Emilie Kempin-Spiry, Die Rechtsquellen der Gliedstaaten und Territorien der Vereinigten Staaten von Amerika: Mit vornehmlicher Berücksichtigung des bürgerlichen Rechts, Zurich, 1892, reprinted 2013, 78 pages
[The sources of law in the States and the Territories of the United States of America, with specific reference to civil law]
a) Background
Emilie Kempin Spyri is a pioneering woman in law in Switzerland, on the European continent and in the United States as well. She has taught and written about english and American law as a major focus of her qacademic career. She had been forgotten in Switzerland for many years and caught renewed attention of certain academic disciplines at the University of Zurich in the past 20 years.
She finally was recognized, honoured and given her due place in the history of Swiss academic and professional education in law. The legal science was the last to recognize if at all, the substance and importance of the work of Emily Kempin Spyri. The doctorate thesis of Marianne Delfosse, Emily Kempin-Spyri (1853 – 1909), Das Wirken der ersten Schweizer Juristin, unter besonderer Berücksichtigung ihres Einsatzes für die Rechte der Frau im Schweizerischen und Deutschen Privatrecht, (Emily Kempin-Spyri (1853 – 1909) – The work and the life oft he first Swiss woman lawyer, Zurich, 1994) is the exception.
We make a contribution in this Anthology to redress this record from a perspective of law and legal sciences by identifying the courses taught and the texts written by Emilie Kempin-Spyri. Both dealt with American law to a surprising extent.. Law and legal culture often lives from the discovery in other disciplines than law such as literature. Emily Kempin-Spyri was brought to the attention to a larger public by Evelyn Hasler’s novel, Flying with wings of wax, originally published in 1991 as Die Wachsflügelfrau, in Zurich and published in English in 1993 in New York. The novel describes the life, the biography, the efforts in law and legal institutions of Emily Kempin-Spyri (text 2.33). This is another case (see text 2.10 Blaise Cendrars, Gold, with respect to Johann August Sutter) where concepts and perspectives of the discipline of “law and literature” to become relevant in legal culture.
Emily Kempin-Spyris life and work belongs in this part of the Anthology on the Americanization of Swiss law and legal culture for specific reasons. Emilie Kempin-Spyri early has taught at the University of Zürich – this is not known to a broader public – on subjects of anglo-american law. She has written her habilitation thesis, she held her Probelektion and her Antrittsvorlesung on laws and institutions of American law. She for a number of years emigrated to New York and pioneered legal education of women in a private school, which later was integrated in the program of a law school. The early encounter with American law and this direct dealing with legal institutions on American soll needs to be viewed in context of Emilie Kempin-Spyri’s biography.
Emilie Kempin-Spyri was the first woman in Switzerland to graduate with a law degree and to be accepted as an academic lecturer at a Swiss University. However, as a woman she was not permitted to practice as an attorney based upon a decision of the Swiss Federal Tribunal.
Therefore she emigrated to New York, where she audited classes in a Law School and established Law College for woman herself. Emilie Kempin-Spyri was married and had three children. Only when she was 30, helped by her husband and other private lessons, she made up for the matura examination, which allowed her to start studying at the University of Zurich. She was matriculated at the University of Zurich in 1883 as the first Swiss woman lawyer. In 1887 she was graduated as first woman in Europe. The Federal Tribunal refused to let her represent her husband in a legal proceeding. After that she was also rejected as a lecturer at the University of Zurich. She emigrated to New York and founded with the help of local women a womens law college. Due to home sickness of her husband, she returned with the children to Switzerland. In 1891 she made a renewed application for acceptance as a lecturer at the University of Zurich. Although the University Senate again declined the application, she received a Venia Legendi (the right to lecture) from the Department of Education of the Canton of Zurich as an exception. Dissapointed, Emilie Kempin-Spyri emigrated to Berlin, where she was involved in matters of family law in the German Civil Code and in matters of political rights of women. She became ill and was confined in a psychiatric clinic in Berlin, then transferred to Basel; her wish to be transferred to the clinic Burghölzli in Zurich was denied. She died at the age of 46 impoverished and alone. The confinement to a psychiatric clinic nowadays is contested. Her death has been noted in Vienna and mentioned in the famous publication of Karl Kraus “Die Fackel” where Karl Kraus or a collaborator wrote an eulogy.
As said, Emily Kempin-Spyri from early on had contacts and taught on anglo-saxon law.
A list of her lectures in the Archives of the University of Zürich reads as follows: ss (summer semester) 1892 Roman Civil Procedure, ss 1892 institutions of English law, ws (winter semester) 1892 English-American civil procedure and its relationship to international legal affairs, ss 1893 Roman legal history until Augustus, ws 1893 comparative excursions on British and continental European law, based upon the English reading of Blackstone’s Commentaries on the Laws of England, ss 1894 English history of law, ws 1894 comparative law of modern legislations on marriage, ss 1895 institutions of English law, ws 1895 German and English private law from a comparative perspective, ss 1896 English legal history, ss 1896 family law from a perspective of legal philosophy.
