg im Breisgau to improve access to university studies for his brothers and his sister.18 He successfully saw all three through university. Hans and Max took a doctorate, and so did Marie; a step which was quite unusual for women at the time.19 Moreover, Hans, Marie, and Fritz were mutually interested in their respective scholarly work—all three worked on subjects of textual history—and even collaborated to some degree.20 The Schulz family, established by Fritz Schulz in Freiburg, not distracted by riches or the goings-on of society, must have been fuelled, to an extraordinary degree, by intellectual ambitions. Fritz, Hans, and their sister Marie gravitated towards achievement in the intellectual world.
For Fritz Schulz the loss of his father and the burden of responsibility so suddenly placed on him was a most deeply felt shock. Although he was by nature obviously an up-beat man of high spirits, he also sensed, from his father's death onwards, disaster looming around every corner.21 With Housman, he probably could have said of his thoughts: ‘Mine were of trouble, and mine were steady, so I was ready when trouble came.’
2. The beginner
Fritz Schulz's main interest had been in music and he had intended to become a conductor.22 Owing to his father's early death, he abandoned these plans and decided to study law, assuming this would be more suitable in view of his responsibilities towards his mother and his siblings. (He continued to play the piano and compose until late in life.) Schulz enrolled in the law faculty of Berlin University in the summer of 1899 and studied until the winter of 1900/01 with Pernice,23 (p.109) Seckel,24 v. Martitz,25 Josef Kohler,26 and Martin Wolff.27 Schulz considered Pernice, Seckel, and Wolff as his main teachers.28 Among these, it was Emil Seckel who exercised a crucial influence on him.29 To undergo his First State Examination, Schulz, for reasons of administrative regionalism, had to turn to the judiciary of his home county, that is Breslau.30 He wished to extend his studies at Berlin to oriental languages, and had therefore sought to be examined in Berlin, but his application was refused. He therefore left Berlin University after four semesters and studied for two more semesters at Breslau University, mainly with Gretener31 and Brie.32
Schulz's entry into academia was unconventional and bold. He had begun his practical legal training (Referendardienst) after his First State Examination33 in the summer of 190234 near Breslau. But he decided to drop out prematurely in August 1903, thereby forfeiting all prospects of a career as a practising lawyer.35 He was fed up with the lack of independence allowed him in the Referendardienst. He felt that it hampered his scholarly work too much.36 At this time, he had already started to research independently. Quitting the Referendardienst was especially risky, since Schulz did not have a close affiliation (p.110) with any of his former teachers. In February 190537 he was awarded his doctorate at Breslau University, where the dissertation Die actiones in id quod pervenit und in quantum locupletior est 38 was read and evaluated by Paul Jörs.39 Schulz does not, however, seem to have developed close links to Jörs.40 In the summer of 1905 he completed two other works, one treating cessio actionum, that is the issue of recourse in classical Roman law,41 the other concerning a question in the history of texts, a first indication of what would turn out to be a lifelong interest.42
Schulz now sent his manuscripts to a number of professors. He expressed his wish to achieve the Habilitation for Roman law and the German civil code and asked for an opportunity to introduce himself.43 Otto Lenel, then in Straßburg,44 declined on the ground that, in his view, neither of the works tackled a problem sufficiently serious for a ‘Habilitationsschriff. However, he suggested that Schulz, should he not succeed elsewhere, should come back with a more weighty project. Schulz replied that he himself felt his works lacked full vigour, yet he would give it another try elsewhere. ‘Allied to the critical and self-detached attitude towards his own works, which Schulz maintained all his life, is the confidence that he will yet make it.’45 He did indeed make it: Fridolin Eisele46 in Freiburg, supported by Alfred Schultze,47 who had visited Schulz in Breslau (now Wroclaw), agreed to conduct the Habilitation proceedings on the strength of the work on cessio actionum. It may not be without significance that it was Eisele, an early champion of the search for interpolations in Justinian's (p.111) Digest,48 who came to Schulz's aid. Appropriately, in the autumn of 1905 Schulz gave his trial lecture on recourse in modern law.49 That lecture must have been the nucleus of the later ‘Riickgriff und Weitergriff, published in 1907.50 Schulz took up some observations made in his dissertation, concerning the issue of tracing in Roman law,51 and developed them, now turning to modern law, into a broader concept of Weitergriff, that is the substitution of one object of an obligation for another.
3. Seckel and Schulz
Schulz was very much his own man. He was no one's pupil in the sense the term is used when speaking of someone who takes up the lines of research pursued by his academic teacher. Schulz is sometimes considered to be Emil Seckel's pupil, although Schulz's publications seem to be, at first sight, rather far from the fields in which Seckel had been working.52 Seckel's and Schulz's relationship was somewhat more complex. Emil Seckel, it must be recalled, was above all the scholar who penetrated the jungle of continental medieval legal literature more deeply than anyone since Savigny. From his time as a Berlin law student, Schulz considered Emil Seckel his academic master and model.53 Naturally enough, Seckel was among the professors with whom Schulz sought to pursue his Habilitation. We do not know why Seckel did not accept Schulz's proposal. Maybe an incompatibility of scholarly temper prevented a closer cooperation between the two men. The high and even artistic spirits of Schulz and the very much down-to-earth scholarship of Seckel perhaps did not match. After all, Seckel issued the motto: ‘Never guess’,54 whereas Schulz developed, quite to the contrary, a taste for venturing into the most ingenious speculations about the original texts. Seckel would hardly have joined in the approval with which Schulz quoted Richard Bentley's saying: ‘Nobis et ratio et res ipsa centum codicibus potiores sunt’.55 In a postwar letter to Fritz Pringsheim, Schulz declared that his early publications had been marred by the ‘caution’ Seckel and Jors had talked him into.56 Whatever (p.112) prevented Schulz from coming under Seckel's personal guidance, it did not stop him from holding Seckel in the highest regard, and both men stayed on friendly terms.57 ‘The notion of a “merry science”,’ Schulz wrote long after Seckel's death, ‘I got in 1900 from Seckel.’58 In 1927, Schulz contributed a beautifully crafted study to the Festschrift for Seckel, following up an issue of mistake in wills from Roman law to modern law, making a sweeping plea for a change of law in Germany.59
While there was no formal teacher-pupil relationship between Seckel and Schulz, Schulz's work was not as far from Seckel's areas of work as it is sometimes assumed.60 Schulz shared Seckel's medieval interests, but also such interests as Emil Seckel had beyond the field of medieval Roman law. Some of Schulz's early works focused on issues of contractual risk allocation in Roman law. He worked on various aspects of the so-called custodia liability, the strict liability of, for example, the bailee, which he also put into a comparative perspective.61 The subject of risk allocation in Roman contract (sales) law had occupied Seckel for many years, although his own main article remained unfinished and was edited and published only posthumously by Ernst Levy.62 Schulz declared his own research to be based on Seckel's new concept of the Roman custodia liability,63 then put forward only perfunctorily in Seckel's new edition of the ‘Heumann’ dictionary of legal Latin.64 The edition of Thomas Diplovatatius’ De claris iuris consultis, done together with Hermann Kantorowicz65 in 1919,66 would have been a work very much to Seckel's liking. Above all it is the issue of transmission of texts, which increasingly occupied Schulz after the mid-1920s, that brought him back into Seckel's tracks.67 Lastly, Schulz's work on Bracton68 clearly shows him to be of the school of Seckel. (p.113) Having gone through the medieval sources of Bracton, Schulz finishes with a truly Seckelian statement:
Medieval men were themselves patient and whoever wishes to enter their world must be patient like them: ‘mihi vetustas res scribenti nescio quo pacto antiquus fit animus’; this is the true historical mind.69
4. Schulz the systematic lawyer
The magnum opus for which Fritz Schulz is best known to German civilians today is the ‘System der Rechte auf den Eingriffserwerb’, which took up the entire 1909 volume of the Archiv für die civilistische Praxis.70 Of this article, in truth a book of 488 pages, Schulz himself later said: ‘This work stands alone.’71 Schulz tried systematically to establish the idea of a class of actions directed at the recovery of the benefit gained from an infringement. The concept would overarch both benefits gained from breach of contract and those obtained by tort. The recovery of the Eingriffserwerb, the profit made by an infringement, had to follow, Schulz argued, very different, though somehow symmetrical rules from those regulating the recovery of damages. The recovery of profit had to be acknowledged, according to Schulz, as an idea as elementary as the recovery of damages. In fact, Schulz developed an entirely new system of actions, which was meant to supersede traditional distinctions such as the one between actions ex contractu and ex delicto. It was a most ambitious project, but then Schulz agreed with Mommsen that the impossible must be attempted in order to achieve the possible.72
For his systematic exposition Schulz gathered together widely dispersed material from all sorts of fields, such as intellectual property and maritime law. Without any apparent effort foreign law is used, as well as the rich experiences in the history of private law from Roman times onwards.73 The most important field, however, had to be that of unjustified enrichment, and though the System is not confined to the doctrine of unjustified enrichment (it rather advocates a radical dissolution of this concept altogether), it made its main impact here. The term Eingriffskondiktion, now commonly accepted, has its origin in Schulz's article. On the other hand, Schulz's central concern, to establish a general right to recover the profit resulting from an infringement, has, on the whole, not been taken up.74 In fact, this very contention can perhaps be said to be the doctrinal (p.114) proposition most often refuted or ‘proved wrong’ in Germany's twentieth-century civilian scholarship. The article is written with great vigour and enthusiasm, and however often its main contentions may have been refuted, it will probably continue to be a source of inspiration for the development of the system of private law75 and for the foundations of any doctrine of unjustified enrichment.
Schulz never again ventured into the task of redeveloping modern law in a rational and systematic manner. However, having once put forward a piece of legal scholarship of a highly systematic character, he continued to maintain, as he increasingly turned to legal history, a keen interest in historical approaches to the rational systematization of the law. In his History of Roman Legal Science, for example, great attention is given to the influence of the Aristotelian dialectical method on the development of Roman legal writing.76 Schulz's very last articles trace the Glossators’ dialectical method of quare back to the Aristotelian Problemata.77 Perhaps his later occupation with Bracton78 may also be attributed to his interest in attempts to develop systematic approaches to the law.
II. The Cursus Honorum (1906–1932)
1. Freiburg im Breisgau
Achieving the Habilitation in Freiburg meant moving there to assume teaching as a Privatdozent. It led to a reunion with his brother Hans, who worked, guided by Friedrich Kluge, on issues of textual history with regard to the writings of Abraham a Santa Clara.79 When Hans died nine years later, it turned out that he had bequeathed his large library of German literature and philology to Fritz, who used it extensively all his life.
Fritz Schulz was not immediately offered a professorship and stayed a Privatdozent in Freiburg from 1906 to 1909. He did not feel comfortable with the Freiburg faculty. In his diary80 he complains about not being given any of (p.115) the most desirable lectures, in terms of academic or financial interest, the latter being a concern to him since he was not financially well off. In general, he saw himself in opposition to the old guard. Considering that Schulz had joined the faculty rather out of the blue, it does not seem implausible that the older colleagues did not exactly woo him. By now, Otto Lenel had moved to Freiburg, and Schulz wondered whether Lenel might not take it badly to find that Schulz had been granted in Freiburg what he, Lenel, had previously denied him in StraSburg. He suspected Lenel of taking an unfavourable stance towards him, and the thought that Lenel might spread the story of his unsuccessful application in Straßburg made him uneasy.
If there was a colleague to whom Schulz had taken it was the young Erwin Riezler.81 Both men used to play music and in general were on friendly terms. Concerning Hermann Kantorowicz,82 on the other hand, Fritz Schulz at first registers disagreement on ‘a thousand issues’:
Wir werden keine Freunde werden. Was mich alles an ihm zurückstößt, kann ich zur Zeit noch nicht genau sagen, augenblicklich jedenfalls der Mangel an Lassigkeit und an Skeptizismus. Er ist so unaufhörlich tätig wie ein Kaufmann und glaubt an seine Meinungen so fest u. fanatisch wie ein solcher an die seinen oder die seiner Zeitung. Ich bin anders …83
However, later in life Schulz and Kantorowicz were to find themselves quite frequently cooperating.84 They perhaps did so on the basis of the closeness that comes from being interested in a field in which hardly any of their legal contemporaries worked, rather than friendship. So Schulz's Einführung in das Studium der Digesten (1916) built, for the textual history, on Kantorowicz's research and is dedicated to Kantorowicz.85 The book was the first introduction into the modern approach to the Digest according to the standards of critical-historical philology. In 1919, Schulz and Kantorowicz jointly edited De claris iuris consultis by Thomas Diplovatatius, the first literary history of Roman legal writings, written by a Greek immigrant in Italy around 1500. When Schulz came to England in 1939, Kantorowicz had already found in the problem of the Bractonian text a field much to his liking, and Schulz followed suit a few years (p.116) later. Both men also had similar political inclinations (although the political ambitions of Kantorowicz were much stronger). In 1927, Kantorowicz was to be appointed Professor in Kiel. Due to Kantorowicz's intense political activities the Kiel law faculty was concerned that Kantorowicz's coming might spell trouble.86 Schulz was asked to give an expert opinion, and he suggested taking Kantorowicz in spite of the possible reactions.87 Schulz did not join Kantoworicz in his advocacy of the doctrine of ‘free law’, the so-called Freirechtslehre,88 movement not totally unlike (and indeed an inspiration for) American legal realism. On the contrary, in a lecture in the 1930s, Schulz defended the conceptual thinking which was so attacked by the Freirechtslehre.89 Nor did Schulz join Kantorowicz in a much-debated issue of the curriculum, close to the heart of every Roman lawyer in the early twentieth century. The enactment of the Bürgerliches Gesetzbuch had created the need to reform the curriculum, and it was not yet settled what role there would be for Roman law in the future. An occasionally fierce debate had been going on in law faculties all over Germany.90 Kantorowicz later advocated a strict separation of the study of modern laws and research into legal history, stating that it was ‘high time to dissolve the unhappy marriage between legal history and legal doctrine’.91 Schulz, in a private discussion with Riezler, Thoma,92 and Kantorowicz, took quite a different stand on legal history as a university subject:
Man war einig, dass die Rechtsgeschichte zwecklos, die Behauptung, sie sei zum Verständnis des geltenden Rechts notwendig, leeres Gerede ist. Aber wer sich irgend welcher Gegenwartserscheinung hingiebt, wird ganz von selbst auch ihre Geschichte wissen wollen. Sie hat auch eine ethische Bedeutung, sie macht bescheiden und skeptisch.93
Schulz advocated optional courses in legal history, coming after the courses on modern law. Whatever way one wanted to go, Schulz saw ‘the old’ in the way of reform. Kantorowicz hoped for changes to come in 20 years’ time. Schulz disagreed, saying ‘… hab nie Vertrauen! Denn dann sind doch wieder neue (p.117) “Alte” da, exempli gr. der entsetzliche Wenger, Partsch, Rabel… Kαì τα λοιπά’.94
2. Innsbruck and Kiel
All Freiburg sorrows ended in 1909, when Schulz met his future wife and was offered professorships in both Jena and Innsbruck.95 Since negotiations concerning the post in Innsbruck dragged on, he accepted the offer from Jena, only to change his mind shortly afterwards and decide in favour of Innsbruck on the ground that there he was promised to be made Professor Ordinarius in the near future. He had not begun teaching at Jena. Having moved to Innsbruck, he became Professor Ordinarius for Roman law at Innsbruck University after only one year. In 1912 Schulz returned to Germany, accepting an offer to go to Kiel, then a Prussian university.96 The Kiel chair had previously been held by Ernst Rabel,97 and Schulz prevailed against the competition of, among others, Paul Koschaker,98 then at the University of Prague.99 Schulz became a member of the Kieler Kreis, a small group of scholars, who used to meet regularly in order to communicate to each other the results of their investigations and their general ideas.100 There he met Werner Jaeger,101 and presumably Felix Jacoby.102 Schulz also served as Dean of the Kiel law faculty.
In the spring of 1913, Schulz visited London, together with a party of compatriots, including Lenel and his daughter. He worked at the British Museum to extend his comparative studies on the bailee's liability103 to English law, a project (p.118) he later abandoned because of the First World War.104 In a letter to Martha Plaut, his later wife, he declared his ‘great disgust at Kiel’ and complained about the ‘academic nonsense’ that he had endured throughout the long winter semester.105 He wrote that he had ‘a curious plan: to take leave for the whole winter and to go to Oxford and study the history of English law, which so deeply interests me. Of course all this is still quite embryonic’. By an odd turn of fate Schulz was to carry through this plan a quarter of a century later, in 1939, under utterly different and unforeseen circumstances.
On 6 August 1914, Fritz Schulz married Martha Plaut (1887–1977), the twelfth of thirteen children106 of Rabbi Dr Rudolph Plaut of Frankfurt am Main (1843–1914).107 Ruben (later Rudolph) Plaut had been born in Mackenzell in the Electorate of Hesse into a long-established Jewish family (perhaps of Spanish origin), his father combining the roles of cattle dealer, religious instructor, cantor, and shochet108 in the town of Hünfeld. After his rabbinical training in Hamburg and Mainz, Ruben Plaut studied philosophy and oriental languages at Leipzig University, where he also obtained his doctorate. He worked as rabbi in Schwersenz (now Swarzeds in Poland) and in Karlsbad, the famous spa town in Bohemia (now Karlovy Vary in the Czech Republic). There, he so impressed the wife of Baron Mayer von Rothschild that she arranged for him to move to Frankfurt am Main. Plaut came to Frankfurt as the second liberal rabbi (the first having been Nehemias Brüll).109 He became a well-known figure in Frankfurt am Main, where he knew people of consequence and, as the phrase goes, went everywhere. Rudolph Plaut's wife, from the Jewish community of Posen (now Poznan),110 died in 1894, when Martha was seven years old. Martha grew up in a widower's household, which made for a special closeness between her and those of her brothers who were then still with the family. Rudolph Plaut's sons mostly studied medicine. Martha also wanted to study medicine. She had to overcome her father's strong reluctance. He allowed her to take up the study of medicine on the condition that she did so together with her younger brother Alfred.111 Rudolph Plaut and his family made full use of the opportunities which opened up from the mid-nineteenth century onwards, as Jewish Germans were gradually liberated from many long-established professional and educational restrictions, though not, by any means, all of them.112
(p.119) As a German army doctor in the First World War, Alfred Plaut was exposed to anti-Semitic restrictions and emigrated to the United States in the 1920s. He later rescued many members of the family, including Schulz's sons, and helped them to emigrate to the United States. In 1939 it was Alfred Plaut who paved the way for Fritz and Martha Schulz's flight to England.113
Martha Plaut had met her future husband in 1909, when she, together with her brother Alfred, attended lectures on the German civil code given by Schulz, the young Privatdozent, for students of all faculties.114 Martha Plaut later continued her medical studies in Munich. Schulz's decision to choose Innsbruck rather than Jena in 1910 may also have been influenced by the fact that Innsbruck was close to Munich. Martha Plaut did not want to marry before she had finished her studies. In June 1914 she received her doctorate in Munich, and in August of the same year she and Fritz Schulz got married in Kiel. On the occasion of their marriage Martha Schulz became a convert to Christianity. She did not practise medicine but took care of the Schulz household, which was soon enlarged by the arrival of children.
3. Göttingen and Bonn
Owing to his poor eyesight Fritz Schulz did not take part in the First World War. In 1916 Schulz competed for chairs in both Frankfurt am Main and Göttingen. In Frankfurt he was placed third, but was given the chair in Göttingen, which had fallen vacant on the departure of Ernst Rabel, this time for Munich.115
In November 1918 the German Kaiserreich collapsed. For the first time a shaky democratic order was set up. Politically, it was the most exciting of situations, the future shape of Germany's social and political system being very much an open question. It was at this time that Fritz Schulz, in Gottingen, became politically active.116 Unlike many of his Roman law colleagues he did not resent the new democratic order. On the contrary, together with his sister117 (p.120) he was among the founding members of the DDP in 1918.118 Members of the DDP had a considerable influence on the shaping of the Weimar Constitution in 1919. As the party most closely linked to the republican constitution, and not having a natural group of supporters among the electorate, as did both the Catholic Zentrum and the Social Democrats, it was to suffer most from the ever-increasing criticism of the republican ‘system’. The DDP was both liberal and non-nationalist, by contrast to the Deutsche Volkspartei (DVP), which represented the more conservative and nationalistic branch of German liberalism. Notwithstanding Schulz's deep roots in classical German culture, he was far from being a nationalist, and indeed once stated that he had had no patriotic feelings during the First World War.119 On 30 November 1918, in the wake of the German Revolution, Schulz gave a public address in Gottingen rallying support for the democratic cause.120 In a series of lectures arranged by the newly formed ‘Council of Workers and Soldiers’ in December he spoke about ‘The modern law of marriage and the need for reform’.121 Schulz also acted as a chairman for the local group of the DDP. When on 19 January 1919 elections were held for the German National Assembly in Weimar, which was to draft the new German constitution, Schulz stood as a DDP candidate. Placed sixth on the party list for the constituency Hannover-Hildesheim-Lüneburg, he was not elected. Two years later he became a DDP candidate for the Prussian Landtag.122 He contributed political articles to the Göttinger Zeitung, the liberal newspaper in Gottingen, which he later referred to as being written ‘in the blossoms of my sin, i.e. in the days of my political activities’.123 The DDP was most often attacked by the far right for being ‘Jewish’ and, as a result of its being more open than the traditional parties which had been founded in the Kaiserreich, did indeed have numerous outstanding representatives of Jewish origin. When Schulz was attacked, in a newspaper article, because of his Jewish mother and wife, he gave up active party politics. He ‘saw no chances of realizing his ideas of a democratic society’.124
(p.121) Schulz left Göttingen in 1923 for Bonn to become the successor of Josef Partsch.125 In the University of Göttingen he had encountered political problems due to his activities for the DDP.126 Many members of the Faculty of Law and Economics of Göttingen University were right-wing traditionalists, and quite early the Nazi movement had taken root in the faculty.127 Schulz, and especially his wife, did not feel politically comfortable. In the same year that Schulz went to Bonn, he was also offered a chair in Hamburg, where the faculty had placed him unico loco, thereby indicating that he was considered to be the one and only suitable candidate. The chair Schulz had vacated in Göttingen was given to Pringsheim. Schulz was to remain for a longer time as professor at Bonn than at any other university.128 In 1928, while in Bonn, he was offered a chair in Vienna, but did not accept it.129
In 1931 Schulz left Bonn for Berlin, considered the peak of the academic cursus honorum at the time.130 Schulz's chair in Bonn was first offered to Fritz Pringsheim131 and then, when Pringsheim declined, to Eberhard Bruck, who accepted it.132 In retrospect, Schulz counted the seven years in Bonn as among the happiest of his life and felt he never should have left the city.133 The chair Schulz took over in Berlin had been held by Theodor Kipp. The Prussian Ministry had made the offer to Schulz, although the faculty had placed Schulz second to Ernst Levy,134 who had previously been a Privatdozent in (p.122) Berlin.135 Schulz was by now easily the most distinguished professor of his age group covering both Roman and German private law.136 In the field of Roman law there were few of Fritz Schulz's stature.137 Taking the regular salary, additional benefits, and the income from the students’ tuition fees (Kolleggelder), which were due for each and every lecture, Fritz Schulz earned approximately 40,000 RM a year.138 This unusually high salary put him very much in the top bracket, far ahead of the president of the Imperial Court (Reichsgericht) with around 25,000 RM.139 However, when Schulz had negotiated his move to Berlin, his own modest suggestion for his future salary was considered, by the Prussian Ministry, to be inadequate with respect to Schulz's standing and the cost of living in Berlin. He had to be urged to ask for more. The Schulz family lived in a villa at Dahlem,140 a part of Berlin which was, by reason of its numerous scholarly residents, sometimes dubbed ‘Germany's Oxford’. Fritz Schulz gave a lecture for the members of the Berliner Juristische Gesellschaft in the summer of 1932.141 In October of the same year he gave a keynote paper at the convention of legal historians (Rechtshistorikertag) in Jena. There he addressed the question, ‘Did Roman Law Recognize Customary Law?’142 This was Schulz's position in 1933, at the age of 54, when tragedy struck.
III. The Catastrophe (1933–1938)
1. Reluctant hero
Immediately after 30 January 1933 a number of measures of discrimination, persecution, and terror occurred. While the terror was meant to frighten everybody, (p.123) individuals were singled out for specific acts of persecution. James Goldschmidt143 and Schulz were the first of the Berlin law faculty to be picked on. The persecution of Schulz was probably fuelled by a mix of political and racial motives.144 Although his former activity for the DDP, so much despised by the Nazis, must have been on the record, by political acquiescence Fritz Schulz might well have avoided the worst, since in the racist terms of Nazi doctrine he was considered ‘only’ a half-Jew.145 Martha Schulz and the children, however, could not escape being targeted from the very beginning of the Nazi rule, and so it was his family as much as his democratic convictions that exposed Fritz Schulz. In this situation, many husbands considered divorce, and quite a number indeed forsook their wives. Schulz was not the man to follow their example, although the Schulz couple was actually approached about the issue of a divorce. Fritz Schulz showed where he stood by dedicating his next book to his wife.146 Later it was to be Martha Schulz who, with courage and determination, saw that first their children and then husband and wife reached safe shores.
Fritz Schulz did not lie low politically. During the summer term of 1933, he gave a series of lectures, which were published in 1934 as Prinzipien des römischen Rechts. These were to be his final lectures in Berlin, in fact his last lectures ever. Schulz dealt with Roman virtues such as humanitas, libertas, and fides—the epitome of all the Nazis were about to do away with. Mann,147 who at that time was one of the assistants in the Berlin law faculty, stated of Schulz's 1933 lectures in his personal memoir: ‘[Schulz's] last achievement in Germany had been a course of lectures on Principles of Roman law, which in truth and substance was nothing but a veiled attack on Nazi despotism and lawlessness.’148 It was a courageous, if not outright foolhardy thing to do. Apart from the threat of arbitrary measures or sheer physical terror, giving offence to the new political order was (p.124) itself made a ground for dismissal in April 1933.149 (As we shall see, Schulz could not be dismissed simply on so-called ‘racial’ grounds.) Werner Flume,150 another of the faculty's assistants and most closely affiliated with Schulz, whom he had chosen as supervisor for the Habilitation, recalls that the book was
eine leidenschaftliche Kampfschrift gegen die soeben aufgerichtete Terrorherrschaft …. Die Werte, welche er [Schulz] als die Grundlage des römischen Rechts nicht nur darstellt, sondern rühmt, sind auch seine Werte, und sein persönlicher Einsatz für diese Werte im Jahre 1934 ist ein edles Zeugnis der ihm selbst eigenen römischen virtus.151
More specifically, Prinzipien des römischen Rechts was a counter-attack against the move of the Nazi party to cut back the study of Roman law, which was considered an ‘un-German’ subject. Taking up the slogan ‘Away from Rome’ (Los von Rom), the Roman-Latin culture was declared to be opposed to the Germanic spirit. Official Nazi doctrine held that Germans should actively fight against the undue influence which Roman-Latin culture had exercised on German society. This made Roman law a prime target for the reform plans which the Nazis had developed for higher education. The National Socialist Party programme had indeed made it a specific and ‘indispensable’ objective of the Nazi revolution to purify the German legal system of its Roman elements.152 In assessing Roman law as a genuinely Roman contribution to Western culture, Schulz wrote ‘a manifesto in defence of a grand tradition’.153 On the side of the Nazi movement the book was rightly perceived as a declaration of principled opposition. Not long after its publication, Prinzipien des römischen Rechts was reviewed by Heinrich Lange,154 one of the academics in the forefront of the (p.125) Nazi movement.155 The scholarly treatment of Roman law, Lange lamented, had long been usurped by the Jews. He blamed Schulz for being an internationalist, and for not having bound himself to the new state. Lange found that ‘from its dedication to its closing words,156 beneath the silk of scholarly neutrality the claws of opposition can be sensed’.157 With regard to the later English translation, Gustav Radbruch158 told an English colleague that ‘only a German would appreciate how acute and bold the book is to [then officially] popular attacks on Roman law’.159 In fact, no other German professor of Roman law dared to defend his subject against the Nazi policy as courageously as Schulz did.160
Schulz described Roman law both as a product of Roman society and as an ingredient of Western culture, which can never be lost. In an especially clearsighted way, Werner Jaeger, the classicist,161 described the place of the book in the modern development of Roman law studies:162
Since the times of Mommsen and other pioneers the increasing penetration of the study of law with philological and historical methods had tended to make this field the object of progressive specialization; it became more and more a part of classical scholarship and ancient history than of systematic jurisprudence. Schulz saw the danger involved in the situation. With increasing philological exactness he saw the normative influence of Roman law on systematic jurisprudence decrease more and more. So he wrote his book on the principles of Roman law, in which he tried to erect a monument to the everlasting greatness and importance of this creation for the present time as well as the future.
(p.126) As a scholarly tribute to Roman law, the book has become a classic of reasoned veneration of Roman law all over the world.163 Oxford University Press published an English translation in 1936, more of which later.164 In 1946, after the fall of the Italian fascist regime, Arangio-Ruiz165 himself translated the book into Italian.166 A Spanish translation was published in 1990167 and a Japanese translation is in preparation.
2. The path towards forced retirement
The heavily political underpinning of Schulz's lectures in the summer of 1933 did not go unnoticed, nor was the reaction long in the coming. The Nazi administrators quickly tried to remove Schulz from Berlin, the university of the Reichshauptstadt, considered as particularly politically sensitive.168 In a conversation with an official in the Reichswissenschaftsministerium Schulz asked right away: ‘Do you want to dismiss me?’ He got the answer: ‘No, but does it have to be Berlin?’169 Werner Flume, who was about to undergo, under Schulz's auspices, the formal Habilitation proceedings on the strength of a monograph just finished, found himself unable to do so. Flume had courageously taken a stand in an assembly of the faculty's assistants, when a boycott of Jewish and half-Jewish professors was to be launched.170 The Dean, Ernst Heymann,171 declined to open the formal proceedings for Flume's Habilitation. Fritz Schulz asked Eberhard Bruck,172 his successor at Bonn University, whether Flume could get his Habilitation proceedings done at the Bonn law faculty, but Bruck, (p.127) who later on had to emigrate himself, was for obvious reasons unable to help.173 Finally, Flume left the University in 1935 to go into private practice.
The infamous Arierparagraph that had been enacted in April 1933, containing discriminatory provisions specifically aimed at Jewish civil servants, did not allow for a straight dismissal of Schulz. The Jewish origins of his mother and his Jewish maternal grandparents meant that Schulz was considered, in the terms of the Nazi legislation, a 50 per cent non-Aryan. While civil servants thus categorized could in principle be dismissed on the strength of a newly enacted civil servants law, there was an exception for so-called pre-war officials.174 Since Schulz had first been appointed a German (Prussian) professor in Kiel in 1912, he was one of them. Accordingly, another means of removing Schulz from Berlin was sought. It was found in the possibility of an enforced transfer.
On 30 September 1933, a decree was issued ordering Schulz to abandon his post at Berlin University in exchange for another professorship (Zwangsversetzung).175 With such transfers, made possible in April 1933 by a statutory civil service reform, the Government disregarded the ‘inviolability of office’ which had been a traditional privilege of judges and professors as employees of the state, strengthening their independence and safeguarding them against arbitrary interference. Moreover, Schulz was not told to which university that transfer was to take him. He immediately protested, saying that he understood that transfers of this kind were now legal, but certainly not transfers to unnamed universities.176 On 2 November, after the start of the winter term of 1933/34, Schulz was perfunctorily informed that another post had not yet been assigned to him and that he was to go on leave of absence for the semester. He was warned not to give public lectures.
At very short notice Schulz was ordered in April 1934 to take up a post at the University of Frankfurt am Main.177 The Nazi administration intended to shut down that university altogether. It had been set up as a Stiftung (foundation) in (p.128) 1914 by Frankfurt citizens, many of them Jewish, in a liberal spirit,178 making the university very suspect in the eyes of the Nazi administrators. The intended dissolution of Frankfurt University would, it was planned,179 offer the opportunity of smoothly retiring undesired professors on the strength of another newly introduced provision, which made it possible to retire civil servants for the sake of a ‘simplification’ of administration.180 With this in mind, Schulz and Professors Heinrich Hoeniger (from Kiel),181 Gerhart Husserl (who in 1933 had been subjected to an—eventually abortive—transfer from Kiel to Gottingen),182 and Eugen Rosenstock-Huessy (from Breslau/now Wroclaw)183 were transferred to Frankfurt am Main.184 Neither the administration nor the faculty of the University of Frankfurt am Main had been consulted beforehand. Schulz again protested that he had a large house and his whole family in Berlin. Thereupon the Ministry placed him on leave of absence, though this was a leave from Frankfurt University.
In the summer of 1934, Schulz asked the Dean of the Law Faculty of Frankfurt what was going to be done in the following winter semester. The Dean came to Berlin and, after having consulted with the Ministry, informed Schulz that he was definitely transferred to Frankfurt.185 However, he referred to what he called a strongly felt anti-Jewish sentiment at his university and forbade Schulz and the other newcomers to give any lectures on the ground that he feared student protests. As a result of his transfer Schulz was now administratively dealt with by (p.129) Frankfurt University personnel, people who did not know him and were perhaps not very sympathetic.186 Schulz's salary and tuition fees were cut by 20 per cent in the summer of 1934.187
It turned out that Frankfurt University was not to be dissolved. The professors transferred to that university had to be dealt with in other ways.188 In view of the coming winter semester, the Ministry gave Schulz the option either to go on leave of absence again for the 1933/34 winter semester, or else be emeritiert, that is retired. The decision Schulz was forced to take had considerable financial implications.189 Retirement meant losing the Kolleggelder altogether and exchanging his salary for a pension about half the amount of the salary. On the other hand, continuing to go on leave meant running the risk of being accused of receiving Kolleggelder without any teaching. In Nazi publications it was already argued that being guaranteed to receive tuition fees had been a means to provide full professors with disproportionately large salaries.190 During the winter semester the Kolleggelder were drastically cut to a maximum of 7,000 RM and made dependent upon actual teaching and, taking away the guarantee, upon student enrolment. This left Schulz without the Kolleggelder, which had made up roughly 50 per cent of his income. Schulz was also offered, if he consented to early retirement, the status of a Professor Emeritus not of Frankfurt University but of Berlin University. This would have appeared quite advantageous, since pensions payable by the University of Frankfurt am Main at that time must have seemed insecure; it was doubtful whether the state would meet the obligations of a university, which had originally been set up as a private foundation, after the dissolution of that university.191
Schulz agreed to be retired. His professorship was formally transferred back to Berlin on 1 December 1934.192 He was granted leave of absence for the rest of the winter term to become Professor Emeritus on 1 April 1935. Schulz was not yet 56 years old. His salary went down to about 15,000 RM, roughly a third of what it had been.
As a Professor Emeritus, Schulz should have been entitled to hold lectures at his discretion. While this caused unease among the Nazi administrators,193 they did not want to curb the status of Professor Emeritus too harshly, since they planned to convince other professors ‘deliberately’ to become Professores Emeriti before the regular age of retirement. As a compromise it was planned (p.130) to confine Schulz to one course of lectures, or one Roman law seminar of no more than two hours a week. The Berlin law faculty, which had by now come under the dominating influence of newly-appointed Nazi professors such as the notorious Carl Schmitt,194 voiced concern that the students found Schulz ‘unbearable’.195 The compromise solution was not pursued any further. Schulz never resumed lecturing in Berlin. In 1936, after the introduction of new legislative measures, he was formally deprived of his right to lecture (Lehrbefugnis).196
While the Nazi Ministry had gone to great lengths to maintain the appearance that the measures taken against Schulz were lawful administrative proceedings, they were in fact from beginning to end pseudo-legal acts of arbitrary political persecution. The man who had, not without evil cunning, devised all these measures for ‘purifying’ Berlin University's law faculty was Karl-August Eckhard, a young professor of German legal history, who had become a leading academic administrator.197
3. Principles of Roman Law
In May 1935, the Oxford University Press (OUP) was approached by one Alexander Gurwitsch, at that time living in London,198 who suggested that OUP might publish an English edition of Prinzipien des römischen Rechts, which had just seen the light of day in Germany. Gurwitsch suggested that he himself might provide the translation,199 and he had already provisionally translated the first chapter. OUP asked Lawson200 for advice,201 who answered:202
It is a very interesting and able book on original lines, and I should like to have it available in English for students …. The book is so well written it needed a (p.131) Ledlie203 to translate it. If the field were open, I might suggest that you approach Campbell204 or someone else who has the gift of style …. [Gurwitsch] certainly ought not to be allowed to maul this beautiful piece of work.
Kenneth Sisam205 of the OUP had taken to the idea of publishing the translation. He agreed with Lawson that Gurwitsch's English was not equal to the task. While Gurwitsch retracted, not without grace, declaring his interest to be in seeing an English edition rather than in doing the translation himself, Sisam looked for a translator. Campbell,206 whom he approached first, did not want to take on a mere translation job. Sisam then wrote to Herbert F. Jolowicz,207 asking whether he could recommend a competent, first-rate translator, for whom, however, ‘it would have to be more or less a labour of love’.208 The translation ‘would almost certainly lose money, and yet our historians, as well as the Roman lawyers, would like to see the book made available in English’. Jolowicz suggested employing his sister Marguerite Wolff, the wife of Martin Wolff,209 as an experienced freelance translator. Jolowicz, asked by Sisam to go ahead, contacted his sister,210 who agreed to take on the task. Finally Schulz himself, who had been aware of the goings-on through both Gurwitsch and Marguerite Wolff, was officially contacted by the OUP. He was glad to adapt the book in some aspects to the needs of an English readership and revised and enlarged the text. An efficient cooperation by Marguerite Wolff, Schulz, and the Press enabled the book to be published in October 1936. It was favourably reviewed.211 Since Schulz dealt with Roman law from a jurisprudential point of view, taking up issues like certainty of law, English jurisprudential writers took note of the book as well.212 The English edition of Schulz's book and the (p.132) Oxford contact established in its production proved to be vital when efforts had to be made, in the face of considerable reluctance both on the English side and on the part of Schulz himself, to secure a future for him in England. Three years later, Kenneth Sisam wrote about Schulz:213
I should like to see him here …. It is only fair to say that in our dealings with Schulz on the translation of his book, Principles of Roman Law, we found him very untrouble-some, though a lawyer with a legal mind cannot get out of the habit of putting precise questions. I met him twice and liked him.
