LEGISLATION.

The word Legislation is used in two senses; the one ancient, the other comparatively modern. In its ancient and most ordinary acceptation, it comprehends the science of law, as law ought to be; explaining the principles from which law should be universally derived, and also the rule to be observed in the application of those principles to particular countries. In its much more recent and restricted sense, it is made to represent as much of the contents of the municipal laws of a country, and as much only, as is created immediately by the supreme authority, acting in its legislative capacity. In either case, it is equally distinguished from the several meanings which have, at different times, been given by the majority of writers, to the word Jurisprudence. For instance, the science of legislation (or what law ought to be) is carefully separated by Mr Austin, in his Province of Jurisprudence, from the science of jurisprudence (or the qualities which are common to all laws,—what law therefore is, and must be), which it was the characteristic object of Mr Austin’s lectures to interpret. Again, legislation, in both of the above senses,— whether used as meaning the science of perfect laws, or as descriptive of that portion of the body of any law which has emanated from the legislature itself,—is manifestly a very different subject from the jurisprudence (prudentia juris) of the Romans. In their written wisdom, jurisprudence was understood in its more primitive acceptation; in the meaning, in short, which with most persons and for most purposes it still retains, namely, that of a general and scientific knowledge of the laws, whatever they may be. There is a third and later meaning of jurisprudence, in which it is narrowed down to the usage of the courts. This application of it is of French invention, having been manufactured by them, in technical opposition to an equally peculiar construction which they had put upon the word legislation. This was done with the view of distinguishing between the positive letter of the codes (termed “legislation Française”) and judicial decisions; which latter division of their laws they consequently thought fit specially to characterize by the name of jurisprudence. It is plain, therefore, that upon most occasions, legislation and jurisprudence will mean different things. But, on comparing legislation in the first and usual sense, as above mentioned, with the description of natural or universal jurisprudence, as copied in a succeeding paragraph from Adam Smith, it will appear that, until we come to the modifications introduced by particular legislation, these two sciences are substantially the same.

Man by the very constitution of his nature is social, and society supposes government. Investigations into the origin of government (as, for instance, whether, at its commencement, it was patriarchal or military) are amongst the creditable amusements of conjectural philosophy. But they are amusements only, when compared with practical criticisms on the form and the spirit of particular political institutions, or with the higher reasonings by which the true principles of a sound constitutional system are developed and determined. All political institutions are artificial constructions, admitting of great variety. But they may be brought under one or other of two comprehensive classes; since, in whatever hands the supreme authority of a state is lodged, it must be founded either on the partial interests of certain individuals, more or less numerous, or on the general interest of the whole community. According to which of these classes a government may happen to belong, there will be considerable difference in the aspect and object of its legislation; but from the moment one or two are gathered together into a society, their most pressing necessity is that of ascertaining or making the laws upon which the social interests of its members are henceforward to depend.

The universal elements of the science of legislation would seem to be sufficiently simple. Depending on the nature of things and of man, it may be thought there could be no mistake. Unfortunately, the history of the human race has not been so reasonable and so straightforward. It was late before the nature and condition of man, either as an individual or as a member of society, were analysed, with the view of determining the choice between opposite means of happiness, or of ascertaining the rules of justice. In process of time most of these questions were settled more or less rudely by the respective societies, without much consultation amongst each other. It was still later before the thought occurred of forming into a general system the common principles which all nations might be expected to adopt. Barbarism and sophistry had had such long possession, and had so confused and complicated the subject, that to discover these common principles is the great, and indeed arduous object of philosophical legislation.

Looking at legislation with the help of philosophy and history, it is evident that its uniformity has always been, and must always continue to be, disturbed by two causes, to a certain degree independent of each other. These are, the form of government, and the state of civilization. The contemporary tendency and character of laws will vary [7:13:167]with the frame and nature of the political organization which has been employed in their manufacture. Much more will they vary with (as in truth the substance of them is necessarily derived from) the condition physical and moral, the intelligence and the public virtue, of each particular community.

The rules of municipal law are “in general intended,” says Adam Smith, “to coincide with those of natural justice. It does not indeed always happen that they do so in every instance. Sometimes what is called the constitution of the state, that is, the interest of the government, sometimes the interest of particular orders of men who tyrannize the government, warps the positive laws of the country from what natural justice would prescribe. In some countries the rudeness and barbarism of the people hinder the natural sentiments of justice from arriving at that accuracy and precision which, in more civilized nations, they naturally attain to. Their laws are, like their manners, gross, and rude, and undistinguishing. In other countries the unfortunate constitution of their courts of judicature hinders any regular system of jurisprudence from ever establishing itself among them, though the improved manners of the people may be such as would admit of the most accurate. In no country do the decisions of positive law coincide exactly, in every case, with the rules which the natural sense of justice would dictate.” The extent to which he conceived these aberrations to have proceeded appears in another passage. Speaking of the civil and criminal law of particular countries, he observes, “the principles upon which those rules either are or ought to be founded, are the subject of a particular science, of all sciences by far the most important, but hitherto perhaps the least cultivated,— that of natural jurisprudence.” Adam Smith calls the work of Grotius not only the first, but “as yet the most complete,” on this subject. The legislative writings of Mr Bentham (which have no necessary connection with his theory of morals) will form an equal era.

Robert Hall observed of Mr Bentham, that “in the particular province of his speculations, the science of legislation, he had advanced the limits of reason; and that if he were compelled to legislate for the world upon uninspired principles, he should take Bentham, and go from state to state with as firm a step as though he walked upon a pavement of adamant.” Had this eminent preacher given as much attention to law as to divinity, he would have seen that some further deduction should be made from this unlimited panegyric. There are striking warnings scattered over Mr Bentham’s treatises upon legislation, of the respect due to both the disturbing causes above mentioned. But the general effect left, both by die matter and manner of his writings, upon most minds, is on one important point (that of domestic legislation) inconsistent with the forbearance and caution which he otherwise inculcates. For instance, an ardent disciple, impregnated with his principles, might be induced to alter the laws of his own country at once too suddenly and too far, and, when the alteration was made, to err equally in inferring that it was made for ever. Yet Mr Bentham was fully aware of the nature of the limitations and variations by which his general theory ought to be accommodated to practice. An express dissertation on the influence of time and place on subjects of legislation is set apart to the solution of the problem, how, the best laws being given, the legislator ought to modify them according to temporary and local considerations? There is nothing to add to his observations and admissions on the necessary effector change of place, with reference to the propriety of transplanting laws from one people to another. He saw the difficulty of English lawmaking for India. But a great deal, we think, is wanting in his sketch of the probable effect of Change of time in preventing the same laws from being equally suited to distant generations of the same people. He restricts this effect to the constitutional code, excluding almost entirely the civil and criminal codes from its operation. Montesquieu’s Spirit of Laws, and the Treatise on Legislation by Μ. Comte, are excellent repertories of the principal facts by which travellers have established the variety that exists amongst the families of the human species scattered over the globe. The differences between the extreme limits of our common nature (to which differences all rational legislation will conform) are indeed immense. It was in this point of view that Burke received the lessons contained in Dr Robertson’s History of America, and felt their application to all who have to take part in the government of man. The British statesman has acknowledged his obligations to the historian of the new world, in language which those of his countrymen who are bent on judging of all institutions by their own standard, and on assimilating all nations to themselves, would do well to recollect. “I have always thought that we possess at this time very great advantages towards the knowledge of human nature. We need no longer go to history to trace it in all stages and periods. History, from its comparative youth, is but a poor instructor. When the Egyptians called the Greeks children in antiquities, we may well call them children; and so we may call all those nations which were able to trace the progress of society only within their own limits. But now the great map of mankind is unrolled at once, and there is no state or gradation of barbarism, and no mode of refinement, which we have not at the same moment under our view: the very different civility of Europe and of China; the barbarism of Persia and of Abyssinia; the erratic manners of Tartary and of Arabia; the savage state of North America and of New Zealand.”

All this is very true, and yet a given race may be no more a fixed quantity (the proper subject of an identical legislation) than the human species itself. The historian of the old world has not, owing to the effect of lapse of time, his evidence as accessible as was the case with the historian of the new, in respect of a removal from one hemisphere to another. It should be observed, however, that it happened in the instance of the natives of America, that both the causes were at work. As to the extent of the changes wrought by time in the condition and character of the same nation, whilst dwelling on the same soil, nobody can doubt. And the legislators of successive periods must notice and follow out these changes, upon principles precisely similar to the precautions by which transplanted legislation is controlled. No greater suffering can be inflicted on a progressive people, than by the attempt at constructing immutable laws on the supposition of this partial immutability of nature. A system of uniformity and contraction which might fix for ages, as in a mould, some strangely stationary races (the Jews, the Medes and Persians, or the Chinese), must have been torture to the Greeks even of Sparta. If the Twelve Tables had been the perfection of appropriate legislation in the age of the Decemvirs, there can be no question but that Justinian’s Institute was more in harmony with the contemporaries of Tribonian. It is probable that the Koran may not have been, even from the first, the best possible system for the followers of Mahommed. Supposing it to have been so, it is very certain that, through every change of circumstance, it could not remain the best for their descendants. Instead of stipulating, like the Locrians, that the man who at any time proposed a new law, should do so with a halter round his neck, when Locke undertook to legislate for Carolina, it was on the understanding that his laws were to be revised at the expiration of a hundred [7:13:168]years. At the present moment, in all those moral and social qualities with which the law is concerned, the Hindu is not much more remote from the European than the actual generation of artificial Englishmen is separated from the Anglo-Saxon hordes, whom, nevertheless, they represent, in blood, in language, and in soil. Adam Smith is for putting a more extended meaning than Bentham and De Tracy will allow, on the celebrated saying of Solon, that he had given the Athenians, if not the best laws, the best that they could bear. We should say indeed that we know of no such thing as an abstract best in positive legislation. Best for them, is in their case best. To ascertain Mr Bentham’s opinion, however, on this, as on other subjects, the whole body of his writings must be taken together. Otherwise, on looking at his personal ambition for becoming the legislator of almost every nation under heaven, and at his hypothesis, that no person was likely to legislate for a country so well as a stranger, it might be inferred, that he was disposed too hastily to pull down or to overleap the great partition-wall of national distinctions. In the same manner, the prospect on the effect of time, so narrow in the chapter alluded to, is elsewhere enlarged, until it embraces every distant contingency we could desire. Mr Bentham is aware that a periodical revision of its provisions will be a necessary supplement to a code. He was apparently unconscious of the property of accommodation which the admirers of the common law have discovered in its popular and malleable nature. So, in his first letter to Mr Madison, in 1811, after observing that the common law was nothing but “an ideal and shapeless mass of merely conjectural and essentially uncognoscible matter,” he proceeds to complain of it as unfitted to our actual wants: “Law, which being, in so far as it could be said to be made, made at a multitude of successive periods, and for the use and governance of so many different generations of men,—men imbued with notions, habituated to modes of life, differing more or less widely from each other, as well as from those which have place at present,—would, even had it been well adapted to the circumstances and exigencies of the times in which its parts came respectively into existence, have, to a considerable degree, been thereby rendered, not the better adapted, but by so much the worse adapted, to the notions and manners now prevalent, to the state of things at present in existence.” Admissions more extensive than these as to the vast alterations which the quiet hand of time, passing over the body of the laws and the character and condition of a people, must necessarily produce, severing them from each other wider and wider, even modern English law-makers, who are never easy but when tinkering at an act of parliament, could not possibly require.

