外文原文(一)Savigny and his Anglo-American Disciple s*M. H. HoeflichFriedrich Carl von Savigny, nobleman, law reformer, champion of the revived German professoriate, and founder of the Historical School of jurisprudence, not only helped to revolutionize the study of law and legal institutions in Germany and in other civil law countries, but also exercised a profound influence on many of the most creative jurists and legal scholars in England and the United States. Nevertheless, tracing the influence of an individual is always a difficult task. It is especially difficult as regards Savigny and the approach to law and legal sources propounded by the Historical School. This difficulty arises, in part, because Savigny was not alone in adopting this approach. Hugo, for instance, espoused quite similar ideas in Germany; George Long echoed many of these concepts in England during the 1850s, and, of course, Sir Henry Sumner Maine also espoused many of these same concepts central to historical jurisprudence in England in the 1860s and 1870s. Thus, when one looks at the doctrinal writings of British and American jurists and legal scholars in the period before 1875, it is often impossible to say with any certainty that a particular idea which sounds very much the sort of thing that might, indeed, have been derived from Savigny's works, was, in fact, so derived. It is possible, nevertheless, to trace much of the influence of Savigny and his legal writings in the United States and in Great Britain during this period with some certainty because so great was his fame and so great was the respect accorded to his published work that explicit references to him and to his work abound in the doctrinal writing of this period, as well as in actual law cases in the courts. Thus, Max Gutzwiller, in his classic study Der einfluss Savignys auf die Entwicklung des International privatrechts, was able to show how Savigny's ideas on conflict of laws influenced such English and American scholars as Story, Phillimore, Burge, and Dicey. Similarly, Andreas Schwarz, in his "Einflusse Deutscher Zivilistik im Auslande," briefly sketched Savigny's influence upon John Austin, Frederick Pollock, and James Bryce. In this article I wish to examine Savigny's influence over a broader spectrum and to draw a picture of his general fame and reputation both in Britain and in the United States as the leading Romanist, legal historian, and German legal academic of his day. The picture of this Anglo-American respect accorded to Savigny and the historical school of jurisprudence which emerges from these sources is fascinating. It sheds light not only upon Savigny’s trans-channel, trans-Atlantic fame, but also upon the extraordinarily*M.H.Hoeflich, Savigny and his Anglo-American Disciples, American Journal of Comparative Law, vol.37, No.1, 1989.cosmopolitan outlook of many of the leading American and English jurists of the time. Of course, when one sets out to trace the influence of a particular individual and his work, it is necessary to demonstrate, if possible, precisely how knowledge of the man and his work was transmitted. In the case of Savigny and his work on Roman law and ideas of historical jurisprudence, there were three principal modes of transmission. First, there was the direct influence he exercised through his contacts with American lawyers and scholars. Second, there was the influence he exercised through his books. Third, there was the influence he exerted indirectly through intermediate scholars and their works. Let us examine each mode separately.I.INFLUENCE OF THE TRANSLATED WORKSWhile American and British interest in German legal scholarship was high in the antebellum period, the number of American and English jurists who could read German fluently was relatively low. Even those who borrowed from the Germans, for instance, Joseph Story, most often had to depend upon translations. It is thus quite important that Savigny’s works were amongst the most frequently translated into English, both in the United States and in Great Britain. His most influential early work, the Vom Beruf unserer Zeitfur Rechtsgeschichte und Gestzgebung, was translated into English by Abraham Hayward and published in London in 1831. Two years earlier the first volume of his History of Roman Law in the Middle Ages was translated by Cathcart and published in Edinburgh. In 1830, as well, a French translation was published at Paris. Sir Erskine Perry's translation of Savigny's Treatise on Possession was published in London in 1848. This was followed by Archibald Brown's epitome of the treatise on possession in 1872 and Rattigan's translation of the second volume of the System as Jural Relations or the Law of Persons in 1884. Guthrie published a translation of the seventh volume of the System as Private International Law at Edinburgh in 1869. Indeed, two English translations were even published in the far flung corners of the British Raj. A translation of the first volume of the System was published by William Holloway at Madras in 1867 and the volume on possession was translated by Kelleher and published at Calcutta in 1888. Thus, the determined English-speaking scholar had ample access to Savigny's works throughout the nineteenth century.Equally important for the dissemination of Savigny's ideas were those books and articles published in English that explained and analyzed his works. A number of these must have played an important role in this process. One of the earliest of these is John Reddie's Historical Notices of the Roman law and of the Progress of its Study in Germany, published at Edinburgh in 1826. Reddie was a noted Scots jurist and held the Gottingen J.U.D. The book, significantly, is dedicated to Gustav Hugo. It is of that genre known as an external history of Roman law-not so much a history of substantive Roman legal doctrine but rather a historyof Roman legal institutions and of the study of Roman law from antiquity through the nineteenth century. It is very much a polemic for the study of Roman law and for the Historical School. It imparts to the reader the excitement of Savigny and his followers about the study of law historically and it is clear that no reader of the work could possibly be left unmoved. It is, in short, the first work of public relations in English on behalf of Savigny and his ideas.Having