4. Life in Nazi Berlin
Despite an ever-worsening situation, Fritz and Martha Schulz continued to stay in Germany. Maybe Fritz Schulz misread the signs of the times.214 However, substantive financial considerations may have favoured what now seems an unwise reluctance to leave the country. As long as he stayed in Germany, Schulz was paid his professorial pension. There was no private income the Schulzes could fall back on. The pension, however, did not allow for the upkeep of the Dahlem villa. Immediately after his retirement Schulz rented out the middle floor of the three-storey house. In 1937 the Schulzes were forced to sell the house. They found a Swiss company to lease them a flat in the city of Berlin (Charlottenburg).215
Having finished Prinzipien des römiscben Rechts in 1934, Schulz occupied himself primarily with work on the Quaestiones Papiniani, generally considered to be the most difficult work of Roman legal literature.216 He wrote a full commentary on the Quaestiones. The work was inspired by the idea that fragment by fragment the original text, which Schulz assumed had suffered successive alterations during its transmission in the third and fourth centuries, could be reestablished in all its states of transmission. He wanted to undo this ‘stratification’ of the text, thereby not only restoring the original text but also, by isolating the later additions, pinning these to an individual—though anonymous—author. He believed that eventually it might even be possible to establish a distinct succession of such anonymous authors. Schulz took his nearly finished manuscript to Holland, but not to England. It came back into his hands only after the war.217 By then he had become hesitant about publication.218 Discussions with Werner Flume led to second thoughts creeping in as to whether all the suspected alterations and additions could really be stringently attributed to a single though unknown jurist (or a number of jurists), who was (or who were) assumed to have gone over Papinian's writings to produce the Quaestiones as they have (p.133) come down to us. The commentary remained unpublished, but three articles based on the work for it were eventually published.219 Some examples also went into the History of Roman Legal Science.220 They give an idea of what the work as a whole would have looked like.
In 1934, Schulz was told by Hans Kreller, the then editor of the Savigny Zeitscbrift für Rechtsgeschichte 221 that while the journal would still welcome his contributions, Schulz would have to understand that, according to the ‘principles of our new state’, he, as editor, had the task of emphasizing ‘the German character’ of the journal. Therefore the person of the author had to be taken into consideration, with preference given to the ‘young’ generation (meaning those close to the ‘new state’).222 Schulz was advised to keep his articles short in the future.
Though deprived of all public influence in Germany, Schulz, initially a ‘German’ civilian, that is a specialist in the subtleties of the Bürgerliches Gesetzbuch (BGB), as much as a Roman law scholar, increasingly found recognition in the international community of Roman legal scholarship. He went to lecture in Italy and England, and he welcomed visitors from abroad.223 In April 1933,224 Schulz attended the historic International Conference of Roman Law, held in Rome (and partly in Bologna) to mark the fourteenth centenary of the Digest. In Rome, on 25 April, he addressed ‘an unexampled assembly of legal historians’,225 speaking on the arrangement of ancient compilations by ‘masses’.226 It was the first convention of its kind. In November 1934 Schulz also attended the Conference held in Rome to mark the 1,400th anniversary of Justinian's Codex. Once more he lectured on textual issues, this time concerning the Codex.227 In particular, the first of these lectures proved to be of great importance for Schulz's eventual emigration, since it was on this occasion that Julius van Oven from Leyden228 and Francis de Zulueta from Oxford229 got to know Schulz.230 (p.134) Both men later greatly helped Schulz when he was a refugee.231 (It has to be remembered that professorial travelling was then not as extensive as it is nowadays and personal contacts, especially on an international level, were therefore not as common as they are today.) When in 1935 Schulz was invited by van Oven to lecture in Leyden, he was denied a travel permit,232 perhaps because of van Oven's anti-Nazi activities. However, Schulz was able to travel to Oxford in February 1936. There he met Francis de Zulueta233 and Kenneth Sisam, and he probably finalized the preparation for publication of his Principles of Roman Law.234 He also gave a lecture in London.
In 1934, Gian Gualberto Archi235 went to Munich and Berlin for an ‘anno di perfezionamento’.236 In Berlin he visited Schulz, who introduced him to his friends Martin Wolff, Gerhard Husserl, Hans Lewald,237 and Werner Flume, as well as to Otto Gradenwitz.238 Archi joined Schulz and Gradenwitz in their weekly privatissimum, discussing issues of textual criticism.239 Meeting Schulz and his friends, in an atmosphere of imminent danger, was an unforgettable experience for Archi. In the spring of 1936, E. Y. Hartshorne, then a young man of 24 years,240 stayed in Berlin for a year and a half to pursue sociological studies. He and his wife lived for some months with Schulz and his family as their paying guests:241
Schulz's passion for and delight in teaching was vividly brought home to me during an attack of grippe which kept me in bed in his home for two days and hence away from the (p.135) Library and my work. My host immediately approached me with the proposition that since I could not pursue my own studies I allow him to lecture to me, giving me a choice of various subjects in the theory and history of law. Despite his wife's protests ‘leave the sick man alone’ (she is an M.D.) I refused to be ‘protected’, and he began with two hours on ‘Savigny and the Historical School’, sitting at the bottom of the bed or walking up and down, asking every now and then for my opinion, and illustrating his points with passages from books he had brought upstairs with him. These lectures, or ‘seminars a deux’, went on intermittently during the remainder of my stay.… While they were a rare intellectual treat, these glimpses of Schulz as a teacher, they were shot through with the inescapable pathos of the situation. Here was a man whose very lifeblood it was to teach out of the store of his learning and wisdom, forbidden to give instructions, even gratis, to a single German citizen!
His fondness for enlightening the ignorant was not restricted to the field of law. One evening I announced at supper that I expected to attend a performance of the Meistersinger. Learning that I had never heard it before, Schulz, who at one time contemplated the career of a concert pianist, drew me into his music room, sat me down, and gave me a lecture about the opera. His brother-in-law, conductor at one of the large opera houses,242 happened to be there to supper, and the two of them vied each other in playing over and singing to me the major themes, while the family looked on smiling. Only at the very last minute did they consider me sufficiently well ‘prepared’ to go.
Back in the United States, Hartshorne in 1937 published an influential book (still worth reading) on German Universities and National Socialism, which informed the American and British public accurately about the nature of Nazi Germany and its present academia. He reported that ‘the German University has lost in essentials the signs of a free institution’.243 Without giving away the name, Hartshorne summed up the ‘case-history’ of Fritz Schulz,244 describing his path towards forced retirement through a series of preliminary transfers. The Hartshorne couple stayed in contact with the Schulzes and later lobbied on Schulz's behalf in the United States.
Martha and Fritz Schulz tried to make the best of the situation. Every two weeks Schulz, Martin Wolff, Gerhart Husserl, and Werner Richter245 met to discuss text and significance of the Sachsenspiegel: ‘In this way the four scholars, barred from the University … sought to keep up their intellectual associations’.246 Fritz Schulz, (p.136) who had none of what were presumed to be typical ‘Jewish’ attributes247—he was fair-haired and blue-eyed, with a broad, open face248—could, and in fact did, at considerable risk, defy the anti-Semitic off-limits regulations which were increasingly set up. The family stayed, for example, in an apartment rented for them by Werner Flume in Scharbeutz, the seaside resort at the Baltic Sea, by then out of bounds for the Jewish population. Living in Dahlem had made them members of Pastor Niemöller's parish of the Bekennende Kirche, the Protestant ‘Confessional Movement’ that struggled to keep the Nazis at arm's length, whereas the majority Protestant Deutsche Kirche had fully embraced National Socialism.249 Going to Niemoller's church was in itself an expression of dissent. The steadfast Dr Niemoller,250 courageously speaking up against political oppression, also made an impression on Martha Schulz, to whom Christian Protestantism perhaps appealed mostly because of its possible political implications.
5. ‘All of them made good’
Fritz and Martha Schulz had four children, Renate (1917–1979),251 Thomas (1918–1998), Johann (1920–1994), and Dorothea (born 28 November 1926),252 the three eldest children having been born in Göttingen and Dorothea in Bonn. After 1933, the greatest fear would have been for the children. By 1935, the year of the Nuremberg laws on racism,253 it had became obvious that neither Renate nor Thomas, then 18 and 17 years old, would be able to go to university in Germany. In order to secure a university education for them, the children were sent, one after the other, to England; their parents were the last to leave Germany.
After the family's move to Berlin in 1930, Renate had had to catch up with English, a language she had not been taught while in Bonn, and so in the summer she spent some time with an English family in Manchester. Visits to Wales and the South of England helped her make up her mind to study at Oxford. Her parents managed to see her through the Gymnasium, already a difficult undertaking, and then in 1936 Renate applied to St Hilda's College, Oxford to study medicine. Her sponsor from Germany was Pastor Niemöller.254 Because she had (p.137) not learnt enough natural sciences in Germany she was allowed to ‘take entrance papers in subjects unrelated to her course’255 and was then admitted on condition that she undertook to study for an additional year in order to catch up. Once qualified as a medical doctor she joined the British Army in 1943, and later returned to occupied Germany, for some time, with a military hospital. Later she worked as a general practitioner in Hertfordshire. She left St Hilda's a legacy to set up a fellowship, now named the Renate Schulz Fellowship in Physiology.
Thomas and Johann were helped, presumably again with Pastor Niemöller as go-between, by Bishop George Bell.256 Thomas was placed as a student at the London Polytechnic. Assisted by his uncle Alfred Plaut, who was especially close to Martha Schulz, Thomas's mother, he went on to Chicago University in 1939 with a scholarship. There he volunteered for service in the US army, with which he returned to the Continent shortly after D-Day. Since German was his native language, he worked in the intelligence service, which led to later employment with the CIA. After his retirement, he lived in Munich.
For Johann, a stipend was procured for a college at Shoreham-by-Sea. When difficulties arose in the admission process, Martha Schulz travelled to the college to set matters right. Because English universities then had a very limited capacity, the school stipend was given on the condition that Johann would not attend a university in England. With his school certificate, he applied for and was admitted to study chemistry at Harvard University (1937). After some time at Syracuse University he became Professor of Chemistry at the Lutheran Wagner College in Staten Island. He left a legacy, which was used to set up a scholarship at Xavier University in New Orleans.
For the family it had now become important to have foreign currency at their disposal to maintain the children who had gone abroad. This was difficult because transferring money out of Germany was increasingly restricted. A Swiss life insurance policy matured and fortunately it was possible to prevent the capital from being remitted to Germany. In order to be able to give further financial support to her children in England, Martha Schulz also took foreign students as paying guests into their flat. These had to make payments to F. A. Mann, who by that time was already in London.257 It was an illegal arrangement and, in order not to be betrayed, Martha Schulz was very careful to select anti-Fascist students. The situation was sketched by Hartshorne: ‘The house full of boarders: a Spaniard, a Frenchman, an American girl and a Norwegian girl. Wife, a M.D. and cultivated lady, absorbed in housework.’258
Fritz and Martha Schulz had managed, not without difficulty, to keep Dorothea in school in Berlin. Dorothea, as a pupil in an openly anti-Semitic (p.138) environment, was probably the member of the family most exposed to everyday hostilities. The pogroms of 9 November 1938, the so-called ‘night of the broken glass’ (Reichskristallnacht), definitively ended any prospect of further school education for her in Germany. It was indeed high time for her and her parents to emigrate. When Martha Schulz saw a stranger in the Berlin underground reading the London Times, she asked him whether he would travel with a child to London, provided she would cover his costs. He turned out to be an English student, and indeed he was willing to help. On the English side, Renate had seen the Principal of St Hilda's College, Julia de Lacy Mann,259 and together with the Oxford Refugee Committee260 they had found a family, the Carters, for Dorothea to stay with. Dr Carter, a Fellow of Queen's College,261 was the biochemistry teacher of Dorothea's sister Renate; his wife was a missionary's daughter. Dorothea attended Milham Ford School, then a grammar school. Miss Mann paid the fees and the headmistress personally took care of the necessary school blouses and stockings. On leaving school Dorothea Schulz moved in with her parents, by then also in Oxford. She studied French and Russian at St Anne's College (the former Society of Oxford Home Students262). She became a lecturer at Glasgow University, where she met and married Ronald L. Meek, an economist who became a senior British Marxist scholar.263 When he was appointed professor at Leicester University, they moved there. Dorothea Meek became a teacher of French, Russian, and German, as well as vice principal of a comprehensive school in Leicestershire.
Of the four children, saved by their mother and raised under extremely difficult circumstances, F. A. Mann wrote: ‘All of them made good’.264 And yet! While Fritz and Martha Schulz could, despite all the upheavals of emigration and resettlement, maintain their framework of cultural references, acquired in late nineteenth-century Germany, since ‘caelum non animum mutant qui trans mare currunt’,265 it was the children who had to bear the burden of redefining their identity.
6. In search of an overseas position
After his enforced retirement, Schulz had made several unhappy and perhaps half-hearted attempts to secure a position abroad. As his daughter recalls, he was (p.139) not very good at personally advertising himself, assuming that one could and should judge a scholar by his publications alone.266 In 1935 he looked for an opening in the law faculties of universities in South America. Early in 1936 he travelled to the United States, hoping to obtain a post as a professor of Roman or comparative law, or of ancient history, or even as a librarian.267 On 18 March 1936 he addressed the Riccobono-Seminar at the Washington Catholic University.268 He spoke on ‘The Invention of the Science of Law at Rome’.269 At Harvard he spoke in Roscoe Pound's seminar and saw Mcllwain,270 Felix Frankfurter,271 and Joseph Schumpeter.272 Schulz knew Schumpeter from the time when both had been professors at Bonn University.273 He also met Arthur Schiller, then at Columbia University,274 Max Rheinstein275 of Chicago (p.140) University, and Dean Beutel of Baton Rouge in Louisiana. On the last university he pinned his greatest hopes because of the civil law tradition in Louisiana. In terms of a new position, he was not successful anywhere. The poor response came as a great disappointment for Schulz.
Schulz gradually lost hope, while his situation went from bad to worse. He was not able to publish anything in Germany. When in 1937 the access to public libraries was withdrawn, he had to fall back onto his own substantial library. He was forced to sign his letters as ‘Fritz Israel Schulz’. In these circumstances, he found ‘scholarly work almost impossible’.276 The energy and high spirits he normally displayed were waning.277 All zest and vision had deserted him. His daughter Dorothea, returning from school, sometimes found him apathetic, even lachrymose. The drive was gone, and it was to return only after Schulz left Germany in 1939.
By 1938 it became essential for Schulz to step up his efforts to find an overseas position. In the summer of 1938 there was an impending vacancy in the chair of civil law in the University of Edinburgh, as James Mackintosh278 was retiring. The chair was under the patronage of the Faculty of Advocates, the Scottish body corresponding to the London Bar, which was entitled to send two names up to the University of Edinburgh for them to select one or the other as professor of civil law. Apart from half a dozen Edinburgh advocates, Schulz, Berger,279 and Pringsheim, who was already in England, applied. De Zulueta and Buckland, the leading English Romanists of the time, were asked to comment on the applications of Schulz and Pringsheim. De Zulueta280 praised both highly, but in the end recommended someone else, namely F. H. Lawson, who then indeed became a late applicant.281 On Schulz, de Zulueta wrote:
He is, I think, the older man of the two by little. He is also rather brilliant. You can judge by his book ‘Principles of Roman Law’ (Clarendon Press) that he has ideas and power of expression …. has a wife who speaks English extremely well and is extremely intelligent and likely to help her husband in such a position.
Perhaps pressed to declare himself on the choice between Schulz and Pringsheim, he later stated that, if a foreigner had to be selected, he would vote for Pringsheim who, as he made clear, was a personal friend. However, he found that there was little to choose between Pringsheim and Schulz, who ‘is perhaps (p.141) more brilliant. But I should say P. has more “stuffing” in him + is a stronger man all round’.282 A little later Buckland gave his opinion of Schulz and Pringsheim, but also drew attention to David Daube.283 Buckland clearly preferred Daube, for whom he had secured at Gonville and Caius College in Cambridge, which he then served as President, first admittance as a research student in 1933 and then a research fellowship in 1935. Despite his very close links to Daube, in the end he was impartial enough to state:284 ‘If I had to elect one of these 3 I should put Schulz before Pringsheim and I think I should have to vote for him before Daube, because I cannot overlook his much greater experience in teaching.’ The committee, which had been appointed to consider the applications, invited Pringsheim and the late applicants Lawson and Daube for an interview. They did not invite Schulz. In its final report,285 the committee explained its decision, taken ‘with great regret’:
He has probably, throughout the world, the highest reputation as a civilian of all the applicants, but he is, it seems, the oldest of the applicants; he is, we are led to believe, not a very fluent speaker of English; and, as he is resident in Berlin and has been deprived of his University emoluments owing to the recent Racial Law and is, in all probability, by no means in affluent circumstances, your committee felt that it would not be fair to invite him to undertake such a long journey for the purpose of a personal interview.
In November 1938 the committee recommended Pringsheim and Lawson, and between the two a majority slightly favoured the former, while all agreed that Lawson would be a very good choice as well. In the end, none of the foreigners was appointed because the Faculty of Advocates preferred to nominate one out of their own ranks.286
At the end of 1938 Schulz was suggested as a possibility for one of the ‘roving’ lectureships at Harvard College. The post would have required him to lecture or hold seminars at various faculties and would have earned him the formidable sum of $6,000 a year.287 The President of Harvard University, James B. Conant, was especially pressed by Edward Hartshorne, now Harvard Professor of Sociology.288 On 30 November 1938, shortly after the pogrom night, Martha Schulz had sent Hartshorne a letter, to which she referred as an ‘S.O.S.’ Explaining that they had managed to place their four children in independent circumstances, she wrote: ‘Da bleiben nur die Eltern zu versorgen, und die sind (p.142) sehr anspruchslose Leute geworden, fur die ein job mit einem Existenzminimum genügt.’289 Hartshorne contacted various colleagues who knew Schulz and passed their references to the President. Conant's office asked other scholars for their opinion. Friends of Schulz, who heard of the plan, intervened spontaneously, while Schulz obviously asked other acquaintances to testify on his behalf. Conant's office was flooded with letters of support. Many writers praised the Principles of Roman Law. The book, with its focus on jurispruden-tial and socio-cultural issues of Roman law, had obviously grasped the attention of English-speaking legal thinkers and classicists alike. As to Schulz the man, the letters make for an impressive eulogy, even if one takes into account that all writers were motivated by the benign desire to help a man in a desperate situation:
He is a man of very high standing in the world of civilian learning. His work is admired wherever Roman law is studied, and he would be an ornament to any faculty. (W. W. Buckland)290
What justifies me in supporting the proposal is my conviction that Professor Schulz is not a specialist in Roman law, in the technically restricted sense in which that phrase is current in this country, but really a master of those forces of civilization of which Roman law was one phase. He would, therefore, bring to Harvard a breadth and depth of culture, which would, I am confident, impregnate our atmosphere here with learning and wisdom extending far beyond the immediate area normally assigned to Roman law. Professor Schulz, in other words, is a man of wide significance to scholarship and to that extent would satisfy the amplest traditions for scholarship at Harvard. (Felix Frankfurter)291
I heard another German jurist lecture at the Harvard Tercentenary, Hans Kelsen. On the personal side there was no comparison. (Edward Hartshorne)292
… is one of my dearest friends and … a brilliant teacher of most unusual popularity with his students … I admire [him] as a wonderful character and a truly great scholar. … To sum up … Fritz Schulz is a great scholar and teacher, a delightful person with a wide cultural background whose presence in this country would be, I have no doubt, highly beneficial to all those who may have the privilege to work with him. (Gerhart Husserl)293
… one of the most brilliant representatives of the field of Roman law in Germany. (Werner Jaeger)294
… one of the foremost authorities on Roman law in the world … I… can testify to his engaging personality, his straightforwardness of character, and his really good knowledge of English. (H. E Jolowicz)295(p.143)
… recognized as one of the foremost experts in Roman law. Each of his numerous books and papers … is fit to reveal creative spirit, comprehensive knowledge and a genuine scholarly approach. (Ernst Levy)296
I value him very highly both from the human and the scholarly viewpoints. (Friedrich Meinecke)297
… one of the three leading German scholars of Roman law. The two others are Ernst Rabel and Ernst Levy. The latter is now with the University of Washington Law School in Seattle, while the former is in a terrible plight in Berlin. Schulz is the youngest man of the three.… also a stimulating teacher. He has a peculiar gift for lucid exposition and for striking expressions. (Max Rheinstein)298
His humour and shrewdness were known too among the students of Göttingen, Bonn and Berlin Universities. This accounts for the fact that lectures even on dullest topics in the field of law were crowded by hundreds of listeners. His deep knowledge of history as well as his perfect command of ancient and modern languages and literature made his company attractive to many of the most outstanding scholars in Berlin. (Jakob Rosenberg)299
… if the intention is to procure an outstanding scholar, no better choice could be made than Prof. Schulz …. ranks with Profs Levy, Wenger, Koschaker and a few others at the top of the scale in Roman law. (A. Arthur Schiller)300
I… had plenty of opportunity to observe his striking success as a teacher. As a scholar it seemed to be the general opinion that he was in Germany, and perhaps internationally, the first man in the field of Roman law, or second only to Ernst Levy, who is now old and past his work …. There cannot be any doubt that that eminent scholar would add lustre to Harvard both in the field of Roman law and in cognate fields. (Joseph A. Schumpeter)301
There are of course many brilliant men seeking positions at present, some of whom I know better. But it is only just to say that I can hardly think of a better than him. (F. de Zulueta)302
Unfortunately Schulz had only some, and not very extended, experience in the field of comparative law, which was considered to be of importance by the Harvard administrators, to whom it also seemed somewhat doubtful whether Schulz had the qualities of a ‘roving’ lecturer. In the end, no offer was made. In another case, Felix Frankfurter was told by Alvin Johnson, the President of the (p.144) New School of Social Research, that he had to present a stony face to the refugees who were coming in increasing numbers: ‘The universities do not want any more. This is particularly true of those who have been trained for law’.303 Schulz was also unsuccessful in his application for the vacant chair of Roman law at the University of Witwatersrand, Johannesburg.
Schulz's situation after the November pogroms was described by Gerhart Husserl:304
I do not exaggerate in describing his situation as it has developed during the last few months as desperate. He himself now fully realizes that dire necessity of leaving Germany as soon as possible and at any costs. The Schulzes were lucky enough to find assistance of generous friends in England and America in getting their children out of Germany.
One extant S.O.S. letter was written by Schulz to V. de S. Pinto of University College, Nottingham.305 Schulz offered to give lectures in ancient history, Latin philology, or even German language or literature:306
I myself hoped that it would be possible for me to live here in Berlin a retired life and to continue my research work. The events of the last weeks have smashed this hope totally. It is now quite clear that I must leave this country in the course of next year. I cannot even find an adequate flat for my wife and me, because a ‘Jew’ must no longer live in this house. As I don't possess any property which I could take abroad (except my library and the furniture) and my pension cannot be transferred, I must try to find a job by which I can get at least the minimum of living for my wife and me (my relatives in America will take care of the children). As I am 59 years old, though in excellent health, I must try to find a job which is not too far away from the work of my former and present life.
An American observer stated that Schulz now faced ‘three possibilities: Emigration, Suicide, the Ghetto’.307
IV. Escape to Freedom (1939)
1. An Oxford lifeline: The Manual of Roman Law
Getting Schulz to England was primarily due to a joint effort by Balliol College (Oxford) and Kenneth Sisam of the OUP.308 It was not at all a smooth move. (p.145) A multitude of difficulties had to be tackled: a financial basis for Schulz's maintenance had to be found, an entry permit had to be procured, and, last but not least, Schulz's own reluctance had to be overcome.
The sympathy of Balliol men to the plight of German scholars had already been aroused in 1933 by the case of Hans Krebs, the biochemist.309 Balliol's Master, A. D. Lindsay,310 a politically active socialist as well as a deeply religious man, was dedicated to responding to the demands of the time. He was also to stand (unsuccessfully) as an Independent anti-appeasement candidate in the October 1939 Oxford by-election. The College, living up to its reputation as academically ambitious as well as socially conscious, looked out for distinguished scholars subjected to Nazi persecution and tried to find means to assist them. A ‘College Academic Refugee Fund’ was set up and in 1935 another refugee, Albrecht Mendelssohn Bartholdy,311 was elected to a fellowship. Schulz's case was handled, as far as the relationship with OUP was concerned, by Cyril Bailey, Balliol's Senior Fellow, a devout Christian, and one of the Delegates of OUP.312 As a classicist Bailey had some affinity to Roman law; he had collaborated with Francis de Zulueta, then the Oxford Romanist.313 To get Schulz into England also required negotiations with the Home Office and the Society for the Protection of Science and Learning (SPSL). These negotiations were conducted, on Balliol's side, by R. P. Bell, a physical chemist, who in the 1930s was much involved in assisting refugees from Germany and other countries.314
The SPSL, founded in May 1933 under the name of ‘Academic Assistance Council’ (AAC), tried to assist the settlement of academic refugees, regardless of race or religion.315 It also functioned as a go-between to the Home Office and was close to official Government policies. Like the Home Office, the SPSL was therefore inclined to see Great Britain primarily as a country of transit. It (p.146) also provided refugee scholars with small emergency grants as ‘lifebelts’. The SPSL (then still the AAC) had registered Schulz as a potential refugee back in September 1933, judging him to be ‘the “first” professor in Roman law in Germany. Knows continental law very well; an eminent man. Generally judged as one of the best professors and scholars of the Berlin university’.316 From its early days the SPSL had followed Schulz's unsuccessful attempts to find an overseas position. The SPSL assumed that his age was held against him,317 although he was said to have ‘preserved his youthfulness of spirit in work and relaxation’:318 ‘He looks considerably younger, and certainly there are no signs of old age inflexibility or any lack of adaptability noticeable in him’.319 H. F. Jolowicz, Martin Wolff, and F. A. Mann, all of them then in London, lobbied intensively on behalf of Schulz. After the November 1938 pogroms, Mann urged the SPSL to enable Schulz, whom he by now saw in ‘acute danger of life’, to emigrate.320 Soon afterwards, in December 1938, Balliol's J. P. Bell began to negotiate with the SPSL about Schulz's emigration:321
I have very enthusiastic letters from Professor Jolowicz (University College London) and Tylor322 has a high opinion of his work. The chief trouble is that Roman law is not a very marketable commodity, except in this country or in France, so that there would be little chance of him getting to America. On the other hand, I understand from Tylor that one of the standard texts on Roman law323 is very badly in need of revision and that this is a job which Schulz might well do and which would occupy him for a considerable time. I am writing to the Press here about the possibility of something like this and I will let you know as soon as I hear anything from them.
The SPSL General Secretary's reply showed sympathy mixed with some reluctance:324
As regards Fritz Schulz we know all about him and would gladly have helped him in the past. My own hope had been that Pringsheim, an almost equally eminent Roman civilian now going to Merton, might be taken in at Edinburgh and leave room for Schulz at Merton. Schulz is no longer young and as you rightly observe there are few openings for Roman lawyers except in Scotland and South Africa and in the latter case they won't accept Jews.
(p.147) The central requirement for Schulz's move to England was to provide him with some source of maintenance. With this in mind, Balliol's Bailey had asked Kenneth Sisam of the OUP, whether the Press might help to get Schulz out of Germany.325 An OUP contract could be a proof of support in England. The OUP consulted its authors about the sort of book Schulz should be invited to write. For some time the idea of Schulz doing a revision of Poste's Gaius 326 was discussed. De Zulueta, however, recommended that the Press should commission Schulz to write a Manual of Roman Law.327 Sisam was happy with this suggestion. He informed R. P. Bell of Balliol College328 that the Press could commission Schulz to write a Manual of Roman Law, ‘simpler and more readable than Buckland's Manual,329 but with more concern for the jurisprudential basis of Roman law than is shown in Leage's Roman Private Law’.330 Sisam suggested that the work, written in German, as was envisaged, could be translated by Jolowicz. On 31 January 1939, Sisam formally invited Schulz to write for the OUP, over a period of two years, a Manual of Roman Law. For this he would receive £100 a year.331 This was a most crucial letter: it was indeed a lifeline. Schulz took the letter straight to the British Consulate. The Consul declared willingness in principle to issue a visa. On this basis Schulz also applied for a German passport, which he got.332 However, he did not yet have an English entry permit.
A word must be said about Kenneth Sisam (1887–1971), who became the single most important English person for Schulz. Sisam was also a crucial figure for many other refugee scholars.333 He had studied English in Oxford as a Rhodes Scholar from New Zealand. A specialist of Old and Middle English, he became one of the ‘scholar-editors’ who at that time provided the backbone of OUP's publishing.334 In 1938 he was Assistant Secretary to the Delegates of the OUP. The then long-standing Secretary to the Delegates (in modern terms the Press's managing director), Robert William Chapman,335 had begun to leave routine matters to Sisam, who therefore to a large extent acted as the Press's de facto chief executive. In 1942, Sisam formally succeeded Chapman. Sisam steered the Press through the difficulties of paper, coal, and book rationing (p.148) during the war and afterwards. He was made an Honorary Fellow of Merton College. He retired in 1948.
2. Dutch hospitality
When, due to pressure by the Gestapo,336 the lease of Fritz and Martha Schulz's apartment was terminated at the end of March 1939,337 matters became urgent. For the first ten days of April they were given shelter by Erich Kaufmann.338 On 11 April 1939, Fritz and Martha Schulz left Germany for The Netherlands, to which339 he had obtained an entry permit.340 Schulz was now 59 years old, and a poor man. He had to borrow the funds to reach Holland,341 and by leaving Germany he effectively stood to lose his professorial pension, since money could not be transferred out of Germany.342
Fritz and Martha Schulz first lived in a boarding house in Bilthoven near Utrecht.343 In Utrecht, Schulz was able to use the university library.344 The cost of boarding and some pocket money were provided by the Dutch Academisch Steunfonds (Academic Relief Fund). This was a non-religious relief organization, which tried to assist refugee ‘scholars of undisputed scientific merit’ to continue their work outside Germany.345 Its President was the Amsterdam law (p.149) professor, Paul Scholten.346 The Dutch professors, who had founded the Steunfonds in 1933,347 tried to alleviate the disruptive effects that the recent political upheavals had had on the international scientific community and the ongoing research. Since to many foreign universities the outstanding German scientists seemed a valuable acquisition, the Steunfonds at first managed to raise considerable funds, also from scientific societies, for temporary support in The Netherlands and for international placement activities. However, the money dwindled and the Steunfonds became anxious not to commit itself permanently to support refugees. The assistance given to Schulz by the Steunfonds had probably been arranged by Julius van Oven.348 It was van Oven who oversaw the emigration of Schulz to The Netherlands and who relentlessly assisted and helped Schulz and his wife in various ways. Van Oven was, and continued to be, an admirer of Schulz, whom he had probably met in person during the Conference held in April 1933 at Rome.349 Like Schulz, van Oven had half-Jewish parentage. He was probably as far from observant Judaism as Schulz. For many years van Oven had actively promoted anti-Nazi awareness in The Netherlands, and he now greatly helped a number of emigrants.350 As a result of his activities, he was ordered to leave Leyden in 1942 and banished to Boekelo.
Dutch colleagues tried to make the best possible use of Schulz's presence. Hendrik Richard Hoetink,351 who held the chair of Roman law at Amsterdam, invited Schulz to give one of his lectures to Hoetink's Roman law class, and one day in the spring of 1939 the first-year law students in Amsterdam, including Robert Feenstra, found themselves lectured to by him.352 Schulz's four months in The Netherlands also showed remarkably renewed productivity. In Leyden he finished ‘Fragmente des liber singularis de legatis?’, which was accepted by the Tijdschrift voor rechtsgeschiedenis.353 A letter van Oven wrote to the (p.150) publisher354 highlights Schulz's poor situation, as well as his ability to show high spirits in spite of adverse circumstances:355
… could this not for once be honored by a small sum … Prof. Schulz has come from Germany sans le sou; even his (wrist-)watch has been taken away from him. He now has a roof over his head and does not have to worry about his maintenance and feels rich as a king, but he does lack a little money for a stamp or some tobacco. … If we could pay him a honorarium of about 25 Dutch guilders, it would mean quite a capital sum to him.
Twenty-five Dutch guilders were passed privately from the publisher to Schulz, making sure it was not taken to be an honorarium coming from the Tijdschrift.356 To keep Schulz afloat, he was given a scholarly assignment by the Grotiana Foundation. Pursuing a project conceived by van Vollenhoven, it was sought to identify the authors and the specific texts on which Hugo Grotius had drawn in writing his De iure belli ac pads libri tres. This included checking and correcting Grotius’ references, in so far as they proved to be wrong or misleading, as well as identifying sources that were not openly referred to by Grotius himself.357 The passages used by Grotius were to be reproduced verbatim in a planned ‘editio maior’ of the libri tres, or as an addendum to such an edition. By 1939, experience had shown that the project could be mastered only by a senior scholar. Probably at the suggestion of van Oven, Fritz Schulz was approached. He agreed to do it and started a slip box of reference. He continued this work after settling in Oxford,358 but there it seems to have petered out, perhaps due to the interruption of communications after The Netherlands were occupied in May 1940. The work on Grotius’ sources was similar to the research Schulz was to undertake, not much later, into the Bractonian text.
Sometime in May 1939 the Schulzes moved to Leyden, where van Oven held the chair of Roman law. Van Oven was unable to accommodate Fritz and Martha Schulz himself, but sought the help of Willem Bernard Henri Albert Heskes (1904–2001) and his wife.359 Heskes was a practising lawyer,360 as well (p.151) as a renowned private coach (Repetitor) of Roman law for the Leyden law students.361 He had read Roman law with van Oven, and, while he had no academic credentials of his own, he was on good terms with the Dutch academia of his time. The Heskes couple lived at 11 Rapenburg, a prestigious location in the immediate vicinity of the university.362 Having no children, they had some spare rooms (which they also let out to students) and Fritz and Martha Schulz moved into these. In Leyden, Schulz started to work on the History of Roman Legal Science,363 then conceived as a mere chapter of the planned Oxford History of Legal Science.364 When it was published in 1946, Schulz thanked the Dutch universities that had come to his aid, ‘in a critical and almost desperate position … from the bottom of my heart’.365
3. Holland or England?
The activity in England to facilitate Schulz's immigration, started in December 1938, had not ceased. At a College Meeting of 13 January 1939—Schulz was still in Germany-Balliol decided to provide Schulz with £100 if he came to England.366 This was not an altogether small sum at the time. Also, it would have contributed to enable Schulz to demonstrate that as an immigrant he had sufficient support in England. The £200 fee for the Manual of Roman Law, together with Balliol's one-off payment of £100, meant that Schulz could count on having £300. Assuming that the sum was stretched over two years, the couple would have to live on £150 a year. However, even the £250 which the SPSL gave as ‘emergency grants’ to married scholars provided only ‘what would be called today an “austerity” basis’.367
In these circumstances, Schulz was unwilling to grasp the lifeline which the OUP and Balliol College had thrown to him. On 23 April 1939, when he was still living in the boarding house near Utrecht, Schulz informed the OUP that the Academisch Steunfonds seemed prepared to pay him a certain sum, probably 100 Dutch guilders per month.368 This would enable him to take a flat of two or three rooms. He therefore considered staying in The Netherlands for two years. He stated that he was not going to use Balliol's and the OUP's offer to come to England. He would rather, he explained, write the Manual in Holland: ‘My idea is to give a real basis for earnest scientific work by a combination of (p.152) the English and Dutch help.’ Schulz seems not to have realized that his—understandable—reservations jeopardized his and his wife's escape. Frantic rescue activities on both sides of the English Channel came to a climax in the following months of 1939.
Schulz's reluctance to move to England came as quite a surprise to those in Oxford. Sisam immediately turned to Cyril Bailey,369 confirming Schulz's view that £100 per annum for two years was ‘not enough to keep him on even a narrow basis’. Nevertheless, Sisam did not want Schulz to stay in Holland:
We were partly moved by the desire to get him out of Germany; partly by the desire to get him here;… Schulz is a first-rate man and also personally attractive. Is there any hope of the College being able to do a little more for him under the circumstances, now that Conrad370 has lapsed?
Sisam also explained to de Zulueta that Schulz ‘ought to be in an English atmosphere to do a book needed by English readers, who have an outlook on Roman law different from the Germans’.371 Sisam continued to struggle for an improved financial offer. He was not altogether content with BallioPs promise:372 ‘I had myself thought that he would be offered rather more on the Academic side’.373 For a moment Sisam, too, began to wonder whether it was indeed not better for Schulz to stay in Holland. He confided to Bailey: ‘I am bound to agree with Schulz that another £50 a year is not enough to keep him and his wife even in the minimum of comfort; it would be much better not to have him in the country at all than to keep him in misery.’374 And to de Zulueta he wrote: ‘There is not much point in inviting distinguished professors here as refugees if they are to be on a semi-starvation basis, nor will it do the University any credit.’375
Other Colleges were approached to see whether further support might be given to enable Schulz and his wife to live in England. The General Secretary of the SPSL was in contact with All Souls376 and with Hardie377 of Magdalen. He wrote to Hardie, stating:378
Balliol is ready we understand to pay him £100 and he has a promise of £200 spread over two years for some publication project. We also understand that All Souls might be (p.153) interested in making up this sum to a higher figure. Nevertheless as Schulz seems to us a really good Roman Lawyer and his case is an urgent one, we would strongly support Magdalen joining with Balliol and All Souls in making quite certain that Schulz gets out of Germany.
When the SPSL's doubts concerning the adequacy of Schulz's maintenance had been communicated to the OUP, R. W. Chapman, the Secretary to the Delegates, asked the President of Magdalen,379 which was also his own college, for help. Praising Schulz as ‘a very great man’, ‘quite accommodating and very agreeable’, he set forth the financial difficulties of getting him to England: ‘I know nothing at all about the state of Magdalen's fund, but you may think it worth consideration in view of Schulz's great eminence and the virtual certainty that his residence here would produce an important book.’380 Magdalen's President responded with a somewhat tentative promise: ‘[I]f what you can do for the second year is not enough it might be made up.’381 Since in early May Schulz had been asked and agreed to contribute a piece on Roman law for the Oxford History of Legal Science, he could expect another £100.382 This added up to a total of £400 for the first two years; this sum might be supplemented by additional help from Magdalen in the second year.