The word law, in its proper and original sense, carries with it the notion of a superior. This intimation of supremacy is the principal quality conveyed in the widest definition of law, namely, “the expression of a will by a command.” In this point of view the authoritative interposition of conscience enables moralists who adopt the theory of conscience to speak with perfect correctness of the law of morals. In their mouth it is no metaphor. What is the nature of the will, or of the command which may be coupled with the law, is an entirely distinct consideration. A frequent source of misconception (that of false analogies) would have been avoided, if writers had more carefully separated the several meanings in which the word law is used. Above all, there are two meanings, between which it is important to discriminate; one in which the difference consists in the subject of the laws, the other in their author. The first division is formed by the distinction between matter and the mixed human constitution,—between the passiveness and uniformity of matter, and the free agency and the consequent variableness of imperfect man. Hence originates the complete disseveration of those laws of the material world, which simply represent what is, from the laws of the moral world, which represent what ought to be. The laws of the material world are physical phenomena stated in a general proposition. The occurrence of a single exception would disprove the law. The laws of ethics, although really derived from and dependent upon human nature, presuppose a moral assumption with which the facts are to coincide. Accordingly, they will continue equally to be the laws of our moral being, even whilst they are violated every day. The second division is formed by the distinction between a perfect and imperfect legislator: between the legislative attributes of God and the legislative attributes of man. If Montesquieu had observed the first of these divisions, he probably would not have put in apposition so many different senses of the word law as are used in the following sentence, nor have left his readers to infer that the same word on these several occasions meant always the same thing: “The Deity has his laws: the material world its laws: intelligences superior to man their laws: the brutes their laws: man his laws.” Attention to the second division would have protected Blackstone from quoting the description given by Cicero of the law of nature or morals as synonymous with that of positive or municipal law.^[1. Blackstone, 44, 122. ] Speaking of municipal law, he has made the fact of law or no law depend upon its nature. According to the latter member of his definition, there can be no such thing as a bad municipal law; for he defines it to be “the rule of civil conduct prescribed by the supreme authority in the state, commanding what is right, and prohibiting what is wrong? The consequence of so fallacious a proposition at the threshold, has been just what might have been expected. A mischievous confusion between particular and general jurisprudence pervades and perverts the whole of his elementary chapter. An assertion of this kind is unfortunately contradicted at once by the experience of great portions of mankind. A particular law, issuing from the supreme authority of the state, does not cease to be the law within the territories of that state, as long as the supreme authority is strong enough to enforce it, although it should command what is wrong, and prohibit what is right. Nevertheless, a lawgiver approaches to perfection only in proportion as he succeeds in his attempts to realize the other attributes of God; the attributes of goodness and of wisdom, as well as the coarser attribute of power. Goodness is wanted in order to supply general rectitude of intention; wisdom, in order to estimate the value of every specific end, and the aptitude of the means. A government with good intentions will propose for its object the happiness of the governed. But a government must be wise as well ,as good to enable it to discover the precise measures by which this object will be most effectually promoted.

One of the principal provisions of what is called constitutional law is, to organize such a system of electoral legislation as will return to the legislature a representative body, so identified in interest with the people as almost to guarantee rectitude in their intention. The wisdom of their measures will be in proportion to the statesmanlike knowledge of the individual members of whom the legislature is composed; their personal attainments being combined with and helped out by the knowledge of the persons whom they may happen to consult. It is improbable, for many reasons, that a legislature, and more especially a popular legislature, should at all times, or even at [7:13:169]any time, possess a competent degree of knowledge wholly within itself. But there are no limits to the assistance from without which the supreme authority of a state has always at command. It need not be afraid of asking for advice. The doctrine of its supremacy can want no farther recognition than that it should keep the ultimate sanction and revision of the laws in its own hands. In this wayit may accomplish much by means of foreign assistance. But if a legislative assembly is to have the full benefit of the ability of its own members, it must proceed, by a proper division of legislative labour, to distribute the work which it reserves for its own body, into appropriate departments. A prudent distribution of labour, although indispensable for preparing and digesting the materials, will not be enough. The deliberative assembly must, by well-considered regulations, secure the freedom and order of its own discussions. This done, no further condition regarding mere arrangements can be required, than that skilful draughtsmen should be called in for the mechanical operation of putting the meaning of the legislature into becoming form and language. The criminal laws of all countries, and even the civil laws of some, proceed upon the hard (although, in the first of these cases at least, the indispensable) presumption, ignorantia legis neminem excusat. It is clearly, therefore, an act of bare justice to the inhabitants of every country, first, that its laws should, as far as possible, be drawn up in such a manner as to be capable, with due attention on the part of sensible persons, of being correctly and completely understood; and next, after being made intelligible, that by due promulgation they should be made known.

Amongst ourselves, the proceedings of the British parliament have forced the attention of thinking men, and must, sooner or later, force the attention of the public, upon these latter topics. One of our wants has been ably stated by Mr Wickens, in “an argument for more of the division of labour in civil life in this country.” The height to which the grievance has grown can never be more strongly signified than in the extravagance of the suggestions which the late Sir John Sinclair made for its redress. The truth is, that the supreme legislature, or British parliament, occasionally troubles itself about many things which do not properly fall within the province of government at all. For the province of government has been properly defined to be “that of promoting the happiness of the community associated under it, by such measures as cannot be undertaken by individuals, or subordinate associations for themselves, or cannot be undertaken with equal advantage.”^[2. See on this point the Rationale of Political Representation, by the author of Essays on the Formation of Opinions. ] But, on our present system, we employ a steam-engine to crack nuts. We are frequently seen wasting the whole powers of the council of the nation over questions of a partial or local nature, with which (supposing them to be within the province of government) the supreme legislature at all events ought not to have interfered. These are the hundred minor matters which never came before the legislature until comparatively recent days; and which would have been in every way infinitely better disposed of, if they had been left to the discretion of subordinate jurisdictions, subject only to the supremacy of the state. With respect to such general measures as it is necessary to reserve, in the first instance, to the discretion of the supreme authority itself, it is equally clear that its work would be often done with incomparably greater ease and efficiency by a more prudent division and application of its force.

On this head, Mr Symonds, in a very judicious work entitled The Mechanics of Law-making, intended for the use of Legislators, and all other persons concerned in the making and understanding of English Laws, observes, that “in the progress of invention, schemers often discover new principles, that are fruitless, for the want of mechanical knowledge or skill to develope them in some tangible form. So our legislators often dream wisely, and talk after the fashion of their dreams; but, from ignorance and want of skill in the workmanship of details, which they leave to the routine performance of mere artisans, they seldom succeed in giving to the people a law intelligible either to themselves or the persons for whose especial guidance the law was designed. The beauty of a piece of mechanism is shown in the completeness of all its parts, and their combined action towards one grand general result. There is nothing excessive, nothing wanting. Each part has its special use, and is indispensable. Apply these principles to the English laws, what are they? The clumsiest pieces of workmanship which the unskilled labour of man ever made.” “Our laws are written on different methods by different persons. Even those which should be, as the single act of the legislature, corresponding in spirit, structure, and terms, to other acts of the same body, are often antagonist to each other. The statutes of a single session contain every variety of anomaly that can be embraced in that species of composition. This must be the case till the legislature shall appoint persons to draw or revise all laws; to couch them in an uniform expression; or, at least, to take care that there be no difference in form where the substance is the same. If the time should ever arrive when our legislature shall, in its wisdom, determine on the adoption of such an expedient, it would be necessary that it should be preceded by a statute of directions, governing the arrangement, style, and character of our acts of parliament.” Many enactments, which by their subject ought to be, and might be, perfectly accessible to the people at large, are made exclusive matters of professional knowledge, by the want of method, and by the exuberant phraseology in which the sense of almost all enactments is lost at present. Were the substance of parliamentary legislation as good as possible, its value would be infinitely lessened to us by the statd’ in which it is issued to the world. The English statute-book is a vast jungle of technical tautology. The remonstrances of the late Lord Colchester, as far back as 1797, and the improved example of America, have hitherto been made in vain. Notwithstanding the criticism of Mr Miller in his right-minded book on the civil law, upon the precipitancy with which bills are hurried through the House; notwithstanding the suggestions and the specimens towards an amendment in the plan and language of our enactments, published ten years ago by Mr Uniacke and Mr Twiss; the statutory system of 1835 is shown to be just as bad as that of 1830. The impolicy and insufficiency of the principal arrangements of our legislation can of course be satisfactorily met only by corresponding changes. The following propositions are made by Mr Symonds, as comprising, in his opinion, the very minimum of what is necessary for any adequate reform. “There shall be some individual or individuals employed in the preparation of the information connected with every proposed new law, before it is formally proposed to the House; that the information so prepared should be submitted to a committee, who should report on the state of the matter, with a view to guide the House as to its further determination; that if the law should be determined upon, it should pass the usual stages of proceeding, being, however, before the second and third readings, reported upon by an officer charged with the verbal revision of its terms; that the law being passed, the heads of [7:13:170]the department of the executive to which it relates, and other heads to be appointed specifically for the functions of public instruction, the administration of the law, religion, and justice, should superintend the promulgation and operation of such law; for which purpose, all questions arising upon it should be reported to such chief officer, by a regular body of reporters, attached to the courts of justice, and by the law officers of departments, where the matter should be determined upon by petition or memorial, without appeal to the courts of justice. There being a systematic report of all questions arising in the courts on each branch of the law, and fixed committees of the legislature to report upon such questions, the work of amendment would follow as of course. It would not be safe to omit "any one of these parts of the machinery. They should all exist, acting in connection with each other, not for a season only, but throughout all time. The efficiency of the machine depends on its wholeness and permanence.” From the absence of all counteracting provisions of this description, parliamentary legislation has fallen into such disorder, that the excellence of the regulations long ago adopted by the House of Commons, for securing the freedom and order of its deliberations, yield comparatively imperfect fruits. The wisdom of these regulations has been pointed out by Mr Bentham, with his usual comprehensiveness and minuteness, in his searching notice “upon the tactics of legislative assemblies.” To use a humble illustration, there may be no fault to find either in the market or in the kitchen; the victuals may be good and the cookery excellent; yet the dinner may be spoiled by the dishing up, by the vessels into which it is put, and the manner in which it is served at table.

A good redaction of laws is absolutely essential to their working well. Therefore, if the above censure of the English system of parliamentary legislation were only sufficiently near the truth to be even a plausible account of it, it would be pretty clear that there is no necessary connection between a representative government and a judicious method of framing laws. But the objection, as stated, principally applies to the mode in which this description of business is transacted in parliament, and to the form into which the results are thrown. Will the experience of English legislation, however, justify an observer in confining his criticisms within these bounds? Quite the contrary. It is equally clear, from the nature of the case and from experience, that a popular assembly, unless it adopt systematic arrangements for its guidance (somewhat similar to those suggested by Mr Symonds), must fall as far short in its competence∙to undertake the substance of some, at least, of its principal duties; for instance, the greatest of all,—the civil and criminal law,— with a view to their character and . their improvement. With regard to its superintendence of the criminal law, the following was Blackstone’s account of the matter as it stood in his day, and he was a writer not likely to exclaim without provocation. “The enacting of penalties, to which a whole nation should be subject, ouglrt not to be left as a matter of indifference to the passions or interests of a few, who, upon temporary motives, may prefer or support such a bill, but be calmly and maturely considered by persons who know what provisions the laws have already made to remedy the mischief complained of, who can from experience foresee the probable consequences of those which are now proposed, and who will judge without passion or prejudice how adequate they are to the evil. It is never usual in the House of Peers even to read a private bill which may affect the property of an individual, without first referring it to some of the learned judges, and hearing their report thereon. And surely equal precaution is necessary when laws are to be established which may affect the property, the liberty, and perhaps even the lives of thousands. Had such a reference taken place, it is impossible that in the eighteenth century it could ever have been made a capital crime to break down (however maliciously) the mound of a fish-pond, whereby any fish shall escape, or to cut down a cherry-tree in an orchard. Were even a committee appointed but once in a hundred years to revise the criminal law, it could not have continued to this hour a felony, without benefit of clergy, to be seen for one month in the company of persons who call themselves or are called Egyptians.” “It is a melancholy truth, that among the variety of actions which men are liable to commit, no less than an hundred and sixty have been declared by act of parliament to be felonies without benefit of clergy, or, in other words, to be worthy of instant death.” Things have changed a little in this respect since Blackstone wrote. But in the way in which the change has taken place, nothing has transpired to affect the inference which Blackstone’s language more than intimates to his reader. The inference can be nothing short of this: that a popular assembly is qualified neither morally nor intellectually for the responsible office of fixing the criminal law. Supposing it to be incompetent to the comparatively easy task of criminal legislation, the function of settling the principles and the detail of the civil law must, in the nature of things, he still further beyond the sphere of its capacity. The civil laws of all countries have been, up to a certain point, more early established than the criminal; they strike their roots far deeper into the most intimate interests and relations of private life; they are complicated with the authority of precedents and the subtlety of refinements, such as do not enter at all into the plain and palpable objects of criminal provisions. They are accordingly everywhere vastly more voluminous. This is the spirit of the explanation given by the Chancellor d’Aguesseau, in his Mistakes on Law, on the disproportion which exists both in the digest and the code, between the space appropriated to private and to public law. Out of fifty books of the Digest, more than forty are given up to the former. If a popular assembly cannot move the lesser weight, it is not likely to intermeddle satisfactorily with the greater. The consequence is, that whatever reforms of any importance have taken or are taking place in England in either of these the principal departments of the law, they are altogether owing to the labours either of individuals or of commissions. A survey of the legal history of other countries corroborates the results of our experience at home. On comparing the state of the civil or criminal laws of two countries, the merit of their systems will not be found to vary directly as their freedom. On many occasions the interposition of a numerous assembly only retards and spoils. The operation is too scientific and delicate a one for popular hands. Bentham says expressly, that he undertook what is generally considered as the greatest of all his writings, that he might show that the tissue of laws, easy to be torn and difficult to be repaired, should not be delivered over to rash and ignorant workmen. In this point of view, arbitrary rulers have considerable facilities for prompt and extensive legislation; and, within the limits to which the above comparison is restricted, they have no temptation to abuse their advantages. Hardly any government can be conceived, in which the interest of the governors and of the governed does not for the most part coincide. When the most absolute governments go wrong concerning them, it is not for want of will to go right, but from the want of knowing better. If this be the case, and nevertheless a far greater amount of happiness be found, upon the whole, amongst free communities, of what vast importance to mankind are the inspiriting questions of constitutional law, and how inestimable are the health and animation breathed into a society by the very air of freedom. The public have to [7:13:171]pay dearly for the pleasure which’ servile politicians may derive from the foolish couplet of the poet:

For forms of government let fools contest: Whate’er is best administered is best.

