(Time-) Travelling for Tragedies

The execution of Klaus Störtebeker

The CLHR is delighted to welcome its newest member, Dr Andrew J. Bell. Dr Bell joins us as a lecturer at the University of Bristol Law School from the Institute for European Tort Law in Vienna. His research focuses on the law of obligations, comparative law and – excitingly for us! – comparative legal history. Comparative legal history uses and combines comparative and historical analyses to gain new insights into the development of legal systems. Dr Bell introduces us to some of the travails and triumphs of the comparative legal historian below…

Though a newcomer to the Law School, I don’t want to discuss my journey to transfer here (a long tale of rescheduled Austrian Airlines flights and overfull cars trapped in motorway chaos), but instead a research trip a little earlier this year. Shortly before joining the School, I was fortunate enough, despite the coronavirus pandemic, to be afforded a research scholarship to support a stay in Hamburg for my comparative historical work – such stays are a vital form of undertaking for both comparatists and historians, and something obviously much-missed since the public health crisis began.

As matters transpired, legal history could feature prominently from the very start of the trip. I was disturbed constantly during my travel quarantine period in Germany by a Glockenspiel on the revivalist Kontorhaus building opposite my first hotel room; a Glockenspiel that daily depicts the executions of Klaus Störtebeker and his pirate crew (replete with swinging axe, toppling heads and bloodstains). Was this a morality tale for my personal improvement? A hardcore boast of a proud justice tradition? A threat of dire consequences if I breached my quarantine? After a week isolated in one room with temperamental internet connections and a view of little else, I could be sure of nothing.

The reason for subjecting myself to this, and the target of my stay research-wise, was work for a project on factual uncertainty and the law (also discussed previously elsewhere). One of my contributions to this project looks at commorientes problems – in simple terms, problems caused where inheritances depend on the uncertain sequence of multiple deaths which occur in some sense together – and required a trip to the Max Planck Institute for Comparative and International Private Law to access older and succession law-related materials not otherwise available to me.

The pandemic had long interrupted such stays at the Institute and, though now possible, the experience was somewhat different from the usual. Only a very small contingent of guest scholars, protected by a constant mask-mandate and weekly self-tests, were able to set up home in the ordinarily bustling reading rooms and ‘Café Max’, and to whistle through the basement library stacks. Inevitably, this sadly reduced the available opportunities for engagement with international colleagues, and the less comfortable set-up added an extra pressure to the always-frenetic experience of brief but valuable access to others’ libraries and archives.

So, what did the nets drag from Hamburg’s deep? Did the bounty justify the expedition? Well, I found a great deal of nineteenth and early twentieth-century material otherwise missing from my researches, which has all proved invaluable. In particular, a largely unexpected, surprisingly rich vein of interesting French case reports emerged within that. Doctrinal study in other systems can often involve less case-law work and thus less engagement with the human side of the law, but comparative historians enjoy a little more leeway – opening up cases demonstrating the real life of the doctrinal law, but also offering juicy hints of the real human lives beneath. In one report in the Gazette du Palais in 1889, for example, a horrifying triple-murder during the night of 16 March 1887 casts light on the awkward framing and effects of commorientes rules, but also seems to entail a scurrilous family secret.

The householder Marie Regnault had designated a child living with the maid in her house, Marie-Louise Gremeret (12 years), to inherit as her universal legatee. The French Civil Code’s provisions of the time (then arts 720-722) stipulated a presumption for uncertain cases favouring the survival of an adult over a minor but, critically, these rules contained an (unusual and very restrictive) limitation requiring that each deceased had a claim by the general law (not merely by will) to inherit of the other. The rules could not apply for these two; it appeared (but read on…) they were unrelated, with the elder out of kindness or some other motive favouring the child in her house. This increased pressure for an extended, somewhat gory breakdown of the facts and medical background, which ultimately determined that Regnault was likely attacked and killed 7-10 minutes before Marie-Louise, who could thus inherit. So far so workable-but-unseemly.

Less clear was whether collateral relatives of the third victim, the maid Anne Gremeret, could inherit this money; this could be so if they inherited as relatives and successors of Marie-Louise directly, or as successors to Anne, depending on survivorship and inheritance as between Anne and Marie-Louise themselves. The grisly facts on the ground did not reliably suggest whether the maid Gremeret or child Gremeret died first, but surely the presumptions would step in with mother and child? Despite first impressions, the elder Gremeret never acknowledged herself as or appeared to be the biological mother of the child living with her, given her name and, oh so oddly, favoured by her employer. The French courts usually applied their already-restrictive commorientes rules very strictly in any event, and with no clear relationship at law to make the two ‘Gremerets’ mutual heirs, the maid’s family could not benefit from the statutory presumption (nor inherit directly from Marie-Louise, of course) and were to receive no money. The succession of the child with mysterious parentage was vacant.

If the ‘Gremerets’ were in truth related, this seems an ugly technicality; if not, it seems to save the Regnault estate from the clutches of an all-but-random family – after all, preferring the child does not mean our testator ever wished the child’s extended family to benefit. But does the result match the true intentions of Marie Regnault when instituting the young Marie-Louise as her legatee? We can only speculate where the rules and the records left no space to interrogate the true relationships here.

Other, less intimate tragedies also inevitably surfaced as part of the work of identifying rare incidents and discussions of these niche rules – from the 1902 eruption of Mt. Pelée on Martinique to a catastrophic fire at a packed Ringtheater in Vienna – which all made for slightly surreal and dark reading in an unusually quiet and socially-distanced setting. Mercifully, virus case incidence rates plummeted towards the end of my stay and the Hamburg sun started to shine more frequently, allowing for a little more normality to resume outside of the stacks.

Especially when dealing with very particular rules for unusual cases, travel is a vital weapon in the comparative historian’s armoury, and many of us love nothing more than hunting out dusty texts in the dark basements of foreign lands. Luckily, careful investment in funding and travel applications can secure us these treasures across the seas without risking the fate of the doomed Captain Störtebeker.

Andrew J. Bell

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