Meanwhile, another and far more serious difficulty arose as a result of the need to have an entry permit for England.383 From December 1938 R. P. Bell had been in communication with the SPSL over this issue. Bell had asked the SPSL whether, on the basis of the OUP contract and a £100 grant from Balliol, the SPSL was willing to apply, on behalf of Schulz, for an entry permit. The answer was not encouraging: ‘I am afraid that just at the moment we will not be able to apply for Schulz, as despite the provisions offered it does not seem to us safe to get a man almost 60 years old out without more permanent plans.’384 When Bell insisted on a clear-cut answer,385 the SPSL specified its concern:386
I am afraid that this case stands very little chance of getting a permit on the basis of 2 years guarantee which is all that exists at the moment. In view of Schulz's age I am quite sure that either a longer job or a bigger guarantee would be necessary before they would consider giving a visa.
(p.154) Bell, who had made it clear that Balliol intended to persevere with the case of Schulz,387 came back to the SPSL in May: ‘… do you think you might be able to find £50 for him, possibly out of contributions from Oxford Colleges, and in that case would you be prepared to put in the application for his permit?’388 The answer revealed that all the previous activities had in fact not addressed a central problem, as the SPSL saw it, namely, Schulz's maintenance after the first two years. It was the chief difficulty about Schulz's case, that
we should have to give the Home Office details of his prospects at the end of the first two years which are provided for, in order to get a visa.389
… We are still far from clear as to whether we are justified in approaching the Home Office on his behalf.… The difficulty is to know what to do with him when the grant expires.390
The need for a permanent guarantee, that Schulz would be provided for, put the Oxford men at a loss. Bell immediately informed Cyril Bailey that the problem of Schulz's maintenance had been considerably aggravated because of the SPSL's concern about the longer term:391
The real trouble is getting a permit for him. The S.P.S.L. are still not convinced that there are any future prospects for him in this country after 2 years, and are hence unwilling to support his application. They have not definitively refused to do this, but are still making inquiries about his children and about the chances of Harvard taking him.
Bailey passed Bell's warning to Sisam on the same day. The issue of the entry permit reinforced Sisam's doubts. He replied that ‘the best course would probably be to advise him to stay out in Holland if they can look after him better’.392 When Chapman replied to Bailey on the moot point of the entry permit he was also unable to strike a hopeful note: ‘If they won't let him in without a guarantee for life, that's that. But surely many people are coming in with very vague futures?’393
With the problem of long-term maintenance still unsettled, Sisam let Schulz know that there would eventually be some additional help in the second year. He then turned to the issue of a permit:394
But then I stumble upon a fresh difficulty, which may or may not be unreal. As you probably know, permits to reside in England are not so easily obtained from our Home Office; and it is said that the Society for the Protection of Science and Learning is not willing to (p.155) support applications from persons of a certain age, without an assurance of indefinite maintenance, i.e. they would not support an application based on a promise of maintenance for one or two years.
Indefinite maintenance, Sisam explained to Schulz, was not something Oxford colleges, working on annual allocations, could promise. Yet Sisam again encouraged Schulz to leave Holland for England. He again referred to the specific ‘English outlook’ on Roman law as differing from the Continental one. Schulz replied promptly, but his answer was not the clear-cut decision to come to England for which Sisam may have hoped.395 Schulz reported that his library and his furniture had arrived in Holland. Although he declared his general willingness to settle in England, he obviously did not see this move as something to be undertaken in the near future: ‘A Dutch advocaat is kind enough to give me quite a wonderful hospitality. … It is however clear that I must not use this hospitality for too long a period.’ He had also realized, Schulz admitted, that the Dutch Academisch Steunfonds was in fact rather small. He proposed to come for a short visit to Oxford to talk matters over. Indeed, from 15 to 21 June 1939 Schulz was in Oxford, where he stayed with Eduard Fraenkel.396 Since Sisam was away from Oxford on 16 June, Schulz saw J. Mulgan and R. W. Chapman of the OUP, who later told Sisam: ‘Schulz walked in and was pleasant, businesslike and brief…. He is perfectly happy at Leyden, having got his books through from Germany and enjoying pleasing hospitality.’397
Schulz declared his intention to stay in Holland until next spring. He had decided to finish his contribution to the Oxford History of Legal Science before starting work on the Manual of Roman Law. Schulz also wanted to wait for the decision which he expected Harvard University would take in October or November of 1939.398 From Oxford Schulz travelled to London, where he stayed with F. A. Mann and went to the SPSL offices to discuss his case. At this time the means were found to tackle the issue of long-term maintenance: Schulz's brother-in-law Dr Alfred Plaut, now living in New York,399 was asked for an affidavit.
Fritz Schulz was still reluctant to move to England. While in Germany he had extended his application for a permit to settle abroad, initially confined to the UK, to The Netherlands.400 This permit was granted in May 1939, making it legal, under German law, for him to take up permanent residence in The (p.156) Netherlands.401 By contrast, Martha Schulz had long made up her mind. She pressed her husband to go to England. To end the period of nerve-racking indecisiveness, she declared that if he did not come with her, she would have to go alone.402 She knew this would leave him little choice. As soon as it became possible, they departed together. As Fritz Schulz had rightly sensed, this was to be a descent into poverty. But then it was to be Martha Schulz who, in England, sustained and in fact greatly alleviated the burden of poverty by a stunning display of activity. Her determination in getting them away from the Continent is echoed in the words, adapted from the Laudatio Turiae, which Fritz Schulz later used to dedicate the History of Roman Legal Science to his wife:403 Repentinis tuis nuntiis ad praesentia et imminentia vitanda excitatus conservatus sum.404 These words indeed might have been written for this very occasion.405
4. Entry to England
The American affidavit was still on its way when J. P. Bell pressed the SPSL finally to go ahead. He referred to the £400 that Schulz would have for the first two years and to Dr Plaut's expected affidavit:406
It seems to me that these are sufficient grounds for applying for a permit, but in any case it would be a great convenience both to him and to us if you could state definitively whether or not the S.P.S.L. will back his case.
When Plaut sent the now all-important cable on 7 July,407 the SPSL immediately took Schulz's case to the Home Office, stressing that he ‘has a world reputation as a foremost professor of Roman law in Germany’.408 Schulz, who was informed accordingly,409 replied:410
With reference to your letter of August 10th I beg to inform you that I have applied to the British consul in The Hague and got the visa for my wife and me. My wife and I planned to travel to Oxford next week to seek for a lodging for us. During the present menace of war we think it wise to postpone this travel.
(p.157) However, it was not the time to hesitate any longer. Schulz himself realized this and a few days later wrote from Oxford to the SPSL: ‘As the situation became more and more critical, I took a quick resolution and left Holland with my wife last Saturday night. I want to be in the same boat with you and my three children.’411 As it turned out, it had been a most narrow escape. Fritz and Martha Schulz left Holland on 26 August 1939 on the last ship to sail to England before the war started on 1 September 1939.412
Being anxious that the train travel might be interrupted by war, the Schulzes had gone straight to Oxford. Oxford was one of the few places where Schulz could expect to find the library facilities he needed to continue the History of Roman Legal Science and then to write the Manual of Roman Law. Most of the men who had helped Schulz and his wife to get out of the reach of the Nazi terror were in Oxford. Last but not least, his two daughters were also there. The following Saturday they returned to London to pay a visit to F. A. Mann, who recalled that ‘on 2 September 1939 he [Schulz] and his wife suddenly appeared at our house in London’.413 It was the day between the German invasion of Poland and the British declaration of war on Germany.
The couple first moved from one provisional lodging in Oxford to another,414 but soon ended up living in a furnished room at 6 St Margaret's Road provided by Felix Jacoby415 and his wife.416 On 10 October 1939, Schulz telephoned the OUP to let them know he had arrived in Oxford and was staying with Jacoby, ‘evidently prepared to live frugally’.417 The family was reunited in Oxford at Christmas 1939. It was a reunion of a family left destitute. As Christmas presents the family members ‘gave’ each other books they had borrowed from the Oxford public library.418
Fritz and Martha Schulz had come to England practically empty-handed. They could not bring their personal items, including Schulz's library, which they had managed to take out of Germany. However, they had a positive predisposition for their new country. Fritz Schulz had had a liking for England from the time of his childhood and had taken an interest in English law from early on. Rather than being overly patriotic, much less nationalistic, he was an open-minded, sceptical liberal, quite amenable to the English ‘way of life’. Having read many English authors, mostly of the nineteenth century, Schulz also had (p.158) a secure command of English grammar and an extensive, though sometimes slightly antiquated, vocabulary.
5. Douglas, Isle of Man
Fritz Schulz had come to a country which, within days of his arrival, found itself at war with Germany. From the end of September 1939, all ‘enemy aliens’ were examined by special tribunals which had to classify each of them (there were around 70,000) as either certainly dangerous, to be interned forthwith (‘A-class’), or certainly friendly (‘C-class’), and to assign all doubtful cases to an intermediate ‘B-class’.419 The requirement of classification depended on nationality, not on affiliation to the Nazi war cause, so being a refugee was not a ground for exemption. Schulz and his family were classified ‘C’, designated ‘enemy alien, victim of Nazi persecution’.420 At first their movements were but mildly restricted, though they were compelled to report regularly to the police. For the time being, no other action was taken against ‘friendly’ enemy aliens.
After eight months of the so-called ‘phoney war’, the German invasions of Norway in April 1940 and in May of The Netherlands, Belgium, and France posed the immediate threat of an invasion of the British Isles. Since it was assumed that ‘Fifth Columnists’ had been responsible for quick defeat of The Netherlands, it was decided to arrest and intern all enemy aliens, including the refugees.421 In the panic of Dunkirk, B-class refugees, both men and women, were hastily interned in May, but it was only towards the end of June that an order was issued also to arrest all male refugees in category C under the age of 70. On Friday, 5 July 1940 Schulz was arrested,422 his wife being left behind. Together with scholars in all fields, including Paul Maas423 and Max Grünhut,424 he was taken in a Black Maria to the Oxford police station. When they passed the building of the University Press, a man came out and handed over ‘Books for the Gentlemen’.425 The Oxford internees arrested on this day, a most illustrious assembly, soon made friends and were later known as the ‘Oxford Group’. Travelling via Cowley Barracks and Seaton (Devon), they were taken to Bury (p.159) Lancashire), where they stayed at the Warth Mill, used as a transit camp.426 On 16 July 1940,427 Schulz was taken to Liverpool docks to be shipped to Douglas, the capital of the Isle of Man. The Isle of Man had served as an encampment for internees and German prisoners of war in the First World War, and was now used for the purpose of internment. Together with the other members of the Oxford Group, Schulz was placed in Hutchinson camp, consisting of about forty requisitioned boarding houses cut off from the rest of Douglas by barbed wire.428 The camp held around 1,200 men, 80 per cent of Jewish descent.429 Probably the worst hardship was to be cut off from all communication. The rest of Schulz's family was left for weeks with no information on his whereabouts. Food, sometimes a problem in the camp,430 became much better for Schulz when a chef was taken into the boarding house where he lived.431 It was summer, and Schulz and others were able to go swimming, guarded by soldiers with rifles and bayonets. There were plenty of lectures given by specialists from all fields, as well as concerts. When his neighbours in No. 24, a centre of the camp's spiritual life, gathered to interpret the Odyssey under the guidance of Rudolf Pfeiffer,432 Schulz was a permanent guest.433 Sadly enough, his ‘membership’ of the Isle of Man's ‘Oxford Group’ remained Schulz's closest personal affiliation with Oxford academia over the next seventeen years.
The internment caused new difficulties for Martha Schulz. Owing to its statutes, the SPSL had to discontinue the payments to Schulz, since these were considered to be research grants and due to his internment Schulz was unable to do any research.434 An intervention by J. P. Bell, however, ensured that the stopping of payments did not extend to the grant which, although administered by SPSL, was in fact given by Balliol.435 The SPSL itself provided Martha Schulz with a small surrogate grant.
Meanwhile, increasing doubts were raised about the legality of the wholesale internment436 and its soundness as part of the overall war policy.437 It was contended that the Government had ‘declared war on the wrong people’,438 most internees being refugees who had been driven out of their home country by (p.160) Nazi rule or by German occupation, and who were as opposed as the British were to Hitler's Germany. ‘Anti-Nazi exiles and Jewish refugees were scooped up along with German nationalists’,439 the latter probably being but a tiny minority of the internees. Some of the interned scientists were vital for the continuation of ongoing research.440 The Government made certain categories of persons, such as C-class refugees ‘of academic distinction for whom work of importance in their special fields is available’, eligible for release from internment.441 The SPSL and other committees reconsidered the interned scholars and made recommendations to special tribunals which decided upon the release. In listing the Oxford scholar internees, Schulz was ranked, together with Grünhut and Martin Wolff, as a ‘major scholar’.442 He was released and returned to Oxford on 13 October 1940.443
V. OXFORD (1939–1946)
1. 5 Tackley Place
While in Germany, Martha Schulz had managed the comings and goings of a grand professorial household, over which her husband, ‘a true pater familias,444 had presided. Flight and resettlement, with the loss of the professorial income, household, and status, made for a remarkable shift in marital responsibilities.445 Martha Schulz, as independent in spirit as her husband and eight years younger, energetically took matters into her hands. ‘Ein Jud drückt sich immer durch’,446 she taught their children never to be at their wits’ end. Quite soon after their arrival in Oxford, in the winter of 1939, Schulz leased 5 Tackley Place from St John's College. The house, not far from the Bodleian Library, seemed large for the Schulz couple447 and was very run down even for the standards of the time. The rent was a moderate £65 a year,448 still quite a sum for Schulz, but Martha Schulz had set her mind on using the house in an entrepreneurial way. She procured mattresses from the Red Cross and some fruit boxes from the market, using some odd cloth to improve the rooms, which she then rented out, partly (p.161) to Londoners who wanted to get away from the capital and the Blitz. She also provided meals for the tenants, and it was for this purpose that she started to cook, declaring that someone who had done laboratory work and could read cookery books would of course be able to cook. One of their lodgers was Paul Maas,449 a Greek scholar and another textual critic,450 with whom Schulz occasionally cooperated.451 Martha Schulz also joined an International Women's Committee and mixed with university staff, getting to know the Principals of the four women's colleges. As a result of the contacts thus made she began to offer German lessons to English pupils who, because of the war, could not go to Germany to practise and improve their language skills. During the summer holidays, girls from various public schools came to Oxford to stay at 5 Tackley Place to be taught German literature by Martha Schulz. When Dorothea Schulz had successfully finished grammar school she left her foster-parents and moved into the only spare room, the bathroom, which she vacated early in the morning to earn some money delivering newspapers. The Oxford Refugee Committee ran an employment agency that sought to find jobs for the refugees within the small range of occupations permitted.452 Martha Schulz was entrusted with the running of this agency, and this part-time occupation made another contribution to their livelihood. Additionally, the rent that foreign students had paid in the mid-1930s initially to F. A. Mann for accommodation in Berlin, was now paid over to Martha Schulz.453 Rationing, introduced in January 1940, greatly helped the Schulzes, since it meant that basic food was available without further straining the little money they had at hand. In 1943 Martha Schulz was in contact with the British Federation of University Women and impressions of her activities were reported back to the SPSL:454
Martha Schulz was as pleasant and kind as ever. It is wonderful the amount of work she does without the slightest fuss; she doesn't even seem to be in a hurry. She is always in high spirits, always content, always ready to listen to others and help them …. Mrs Schulz takes an English boarder who pays about 3 guineas a week, and managed to run (p.162) her household on this amount. She has even saved quite a lot during the last year or two …. She tells me that everybody is most kind and helpful but that she much prefers not to have to accept grants if it is not necessary, and she definitively feels that it is not for the present.
Martha Schulz fought a continuous battle, but ‘all of these goings-on were totally unknown to Schulz, one of the most unworldly of men’.455 Quoting words of the Laudatio Turiae, the husband could have said of his wife, ‘custo-diam fortunae meae sustinuit’.456 Schulz grew increasingly dependent on his wife. As Barry Nicholas457 recalled, ‘Frau Schulz was in all practical matters the motor and the anchor of the family and justifiably enjoyed her position’.458 It became impossible to think of the husband without the wife. Both the praise of the purely humanistic Roman idea of ‘marriage as being a free and freely dissoluble union of two equal partners for life’ and the scorn for patriarchal husbands of all times, which Schulz expresses in Classical Roman Law,459 can be seen as reflecting his very own marriage460—as it had come to be, one must probably add, after the flight from Germany.
In April 1940, shortly before the German occupation of The Netherlands, Schulz had managed to get decisive parts of his library transferred from Leyden to Oxford and crammed the books with great difficulty into his study.461 Tackley Place remained very run down; visitors from Germany, who had known the grandeur of the former homes of the family, must have been quite shocked. In the late 1960s, Martha Schulz was able to acquire thefreehold of 5 Tackley Place by virtue of the Leasehold Reform Act 1967.
2. A patchwork of support
Despite Martha Schulz's efforts, the family remained in very straitened circumstances and had to rely on the support of others. When increasing numbers of scientist and scholar refugees began to arrive in the British Isles, ‘innumerable committees sprang up in Britain to help the refugees, formed by, inter alia, the Quakers, the churches, academics and doctors’.462 Although persecuted on political grounds, Schulz was not a ‘political’ refugee and was thus not taken care of by any of the political organizations of exiles. Moreover, while his persecution and emigration were also due to his and his wife's Jewish ancestry, Schulz was and remained a Protestant Christian. In his case, a considerable part of the relief which was provided for him and his family came from Christian charities, the Oxford Refugee Committee being the most notable (p.163) organization. International anti-Nazi solidarity, sometimes though not necessarily linked to left-wing politics, also played some role, for example on the part of Balliol College. (This had also been of some importance to Schulz's Dutch colleagues.)
Among those who cared for Schulz and his family, F. A. Mann stood out. He was especially concerned to help the children.463 In Oxford it was, above all, Kenneth Sisam of the OUP who continued to support Schulz by paying, mostly in quarterly instalments, advances for the books that he had been commissioned to write, but also by coordinating other assistance given to Schulz and his family. Clearly Sisam had taken to Schulz, who closely resembled Sisam's idea of what a model Clarendon Press author should be, namely a classical scholar, ‘exemplary both in conduct and attainment… greatly learned, innocent, industrious, untouched by avarice’.464 Sisam's care for Schulz extended well beyond providing financial maintenance:
Once a book was accepted in principle by the Delegates, the author became in his [Sisam's] view one of the family, entitled to certain privileges and help in emergencies …. Sisam's fatherly help was often needed …. When Schulz broke a tooth, he [Sisam] had to arrange the dental appointment and pay the bill.465
Schulz well realized what he had in Kenneth Sisam. In 1946, he wrote to F. A. Mann that Sisam was his ‘only active friend’.466 In his Classical Roman Law, Schulz speaks of the Roman concept of Friendship:
It was part of one's officium to support a friend as far as possible. When Cicero was in exile his family in Rome was in pecuniary embarrassment, but, as he wrote reassuringly to his wife, Ad. Fam. 14.1.5, ‘si erunt in officio amici, pecunia non deerit’.467
Sisam, whom Schulz may well have had in mind when he wrote these lines, was indeed a friend.
The SPSL had set its grants to married scholars at a rate of £250 a year. Since Schulz initially had £200 a year from Balliol and the OUP, the SPSL granted him a supplementary £50 per year. Schulz did not enjoy this supplement for long. After the outbreak of the war the SPSL decided to reduce all its grants to the rate of £200 per annum for a married person. Schulz's grants from Balliol and the OUP were not, therefore, supplemented any longer.468 The grant of £100 that the SPSL had administered for Balliol was exhausted in September 1940. It was extended for three months to make up for the time Schulz had been interned, but it was then not renewed. In 1941, Schulz received an SPSL grant of £130 a year (OUP was now paying around £70 a year). In mid-1941 he (p.164) informed the SPSL that an unknown benefactor paid him for one year so that he would prefer to relinquish his SPSL grant.469 This benefactor was the Rockefeller Foundation.
3. The Rockefeller Foundation Programme
Schulz was not the only refugee whom the OUP, under the aegis of Kenneth Sisam, helped along these lines. By committing itself to contracts for scholarly books, the Press had come to support quite a number of scholars who had arrived in Oxford from all over Europe.470 It became increasingly difficult for the Press to shoulder all the support thus provided for the refugees. In the case of Schulz, the funds from Balliol expired. On 19 December 1940, Sisam approached George Adams,471 the Warden of All Souls. Adams, a man of consequence, ran an informal ‘Warden of All Souls Refugee Committee’, looking after academic refugees in Oxford.472 Sisam, a member of this Committee,473 expressed his grave concerns:
The Delegates of the Press can help only those few we think capable of producing first-rate works of learning …. Balliol was prepared to find £200 for each of several picked scholars, and the Press offered a further £200 (making up the necessary minimum) to help out, e.g. Professor Paul Maas of Königsberg … and Professor F. Schulz of Berlin, to whom we proposed a general work on Roman law. … It is hard to realise how much learning and teaching in England and America depended on the production of certain basic reference books on the Continent. The war has stopped their production there, and it will be a long time before it is resumed. Many of the men capable of producing these books are refugees; and to direct their ability into the right channels is something more than a necessary service to them: it would help to maintain the continuity of learning in all countries. At the Press we can see that this war has shaken that continuity in Europe as it has not been shaken for many centuries. There are few good scholars left free to work, and it is essential that those who are free should somehow be enabled to work.
Anything you can do to enlist help will be precious. Probably neither you nor I have any natural affection for aliens, but we can't stand by and see good scholars starve.474
(p.165) Adams turned to Tracy B. Kittredge, who represented, in an office in Paris, the Social Science Division of the Rockefeller Foundation in Europe; he was, from an American perspective, ‘the best informed man on European conditions’.475
The Rockefeller Foundation had been helping European refugee scholars since 1933.476 It focused on supporting outstanding scholars and scientists who could be expected to be quickly absorbed by other institutions. To avoid ‘confusion between the hard-boiled desire to save intellect and the humanitarian desire to save lives’,477 the Foundation decided to consider only requests coming from universities and other institutions of higher learning. In order not to encourage individual pleas for help, it did not make its grant programmes public. The Foundation was not unwilling to help also the refugees who were supported by the OUP. Rather than falling in with Sisam's activities the Americans considered giving grants to English universities to employ the refugee scholars. This would have been in line with other schemes of the Foundation. Sisam did not agree with this. Though his activities had begun with pragmatic acts of help on a small scale, he by now had a well-defined policy for the refugee scholar problem. This he set out in a letter to the Vice-Chancellor of Oxford University:478
There are, I think, two dangers: the one that first-rate scholars should starve, or lose heart through enforced idleness; the other that Universities should put many of them into administrative or teaching positions, perhaps encouraged to do so by the Rockefeller Grant, with the result that there will be a violent reaction against refugee scholars. Useful detached research seems to me to be the only safe way of employing them. No University could absorb many into its machinery.479
It was therefore his idea ‘to keep a limited number of the best of them employed on good and useful books, which the Press could publish’. Vis-à-vis the Rockefeller Foundation, Sisam stated his view that the scholars might be ‘too harassed by the uncertainties of mere existence to do the good work they could do’:
We have taken in hand several of them, but our business is primarily to publish the work that scholars and scholarly institutions produce, not to provide funds for the preparation of learned and unremunerative work; though of course we stretch the point wherever we can. This is a real social problem of the moment. The private and institutional sources usually available are mostly in difficulties in wartime, and are actually bound to cut off or cut down the help they are giving. We can only proceed by finding a subject on which a learned work is necessary, and providing some kind of minimum subsistence in the meantime.480
My summation of impression is that Sisam is a first-rate man and will do a good job in the promotion of scholarly activity with the collaboration of the [Rockefeller Foundation]. His terms of procedure, including the maximum grants to scholars and other practical adjustments, seem to be more completely realistic than anything I have heard from other quarters. In his opinion, the good people are quite willing to work on a maintenance salary if they can be afforded the opportunity for carrying out their studies, and have either publication, or some other expression, of their work.481
Realizing that most beneficiaries were classicists, the matter was transferred, within the Rockefeller Foundation, from ‘Social Sciences’ to the ‘Humanities’, where David H. Stevens482 and, as an Associate Director, John Marshall483 were in charge. Both men proved to be highly efficient partners for Sisam and vice versa.484 Their cooperation developed over the years, including transatlantic visits, and Stevens and Sisam obviously developed a mutual affection, which went well beyond the joint running of a grants programme.
The Rockefeller Foundation swiftly agreed on a programme, ‘Grants to the Delegates of the Oxford University Press for Refugee Scholars’, based on Sisam's concept and activities. The programme would provide about twelve to twenty scholars, who could not support themselves, with a sufficient subsistence allowance of up to £200 a year. Each should write an advanced treatise on a broad subject, in which he was an outstanding authority. The Rockefeller Foundation in May 1941 provided a grant of $10,000, to be administered by the delegates of the OUP, but which was in substance handled by Sisam himself. Schulz was among the first recipients. When in May 1941 he asked Sisam for another advance for the Manual,485 Sisam proposed to pay £200 to cover one year.486 He also proposed that Schulz should consider relinquishing the grant from the SPSL (or parts of it), for, as he explained, the SPSL was very short of money. Schulz did so. The money, paid out in £50 instalments, came from the Rockefeller Foundation. The origin of the money was not disclosed until later.487 Among the recipients of the Rockefeller Foundation money were, or came to be, R. Pfeiffer, A. Momigliano, P. Jacobsthal, F. Jacoby, F. Pringsheim, P. Kahle, the mathematician B. Segre, and the political scientist J. Neumann. The amounts paid out may seem modest, but more often than not they were vital. Schulz from (p.167) the very beginning was a figurehead of the whole programme.488 Two years later, in April 1943, Sisam, who had to report back to the Rockefeller Foundation, wrote:489
Generally, all the refugee scholars who received grants have made good progress with the major literary work they undertook.… Dr Schulz has completed his work on The Place of Roman Law in Legal Science, which, owing to our preoccupation with Government printing, must wait for production until the necessary labour is free.490
The contribution of the scholars assisted is not limited to their major works. Some have produced valuable articles on details of their research: thus Dr Schulz has published articles on ‘A collection of legal maxims on papyrus’,491 ‘The writ “Praecipe quod reddat” and its Continental models’,492 ‘Roman Registers of Births and Birth Certificates’,493 and ‘Critical Studies on Bracton's Treatise’.494
Again, I can give an excellent account of the industry, frugality, and loyal spirit of all those who have received grants. All of them have asked me to express to the Foundation their deep gratitude for the help that has been given to them and the subjects in which they are interested, at the time when their need was greatest.
Sisam proposed to continue the programme. Successively, three more grants between $3,000 and $2,000 each were provided by the Rockefeller Foundation, covering the years from 1942 to 1946.495 In October 1946, Sisam gave Stevens his final report:496
I can make a final report of these four grants in brief terms:—they fulfilled their purpose of encouraging refugee scholars to continue their learned work at a time when, without this encouragement, they might have despaired; they solved a number of human problems; and they have left no problems behind.
I attribute this success to the personal enquiries and contacts made for each of the scholars who has [been] helped; to the modest demands made by the really good scholars; to informal co-operation with other Oxford funds to avoid gaps and overlapping; and, above all, to the generous discretion which the Foundation gave in the application of the Grants, so long as their central purpose was maintained.
Not all of those who were helped in need could be required to produce great works of scholarship, but I think you will have reason to be satisfied with the learned works, which were encouraged by the Grants. Some of them have appeared already, others are (p.168) in our hands for printing, and others are still in prospect. The Press has published for Professor F. Schulz (Berlin) a fine work on Roman Legal Science (1946) and he is far advanced with a Manual of Roman Law which will be an original contribution to the subject ….
When I can show you all these volumes, I think you will be well pleased with their range and high standard of learning at a time when not many could give all their attention to the Humanities ….
By the rules of the Foundation, all these scholars are prohibited from thanking the Foundation for its encouragement in their books, but you may be sure of their lasting gratitude for the help that was given them at a critical time. And I repeat what I have said in earlier reports: it has been a pleasure for me to act on behalf of the Delegation in administering a plan which has so exactly fulfilled its purposes, and a particular pleasure to work with you and Marshall on the details of the scheme.
The Rockefeller grant secured Schulz's maintenance until 1946. When the little money that Martha Schulz had been able to save in these years was used up, poverty returned.
4. Oxford loneliness
In Oxford, there were only a few people Schulz knew or saw. Upon his arrival in October 1939, Sisam tried to help Schulz to get some contacts. He asked C. H. S. Fifoot497 to give Schulz friendly advice, should he come across him: ‘I cannot stand the refugees who are always grumbling about their hard lot at a time when most of us are having something hard to think about; but a few of them, and Schulz is one, are of a different class, and recognize that they are lucky to be here.’498 Fifoot was not unwilling to do as asked, but wondered whether Lawson might not be a more appropriate point of contact for Schulz.499 Schulz enjoyed ‘dining rights’ at Balliol, the college which had contributed to getting him out of Germany. But his rights were limited to one dinner once a month,500 which hardly enabled substantial interaction with other members of the college. Later Schulz stated that ‘the Master of Balliol has only a very superficial knowledge of me’.501 Of course, poverty itself and their appalling housing situation may have ensured that the Schulzes lived a life very much detached from the goings-on of Oxford's academic society.
When Schulz arrived at Oxford, the Regius Chair of Civil Law was held by Francis de Zulueta, and Schulz was to see two successors installed. De Zulueta and Schulz were roughly the same age, de Zulueta being one year younger. From the mid-1930s on, de Zulueta had taken considerable interest in Schulz's (p.169) scholarly work, as well as in his personal well-being. He furthered the projects Schulz had ventured upon with the OUP and in fact translated the History of Roman Legal Science into English. The collaboration of Schulz and de Zulueta received much praise.502 On a more personal level, Schulz had not taken to de Zulueta. The different outlook both men had on politics,503 religion, and life in general made it unlikely, despite de Zulueta's consideration, that Schulz would develop a real affection for him.
In 1948, de Zulueta reached the age of 70. His tenure, which had been prolonged due to the national emergency, ended,504 and he was succeeded by H. F. Jolowicz.505 Jolowicz, some of whose studies of Roman law had been in Germany, was not at all averse to helping Schulz, for whom he in fact had pleaded with the SPSL. There was not, however, a collaboration as there had been with de Zulueta, if only because Schulz by now wrote in English. As far as the OUP was concerned, the position of Schulz's English mentor passed from de Zulueta to F. H. Lawson rather than to Jolowicz. In 1954, Jolowicz died and was succeeded by David Daube in 1955. By that time, Schulz had suffered a stroke. Barry Nicholas used to take him out in his wheelchair, mostly in silence, for fear anything he could say might seem trivial to such an illustrious scholar.506 By contrast, David Daube does not seem to have called on Schulz at all.507
In his personal memoir, F. A. Mann complained about the insufficient acknowledgement he felt Schulz and his scholarly work had received in Oxford: ‘Here again much may be due to the jealousies of colleagues who lacked the generosity of paying tribute to a unique master’.508 This verdict is too sweeping a generalization. Oxford men held Schulz in the highest regard and were very concerned about his well-being. Although many were themselves in difficult circumstances, they enlisted a great deal of help for him and his family.509 While the joint support of many gave Schulz the opportunity to continue his scholarly work, he was not, it is true, offered any academic position, be it at a college or in the university, nor was he given any chance to share his expertise by teaching students or debating with colleagues. Understandable as this may be, it must have been a disappointment for Schulz. As a dedicated teacher, he would naturally have hoped to be employed to give lectures or hold seminars. It was not until 1948 that he got a chance as a teacher to let his rich experience and expertise bear fruit for the advancement of learning.510
(p.170) Fritz Schulz remained ‘a lonely scholar of greatest eminence’.511 Perhaps it was exactly the awe inspired by Schulz's scholarly eminence in his own field that ensured that he remained lonely and detached from his Oxford law faculty colleagues. The English legal academics expected their Romanist colleagues above all to keep track of up-do-date scholarship and provide reliable Roman law courses on an introductory level. They will have taken at best a mild interest in (or may even have been slightly suspicious of) both the minutiae of textual criticism and the high-wire intricacies of German civilian doctrine, to which most of Schulz's pre-1940 contributions were dedicated. The publication of the History of Roman Legal Science in 1946 established Schulz for the English-speaking world as one of the most remarkable Roman law scholars of his time. This increased the respect with which he was treated, but it did not improve his personal interaction with the Oxford legal academia.
Among his fellow émigrés, F. A. Mann and Martin Wolff were Schulz's closest contacts. Mann visited Schulz every weekend when he came to Oxford to see his father and Martin Wolff. While both took a friendly interest in Schulz's research, neither Mann nor Wolff was an expert in what had become Schulz's main fields of research. Hermann Kantorowicz, who would probably have taken a keen interest, had died in Cambridge in 1940. As to Pringsheim, the other Roman law émigré scholar in Oxford, there was not much of an exchange, scholarly or otherwise. It was unlikely that the sceptical liberal and the stiff Prussian conservative would have taken to each other. Schulz, however, knew and sometimes met the émigré classicists,512 Jacoby, Fraenkel, Pfeiffer, Maas, and Momigliano. It has been held that the joint presence of the émigré classicists, including Schulz, made Oxford a new centre of classical studies in the tradition of Wilamowitz.513 Schulz was also on good terms with the orientalist Paul E. Kahle, who successfully re-established a university career in Oxford.514 On Sundays he attended the service of the Oxford German Protestant community, which consisted almost entirely of refugees persecuted because of their Jewish ancestry. There he also played the organ.
All in all, Schulz's life was rather isolated. He was not a man who socialized for socializing's sake. To the extent that he did, he took to men who pursued (p.171) scholarly or cultural interests as intensely as he did. These men were rare. He thus might have said with Dyer, ‘My mind to me a kingdom is’. He spent his days in the Bodleian Library where, as he later wrote, the staff ‘ministered to my insatiable appetite for books with unfailing patience, kindness and exactitude’.515 It was in this Oxford loneliness that between 1940 and 1952 Schulz wrote the masterpieces, to which we must now turn.
VI. ENGLISH PUBLICATIONS
1. The History of Roman Legal Science
In 1938, Hermann Kantorowicz and Francis de Zulueta had convinced the OUP to undertake an ‘Oxford History of Legal Science’ in three volumes.516 Its pioneering idea was described in a prospectus issued in March 1938:
It is the aim of The Oxford History of Legal Science—the first such work that has been undertaken in modern times—to perform for one of the greatest and oldest sciences what similar works have performed for others: to make Jurisprudence conscious of its own history.517
It was an ambitious project of a then unprecedented international character. The editors wanted to bring together the first rank of European scholarship. The first volume was to cover ancient and oriental legal science.518 Pietro de Francisci, then Rector of the University of Rome and Italian Minister of Justice,519 was invited to write the part on Roman legal science, in the words of de Zulueta, ‘the most important contribution to volume 1’, planned to be 200 of approximately 450 pages.520 Negotiations with de Francisci dragged on.
(p.172) The main issues were the payment and exchange rates, and the desire of de Francisci to make his manuscript available, in one form or another, in Italian as well as in English.521 In spite of these difficulties, de Zulueta tried to hold on to de Francisci. He explained to the Press that there were only a small number of suitable European scholars. With regard to the German Romanists he found a ‘political complication’, which showed that continental Fascism had also cast its long shadow over English scholarship:522
The best would be Schulz, Fritz, whose Prinzipien you have published. We thought of him, but here comes in a point which one would prefer to be able to leave out. In any case it would be desirable to have Italy represented in Vol. 1, but further Schulz is non-Aryan. Now we have been very fortunate in securing a promise of a section on Assyrian etc. law from Paul Koschaker. He is non-political, whereas San Nicolo of Munich is a strong Nazi, and he would be the only alternative. I would rather give up the whole work than injure a friend like Koschaker, and it is quite clear that he may harm himself by contributing to a work part-edited by Kantorowicz, who is a persona ingratissima to the Nazis, unless he is supported by some eminent and totalitarian person. In fact he would have to withdraw if two other contributors were all drawn from England, France and German Jews. San Nicolo would not consider contributing in such case, I am sure.
This whole trouble, which we have found decidedly hampering, will be cured if the most important contribution to Vol. 1 comes from the pen of a prominent, though not a violent, fascist.
You may say that we might get a Nazi. There is only one I can think of having sufficient status—W. Kunkel of Goettingen. But he is not so good, and the difficulty we meet in securing De F. would be greater in his case, because of the exchange value of the mark.
De Francisci agreed at first to contribute the chapter on Roman legal science. However, in May 1939, perhaps due to European pre-war tensions, de Francisci was replaced by Schulz, then in The Netherlands.523 Schulz's contribution was to be 200 pages or 100,000 words, and Schulz was to get a quite generous fee of £100. Since there was a time-schedule for contributions to the ‘Oxford Legal History’, Schulz turned to this task in Leyden, postponing the work on the Manual.
Kantorowicz died in February 1940. De Zulueta and the OUP realized that Kantorowicz's death put an end to the project, the accomplishment of which had already become questionable since the outbreak of war. Kantorowicz had been of central importance for the enterprise: ‘The original idea was his, his introductions were to hold the three volumes together, and he was to be the most important contributor to vol. II, while he would certainly have been one of the most important to Vol. III. … As it is, it required K's drive to pull it through.’524 Cancelling the project raised the question of what to do with articles already in production: ‘Schulz, whose work is well advanced, is the largest (p.173) question—100,000 words, a booklet.’ De Zulueta suggested that it might be adapted to make a separate little book.525
Schulz accomplished his task in an astonishingly short time. In mid-February 1941 he passed his manuscript to de Zulueta,526 who started to translate it. Schulz in turn tried to revise de Zulueta's translation, which he found ‘sometimes too grey and colourless’.527 The translation took time, since de Zulueta was distracted by teaching duties. While the translation took shape, de Zulueta realized that the manuscript greatly exceeded the agreed word-limit. In mid-1942 the Press formally agreed to publish the work as a separate book.528 It also suggested cutting it down by between 25,000 and 30,000 words, chiefly in the notes, and that de Zulueta should assist Schulz in the final editing of the volume.529 Schulz agreed, as did de Zulueta:530
I do not know what I am letting myself in for in the matter of editing Schulz. But it is clear that I cannot leave him in the lurch, and he is so businesslike and presents such a beautiful copy that I hope I shall be equal to it.