The cause of truth, however, has much to lose and nothing to gain by any exaggeration. The zeal, therefore, of writers who attribute too much to the influence of government, is to be not less deprecated than the sophisms of others who attribute to it too little. Thus far is certain, that allowing the principal sources of human happiness to be naturally independent of all legislatures, and that, therefore, but little happiness can be directly originated by a government, its means for doing evil are immense. A good government, then, has this incalculable advantage; it protects the natural sources of human happiness from the invasion of others, and abstains from invading themitself. Half-truths are made whole falsehoods by precipitate generalizations. A comprehensive consideration of the proper objects, and of the effective capabilities of legislation, would have prevented the opposite errors; that of a depreciating despondency, as well as that of extravagant expectations. Living in England, Dr Johnson underrated the importance of the difference between institutions and laws of one kind or another. He saw that, compared with other sources of enjoyment, they were productive of but little immediate good; and he appears to have consequently inferred that they could also be productive but of little evil. On the other hand, Filangieri, living at Naples, was a daily witness of the infinite misery arising out of mis-government. He seems to have consequently supposed that legislatures had the power of creating prosperity and happiness in the same proportion. This account of the matter, although probably the true solution of the particular contradiction which we are noticing, stops short of the point at which the principal difference between the two classes of government will be most marked; their good faith in the execution of their laws. Laws cannot execute themselves. Therefore, whatever may be the comparative merit of two systems upon paper, it may be taken for granted that, if the one contains constitutional guarantees which are wanting in the other, there will be all the difference in the world in their practical results. It is certain that no government can long continue to be well administered, the good administration of which is not protected by guarantees. As far, therefore, as the very substance of the law is concerned, political arrangements for this purpose are indispensable conditions to the truth of Dr Paley’s conclusion, “that that people, government, and constitution is the freest which makes the best provision for the enacting of expedient and salutary laws.”

But the substance of the laws is not the only object of national legislation. A thing of still greater consequence is the spirit and character of the people. Civil liberty, however explained, is not sufficient of itself. There is great difference amongst jurists as to the proper meaning of the expression, civil liberty. If Mackintosh (on the correction of the phrase 7«« gentium for that of jus inter gentes) could reasonably doubt whether that particular innovation in a scientific term was one of those which repaid us, by its superior precision, for the uncertainty and confusion which the change occasioned, the same doubt must apply much more strongly in the present instance. It is not only important for the science of legislation, that a term supposed by many to imply its principal object,—but it is important, with a view to our vulgar and daily practice, that a term which is popularly used as the test of good government,—should be uniformly understood. Mr Austin has latterly defined civil liberty (and the language of Destutt de Tracy comes to the same thing) to be, “the liberty from legal obligation which is left or granted by a sovereign government to its own subjects.” (Province of Jurisprudence, p. 279.) Thus, comparing two communities with each other, he would say that the degree in which they respectively enjoyed civil liberty depended upon their comparative freedom from legal restraint. According to this definition, it might happen that, in consequence of the absence of prudent restraints, the community which enjoyed the highest degree of civil liberty would on that very account be in possession of the worst government. On the other hand, the definition given by Paley (which agrees with that of Blackstone, and with the common understanding of the word), declares civil liberty to be “the not being restrained by any law but what conduces in a greater degree to the public welfare.” Here civil liberty is distinguished from natural liberty, that is, from the mere absence of restraint, by being considered as that portion of natural liberty which, under the supposed circumstances, ought to be sanctioned by the law, and recognised by a just society, as constituting the social rights of all its members. Civil liberty is thus made synonymous with good government. On comparing two communities together, they may be subjected to very different degrees of restraint, and nevertheless may be in the equal enjoyment of civil liberty. All that, for this purpose, is required, is that, in the two cases, the different degrees of restraint which are respectively imposed shall conduce in the same proportion to the public welfare. It is very difficult (notwithstanding the explanation by Sir David Evans in his preface to the collection of the statutes) to extract a consistent sense out of Justinian’s well-known definition. Blackstone, by mistranslatingywí into justice, instead of law, and by leaving out the word vi, made it the authority for the definition, which he himself gave, and of which we have just been speaking. The words are, naturalis facultas ejus quod cuique facere libet, nisi quid vi aut jure prohibetur. That is, according to the translation of Blackstone, civil liberty consists in doing what you like, unless you are hindered justly or unjustly. So far all is certain. The paragraph in the Institute cannot .have been meant to coincide with that into which Blackstone has tortured it. Were it not for the word νi, it might be supposed to mean the same with Mr Austin. But it appears to us, that its authors have attempted to compress more into this celebrated definition than it could possibly hold. Hence the dilemma. One of the conflicting words must be given up; and then the species of liberty which is defined will depend upon the word which is retained. If vis is retained, it will be a definition of natural liberty; if jus, of civil. Whatever construction is given to naturalis (and the whole definition is put in opposition to that of slavery imposedywre gentium), naturalis facultas must be used in two senses, and not in one, before vis and jus can be equally exceptions to it. Civil liberty, in all senses in which the term has ever been mentioned, is compatible with acts of vis, or illegal violence. Accordingly, Montesquieu’s interpretation (for it is apparently intended as such) of Justinian discards this alternative, and admits only of the exception made by the law. “La liberté est le droit de faire tout ce que les ioix permettent” (droit ought to be pouvoir or moyens, sc. facultas). Again, “La liberté est le gouvernement dont on jouit.” In the Manchester debate, Lord Plunkett defended what had taken place, on the authority of a similar construction of the passage in Justinian. According to this notion of civil liberty, on comparing two communities together, the degree of it which they respectively enjoy will not depend upon the degree in which their respective freedom of action is left absolutely unrestrained, nor upon the proportion which may be observed between private restraint and public advantage, but will turn On the single question, which of the two governments is succeeding best in the complete and faithful administration of its actual laws. Thus liberty and law become the same thing, and this without any reference to the quality of the laws.
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Of these conflicting definitions, it will be readily acknowledged that the intermediate one,—that by which civil liberty and good government are synonymous,—is the only one which can be properly considered as the principal end of legislation. Sir James Mackintosh, in his Discourse on the Law of Nature and Nations, expresses and justifies it with his usual truth of principle, and with more than his usual precision of language. The security of which man in society has need, is, it must be remembered, twofold; security against wrong from individuals, as well as from the government itself. “The description of liberty which seems most comprehensive, is that of security against wrong. Liberty is, therefore, the object of all government. Men are more free under every government, even the most imperfect, than they would be if it were possible for them to exist without any government at all: they are more secure from wrong, more undisturbed in the exercise of their natural powers, and therefore more free, even in the most obvious and grossest sense of the word, than if they were altogether unprotected against injury from one another.” Now, as all unnecessary restraint imposed by government is a wrong, and as all individual restraint is unnecessary, unless an equivalent is obtained by it for the general advantage of society, all restraints which are unaccompanied by this advantage, are so many deductions from civil liberty. But, on the other hand, a restraint, by means of which we gain more in our personal freedom from the check put upon others (not to say sometimes upon ourselves), than we lose from being ourselves restrained to the same extent, leaves a balance of free agency in our favour, and becomes a part of civil liberty properly understood.

As long as political liberty is wanting, the written letter of civil liberty may indeed exist, but it will exist comparatively spiritless and fruitless. Experience has shown that the sense of security and of independence is no less essential to the advancement of society than to the comfort of individuals. Filangieri, having treated, in his Science of Legislation, of the causes of the decay of Spanish greatness, anticipates a similar declension of the power of England. B. Constant, commenting upon the passage in question, is far from professing any very decided opinion in favour of the general superiority of English legislation, But he attributes the decay of Spain to the truer reason; to the perpetual pressure of a government, which ground down the national intelligence, and which, in order to have nothing to fear from its subjects, kept them in apathy, and paralysed their powers. B. Constant proceeds with the other side of the picture. He was writing in 1822. “For the proof of this, we have only to look at England. We shall find there commercial laws not less absurd, not less vexatious, not less unjust. We shall see in the massacres of the Catholics, especially in Ireland, and in the execrable regulations which reduce all that portion of the Irish people to the condition of Helots, a pendant to the persecution and almost to the banishment of the Moors; and yet England has remained in the first rank among the nations. The reason is, that the political institutions, the parliamentary discussions, the liberty of the press, which England has uninterruptedly enjoyed for more than a hundred years, have counterbalanced the vices of her laws and of her government. Her inhabitants have maintained their energy of character, because they have not been disinherited of their participation in the administration of public affairs. This participation, although almost imaginary, gives her citizens a feeling of importance, which keeps their moral life in action ,∙ and England, governed, with few exceptions, since the time of Sir Robert Walpole, by Machiavellian ministers, and represented by a corrupt parliament, has nevertheless retained the language, the habits, and many of the advantages of freedom.”