mentioned Reddie's promotion of Savigny and the Historical School, it is important to understand the level of excitement with which things Roman and especially Roman law were greeted during this period. Many of the finest American jurists were attracted-to use Peter Stein's term-to Roman and Civil law, but attracted in a way that, at times, seems to have been more enthusiastic than intellectual. Similarly, Roman and Civil law excited much interest in Great Britain, as illustrated by the distinctly Roman influence to be found in the work of John Austin. The attraction of Roman and Civil law can be illustrated and best understood, perhaps, in the context of the publicity and excitement in the English-speaking world surrounding the discovery of the only complete manuscript of the classical Roman jurist Gaius' Institutes in Italy in 1816 by the ancient historian and German consul at Rome, B.G. Niebuhr. Niebuhr, the greatest ancient historian of his time, turned to Savigny for help with the Gaius manuscript (indeed, it was Savigny who recognized the manuscript for what it was) and, almost immediately, the books and journals-not just law journals by any means-were filled with accounts of the discovery, its importance to legal historical studies, and, of course, what it said. For instance, the second volume of the American Jurist contains a long article on the civil law by the scholarly Boston lawyer and classicist, John Pickering. The first quarter of the article is a gushing account of the discovery and first publication of the Gaius manuscript and a paean to Niebuhr and Savigny for their role in this. Similarly, in an article published in the London Law Magazine in 1829 on the civil law, the author contemptuously refers to a certain professor who continued to tell his students that the text of Gaius' Institutes was lost for all time. What could better show his ignorance of all things legal and literary than to be unaware of Niebuhr's great discovery?Another example of this reaction to the discovery of the Gaius palimpsest is to be found in David Irving's Introduction to the Study of the Civil Law. This volume is also more a history of Roman legal scholarship and sources than a study of substantive Roman law. Its pages are filled with references to Savigny's Geschichte and its approach clearly reflects the influence of the Historical School. Indeed, Irving speaks of Savigny's work as "one of the most remarkable productions of the age." He must have been truly impressed with German scholarship and must also have been able to convince the Faculty of Advocates, forwhom he was librarian, of the worth of German scholarship, for in 1820 the Faculty sent him to Gottingen so that he might study their law libraries. Irving devotes several pages of his elementary textbook on Roman law to the praise of the "remarkable" discovery of the Gaius palimpsest. He traces the discovery of the text by Niebuhr and Savigny in language that would have befitted an adventure tale. He elaborates on the various labors required to produce a new edition of the text and was particularly impressed by the use of a then new chemical process to make the under text of the palimpsest visible. He speaks of the reception of the new text as being greeted with "ardor and exultation" strong words for those who spend their lives amidst the "musty tomes" of the Roman law.This excitement over the Verona Gaius is really rather strange. Much of the substance of the Gaius text was already known to legal historians and civil lawyers from its incorporation into Justinian's Institutes and so, from a substantive legal perspective, the find was not crucial. The Gaius did provide new information on Roman procedural rules and it did also provide additional information for those scholars attempting to reconstruct pre-Justinianic Roman law. Nevertheless, these contributions alone seem hardly able to justify the excitement the discovery caused. Instead, I think that the Verona Gaius discovery simply hit a chord in the literary and legal community much the same as did the discovery of the Rosetta Stone or of Schliemann’s Troy. Here was a monument of a great civilization brought newly to light and able to be read for the first time in millenia. And just as the Rosetta Stone helped to establish the modern discipline of Egyptology and Schliemann's discoveries assured the development of classical archaeology as a modern academic discipline, the discovery of the Verona Gaius added to the attraction Roman law held for scholars and for lawyers, even amongst those who were not Romanists by profession. Ancillary to this, the discovery and publication of the Gaius manuscript also added to the fame of the two principals involved in the discovery, Niebuhr and Savigny. What this meant in the English-speaking world is that even those who could not or did not wish to read Savigny's technical works knew of him as one of the discoverers of the Gaius text. This fame itself may well have helped in spreading Savigny's legal and philosophical ideas, for, I would suggest, the Gaius "connection" may well have disposed people to read other of Savigny's writings, unconnected to the Gaius, because they were already familiar with his name.Another example of an English-speaking promoter of Savigny is Luther Stearns Cushing, a noted Boston lawyer who lectured on Roman law at the Harvard Law School in 1848-49 and again in 1851- 1852.Cushing published his lectures at Boston in 1854 under the title An Introduction to the Study of Roman Law. He devoted a full chapter to a description of the historical school and to the controversy betweenSavigny and Thibaut over codification. While Cushing attempted to portray fairly the arguments of both sides, he left no doubt as to his preference for Savigny's approach:The labors of the historical school have established an entirely new and distinct era in the study of the Roman jurisprudence; and though these writers cannot be said to have thrown their predecessors into the shade, it seems to be generally admitted, that almost every branch of the Roman law has received some important modification at their hands, and that a knowledge of their writings, to some extent, at least, is essentially necessary to its acquisition.译文(一)萨维尼和他的英美信徒们*M·H·豪弗里奇弗雷德里奇·卡尔·冯·萨维尼出身贵族，是一位出色的法律改革家，也是一位倡导重建德国教授协会的拥护者，还是历史法学派的创建人之一。