The shortening of the manuscript proved to be more painful for Schulz than expected. In the process of editing, de Zulueta had already abridged parts of the text. He had banished other parts into footnotes. Schulz radically deleted these footnotes altogether, but declared his reluctance to cut down the manuscript further: ‘I am afraid you will not be satisfied with my abridging (nor am I) but I have thought the matter over and over and am now really at my wit's end.’531
Nearly two years later, on 11 February 1945, Schulz submitted the edited manuscript to the Press. His accompanying letter reads:532
… As to the size of the MS. I may refer to earlier letters, which I scarcely need to repeat. The verdict of the Delegates was: Too long. I humbly ask the Delegates to reconsider this verdict and accept the MS. in its present form …. [To] shorten it drastically without destroying and even rewriting the whole proved to be the quadrature of the circle. Please, believe me, it is not my obstinacy, but the matter ….
The idea of this book is to relieve the History of Roman Jurisprudence from the barren juristic isolation and to understand and to write this history as a part of Antiquity. Its motto is: ‘Altertumswissenschaft’, the idea of Mommsen and Wilamowitz.533 But this idea (p.174) involved sociological, philosophical and philological discussions. In this respect my MS. is rather too short than lengthy …. Allow me to call your attention to the veritable chaos in the Romanistic Science of to-day. As in Classical Philology of the 19th century the hot fever of interpolationistic research was followed by the cold fever of conservatism, and the result is an appalling confusion. English tutors find teaching of Roman law sometimes very hard, and American tutors stand simply helpless before this chaotic literature. Aphoristic remarks, lofty and authoritative professions of faith are not helpful, a thorough and sober examination is indispensable. Also references to non-juristic literature were necessary, for lawyers are only too often in statu innocentiae concerning the transmission of manuscripts in antiquity. As a rule lawyers say: this is a matter for philologists, and philologists say: this is a matter for lawyers. Mommsen was both a lawyer and a philologist, and I try to follow him. …
But the terrible flood of footnotes! … The carefully selected passages from the sources are not copied from another textbook. I have read through the whole Cicero, Dessauer's Inscript. Lat. Selectae, the whole Papinian and so on, and the passages cited by me are very far from being familiar to lawyers …. The objection that so numerous footnotes make the text unreadable [sic.] is not true in my case. On the contrary: the book would be unreadible [sic.] without the notes, for every detail is unfortunately vividly disputed and I think we are fed up with lofty pronunciamentos ….
This book was written as a reference book for students and as a reader for advanced students, tutors, historians and philologists. It is both stimulating and instructive and does not contain a single tedious or trivial paragraph. The unwieldy manuscript with its numerous corrections and additions does not give an adequate picture; properly printed it is easy to read. Let me hope to see published what is definitely the only good book, which I have ever written and shall write.
Kindly excuse this long letter, but I wished to sum up again my case.
ἐĸ περισσεύματος τῆς καρδíας τò στóμα λαλεῖ.534
The book was published 1946.535 It was reviewed by the first rank of international Roman legal scholarship, namely Riccobono, Kunkel, Daube, Berger, Peter, Duff, and van Oven, and it generally met with critical acclaim.536 Not without pride de Zulueta wrote to the Press: ‘I have always known that this book would be a winner’.537
From very early on Schulz had been fond of the idea of a German edition. When the German publisher Vahlen approached him in 1946 about a German edition, Schulz informed Kenneth Sisam.538 Sisam explained that any licence agreement with a German publisher was out of the question, because it would (p.175) amount to trading with the enemy.539 It was only after Schulz's death that a German edition, based on the original manuscript and the addenda of the 1953 edition, was published by Werner Flume in 1961 as Geschichte der römischen Rechtswissenschaft.540 This edition included the passages that had been left out of the English translation. An Italian translation was published in 1968.541
The History of Roman Legal Science is a highly original work and unlike any previous book on Roman law. A similar study had not been undertaken by Roman legal scholars, either in the times of humanistic jurisprudence or since the nineteenth century. The subject is neither simply the legal literature of ancient Rome, nor simply the ‘sources’ of Roman legal scholarship, although both are set forth in a fresh and thorough way. The book deals with ‘every vocational occupation with the law, its making, application, exposition, and transmission in ancient Rome’.542 The permanent dedication to some definite sphere of activity ‘produces a specialised intimacy with it. … The special knowledge thus produced, together with the activities directed to obtaining it, we call “science” ‘.543 The emergence of the science of law, thus understood, and its development in the Roman society and culture of its time, is the subject of the History of Roman Legal Science. The book, taken as a whole, is also an affirmation of Schulz's statement that the science of law was ‘invented’ at Rome.544
For Schulz, the work on the History of Roman Legal Science was both a new beginning and a continuation of earlier work. In editing De claris iuris consultis, a work which constituted a ‘History of Roman Lawyers’, Schulz had gone over the prosopographical grounds. He could also draw from his experience as an editor (Epitome Ulpiani) and from his extended research in the history of various texts in late antiquity, from his Einführung in das Studium der Digesten (1916) to his more recent studies of Papinian's Quaestiones.545 Parts of the commentary on Papinian's Quaestiones were used for the History of Roman Legal Science, where Schulz also gives his overall view of this work.546
The History of Roman Legal Science takes up a method developed by Seckel to deal with the jungle of medieval manuscripts written by the twelfth- and thirteenth-century glossators that often defy exact attribution to an individual author. Seckel had advocated, and in his own research implemented, a different approach. One should follow up the development of the different ‘forms of legal literature’ rather than concentrating on individual authors. Schulz applied (p.176) this concept to ancient Roman law, shifting the focus away from individual authors and towards types of literature, closely following the emergence of, for example, systematic treatises, the literature of problemata or isagogic literature, and so forth. This approach has not been taken up by later Roman legal scholarship. On the contrary, during the last decades attempts to study individual authors and to distinguish their specific features, that is palingenetical and prosopographical works of all sorts, have flourished more than ever. Indeed, it must be admitted that the Roman sources offer far more opportunities for this kind of research than the medieval manuscripts, since the inscriptions in Justinian's Digest attribute the texts to their authors and thereby allow for a reconstruction, though a fragmented one, of the original writings. Hence, while studying the history of forms of literature will not be the primary road of research into Roman legal writings, as it may be with the writings of the early glossators, it can be, and indeed is, to a somewhat lesser extent, pursued alongside the research into individual authors and their writings.547
While the History of Roman Legal Science was a consummation of all the accumulated skill and knowledge acquired in more than forty years of Roman legal scholarship, the book also heralded something of a fresh start. The comprehensive work turned out to be the most adequate way in which Schulz could present his view of Roman legal science and the transmission of its literature, putting in place the very idea of stratification on which he had worked so hard in commenting upon Papinian's Quaestiones. The book bustles with vigour and enthusiasm. The challenge of giving both the general view and the details is splendidly met, and this makes for a truly magnificent style.
The single most important chapter of the History of Roman Legal Science deals with the forms and transmissions of the legal (doctrinal) literature of the classical period. It is a realization of what Schulz called, with a term borrowed from Sherlock Holmes, the ‘new working hypothesis’.548 The ‘old working hypothesis’ had assumed that the writings of the classical law library had been produced by the very authors named as such in Justinian's Digest. If they had suffered interpolations, this could have happened solely when the Digest was compiled. It was assumed that in between their first edition and the compilation of the Digest the writings did not have a history at all; the texts as used by the Digest were taken to be identical with the originals as written down in the first or second centuries. The issue of textual alterations therefore had but one focus: it was assumed that a text was either 100 per cent original, or that it had been deliberately altered by the draftsmen of Justinian's codification. Either one or the other had to be the case, tertium non datur. Against this, Schulz maintained that in late antiquity the transmission of legal writings (including the (p.177) Imperial constitutions549) had been a rather bumpy one. The texts had suffered alterations between their original conception and their use as the material for Justinian's Digest (or Codex). Also, and perhaps most importantly, many of the works which are attributed to a single classical author turn out, on close inspection, to be florilegia, compiled by unknown jurists of the epi- or post-classical age. This had already been one of the main findings of Schulz's edition of the Epitome Ulpiani back in 1926. Similarly, Schulz's contribution to the Symbolae Friburgenses for Otto Lenel550 had attempted to establish that both the Digesta and the Responsa of Cervidius Scaevola were not written by the author who was supposed to have written them, but were compiled from various sources by an anonymous post-classical jurist. Works like the Epitome Ulpiani, the so-called Fragmenta Vaticana, the Mosaicarum et Romanarum legum collatio, or the Sententiae Pauli, while all drawing on classical material, are in themselves expressions of literary ambitions of the epi- or post-classical age and have to be taken as such.
Schulz is commonly said to belong to what is called the interpolationist school. By drawing attention to a very complex and intricate process of compiling, editing, and remaking of legal writings in late antiquity, Schulz in fact has helped to overcome the fixation on Justinianic interpolations. If one is to single out Schulz's most important contribution to the modern science of Roman law, it is this shift of perspective, acknowledging a complex textual transmission in late antiquity and freeing the debate from its fixation on (intentional) interpolations attributed solely to the hands of Justinian's compilers.551
The then groundbreaking assumption that Roman doctrinal legal literature was subject to a lot of re-editing and re-compiling from the third to the fifth and sixth centuries is now generally accepted.552 We acknowledge that alterations can have happened not only on one specific occasion, that is Justinian's codification (where (p.178) alterations probably happened then to a lesser extent than was assumed in the early twentieth century). They may have occurred over a stretch of roughly three centuries, during which there were many opportunities for both intentional updating and harmonizing and for unintentional errors and scribers’ slips. While the basic assumption put forward by Schulz is generally accepted today, few would share Schulz's optimism as to how far we can actually establish the individual fate of single texts. Schulz was inclined to assume that shortcomings in a text were due to some intentional meddling (rather than unintentional errors in transmission), and when the alteration of a text was due to some legal reasoning, be it weak or be it faulty, it could in principle be undone again by uncovering the juristic motives that had presumably induced the textual change. This is the basic idea of Textstufenforschung (research into textual stratification), as described above.553
The History deals with the development from the beginnings of a ‘science’ to the time of Justinian's codification. Schulz saw the juristic genius that gives Roman law its unique flavour at work mostly in the late Republican and, though already in a slightly less creative way, in the classical period. Yet he very much sought to do justice to the writers of the epi- and post-classical times, true to Ludwig von Ranke's dictum that ‘every epoch belongs immediately to God, and its value depends not at all on what it produces, but on its very existence …. every epoch must be regarded as something having value in itself, and its history as highly deserving of study’.554 To deride the lawyers working in the third, fourth, and fifth centuries, while ‘creditable to Romanist scholars as classicists, was discreditable to them as serious historians’.555 Schulz complained that the study of post-classical times was ‘in its infancy’,556 and called for more prosopographia of the fourth and fifth centuries.557 In showing that the third, fourth, and fifth centuries were terra incognita well worth exploring, Schulz pointed to a field of research that has proved to be most fruitful. It is probably in this field that Roman legal scholarship has made the most headway since Schulz.558
Fritz Schulz's own contribution to the developments of Roman doctrinal literature in late antiquity, put forward within the History, can be seen as complementing the research done, at about the same time, by Ernst Levy into the substantive law of this period.559 In the last fifty years the work of Schulz and Levy has necessarily suffered the fate of all pioneering work. As it was, and could not but be, (p.179) rough and imperfect, it has since made way for more polished and balanced studies. For the serious researcher into the Roman law of antiquity, the History of Roman Legal Science was and perhaps still is the single most important English book in the field. It is ‘a work of advanced scholarship, acclaimed as one of the most important books on Roman law to appear in this [the twentieth] century’.560 When in 1949 it was stated that Schulz stood ‘in the foremost rank of the world's Romanists’,561 this was mainly due to the History of Roman Legal Science. Schulz had become a pivotal figure of twentieth-century Roman law scholarship. When in 1977 a conference was held at Bari on Roman law in contemporary historiography, more or less all speakers focused on Schulz and his History.562 Although many of its references are now obviously out of date, the book is still used throughout the world. It has proved to be the greatest single contribution to international Roman law scholarship emanating from England.563
2. Classical Roman Law
Schulz had started to work on the Manual in 1941 while his manuscript of the History of Roman Legal Science was still in the process of being translated and edited. From 1945 on, he was able to concentrate fully on writing the Manual. At the beginning of 1949, ten years after the initial contract had been made in order to get him out of Germany, Schulz submitted his manuscript. He considered, he wrote, changing the title to ‘Roman Private Law from Augustus to Diocletian’.564 At the OUP it was no longer Kenneth Sisam who took care of Schulz and his books. Sisam had retired in the summer of 1948 and had been replaced by P. J. Spicer, whose first memorandum on Schulz read: ‘He's a very good + very modest man, evidently, but not a money-maker.’ Spicer passed Schulz's manuscript to de Zulueta, who called attention to the fact that the manuscript was not quite what the Press had bargained for ten years earlier. He remarked that both Justinian's law and the planned sketch of later Roman law up to modern times were left out, and he considered this abandonment of plan ‘as both unexpected and unwelcome’:565
Evidently poor Schulz has delivered a quite different book from that which Sisam had bargained for. It certainly creates a difficult position for you. What he has done may be (p.180) more valuable from the learned point of view, but what was agreed would have filled a real gap.
Following a suggestion made by de Zulueta, the OUP asked Lawson for expert advice.566 A month later Lawson submitted an extensive evaluation of the manuscript, so thorough indeed, that the Press felt bound to send him an honorarium of £5, for which Lawson had not asked.
Brasenose College, Oxford
13 February 1949
Dear Mr Spicer,
I am afraid I have kept Schulz a very long time, and I must admit that the main reason was that I wanted to give myself the pleasure of reading as much of it as possible. I could have given you an opinion on much less.
I have formed a very definite opinion, namely, that the book in its present form would enjoy a very small sale among undergraduates, especially the present generation, which seems to resent having to buy books at all. They could not make it their sole textbook for examination purposes, and they would continue to use Lee's Elements,567 even though that has the opposite defect, of devoting too much attention to the law of Justinian. You are also quite right in saying that the bibliographies are far too detailed for the undergraduate who would not, and indeed could not, make more than the slightest use of them.
There is a further reason why the book could be used only by the best undergraduates, namely, that much of the doctrine stated in it depends on the results of interpolation research; and it is stated dogmatically, with only in very rare instances any evidence by which the student can test its soundness. Now, although we don't expect our people to go deeply into Roman law, we do expect them to do it in the original texts; and we don't like to make them take anything on trust. As Lee once said, our study of Roman law is ‘conscientious rather than profound’. Moreover, a great many results of interpolation research are still very conjectural, and it is not impossible that there may be a strong reaction; though, in the nature of the case, it is virtually impossible for it to be as complete as that against Wolf's treatment of Homer.568
Having said so much against the book, I must now say how much I have enjoyed reading it, and how much I hope it will be possible to publish it. We do very much need a fairly comprehensive study of the Classical law by a great master of Roman law; and for the teacher the bibliographies will be most useful. Moreover, given the need for a book that will describe Roman law as it actually operated in the ancient world, and not merely as a starting point for medieval and modern civil law, there is no answer to Schulz's contention that the classical law, however much its reconstitution depends on higher criticism, has been much more intensively worked on and is much better known to us than the actual working law of Justinian's time. Thus the book does fill a very real need.(p.181)
However, it is not quite what I should like it to be for the purpose I have in mind. The advanced student and the teacher would be happier if the evidence and reasoning for the various conclusions could be given, for, as I have said, although Schulz is very able and distinguished, his views cannot be said to be generally accepted in every case: it must be emphasized that in this case there can be no orthodoxy. But we shall not get from Schulz a revision which would satisfy my wishes or needs; and what he has given is very valuable. I certainly think that anyone who wants to take Roman law seriously ought to read it most carefully, for, whatever one may think of some of the detailed doctrine, it does give a much sharper and clearer picture of Roman law as the classical jurists made it and applied it than has hitherto appeared.
The English certainly needs revision, though it has great virtues. One often prays that a foreigner would only write in his own language and not in English the revision of which is a harder and longer job than translating from scratch. That is far from being the case here. The meaning is always, I think, perfectly clear, and Schulz seems to think exactly as if he were an Englishman: there is no German sham profundity. All that is wrong is idiom, and I believe it could be put right very easily and quickly, with only an occasional reference to Schulz himself. I won't promise to do the work myself, though I would help anyone who would do it. I would suggest my successor at Merton, their new lecturer, H. J. F. Jones, who, though young, intends to specialise in Roman law, is not too hard pressed with teaching for the moment, and would work easily with me. He has very a good literary sense.569
Now for your specific questions. I think that summaries of the later law could be added—in fact there are often references to later law—but I doubt whether they would make the book substantially more saleable among undergraduates. They want clear statements which they can reproduce in the Schools; and those who would be attracted by the book would probably be no more than could use the copy in the College library. There is no disguising the fact that most undergraduates do as little Roman law as they possibly can, and not many tutors do much to encourage them to take any interest in the subject. Schulz's book is really too good for them, and I doubt whether anything that could be done to it would make it more palatable. Mass conversions—if there is any chance of them at all—are much more likely to come from a book which would relate Roman law to modern continental law.
I think you should accept the fact that the book is a work of more advanced scholarship than planned, and get him to do Justinian in a subsequent volume. If he would also show what parts of Roman law survive into the modern world, and in what form, he would be doing an even greater service.
I think the book might well be called ‘A Manual of Classical Roman Law’. That exactly describes it. The use of the word ‘classical’ is technical, but known to anyone who is likely to want the book. But ‘Roman Private Law from Augustus to Diocletian’ would do perfectly well.
(p.182) Spicer agreed with all of Lawson's proposals, summing up:570 ‘I am clear from your report that the book is not what we wanted but that nevertheless we must publish, though it will probably mean losing money’.571 Schulz was told that the Press would publish, although he had provided ‘a book for the expert rather than the undergraduate’. Spicer wished Lawson and Jones to do the editorial work together with Schulz, especially ‘to tone down some of his dogma, the presence of which in large and unsubstantiated qualities would be rather embarrassing’. The book was revised, as suggested, by Jones and Schulz. When the manuscript was nearly ready for delivery to the Press, Schulz set out his reasons for the way the book had developed. Apart from being given ‘full freedom’ by Kenneth Sisam, he had encountered difficulties while writing the book:
Gradually, however, I realized that I could not carry through my original plan. I tried again to find an adequate form; I repeatedly drafted parts of the work but had the impression to be on the wrong path. In my despair I called again on Mr Sisam and entreated him to release me from this task and give me another job, but he insisted on my writing the Manual.572
At last I saw light. I resolved simply to write what I know. I have studied class. Roman law throughout my long life; I decided, therefore, to confine the book to class, law and to push both Republican and post-class, law into the background. The advantages of this plan seemed to me evident:
a) I was on familiar ground; I had a thorough knowledge of the literature and might reasonably hope to finish the work in a comparatively short time.
b) The book would gain in originality since, for the time being there is no special book on class, law; thus English critics cannot object: ‘the book is superfluous, since we have Buckland's two textbooks’.573
c) Seen from the scholastic point of view. It is much better to present the students a clear picture of class, law (which is a unity) than to fuse them by permanently mixing up the law of very different periods. The knowledge of class, law is quite sufficient for a student, especially in a country, where students can only spend a very short time for the study of Roman law. Since I am now acting as a tutor of Roman law, I have acquired a certain stock of experience and I hope that at least some open-minded Brit, teachers of Roman law will agree with me. My present students are excellent men; clever, busy attentive; nevertheless I am not sure whether they will pass the B.L.C. They know a lot of details but are ignorant of the fundamental conceptions and principles. As soon as they leave the highway, they are lost. Buckland's books have a devastating effect.
d) Justinian's law is not entirely excluded; it is mentioned as far as it led to interpolating class, texts. This is an important and considerable part of Justinian's law and amply sufficient for the student.574
Indeed, Schulz's key problem with the Manual had been already highlighted in 1944, when Sisam had asked Schulz for advice as to whether the OUP should reprint Sohm's Roman Law. Schulz advised him not to, while he conceded that the progress on his own manual was ‘not very satisfying’. He gave several reasons, the primary one being ‘[t]he difficulty of the task, myself not being a text-book writer but so to speak an explorer’.575
After consultations with Lawson and Goodhart,576 Classical Roman Law was agreed upon as the title. Margaret Alford,577 who also acted as a stylistic critic for Felix Jacoby and Ernst Fraenkel, went over the English. Once published, Classical Roman Law was reviewed, inter alia, by Grosso, van Oven, Kaser, Wieacker, Nicholas, Pringsheim, Jolowicz, and David. As de Zulueta and Lawson had predicted, Schulz's Classical Roman Law did not become a popular treatise. In England it did not supplant the standard textbooks by Buckland and Jolowicz.578 Schulz's book was reprinted, however, several times in England and, in 1992, in Germany. A Spanish translation was published in 1960.579 Due to Schulz's illness, the 1953 reprint was produced without addenda. The Manual, as originally conceived, had not been written, and OUP still wished that something closer to the original concept were produced. Barry Nicholas was agreed to be the man for it.580 With his Introduction to Roman Law, which was reliable on a scholarly level, easily accessible to the undergraduate, and economically successful, Barry Nicholas indeed delivered the very book which Schulz had not written.
While the History of Roman Law is Schulz's most important single contribution to Roman legal scholarship, Classical Roman Law brings to life Roman law ‘in action’. Classical Roman Law rests on a synthesis of all of Schulz's qualities and expertise: the expertise of a first-class legal mind, a Latin (as well as Greek) scholar, and a historian; but also the pedagogic qualities of the teacher and, in a way, the artist. It has been rightly held that a ‘continuous artistic sensibility to the whole’ is necessary for the complete success of a treatise,581 and Classical Roman Law is a fine example of a well-conceived treatise.
(p.184) Doubts similar to Lawson's have often been raised as to whether Classical Roman Law is suitable as a student textbook. The doubters argue that Schulz had put forward views too controversial for a student's book and that he had included too much interpolationist guesswork. Fritz Schulz, however, never ventured into issues of textual transmission for reasons of purity of language alone. He always had a legal issue in mind. His was Sachkritik, not Sprachkritik (criticism of substance, not criticism of language). When Schulz doubted the reliability of a text, he did so because the text, read in a traditional way, seemed to him doubtful from a lawyer's point of view. To challenge Schulz's interpolationist contentions therefore always involves a discussion of the legal issue at stake. While criticism of language alone is often stale and fruitless, the criticism put forward by Schulz is a productive one. The reader is invited to consider whether the case in all its details has been correctly laid down and correctly understood, and whether it is argued and decided in accordance with the law of its time. Can one imagine a better way to inspire the advanced student to start thinking about law independently?
It was probably Schulz's first-class legal mind that enabled him easily to surpass other Roman law scholars who were his contemporaries. Classical Roman Law fully illustrates this quality. Fritz Schulz expressed his belief in legal reasoning in the Epilogue to the History of Roman Legal Science.582 In speaking of the science of law that developed on the basis of Justinian's codification, Schulz considered that this
science was obscured by an ever-spreading forest of fine-spun distinctiones and solutions contrariorum which, for the most part, lack any juristic value, since they are not the products of juristic reflection on juristic problems, but a sham and empty cleverness and pseudo-philology …. Legal science can be fruitful only on condition of being a science of law and not merely a science of patching up the contradictions and definitions of a codification.
‘Juristic reflection on juristic problems’ is what Schulz's writings on Roman law had always been about, and it is what makes Classical Roman Law a unique introduction to Roman law.
Far more than asserting specific interpolations, Fritz Schulz put into question the reliability of our sources. He shattered traditional beliefs, which were (and still are) for the most part not based on fresh critical studies of the sources but on the traditions of the nineteenth-century Pandektenrecht, or of the earlier ius commune. More often than not he called for a fresh examination of an issue. Classical Roman Law is an exercise in the ars nesciendi: Schulz found ‘innumerable problems’ which, given the sources we have, have to be considered ‘insoluble’. Many necessary studies were ‘still unwritten’. It is not the least of the merits of the book that it lets the student know that our knowledge of Roman law is very incomplete due to the fragmented character of our sources.583
(p.185) Principles of Roman Law, the History of Roman Legal Science, and Classical Roman Law form a trilogy584 that, taken as a whole, provides a comprehensive exposition of classical law and legal scholarship as expressions of the Roman genius. Principles of Roman Law deals with Roman law as a product of Roman society and culture, the History of Roman Legal Science describes the development of the scholarly (‘scientific’) treatment of law in the course of Roman history, and Classical Roman Law brings to life Roman law ‘in action’. No other author has made a similar contribution with treatises to Roman legal scholarship written in the English language, which are both comprehensive and researched in depth.
3. Bractonian studies
Schulz's first contribution to the history of English law dealt with ‘The writ praecipe quod reddat and its continental models’.585 He had been stimulated to write this essay by his preparatory work for the Manual of Roman Law: ‘It seems important to show the scientific world that I am still alive.’586 Soon afterwards Schulz became fascinated by Bracton and started to research the place of Bracton in the development of European legal science. It probably did not need Hermann Kantorowicz's Bractonian Problems (1940) to draw Schulz's attention to Henry de Bracton. Discovering material used by a writer was a task very much to Schulz's liking, and it was something he had recently done with respect to Grotius. Bracton must also have appealed to Schulz as a legal thinker striving for a rational and systematic approach to what seemed to be the most chaotic of legal materials.587 But above all, Bracton's treatise is a feast for the champion of textual history. It seems that Schulz's interest in Bracton also had the support of Kenneth Sisam, who was quite sympathetic to the idea of Schulz writing a book on the subject.588 Five articles sprang from the research Schulz did into Bracton.589
Schulz was able to show that Bracton had made use not only of Justinian's Digest and Codex, and Azo's Summa Codicis, but also the Decretum Gratiani, Tancred's Ordo iudiciarius, and Raymond de Penafort's Summa de casibus. On this basis Schulz maintained that Bracton's work ‘has not an insular but an European character’.590 Tracing Bracton's sources among the Continental legal literature of the twelfth and thirteenth centuries confirmed that Bracton and, it was argued via Bracton, the English law of that time, were somehow part of the (p.186) history of Roman law in the Middle Ages. The vindication of Bracton for the Roman law tradition, as supported by the studies of Kantorowicz and Schulz, has gained considerable support591 and seems to have superseded Maitland's earlier opinion that Bracton was a ‘poor and uninstructed Romanist’.592 Recently, however, doubts have been raised whether, despite all the theoretical knowledge of Roman law that we now know Bracton had, the use of this knowledge very much differed from the Continental way of legal reasoning.593 Schulz not only extended the known range of Continental sources on which Bracton had drawn, but started to use these sources to reconstruct the text of De legibus et consuetudinibus, which had been transmitted only in a severely corrupted form. This methodological knack may still prove to be Schulz's most important contribution to modern Bractonian research.
Tracing Continental sources in a work so fundamental for English legal history may have been, for the emigres Kantorowicz and Schulz, a way of making themselves feel at home in a new country that owed its legal system to a very different historical development. Their research comfortingly seemed to show that the legal environment in which the émigré civilians had found themselves was not totally strange to them. English law rather had, both émigrés were eager to stress, roots linking it back to a formative period of the Continental tradition.
What he really would like to do and what quite a few people expect him to do when he has finished the Manual is to go back to his research work on mediaeval English law. When he had finished his last article on Bracton596 somebody from the Selden Society wrote to him whether it was not the time now to write a book on Bracton.
He should write, his wife suggested, a book on Bracton: ‘Please excuse my interfering but Fritz has never been good at pleading his own case.’ However, once the Manual was finished, the long haul required by another book was out of the question for Schulz, now over 70 years old. Already worried about his state of health, he was reluctant to write another book ‘and then die leaving someone else to see an unfinished MS through the press’.597 In the years between 1949 and 1952 Schulz did, however, write—once again in German—several first rate (p.187) articles on Roman law,598 the most remarkable one dealing with issues of unjustified enrichment in the law of guarantees.599
VII. THE LATE YEARS (1947–1957)
1. British subject
In 1942, secondary legislation600 had been passed to deprive all German Jews residing outside Germany of their German citizenship.601 Henceforth Schulz was stateless. In 1946, Schulz, his wife, and his daughters applied for naturalization. He needed four references. These were given by Sisam, de Zulueta, Dr Carter,602 and Margaret Alford.603 These names probably highlight the small range of contacts he had made since his arrival in 1939. Schulz claimed priority for his application. It came as an unpleasant surprise that the SPSL did not support him in this. A claim for priority, he was informed, could not be based on his wartime activities, since these consisted ‘mostly of research and writing’.604 Priority claims were recognized only from those applicants who had either considerably assisted the war effort by their activities, or who could now make some contribution to the economic or general welfare of Great Britain. Once more, and now for the last time, Sisam, himself on the brink of retirement, came to Schulz's help, forcefully and efficiently as ever. He wrote to the Secretary of the SPSL that Schulz was
now too old to take up teaching in Germany again. All his family are out of Germany for good, and have established themselves as useful citizens chiefly in this country. So it would be an act of common sense to recognize that their father's interests and ties for the remainder of his life are solidly in this country, and that in the one way he can, as a scholar of international standing, he is working as usefully as his children are in Medicine and the like.605
The Secretary of the SPSL remained sceptical, referring to the restrictive practices of the Home Office,606 but Sisam obstinately came back to his point:607 ‘At least I think it is a case where the Home Office might be given a chance to show (p.188) an interest in the Humanities which have, for so long, suffered under the shadow of war.’ In January 1947, the Secretary of the SPSL, ‘rather surprised by the decision’, let Sisam know that the Home Office had accorded a measure of priority to Schulz's application.608 Schulz became a British subject in 1947. On the day of their naturalization, Martha Schulz, whose claim for priority had been based on her ‘outstanding social work in Oxford during the war’,609 became a member of the Labour Party, and took an active part in politics until old age.
The end of the war by no means meant the end of the Schulzes’ poverty. In 1943 Kenneth Sisam had found
… that the problem of some of the older refugee scholars is still with us, though fortunately the number of eminent scholars in this group is small. Owing to their age, they are not able to find academic posts in this country in their subjects, or begin a new kind of work; and some of them flinch from trying to start all over again in Germany after what they have gone through.610
Many of these scholars have settled down, finding modest means of subsistence. The older men like Dr Schulz, Dr Jacoby, Dr Kahle, all of great eminence, have the most difficult problem ahead, because it is too late for them to start new careers: nor can they hope to recover much in post-war Germany, whatever the peace settlement.611
The payment of Schulz's German pension, which had stopped in 1941,612 should have resumed once the German Government was restored after the war. German federalism, however, hampered a quick solution. A civil servant, who was now domiciled abroad, was taken care of by one of the German Länder only if this very state had either dismissed him out of its own service, or had newly appointed him after 8 May 1945. The state that had dismissed Schulz, Prussia, was no more.613 His former university was located in what was now the Russian sector of Berlin. When Schulz applied for a payment of his pension (Emeritibezüge),614 the ‘Central Office for Education’ in the Russian Zone refused any claim.615 Attempts to secure a pension on the basis of the transfer to the University of Frankfurt am Main in 1934 failed as well, since Schulz had returned to Berlin in 1935.
In May 1948, de Zulueta sent an alarming letter to the OUP, telling Sisam that Schulz was ‘in a bad way financially’:616 ‘Perhaps you know of this, but he is (p.189) very slow to make his needs known.’ De Zulueta had already scanned a whole range of activities that might perhaps provide Schulz with an income of sorts. Thus, he had conferred with Schulz about a continuation of Kantorowicz's unfinished catalogue of the Bodleian civil and canon law manuscripts: ‘I got S. to look into the matter, but like the honest man he is he says he is not quite qualified—not enough of a medievalist or paleographer, and eyes no longer young.’ De Zulueta had the idea that the Ancient History Board might employ Schulz to give a course on Roman law for non-lawyers. A proposal de Zulueta had made to this effect had not been taken up by Last,617 although, he confirmed, Last indeed admired Schulz. To get help from an assistance agency, de Zulueta went on, one would probably have to rely on Martha Schulz's ‘Jewish blood’. All that remained, he concluded, was to ‘try to get some college to make S a small grant’: ‘It is not tolerable that so fine a scholar should be allowed to languish in financial straits.’618 Sisam found that the Press could not help Schulz any more:619
He is busy on a Manual of Roman Law for us, but I have made considerable payments on it—as much as the Delegates could authorize—and the Rockefeller source from which I used to supply him has long since dried up. It is very difficult to get a College grant now unless they have some special interest in Roman law. But in my discussion with Bell I had hoped that there might be some advanced teaching still of students who would like to have been in touch with him. He is in every way an admirable man, whom I should like to help, but really it is beyond my powers now to do anything more.
The one idea, which proved helpful, also conceived by Bell620 and Sisam, was to procure a teaching job for Schulz. Schulz had so far not attempted to find students, since, as he had written to Sisam in November 1947, ‘hitherto my literary work has occupied me completely’.621 Referring to Pringsheim's coaching job, he voiced regret that so far he had not got hold of a paid teaching job: ‘Any sort of teaching seems unfortunately out of the question. I am now lecturing in my study giving an “Introduction to the Sources of Roman law in the Middle Ages” for two graduates (non-lawyers), but I do so gratis.’ De Zulueta later regretted he was unable to provide a coaching job himself, ‘as some time ago I circularized my law colleagues recommending Pringsheim’. Eventually a job was procured at Balliol College. The offer of this coaching position may have been facilitated by the shortage of tutors after the war, ‘when there was a great flood of students, returning from the war’.622 Schulz taught undergraduates for (p.190) the Honours School of Jurisprudence and the Bachelor of Civil Law (B.C.L.).623 He did so with the enthusiasm so characteristic of him. As Barry Nicholas recalled, ‘the difficulty with tutorials given by Schulz was that he was so enthusiastic that the hour might extend to a much longer time’.624 Along the same line, Lawson's remark that in tutoring undergraduates Schulz was ‘giving them a taste for advanced Roman law’,625 suggests that Schulz went far beyond the regular scope of the material to be covered.626 What a marvellous don he would have been. The word got around that Schulz was a most formidable teacher and students from other colleges were sent to him too.627 The payments for these tutorials ended the especially poor time the Schulzes had gone through in 1947 and 1948. When Schulz's health declined in the early 1950s, one of his chief worries was whether he would be able to continue teaching.628
3. Schulz and post-war Germany
In 1946, Schulz was offered a professorship by Theodor Süss629 on behalf of the Bavarian government. He was also issued with an invitation to come as a visiting Professor to Bavaria.630 Schulz declined: ‘I have already decided—in spite of the precarious state of my finances—never to return to Germany for good’, he told Sisam.631
In 1947, Schulz was invited by the German publisher Beck to write the book on Roman Private Law for the Handbucb der Klassischen Altertumswissenschaft. He was offered 5,000 marks. Since the Manual of Roman Law was then still unfinished, Schulz thought fit to contact Sisam, to whom he wrote:632 ‘To speak quite frankly I am not very keen to accept it. … I am loath to compile and always was.’ However, he felt he must at least attempt to find new, paid work. In his reply, Sisam not surprisingly advised Schulz not to accept. He pointed out that a 5,000 mark advance, paid out with a currency-reform pending, meant nothing. (p.191) Schulz declined Beck's invitation. The offer to write the contribution for the Handbuch der Klassischen Altertumswissenschaft was then made to Max Kaser,633 who accomplished, with an acclaimed standard work, the compilation job Schulz had not wished to do.634
When Schulz received an Honorary Doctorate from Frankfurt am Main law faculty in August 1949, the possibility of his giving some guest lectures in 1950 was discussed. In February 1950, Walter Hallstein,635 then Dean of the law faculty in Frankfurt am Main, tried to arrange visits to various German universities, namely Bonn, Göttingen, Freiburg, and Hamburg.636 However, Schulz did not want to travel around giving guest lectures, something he considered being a theatre (Affentheater).637 He prefered to spend what he called a real academic semester in Frankfurt with students and colleagues.638 Anyway, in order not to lose the income from his Oxford tutorials, he could not start to lecture before mid-June. Hallstein, therefore, did not pursue Schulz's travels to other universities any further, and in the second part of the summer semester of 1950 Schulz lectured in Frankfurt on ‘Prinzipien des rdmischen Rechts’ and on ‘Humanitas und romisches Recht’. He also held a seminar on ‘Moderne Gaius-Probleme’.639 Helmut Coing640 cordially invited Schulz to come to Frankfurt again in 1951. Bonn University, however, had proposed to make him Honorary Professor and to secure the resumption of some pension payments for him on the basis of guest lectures to be held every semester.641 Since Schulz could lecture only after the end of his tutorials in the Oxford Easter term, he had to choose between the invitations. He decided in favour of Bonn University, which made him an Honorary Professor in March (p.192) 1951. In the second half of the following summer semester he began to lecture in Bonn.642 The honorary professorship in Bonn indeed allowed for a solution of the pending problem of Schulz's German pension. The payments were at first limited to the months Schulz actually taught at Bonn. It was only in March 1953 that payments for the entire year were finally resumed. All in all, the issue of resuming payments was handled, on the German side, with good will, but also with a meticulous correctness, which led to a slow and somewhat cumbersome procedure. Not much later, payments along the lines of Wiedergutmachung (reparation) began to be made.643 By this time, Schulz could look back on fourteen years of abject poverty.
Concerning the Nazi period, Schulz bore no malice. He was inclined to hold with Erich Kaufmann that ‘the Hitler-time was a grand carnival, one has to forget it. Perhaps for all that, cum grano salts he is right’.644 In a most moving letter of 27 August 1946, which should be read in full,645 Schulz summarizes his experiences in Oxford and his stand towards Germany:
I bear no resentments against Germany, for as it is written:646 The Nazis thought evil against me; but God meant it unto good. I could never have achieved such maturity in Germany as here in the free country of England and, above all, in this wonderful city of Oxford, of which the whole world does not know its like.