It is an important object in the organic structure of the legislative authority, that it should be compelled as much as possible to keep in the position, and be conversant with the views of legislation only; that, having legislated, it should be, as it were, functus officio, and that the interpretation and execution of its laws should thenceforth be transferred to other departments of the state. In this consists one of the main advantages of a mixed or constitutional government. It not only affords the opportunity,—it almost creates a necessity,—for separating the exercise of the legislative, judicial, and executive authorities from one another. Notwithstanding the classical immortality conceded to Minos, Lycurgus, and Solon,—Mr Bentham, who could have no prejudice in favour of chambers over individuals as legislators, says, that he cannot discover in antiquity the traces of any true knowledge concerning legislation. It seems impossible that the Greeks should have had any knowledge on the subject, whether as to the organization of a legislature, or the principles of law, which should not have been communicated to the Romans. But what in this respect was the history of Rome throughout all the period concerning which the history of Rome is usually thought to be worth reading? With the genius, which the military and administrative masters of the world ultimately exhibited as its law-makers, it seems quite extraordinary that the personal application of their legislative intelligence to their own affairs should have been so long in growing. Cicero, boasting of the perfection of the Twelve Tables, and of the short time which it took to learn the Roman law, never seems to have been aware that this account of it was a symptom of its deficiencies, just as would be the case with a boasting Turkish cadi at the present day. The few lines in which the philosophical Tacitus dismisses the mass of laws which by his time had accumulated upon the practitioner and the public to an unmanageable bulk, are as severe a satire as a more laboured commentary. Professing to turn aside to the principles of Roman jurisprudence, and to the methods by which Rome had reached its infinite multitude and variety of laws, he conveys to the reader his deliberate opinion, that the Twelve Tables were the finis aequi juris, and that they comprehended whatever was really just and valuable in Roman law. “The laws which followed, although sometimes directed against wrong-doers, were generally passed by violence, either through the dissension of the orders, or for the sake of gaining unlawful honours, or in order to expel distinguished men, or for some other disgraceful object.” This was no peculiar fancy taken up by Tacitus for the sake of throwing one of his Caravaggio-shadows over the picture. The popular Livy, too, who loved to see and to paint every thing brightly, finds equally in these ancient records the fountain of public and private law. Up to the time of Cicero, what could be the actual laws of Rome or the Roman world, when he appealed (fremant licet) to these Twelve Tables as the pillars of Hercules, which civil philosophy could never hope to pass? So much for the legislation of the Roman Republic, and for lamentations over what the world has lost in lessons of legal wisdom (at least up to the age of Tacitus) by the negligence or the treachery of Tribonian. What is called the age of its classical jurisprudence visited the Roman law at last. By the time of Papinian and Ulpian, the various other sources from which the laws of every country must always be more or less derived, had sent forth such abundant streams, that Tribonian and his colleagues had nothing to do but choose amongst them from what waters they should fill that imperishable reservoir at which all future generations were to come and drink. Had the Roman constitution made a juster arrangement of the three great political powers, it is improbable that so much of its laws should have had to be sought for in these in [7:13:173]direct channels. And, in that case, it would have been impossible that the period of their being brought together and united in one majestic body should have been deferred so long. But there is another consideration, of still greater consequence to contemporary generations than even the formation of a system of jurisprudence. In that case, it would have been equally impossible, that a hundredth part of the injustice, whether legislative, judicial, or executive, with which Roman history swarms, should ever have been committed. The Romans as a nation seem to have remained for ages incapable of discerning the fundamental difference between a legislative and a judicial act. It is a distinction upon which the English constitution is founded, and is carefully described by a great master in politics. “A legislative act has no reference to any rule but these two, original justice, and discretionary application. Therefore it can give rights— rights where no rights existed before; and it can take away rights where they were before established. For the law, which binds all others, does not, and cannot, bind the law-maker; he, and he alone, is above the law. But a judge, a person exercising a judicial capacity, is neither to apply to original justice, nor to a discretionary application of it. He goes to justice and discretion only at second hand, and through the medium of some superiors. He is to work neither upon his opinion of the one nor of the other; but upon a fixed rule, of which he has not the making, but singly and solely the application to the case.” (Burke, vol. X. p. 66.) He adds, addressing the House of Commons on the case of Mr Wilkes, in the Middlesex election: “In our legislative capacity we are in most instances esteemed a very wise body. In our judicial we have no credit, no character, at all.” Μ. Comte, we perceive, admits the pre-eminence of England upon questions of legislation. The authority, it is true, of the English parliament as representing the public weal, has acted throughout all English history like a charm. Should it be doubted whether the legislative reputation of parliament stands at present quite so high with the English public as Burke imagines it to have stood in 1771, there can be no doubt but that its judicial reputation continues quite as low. But in this, as in other cases, a disorder is half cured when its cause is known. It was the misfortune of the Roman government, owing to the confusion in which the exercise of all authorities was mixed up together under it, that there were not always the means, in point of fact, and there was never any sound and recognised principle of law to appeal to, as a test distinguishing between them.

The study of the science otlegislation is the noblest of all studies. The art of applying this science to the practical necessities of mankind is the noblest of all professions. Nothing can more tend to fill the understanding and elevate the spirit of a human being. Every legislator, to be worthy of his office, ought to have a high idea of its dignity. He should think it is his duty to learn the boundaries of the science, and to master the criteria which determine what is contained in and what excluded from it. Its legitimate province is so immense that no single intelligence can be capable of cultivating and commanding the whole of it. Different individuals will be guided by appropriate considerations, private and public, respecting the special departments they particularly select. But whether the department be easy or laborious, one or many, the spirit and the principles by which its legislation ought to be conducted will be the same. The previous know-edge of the general nature of his subject, which is for this purpose required of a statesman, is not to be picked up in a day. Members of society, one and all, stand, with regard to the body of which they are parts, in two opposite relations; and they are entitled to demand that their joint and several interests in both relations should be measured and respected. It is their right, on the one hand, that no restraint shall be imposed upon any individual, but what will contribute in a greater degree to the public welfare. It is not less their undoubted right, on the other hand, that whenever a restraint will so contribute, it shall be forthwith imposed upon all. If unnecessary restraints are so much wanton destruction of human happiness, the omission or relaxation of necessary restraints may be no less fatal. They expose to wanton injury the means of happiness, which the law ought to protect, and they’compel the party injured to seek out the imperfect remedies of irregular and barbarous times, and to carve out for himself the reparation which the law refuses. To draw lines of this description justly, is the work of great observation and profound philosophy combined. What investigations does it not require on the nature of property. We need only allude to the controversy between Grotius and Selden, on the famous question of the freedom of the seas; and to the absence of all principle in the unsatisfactory regulations respecting animals, called ferae naturae, in the laws as well of France as of England and America. What discrimination does it not require in marking the subtile limits by which, in the case of a hundred rights and duties, morals are separated from law. Principles and examples of this, kind are to be found in abundance in the great writers upon duty and natural jurisprudence.^[3. Bishop Sanderson’s Sermons, 2Ĵ4; Jeremy Taylor, vol. i. 241; On Obligation and Relaxation of Human Laws, vol. xiíi. 230; Traité de Legislation, vol. i. 93. ] In the legislation of every country—certainly in that of England—there are many instances of some actions being made cognizable by law which more properly belong to morals; and of others being left to morals, which ought to be brought under the penalty of the law. A due examination into the boundaries of morals and law can scarcely fail to inspire becoming caution wherever there is a chance of opposite laws being brought into collision with each other. Occasions may easily be conceived when a man will be called upon to perform an action which shall place him within the concentric circles of the several jurisdictions of the divine law, the law of morals, the law of honour, the law of nations, and the law of the land. If these several laws, acting with their respective sanctions, concur in the line of duty which they require of him, all is well. Wo to him if they should pull in opposite directions. A government is answerable for the lives and consciences of men, whenever, without an absolute necessity, it drives its subjects to this terrible alternative.

The following passage is taken from Burke’s tract on the Irish popery laws. No argument that human wisdom can devise would prove more forcibly the wickedness of legislating against the law of morals,—that is, against the paramount principles of human nature,—than that a political reasoner like Burke should have been so maddened by the contradiction, as to find there the legal evidence by which municipal laws are annulled, instead of the moral authority by which they are resisted, “The true weakness and opprobrium of our best general constitutions is, that they cannot provide beneficially for every particular case, and thus fill, adequately to their intentions, the circle of universal justice. But where the principle is faulty, the erroneous part of the law is the beneficial, and justice only finds refuge in those holes and corners which had escaped the sagacity and inquisition of the legislator. The happiness or misery of multitudes can never be a thing indifferent. A law against the ma-jórity[7:13:174] of the people is in substance a law against the people itself: its extent determines its invalidity; it even changes its character as it enlarges its operation; it is not particular injustice, but general oppression; and can no longer be considered as a private hardship, which might be borne, but spreads and grows up into the unfortunate importance of a national calamity. Now, as a law directed against the mass of the nation has not the nature of a reasonable institution, so neither has it the authority; for in all forms of government the people is the true legislator; and whether the immediate and instrumental cause of the law be a single person or many, the remote and efficient cause is the consent of the people, either actual or implied; and such consent is absolutely necessary to its validity. To the solid establishment of every law two things are essentially requisite; first, a proper and sufficient human power to declare and modify the matter of the law; and, next, such a fit and equitable constitution as they have a right to declare and render binding. With regard to the first requisite, the human authority, it is their judgment they give up, not their right. The people, indeed, are presumed to consent to whatever the legislature ordains for their benefit; and they are to acquiesce in it, though they do not clearly see into the propriety of the means by which they are conducted to that desirable end. This they owe as an act of homage and just deference to a reason which the necessity of government has made superior to their own. But though the means, and indeed the nature, of a public advantage, may not always be evident to the understanding of the subject, no one is so gross and stupid as not to distinguish between a benefit and an injury. No one can imagine, then, that an exclusion of a great body of men, not from favours, privileges, and trusts, but from the common advantages of society, can ever be a thing intended for their good, or can ever be ratified by any implied consent of theirs. If, therefore, at least an implied human consent is necessary to the existence of a law, such a constitution cannot in propriety be a law at all. But if we could suppose that such a ratification was made, not virtually, but actually, by the people, not representatively, but even collectively, still it would be null and void. They have no right to make a law prejudicial to the whole community, even though the delinquents, in making such an act, should be themselves the chief sufferers by it; because it would bemade against the principle of a superior law, which it is not in the power of any community, or of the whole race of man, to alter, —1 mean the will of Him who gave us our nature, and, in giving, impressed an invariable law upon it. It would be hard to point out any error more truly Subversive of all the order and beauty, of all the peace and happiness, of human society, than the position that any body of men have a right to make what laws they please; or that laws can derive any authority from their institution merely, and independent of the quality of the subject-matter. No arguments of policy, reason of state, or preservation of the constitution, can be pleaded in favour of such a practice. They may indeed impeach the frame of that constitution, but can never touch this immoveable principle. This seems to be indeed the doctrine which Hobbes broached in the last century, and which was then so frequently and so ably refuted. Cicero exclaims with the utmost indignation and contempt against such a notion (de Legibus, lib. i. 15, 16); he considers it not only as unworthy of a philosopher, but of an illiterate peasant; that of all things this was the most truly absurd to fancy, that the rule of justice was to be taken from the constitutions of commonwealths, or that laws derived their authority from the statutes of the people, the edicts of princes, or the decrees of judges. If it be admitted that it is not the black letter and the king’s arms that make the law, we are to look for it elsewhere. In reality, there are two, and only two, foundations of law; and they are both of them conditions, without which nothing can give it any force ; I mean equity and utility. With respect to the former, it grows out of the great rule of equality, which is grounded upon our common nature, and which Philo, with equal propriety and beauty, calls the mother of justice. All human laws are, properly speaking, only declaratory; they may alter the mode and application, but have no power whatever over the substance, of original justice. The other foundation of law, which is utility, must be understood, not of partial or limited, but of general and public utility, connected in the same matter with, and derived directly from, our rational nature; for any other utility may be the utility of a robber, but cannot be that of a citizen; the interest of the domestic enemy, and not that of a member of the commonwealth. This present equality can never be the foundation of statutes, which create an artificial difference between men, as the laws before us do, in order to induce a consequential inequality in the distribution of justice. Law is a mode of human action respecting society, and must be governed by the same rules of equity which govern every private action; and so Tully considers it, in his Offices, as the only utility agreeable to that nature. Unurn debet esse omnibus prepositum, ut eadem sit utilitas uniuscujusque, et universorum ; quam si ad se quisque rapiat dissolvetur omnis humana consortio.” It is no wonder that this kind of conflict between opposite laws of distinct authority which outraged Burke, should have also misled Blackstone. Locke, On the Extent of the Legislative Power, equally denies the moral right to legalize injustice; and Hooker the same; but Locke afterwards (vol. ii. p. 250), in his letter on toleration, shows that he is aware that the rectification of a similar abuse of power is to be sought for in the field of battle, not in a court of justice. “What if the magistrate believe that he has ä right to make such laws, and that they are for the public good, and his subjects believe the contrary? Who shall be judge between them? 1 answer, God alone. There are two sorts of contests among men, the one managed by law, the other by force; and these are of that nature, that, where the one ends, the other always begins.”