With the exception of the recently newly edited text at hand, which appeared in an English publishing issue, there do not exist any published and reprinted texts at this moment of time; publically accessible in Switzerland is only one text in the University Library of Zurich. The editor found a speech on the future of the woman in family law. The list of publications in the book of Marianne Delfosse, on pages XIV following shows the existence of more publications which Emily Kempin Spyri had written and which were at the time published. For the purpose of this part of this Anthology, we list the following publications on topics of American Law:
Die Kartellgesetzgebung in den Vereinigten Staaten (the antitrust law of the United States), in Handels-Museum, 16. Juli 1892, Wien, p. 317 – 320, Das System des Englischen Rechts mit Rücksicht auf die trusts, (the System of English la was regards to trusts) in Die Zeitschrift für internationales Privat- und Strafrecht, 5. Heft 1879, Leipzig, p 330 – 436, Die Haftung des Verkäufers einer fremden Sache (the liability of the seller of a property of a third person), doctor thesis University of Zurich, 1897, the text at hand Die Rechtsquellen der Gliedstaaten und Territorien der Vereinigten Staaten von Amerika, Quellen mit vornehmlicher Berücksichtigung des bürgerlichen Rechts (The sources of law of the States and the Territories of America with special reference to Civil Law), 1892, 87 pages, Der heutige Stand der Rechtswissenschaft in den Vereinigten Staaten von Nordamerika(The present state of legal science in the United States of North America) , presentation, at the meeting of the Juristische Gesellschaft in Berlin, 9. Mai 1991, in 33. Jahresbreicht über die Wirksamkeit der juristischen Gesellschaft zu Berlin in den Vereinsjahren 1891-1982, 1892 p. 18-24, Die amerikanischen Trusts (The American trusts) in: Archiv für bürgerliches Recht, Berlin 1893, Volume 7, p. 355 – 365 and Deutsch und Amerikanische Vermögensrechte der Ehe (The German and American marital property rights) in Die Nation, Wochenschrift für Politik, Volkswirtschaft und Literatur, 1897, p. 781-784. Those publications originally were published in legal journals and are not accessible in Switzerland nowadays.
b) Summary
The text at hand was found in the Law Library of Harvard Law School. The text is a reprint in “The Modern Law and Print Editions, reprinted in 2013, making a specific reference to the library of Harvard Law School. Further research with the help of Professor Urs Gasser of Harvard Law School and Director of the Berkman Center of Society and of the Internet shows that all the publications of Emilie Kempin-Spyri mentioned, according to the Hollis retrieval system of Harvard University still are and can be found at Harvard Law Library today. Harvard Law Library is said to have acquired at times every text published in the world and to have had the reputation as the largest private law library in the United States, to be the best place to write a doctorate thesis on Swiss Law.
The text at hand is the habilitation thesis of Emilie Kempin Spyri. It has been published in Zürich in 1982 by the publishing house Orell Füssli, which still exists today. On the cover the author Emilie Kempin-Spyri is described as “Doktor beider Rechte der Universität Zürich, Docent der Rechtswissenschaft an der Universität der Stadt New York, Professor für gerichtliche Medizin am New York Medical College and Hospital for Women.“
The text is 72 pages long. The foreword states, that the developments in law in the States of the American Union, are in a state of transition, and therefore makes the access for foreign lawyers to the sources of the laws of the individual States very difficult. The text states the various sources of law. According to the foreword, the text tries to make to European scientists those sources accessible and to help to give to the practitioners guidance in the variety of legal relationships between the two continents. Besides the technical difficulties the author limits the selection of sources in order to avoid a much more extensive publication. The foreword cites the legal sources for this overview and identifies law firms, who have provided assistance in the research in New Orleans, Austin, Texas, Raleigh, North Carolina, Oxford, Mississippi, Louisville, Kentucky, Jacksonville, Florida and Seattle, Washington. The foreword is signed Zürich (Switzerland) in August 1891.
The text is a detailed overview of die Rechtsquellen im Allgemeinen. (the sources of law in general) Divided by ungeschriebenes Recht (unwritten law) and Geschriebens Recht (written law). The text characterizes the state of the accessibility and publication on the laws of various States. The text in Die Rechtsquellen in den einzelnen Staaten, (the sources of law of the particular States), describes the sources in 1. Nördliche Staaten (northern states), New Hampshire, Massachusetts, Maine, Vermont, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, Ohio, Indiana, Illinois, Michigan, Wisconsin, Iowa, Minnesota, Kansas, Nebraska. In 2. Mittelstaaten (central States) Maryland, Delaware, Virginia, West-Virginia, North-Virginia, Kentucky, , Tennesseem Missouri. And in part 3. Westliche Staaten (western States) California, Oregon, Nevada, Colorado, Washington, South and North Dakota, Idaho, Montana, Wyoming and Utah. In 4. Südliche Staaten (southern States) South Carolina, Georgia, Alabama, Mississipi, Florida, Louisiana, New Mexico and Arizona.
The text further deals with the sources of law under 3. The Indian Territory. It contains lists of publications of the Federal Courts.
The asymmetry of knowledge on the laws of the States of the United States at the time of the publication is striking, if one accounts for the present knowledge on the internet in a view through the rear mirror of a comparative. Emilie Kempin Spyri was the early and pioneering Swiss lawyer in private law trying to grasp the legal system of the United States before the end of the 19th century. She obviously had performed the research for this work in the United States as well.
The editor reminds the reader and user of the work Das nordamerikanische Bundesstaatsrecht verglichen mit den politischen Institutionen der Schweiz (a monograph comparing the North-American Swiss constitutional law) by Johann Jakob Rüttimann, a professor of law at the Federal Institute of Technology and the University of Zurich 20-30 years before Emilie Kempin-Spyris studying and teaching at the University of Zurich. (see text 2.31).
The editor is grateful to Professor Urs Gasserm Harvard Law School, for veryfing the presence of the texts of Emilie Kempin-Spyri in the Library of Harvard Law School.