Fritz Schulz endlich, der wohl am meisten649 mit Ressentimens geladen war, und der doch an jenem Abend, an dem er zum ersten Male wieder mit der Fakultat zusammen war, langsam auftaute und am Schluss bekannte, es sei ihm wie dem Eisernen Heinrich im Marchen vom Froschkönig ergangen …
‘Heinrich, der Wagen bricht,
Nein, Herr, der Wagen nicht,(p.193)
Es ist ein Band von meinem Herzen
Das da lag in großen Schmerzen …,
So seien auch bei ihm die Bänder gesprungen.650
His noble magnanimity did not hinder Schulz from remaining very sceptical about the degree to which post-war Germany had really overcome Nazism. Indeed, Schulz was quite appalled and startled at the smoothness with which former Nazis were taken back into office, and especially at the extent to which they managed to influence post-war academia once again.651 With a somewhat worldly-wise detachment he also registered how young academics, who to various degrees had supported the Nazi cause, now swiftly sought to cooperate with the returning émigrés.652
One may wonder whether Fritz Schulz's scholarly contributions would have received more attention in post-war Germany had he returned there. Clearly, English writings at that time were not as easily read as they are nowadays. It was therefore sensible to have, in 1961, a German edition of the History of Roman Legal Science. More importantly, by not returning to Germany, Fritz Schulz forfeited the opportunity of influencing the post-war development of Roman legal scholarship in that country. He, as well as the other scholars who remained in their respective countries of exile, left the field mainly to those who had survived the Nazi era, either by more or less active support for the Nazi cause or, in the best cases, by lying low. This didn't mean that these men were not serious scholars, but on the whole they were more given to consolidating the state of research than to pushing out the limits of scholarship. Traditional views were reaffirmed rather than shattered or questioned. Roman legal scholarship in post-war Germany seems less innovative and less critical than it had been in the first decades of the twentieth century, and it may not be too farfetched to attribute this, at least to some extent, to the loss of the more critical and rebellious element. One may wonder whether a return of émigrés like Fritz Schulz or Ernst Levy might not have made a difference. But then for Fritz Schulz (p.194) the chance to go back to Germany came too late in the day. Whatever impact Fritz Schulz and his fellow emigres may have had on English-speaking legal scholarship, it certainly did not make up for the loss that German scholarship suffered by being deprived of what was perhaps an above-average part of a cohort of contemporaries.
4. Unus, sed leo
Schulz attached the utmost importance to teaching, be it at an elementary or an advanced level. He gladly recognized every student who was taken to him as his ‘pupil’. However, never fully involved in teaching in England, he did not have English pupils whom he could have introduced to advanced scholarship leading to a university career. As a professor in Germany, Schulz had taken some part in the Habilitation proceedings of Gerhart Husserl653 and Hans Niedermeyer, but that made neither of them his pupil in the full sense of the word. It was different with one man only. Unus, sed leo: Werner Flume.654 Flume, however, had left the German academia in the mid-1930s just like Schulz, since he was denied the chance to pursue a university career.655 After the war, supported by Wolfgang Kunkel,656 Flume achieved his Habilitation in 1947 at Bonn University. When in 1948 Werner Flume applied for the chair of Roman law that had fallen vacant in Gottingen, Schulz wrote to him stating that he would not stand a chance due to the influence of former Nazis. Schulz also scanned the members of the various German law faculties and pointed out who, solely on the ground of their own former affiliation to the Nazi cause, would tend to object to Flume's coming.657 Indeed, Flume was ranked third, which in all probability would not have led to an actual offer. Schulz intervened by writing a letter to Kurt Zierold, head of the University Department of Lower Saxony.658
(p.195) A statement of the internationally renowned scholar from Oxford will have made its impact on the Hanover administrators, who at that time still worked under the supervision of the military government of the British Zone of Occupation. Thanks to Schulz's intervention, the Ministry asked Wolfgang Kunkel to give an expert judgement on the applicants; and after Kunkel opted for Flume, both the Minister and Gottingen University decided for him, much to the initial dismay of the law faculty in Gottingen. Flume, who was to become a great civilian himself, proved to be the most faithful of pupils.
5. Honours, sickness, and death
In 1949 Schulz celebrated his 70th birthday.659 Belatedly, he was presented with a two-volume Festschrift, edited by Werner Flume and Hans Niedermeyer, to which an impressive range of European scholars contributed (1951).660 English scholarship was represented by contributions of David Daube and Herbert Jolowicz. At the Goethe-Feier in 1949, organized as a counterpoint to the then Communist-controlled celebrations in Weimar, Fritz Schulz was awarded an Honorary Doctorate by the law faculty of Frankfurt am Main.661 The University of Bonn awarded Schulz an Honorary Professorship in March 1951.662 On 24 September 1952, he was made a member of the Accademia Nazionale dei Lincei at Rome.663
Later in 1952 Schulz suffered the first of a series of strokes.664 Werner Flume came to Oxford to visit Schulz every summer. When he left, Schulz bade him farewell with Cassius5 words: ‘If we do meet again, we'll smile indeed; If not ‘tis true this parting was well made.’665 Schulz died on 12 November 1957.666 (p.196) He was cremated. He was survived by his four children and his wife, who was to die in Oxford in 1977.
VIII. Honesty, Independence, and Willingness to Admit Ignorance
A scholar lives in his contributions to his chosen field of research, ‘and in our judgement of his art the man himself does not concern us. But since humanity is interested in itself, and will always look for the person behind the achievement, we are bound to speculate on the character of the author’.667 F. A. Mann described Fritz Schulz as
a Roman lawyer, a legal historian of the greatest distinction, but also a man imbued with the most broadly based general culture, a fighter by nature.668 … He had that intellectual honesty and modesty which characterise the scholar and academician. He was a friend of many and would sustain all those in whom he discovered the willingness to partake of the enthusiasm, which fired him. He was a real pater familias, but above all he was devoted to ‘coniugi carissimae consorti fidissimae vitae,’ 669 as he so rightly described her in the dedication of one of his works.670
Hans Julius Wolff671 praised the charm of Schulz's personality, a magic which he exercised over everybody who got to know him, based on his ‘vivid and brilliantly witty spirit and his humane generosity—properties which made him an admired and extraordinarily successful teacher—and the courage, with which he stood by his scholarly and political convictions’.672 Barry Nicholas noted Schulz's ‘friendly manner’, his modesty, summing him up as ‘a great scholar and a very likeable man’.673
Schulz was an individualist and an exponent of liberal ideas. He was an independent spirit, open-minded and sceptical. His unsurpassable willingness to admit ignorance was but an expression of his honesty and scepticism. Schulz's background was the German humanism of the Enlightenment and of the classical era, embodied in Lessing and Goethe, interwoven as it was with German (p.197) Protestantism. To him, all this was not just ‘general knowledge’ but a vivid spiritual heritage on which he drew heavily. He was a fervent champion of education, committed to the idea of the continuing progress of scholarship and of humanity. Schulz attended church for most of his life; he was ‘a deeply religious man’674 and as devout as a sceptical mind can be.
Schulz's publications are not written in the impersonal style of the detached or Olympian author who keeps himself out of his writings. He took the keenest possible interest in every scholarly matter he dealt with. He enjoined his students that a professor, whatever he is doing, should constantly ask himself: Isn't there anything more important you should do? A breezy, confident manner radiates from every page Schulz wrote. His enthusiasm made him a natural teacher.675 He was regarded as ‘one of the most formidable teachers of his time’.676 When Gerhart Husserl recollected his memories of Schulz the teacher, he wrote:677
He is a brilliant teacher of most unusual popularity with the students. His reputation as a stimulating teacher caused numerous students to study law in Bonn. His classes used to be overcrowded, and all the time he was surrounded by graduate students who were doing research work with him …. Reading my enthusiastic description of this man you might feel that I am wanting in impartiality. I freely admit that I never was able to resist Fritz Schulz’ great personal charm. He is that kind of man you can talk with for many hours without noticing the lapse of time or any decrease of interest on your part. In a discussion with Fritz Schulz there is a true give and take of viewpoints and ideas. This is also true when he is talking to the tiros of law. In fact, it is this unusual ability that has made him exceedingly popular with law students.
Schulz subscribed to the motto ‘Ein Professor muss sich an seine Studenten verschenken’.678 He was the professor, not very often met with, augmenting our scholarly knowledge, yet able to charm and delight generations of students.
Schulz was the embodiment of academic integrity and unworldly scholarship. He had the effortless ability to radiate nobility and integrity against the odds. A fierce controversialist, he was determined to nil admirari. However, he turned his critical attitude as much against his own publications as against anyone else's. Schulz's most striking feature is probably his overwhelming honesty. He comes across as the most truthful of men. His commitment to speaking the truth was not very much mitigated by social considerations. Since nothing but the truth would satisfy him, he was uncompromising and, being forthright and blunt, he was sometimes taken to be abrasive. Indeed he did not hesitate to scorn sham and folly. He was no respecter of reputations; age or position did not matter to him. He had disdain for the pompous cant of his colleagues, many if not most of whom he considered to be ‘learned cattle’ (gelehrtes (p.198) Hornvieh).679 Yet Schulz himself was an extremely modest man, devoid of false pride, vanity, arrogance, or pretensions. His remorseless and unforgiving analysis was subtly balanced by spiritual grandeur and true nobility. His outspokenness, which spared nobody, was without malice, because he was pure at heart.680
5, Tackley Place,
August 27th 1946
Meine liebe Helga,681
Ihr undatierter Brief aus dem Krankenhaus wurde mir heut Nachmittag von Freund Kahle682 übersandt. Es war ein grosser Moment: meine Frau und ich haben uns lange nicht so gefreut wie über diesen Brief! Wie oft haben wir an Sie gedacht und von Ihnen gesprochen, wenn wir von dem Bombardement der Westphälischen Städte hörten. Nun erfahren wir mit Freuden: Sie leben und sind wohlauf, denn die Operation wird wohl nichts weiter sein und ist gewiss schon lange überstanden. Ihre Kinder leben und sind gesund, die älteste nun schon eingesegnet! Ich kanns kaum glauben. Wie schnell ist die Zeit vergangen.
Wir sind alle wohlauf. Ich selbst bin in bester Gesundheit und von einer mich selbst verwundernden Frische. Ich habe keine Stellung hier, habe auch schon die Altersgrenze uberschritten, lese nicht und habe kein Geld, damit sind aber auch alle Negativa aufgezahlt. Die englischen Freunde haben mich über Wasser gehalten und ich habe hochst fruchtbare Jahre hinter mir. Die Oxforder Bibliotheken sind mir in beispiellos liberaler Weise zur Verfügung gestellt worden und ich habe 10 Aufsätze geschrieben und publiziert, ferner ein Buch, History of Roman Legal Science (350 Seiten), das soeben von der Clarendon Press in Oxford publiziert und im Literary Supplement der Times eine erste, lange und sehr gute Besprechung erfahren hat.683 Jetzt schreibe ich an einem Lehrbuch des klass. röm. Privatrechts, das die Clarendon Press bei mir bestellt hat. Ich habe mich in diesen 7 Jahren in England mächtig entwickelt, philosophische, historische und philologische Studien gemacht. Wenn, wie ich hoffe, meine Gesundheit so ausgezeichnet bleibt, wie jetzt, glaube ich noch manches Reife zu publizieren. Ressentiment gegen Deutschland habe ich nicht, denn wie geschrieben steht: Die Nazis gedachten es böse mit mir zu machen, Gott aber gedachte es gut zu machen.684 Niemals wäre ich in Deutschland zu dieser Reife gediehen wie hier im freien England und vor allem im (p.199) herrlichen Oxford, das eben auf der Welt nicht seines gleichen hat. Meine Frau ist gleichfalls in bester Gesundheit, schafft ungeheuer und dirigiert wie früher die ganze Familie. Sie wird an Sie baldigst schreiben heut hat sie zu viel zu tun und läßt Sie nur recht herzlich grüssen. Renate685 hat hier ihr Medizinstudium erledigt und ist fertiger Doctor med. Sie ist zur Zeit in Hamburg in einem Brit. Army Hospital. Hier ist ihre Adresse: 338 226 Capt. R. Schulz, RAMC. Hamburg, 94 Brit. Military Hospital, BAOR.
Thomas686 ist in der amer. Army in Deutschland, Johannes687 ist als Lehrer an der University of Syracus in USA. Dorli688 ist hier bei uns und beginnt jetzt ihr zweites Studienjahr (Russisch und Französisch). Ich selbst spiele immer noch viel Klavier, zu viel für meine Verhäaltnisse, aber ich kanns nicht lassen.
Nun aber die Hauptsache, Hebe Helga! Sie miissen natürlich sofort Ihre Rehabilitierung in Angriff nehmen, um wieder als Anwalt tätig sein zu können. Das muß sich unter alien Umständen erreichen lassen.689 Ich weiß nicht, ob Sie in der Brit, oder Amerik. Zone sind; Sie haben es vergessen zu schreiben, doch kann ich Ihnen in beiden Zonen zu Hilfe kommen.
In der Brit. Zone in Berlin ist zur Zeit mein früherer Berliner Assistent Dr Fritz Mann. Er ist jetzt solicitor in London, Brit, citizen und im Auftrag der Regierung in Berlin mit dem Range eines Lieutenant Colonel. Ich weiß seine dortige Adresse nicht, ich schreibe aber sofort nach London und gebe ihm Ihre Adresse. Es ist Ihnen aber unbenommen, von sich aus an ihn sich zu wenden, das office diirfte sich gewiss finden lassen.
In den nächsten Wochen kommt Gerhart Husserl690 nach Berlin, Americ. citizen, gleichfalls im Auftrage seiner Regierung, er wird der Legal Division of the Amer. Military Government angehören. Vielleicht spreche ich ihn hier, ehe er nach Berlin geht, sonst instruiere ich ihn schriftlich; selbstverständlich erinnert er sich an Sie! Ihre Rehabilitierung kann also nur eine Frage der Zeit sein. Wie pflegte Napoleon I. seine Depeschen zu schließen: Vitesse! Courage! Activité!
Andre Adressen können Ihnen im Augenblick schwerlich etwas nützen. Ich gebe sie Ihnen trotzdem. Flume, an den Sie sich erinnern, hat sich mit Frau und 5 Kindern gerettet, kämpft aber auch um eine neue Lebensstellung. Seine Adresse ist: Dr Werner Flume, Lünen, Westphalen, Langestrasse 98. Mein Bruder, Dr Max Schulz, ist zum Oberfinanzpraesidenten in Kiel ernannt worden; Adresse: Kiel, Diippelstrasse 46.
Prof. Smend—Göttingen war vorige Woche hier aus Anlass eines kirchlichen Kongresses. Der rüstige Kaufmann beflndet sich auf dem Rückmarsch nach Bonn, wo er wieder als Professor ernannt worden ist; er ist wohl schon da, wird aber im Augenblick alle Hände voll zu tun haben.
Der frühere Landgerichtsdirector Dr Franz Ziegel, Berlin, der während des Krieges in Holland lebte (Utrecht, Holland, Maurits Str. 102) ist vielleicht schon wieder nach Berlin zurückgekehrt und kann Ihnen vielleicht helfen, wenn Sie sich auf mich berufen.
Heut Nachmittag fragte die Bayr. Regierung an, ob ich wieder nach Deutschland zurückkehren wolle, ev. als Gastprofessor. Definitiv gehe ich bestimmt nicht zurück, nicht aus Verbitterung oder Ressentiment, sondern einfach, weil ich wichtigeres zu tun habe, nämlich meine wissenschaftliche Ernte einzubringen habe, ‘gleichsam Wintervorräte für die Zukunft’ wie Savigny (Vom Beruf etc.) sagte. Als Gastprofessor vielleicht, aber vor (p.200) der Hand habe ich alle Hände voll zu tun, um mein zweites Buch für die Oxford Press fertig zu machen. Meine Frau u. ich lieben England und sind sehr gern hier; die Söhne sind Amerikaner, die Töchter Engländerinnen, sie schreiben und sprechen alle besser und lieber Englisch als Deutsch. Ich selbst brauche für meine Arbeit die internationale Literatur und den Verkehr mit englischen, Franz., italien. und holländischen Kollegen: das alles ist zur Zeit in Deutschland unmöglich. Warten aber kann ich nicht, denn ich habe am 16. Juni mein 68. Lebensjahr angetreten. Now or never!
Genug für heute, Hebe Helga. Schreiben Sie recht bald wieder und wenn ich Ihnen etwas helfen kann, so lassen Sie es mich schnellstens wissen.
Leben Sie wohl! Mit den allerherzlichsten Grüssen von meiner Frau und mir
P.S. Bei nochmaliger Ueberlegung der Sachlage halte ich es doch für richtig, Ihnen zunächst kein Zeugnis auszustellen und zu warten, bis Sie mich um ein solches angehen. Ohne nähere Angaben von Ihrer Seite kann ich ja auch nur bis 1938 etwas bekunden. Also schreiben Sie mir, wie Sie darüber denken.
Soeben schreibt mir Flume, dass er umgezogen ist. Seine Adresse ist jetzt:
Lünen, Westf., Borkerstrasse 13. Postleitbez. 21b.
5, Tackley Place
27 August 1946
Your undated letter from hospital arrived this afternoon, forwarded to us by our good friend Kahle, and my wife and I were absolutely thrilled to get it, the best news for a long time. We had heard of the bombings in Westphalia and often thought and talked of you, so to know that you, and the children too, are alive and well—for the operation must now be over without any after-effects—makes us very happy. So the oldest girl is confirmed already! It's almost incredible how the time has flown.
Here we are all well. I myself am in fine health and surprisingly energetic. True, I have no position here, being over age, give no lectures and have no money, but everything else is good. Friends here in England have kept my head above water, and the past years have been very productive. Oxford has been astonishingly generous in opening its libraries to me and I have written 10 articles, all published, as well as a book of 350 pages, History of Roman Legal Science, recently published by the Clarendon Press here in Oxford and already reviewed, at length and favourably, in the Times Literary Supplement. I am now engaged on writing a textbook on Classical Roman Private Law, commissioned by the Clarendon Press. In these seven years in England I have been able to study philosophy, history and philology, and have made great progress. If, as I hope, my health remains as good as it is, I believe there is still much of merit I can publish. I have no resentment against Germany, since as it is written: The Nazis meant me ill, but God has made it good. I would never have developed in Germany as I have in the freedom of England, especially in Oxford, the most marvellous place on earth.
My wife, too, is in excellent health, extremely busy and managing the whole family as before. She will write you very soon, but today she is so busy that she simply sends her (p.201) fondest greetings. Renate has finished her studies and is now a qualified doctor. At the moment she is in Hamburg, in a British Military Hospital. Her address is: 338 226 Capt. R. Schulz, RAMC, Hamburg, 94 Brit. Military Hospital, BAOR.
Thomas is in Germany with the American Army, Johannes is teaching at the University of Syracuse in the USA, and Dorli is here with us, just beginning her second year of Russian and French. I myself still play the piano a great deal, more than I should, but I can't help it.
Now, Helga, for the main business. You must obviously take immediate steps to rehabilitate yourself and resume your career as a lawyer. Given the circumstances this must be quite possible. You don't say whether you are in the British or the American Zone—but I can be of assistance in both.
1) Dr Fritz Mann, one of my Berlin assistants, now a British citizen and a solicitor in London, is at present in the British part of Berlin, working for the government there with the rank of Lieutenant-Colonel. His address there I don't have, but I shall write to London straight away and give him yours. Don't hesitate to contact him yourself at his office in Berlin, which can surely be ascertained.
2) Gerhart Husserl, now an American citizen, goes to Berlin in a week or two to work in the Legal Division of the American Military Government. Perhaps I can have a word with him here before he goes, otherwise I shall write him, for of course he remembers you! So your rehabilitation can only be a matter of time. As Napoleon used to end his despatches: Vitesse! Courage! Activité!
The other addresses I have may well not be of much use to you, but I give them nevertheless. Flume, whom you will remember, managed to escape with his wife and five children, but is now struggling to find a position. His address is: Dr Werner Flume, Lunen, Westphalen, Langestrasse 98. My brother Dr Max Schulz is now Oberfinanzpraesident in Kiel, Düppelstrasse 46.
The irrepressible Professor Smend of Göttingen, who was here last week for a church congress, is making his way back to Bonn to resume his chair. Indeed he may be there already, but I'm afraid that he will have his hands full.
Mentioning my name to Dr Franz Ziegel might be helpful. He used to be Director of the Landgericht in Berlin and lived in Holland during the War (Utrecht, Holland, Maurits Str. 12). He may already be back in Berlin.
This afternoon I heard from the Bavarian Government, asking whether I wanted to return to Germany, perhaps as Visiting Professor. I didn't give a firm answer either way, not out of resentment but simply because I have more important things to do, especially to bring in my scientific harvest, ‘storing up winter provisions for the future, as it were’, as Savigny said in Vom Beruf. A Visiting Professorship might do, but at present I have my hands full with preparing my second book for the Oxford Press. My wife and I love England and are very happy here; the boys are Americans, our daughters English, and all of them speak and write English more readily than German. What I myself need for my work—access to the international literature and intercourse with English, French, Italian and Dutch colleagues—all that is simply impossible in Germany at present. And I can hardly wait, for I shall be 67 years old on 16 June. Now or never!
And that, dear Helga, is enough for today. Write again soon and be sure to let me know immediately if there is anything I can do for you.
With very best wishes from my wife and myself,
your old F.S.(p.202)
P.S. On thinking the matter over, I believe it best not to write a testimonial for you just yet, but rather to wait till you ask for one, since without further information from you I can speak only on events up till 1938. So let me know what you think.
A letter from Flume has just arrived: he has moved to Lünen, Westf., Borkerstrasse 13, Postleitbez. 21b.
Archives: Balliol College Archive. Rheinische Friedrich Wilhelms Universität Bonn, Universitätsarchiv: Personalakte Nr. 9234; Schulz-Archiv, Institut für Römisches Recht und Vergleichende Rechtsgeschichte. Humboldt Universität Berlin, Archiv; Personalakte Schulz Uk Sch 303, vols. I and III. Edinburgh Faculty of Advocates, Envelope ‘Chair of Civil Law Edinburgh University 1938’. Johann Wolfgang Goethe Universitat Frankfurt: Dekanatsakten ‘Fritz Schulz’ (Personalakte and Akte Ehrenpromotion); Universitätsarchiv: Abt. 1 ‘Fritz Schulz’, Abt. 14 Nr. 456. Albert-Ludwigs Universität Freiburg, Universitätsarchiv, Personalakte B 24 Nr. 3485. Harvard University Archives: Record James Bryant Conant, UAI 5.168, Box 144, Folder ‘University Lecturer: Schulz’. Oxford University Press Archive CP ED 000129, CP GE 000344, CP GE 000345, PB/ED/010383, PB/ED/010382, PB/ED/010384. Rockefeller Foundation Archive: folders 830, 831, and 833, box 63, series 401, RG 1.1 RAC. Society for the Protection of Science and Learning (Bodleian Library, Oxford): 129/1, 274/2, 441/2 (S. 26795).
Other unpublished material: F. A. Mann, Personal Memoir. I am grateful to the Council for Assisting Refugee Academics (CARA), Robin Hartshorne, Harvard University Archives, D. Mann, D. Meek, Oxford University Press, and The Rockefeller Foundation for permissions to cite unpublished material.
Interviews: H. Arnold, R. Feenstra, W. Flume, D. Meek, B. Nicholas.
Works of biographical reference: L. Breunung and M. Walther (eds.), Deutsche Rechtswissenschaft(ler) in der Emigration—eine Bio-Bibliographie, vol. I: Alle Emigrationsländer ausser USA (forthcoming, cf. Zimmermann, supra, p. 47 n. 311). H. Strauss and W. Röder (general eds.), H. Caplan and B. Rosenblatt (eds.), International Biographical Dictionary of Central European Emigrés, vol. II/2, The Arts, Sciences, Literature, L-Z (1983), 1054. New Dictionary of National (p.203) Biography (B. Nicholas; forthcoming 2004). H. Göppinger, Juristen jüdischer Abstammung im (Dritten Reich’: Entrechtung und Verfolgung (2nd edn., 1990), 316. R. Heuer and W. Siegbert (eds.), Die Juden der Frankfurter Universität (1997), 342–4. G. Kleinheyer and J. Schröder (eds.), Deutsche und Europäische Juristen aus neun Jahrhunderten: Eine biographische Einführung in die Geschichte der Rechtswissenschaft (4th edn., 1996), 509. R. B. Todd (ed.), Dictionary of British Classicists 1500–1960 (Johannes Keller, forthcoming 2004). F. Ebel, ‘Exodus Berliner Rechtsgelehrter’, in W. Fischer et al., Exodus von Wissenschaftlern aus Berlin (1994), 127–38, 135 ff. For obituaries see n. 666, for laudationes on Schulz's 70th birthday, see n. 659.
Additions and corrections to the 1950 bibliography of Fritz Schulz (n. 545): 26a. ‘Der Irrtum im Beweggrund bei der testamentarischen Verfügung’, in Gedächtnisschrift für Emil Seckel (1927), 70–144, is missing. After 1951 Schulz published five more articles: 58. ‘Die Ulpianfragmente des Papyrus Rylands 474 und die Interpolationenforschung’, (1951) 68 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Romanistische Abteilung 1–29; 59. ‘Condictio indebiti und die Accessorietät der sponsio und fideiussio’, (1952) 3 Rivista internationale di diritto Romano e antico 15–20; 60. ‘Die quare-Sammlungen der Bologneser Glossatoren und die Problemata des Aristoteles’, in Atti del Congresso Internazionale di Diritto Romano e di Storia del Diritto, vol. I (1951), 297–306; 61. ‘Das “Quare” und die Rationalisierung der römischen Rechtswissenschaft (Papinianstudien I)’, (1952) 1 Revue Archives d'Histoire du Droit oriental et Revue Internationale des Droits de l'Antiquité 557 ff.; 62. ‘Papinianstudien IF, (1953) 2 Revue Internationale des Droits de l'Antiquité 381–410. Posthumously, a lecture by Schulz has been published: 63. ‘The invention of the science of law at Rome’, in H. H. Jakobs, De similibus ad similia bei Azo und Bracton (1996), 99–110 (Lecture of 18 March 1936 at the Riccobono Seminar at Washington). On additional places of publication, translations and reprints see n. 50 (no. 7 of the bibliography); nn. 163, 166, 167 (no. 37); n. 493 (no. 45, 47); nn. 540, 541 (no. 52); n. 589 (no. 49); nn. 579, 583 (no. 57). (p.204)
(1) ‘For this seems to me to be the chief task of a biography: to show the man in the context of his time.’
(2) Family dates are taken from a family tree in Schulz's own hand, obviously done in the 1920s and updated in the 1930s (Schulz Archive, Bonn).
(3) His grandfather, a descendant of a family of farmers, had moved from Kunzendorf, county Sorau in the Niederlausitz, to Halbau.
(4) The Concordia AG, according to L. Breunung and M. Walther (eds.), Deutsche Rechtswissenschaft(ler) in der Emigration—eine Bio-Bibliographie, vol. I, Alle Emigrationsländer außer USA (forthcoming, cf. Zimmermann, supra, p. 47 n. 311), s.v. Schulz, no. 2.
(311) On Albrecht Mendelssohn Bartholdy (1874–1936), 1933 Professor of Foreign and Comparative Law as well as director of the Institute for Foreign Policy at Hamburg, see Appendix, infra, p. 779; G. Gantzel-Kress, in Neue Deutsche Biographie, vol. 17, 62–3; id., ‘Albrecht Mendelssohn Bartholdy: Ein Burgerhumanist und Versöhnungsdiplomat im Aufbruch der Demokratie in Deutschland’, in (1985) 71 Zeitschrift des Vereins für hamburgische Geschichte 127 ff.
(7) W. Flume, Fritz Schulz: Gedenkrede, gehalten bei einer von der Rechts- und Staatswissenschaftlichen Fakultät der Universität Bonn am 25.7.1958 veranstalteten Gedächtnisfeier, Schriften der Universität Bonn, Dritte Reihe: Alma Mater, 9. Heft (1959), 5.
(9) Living in Gera, she was a DDP member (infra, n. 118) first of the Landtag of the Land ‘Reuß’ from 1919 to 1920 and, once this was fused with other states to the Land ‘Thüringen’ in 1920, of the Thuringen Landtag 1920–1929; cf. W. H. Schröder, W. Weege, and M. Zech, ‘Historische Parlamentarismus-, Eliten- und Biographieforschung’, in Historical Social Research'/Historische Sozialforschung, Supplement No. 11 (2000), 208 ff.
(10) His dissertation had been on euphemisms.
(11) H. Schulz, Abriss der Deutschen Grammatik (1914); H. Schulz, W. Sundermeyer, and B. Thies, Deutsche Sprachlehre für Ausländer (36th edn., 1996).
(12) ‘Dictionary of Foreign Words in German’.
(13) Cf. Deutsches Fremdwörterbuch, vol. 7 (1988), 720 ff.
(14) On Hans Schulz, see F. Kluge, ‘Hans Schulz’, in H. Speyer (ed.), Akademische Mitteilungen, Albert Ludwigs-Universität Freiburg im Breisgau, Neue Folge XVII. Sem., No. 9 of 2 February 1915. Friedrich Kluge was Hans Schulz's academic teacher.
(15) Gerhard Alexander Leist (1862–1918) commited suicide because he could not get over the German defeat in 1918. He was the son of Burkhard Wilhelm Leist (1819–1906), Professor in Basel, Rostock, and Jena, a Roman law professor of some renown, who was affiliated from his youth with Gustav Hugo and later married one of Hugo's granddaughters. On B. W. Leist, see G. Sprenger, ‘Burkhard Wilhelm Leist’, in W. G. Becker and L. Schnorr von Carolsfeld (eds.), Sein und Werden im Recht: Festgabe für Ulrich von Lübtow zum 70. Geburtstag (1970), 602–25.
(16) His main teachers were his headmaster Adolf Ostendorf (Greek) and August Tegge (Latin); letter by Schulz to Fritz Pringsheim of 18 April 1949, Schulz Archive.
(17) When Marie Schulz later became a teacher in Gera, she seems to have taken her mother with her.
(19) Marie Schulz was awarded her doctorate on the strength of her dissertation, Die Lehre von der historischen Methode bei den Geschichtsschreibern des Mittelalters (VI.-XIII. Jahrhundert), Abhandlungen zur Mittleren und Neueren Geschichte, vol. 13 (1909).
(20) Cf. H. Schulz, Deutsches Fremdwörterbuch, vol. I, A-K (1913), ix; Fritz Schulz dedicated a copy of his dissertation to his brother Hans, ‘seinem lieben Bruder und Mitarbeiter’ (‘his beloved brother and collaborator’).
(22) Relatives on his mother's side turned to art: Franz Landsberger (1883–1964), son of Schulz's uncle Adolf Landsberger, became Professor of Art History at Breslau and a pioneer of the history of Jewish Art as a branch of Jewish studies. He emigrated via Oxford to the United States, where he established a Museum for the History of Jewish Art at the Hebrew Union College, Cincinnatti. On Franz Landsberger, see U. Wendland, Biographisches Handbuch deutschsprachiger Kunsthistoriker im Exil: Leben und Werk der unter dent Nationalsozialismus verfolgten und vertriebenen Wissenschaftler, vol. I (1999), 411–16; J. Gutman, ‘Franz Landsberger 1883–1964’, (1966) 8 Studies in Bibliography and Booklore 5–9. Franz Landsberger's sister Elfriede Landsberger (born 1881,1942 deported to an unknown destination) became a pupil of Eduard Spiro, Leo von König, and Moritz Heymann, and as a Munich painter changed her name to Meier-Lanz; see H. Vollmer, Allgemeines Lexikon der Bildenden Künste, vol. III (1956), 365; Choung-Hi Lee Kuhn, in H. Ludwig (ed.), Munchner Maler im 19.120. Jahrhundert, vol. VI (1994), 70.
(23) On (Lothar Anton) Alfred Pernice (1841–1901), Professor of Roman Law in Halle, Greifswald, and Berlin, see E. I. Bekker, ‘Alfred Pernice †’, (1901) 22 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Romanistische Abteilung xvv-xxvi.
(24) On Emil Seckel (1864–1924), Professor of Roman Law at Berlin, see E. Genzmer, ‘Emil Seckel’, (1926) 46 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Romanistische Abteilung 216–63. Handwörterbuch der Rechtsgeschichte, vol. 4 (1990), 1588 ff. (Gero Dolezalek); G. Kleinheyer and J. Schröder (eds.), Deutsche und Europäische Juristen aus neun Jahrhunderten (4th edn., 1996), 509 ff. (J. Schröder).
(25) On Ferdinand von Martitz (1839–1921), Professor for Constitutional and Public International Law of Nations in Königsberg, full Professor in Freiburg, Tübingen, and Berlin, member of the Prussian Higher Administrative Court and of the Haager Schiedsgerichtshof, see M. Friedrich, ‘Ferdinand v. Martitz’, in Neue Deutsche Biographie, vol. 16 (1990), 309.
(26) On Josef Kohler (1849–1919), Professor of Law in each and every respect at Würzburg and Berlin, see Handwörterbuch der Rechtsgeschichte, vol. 2 (1978), 925–7 (Adalbert Erler); ‘Josef Kohler’, in Neue Deutsche Biographie, vol. 12 (1980), 425 ff. (K. Luig); Bernhard Großfeld and Ingo Theusinger, ‘Josef Kohler, Brückenbauer zwischen Jurisprudenz und Rechtsethnologie’, (2000) 64 Rabels Zeitschrift für ausländisches und internationales Privatrecht 696–714.
(27) On Martin Wolff (1872–1953), Professor of Civil Law and Conflict of Laws at Berlin, since 1938 in England, see the contribution by Gerhard Dannemann to the present volume, infra, pp. 441–63; D. Medicus, ‘Martin Wolff (1872–1953): Ein Meister an Klarheit’, in H. Heinrichs, H. Franzki, K. Schmalz, and M. Stolleis (eds.), Deutsche Juristen Jüdischer Herkunft (1993), 543–53; Dictionary of National Biography 1951–1960 (1971), 1071 (F. H. Lawson); The Times, 28 July 1953.
(28) Letter to Pringsheim of 18 April 1949; Schulz Archive.
(29) Infra, pp. 111–13.
(31) On Xaver Severin Gretener (1852–1933), Professor of Criminal Law and Criminal Procedure in Bern and Breslau, see W. Killy and R. Vierhaus (eds.), Deutsche biographische Enzyklopädie, vol. 4 (1996), 158.
(32) On Siegfried Brie (1838–1931), Professor of Public Law at Heidelberg, Rostock, and Breslau, see D. Drüll, Heidelberger Gelehrtenlexikon 1803–1932 (1986), 30; M. Stolleis, Geschichte des Öffentlichen Rechts in Deutschland, vol. II, 1800–1914 (1992) 366; P. Landau, ‘Juristen judischer Herkunft im Kaiserreich und in der Weimarer Republik’, in Heinrichs et al. (n. 27), 173 with n. 216.
(34) 16 June 1902. Schulz served at the Königliche Amtsgericht in Kontopp (now Konotop in Poland), in the Landgerichtsbezirk (judicial district) of Glogau (now Glógow) and, after 9 months, at the Königliche Landgericht in Liegnitz (now Legnica in Poland); cf. his curriculum vitae attached to his dissertation (infra, n. 38).
(38) Published Breslau 1905. The subject matter of ‘Die actiones in id quod pervenit und in quantum locupletior est’ was later taken up by Werner Flume, who developed, possibly inspired by Schulz's findings, an entirely new concept of unjustified enrichment on the strength of a novel theory of change of position; see W. Flume, Studien zur Lehre von der ungerechtfertigten Bereicherung, ed. by Wolfgan. Ernst (2003).
(39) On Paul Jörs (1856–1925), Professor of Roman Law in Kiel, GieSen, Breslau, and Wien, see E. Schonbauer, ‘Paul Jörs’, (1926) 46 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Romanistische Abteilung v-xiii.
(41) ‘Klagen-Cession im Interesse des Cessionars oder des Cedenten im klassischen romischen Recht’, (1906) 27 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Romanistische Abteilung 82–150.
(42) Sabinus-Fragmente in Ulpians Sabinus-Kommentar (1906).
(44) On Otto Lenel (1849–1935), Professor of Roman Law and Civil Law at Kiel, Marburg, Straftburg, and Freiburg im Breisgau, see L. Wenger, ‘Otto Lenel †’, (1935) 55 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Romanistische Abteilung vii-xi; H. Sinzheimer, Jüdische Klassiker der deutschen Rechtswissenschaft (1938, reprint 1953), 121 ff.; O. Behrends, ‘Positivismus im nationalen Rechtsstaat als Haltung und Methode: Zur Herausgabe seiner gesammelten Schriften’, in O. Behrends and F. D'Ippolito (eds.), Otto Lenel, Gesammelte Schriften, vol. I (1990) xiii-xxxiii.
(45) Flume (n. 7), 9: ‘Mit dem kritischen und distanzierten Urteil über seine Arbeiten, das Schulz sich zeitlebens bewahrt hat, verbindet sich aber die innere Gewißheit, daiS er es doch schaffen werde.’
(46) On Fridolin Eisele, (1837–1920), Professor of Roman Law in Basel and Freiburg im Breisgau, see O. Lenel, ‘Fridolin Eisele †’, (1920) 27 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Romanistische Abteilung v-xiv.
(47) Alfred Schultze (1864–1946), Professor of German Legal History, Civil Law, and Canon Law at Halle, Jena, and Freiburg im Breisgau; Schultze also seems to have taken a very favourable stand towards Schulz during the time Schulz stayed in Freiburg im Breisgau as a Privatdozent, cf. diary (n. 80) of 2 July 1908. On Alfred Schultze, see G. Schubart-Fikentscher, ‘Alfred Schultze †’, (1947) 65 Zeitschrift der Savigny Stiftung für Rechtsgeschichte, Germanistische Abteilung xxvi-xlvi; E. Riezler, (1950) 1949 Jahrbuch der Bayerischen Akademie der Wissenschaften 125–6.
(48) Cf., e.g., F. Eisele, ‘Zur Diagnostik der Interpolationen in den Digesten und im Codex’, (1886) 7 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Romanistische Abteilung 15–31.
(49) ‘Notwendige Cession und Forderungsübergang kraft Gesetzes im modernen Recht’.