But there is as little excuse for some of the contradictions which subsist between the positive laws of different nations. Most of them might be removed by a judicious comparative legislation. In this point of view, it is highly desirable that the independent states, which constitute the great commonwealth of the civilized world, should make a rational concordance of those chapters of their municipal laws, in which the subjects of all must, from their intercourse with each other, have a common interest. Mr Justice Story has done much towards opening the way both to the end and to the means, in his Commentaries on the Conflict of Laws in regard to Contracts, Hights, and Remedies, and especially in regard to Marriages, Divorces, Wills, Successions, and Judgments. The state of things by which a couple are married or unmarried, according as they may happen to be in France, Scotland, or England, is hardly less monstrous than the contradictory title which, on the doctrine of a double allegiance, England and America, for instance, may set up to the obedience of the very same individual,—each being ready to enforce its legal title by the extreme sanction of the law. England is likely to have the honour of leading the way on one subject. Mr Justice Story elsewhere observes on the predominance which the system of commercial law, as established in England, is obtaining over the world; and anticipates that Europe has nearly arrived at the point when the same commercial principles will form part of the public law of all its sovereignties. If, in the last generation, Lord Mansfield acquired this honour for [7:13:175]his country and for himself, whilst dealing with and conciliating the gracious interests growing up from out of the civilizing intercourse of peace, Lord Stowell has in our own time derived an equal glory from out of the calamities and injuries of war. Foreigners, looking on upon the just and liberal jurisprudence administered in his prize-courts, have thought it not too much to call him the ornament, not of his “own age or country only, but of all ages and all countries; the intrepid supporter equally of neutral and belligerent rights; the pure and spotless magistrate of nations.”

The mischief arising from intemperate and ignorant enactments makes it of great importance to fix accurately, in every case, the true limits of prudent legislation. Thus, the sphere of mischief is railed in; and thus also a legislator may more easily learn the extent of the knowledge which he has to acquire, and of the responsibility which he incurs. From the mode in which Burke’s political maxims are scattered about in the different parts of his voluminous writings, as the occasion happened to call them forth, the greater and more philosophical portion of them are not so stedfastly recollected by the public as must have been the case if they had been incorporated and presented in a more systematic form. Having occasion to restate the principles expressed by Burke, it would, however, be great injustice to the reader to express them in other words. “It is,” says he, “one of the finest problems in legislation, and what has often engaged my thoughts whilst I followed that profession, i what the state ought to take upon itself to direct by the public wisdom, and what it ought to leave, with as little interference as possible, to individual discretion.’ Nothing, certainly, can be laid down on the subject that will not admit of exceptions, many permanent, some occasional. But the clearest line of distinction which I could draw, whilst I had my chalk to draw any line, was this,—that the state ought to confine itself to what regards the state, or the creatures of the state, namely, the exterior establishment of its religion; its magistracy; its revenue; its military force by sea and land; the corporations that owe their existence to its fiat; in a word, to every thing that is truly and properly public; to the public peace, to the public safety, to the public order, to the public prosperity. In its preventive police it ought to be sparing of its effects, and to employ means, rather few, unfrequent, and strong, than many and frequent, and of course (as they multiply their puny politic race, and dwindle) small and feeble. Statesmen who know themselves will, with the dignity which belongs to wisdom, proceed only in this, the superior orb and first mover of their duty, steadily, vigilantly, severely, courageously; whatever remains will, in a manner, provide for itself. But as they descend from a state to a province, from a province to a parish, and from a parish to a private house, they go on, accelerated in their fall. They cannot do the lower duty ; and in proportion as they try it, they will certainly fail in the higher. They ought to know the different departments of things; what belongs to laws, and what manners alone can regulate. To these, great politicians may give a leaning, but they cannot give a law. Our legislature has fallen into this fault, as well as other governments; all have fallen into it more or less.” ’

A great deal is here excluded. Much of what the Puritans legislated for instantly on their arrival in New England; much of that on which the imperial parliament of Great Britain is often unwisely called upon to legislate at present; for example, amongst other things, for the better observation of the Sabbath. Quite enough, however, is left for the most industrious and intrepid statesman. The discussion of the questions which Burke reckons truly legislative, instead of being disposed of in the few paragraphs of a summary, would occupy each a volume by itself. Besides, whatever may be the precise subject on which a legislator may be engaged, he should always remember that there is that sympathy and connection between the several parts, even of the most irregular system, that he can never be safe in dealing with any specialty or fragment of it unless he knows something also of the rest, or knows at least the general bearings of the divisions which adjoin.

In a view of legislation, however cursory, it would be unpardonable to omit the outline sketched by the masterly hand of one who was certainly the greatest and the wisest (and we believe very far from the meanest) of mankind. What a treasure for all ages, had but the outline been filled up by his weighty sentences, and with his capacious views. “For the more public part of government, which is laws, I think good to note only one déficience: which is, that all those which have written of laws, have written either as philosophers or as lawyers, and none as statesmen. As for the philosophers, they make imaginary laws for imaginary commonwealths, and their discourses are as the stars which give little light, because they are so high. For the lawyers, they write according to the states where they live, what is received law, and not what ought to be law; for the wisdom of a law-maker is one, and of a lawyer is another. For there are in nature certain fountains of justice, whence all civil laws are derived but as streams; and like as waters do take tinctures and tastes from the soils through which they run, so do civil laws vary according to the regions and governments where they are planted, though they proceed from the same fountains. Again, the wisdom of a law-maker consisteth not only in a platform of justice, but in the application thereof, taking into consideration by what means laws may be made certain, and what are the causes and remedies of the doubtfulness and uncertainty of law; by what means laws may be made apt and easy to be executed, and what are the impediments and remedies in the execution of laws; what influence laws touching private right of meum and tuurn have into the public state, and how they are to be made apt and agreeable; how laws are to be penned and delivered, whether in texts or in acts, brief or large, with preambles or without; how they are to be pruned and reformed from time to time, and what is the best means to keep them from being too vast in volumes, or too full of multiplicity and crossness; how they are to be expounded, when upon causes emergent, and judicially discussed; and when upon responses and conferences touching general points or questions, how they are to be pressed, rigorously or tenderly; how they are to be mitigated by equity and good conscience; and whether discretion and strict law is to be mingled in the same courts, or kept apart in several courts. Again, how the practice, profession, and erudition of law is to be censured and governed, and many other points touching the administration and (as I may term it) animation of laws.”^[4. The Advancement of Learning. ]

We have no very great respect for what are called fundamental laws. We do not share in the want of confidence which they imply in the wisdom and virtue of posterity; which wisdom and virtue, when once wanting, a mere paper constitution can do nothing to supply. They are, we are convinced, far more likely in most cases to retard the progress of a country for the future, than to secure in perpetuity, or for a day, the possession of those advantages which have already been obtained. At the same time there are a few leading principles in politics pretty well settled. And if bills of rights, charters, and constitutions, [7:13:176] confined themselves to these, as much good perhaps as harm might accompany the declaration of them. But the particularity to which the constitutions of some of the American states have descended is ridiculous now, and may be mischievous hereafter. For this it is sufficient to refer to the commentaries of Chancellor Kent. Few countries have sought to tie up the body of their civil and criminal laws in leading-strings of this description. Laws of this class (except in rare instances of occasional presumption) are respected as great problems, on which mankind may as yet have much to learn, and which therefore had best be left open for whatever improvements time and discussion may suggest. With regard to them, therefore, we will premise a few very general directions. They may well claim to be approached in the spirit both of a philosopher and an historian.

1. On approaching the subject, a reflecting person must perceive the necessity of laying out before him, in the first instance, as it were upon a map, the leading principles of general jurisprudence. What these are can only be learned from a patient analysis of human nature. Here Romagnosi and Comte call on him to observe the powerful tendencies of mankind, of which the law ought to be the express image. Here Bentham points out the anti-social passions which it is one of the first offices of the law to thwart and to subdue. Here come in Destutt de Tracy’s admissions, the more important in proportion as they appear reluctant and extorted, on the necessity of watching and picking out our way amongst the contradictions and infirmities of our imperfect nature. If it be true that the laws of nature exist anterior and superior to ours, —that what is fundamentally just is that which is in conformity with them, what is radically unjust is that which is opposed to them; and therefore that our laws, inasmuch as they are weaker and subsequent, should, in order to be good, be in harmony with these natural laws of greater antiquity and strength,—it is no less true, that the immediate feelings and opinions of considerable bodies of men often represent so ill the interests of the actual generation (those of the next often not at alD, that the real interests, even of the parties themselves, much more those of mankind, including the generations that come after, will be best promoted by their immediate feelings and opinions receiving a peremptory contradiction from the law. All that is wanted in any case, in justification of thus much of contradiction, is to suppose that the restraints are wisely placed, and that the members of the community in question, at least that part of them which is not incorrigible, are capable, like those of a well-regulated family, of accommodating their wills to the restraints. Destutt de Tracy agrees with Montesquieu, when Montesquieu is treating of the disadvantages of certain climates, in considering “that bad legislators are those who favour the vices of the climate; good, those who are opposed to them.” The maxim is equally true of all evil tendencies, however generated. And the problem to be solved is in every case the same; the cost of the opposition, and the probability of success. On the one hand, you must not expect too much, and enter upon a vain contest. On the other, you must not put up with miseries and scandals that a little vigour would remove. Connected with this part of the subject, or rather practical parts of it of the greatest nicety, are the two important questions; first, at what point in any given instance the predominance of personal or local peculiarities is so great as to overbalance the considerations upon which the general principle had been constructed; and, next, what are the cases where observation and reason can only show that it is necessary there should be some rule, but are not able clearly to discover what the rule should be. If man could be kept right in his body natural or politic by a few universal principles, the sciences of medicine and of legislation would be comparatively easy. But there is no limit to the modifications which the use of the most approved specifics may require; and the best statesmen are quite as well aware as the best physicians, that a knowledge of the constitutions of their patients is no less necessary than a knowledge of the theory of their respective arts. Before simplicity and uniformity can be merits, there must be simplicity and uniformity in the subject to which they relate. Now these are not among the characteristics of man. Accordingly, Bacon has directed the attention of lawgivers towards the particular exceptions to general jurisprudence which differences in regions and governments must always be introducing into the different systems of practical law. The conquerors of the East, whether ancient Greeks or modern Britons, have felt the obligation of respecting usages so originating. Mr Bentham feels this so strongly that, in indulgence to immemorial custom, he questions, for instance, our laws against infanticide in Cutch. Nothing is more to the credit of the discretion of our Indian government than the gradual measures by which they proceeded against suttees; measures, where every symptom and circumstance required to be watched as the experiment was going on, in order to ensure its success. A great portion of the rules of property are expedients in solution of the other dilemma. On the one hand, property exists everywhere; property, by law established. To ask, therefore, whether there should be such a thing as private property, is, in other words, to ask whether there should be such a thing as society. And if utility requires property as an institution, it equally requires that the conditions of it should be fixed by the only authority capable of fixing it,—the municipal law of the country where the question arises. On the other hand, an enumeration of the countless diversity of these conditions in different countries would cover pages. Some of them certainly might be drawn nearer to each other by the line of reason. But many are purely arbitrary, and must always remain so. Hume, towards the conclusion of his appendix on Farther Considerations with regard to Justice, explains (in a passage which Paley has enlarged) the slight analogies to which, in cases of this description, legislation must resort. “When natural reason points out no fixed view of public utility by which a controversy of .property can be decided, positive laws are often framed to supply its place, and direct the procedure of all courts of judicature. Where these two fail, as often happens, precedents are called for; and a former decision, though given itself without any sufficient reason, justly becomes a sufficient reason for a new decision. If direct laws and precedents be wanting, imperfect and indirect ones are brought in aid; and the controverted case is ranged under them, by analogical reasonings and comparisons, and similitudes and correspondences, which are often more fanciful than real. In general it may safely be affirmed, that jurisprudence is, in this respect, different from all the sciences; and that in many of its nicer questions, there cannot properly be said to be truth or falsehood on either side. If one pleader brings the case under any former law or precedent, by a refined analogy or comparison, the opposite pleader is riot at a loss to find an opposite analogy or comparison. And the preference given by the judge is often founded more on taste and imagination than on any solid argument. Public utility is the general object of all courts of judicature; and this utility, too, requires a stable rule in all controversies. But where several rules, nearly equal and indifferent, present themselves, it is a very slight turn of thought which fixes the decision in favour of either party.” If the well-known distinction between legislation and that part of the administration of justice the results of which we are learning to call jurisprudence had been present to the mind of the philosopher whilst he was writing the above paragraph, he would have perceived that he was de [7:13:177] scribing the course of the first, and not the second. Courts of justice may be driven to such resources by a necessity more or less imperative. Whenever they are so, the difference in this respect between their course in adjudicating upon questions which arise under the common law and those which arise upon the statute law is, at the most, only a difference in degree; and, in the two cases, their comparative authority was originally construed quite the reverse from what is usually understood’ at present. Nevertheless, in truth, the court must be always discharging, on these occasions, the office of a legislator, not a judge. In another part of his works, Hume notices the very delicate question, What are the degrees of relationship within which marriage ought not to be contracted? This is another of those cases in which philosophical jurisprudence can do no more than intimate the principle. “Love between the nearer relations is contrary to reason and public utility; but the precise point where we are to stop can scarcely be determined by natural reason, and is therefore a very proper subject for municipal law or custom. If the Athenians went a little too far on the one side, the canon law has surely pushed matters a great way into the other extreme.” On taking leave of the preliminary inquiry into general jurisprudence, it is no exaggeration to say that Mr Bentham was the first jurisconsult who ever applied, with any thing like adequate detail, a searching analysis of human nature to the elements of law. His catalogues of the pains and pleasures of which man is susceptible, have acted like a blister to the former plausible and superficial systems. With an analysis of this sort on their tables, an end has been put to those more ancient and contradictory catalogues of the laws of nature which bookish scholars so long invented at their pleasure. Had it existed earlier, we should not have had, for instance, Domat and Montesquieu at issue on the very principle of filial inheritance; Domat declaring that it is a law of nature that children should succeed to the property of their parents; Montesquieu, on the other hand, declaring that it is a law of nature that a parent should exercise his discretion.