(52) R. Smend, ‘Zur Geschichte der Berliner Juristenfakultat im 20. Jahrhundert’, in H. Leussink, E. Neumann, and G. Kotowski (eds.), Studium Berolinense: Aufsätze und Beiträge zu Problemen der Wissenschaft und zur Geschichte der Friedrich-Wilhelms-Universität zu Berlin (1960), 109–28, at 112 ff.
(54) E. Seckel, ‘Pläographie der juristischen Handschriften des 12. bis 14. und der juristischen Drucke des 15. und 16. Jahrhunderts’, (1925) 45 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Romanistische Abteilung 1–16, at 2: ‘Rate nie’.
(55) ‘To us, sense and the matter at heart are more important than a hundred codices’: F. Schulz, ‘A new approach to Bracton’, (1944) II Seminar 41–50, at 41.
(56) Letter of 18 April 1949, Schulz Archive; cf. also F. Schulz, History of Roman Legal Science (1946), 212, n. 11, where Schulz writes on his early Sabinus-Fragemente in Ulpians Sabinus-Commentar (1906): ‘Too much trust was placed in the traditional text’.
(58) ‘Den Eindruck einer “frohlichen Wissenschaft” erhielt ich 1900 bei Seckel’: F. Schulz, ‘Die Ulpianfragmente des Papyrus Rylands 474 und die Interpolationenforschung’, (1951) 68 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Romanistische Abteilung 1–29, at 4, n. 3.
(59) ‘Der Irrtum im Beweggrund bei der testamentarischen Verfügung’, in Gedächtnisschrift für Emil Seckel (1927), 70–144.
(61) ‘Die Haftung für das Verschulden der Angestellten im klassischen römischen Recht’, (1911) 38 Zeitschrift für das Privat- und Offentliche Recht der Gegenwart 9–54; ‘Rechtsvergleichende Forschungen über die Zufallshaftung in Vertragsverhältnissen’, (1911) 25 Zeitschrift für Rechtsvergleichung 459–79 and 27 (1912) Zeitschrift für Rechtsvergleichung 145–86; as well as the review ‘Lusignianis Custodia-Forschungen: Ein kritischer Bericht’, (1911) 14 Kritische Vierteljahresschrift 22–90; ‘Die Aktivlegitimation zur actio furti’, (1911) 32 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Romanistische Abteilung 23–99 interrelates issues of risk (the so-called custodia liability of, e.g., the bailee) with issues of recourse, to which Schulz devoted three other studies; cf. nn. 41, 50, 70.
(62) E. Seckel and E. Levy, ‘Die Gefahrtragung beim Kauf im klassischen römischen Recht’, (1927) 47 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Romanistische Abteilung 117–263.
(63) (1911) 32 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Romanistische Abteilung 23–99, at 23 ff., n. *.
(64) H. Gottlieb Heumann and E. Seckel, Heumanns Handlexikon zu den Quellen des römischen Rechts (9th edn., 1907), s.v. ‘custodia’.
(66) See the contribution by David Ibbetson to the present volume, infra, p. 285.
(67) On the History of Roman Legal Science (1946), see infra, pp. 171–9.
(68) Infra, pp. 185–7.
(69) ‘In writing on things ancient my own mind somehow becomes antiquated’: F. Schulz, ‘Bracton on Kingship’, in Studi in memoria Paolo Koschaker, vol. I (1953), 23 ff., at 70, quoting Livy 43, 13, 2; also printed in (1945) 60 English Historical Review 136–76.
(70) ‘System der Rechte auf den Eingriffserwerb’, (1909) 105 Archiv für die civilistische Praxis 1–488.
(71) ‘Dieses Werk steht allein’, list of publications, part of Schulz's curriculum, sent by Schulz to E. Y. Hartshorne, 13 January 1939, Harvard University Archive: Record James Bryant Conant, UAI 5.168, box 144, folder ‘University Lecturer: Schulz’.
(74) On Schulz and the later development of the doctrine, see H. H. Jakobs, lucrum ex negotiatione: Kondiktionsrechtliche Gewinnhaftung in geschichtlicher Sicht (1993), 1, 3 ff., 8 ff., 28, 34, 37, 53 f., 90, 95–100, 102 ff., 108 ff., 120, 125, 127, 129 ff., 131, 133 ff; R. Ellger, Bereicherung durch Eingriff (2002), 4 f., 89–104.
(75) Far-reaching proposals to restructure the system of private law, not totally unlike Schulz's concept, have been put forward especially by E. Picker, ‘Der “dingliche” Anspruch’, in Festschrift für Franz Bydlinski (2002), 269–318; id., ‘Der vindikatorische Herausgabeanspruch’, in C.-W. Canaris, A. Heldrich et al. (eds.), 50 Jahre Bundesgerichtshof: Festgabe aus der Wissenschaft, vol. I: Bürgerliches Recht (2000), 693–752, both with further references.
(77) ‘Die quare-Sammlungen der Bologneser Glossatoren und die Problemata des Aristoteles’, in Atti del Congresso Internazionale di Diritto Romano e di Storia del Diritto, vol. I (1951), 297–306; ‘Das “Quare” und die Rationalisierung der romischen Rechtswissenschaft (Papinianstudien I)’, (1952) 1 Revue Internationale des Droits de I'Antiquite 557–69.
(78) Infra, pp. 185–7.
(79) Cf. supra, p. 107.
(80) The following draws from a diary, which Schulz kept between 16 June 1908 and 17 July 1908; copy in Schulz Archive.
(81) On Erwin Riezler (1873–1953), son of the historian Sigmund v. Riezler, Professor of Private Law at Freiburg im Breisgau, Erlangen, and Munich, author of books on Das Rechtsgefühl and on international civil procedure, see A. Hueck, ‘Erwin Riezler’, (1954) 1953 Jahrbuch der Bayerischen Akademie der Wissenschaften 157–62; F. Lent, ‘Nachruf fur Erwin Riezler’, 1953 Neue Juristische Wochenschrift 574.
(82) On Herman Ulrich Kantorowicz (1877–1940), see the contribution by David Ibbetson to the present volume, pp. 269–88, K. Muscheler, Hermann Ulrich Kantorowicz: Eine Biographie (1984).
(83) ‘We shall not be friends. I cannot yet exactly say what repels me in him; for the time being it is probably his lack of nonchalance and scepticism. He is restlessly active just like a merchant, and he is strongly and fanatically convinced of his opinions just like a merchant is convinced by those held by him or by his newspaper. I am different…’ Diary (n. 80), 23 June 1908.
(85) On the work Kantorowicz did on the history of the Digest, see most recently H. H. Jakobs, ‘Das Ende des Digestum vetus’, (2003) 120 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Romanistische Abteilung 1–41, at 13 ff.
(88) On the Freirechtslehre, see L. Lombardi Valauri, Geschichte des Freirechts (1971); K. Muscheler, Relativismus und Freirecht (1984).
(90) See, e.g., on the so-called Eisenacher Konferenz of 1896, R. Zimmermann, ‘Heutiges Recht, Römisches Recht und heutiges Römisches Recht: Die Geschichte einer Emanzipation durch “Auseinanderdenken”’, in R. Zimmermann, R. Knütel, and J. Meincke (eds.), Rechtsgeschichte und Privatrechtsdogmatik (1999), 1–39, at 7 ff.
(91) Kantorowicz, ‘Probleme der Strafrechtsvergleichung’, (1908) 4 Monatsschrift für Kriminalpsychologie und Strafrechtsreform 5–112, at 108.
(92) Richard Thoma (1874–1957), Professor of Constitutional and Adminstrative Law at the Colonial Institute in Hamburg, later professor in Tübingen, Heidelberg, and Bonn. On Thoma, see H. Mosler, ‘Richard Thoma zum Gedachtnis’, 1957 Die Öffentliche Verwaltung 826–8; U. Scheuner, ‘Zum Gedächtnis an Geh. Hofrat Prof. Dr. Richard Thoma’, 1957 Neue Juristische Wochenschrift 1309.
(93) ‘There was unanimity that legal history is without purpose; the assertion that it is necessary in order to understand modern law, is nothing but idle talk. Yet, whoever devotes himself to a present day issue will wish to learn about its history. History also has an ethical significance, it makes a person humble and sceptical.’ Diary (n. 80), 17 June 1908.
(272) On Joseph Schumpeter (1883–1950), Professor of Economics at Czernovitz, Graz, Bonn, and Harvard, in 1919 Austrian Minister of Finance, banker, see E. Streißler, ‘Joseph Schumpeter’, Staatslexikon, vol. IV (1988), coll. 1098–1100; E. März, Joseph Alois Schumpeter: Forscher, Lehrer und Politiker (1983), English edn. Joseph Alois Schumpeter: Scholar, Teacher and Politician (1991); Strauss and Röder (n. 181), vol. II/2, 1055 ff.; Ch. Seidl, in Österreichisches Biographisches Lexikon 1815–1950, vol. 11 (1999), 369–71.
(96) Schulz lived at Hospitalstrasse 19.
(97) Ernst Rabel (1874–1955), Professor of Roman Law, later of Comparative Law, at Basel, Kiel, Göttingen, Munich, and Berlin, member of the International Court of the Hague; he emigrated to the United States of America in 1939, where he became research associate at Michigan University; on Ernst Rabel, see J. Thieme, ‘Ernst Rabel (1874–1955): Schriften aus dem Nachlaß’, (1986) 50 Rabels Zeitschrift für ausldndisches und internationales Privatrecht 251–81; F. Mecklenburg and E. C. Stiefel, Deutsche Juristen im amerikanischen Exil (1933–1950) (1991), 53 ff.; G. Kegel, ‘Ernst Rabel (1874–1955): Vorkämpfer des Weltkaufrechts’, in Heinrichs et al. (n. 27), 571; id., ‘Ernst Rabel: Werk und Person’, (1990) 54 Rabels Zeitschrift für ausländisches und internationales Privatrecht 1 ff.; R. Zimmermann, ‘“In der Schule von Ludwig Mitteis”: Ernst Rabels rechtshistorische Urspünge’, (2001) 65 Rabels Zeitschrift für ausländisches und internationales Privatrecht 1 ff.
(98) Paul Koschaker (1879–1951), Professor of Roman Law at Leipzig, Berlin, and Tübingen; cf. K.-H. Below and A. Falkenstein, ‘Paul Koschaker’, (1951) 62 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Romanistische Abteilung ix-xx; and see the reference in (2002) 202 Archiv für die civilistische Praxis 245, n. 8.
(100) Letter by Jaeger to James B. Conant of 2 April 1939, Harvard University Archive: Record James Bryant Conant, UAI 5.168, box 144, folder ‘University Lecturer: Schulz’.
(101) On Werner Jaeger (1888–1961), classicist, Professor at Basel, Kiel, Berlin, Chicago, and Harvard, see F. Solmsen, ‘Werner Jaeger’, Neue Deutsche Biographie, vol. 10 (1974), 280–81; H. Langerbeck, ‘Werner Jaeger †’, (1962) 34 Gnomon 101–05; E. Mensching, ‘Über Werner Jaeger (geb. am 30. Juli 1988) und seinen Weg nach Berlin’, in (1989) 2 Nugae zur Philologie-Geschichte 60–92.
(104) List of publications, part of Schulz's curriculum, submitted by Schulz to E. Y. Hartshorne, 13 January 1939, Harvard University Archive: Record James Bryant Conant, UAI 5.168, box 144, folder ‘University Lecturer: Schulz’.
(105) Letter of 6 April 1913; copy Schulz Archive (original in English).
(106) Of these, nine survived childhood.
(108) i.e. Kosher butcher.
(109) On Nehemias Briill (1843–1891), liberal rabbi, see W. Kloetzer, S. Hock, and R. Frost (eds.), Frankfurter Biographie: Personengeschichtliches Lexikon, vol. I (1994), 111.
(110) See J. Jacobsen, ‘Zur Geschichte der Juden in Posen’, in G. Rhode (ed.), Geschichte der Stadt Posen (1953), 243–56.
(111) J. H. Mellanby, ‘Dr Renate Schulz’, (1982) St Hilda's College—Report and Chronicle 1981–1982, 50–52, at 50.
(112) On the issue of assimilation, see Reinhard Zimmermann, supra, pp. 9–24.
(113) Infra, pp. 155–8.
(114) Flume (n. 7), 21. Alfred Plaut later recalled: ‘His unusual teaching capacity was the first thing that impressed us students at that time’, letter to E. Y. Hartshorne of 5 January 1939; Harvard University Archive: Record James Bryant Conant, UAI 5.168, box 144, folder ‘University Lecturer: Schulz’.
(115) In Göttingen the Schulzes lived at Friedländerweg 57.
(116) He had been a member of the Jungliberalen (Young Liberals) since around 1914; Breunung and Walther (n. 4), no. 19 (referring to a Jungliberale ‘Partei’). In the German Reich various groups of young intellectuals, mostly with a well-to-do urban background, had been formed under the name of Jungliberale. The movement was loosely linked to the Deutsche Volkspartei, which it tried (without success) to push towards more liberal and socially progressive positions. The Jungliberalen tended to become members of the DDP, founded in 1918 (n. 118). On the Jungliberalen, see T. Nipperdey, ‘Die Organisation der bürgerlichen Parteien in Deutschland’, in G. A. Ritter (ed.), ‘Deutsche Parteien vor 1918’, (1973) 61 Neue Wissenschaftliche Bibliotbek 100–19, at 113 ff.; H. Thieme, ‘Die soziale und politische Struktur der nationalliberalen Fraktion des Preußischen Abgeordnetenhauses und ihre Stellung in der Gesamtpartei 1914–1918’, ibid. 243–65, at 259.
(118) On the DDP, see K. D. Bracher, Die Auflösung der Weimarer Republik: Line Studie zum Problem des Machtverfalls in der Demokratie (1984; 5th reprinted edn., 1978), 86 ff.; J. Stang, Die Deutsche Demokratische Partei in Preußien 1918–1933 (1994). For a programme of the DDP, see W. Mommsen (ed.), Deutsche Parteiprogramme (3rd edn., 1960), 508–14. Cf. also D. Langewiesche, Liberalismus in Deutschland (1988) and Zimmermann, supra, p. 118.
(120) Göttinger Zeitung of 5 December 1918.
(121) H.-J. Dahms and F. Halfmann, ‘Die Universität Göttingen in der Revolution von 1918/19’, in 1918—Die Revolution in Südhannover. Begleitheft zur Dokumentation des Museumsverbundes Südniedersachsen (1988), 59–82; on Schulz at 65, 70 f., 73, 77.
(122) Breunung and Walther (n. 4), no. 19. These will have been the elections for the first Prussian Landtag on 20 February 1921. The DDP gained 6.19% and 26 out of 428 seats; cf. Stang (n. 118), 61–106. On the DDP in Göttingen, see F. Hasselhorn, Wie wählte Göttingen? Wahlverhalten und die soziale Basis der Parteien in Göttingen 1924–1933 (1983), 44 ff.
(124) Flume (n. 7), 21 (‘ … weil er keine Moglichkeit sah, seine Vorstellungen eines demokratischen Staates durchzusetzen’). On the anti-Semitic attacks on the DDP in Gottingen, cf. Dahms and Halfmann (n. 121), 74 ff.
(125) W. Flume and M. Noth, ‘In memoriam Fritz Schulz (1873–1957)’, (1957/1958) 11/12 Journal of Juristic Papyrology 23–4, at 23.
(127) Frank Halfmann, ‘Eine “Pflanzstätte bester nationalsozialistischer Rechtsgelehrter”: Die Juristische Abteilung der Rechts- und Staatswissenschaftlichen Fakultät’, in H. Becker, H.-J. Dahms, and C. Wegeler (eds.), Die Universität Göttingen unter dem Nationalsozialismus (2nd edn., 1998), 102–55. Cf. Fritz Hasselhorn, ‘Göttingen 1917/18–1933: Ende des Ersten Weltkriegs, Revolution und Konterrevolution, Weimarer Republik, Weltwirtschaftskrise’, in R. v. Thadden and G. J. Trittel (eds.), Göttingen: Geschichte einer Universitätsstadt vol. III: Von der preußischen Mittelstadt zur südniedersächsischen Großstadt 1866–1989 (1999), 63–126.
(128) They lived at Wittelsbacherring 1, a house rented from the city of Bonn.
(131) On Fritz Pringsheim (1882–1967), Professor of Roman Law in Göttingen and Freiburg, in England since 1939, see the contribution by Tony Honoré to the present volume, infra, pp. 205–32; F. Wieacker, ‘Fritz Pringsheim zum Gedächtnis’, (1968) 85 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Romanistische Abteilung 602–11.
(132) On Eberhard Friedrich Bruck (1877–1960), see H. Göppinger, Juristen jüdischer Abstammung im (‘Dritten Reich’: Entrechtung und Verfolgung (2nd edn., 1990), 271 ff.; Landau (n. 32), 164 ff.; W. Flume, ‘In memoriam: Eberhard Friedrich Bruck’, (1961) 78 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Romanistische Abteilung 550–3; Mecklenburg and Stiefel (n. 97), 41, 45.
(134) Ernst Levy (1881–1968), professor in Heidelberg, was to emigrate to the United States of America in 1936; on Levy, see Göppinger (n. 132), 298; Landau (n. 32), 164 ff.; W. Kunkel, ‘Ernst Levy zum Gedächtnis’, (1969) 86 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Romanistische Abteilung xii-xxxii; D. Simon, ‘Ernst Levy’, in B. Diestelkamp and M. Stolleis (eds.), Juristen an der Universität Frankfurt am Main (1989), 94 ff.; Mecklenburg and Stiefel (n. 97), 51–52.
(136) A statistical evaluation of articles published in the Weimar Republic, a sort of retrospective citation index, puts Schulz second to Ernst Rabel; L. Breunung, ‘Romanistik in der Weimarer Republik—Das “Selbstbild” einer Disziplin’, (1999) 116 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Romanistische Abteilung 279–312, at 289 ff.
(137) As Roman law scholars of a standing (and age) similar to that of Schulz one would, in the early 1930s, have thought primarily of Ernst Levy and Paul Koschaker. Josef Partsch had died in 1925 and Ernst Rabel, five years older than Schulz, had long begun to occupy himself primarily with comparative law: on Rabel, see supra, n. 97; on Koschaker, see supra, n. 98.
(138) He had a regular salary of 20,000 RM. When he moved to Berlin, he had been guaranteed to be paid tuition fees, calculated on the basis of a probable course enrolment, of 19,000 RM. This guarantee made the tuition fees indistinguishable from a regular salary. Cf. ‘The recent History of Professor Fritz Schulz’, Appendix to a letter by Hartshorne to Conant, President Harvard University, of 3 January 1939; Harvard University Archive: Record James Bryant Conant, UAI 5.168, box 144, folder ‘University Lecturer: Schulz’.
(139) Flume, personal recollection.
(140) Arnimallee 12.
(141) A. Fijal, Die Geschichte der Juristischen Gesellschaft zu Berlin in den Jahren 1895 bis 1933 (1991), 163, 200. Schulz's lecture was entitled ‘Die soziale und kulturelle Bedeutung der römischen Anwaltschaft und ihre Beziehung zur Rechtswissenschaft’. He spoke about the different vocations of lawyer and rhetoricians, refuting propositions made by J. Stroux, Summum ius, summa iniuria (1926); cf. Flume (n. 7), 21.
(142) ‘Kannte das klassische römische Recht Gewohnheitsrecht?’ The issue had been dealt with before by two of Schulz's teachers, Pernice and Brie. See E. Seidl, ‘Bericht iiber den dritten deutschen Rechtshistorikertag in Jena (24.-26. Oktober 1932)’, (1933) 53 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Romanistische Abteilung 640–4, at 641 ff.; A. A. Schiller (1937/38) 24 Virginia Law Review 268–82, at 273 ff.; W. Flume, Gewohnheitsrecht und römisches Recht, Rheinisch-Westfälische Akademie der Wissenschaften, Vorträge G 12 (1975), 9, 17, also published in H. H. Jakobs, B. Knobbe-Keuk, E. Picker, and J. Wilhelm (eds.), Werner Flume, Gesammelte Scbriften, vol. I (1988), 30–57, at 38.
(143) James Goldschmidt (1874–1940), Professor of Criminal Law and Criminal as well as Civil Procedure at the University of Berlin, dismissed 1934, emigrated to South America. On Goldschmidt, see Göppinger (n. 132), 283; Gräfin von Losch (n. 95), 179 ff.; W. Sellert, ‘James Paul Goldschmidt (1874–1940): Ein bedeutender Straf- und Prozessrechtler’, in Heinrichs et al. (n. 27), 595 ff.
(145) Schulz's brother Max, having a so-called Aryan wife, was barred from any promotion, but did not, at first, have to leave office. It was only in 1944 that he went into hiding, surviving as a tramp among workers of the western fortifications; Meek (n. 5).
(147) Friedrich (later Frederick or Francis) Alexander Mann (1907–1991) emigrated to London in 1933, after having completed a German doctorate; in London he became a solicitor. On F. A. Mann, see the contributions of H. H. Jakobs, G. Kegel et al., in In memoriam Frederick Alexander Mann: Alma Mater, Beiträge zur Geschichte der Universität Bonn, vol. 77 (1992); and see the contribution by Lawrence Collins to the present volume, infra, pp. 381–440.
(148) F. A. Mann left an autobiography. This personal memoir is unpublished (see the contribution by Lawrence Collins to the present volume, p. 439); copies of passages concerning Schulz (without pagination) and permission to quote them have kindly been given to the author by Mann's son David.
(149) According to § 4 Gesetz zur Wiederherstellung des Berufsbeamtentums (n. 174), every public servant was threatened by dismissal who, judged by his political activities, could not safely be assumed to be a supporter of the ‘new state’. Spiteful words against the National Socialist movement were considered sufficient to trigger this provision.
(150) Werner Flume (born 1908), Professor of Roman Law and Private Law at Göttingen and Bonn. On Flume, see pp. 194–5.
(151) ‘… an impassioned cri de coeur against the rule of terror which had just been established …. The values underlying Roman law, which he not only expounds but also praises, are also his own values, and his personal commitment to these values in the year 1934 is a noble token of his own Roman virtus‘; Flume (n. 7), 21. Appropriately, a passage of Fritz Schulz's Prinzipien, dealing with the idea of civil liberty, was included in a collection of writings of persecuted Berlin scholars: R. Schottlaender, Verfolgte Berliner Wissenschaft: Ein Gedenkwerk (1988), 190–91.
(152) Cf., with references, Zimmermann, supra, pp. 49–50; P. Landau, ‘Römisches Recht und deutsches Gemeinrecht: Zur rechtspolitischen Zielsetzung im nationalsozialistischen Parteiprogramm’, in M. Stolleis and D. Simon (eds.), Rechtsgeschichte im Nationalsozialismus (1989), 11 ff.; R. Frassek, ‘Weltanschaulich begründete Reformbestrebungen für das juristische Studium in den 30er und 40er Jahren’, (1994) 111 Zeitschrift der Savigny-Stiftung für Rechtsgescbicbte, Germanistiscbe Abteilung 564–91. On the legal curriculum set out by K. A. Eckhard, Das Studium der Rectswissenschaft (1935), see A. Pientka, Juristenausbildung zur Zeit des Nationalsozialismus, dargestellt am Beispiel der Universität Tübingen (1990).
(153) ‘Un “manifesto” a difesa di una grande tradizione’: G. G. Archi, in A. Schiavone and A. G. Cassandro (eds.), La Giurisprudenza Romana nella Storiografia contemporanea: Testi di un Seminario raccolti da A. Scbiavone e Anna Girogio Cassandro (1982), 98–107, at 100.
(154) Heinrich Lange (1900–1977), Professor of Roman and Private Law and of Civil Procedure in Breslau, Munich, and Würzburg; on Lange, see K. Kuchinke, ‘Heinrich Lange’, 1978 Neue Juristische Wochenschrift 309.
(155) H. Lange, ‘Deutsche Romanistik? Grundsätzliche Bemerkungen zu Fritz Schulz “Prinzipien des römischen Rechts”’, (1934) 39 Deutsche Juristen-Zeitung coll. 1493–1500. For scholarly reviews cf., e.g., M. Gelzer, ‘Prinzipien des Römischen Rechts’, (1935) GNOMON: Klassische Zeitschrift für die gesamte klassische Altertumswissenschaft 1–6, M. Lauria, (1935) 1 Studia et Documenta Historiae et Iuris 219–26.
(156) On the dedication see supra, p. 156. In his Conclusion (p. 253 of the English edition), Schulz quotes C. Ferrini, Lotte antiche e recenti contro il diritto Romano (1901), 435, in predicting ‘Se i tedeschi trascurassero per boria o falso orgoglio nazionale la grandissima eredità di Roma,… allora—non dubitate!—passerà poco tempo, e li vedrete rivalicare le Alpi e ritornare qui un altra volta alia nostra scuola’. (‘If the Germans should out of arrogance or false national pride neglect the most magnificent heritage of Roman Law … then—do not doubt it!—little time will pass before you see them crossing the Alps again and returning here to our school once more’.)
(158) On Gustav Radbruch (1878–1949), Professor of Criminal Law and Jurisprudence at Königsberg (now Kaliningrad), Kiel, and Heidelberg, member of the Reichstag of the Weimar Republic, Minister of Justice in 1921/22 and again in 1923, see J. Schröder, ‘Gustav Radbruch’, in Kleinheyer and Schroder (n. 24), 340–6; G. Spendel, Jurist in einer Zeitenwende: Gustav Radbruch zum 100. Geburtstag (1979); Handwörterbuch der Rechtsgeschichte, vol. IV (1990), coll. 131–133 (St. Saar).
(159) Letter by Lawson to Sisam of 25 June 1935, OUP Archives PB/ED/010384.
(160) It has been contended that Fritz Schulz's lectures tried to ‘defend’ Roman law by making it seem closer to the ‘Germanic’ values propagated also by the Nazi movement; M. Stolleis, ‘Fortschritte der Rechtsgeschichte’, in Stolleis and Simon (n. 152), 178–97, at 185 ff.; id., Geschichte des öffentlichen Rechts in Deutschland, vol. III, 1914–1945 (1999), 340. In view of the reaction of Schulz's contemporaries—friend and foe alike—and considering the risk Schulz obviously ran for his professorial position and also for his personal safety, this seems off the mark.
(162) Letter by Jaeger to Conant of 2 April 1939, Harvard University Archive: Record James Bryant Conant, UAI 5.168, box 144, folder ‘University Lecturer: Schulz’.
(163) Reprinted 1954, 2003.
(164) Infra, pp. 130–2.
(165) On Vincenzo Arangio-Ruiz (1884–1964), Professor of Roman Law at Messina, Modena, Naples, Cairo, and Rome, active member of the Italian anti-fascist movement, Italian Minister of Education in 1945, see G. Broggini, ‘Vincenzo Arangio-Ruiz’, (1964) 81 Zeitschrift der Savigny-Stiftung für Rechtsgescbicbte, Romanistische Abteilung 503–08; G. G. Archi, ‘Vincenzo Arangio-Ruiz’, (1964) 30 Studia et Documenta Historiae et Iuris 527–33.
(166) The translation was written during the last years of World War Two: I Principi del Diritto Romano. A reprint was arranged in 1995 for the ‘Bibliotheca’ series (no. 29); cf. A. Guarino, (1996) 42 Labeo 302 ff.; R. Knütel, (1997) 114 Zeitscbrift der Savigny-Stiftung für Recbtsgescbicbte, Romanistische Abteilung 627–8; L. Fanizza, (1996) 62 Studia et Documenta Historiae et Iuris 543–9.
(167) Principios del Derecho Romano, Traducción castellana (M. A. Velasco) (1990; 2nd edn., 2000).
(169) ‘Nein, aber muss es denn gerade Berlin sein?’ Letter by Schulz to the Dean of Bonn Law Faculty of 9 April 1951, quoted by Breunung and Walther (n. 4), no. 20. The Prussian Ministry for Science and Arts, which administratively dealt with Schulz as a Prussian professor, had come under the control of the co-existing Imperial administration (Reichsministerium), which was now Nazi dominated. Both Ministries were merged in 1934 into a ‘Reichsministerium für Wissenschaft, Erziehung und Volksbildung’, which then also dealt with the formerly Prussian institutions and their personnel. Cf. S. Talmon, ‘Ende des Foderalismus’, in (2002) 24 Zeitschrift für Neuere Rechtsgeschichte 112–55, at 133.
(170) Flume, personal recollection; cf. Gräfin von Lösch (n. 95), 232 ff.; Halfmann (n. 127), 136; W. Kunkel, ‘Der Professor im Dritten Reich’, in H. Kuhn et al. (eds.), Die deutsche Universität im Dritten Reich (1966), 104–33, at 119.
(171) On Ernst Heymann (1870–1946), Professor of German Legal History at Marburg and Berlin, see H. Mitteis, ‘Ernst Heymann †’, (1947) 65 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Germanistische Abteilung ix-xxvi; Gräfin von Lösch (n. 95), 158 ff.; H. Thieme, (1956) 21 Rabels Zeitschrift für ausländisches und internationales Privatrecht 201 ff.
(173) On the Faculty of Law of the University of Bonn in Nazi times, see M. Schmoeckel, ‘Insel der Seligen’, in id. (ed.), Die Juristen der Universität Bonn im Dritten Reich (2004), 1 ff.
(174) According to 1. Durchführungsverordnung to § 3 Abs. 1 Gesetz zur Wiederherstellung des Berufsbeamtentums of 7 April 1933, RGBl 1933 I, 175. On this law, see M. Tarrab-Maslaton, Rechtliche Strukturen der Diskriminierung der Juden im Dritten Reich (1993), 25 ff.
(175) Order by the Preussischer Minister für Wissenschaft, Kunst und Volksbildung of 25 September 1934; Humboldt University Berlin, Archiv, Personalakte Schulz Uk Sch 303, vol. I, fol. 63.
(176) Hartshorne (n. 138). For this and the following, cf. also Hartshorne's ‘case-study’ of Schulz's retirement, German Universities and National Socialism (1937), 101, n. 1: ‘Throughout the Winter and Summer Semester 1933 unhindered (i.e. until June 30th); informed shortly before beginning lectures in the autumn that he had been put on furlough with full salary and “guaranteed” tuition fees; at the end of the Winter Semester 1933–4 inquires of the Ministry whether he is to teach the following Semester or not; Ministry tells him a few days before opening of Summer Semester that he has been transferred to x University; inquires whether, if moves his family there, he will be allowed to teach; informed in the negative and put on furlough from x University; in desperation asks what he is to do in the Winter Semester 1934–5; then given choice by Ministry either of continuing on furlough with salary and tuition fees or becoming emeritus with only his salary; takes latter course to avoid charges of being overpaid and possibly losing all…; must first be transferred back to his own University so that he will not be emeritus from X, where he never taught; takes series of salary cuts; possibly loses entire salary without warning.’
(177) Order by the Preussischer Minister für Wissenschaft, Kunst und Volksbildung of 10 April 1934; Humboldt University Berlin, Archiv, Personalakte Schulz Uk Sch 303, vol. I, fol. 70.
(178) P. Kluke, Die Stiftungsuniversität Frankfurt am Main (1972), 53 ff., 85 ff., 98 ff.; N. Hammerstein, Die Johann Wolfgang Goethe-Universität Frankfurt am Main: Von der Stiftungsuniversität zur staatlichen Hochschule, vol. I, 1914 bis 1950 (1989), 17 ff.
(179) B. Diestelkamp, ‘Zur Geschichte der Rechtswissenschaftlichen Fakultät der Johann Wolfgang Goethe-Universität zu Frankfurt am Main’, in Diestelkamp and Stolleis (n. 134), 9–30, at 20; id., ‘Die Rechtshistoriker der Rechtswissenschaftlichen Fakultät der Johann Wolfgang Goethe-Universität Frankfurt am Main 1933–1945’, in Stolleis and Simon (n. 152), 79–106, at 84; on the planned dissolution of the University of Frankfurt am Main, see Hammerstein (n. 178), 283–305.
(181) Heinrich Hoeniger (1879–1961), Professor of Roman and Private Law and Civil Procedure at Freiburg, Kiel, and Frankfurt am Main, emigrated to the USA; he lectured at Fordham University and Hunter College N.Y. On Hoeniger, see Göppinger (n. 132), 340; H. Strauss and W. Röder (general eds.), International Biographical Dictionary of Central European Emigrés, vol. II/1, The Arts, Sciences and Literature (A-K) (1983), 525; Mecklenburg and Stiefel (n. 97), 41, 47; Landau (n. 32), 204–05.
(182) Gerhart Husserl (1893–1973), son of the philosopher Edmund Husserl, professor in Kiel, emigrated to the United States of America where he became professor at the National University in Washington D.C.; returned to Germany as a visiting professor in Cologne and Honorary Professor for comparative and Anglo-American law in Freiburg im Breisgau; on Husserl, see Goppinger (n. 132), 341; A. Hollerbach, ‘Gerhart Husserl †’, 1974 Juristenzeitung 36–7; Mecklenburg and Stiefel (n. 97), 48–9; Landau (n. 32), 174.
(183) Eugen Rosenstock-Huessy (1888–1973), one of the founders of the Akademie der Arbeit, Professor of Legal History at Breslau University, emigrated to the United States of America, lecturer at Harvard University and Dartmouth College (Hanover); after the war he returned to Germany first as a visiting professor in Göttingen, then full professor in Münster, Cologne, and Heidelberg. On Rosenstock-Huessy, see Göppinger (n. 132), 312; L. Bossle (ed.), Eugen Rosenstock-Huessy—Denker und Gestalter, Neue Würzburger Studien zur Soziologie 14 (1984); Mecklenburg and Stiefel (n. 97), 54, 210; H. Thieme, ‘Eugen Rosenstock-Huessy (1888–1973)’, (1989) 106 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Germanistische Abteilung 1–11; Landau (n. 32), 174.
(185) He conferrecl with Schulz on 3 and 4 May 1934; letter by Schulz to the Dean of Frankfurt University Law Faculty of 5 May 1934; Universitätsarchiv Frankfurt Abt. 14, Nr. 456.
(190) Cf. the threat ‘Gegen die hohen Honorargarantien’, (1933) 11 Nationalsozialistische Erziehung 379 ff.
(191) Gräfin von Lösch (n. 95), 193. Tragically, it was a result of Schulz's renewed affiliation with Berlin University that the resumption of payments from Germany was hampered after the Second World War, see infra, pp. 188, 192.
(192) Letter by the Preussische Minister für Wissenschaft, Kunst und Volksbildung of 10 November 1934; Humboldt University Berlin, Archiv, Personalakte Schulz Uk Sch 303, vol. I, fol. 76.
(194) On Carl Schmitt (1888–1985), Professor of Public Law at Greifswald, Bonn, Cologne, and Berlin, see M. Stolleis, ‘Carl Schmitt’, in id. (ed.), Juristen—Ein biographisches Lexikon: Von der Antike bis zum 20. Jahrhundert (1995), 547–8; Gräfin von Lösch (n. 95), 187–90, 197–203, 326–8, 402–05, 429–70; P. Noack, Carl Schmitt: Eine Biographie (1993).
(196) Order by the Rektor of Berlin University of 22 February 1936, Humboldt University Berlin, Archiv; Personalakte Schulz Uk Sch 303, vol. I, fol. 98.
(197) Karl-August Eckhardt (1901–1979), Professor of Legal History, Private Law, Commercial Law, and Family Law at Göttingen, Kiel, Berlin, and Bonn; a most productive legal historian and a fervent Nazi: 1938 SS Sturmbannführer, later First Lieutenant. On Karl-August Eckhardt, see H. Nehlsen, ‘Karl-August Eckhardt’, (1987) 104 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Germanistische Abteilung 497–536; Gräfin von Lösch (n. 95), 199 ff., 205 ff., 284–9, 325–7, 404–26, 439–56.
(198) Alexander Gurwitsch is the author of Das Revolutionsproblem in der deutschen staatswis-senschaftlichen Literatur, insbesondere des 19. Jahrhunderts, Historische Studien, vol. 269 (1935), presumably a Berlin dissertation. Schulz considered Gurwitsch to be a pupil of his; see postcard by Fritz to Martha Schulz of 18 March 1935, copy Schulz Archive. This probably meant that Gurwitsch had read Roman law with Schulz in Berlin.
(199) Letter by Gurwitsch to OUP of 25 May 1935, OUP Archives PB/ED/010384.
(200) Frederick Henry Lawson (1897–1983), Professor of Comparative Law at Oxford, had a keen interest also in ancient (especially Byzantine) law. On Lawson, see Dictionary of National Biography 1981–1985 (1990), 235–6 (Barry Nicholas); B. Nicholas, ‘Professor F. H. Lawson 1897–1983’, (1984) 4 Oxford Journal of Legal Studies 153–6.
(201) Letter by Sisam to Lawson of 27 May 1935, OUP Archives PB/ED/010384.
(203) James Crawford Ledlie, London barrister, had translated R. Sohm's Institutionen des Römischen Rechts (5th edn., 1894) into English: The Institutes: A Text-Book of the History and System of Roman Private Law (2nd revised edn., 1901).
(204) Archibald Hunter Campbell (1902–1989), had received some of his classics (and Roman law) training in Rome, read for Literae Humaniores and for the Law School at Oxford until 1935; he was then Professor in Birmingham and from 1945 on Regius Professor of Public Law and the Law of Nature and Nations at Edinburgh University. Campbell, who was an anti-appeasement liberal (he wrote a study on Italian Fascism), also edited and/or translated Continental works on jurisprudence (e.g. by his Italian friend Del Vecchio); cf. W. Douglas, The Ferguson Scholars: 1861–1955 (1956), 282; Edinburgh University Archives, Special Minute of Senatus, 17 January 1973; The Times, 21 June 1989: S. Spender, World within World (1953), 32, 42.
(207) Herbert F. Jolowicz (1890–1955), then Professor of Law at University College London, later Regius Professor of Civil Law at Oxford, had studied Roman law in Germany with Mitteis and Lenel. On H. F. Jolowicz, see F. H. Lawson, P. W. Duff, G. W. Keeton, and H. G. Harbury, ‘Appreciations of the late Professor H. F. Jolowicz’, (1955) 3 The Journal of the Society of Public Teachers of Law: New Series 3–8; P. W. Duff, ‘H. F. Jolowicz’, (1955) 6 Jura 537.
(208) Letter by Sisam to Jolowicz of 24 September 1935, OUP Archives PB/ED/010384.
(210) Letter by Jolowicz to Sisam of 26 September 1935, OUP Archives PB/ED/010384.
(211) P. W. Duff, (1937) The Classical Review 31.12.; The Times, Literary Supplement, 6 February 1937; (1936/1937) 23 Virginia Law Review 858 ff. (W. L. Moll).
(213) Letter by Sisam to Bailey of 8 June 1939, OUP Archives PB/ED/010382.
(215) Bayernallee 48.
(219) ‘The postclassical edition of Papinians “Libri Quaestionum”’, in Scritti Ferrini, vol. IV (1949), 254–67; (1952) 1 Revue Internationale des Droits de l'Antiquité 557–69; ‘Papinianstudien II’, (1953) 2 Revue Internationale des Droits de l'Antiquite 381–410.
(221) On Hans Kreller (1887–1958), Professor of Roman Law at Tübingen, Münster, and Vienna, see M. Kaser, ‘Hans Kreller’, (1958) 75 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Romanistische Abteilung xv-xxiii.
(222) ‘die Aufgabe, … die deutsche Eigenart zu betonen’, letter of 30 December 1934, copy, Schulz Archive.
(223) Schulz had also been elected to an honorary membership of the Academy of Catania; letter by Schulz to Hartshorne of 13 January 1939; Harvard University Archive: Record James Bryant Conant, UAI 5.168, box 144, folder ‘University Lecturer: Schulz’.
(224) 17–27 April 1933.
(225) F. de Zulueta, ‘Review of the Atti del Congresso internazionale di diritto Romano’, (1938) 54 LQR 123–5, at 123.
(226) ‘Die Anordnung nach Massen als Kompositionsprinzip antiker Kompilationen’, (1935) 2 Istituto di Studi Romani (ed.), Atti del Congresso internazionale di diritto Romano 11–25.
(227) ‘Umarbeitungen justinianischer Gesetze bei ihrer Aufnahme in den Codex Iustinianus von 534’, in Acta Congressus juridici internationalism vol. I (1935), 81–94.
(229) On Francis de Zulueta (1878–1958), Regius Professor of Civil Law at Oxford until 1948, see The Times, 18 January 1958.
(231) It may well be that the idea to invite Schulz to address the ‘Riccobono Seminar of Roman Law’ in Washington also originated at the 1933 Rome conference, see infra, p. 139.
(233) Letter from Schulz to Sisam of 13 February 1939, OUP Archives PB/ED/010382.
(235) On Gian Gualberto Archi (1908–1997), Professor of Roman Law at Pa via and Florence, see M. Amelotti, ‘Gian Alberto Archi’, (1997) 48 Rivista internazionale di diritto romano e antico 207–08; M. P. Pavese, ‘Gian Gualberto Archi e la Storiografia giuridica del Novecento’, (1999) 65 Studia et Documenta Historiae et luris 515–27.
(237) On Hans Lewald (1883–1963), Professor of Civil Law and International Private Law at Lausanne, Cologne, Frankfurt, Berlin, and Basel, see A. Flessner, ‘Hans Lewald (1883–1963)’, in B. Diestelkamp and M. Stolleis (eds.), Juristen an der Universität Frankfurt am Main (1989), 128–35; A. N. Makarov, ‘Hans Lewald’, (1964) 28 Rabels Zeitschrift für ausländisches und internationales Privatrecht 208–10.
(238) On Otto Gradenwitz (1860–1935), Professor of Roman Law and Legal History at Konigsberg, Strasbourg, and Heidelberg, see P. Koschaker, ‘Otto Gradenwitz’, (1936) 56 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Romanistische Abteilung ix-xii.
(239) Archi, (1958) 24 Studia et Documenta Historiae et luris 452.
(240) Edward Yarnall Hartshorne Jun. (1912–1946), Harvard sociologist and US administrator responsible for the re-opening of German universities after World War Two; he was assassinated in 1946. On Hartshorne, see J. F. Tent, ‘Edward Yarnall Hartshorne, Jr.: A Historical Sketch. 1912–1946’, in Tent (ed.), Academic Proconsul: Harvard Sociologist Edward Y. Hartshorne and the Reopening of German Universities 1945–1946: His Personal Account (1998), v-ix; The Hill School (ed.), In Memoriam Edward Yarnall Hartshorne 1912–1946: The Hill, 1929 (no year), with contributions by S. B. Fay and J. A. Lester.
(241) Letter by Hartshorne to Conant of 3 January 1939, Harvard University Archive: Record James Bryant Conant, UAI 5.168, box 144, folder ‘University Lecturer: Schulz’. Immediately after the war, Hartshorne re-visited Arnimallee 12: ‘All the windows were gone, but otherwise it seemed OK. The piano was still there.’ Letter to his wife of 7 September 1945, Tent (ed.), American Proconsul (n. 240), 184 ff.
(242) Georg Plaut, who had changed his name to Pauly, director at the Deutsche Oper Berlin, emigrated to South America; cf. D. Meyer zu Heringdorf, Das Charlottenburger Opernbaus von 1912 bis 1961, vol. II (1988), 574.
(243) E. Y. Hartshorne, German Universities and National Socialism (1937, reprint 1981), 153.
(245) Werner Richter (1887–1960), scholar of German literature and philology, professor at Istanbul and Greifswald, civil servant in the field of cultural and university affairs, head of the University Department of the Prussian Government before 1933, emigrated to the USA, lectured at Elmhurst College, Illinois; after the war, he returned to Germany. On Richter, see Strauss and Röder (n. 181), vol. II/2, 968.
(246) Letter by Hartshorne to Conant of 3 January 1939, Harvard University Archive: Record James Bryant Conant, UAI 5.168, box 144, folder ‘University Lecturer: Schulz’.
(248) Nicholas, infra, p. 745.
(249) On the Bekennende Kirche, see A. Kersting, Kirchenordnung und Widerstand: Der Kampfum den Aufbau der Bekennenden Kirche der altpreußischen Union aufgrund des Dahlemer Notrechts von 1934 bis 1937 (1994).
(250) On Martin Niemöller (1892–1984), see J. Bentley, Martin Niemoeller (1984); K. Robins, ‘Martin Niemöller, the German Church Struggle, and English Opinion’, in (1970) 21 journal of Ecclesiastical History 149–70; M. Schreiber, Martin Niemöller (1997). Especially on Niemöller's Dahlem parish, see J. Schmidt, Martin Niemöller im Kirchenkampf (1971), 27–32; M. Gailus, Protestantismus und Nationalsozialismus: Studien zur nationalsozialistischen Durchdringung des protestantischen Sozialmilieus in Berlin (2001), 306–71.
(252) I spoke to Dorothea Schulz in November 2002 and January 2003.
(256) George Kennedy Allen Bell (1883–1958), Bishop of Chichester, leading ecumenist, who kept in touch with non-Nazi Germans, whose position he tried to support vis-à-vis the British Government. On Bell, see Biographisch-Bibliographisches Kirchenlexikon, vol. I (2nd edn., 1990), col. 469 ff.; J. Cannon (ed.), The Oxford Companion to British History (2nd edn., 2002), 93.
(259) On Julia de Lacy Mann, Principal of St Hilda's College 1928–1955, see V. Brittain, The Women at Oxford: A Fragment of History (1960), 178 et passim.
(260) The Oxford Refugee Committee was a private voluntary organization at Oxford, with the Mayor of Oxford and the Vice-Chancellor of Oxford University as patrons. It had an office in 27 New-Inn-Hall Street.
(261) On C. W. Carter (1899–1974), see The Queen's College Record 1966 (1967), 6–7, The Queen's College Record 1974 (1975), 5.
(262) Cf. R. F. Butler, A History of St Anne's Society 1921–1946 (1946).
(263) On R. L. Meek (1917–1978), Professor of Political Economy, author of, e.g., Studies in the Labor Theory of Value (1956), Social Science and the Ignoble Savage (1976), Smith, Marx and After (1977), see The Times, 24 August 1978, p. 14.
(265) ‘They change their climate, not their soul, who go in ships from pole to pole’, Horace, Epistolae I, 11, 27, transl. by Christopher Smart.
(267) Letter by Martin Wolff to the SPSL of 12 October 1938: SPSL 274/2 ‘Schulz, F.’, fol. 71.
(268) In 2929, Salvatore Riccobono (1864–1958) had given a series of lectures at the Catholic University of Washington, which had made him ‘magister ad vitam’ and founded in his honour the ‘Riccobono Seminar of Roman Law’. On the seminar, see S. Randazzo, ‘Tradizione romanistiche e diritto statunitense: il Riccobono Seminar of Roman Law a Washington’, (1997 ) 100 Bulletino dell'Istituto di diritto Romano 673 ff., also published as ‘Roman Legal Tradition and American Law—The Riccobono Seminar of Roman Law in Washington’, in (M. Hoeflich, ed.) (2003) 1 Roman Legal Tradition 123 ff.
(269) See ‘Bulletin of the Riccobono Seminar of Roman Law in America: Report of Seminars’, (1935) 43 Bulletino dell'Istituto di diritto Romano 328–69, at 353–6, with an abstract and a report of the discussion. The lecture has been published in full as an appendix to H. H. Jakobs, De similibus ad similia bei Azo und Bracton (1996), 99–110. Cf. Randazzo (n. 268), (1997; 2003), 673; (2003), 123 ff.
(270) Charles Howard Mcllwain (born 1871), Eaton Professor of the Science of Government, later published a commentary on the rejection of Roman law by the Nazi movement: ‘Our Heritage from Roman Law’, (1940/41) 19 Foreign Affairs 597–608. Explaining the Nazi policy with Roman law's universal and individualistic character he challenged the traditional Anglo-American perception of Roman law as a despotic system of law, assumed to be much to the liking of any absolutist regime.
(271) Frankfurter later wrote to Max Radin that he had had to give Schulz ‘the dismal analysis of the American situation of hopelessness for Romanists, however distinguished’; letter of 26 March 1936, Carlos Petit (ed.), Max Radin—Cartas Romanisticas (1923–1950) (2001) 106. On Felix Frankfurter (1882–1965), in the United States since the 1894 emigration of his Viennese parents, Harvard professor, liberal politician, Supreme Court Judge—he was as controversial as he was outstanding—see M. E. Parish, Felix Frankfurter and his Times, vol. I, The reform years (1982); H. S. Thomas, Felix Frankfurter, Scholar on the Bench (1960). On Max Radin (1880–1950), Professor of Roman Law at Berkeley, see Petit, supra, xviii.
(274) A. Arthur Schiller (1902–1977), Professor of Law at Columbia University, worked on Roman law, Greek and Coptic law, and on various other legal subjects. On Schiller, see E. Seidl, ‘A. Arthur Schiller †’, (1978) 95 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Romanistische Abteilung 565–8; P. Stein, ‘Obituary’, in R. S. Bagnall and W. V. Harris (eds.), Studies in Roman Law in Memory of A. Arthur Schiller (1986), xv ff.
(275) On Max Rheinstein (1899–1977), comparative lawyer, Privatdozent in Berlin from 1932 to 1933, emigrated to the USA in 1933, Max Pam Professor of Comparative Law at the University of Chicago from 1942 onwards, see Stiefel and Mecklenburg (n. 97), 65 ff.; K. Zweigert, ‘Max Rheinstein’, (1978) 42 Rabels Zeitschrift für ausländisches und internationales Privatrecht 1–3.
(278) On James Mackintosh (1885–1944), author of The Roman Law of Sale (1892; 2nd edn., 1907) and Roman Law in Modern Practice (1934), see (1937/38) 9 University of Edinburgh Journal 250–51 (W. W).
(279) Adolf Berger (1882–1962), Professor of Roman and Greek Law and Papyrology, Polish diplomat, since 1942 in charge of Byzantine Studies at the ‘Institut de Philologie et d'Histoire Orientales et Slaves’ at the ‘École Libre des Hautes Études’ in New York. On Berger, see Strauss and Röder (n. 181), vol. 11/1,85.
(280) Letter to R. Candlish Henderson, Professor of Scots Law and chairman of the committee appointed to consider the applications for the chair, of 30 June 1938, Edinburgh Faculty of Advocates Archive, envelope ‘Chair of Civil Law Edinburgh University 1938’.
(282) Letter to R. C. Henderson of 2 July 1938, Edinburgh Faculty of Advocates Archive.
(283) On Daube (1909–1999), see the contribution by Alan Rodger to the present volume, infra, pp. 233–49; P. Stein, ‘David Daube 1909–1999’, (2001) 111 Proceedings of the British Academy 429–444.
(284) Letter to R. C. Henderson of 5 July 1938, Edinburgh Faculty of Advocates Archive.
(286) M. G. Fisher, ‘no Romanist’, according to A. Rodger, who gives a critical evaluation of the Faculty's decision: ‘David Daube 1909–1999’, (2001) 118 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Romanistische Abteilung xiv-lii, xxii. On Fisher, see N. Fairbairn, A life is too short (1987), 93.
(287) Handwritten notice, no author or date given, Record James Bryant Conant, UAI 5.168, box 144, folder ‘University Lecturer: Schulz’.
(289) ‘Now just the parents have to be provided for, who have become very modest people, for whom a subsistence level job will do’, quoted in a letter by Hartshorne to Conant of 2 April 1939; Harvard University Archive: Record James Bryant Conant, UAI 5.168, box 144, folder ‘University Lecturer: Schulz’.
(297) Postcard to Hartshorne of 10 January 1939, ibid. Friedrich Meinecke (1862–1954), Professor of History at Strasbourg, Freiburg, and Berlin, had met Schulz as a Freiburg Privatdozent. On Meinecke, see H. Dollinger, ‘Friedrich Meinecke’, Neue Deutsche Biographie, vol. 16 (1990), 657–60; E. Schulin, ‘Friedrich Meineckes Stellung in der deutschen Geschichtswissenschaft’, (1980) 230 Historiscbe Zeitschrift 3–29; International Encyclopedia of the Social Sciences, vol. 10 (1968), 121–3 (Ernst Masur).
(298) Letter to Hartshorne of 30 December 1938; Harvard University Archive: Record James Bryant Conant, UAI 5.168, box 144, folder ‘University Lecturer: Schulz’.
(299) Letter of 4 January 1939, ibid; Jakob Rosenberg (1893–1980), curator at the Staatliches Kupferstichkabinett Berlin until 1935 and later lecturer and curator at Harvard University, was married to Elisabeth Husserl (born 1892), Gerhart Husserl's sister. The Rosenbergs had taken Johannes Schulz into their apartment in Cambridge, Mass., when he was a Harvard student. On Jakob Rosenberg, see Strauss and Roder (n. 181), vol. II/2, 983 ff.
(300) Letter to Hartshorne of 23 February 1939; Harvard University Archive: Record James Bryant Conant, UAI 5.168, box 144, folder ‘University Lecturer: Schulz’.
(303) 18 November 1938; cf. Feichtinger (n. 315), 258. Harvard College later offered a position of the type considered for Schulz to Eberhard Bruck; see A. Warlo, ‘Eberhard Bruck’, in Schmoeckel (n. 173), 85–109, at 101 ff.
(304) G. Husserl, letter to William Draper Lewis of 26 December 1938, copy attached to a letter to Hartshorne of 30 December 1938; Harvard University Archive: Record James Bryant Conant, UAI 5.168, box 144, folder ‘University Lecturer: Schulz’.
(305) On Vivian de Sola Pinto (1895–1969), writer and Professor of English, see The Times, 2 August 1969, p. 10.
(306) Letter of 17 December 1938, SPSL 274/2 ‘Schulz, F.’, fol. 75. On 5 December 1938 Schulz sent a similar letter to Max Radin: ‘I am very far from being in panic, but it seems to me quite clear now: the game is up.’ See Petit (n. 271), 141 f.
(309) On the efforts of the College from 1933 onwards, see J. Jones, Balliol College: A History (2nd edn., 1997), 278 ff.
(310) Alexander Dunlop Lindsay, later 1st Baron Lindsay of Birker (1879–1952), political philosopher, Master of Balliol 1924–1949, Vice-Chancellor of Oxford University 1935–1938. On Alexander Dunlop Lindsay, see Dictionary of National Biography (n. 27), 641–4 (Christopher Hill); D. L. Scott, A. D. Lindsay: A Biography (1971). On his anti-appeasement policy at Oxford, cf. B. Harrison (ed.), The History of the University of Oxford, vol. VIII, Twentieth Century (1994), 168.
(312) On Cyril Bailey (1871–1958), Oxford classical scholar, see (1960) Proceedings of the British Academy 295–308 (Michael Oakshot); Dictionary of National Biography (n. 27), 50–52 (J. T. Christie): ‘Bailey deserves to be remembered not only as a scholar and teacher, but as a great Oxford personality whose prime virtues were his humanity, his modesty and his power of friendship.’
(313) De Zulueta had contributed a piece on ‘The Science of Law’ to a volume edited by Bailey on The Legacy of Rome (1923), 173 ff.
(314) On Ronald Percy Bell (1907–1996), see B. G. Cox and J. H. Jones, ‘Ronald Percy Bell’, (2001) 47 Biographical Memoirs Fellows of the Royal Society London 19–38.
(315) On the AAC, see the contribution by Jack Beatson to the present volume, supra, pp. 85–7; J. Feichtinger, Wissenschaft zwischen den Kulturen: Österreichische Hochschullehrer in der Emigration 1933–1945 (2001), 55–64 and passim.
(316) SPSL 274/2 ‘Schulz, F.’, slipcard of 13 September 1933. In the ranking system of the AAC (on which see Beatson (n. 315); Feichtinger (n. 315), 97 ff.) Schulz was graded ‘B’, designating a rare ‘good’.
(317) Letter of the SPSL's General Secretary to H. F. Jolowicz of 18 November 1936, finding that ‘his age may be against him’, SPSL 274/2 ‘Schulz, F.’
(318) Letter of Plaut to Hartshorne of 5 January 1939; Harvard University Archive: Record James Bryant Conant, UAI 5.168, box 144, folder ‘University Lecturer: Schulz’.
(320) Letter of 17 November 1938, SPSL 274/2 ‘Schulz, F.’, fol. 68.
(321) Letter by Bell to David Cleghorn Thomson, General Secretary of the SPSL, of 13 December 1938, SPSL 274/2 ‘Schulz, F.’, fol. 80.
(322) Sir Theodore H. Tylor, Balliol tutor in law 1926–1967.
(326) E. Poste, Elements of Roman Law by Gaius (3rd edn., 1890).
(324) Letter by Thomson to Bell of 15 December 1938, SPSL 274/2 ‘Schulz, F.’, fol. 77 f.
(325) So Sisam later told de Zulueta, letter of 2 May 1939, OUP Archives PB/ED/010383.
(327) Letter by de Zulueta to Sisam of 20 December 1938, OUP Archives PB/ED/010382. De Zulueta himself had earlier started to work on such a new Gaius edition, which he was later to take up again and indeed produce, in 1946 and 1952, The Institutes of Gaius, Part I, Text with Critical Notes and Translation (1946); Part II, Commentary (1953).
(328) Letter by Sisam to Bell of 21 December 1938, OUP Archives PB/ED/010382.
(329) W. W. Buckland, A Manual of Roman Private Law (1925).
(330) R. W. League, Roman Private Law: Founded on the ‘Institutes’ of Gaius and Justinian (1906; 2nd edn., 1930).
(331) Letter by Sisam to Schulz of 31 January 1939, OUP Archives PB/ED/010382.
(333) On Sisam, see (1972) 58 Proceedings of the British Academy 409–28 (Neil Ker); P. J. Sisam, Roots and Branches: The Story of the Sisam Family (1993), 186–96; P. Sutcliffe, The Oxford University Press: An informal history (1978), 248 ff. and passim.
(336) On the Geheime Staatspolizei (Gestapo), see W. Benz, H. Graml, and H. Wei£ (eds.), Enzyklopädie des Nationalsozialismus (1997), 480 ff.; E. Johnson, The Nazi Terror: Gestapo, Jews and Ordinary Germans (2002); German edn. Der nationalsozialistische Terror (2001).
(338) Berlin-Nikolassee, Luckhoffstrasse 34; Letter by Schulz to the Universitätskurator of 1 April 1939, Archiv Humboldt Universität Berlin, Personalakte Schulz Uk Sch 303, vol. I, fol. 113. Erich Kaufmann (1880–1972), Professor of International and Constitutional Law and Jurisprudence in Kiel, Königsberg, Berlin, Bonn, and Munich; he emigrated to The Netherlands in 1940, where he was later forced to live under cover; after 1946 Professor at the University of Munich. On Kaufmann, see Gräfin von Lösch (n. 95), 88–91, 201–07 and passim; H. Liermann, Neue Deutsche Biographie, vol. 11 (1977), 349–50; M. Stolleis, Geschichte des Öffentlichen Rechts in Deutschland, vol. III, 1914–1945 (1999), 81, n. 37; M. Friedrich, ‘Erich Kaufmann (1880–1972): Jurist in der Zeit und jenseits der Zeiten’, in Heinrichs et al. (n. 27), 693–704; P. Lerche, ‘Erich Kaufmann—Gelehrter und Patriot’, in P. Landau and H. Nehlsen (eds.), Großie jüdische Gelehrte an der Münchener Juristischen Fakultät (2001), 20 ff.
(340) Letter by Schulz to the Reichsminister für Wissenschaft of 1 April 1939, Archiv Humboldt Universität Berlin, Personalakte Schulz Uk Sch 303, vol. I, fol. 114.
(341) Letter by Schulz to the Kurator of Berlin University of 12 April 1939 ibid. The Schulz family had suffered losses in the World economic crisis of 1930, triggered by the crash in the American Stock Exchange in October 1929 (Meek (n. 5)). Even with Schulz's outstandingly high salary (n. 138), the three years from 1931 to 1934 did not allow for the accumulation of considerable savings, especially since the villa in Dahlem had to be paid for; Meek (n. 5).
(342) The payments were made into an account, especially set up for this purpose, and stopped altogether in 1941.
(343) Sweelinck Laan 1. Cf. Letter by Schulz to Sisam 23 April 1939, OUP Archives PB/ED/010382.
(345) On the Academisch Steunfonds, see J. Feichtinger, With a Little Help from my Friends: Die oster-reichische Wissenschaftsemigration in den dreißiger Jahren dargestellt am Beispiele der Sozial-und Wirtschaftswissenschaften, der Jurisprudenz und der Kunstgeschichte, unpublished thesis, Graz, Austria (1999), 77–81; N. Bentwich, The Rescue and Achievement of Refugee Scholars: The Story of Displaced Scholars and Scientists 1933–1952 (1953), 16. Cf. also P. J. Knegtmans, Een baar centrum van de geest: de Universiteit van Amsterdam tussen 1935 en 1950 (1998), 38.
(346) Paul Scholten (1875–1946), Professor of Private Law and Jurisprudence and rector at Amsterdam, was interned in 1942 after protests against the persecution of Jews in the occupied Netherlands; on Scholten, see W. M. Peletier, ‘Scholten, Paulus (1875–1946)’, in Biografisch Woordenboek van Nederland, vol. I (1979).
(347) H. Frijda (Amsterdam) acted as secretary and E. Laqueur (Amsterdam) as bursar; other members of the board were J. Boeke, D. Coster, and N. van Wijk.
(348) On Julius Christiaan van Oven (1881–1963), Professor of Roman Law at Leyden, see R. Feenstra, ‘In memoriam J. C. van Oven’ (1964) 32 Tijdschrift voor rechtsgeschiedenis 507–17; id., ‘Oven, Julius Christiaan van (1881–1963)’, in Biografisch Woordenboek van Nederland, vol. I (1979).
(350) E.g. Martin David (1898–1986), who came to Leyden in 1934. On David, see J. A. Ankum, ‘David, Martin (1898–1986)’, in Biografisch Woordenboek van Nederland, vol. IV (1994).
(351) Hendrik Richard Hoetink (1900–1963), Professor of Roman Law in Amsterdam; on Hoetink, see J. A. Ankum, ‘Hoetink, Hendrik Richard (1900–1963)’, in Biografisch Woordenboek van Nederland, vol. III (1989); R. Feenstra, ‘H. R. Hoetink †’, (1963) 31 Tijdschrift voor rechtsgeschiedenis 521–4. Hoetink shared an outspoken anti-Nazi attitude with van Oven and Meijers.
(352) Personal recollection of Robert Feenstra.
(353) (1941) 17 Tijdschrift voor rechtsgeschiedenis 19–27; the issue, though later taken to be part of the 1941 volume, was printed late in 1939 or early in 1940, i.e. after Schulz had left for England and shortly before the publication of the Tijdschrift was interrupted as a result of the German occupation, because its editor, E. M. Meijers, was Jewish; cf. R. Feenstra, ‘Vijftig jaar Tijdschrift’, (1968) 34 Tijdschrift voor rechtsgeschiedenis 9–30, at 26. On E. M. Meijers (1880–1954), renowned Dutch jurist, see R. Feenstra, ‘Meijers, Eduard Maurits (1880–1954)’, in Biografisch Woordenboek van Nederland, vol. I (1979).
(354) H.’ D. Tjeen Willink en Zoon.
(355) ‘ … kann dit nu niet eens met een klein bedrag gehonoreerd werden … Prof. Schulz [is] uit Duitsland gekomen sans le sou; zelfs zijn horloge is hem afgenomen. Hij heeft nu onderdak en geen zorgen voor zijn onderhoud en voelt zich den koning te rijk, maar eenig contant geld voor en postzegel of een pijp tabak heeft hij wel noodig … als we hem met een f 25 konden honoreeren, dan zou dat voor hem reeds een klein kapitaal zijn’; Letter by van Oven of 27 May 1939, quoted by Feenstra (n. 353), 25.
(357) See R. Feenstra, ‘Introduction’, in Hugo Grotius, De iure belli ac pads, edited by B. J. A. de Kanter-van Hettinga Tromp (1939; reprint with additions 1993), 923–45, at 931 ff.; id., ‘Quelques remarques sur les sources utilisées par Grotius dans ses travaux de droit naturel’, in The World of Hugo Grotius (1583–1645), Proceedings of the International Colloquium organized by the Grotius Committee of the Royal Netherlands Academy of Arts and Sciences, Rotterdam 6–9 April 1984 (1984), 65–81, at 72.
(358) In the card index, set up by Schulz, which returned to The Netherlands in the 1950s, references are made to the editions in the Bodleian Library.
(359) Elisabeth Lucie van Bergen (1912–1993).
(360) Advocaat en Procureur.
(361) The information on W. Heskes and his wife has been kindly provided by Robert Feenstra. He recalls that after the German occupation Heskes became involved in resistance activities. With the shutdown of Leyden University by the Germans, Heskes lost his coaching business.
(362) Mrs Heskes later had an antiquarian bookshop in Rapenburg 13. On the houses Rapenburg 11/13, see Th. Lunsing Scheurleer, C. Willemijn Fock, and A. J. van Dissel, Het Rapenburg: Geschiedenis van een Leidse gracht, vol. I, Groenhazenburch (1986), 219 ff.
(364) Infra, pp. 171–9.
(366) Information provided by John Jones, Balliol.
(367) Cf. also the contribution by Jack Beatson to the present volume, supra, pp. 86–7; N. Bentwich, The Rescue and Achievement of Refugee Scholars: The Story of Displaced Scholars and Scientists 1933–1952 (1953), 13.
(368) Letter by Schulz to Sisam of 23 April 1939, OUP Archives PB/ED/010382.
(369) Letter from Sisam to Bailey of 25 April 1939, ibid. On 3 March 1939, Bailey had written to the OUP, ‘Both books [one by Maas, one by Schulz] are needed and it would be a real contribution by the Delegates to the Refugee Problem’: ibid.
(371) Letter by Sisam to de Zulueta of 2 May 1939, OUP Archives PB/ED/010382.
(374) Letter from Sisam to Bailey of 11 May 1939, OUP Archives PB/ED/010382.
(375) Letter to de Zulueta of 4 May 1939, OUP Archives PB/ED/010383.
(376) On 3 March 1939, Thomson wrote to the warden of All Souls, that to his knowledge Schulz was on the All Souls refugee list, SPSL 274/2 ‘Schulz, F.’, fol. 93.
(377) Colin Hardie, classicist and Dante scholar, secretary of the Magdalen committee dealing with refugees.
(378) Letter of 20 February 1939, SPSL 274/2 ‘Schulz, F.’, fol. 91.
(380) Letter of 16 May 1939, referring to the ‘agenda for tomorrow’, OUP Archives PB/ED/010382.
(382) Infra, p. 172.
(383) On the requirements for immigration to England, see the contribution by Beatson to the present volume, supra, pp. 79–84, 91, 93; L. London, ‘British Immigration Control Procedures and Jewish Refugees 1933–1939’, in W. E. Mosse et al. (eds.), Second Chance: Two Centuries of German-Speaking jews in the United Kingdom (1991), 485–517; B. Wasserstein, ‘Britische Regierungen und die deutsche Emigration 1933–1945’, in G. Hirschfeld (ed.), Exil in Großbritannien. Zur Emigration aus dem nationalsozialistischen Deutschland (= Veröffentlichungen des Deutschen Historischen Instituts London, vol. 14) (1983), 44 ff.
(384) Letter to Bell of 3 January 1939, SPSL 274/2 ‘Schulz, F.’, fol. 81.
(385) Letter by Bell to Thomson (SPSL) of 4 January 1939, SPSL 274/2 ‘Schulz, F.’, fol. 85.
(386) Letter by Thomson to Bell of 5 January 1939, SPSL 274/2 ‘Schulz, F.’, fol. 83.
(387) In a letter to Thomson (SPSL) of 29 January 1939 he wrote: ‘We intend to persevere with the case of Schulz, and I hope that we may refer the H.O. to the S.P.S.L. for detailed information about him’; SPSL 274/2 ‘Schulz, F.’, fol. 87.
(388) Letter by Bell to Miss Esther Simpson (SPSL) of 1 May 1939, SPSL 274/2 ‘Schulz, F.’, fol. 94.
(389) Letter by Simpson to Bell of 4 May 1939, SPSL 274/2 ‘Schulz, F.’, fol. 95.
(390) Letter by Simpson to Bell of 9 May 1939, SPSL 274/2 ‘Schulz, F.’, fol. 96.
(391) Letter by Bell to Bailey of 12 May 1939, OUP Archives PB/ED/010382.
(396) On Eduard Fraenkel (1888–1970), Professor of Classical Philology at Kiel, Göttingen, and Freiburg, who emigrated to England after 1933 and became Christ Church Professor of the Latin Language and Literature in Oxford, see (1970) 56 Proceedings of the British Academy 415–42 (Gordon Williams); B. Todd (ed.), Dictionary of British Classicists 1500–1960 (forthcoming, 2004); H. Lloyd-Jones, ‘Eduard Fraenkel †’, (1971) 43 Gnomon 634–40.
(398) Supra, pp. 141–4.
(399) He was Director of Laboratories, Beth Israel Hospital, Bayside, Long Island.
(540) Reprinted 1975.
(404) ‘By thy immediate warnings I was inspired to avoid a present and imminent [danger], and thereby have been saved’; in his private copy Schulz had exchanged pericula evocatus for vitanda excitatus, cf. German edn. (n. 540), IX n. **. On the text of the Laudatio II, 5–6, see D. Flach, Di sogenannte Laudatio Turiae: Einleitung, Text, Übersetzung und Kommentar (1991), 58 ff.
(406) fol. 103.
(407) ‘AM READY TO PROVIDE ENGLISH MAINTENANCE FOR MY BROTHER IN LAW SCHULZ AND WIFE IN TWO YEARS SHOULD OTHER INCOME NOT BE AVAILABLE’, SPSL 441/2 S. 26795, fol. 189.
(408) Letter by Thomson to Drinkwater (H.O.) of 14 July 1939, SPSL 441/2 S. 26795, fol. 192.
(409) Letter by Thomson to Schulz of 14 July 1939, SPSL 441/2 S. 26795, fol. 190: ‘We received a cable from Dr Plaut that he is prepared to guarantee your maintenance in two years if nothing else has materialized. On the basis of this I have written today to the Home Office to obtain a visa for you and your wife to come here and to work at Oxford.’
(410) Letter by Schulz to Thomson of 24 August 1939, SPSL 441/2 S. 26795, fol. 105.
(411) Letter by Schulz to Thomson of 31 August 1939, SPSL 441/2 S. 26795, fol. 109.
(414) Woodstock Close, Woodstock Road, presumably the apartment rented by F. A. Mann for his father, and 16 Museum Road, where Eduard Fraenkel lived.
(415) On Felix Jacoby (1876–1959), Professor of Classical Philology at Kiel, where Schulz presumably had made his acquaintance, see Strauss and Röder (n. 181), vol. II/l, 560; Dictionary of British Classicists(n. 396) (Volker Losemann). Jacoby had arrived in Oxford not long before Schulz. On Jacoby's emigration, see E. Mensching ‘Texte zur Berliner Philologie-Geschichte, VI. Felix Jacoby (1876–1959) und die Berliner Institutionen 1934/1939’, in (1989) 2 Nugae zur Philologie-Geschicbte 17–59. See also infra, n. 470.
(416) Née Margarete von der Leyen.
(417) Memorandum by Sisam of 10 October 1939, OUP Archives PB/ED/010382.
(419) François Lafitte, The Internment of Aliens (1940, reprint 1988), 62 ff.
(421) See the contribution of Beatson to the present volume, supra, pp. 96–101 (with references); L. Burleston, ‘The State, Internment and Public Criticism in the Second World War’, in D. Cesarani and T. Kushner (eds.), The Internment of Aliens in Twentieth Century Britain (1993), 102 ff.; Feichtinger (n. 315), 418 ff.; A. Ramati, Barbed Wire on the Isle of Man: The Wartime British Internment of Jews (1980).
(422) Letter of Martha Schulz to Searle (SPSL) of 5 July 1940, SPSL 274/2 ‘Schulz, F.’, fol. 133. A vivid account of this arrest and the subsequent internment has been given by Paul Jacobsthal in M. Kochan, Britain's Internees in the Second World War (1983), 90, 98–104, 125 ff., 146–7, 161–2. On Jacobsthal (1880–1957), formerly Professor of Classical Archaeology in Marburg, lecturer at Christ Church College in Oxford, see Strauss and Röder (n. 181), vol. II/l, 559–60; Dictionary of British Classicists (n. 396), sub nomine Jacobsthal (Kai Brodersen).
(424) On Max Grünhut (1893–1963), Professor of Criminology at Bonn University (where Schulz and Grünhut had been together from 1923 to 1931), later at Oxford, see the contribution by Roger Hood to the present volume, infra, pp. 713–14, 719–22, 726–8; H. Kaufmann et al. (eds.), Erinnerungsgabe für Max Grünhut: 1893–1963 (1965).
(432) On Rudolf Pfeiffer (1889–1979), Professor of Greek at Munich University, later at Corpus Christi College in Oxford, and since 1951 back in Munich, see E. Vogt, Neue Deutsche Biographie, vol. 20 (2001), 323–4; Dictionary of British Classicists (n. 396), sub nomine Pfeiffer (Volker Losemann); Strauss and Röder (n. 181), vol. II/2, 901.
(434) Letter by Nancy Searle (SPSL) to Marth. Schulz of 28 June 1940, SPSL 274/2 ‘Schulz, F.’, fol. 132.
(435) Letter by Bell to Simpson (SPSL) of 6 August 1940, SPSL 274/2 ‘Schulz, F.’, fol. 142.
(436) On the legal basis of the internment order, see the contribution by Beatson to the present volume, supra, pp. 96–101; A. Berriedale Keith, ‘The War and the Constitution’, (1940) 4 Modern LR 1–19, 82–103; id., The Constitution under Strain (1942), 51 ff. From an historical point of view, see N. Stammers, Civil Liberties in Britain during the Second World War (1983), 7–8.
(440) Cf. Lord William Beveridge, A Defence of Free Learning (1959), 55 ff.
(442) SPSL 129/1 105 (22 July 1940); Pringsheim was ranked ‘other scholar’.
(443) Letter by Schulz to Spicer of 15 May 1949, OUP Archives PB/ED/010383.
(445) This was not an altogether unusual pattern. According to Jilian Davidson, many German-Jewish women in England ‘simply stepped from their roles as housewife and mother to that of social housewife (household manager, administrator of rest homes, social worker)’, J. Davidson, ‘German-Jewish Women in England’, in Mosse et al. (n. 383), 533–51, esp. at 537 ff. quoting Kaplan (p. 188).
(446) ‘A Jew always muddles through’.
(447) Dorothea Schulz at first stayed with her foster parents.
(448) In November 1939 an estate agent asked the OUP whether Schulz had the means to take an unfurnished residence for two years at £65 per year (Letter of 29 November 1939, OUP Archives PB/ED/010382). The house was probably 5 Tackley Place. Sisam replied that ‘to the best of our knowledge he has an excellent character, and as a trained lawyer will thoroughly understand the obligation he undertakes’.
(449) On Paul Maas (1880–1964), Greek textual scholar, professor in Berlin and Königsberg, after his emigration lecturer at the University of Oxford, see P. Wirth, Neue Deutsche Biographie, vol. 15 (1987), 597; Röder (n. 181), vol. II/2, 759; Sutcliffe (n. 333), 258 and passim; Dictionary of British Classicists (n. 396), sub nomine Maas (Katja Bär); E. Mensching, Über einen verfolgten deutschen Altphilologen: Paul Maas (1880–1964), (1987).
(450) Maas is, inter alia, author of Textkritik, first published in A. Gercke and E. Norden (eds.), Einleitung in die Alterumswissenschaft, vol. I (3rd edn., 1927), later editions as separate book (4th edn., 1960); English edn. Textual Criticism: Translated from the German by Barbara Flower (1958); and ‘Leitfehler und stemmatische Typen’, (1937) 37 Byzantinische Zeitschrift 289–94.
(452) It was possible for refugees to work as gardeners and as servants; cf. T. Kushner, ‘An Alien Occupation—Jewish Refugees and Domestic Services in Britain, 1933–1948’, in Mosse et al. (n. 383), 553–78.
(453) Supra, p. 137.
(454) Extract of a letter of 15 November 1943 (Dr E. Hollitscher), SPSL 274/2 ‘Schulz, F.’.