2. After having settled his map of general jurisprudence on the common principles of human nature, a wise legislator will proceed to examine the legislation of the particular country for which he is about to legislate. This must lead him on every subject to a complete and correct view of the progress and actual condition of its law. Mr Bentham, in his Theory of Legislation, has treated history too much like an old Almanac. It is indeed the standard defect of his writings, that he seldom looks for help from any other understanding except his own. The sages of the English law, however, have every reason to be content with the value which he teaches the legal reformers of England to put upon their collected labours, “Traverse,” he observes, “the whole Continent of Europe; ransack all the libraries belonging to the jurisprudential system of the various political states; add the contents of all together, and you would not be able to compose a collection of cases equal in variety, in amplitude, in clearness of statement, in a word, in all points taken together, in instructiveness, to that which may be seen to be afforded by the collection of English Reports of adjudged Cases, on adding to them Abridgments and Treatises, by which a sort of order, such as it is, has been given to their contents.” (Papers Relative to Codification, 1817.)

3. The legislator ought in the next place to compare, on all points of importance, different systems of jurisprudence with each other. The necessity of this extended information on the part of the English legislature arises from even a higher duty than that of enlarging the sphere of philosophical induction. It is a direct necessity imposed on its members, by the fact that there is scarcely a species of law existing on the face of the earth which is not within the province of their immediate superintendence. “At this moment there are few of the systems of legislation, either of ancient or modern times, which are not in force as living law within the British empire. Menu and Mahommed decide the civil rights of the Hindu and the Mogul; and an appeal from India compels our privy councillors to consult the Koran and the Puranas as authorities at Whitehall. Justinian is obeyed by the courts of the Ionian republic. In the Norman isles, the severed portions of the domains of the conqueror, the barbaric custumal framed by his justiciars still guides the grand bailiff and the seneschal, who dispense the equity of Rollo, now forgotten in the hall of Rouen. Canada cherishes the volumes which have been cast forth from the palace of justice; and the legitimate representatives of the proud and learned presidents of the parliament of Paris, are found in the court-house of a colonial town. Banished from the flowery meadows of the Seine, the ordinances expounded by Saint Louis beneath the oak-tree at Vincennes constitute the tenures of lands on the Gulf of St Lawrence; and, whilst every vestige of feudality has been blotted out of the title-deeds of the European continent, it remains in full vigour in the wilds and wastes of the New World. In the opposite hemisphere, we bestow an equal protection on the codes of Napoleon; and it is possible that, in future ages, the speck of land, the Mauritius, in which they are now in force, may alone preserve the vestiges of the jurisprudence of the Great Empire. Our sovereign appoints his alcades and his corregidors in the Indies of Columbus; whilst his landrosts in Southern Africa are guided by the placets of the states-general of the departed republic of the Netherlands. The laws of king Christian of Denmark are administered by British authority in the torrid zone. And the deemsters assembled on the Tynwald of Man have not abandoned the polity of the sea-kings of Scandinavia. It is difficult to question the policy which first induced England to soothe her stranger subjects, by thus indulging them with the exercise of the laws which habit had rendered dear to them. But our legislators should now begin, slowly and cautiously, to assimilate the institutions of the dependencies to those of the mother country.”^[5. Edinburgh Review, vol. xxxvi. p. 288, Courts of Ancient English Common L<vto, attributed to Sir F. Palgrave. ]

4. Lastly, a legislator should be qualified, as far as possible, to refer the variations of different systems to their true causes, whether of climate, geographical peculiarities, state of civilization, political events, particular institutions, or of any other description.

There is no difference of opinion as to the reality of most of the variations just mentioned, or their causes. Those which it is the most important to dwell upon, because, being the most insensible, they run the greatest risk of being overlooked or underrated, are the changes by which, in the course of generations, the moral and intellectual identity of almost every nation is necessarily destroyed. In this manner the gradual amendment of the laws of a country should be the best part of the history of its progressive civilization. It ought to be consequent upon it, and to be the surest sign of it. Strangely opposite theories upon the transitiveness or stationariness of laws have been put forward in the discussions on codification. The fact, thus asserted on one side and denied on the other, seems to be regarded by some of the disputants as decisive of that particular controversy. This we conceive to be a most imprudent, and, what is more to the purpose, a most erroneous admission upon the part of the advocates of a code. The extent to which the fact of a gradual, and thus at last [7:13:178]an almost total, change in the moral and intellectual identity of a people, affects the value of a code, is a matter only of degree. The fact, if true, will certainly prevent a code from being framed, once and for ever. But it by no means follows that a code may not after all be a desirable compromise in the alternative of difficulties which the question of code or no code necessarily presents. It will only follow that it must be put up in moveable types, not in stereotype. If our extract from Savigny should be thought an exaggerated statement of the necessarily flexible and fluent character of nations, and of their laws, this statement is, in our opinion, much nearer the truth than any notion of immutability, even than that of an immutability liable to be broken in upon only by great occasions, such as Meyer apparently insinuates rather than positively affirms. “In the earliest times to which authentic history extends, the law will be found,” says Savigny, “to have already attained a fixed character, peculiar to the people, like their language, manners, and constitution. Nay, these phenomena have no separate existence; they are but the particular faculties and tendencies of an individual people, inseparably united in nature, and only wearing the semblance of distinct attributes to our view. That which binds them into one whole is the common conviction of the people, the kindred consciousness of an inward necessity, excluding all notion of an accidental and arbitrary origin. But these moral faculties require some bodily existence to fix them. Such, for language, is its constant uninterrupted use,—such, for the constitution, are palpable and public powers; but what supplies its place with regard to the law? In our times it is supplied by rules communicated by writing and word of mouth. This mode of fixation, however, presupposes a high degree of abstraction, and is therefore not practicable in early times. On the contrary, we then find symbolical acts universally employed where rights and duties were to be created or extinguished. These formal acts may be considered as the true grammar of law in this period. But this organic connection of law with the being and the character of the people, is also manifested in the progress of the times; and here again it may be compared with language. For law, as for language, there is no moment of absolute cessation; it is subject to the same movement and development as every other popular tendency; and this very development remains under the same law of inward necessity, as in its earliest stages. Law grows with the growth and strengthens with the strength of the people, and finally dies away as the nation loses its nationality. The sum, therefore, of this theory is, that all law is originally formed in the manner in which, in ordinary but not quite correct language, customary law is said to have been formed; that is, it is first developed by custom and popular faith, next by jurisprudence; everywhere therefore by internal, silently operating powers, not by the arbitrary will of a lawgiver.”^[6. Savigny on the Vocation of our Age for Legislation and Jurisprudence. ] Meyer, on the other hand, from the way in which he expresses himself, gives his readers to understand, that the elements of internal change in the habits of a people, to the degree even in which they influence its customary law, are nothing more than occasional exceptions. “Supposing,” says he, “all law to be introduced by usage, it would ensue that it was susceptible of variation when the difference of circumstances in which a nation finds itself, introduces a notable change in its necessities, that is, in its manner of existence. But there is no reason to conclude that a change of this kind is the necessary and immediate consequence of the ordinary alterations naturally resulting from the lapse of time. According to our manner of considering the subject, law, whether it is regarded as an emanation of human wisdom applied to given facts, or is looked upon as the result of the necessary combinations which a state of society introduces, must be unalterable, unless by reason of some important event, sufficient either to displace the facts to which the theory has been applied, or to destroy the usage. Custom is unalterable, or it would not be custom; resting on a series of similar facts, it excludes all idea of variation and constant flux. Beginning from the point at which uncertainty ceases, whatever remains stable (notwithstanding slight variations in the species which present themselves) is alone that which can be considered to constitute usage; just as the height of water is calculated by the line which it constantly draws, though one wave may rise above, and another may fall below. The main notion of a law always in movement, always in a course of improvement, and adapting itself to the demands of the moment, and which consequently can never be stationary or regarded from a settled point, is one of those vague conceptions which can only arise in minds pre-occupied by fallacious systems. Law, even customary law, is by its nature invariable and fixed, though capable of being changed when circumstances imperatively require it. But these changes, so far from being of the essence of law and custom, are, on the contrary, altogether exceptions; and it is impossible to have a precise idea of floating laws.”^[7. De la Codification en général, et de celle de l’Angleterre .en particulier. ] This is very unguarded language, quite unworthy of the author of the Institutions Judiciaires, and of the good sense and learning which characterize the work in which it appears. Of course, every effect, in the case of laws, as of other things, must have its cause, and that a sufficient one, although not always equally assignable; or it would not have taken place. As far, therefore, as man is unchangeable, such laws as have been once put in harmony with his nature, may be expected to be also unchangeable. But even the class of laws properly belonging to human nature is affected by many causes which produce little or no change in the visible^ wants and aspect of society; whilst the numerous other laws which follow the bidding of a government, or the temporary tendencies of juridical learning, must change as they change, and often from causes slight enough.

Foreign jurists, when most favourably disposed to English law, are nevertheless marvellously struck by the poverty and narrowness of most English law-books. Few of our legal writers have thought of any thing further than of compiling and classifying books of practice. Practising lawyers, for the most part, therefore, it may be taken for granted, will consider as quite superfluous almost all and every portion of the labour which we have above required of the makers of the law. Partisans of the historical school in Germany and elsewhere will take their own share of antiquarian doctrine, but be disposed to pay too little attention to the general philosophy of human nature. On the other hand, many of the strict followers of Mr Bentham, too confident in the expanded views opened to them by their master, will think it beneath them to descend from their mountain top, and shut themselves up, as it were, within the paltry bounds of one or two private schools. Now, the several classes thus, enumerated are disqualified for the task of legislation, just in the proportion that they are exclusive. Their favourite views are all highly valuable, and the more so because they are to a considerable degree independent of each other. The greater part of all positive systems of jurisprudence were originally built up by means of customs, incidental text-books, and the decisions of courts of justice upon particular cases. After being thus constructed, they were subsequently taught synthetically only as sciences, without having the aid and correction of any real [7:13:179] analysis applied to them. Little, therefore, having been ever derived directly from this source, we believe that, in making or amending laws, a philosophical analysis of human nature is of such paramount importance, that without it nothing new and really great will ever be introduced. In this "manner alone can a statesman hope to learn what is the standard to which every reform in legislation, except as controlled by special circumstances, should be directed; and by these means alone can he learn how this standard is to be approached. On the other hand, comparative law is a science as well worth studying, and, mutatis mutandis, ought to· be studied for the same purpose, as comparative anatomy. Religion is the only other subject which has occupied half the same amount of understanding. Besides, no human genius is competent to think out unas-sistedly a system of law. The legislative and judicial records of mankind are amongst the very highest subsidiary authority for discovering the true principles of human nature upon the questions to which they relate. But, independently of this consideration, the immediate influence exercised by their laws and institutions upon a people, and the way in which all laws and institutions of any standing lean upon and penetrate each other, are practical points of the greatest nicety and weight. An accurate knowledge of them, both of their past history and present condition, in relation to the particular country to which the new legislation is to be adapted, is at least as indispensable as any illumination which the. most consummate generalizations of universal jurisprudence can afford. Fortunately, the two methods may be combined. Otherwise, on the supposition that law reforms were to be intrusted to a single jurist, and that accordingly we were obliged to choose our legislator, pure and unadulterated, out of one or other of these opposite schools, we should think ourselves safer among the precedents of the legal antiquarian, than among the speculations of the juridical metaphysician. The precedents have been a part of the real business of life at one time. That is certain. Whether the particular speculations ever will become so, may be a very doubtful matter.

A union of theory and practice can alone secure tolerable legislation. Whether the above schools actherein separately or conjointly, the work, if it is to approximate to the form of reasonable laws, must be the work of a well-practised theorist. The observations of Carmignani upon the mode in which a legislator ought to proceed in getting at his general and subordinate principles, if true of criminal law, must be true with respect to law of all kinds. In the working them out, however, it is clear that the great (perhaps the greater) part of the rules of jurisprudence will have been anticipated and ascertained in what is here supposed the earlier process of investigating the principles of legislation. “If every notion belonging to criminal laws proceeds, as it ought to proceed, from an examination of the qualities of the object out of which it arises, verifying them by observation and experience (and this is the main difficulty), what, it may be asked, is the nature of the principle which such an examination will establish? It will be the most general rule that the human mind can conceive for providing for the wants of that particular object. Will the principle be theoretical or practical? It will be both one and the other: practical because it proceeds from the experience of facts; theoretical because the result of this experience is here converted into a general rule. What, then, shall this principle be called? A principle of criminal législation,. But how shall this principle be made to descend from the elevated generalization in which it consists, and be so applied as, in every possible case, to provide for the wants of the object out of which it has first arisen? By observing how best to apply it to the several cases, by considering whether it embraces them all, and how it embraces them, and by fixing the nature and number of subaltern principles which are wanted for facilitating and securing this application. Now, what will be these subaltern principles? theoretical or practical? They will be theoretical, in as much as they are, as it were, a filiation from the first general principle: they will be practical, inasmuch as they are intended to provide for practical cases. How then shall these principles be called? PRuls of criminal jurisprudence. In criminal matters, therefore, there is not one part theoretical, another practical. There is the science of legislation, or that of establishing criminal law; and there is jurisprudence, or the science of the application of the criminal law which has been, thus established. Nor can these two branches of knowledge be properly disjoined, the first being a filiation from the second; nor can a proper value be put on this filiation, but by means of analysis.”

Whatever mode of legislation is adopted, in case law is ever to be a rational science, it can only be made so by the application of powers and processes, both of observation and generalization, similar to those by which other intelligible sciences have been made. There can be no “high priori road;” no assumption, without evidence, of certain general principles or maxims, from and by means of which all doctrines are to be afterwards synthetically propounded. By a philosophical abstraction, what is common in individual v&ses,, must be separated and classed, in order to form the species ; and then the same must be done with what is common to the species, in order to form the genus. A marked advancement has taken place in legislation at certain periods. But the greater part of this has in all periods been directly owing to an improved analysis of some of the principal facts which enter into legal constitutions, and by a better exposition and understanding of their causes and effects.’^ In this manner alone can the advantages and disadvantages of existing laws be faithfully ascertained. It is thus, to mention two or three instances only, that the legal maxims of former times on heresy and witchcraft, on secret tribunals, torture, extreme or barbarous punishments, have been, one after the other, successively exploded. It has been truly said that “Beccaria would not have produced a^revolution in criminal legislation, if, instead of exposing the consequences of sundry mischievous laws, he had restricted himself to an eloquent development of his principles on the right to punish ; and that the discussions which during the last century arose out of certain celebrated trials, contributed more to the progress of legal science than the social contract of Rousseau.” Nor is this method the only one really and permanently available for the getting rid of bad laws. It is equally necessary for the framing of good ones. In no other manner can a proper use be made of the materials of existing laws, with a view to the construction of an improved system. This latter enterprise certainly requires a combination of great qualities and attainments. In order to duly correct the English system, for instance, what different capacities must be put in requisition for the task. There will be wanted the learning of Serjeant Hill to collect the materials of a purely professional kind (the most important materials after alD,—the philosophical genius of Lord Mansfield to deduce from them liberal and comprehensive rules,—the logic and the caution of Lord Eldon to trace the consequences of the rules to their remotest fibres, and to fix, in one of his exact parentheses, the limits and the exceptions by which particular rules ought to be guarded. The difficulties to be overcome in legislation are great, but not altogether insuperable. It is no answer to a proposition for a thorough sifting into the state of the laws of any country, that any extensive improvement of laws is a difficult undertaking. It is an equally insufficient objection to say, that the best possible system of legislation must, after all, be to a certain degree imperfect. The English nation has inherited a system of laws founded on the force of habit, the authority of prescription, the learning of text writers, and [7:13:180]the discretion of judges. Its government must (supposing it to be otherwise competent to the performance of the high trust with which it is invested) be capable of determining whether it has, in point of fact, sufficient means at its command for the introduction of a better system, either in substance, by a substitution, in certain cases, of more reasonable principles; or in form, by the aid either of a general consolidation, or of special codes.

A careful perusal of an excellent chapter by Dugald Stewart, in the first volume of his Philosophy of the Human Mind, on “the use and abuse of general principles in politics,” ought to satisfy a statesman, that any pains which he may take in this investigation are not likely to be thrown away, at the period which society has at present reached. Reading it, he will the better understand by what causes the science of legislation has hitherto been principally retarded, by what means its successful cultivation may be most effectually promoted, and on what grounds and to what extent we may reasonably hope that the future will consisÊ of something better thana patchwork repetition of the past. The simplifying of legislation means something more than weeding the trash out of a lawyer’s library. A single paragraph (we shall give no more from a book which everybody ought to be presumed to know) will serve to show the spirit of his opinions: “In order to lay a solid foundation for the science of politics, the first step ought to be, to ascertain that form of society which is perfectly agreeable to nature and to justice, and what are the principles of legislation necessary for maintaining it. Nor is the inquiry so difficult as might at first be apprehended; for it might be easily shown, that the greater part of the political disorders which exist among mankind, do not arise from a want of foresight in politicians, which has rendered their laws too general, but from their having trusted too little to the operation of those simple institutions which nature and justice recommend; and, of consequence, that, as society advances to its perfection, the number of laws may be expected to diminish, instead of increasing, and the science of legislation to be gradually simplified.”

Codification. Codification is one of the many polysyllabic terms which Mr Bentham constructed in order to express in single sonorous words the growing wants of legal science. Μ. Dumont made it French, and by so doing has made it European. It signifies either the science or the operation of making codes. Modern usage has disregarded the technical nomenclature of the Roman law, wherein the code represented the compilation of that particular portion which was derived from the imperial constitutions. Most persons understand by the word at present no more than an authoritative consolidation, either of the entire body of national law, or of some particular division of it; and this, without distinguishing between the materials used or the form adopted. Five codes on law and procedure, collected from various sources, and arranged systematically in separate paragraphs, constitute the Code Napoleon. In case it is attempted to reduce the English laws to something of a system, the common law and the statute law may be incorporated or kept distinct ;—the form may be that of enumerated articles, or of a continuous digest,—the digest may be framed upon either the historical or scientific principle; and yet, in these several cases, the enacted volume would be called, and with equal propriety, a code. Each of these courses has found able advocates. But there is a previous question to determine,—one on which much learning, argument, and passion, have been of late exhausted,—that is, whether, on general principles, a code is of any real advantage to a nation. To know this, it is necessary to know the several characteristics of written and unwritten, or, to speak more correctly, of enacted and unenacted laws. The comparative merits of these two sys tems will perhaps be better (at least more practically and popularly) stated, by a narrative of the circumstances and the method in which different nations have attempted to solve the problem, and by an examination into the discussions which have taken place in consequence, than by an analysis conducted in a more formal manner.

Municipal law is a rule of civil conduct prescribed by the supreme authority of the state. The legal rule ought in all cases to have the character of a rule. But it may exist, and in point of fact has existed, under very different formalities and presumptions in different countries. It begins in barbarous countries orally, and is necessarily continued in them by oral tradition. It is, however, everywhere committed to the custody of writing, as soon as writing becomes common. By some nations, as soon as it is put in writing, it is embodied into digests; by others it is separated into articulate propositions. Under some systems it is to be got at out of special precedents, by means only of comparison and analogy; under others it is understood to be contained, as matter of necessary inference, in a certain number of definitions and general principles. In the same manner, the rule expressive of the will of society must everywhere be supposed to be invested, first or last, with the sanction of society, speaking by the voice of its supreme authority, that is, by the voice of the legislature. But this sanction may be implied as well as expressed. It exists, although indirectly, in behalf of rules which, if they are made by others, the legislature nevertheless adopts, just as completely as it exists in behalf of those which the legislature has itself originated, and on which, therefore, it set its seal from the beginning. The prudence of an arrangement, by which an intelligent community consents to the surrender of the initiative by its legislature, thus countenancing a wanton confusion of judicial and legislative action, and leaving the law, as it were, all of a heap, comparatively inaccessible and unknown, is a different question. This may, in some cases, have been the least of two evils. But the exigencies of one state of society need not be made the deliberate choice of another. In the mean time, the various laws, pouring in from these different sources, though not equally open to the inspection of the public, are equally recognised by its members, as possessing the authority of law. The abuse, if any, is not transacted in a corner. There are popular usages, transmitted orally from generation to generation by the common report of neighbours, or, as in the city of London, certified by the mouth of the recorder: there are judicial principles, whether laid down by the praetor in general terms, or extracted from the decisions of courts in particular cases: there are the private opinions of learned text writers, such as the jurisconsults at Rome, or as Littleton, Coke, and Fearne in England: there is the uniform understanding of the profession, the usus fori, acknowledged even unto the practice of conveyancers. Whilst so many concurrent streams are notoriously feeding and filling the channels of the law, the silence of the legislature is equivalent to its assent. This, most of the advocates of a code are reasonable enough to admit. But it is the legal obligation which is thus impressed upon laws of this description, that constitutes the very ground of their complaint. They insist, that laws so diversified as often to clash, and so latent as often to remain unknown, can never adequately fulfil the characteristic conditions of a legislative rule. They propose, accordingly, that there should be only one form of law,—that of writing; and only one source of law,—that of express legislative enactment.

A complete code, of course, embraces the whole field of law, indeed every subject competent to be raised in a court of justice. Partial codes embrace only legal rights and obligations of a particular description. We shall look at the subject historically in the first instance. If its very principle and rationale have been left to be settled almost to our [7:13:181]own times, this does not arise from a lack of early precedents; whilst it is to the credit of modern civilization that the argumentative statements latterly advanced on both sides of the case contain the greater part, if not all, of what philosophy can have to say about it. There have been codes of one sort or another in the world from the earliest ages. The title of a legislator was in great request with antiquity. It was an honour of the same order as that of the founder or restorer of a state. We must not, however, be the slaves of splendid names. It is difficult to believe that, on the formation of a semi-barbarous government, it could have the means or the desire of constructing an entire system of positive legislation; still less that it would think of admitting, in the course of its future progress, no laws to pass current but what were either originally produced in that mould, or what were as soon as possible thrown into it, in order that they might be reproduced under its stamp and fashion. This is one of the wants and achievements of wiser times. These ancient codes, instead of being born, like our first father, full grown, were diminutive, feeble births, and left outstanding a much greater mass of customary law. They extended to some few principal subjects only, and were probably not always the sole and exclusive authority even upon them. The proportion between the written law, thus enacted by the legislature, and the remainder of the law, which was derived from other sources, must have varied in different countries at the very commencement of their several societies. The proportion, unequal at first, must have gone on varying still more from age to age. If we should suppose the Twelve Tables, the capitularies of Charlemagne, the code of Alfred, to have constituted nearly the whole of the municipal law of their respective periods, this could not long remain so. The shape which their subsequent legislation might assume would, even in the same state, depend on very different considerations, at different stages of its history; whilst the course which might have been most judicious in one country might be most imprudent in another. Codes then, it is clear, have always existed more or less, of one sort or another, from time immemorial. The advantages and disadvantages also of this species of legislation vary from country to country, and from age to age. In most eases the experiment has been tried, concurrently with other kinds of legislation. This is the state of things which history from time to time necessarily presents. Accordingly a period must arrive in all civilized communities for subjecting the opposite pretensions of contrasted systems to the test of a philosophical and historical discussion. The general question, in “what form laws are best authenticated, communicated, and preserved,—the particular question of code or no code in a given country,—are questions which (in whatever way they may be ultimately decided) must sooner or later come to be debated. Of course, we speak of countries where man is in movement, and where the population is sufficiently orderly and prosperous for the laws to spread out and accumulate to their natural extent.