(457) On Barry Nicholas (1919–2002), Professor of Comparative Law and Principal of Brasenose College, see The Times, 7 March 2002, p. 37 (P. Birks).
(458) Infra, p. 745.
(459) Classical Roman Law (1950), 103 ff.
(461) Letter by Sisam of 4 June 1949, OUP Archives PB/ED/010382. Schulz got the remainder of his library to Oxford in the summer of 1947.
(466) ‘Sie wissen, er ist mein einziger aktiver Freund’, letter of 16 September 1946, Schulz Archive. Schulz also thanked Sisam in the preface to his Classical Roman Law.
(468) Letter by Betty Johnson (SPSL) to Schulz of 18 November 1940, SPSL 274/2 ‘Schulz, F.’, fol. 152.
(470) For another example, see M. Chambers, ‘The Genesis of Jacoby's Atthis’, in E. M. Craik (ed.), Owls to Athens: Essays on Classical Subjects Presented to Sir Kenneth Dover (1990), 381–90. Along similar lines, the Oxford Press agreed to publish Pfeiffer's Callimachus and Fraenkel's Agamemnon.
(471) William George Stewart Adams (1874–1966), Companion of Honour (CH), distinguished public civil servant, and Gladstone Professor of Political Theory and Institutions at Oxford; on W. G. S. Adams, see G. Haynes, ‘Dr W. G. S. Adams, CH, 1874–1966’, (1966) 39 Social Services Quarterly 135–6; id., ‘Adams, William George Stewart’, Dictionary of National Biography 1961–1970, 4–6.
(472) R. P. Bell served as secretary of this committee: Cox and Jones (n. 314), 23. Adams later run a so-called ‘All Souls-Group’, brought together by him to study and discuss current educational policy and practice; cf. Haynes (n. 471), 5.
(473) In a letter to Stevens of 16 April 1943, Sisam wrote about Adams and ‘our’ informal Committee, folder 831, box 63, series 401, RG 1.1, Rockefeller Foundation Archives, RAC.
(474) Letter by Sisam to Adams of 19 December 1940, OUP Archive CPGE 000344.
(475) Raymond A. Fosdick, President of the Rockefeller Foundation, according to Feichtinger (n. 315), 206. For the following, see also Sutcliffe (n. 333), 258 ff. and Denniston, in Harrison (n. 310), 461 ff.
(479) 11 March 1941, OUP Archive CP GE 000344.
(480) Letter by Sisam to Stevens, extract, OUP Archive CP GE 000345.
(481) Letter by O'Brien to Marshall, 26 April 1941, folder 830, box 63, series 401, RG 1.1, Rockefeller Foundation Archives, RAC.
(482) David H. Stevens (1884–1980), former Vice-President of the General Education Board and then Director of the Humanities Division of the Rockefeller Foundation (1932–1949). Cf. R. E. Yahnke (ed.), A Time of Humanities: An Oral History: Recollections of David H. Stevens as Director in the Division of the Humanities, Rockefeller Foundation, 1930–1950 (1976), 91–2.
(483) John Marshall (1903–1980), Assistant Director (1933–1940) and Associate Director (1940–1970) of the Division of the Humanities (later including also Social Science).
(485) See the exchange of letters between Schulz and Sisam of 16 and 18 February 1941, OUP Archives PB/ED/010382.
(488) According to Sutcliffe, (n. 333), 260, Sisam wrote about Schulz: ‘A good scholar, very hard working. A leading democrat in Berlin, and first forbidden to lecture on that ground. Has a wife and a daughter … An economical household, and all show the best spirit.’
(489) Final Report for First Grant, attached to the letter by Sisam to O'Brien, 12 April 1943, folder 831, box 63, series 401, RG 1.1, Rockefeller Foundation Archives, RAC.
(490) From 1941 to the beginning of 1945 the manuscript was translated and edited by de Zulueta, infra, p. 173.
(491) ‘A Collection of Roman Legal Maxims on Papyrus’, (1941) 31 Journal of Roman Studies 63–9.
(493) ‘Roman Registers of Births and Birth Certificates I’, (1942) 32 Journal of Roman Studies 78–91; ‘Roman Registers of Births and Birth Certificates II’, (1943) 33 Journal of Roman Studies 55–64; reprinted together (1951) 55/56 Bulletino dell'Istituto di Diritto Romano—‘Post-Bellum’ 170–206.
(495) The Rockefeller Foundation extended individual grants for specific projects well into the 1950s.
(496) Letter by Sisam to Stevens, 22 October 1946, folder 833, box 63, series 401, RG 1.1, Rockefeller Foundation Archives, RAC.
(497) On Cecil Herbert Stuart Fifoot (1899–1975), legal historian, lecturer in law at London and Oxford, see Geoffrey Cheshire (1975) 61 Proceedings of the British Academy 429–39.
(498) Letter by Sisam to Fifoot of 17 October 1939, OUP Archives PB/ED/010382.
(500) There is no entry of Schulz in the College Register, see Sir I. Elliott (ed.), The Balliol College Register 1900–1950 (3rd edn., 1953); J. Jones and C. Willbery (eds.), The Balliol College Register 1940–1990 (6th edn., 1993).
(501) Letter by Schulz to Sisam of 5 October 1946, OUP Archives PB/ED/010382.
(502) Jolowicz, (1947) 63 LQR 235–9.
(504) F. H. Lawson, The Oxford Law School 1850–1965 (1968), 150.
(506) Interview with Barry Nicholas.
(509) According to a report by J.P. Bell, individual grants made by Oxford Colleges from 1939 to 1944 ranged from £9,200 to nil. The average over all the men's colleges was about £1,600 per college. Balliol College had provided £1,000 in 1939 and £150 in 1942 to make individual grants ranging from £25 to £200 to 11 scholars, among them Schulz, Momigliano, Jacobsthal, and Maas. Balliol had then also two refugee lecturers, Tereschenko and Steindl; 10 January 1944, Balliol College Archive, Miscellaneous Bursar's Papers (MBP) 48.
(510) Infra, pp. 188–90.
(512) On the emigration of the German classicists, see W. Ludwig, ‘Amtsenthebung und Emigration Klassischer Philologen’, (1984) 7 Berichte zur Wissenschaftsgeschichte 161 ff.
(513) Cornelia Wegeler, ‘Das Institut für Altertumskunde der Universität Göttingen 1921–1962: Ein Beitrag zur Geschichte der Klassischen Philologie seit Wilamowitz’, in Becker et al. (n. 127), 337–64, at 345.
(514) Paul Ernst Kahle (1875–1964), Professor for Biblical and Oriental Studies in Gießen and Bonn, had to leave his Bonn chair after his wife and son had helped Jewish citizens after the Reichskristallnacht; later Professor at Oxford. On Kahle, see J. W. Flück, Neue Deutsche Biographie, vol. 11 (1977), 24–5; K.-H. Bernhardt, in G. Müller (ed.), Theologische Realenzyklopädie, vol. XVII (1988), 524 ff.; F. Reiniger, in Biographisch-Bibliographisches Kirchenlexikon, vol. III (1992), coll. 943–5; M. Kahle, What would you have done? The story of the escape of the Kahle family from Nazi Germany (1945), German edn. Was hätten Sie getan? Die Flucht der Familie Kahle aus Nazi-Deutschland (1998; 2nd edn., 2003).
(516) On the history of this project, cf. Arthur L. Goodhart, Introduction to Hermann U. Kantorowicz, The Definition of Law, edited by A. H. Campbell (1958), xi-xii; German edn. Der Begriff des Rechts (1963), Einleitung, 7 ff.; Schulz, History, (n. 56), iii.
(518) Vol. II was to cover the Middle Ages and can therefore be seen as a predecessor to the unfinished IUS ROMANUM MEDII AEVI project, the so-called ‘New Savigny’.
(519) Pietro de Francisci (1883–1971), after professorships at Ferrara, Perugia, Sassari, Macerata, and Padova was from 1912 Professor of Roman Legal History at Rome University. He held various party and state offices during the Fascist regime; from 1932 to 1935 he was Mussolini's Minister of Justice. He was ousted from his chair in 1944 but allowed to return in 1949. On de Francisci, see Novissimo Digesto Italiano, vol. V (1960; repr. 1981), 320; C. Lanza, in Dizionario Biografico degli Italiani, vol. 36 (1988), 58–64.
(520) The other contributors to vol. I were to be J. E. Lips (‘Legal Thought in Simple Societies’), J. G. Lautner (‘Cuneiform Legal Science’), J. Pirenne (‘Egyptian Legal Science’), J. Escarra (‘Chinese Legal Science’), G. M. Calhoun (‘Greek Legal Science’), D. Daube (‘Jewish Legal Science’), A. Berger (‘Byzantine Law’), S. Vesey-Fitzgerald (‘Hindoo Legal Science’). For vol. II some, though not all, contributors had been found: H. Kantorowicz (‘Roman and Lombard Law in the Dark Ages’ and ‘Romanists’), G. Le Bras (‘Canon Law in the Dark Ages’ and ‘The Decretum’), St Kuttner (‘The Decretists and the Decretalists’), T. F. Plucknett (‘English Law’), F. Olivier-Martin (‘French Law’), P. Jörgensen (‘Scandinavian Law’), D. A. Binchy (‘Celtic Law’), J. Schacht (‘Moslem Legal Science’). For vol. III, G. Radbruch had agreed to contribute a piece on ‘Natural Law’.
(521) Letter of 1 May 1939, OUP Archives CP/ED/000129.
(523) Letter by Sisam to de Zulueta of 4 May 1939, OUP Archives PB/ED/010383.
(524) Letter by de Zulueta to Sisam of 18 February 1940, OUP Archives CP/ED/000129.
(525) Other books originating from the abandoned ‘Oxford History of Legal Science’ project are J. Schacht, The Origins of Muhammedan Jurisprudence (1950) and G. M. Calhoun, Introduction to Greek Legal Science (1944). On Kantorowicz's introduction, see n. 516.
(526) Memorandum by Sisam, 28 March 1941, OUP Archives CP/ED/000129.
(527) Letter by Schulz to Sisam of 4 April 1943, OUP Archives PB/ED/010383.
(528) Letters by de Zulueta to Sisam of 4 June 1942 and by Sisam to de Zulueta of 30 June 1941, both OUP Archives PB/ED/010383.
(529) The Press paid de Zulueta £75 for his involvement in the History.
(530) Extract, letter by de Zulueta to the Press of 2 July 1942, OUP Archives PB/ED/010383.
(531) Letter by Schulz to Sisam of 4 April 1943, OUP Archives CP/ED/000129.
(532) OUP Archives PB/ED/010383.
(533) On the bringing together of different strands of historical, philological, and juristic research, which Mommsen considered to be his main achievement, see U. von Wilamowitz-Moellendorf, ‘Geschichte der Philologie’, in A. Gercke and E. Norden (eds.), Einleitung in die Altertumswissenschaft, vol. I (3rd edn., 1927), 1 ff. Cf. also S. Rebenich, Theodor Mommsen: Eine Biographie (2002), 125 and passim.
(534) ‘Out of the abundance of the heart the mouth speaketh’: Matthew 12, 34.
(535) A second edition, with addenda, was printed in 1953.
(536) Alongside the reviews in learned journals, the ‘History’ was very favourably reviewed for The Times Literary Supplement, 24 August 1946, and this especially pleased Schulz. The reviewer was Archibald Hunter Campbell, who later was to edit the Introduction that Kantorowicz had written for ‘The Oxford History of Legal Science’, supra, n. 516.
(537) Letter by de Zulueta to the OUP of 19 September 1969, OUP Archives PB/ED/010382.
(545) The following entries in Schulz's bibliography, ‘Vollständiges Verzeichnis der juristischen Schriften von Fritz Schulz’, in W. Flume and H. Niedermeyer (eds.), Festschrift für Fritz Schulz, vol. I (1951), IX ff., written before the 1940s, deal with issues of textual history: Nos 2, 15, 19, 24, 26, 30, 32, 34, 36, 38, 39, 40, and 42.
(547) The Handbuch der Lateinischen Literatur, for example, is organized not along authors but along forms of literature.
(548) A brief exposition, set forth with the clarity typical of Schulz, can be found in ‘Die Ulpianfragmente des Papyrus Rylands 474 und die Interpolationenforschung’, (1951) 68 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Romanistische Abteilung 1 ff. The article, contesting statements made by Johannes Stroux, should be read by every serious student of Roman law.
(549) Dealt with by Schulz in the following articles ‘Interpolationen in den justinianischen Reformgesetzen des Codex Justinianus vom Jahre 534’, in Studi in onore di P. Bonfante, vol. I (1929) 337–60; ‘Nachklassische Quaestionen in den justinianischen Reformgesetzen des Codex Justinianus’, (1930) 50 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Romanistische Abteilung 212–48; ‘Ein Blatt aus einem antiken Exemplar des Codex Justinianus’, (1931) 51 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Romanistische Abteilung 417–21; and in the article quoted at n. 227.
(550) ‘Überlieferungsgeschichte der Responsa des Cervidius Scaevola’, in Symbolae Friburgenses in honorem Ottonis Lenel (1933), 143–244. For contemporary evaluations of Schulz's position, see C. Zülch, Der liber singularis responsorum des Ulpius Marcellus (2001), 30–5, 215, 234 f., and the review of this work by D. Liebs, (2003) 120 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Romanistische Abteilung 243–62; id., ‘Römische Rechtsgutachten und “Responsorum libri”’, in G. Vogt-Spira (ed.), Strukturen der Mündlichkeit in der römischen Literatur (1990), 83–94, 87 ff.
(551) This opening up of the view onto the complex and multifaceted making and transmission of legal writings in late antiquity does not prejudice the issue of the extent (or percentage) to which the texts underwent alterations, and how many of these alterations occurred intentionally or unintentionally.
(552) The idea of stratification, i.e. that original writings were, mainly in the second half of the third and in the first half of the fourth century, worked and built on in diverse ways, was taken up by Franz Wieacker, who produced his Textstufen klassischer Juristen in 1959, mostly along the lines of Schulz. It has been held that Wieacker ‘sanctioned and almost canonized’ Schulz's bold hypotheses, also in order to make a sort of intellectual ‘reparation’; D. Liebs, (n. 550) 246, requiring critical re-examinations of Schulz's and Wieacker's books.
(553) Supra, pp. 132–3.
(554) ‘Jede Epoche ist unmittelbar zu Gott, und ihr Wert beruht gar nicht auf dem, was aus ihr her-vorgeht, sondern in ihrer Existenz selbst, in ihrem eigenen Selbst… indem nun jede Epoche … der Betrachtung als höchst würdig erscheint’, L. von Ranke, Über die Epochen der neueren Geschichte (1888), 5.
(558) Studies undertaken by, e.g., Honoré, Liebs, Voss, Siems, and Sirks have confirmed that in the third and fourth centuries the extent of professional lawyering, still along the lines of classical Roman law, was much greater than hitherto believed.
(559) Cf. K. Misera and R. Backhaus, ‘Ernst Levy und das Vulgarrecht’, in Semper Apertus: Sechshundert Jahre Ruprechts-Karls-Universtiät Heidelberg 1386–1986, vol. III (1985), 186–215.
(561) ‘Schulz in der allersten Reihe der Romanisten aller Nationen’: M. Kaser, ‘Fritz Schulz zum 70. Geburtstag’ (1949) 4 Süddeutsche Juristenzeitung coll. 514–15, at 514.
(562) A. Schiavone and A. G. Cassandro (eds.), La Giurisprudenza Romana nella Storiografia contemporanea: Testi di un Seminario raccolti da A. Schiavone e Anna Girogio Cassandro (1982). Reflections on Schulz's History (or inspired by it) were contributed by M. Bretone, ‘Postulati e aporie nella “History” di Schulz’ (also printed in Festschrift für Franz Wieacker zum 70. Geburtstag , 37–49), M. Brutti, F. D'Ippolito, S. Tondo, R. Quadrato, B. Santalucia, F. Grelle, and G. Pugliese. Archi contributed an overall evaluation of Schulz's oeuvre and life.
(564) Letter by Schulz to Norrington of 2 January 1949, OUP Archives PB/ED/010382.
(567) The Elements of Roman law, with a translation of the Institutes of Justinian, by Robert Warden Lee (1868–1958), an annotated edition and translation of Justinian's Institutes, first published in 1944. On R. W. Lee (1868–1958), Professor of Roman-Dutch Law at Oxford, see (1958) Proceedings of the British Academy 313–24 (Harold G. Hanbury).
(568) Friedricn August Wolf (1759–1824), Classics Professor at Halle and Berlin, editor and translator of Homer, held that the Iliad and Odyssey were written by a number of Homerides, continuing and expanding Homer's original poetry.
(569) Lawson's judgement of Jones's good literary sense proved to be prophetic: H. John F. Jones (b. 1924), then Law Tutor at Merton College, later became Professor of English Literature, writer and Oxford Professor of Poetry 1979–1984; cf. Harrison (n. 310), 415, 418 (V. Cunningham). Whether he was a good person to serve as a stylistic critic for a scholarly book on legal history is an altogether different matter.
(570) Letter by Spicer to Lawson of 16 February 1949, OUP Archives PB/ED/010382.
(572) Promptly after the completion of the manuscript of the History of Roman Legal Science Schulz had indeed proposed to Sisam that he write a book on ‘Legal Aspects in the Speeches of Cicero’ (an old plan of his), or a legal commentary on the comedies of Plautus. Alternatively he had offered to provide an English edition of the ‘Jurisprudence Anteiustinianae’; Schulz to Sisam of 16 February 1941. Sisam had answered brusquely that the Manual should be Schulz's next task, 18 February 1941; OUP Archives PB/ED/010382.
(574) Letter by Schulz to Spicer of 15 May 1949, OUP Archives PB/ED/010382.
(575) Letter by Schulz to Sisam of 7 July 1944, OUP Archives PB/ED/010382.
(576) Arthur Lehmann Goodhart (1891–1978), lawyer of American descent, held various outstanding posts in the English legal academia of his time; he was, e.g., Oxford Professor of Jurisprudence and Master of University College. On Goodhart, see Dictionary of National Biography 1971–1980 (1988) 350–51 (T. Honoré); (1996) 94 Proceedings of the British Academy 475–87 (R. E. Megarry); The Times, 11 November 1978.
(578) H. F. Jolowicz, Historical Introduction to the Study of Roman Law (1932).
(579) Derecho Romano Clásico, translated and edited by José Santa Cruz Teigero (1960).
(580) Memorandum by Spicer of 2 March 1949 after a visit of Lawson, OUP Archives PB/ED/ 010382.
(581) J. M. Keynes, Essays in Biography (3rd edn., 1951), 172 ff.
(583) I have dwelt on the merits of Classical Roman Law more exhaustively elsewhere, and what was written there need not to be repeated here, see the Introduction to the reprint 1992 (Aalen, Germany), p. 5*–14*.
(585) (1942) 54 Juridical Review 1–20.
(586) Letter by Schulz to Sisam of 21 May 1941, OUP Archives PB/ED/010383.
(587) Cf. supra, pp. 113–14.
(588) On 16 September 1946, de Zulueta wrote to Sisam: ‘I have not forgotten about your Bracton idea. He [Schulz] says the Seldon Society does not seem favourable. What about a volume of Bracton studies? But he must first finish his manual’: OUP Archives PB/ED/010382.
(589) 1. ‘Critical Studies on Bracton's Treatise’, (1943) 59 LQR 172–80; 2. ‘A New Approach to Bracton’, (1944) II Seminar 41 ff.; 3. ‘Bracton and Raymond de Penafort’, (1945) 61 LQR 286–92; 4. ‘Bracton on Kingship’, (1945) 60 English Historical Review 136–76, also in: Studi in memoria di Paolo Koschaker, ‘L'Europa e il Diritto Romano’, vol. I (1953) 23–70; 5. ‘Bracton as a computist’, (1946) 3 Traditio 265–305.
(590) Schulz, (1944) II Seminar 42.
(591) A similar approach was taken by S. E. Thorne, ‘Introduction’, in G. E. Woodbine (ed.), Bracton on the Laws and Customs of England, vol. I (1968), xxxiii ff.; J. Barton, ‘Roman Law in England’, Ius Romanum Medii Aevi vol. V, 13a (1971), 25; id., ‘Bracton as a Civilian’, (1967/68) 42 Tulane Law Review 555–83; R. C. van Caenegem, The Birth of the Common Law (2nd edn., 1988) 91. Contra, H. G. Richardson, Bracton: The problem of his text (1965); id., ‘Azo, Drogheda and Bracton’, (1944) 49 English Historical Review 22–47; id., ‘Studies in Bracton’, (1948) 6 Traditio 61–104. Indeed Richardson and Schulz exchanged their views on Bracton, see letters by Richardson to Schulz of 24 November 1944 and 18 September 1945, Schulz Archive. On Henry Gerald Richardson (1884–1974), historian, see (1975) Proceedings of the British Academy 497–521 (G. O. Sayles).
(592) F. W. Maitland, Bracton and Azo (Selden Society, 1895), xviii.
(595) Letter by Martha Schulz to Sisam of 22 November 1947, OUP Archives PB/ED/010382.
(597) Spicer, memorandum of 16 September 1952, OUP Archives PB/ED/010383.
(598) See n. 545, Nos 58 to 62. Paper No. 60 was given at the ‘Congresso Internazionale di Diritto Romano e di Storia del Diritto’, held 27–29 September 1949 in Verona; (1949) 62 Studia et Documenta Historiae et Iuris, 388–421, at 416.
(599) ‘Condictio indebiti und die Accessorietät der sponsio und fideiussio’, (1952) 3 Rivista internazionale di diritto Romano e antico 15–20. Schulz's findings were challenged by M. Kaser, ‘Celsus D. 12, 6, 47 und die Akzessorietät der Bürgschaft’, in F. Horak and W. Waldstein (eds.), Festgabe für Herdlitczka (1972) 143–59, to be defended, another 24 years later, by W. Flume, ‘Zu den römischen Bürgschaftsstipulationen’, (1996) 113 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Romanistische Abteilung 88–131.
(600) § 2, 11th Verordnung zum Reichsbürgergesetz of 25 November 1941, RGBl 1941 I, 722.
(601) See generally, Beatson, supra, pp. 95–6 with further references.
(604) Schulz to Sisam, letter of 16 October 1946, OUP Archives PB/ED/010382.
(610) Letter to Stevens, 16 April 1943, folder 831, box 63, series 401, RG 1.1, Rockefeller Foundation Archives, RAC.
(613) Dissolved by Order of the Allied Control Council of 25 February 1947; see 1947 Amtsblatt des Alliierten Kontrollrates 262.
(615) Letter by Schulz to Sisam of 5 September 1946, OUP Archives PB/ED/010382.
(618) On Schulz's application the SPSL awarded him a grant of £20 16s 8d per month for three months from 1 July 1948, letter by Ursell to Schulz of 21 June 1948, SPSL 274/2 ‘Schulz, F.’, fol. 169.
(619) Letter by Sisam to de Zulueta of 16 July 1948. De Zulueta answered on 19 July 1948: ‘I knew you had done every mortal thing you could for Schulz already, but I was pressed to write Sc it seemed just conceivable that putting our heads together might do some good …. Schulz will pull through somehow. He is far from being the worst off of the refugees I know’: OUP Archives PB/ED/010383.
(621) Letter by Schulz to Sisam of 21 November 1947, OUP Archives PB/ED/010382.
(622) Cf. the contribution by Barry Nicholas to the present volume, infra, p. 746.
(624) Infra, p. 746.
(626) Cf. also the episode recalled by Peter Stein in his contribution to the present volume, infra, pp. 739–40.
(627) Among the students taught by Schulz was Lord Neill of Bladen, QC (born 1926), who remembers being terrified by Schulz's learning; personal recollection, shared with David Ibbetson.
(628) Memorandum of Spicer of 16 September 1952, OUP Archives PB/ED/010383. See also letter by Schulz to Helmut Coing of 25 January 1951, Personalakte Juristische Fakultät, Frankfurt.
(629) Theodor Ludwig Süss (1892–1961), as a young lecturer temporarily associate professor at Antioch College in Yellow Springs (Ohio) and Wittenberg College in Springfield (Ohio); professor in Breslau, Erlangen, Speyer, and Cologne. Süss, who survived the Nazi era in Erlangen, greatly helped German Jews. After the war, he was Rector of the University of Erlangen and temporarily in charge of the University Department of the Bavarian government. On Süss, see V. Carl, Lexikon pfälzischer Persönlichkeiten (1998), 105; H. C. Nipperdey, ‘Theodor Süss (9.7.1892–29.1.1961)’, (1961) 160 Archiv für die civilistische Praxis 193–205.
(630) Letters of 27 August and 16 September 1946; copy Schulz Archive.
(631) Letter by Schulz to Sisam of 5 September .1946, OUP Archives PB/ED/010382. Similarly he wrote to Dr Skemp (SPSL) on 24 November 1945: ‘I wish to make it clear that I have no desire to return to Germany’; SPSL 274/2 ‘Schulz, F.’, fol. 161.
(632) Letter by Schulz to Sisam of 21 November 1947, OUP Archives PB/ED/010382.
(633) On Max Kaser (1906–1997), Professor of Roman Law at Münster, Hamburg, and Salzburg, see H. Ankum, ‘In memoriam: Max Kaser (1906–1997)’,  Revue Historique de Droit Français et Étranger 181–4; R. Knütel, ‘Max Kaser (21.4.1906–13.1.1997)’, (1998) 115 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Romanistische Abteilung xvii-xlviii; id., ‘Max Kaser †’, 1997 Neue Juristische Wochenschrift 1492 ff.
(634) M. Kaser, Das Römische Privatrecht: Handbuch der Altertumswissenschaft, 10. Abt., III. Teil, 3. Band, 1. Abschnitt: Das altrömische, das vorklassische und das klassische Recht (1955); 2. Abschnitt: Die nachklassischen Entwicklungen (1959).
(635) Walter Hallstein (1901–1982) was a pupil of Marti. Wolff (n. 27) and Erns. Rabel (n. 97). He taught private law and comparative law at Rostock and Frankfurt. Hallstein served as a senior official in the Federal Chancery and in the German Foreign Office from 1950 to 1958, and as President of the European Commission from 1958 to 1967. On Hallstein, see W. Weidenfeld, ‘Hallstein’, Staatslexikon, vol. II (1986), coll. 1165 ff.; R. Ley, ‘Walter Hallstein †’, 1982 Neue Juristische Wochenschrift 1684.
(636) Cf. Letters of Hallstein of 11 February, 9 March, and 22 March 1950; Universität Frankfurt, Juristische Fakultät, Personalakte ‘Fritz Schulz’.
(637) Commenting on Pringsheim's lectures in Freiburg Schulz wrote: ‘In meinen Augen blosses Affentheater’; letter to F. A. Mann of 16 September 1946, Schulz Archive.
(638) Letter by Schulz to Hallstein of 17 February 1950, Universität Frankfurt, Juristische Fakultät, Personalakte ‘Fritz Schulz’: ‘Meine Idee war … wieder einmal, vielleicht zum letzten Mai, ein richtiges akademisches Semester im Kreis von Studenten und Kollegen zu verleben.’
(640) Helmut Coing (1912–2000), Professor for Roman and Private Law in Frankfurt am Main, founder and, from 1964 to 1980, President of the Max-Planck-Institut für Europäische Privatrechtsgeschichte. On Coing, see D. Simon, ‘Zwischen Wissenschaft und Wissenschaftspolitik— Helmut Coing’, 2001 Neue Juristsche Wochenschrift 1029–32; K. W. Nörr, ‘Über das Geistige im Recht—ein Nachruf auf Helmut Coing’, 2001 Juristenzeitung 449–53.
(641) Letter by Schulz to Coing of 25 January 1951, Personalakte Juristische Fakultät Frankfurt.
(642) Flume and Noth, (1956) 11/12 Journal of Juristic Papyrology 24.
(643) The Wiedergutmachung was introduced by the Bundesentschädigungsgesetz, BGBl 1953 I, 1387. See H.-J. Brodesser et al., Wiedergutmachung und Kriegsfolgenliquidation: Geschichte— Regelungen—Zahlungen (2000); L. Herbst and C. Goschler (eds.), Wiedergutmachung der Bundesrepublik Deutschland (1989).
(644) ‘Die Hitlerzeit war ein grosser Karneval, das muss man vergessen. Vielleicht hat er doch cum grano salis recht’: letter to Coing of 25 January 1951, Universität Frankfurt, Juristische Fakultät, Personalakte ‘Fritz Schulz’. With regard to the article mentioned supra, n. 58, Schulz wrote: ‘I become a contributor to the journal of the Savigny Foundation, once again, forgetting all wrong suffered’ (‘ … trete ich wieder in die Savigny-Z ein und vergesse alle erlittene Unbill’).
(645) See Appendix, supra, pp. 198–202.
(646) Genesis 50, 20.
(647) Ernst Friesenhahn (1901–1984), Professor of Constitutional Law at Bonn, Judge of the German Federal Constitutional Court (1951–1963); on E. Friesenhahn, see J. Isensee, ‘Ernst Friesenhahn’, 1984 Neue Juristische Wochenschrift 2080; S. Stolte, ‘Ernst Friesenhahn’, in Schmoeckel (n. 173), 203–59.
(648) E. Friesenhahn, ‘Juristen an der Universitat Bonn’, in E. Friesenhahn, M. Gutzwiller, and M. E. Kamp, Juristen und Nationalökonomen an der Universität Bonn: Alma mater, Beiträge zur Geschichte der Universität Bonn, vol. 25/26 (1970), 21–48, 32 f.
(649) In comparison to other former colleagues who returned to Bonn, namely Eberhard Bruck, Max Grünhut, and, though not formerly in Bonn, Andreas Bertalan Schwarz.
(650) ‘Fritz Schulz …, probably the person charged with more resentment than the others, in the course of the evening when he was together for the first time, once again, with the faculty slowly thawed and, in the end, confessed that he felt like the Iron Heinrich of the fairytale “The Frog King”: And when they had driven a part of the way the king's son heard a cracking behind him as if something had broken. So he turned round and cried, “Henry, the carriage is breaking”. “No, master, it is not the carriage. It is a band from my heart, which was put there in my great pain when you were a frog and imprisoned in the well.” So from him the bands had now burst.’ The verses by the Grimm brothers are rendered here in the translation by Margaret Hunt.
(651) See letters to F. A. Mann of 29 August 1946, referring to ‘Forsthoff (naturally Nazi) now, as to be expected, professor in Germany’, and of 16 September 1946 (cf. following note), Schulz Archive. In general, see M. Stolleis, ‘Reluctance to Glance in the Mirror: The Changing Face of German Jurisprudence after 1933 and post 1945’, in Ch. Joerges and N. Ghaleigh (eds.), Darker Legacies of Law in Europe: The Shadow of National Socialism and Fascism over Europe and its Legal Traditions (2003), 1 ff. For another evaluation, see N. Frei, Vergangenheitspolitik: Die Anfänge der Bundesrepuhlik und die NS-Vergangenheit (1996).
(652) See Schulz's letter to F. A. Mann of 16 September 1946 (Schulz Archive), naming Wieacker and Felgentraeger, who according to Schulz ‘were pretending, again, to be Pringsheim's loyal pupils’ (‘gerieren sich jetzt wieder als getreue Schüler Pringsheims’).
(653) Edmund Husserl (1859–1938) had asked Schulz whether he could guide his son towards a Habilitation at the Bonn Law Faculty; Flume, personal recollection. Schulz and Edmund Husserl presumably had met when they were both professors at Gottingen (1916/17). Although Gerhart Husserl's interests were only loosely related to Schulz's own fields (but see 1930  Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Romanistiscbe Abteilung 478–86), Schulz agreed and G. Husserl came to the Bonn Law Faculty to achieve his Habilitation under Schulz's supervision in 1924. Husserl himself recounted their relationship in the following words: ‘It was upon his advice that in 1924 I decided to enter the academic career …. During the two years I was myself with the law faculty of the University of Bonn as an assistant professor of law, we worked continuously together and I benefited enormously thereby.’ Letter to W. D. Lewis of 26 December 1938, copy attached to a letter to Hartshorne of 30 December 1938; Record James Bryant Conant, UAI 5.168, box 144, folder ‘University Lecturer: Schulz’.
(654) Supra, pp. 126–7.
(656) On Wolfgang Kunkel (1902–1981), Professor of Roman Law at Göttingen, Bonn, Heidelberg, and Munich, see D. Nörr, ‘Wolfgang Kunkel’, in Neue Deutsche Biographie, vol. 13 (1982), 298; F. Sturm, ‘Wolfgang Kunkel’, (1984) 86/87 Bulletino deWlstituto di Diritto Romano 17–35.
(657) Letter from Schulz to Flume of 10 May 1949.
(658) On Kurt Zierold (1899–1989), from 1952 to 1964 General Secretary of the ‘Deutsche Forschungsgemeinschaft’, see Deutsche Biographische Enzyklopädie, vol. X (1999) 659. In 1946, Schulz had already contacted Adolf Grimme, the last Minister of Cultural Affairs in the Democratic Prussian Government and then the post-war Minister of Cultural Affairs in Lower Saxony, on Flume's behalf. On Adolf Grimme (1889–1963) see Neue Deutsche Biographie, vol. VII (1966) 88–9 (G. Olscheski); Grafin von Lösch (n. 95), 43.
(660) Flume and Niedermeyer (n. 545). The Festschrift was paid for by the Ministry of Cultural Affairs of the Land Nordrhein-Westfalen and 5,000 Deutschmark thus received were exchanged for 15,000 Mark (DDR) to be paid to the then East German publisher Bohlau in Weimar; Flume, personal recollection.
(661) 27 August 1949. On the same occasion honorary doctorates were also conferred on Victor Gollancz and Ernst Levy. At that time, Schiedermaier was Dean of the Frankfurt law faculty. His interest in legal studies had been sparked when, as a student in Bonn, he had attended Schulz's ‘electrifying lectures’; P. Gilles, ‘Gerhard Schiedermaier (1906–1986)’, in Diestelkamp and Stolleis (n. 179), 292–305, at 294.
(663) At that time, Arangio-Ruiz was the President of the Accademia.
(664) By the time Barry Nicholas considered proposing Schulz for an Oxford honorary degree, Schulz was unable to speak, which from Nicholas's point of view made him an unsuitable candidate; infra, p. 746.
(665) Julius Caesar, 5, 1.
(666) Obituaries: G. G. Archi, ‘Fritz Schulz’, (1958) 24 Studia et Documenta Historiae et luris 451–9; W. Flume, ‘Fritz Schulz’ (1958) 75 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Romanistische Abteilung 496–507; F. A. Mann, ‘Dr Fritz Schulz’, The Times, 21 November 1957; Flume and Noth, (1956) 11/12 Journal of Juristic Papyrology 23 ff.; H. J. Wolff, ‘Fritz Schulz †’, 1958 Juristenzeitung 186. A Gedächtnisfeier (commemoration) was held by Bonn University on 25 July 1958, cf. Flume (n. 7). Schulz's library was acquired by Bonn University and has become part of the library of the Institute of Roman Law.
(667) J. Buchan, Sir Walter Scott (1932; reprint 2001), 352.
(669) ‘Most dear wife, most faithful companion of life.’
(670) The Times, 21 November 1957.
(671) Hans Julius Wolff (1902–1983), Professor of Roman Law and Private Law at Panama City, Mainz, and Freiburg. On Wolff, see D. Liebs, ‘Nachruf Hans Julius Wolff’, 1983 Juristenzeitung 815; J. G. Wolf, ‘Erinnerungen an Hans Julius Wolff’ (1984) 3 Rechtshistorisches Journal 4–6; G. Thür, ‘Hans Julius Wolff zum Gedenken’, (1984) 100 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Romanistische Abteilung 476–92.
(672) ‘Eindruck seines lebhaften und geistspruhenden Temperaments, seiner menschliche Güte— Eigenschaften, die ihn zu einem bewunderten und überaus erfolgreichen Lehrer machten—und des Mutes, mit dem er zu seinen wissenschaftlichen Überzeugungen stand’: Wolff, 1958 Juristenzeitung 186.
(673) Infra, p. 745.
(677) Letter by Husserl to W. D. Lewis of 26 December 1938, copy attached to a letter to Hartshorne of 30 December 1938; Record James Bryant Conant, UAI 5.168, box 144, folder ‘University Lecturer: Schulz’.
(678) ‘A professor must give himself up for his students.’
(679) De Zulueta once remarked that Schulz ‘belongs to a group of men … who are not lenient judges of their colleagues’: Letter to Hartsthorne of 13 January 1939; Harvard University Archive: Record James Bryant Conant, UAI 5.168, box 144, folder ‘University Lecturer: Schulz’.
(681) Dr Helga Arnold, née Röder, had assisted Schulz in correcting and grading papers of Bonn students in the 1920s. However, she had not been his doctoral student. After the war Dr Arnold worked as a practising lawyer. She helped to accommodate Schulz when he was in Bonn in the 1950s.
(684) Cf. Genesis 50, 20.
(686) Supra, p. 137.
(687) Supra, p. 137.
(689) Crossed out: ‘Ich lege für alle Fälle ein Zeugnis bei, wenn es nicht genügt und etwa ein Affidavit erforderlich ist, so schreiben Sie mir das sofort!’, cf. postscriptum.
(691) I wish to express grateful appreciation for the valuable help given or suggestions made to me by the following persons: Moritz Bälz, Jack Beatson, Peter Birks, John W. Cairns, Tim Dornis, Lady English (St Hilda's College), Robert Feenstra, Joshua Getzler, Richard Helmholz, David Horspool (TLS history editor), David Ibbetson, John Jones (Balliol College), Ervin Levold (Rockefeller Foundation Archive), Marten Liander (Harvard University), Kurt Lipstein, David Mann, Martin Maw (OUP), Andreas von Medem, Francesco Milazzo, Barry Nicholas, Christian Picker, Michael Riordan (Queen's College, Oxford), Helga Arnold, née Röder, Alan Rodger, Frank L. Schäfer, Norbert Simon (Duncker & Humblot), Cordula Tollmien, Tony Weir, Laurens Winkel, Reinhard Zimmermann, and especially Werner Flume and Dorothea Meek, née Schulz. Andrea Brieger and Thomas Rüfner have assisted me throughout.