Some persons seem determined to presume every thing in behalf of classical antiquity. It may be suggested therefore, that the evidence of its legislative deliberations upon this subject may have been lost; otherwise the silence of the most celebrated amongst the ancient states is a very suspicious circumstance. If they were never made aware of the necessity of meeting the question, they can have had little or no law on many important subjects. If they were too ignorant or indifferent to make serious provision for a satisfactory determination of it, they must have left their law in an imperfect, incoherent, desultory condition. There is no evidence come down to us from antiquity, that the demand for reducing the whole body of national law to principle and method was ever raised, except at Rome; nor at Rome, for practical purposes, by any body except by Caesar and Justinian. On this point Cicero gives us the first and almost the only information we possess. His own views are so excellent, that, supposing them to have originated with himself, he must have created a school of law reformers. It is clear that Cicero regarded the writings of the Greeks upon politics and law as purely literary compositions. Under this conviction, he took great credit to himself for writing on law as a statesman. He looked at the laws and the commonwealth in connection with each other; and in all his observations had the Roman institutions principally in his mind. If the legal literature of Greece was too abstract to work with, in what relation stood their judicial jurisprudence? The Greek bar, if it was not of a kind to much embarrass Athenian reformers, must have been still more incapable of assisting to settle the law upon new and improved foundations. Nor is this the extent of the loss. Wherever lawyers are not a distinct and respectable profession, it may be taken for granted that there is little or no law. The jurisconsults of Rome, in the comparative infancy of Roman law, had already become more powerful by their authority than even by their talents. On the other hand, what could be expected of Greek lawyers, such as Cicero describes them by .way of contrast: Infimi homines apud Groecos mercedula addicti gui ministros se proebent in judiciis oratoribus? Whilst jurists and judges apparently did but little for the cultivation of municipal law in Greece, was the deficiency really supplied from other sources—by popular usages or positive legislation? Cicero has not in this respect a word to say for the nursery of philosophy, literature, and the arts. On the contrary, Rome was in his opinion the only substantial home of virtue, dignity, and empire in all the world. The most vulgar lawyer, admiring his own little manual of practice, and despising the institutions of every other people, could not throw out a more scornful challenge than the comparison he puts into the mouth of Crassus, between the Roman laws and the laws of Draco, Solon, and Lycurgus. Incredibile est, quam sit omne jus civile proeter hoc nostrum inconditum ac peene ridiculum ; de quo multa soleo in sermonibus quotidianis dicere, cum hominum nostrorum prudentiam caeteris omnibus maxime Grescis antepono! Nevertheless, all the praise to which the civil law in the time of Cicero seemed entitled, was by comparison only. The black-letter wisdom of the Twelve Tables was losing its interest, except with antiquarians and moralists. In his childhood it had been taught as a sort of catechism to young people. He himself had learned it (carmen necessarium), in the way that their constitutional code is a prescribed lesson in the schools of some of the United States; but the practice had gone out of fashion during his lifetime (De Legibus, 25). Its old-fashioned authority was just then in the course of being displaced by the successive edicts of the praetors. Non ergo a proctons edicto utplerique nunc neque a duodecim tabulis ut superiores sed penitus ex intima philosophia hauriendam juris disciplinam putant. The annual code of the praetor could, however, at this period cover but a small corner of the field of law. The rest, such as it was, must have been given over into the hands of the jurisconsult. But the juridical learning of Rome, which was afterwards destined to acquire the character of written wisdom, and become the arbiter of the civilized world, was at that time in a state hardly removed from childhood. Cicero himself, in the oration for Muraena, treats it with the utmost contempt. Primum dignitas in tam tenui scientia quoe potest esse ? As regarded the forms, Dum erant occulta, necessario ab eis, qui ea tenebant, petebantur: postea vero pervulgata atque in manibus jactata et discussa, inanissima prudentiae reperta sunt, fraudis autem et stultitiae plenissima. As regarded the [7:13:182]substance, Cum permulta praeclare legibus essent constituta, ea jurisconsultorum ingeniis pleraque corrupta ac depravata sunt. Scientia, quoe tota ex rebus fictis commentitii sque constaret. He finishes by saying, in case where Servius Sulpicius provokes him, that, overwhelmed with business as he is, he will undertake to make himself master of the civil law in three days: Sapiens existimari nemo potest in ea prudentia, quoe neque extra Jłomam usquam, neque Pomoe, rebus prolatis, quidquam valet. Peritus ideo haberi nemo potest, quod in eo, quod seiunt omnes, nullo modo possunt inter se discrepare: difficilis autem res ideo non putatur, quod et perpaucis, et minime obscuris litteris continetur. Itaque, si mihi, homini vehementer occupato, stomachum moveritis, triduo me jurisconsultum esse profitebor. Nor was this contemptuous language the artifice of an advocate for oratorical effect. In the treatise De Legibus he speaks of the learning of the profession quite as slightingly; and declares that it consists but of mean things, quae et scripta sunt a multis diligenter, et sunt humiliora quam illa quoe a vobis expectari puto. Again, in the treatise De Oratore, he states that their writings neque ita multis literis aut voluminibus magnis continentur. Eadem enim sunt elata primum a pluribus; deinde paucis verbis commutatis, etiam ab eisdem scriptoribus scripta sunt soepius. And he adds, Non dicerem hoc, audiente Scoevola, nisi ipse dicere soleret nullius artis faciliorem sibi cognitionem videri Up to this period, therefore, notwithstanding the boasted superiority of the Roman law to that of all other nations, to what must the boast be in truth reduced? The foundation consisted of the Twelve Tables, whatever they might be worth. But almost the entire fabric was raised up by means of the annual edict of an annual unprofessional officer, professing to make his laws for the year, and to administer them upon the latitudinarian principles of a court of honour or of conscience." On certain subjects, the additional element of that occasional, partial, and conflicting legislation described by Tacitus, embroiled the fray. These new laws would raise up the debateable examination which Cicero mentions, into the old ones, whether, for instance, they are to be supposed ipsa sua vetustate consenuisse aut novis legibus esse sublatas. Now this was the state of the Roman law when Caesar is understood to have aspired to the character of a legal reformer. The last-mentioned materials, produced by extensive and arbitrary legislation, at the passion and in the interest of opposite authorities, appear, in their complication, their contradiction, and their evil spirit, to have been the greatest grievance. What evidence have we of the measures which he contemplated? Gibbon’s imagination seems to have taken wing without authority, when he anticipates on this occasion the avatar of a more than Roman Bentham. According to the rhetorical historian, if Caesar had achieved the reformation of the Roman law, his creative genius, enlightened by reflection and study, would have given to the world “a pure and original system of jurisprudence.” Suetonius is so far from supporting this conjecture, that he expressly restricts the intended amendment of thejws civile to the reduction of it within a moderate compass, and to the making out of its immense quantity of laws, a small compilation of those only which were best and most needful; optima quoeque et necessaria in paucissimos conferre libros. If we suppose Caesar to have meditated something more than this, it would probably have been an attempt to carry into his legislative digest that logical arrangement, by which Servius Sulpicius had perfected his practice, and by the aid of which Cicero insinuates that he himself had at one time thought of writing a didactic treatise on the civil law. Ought we to conjecture that this intention was really executed in the last books of the treatise De Legibus ? In that case there is, more than ever, reason to lament their loss. The world would then have known what kind of a code the Roman republic had really the means of making. The passages in which Cicero intimates his views are therefore extremely valuable, as forming part of the history of the progress towards codification. The execution of these ideas would of course have had its own difficulties. But the conception of them places the universal genius of their author in a remarkable light. They afford ample proof of the spirit in which the only Roman philosopher and statesman that we ever read of was preparing the way for the legislative authority of the victorious dictator. Speaking of Servius Sulpicius, in the Erutus, he says, “ Existimo, juris civilis magnum usum et apud Scoevolam, et apud multos fuisse; artem, in hoc uno; quod nunquam effecisset ipsius juris scientia, nisi eam proeterea didicisset artem, quoe doceret rem ziniver-sam tribuere in partes, latentem explicare definiendo, obscuram explanare interpretando; ambigua primum videre, deinde distinguere, postremo habere regulam, qua vera et falsa judicarentur, et quoe, quibus positis, essent, quoeque nan essent consequentia. To this passage must be joined the notice of the design, which he attributes to Crassus in the treatise De Oratore. He says, Sienim autmihi facere licuerit, quodjamdiu cogito, aut alius quispiam, me impedito, occupant, aut mortuo effecerit, ut primum omne jus civile in genera digerat, quae perpauca sunt; deinde eorum generum quasi quaedam membra dispertiat; tum propriam cujusque vim definitione declaret; perfectam artem juris civilis habebitis, magis magnam, atque uberem, quam difficilem, atque obscuram. More than five hundred years were allowed to pass before this conception was partially executed by Justinian. We say partially; for Justinian’s plan falls far short of that of Cicero, although perhaps not more so than the plan of Caesar would have done, when it came to be reduced to practice. The long interval which intervened, a period equal to theentire duration of some commonwealths, did notof itself render a change in the plan necessary, supposing that Tribonian had felt himself to be equal to the execution. But it brought along with it a necessary change in the materials. There had arisen in the interim a bright age of jurisprudence. The earlier legal authorities were thrown into the shade. The Pandects contain but three names which belong to the republic. Accordingly, the jurist finds as little of the civil policy of republican Rome in the imperial laws which pass under her name, as the antiquarian discovers of the ancient city within the modern walls. The new learning, whatever facilities it might create in one way, added to the difficulties in another. The intermediate five hundred years had been years of legislative despair. Justinian has boasted in his code that he had accomplished that quod nemo principum, ante nostrum imperium, aut in mentem induci posse aut humano ingenio possibile esse existimavit. On the whole, therefore, modern law-reformers must not look for much light, either as to the principles or the method of legislation, from the practice and opinion of antiquity. It affects to offer no information of any value except in the instance of Rome. In that instance, the only comprehensive view of which we are in possession was that of Cicero. Defining virtue to be perfecta atque ad summum perducta natura; declaring its object to be naturam sequi et ejus quasi lege vivere ; explaining in this sense the moral philosophy of Socrates, as that by which we are to learn the most difficult of all lessons, ut nosmet ipsos nosceremus ; he was led on to a similar doctrine in the case of universal law. Universal law is with him a recta ratio imperandi atque prohibendi, of which it is the very essence that it must be a lex natures congruens, ad illam antiquissimam et rerum omnium principem expressa naturam. If the entire treatise De Legibus had, by good fortune, come down to us, we should have known the degree to which Cicero, in setting down on paper the detail of his several codes, had ventured to approach to the execution [7:13:183]of a scheme of natural jurisprudence. From the ridicule with which he describes the narrowness of all preceding Roman lawyers, even of the Scaevolas, he certainly would not have blindly put himself into the same trammels, nor have committed the error of the school divines,“in pounding the crystal into dust by infinite subdivisions. Sed jurisconsulti, sive erroris objiciendi causa, quo plura et difficiliora scire videantur ; sive, quod similius veri est, ignoratione docendi (nam non solum scire aliquid, artis est, sed quadam ars etiam docendi) saepe, quod positum est in una cognitione, id in infinita dispartiuntur. On the other hand, the practical principles which he professed, bound him to the doctrine, Spartam nactus es ; hanc exorna. Besides, his particular declarations still remain to us. The course he was about to pursue was to exemplify his creed, that the laws and the government ought always to be in harmony with each other. Regarding the old Roman commonwealth as the best, and intending to give it appropriate laws, he adds, Ergo adeo expectate leges, quae genus illud optimum reipublicae contineant : et, si quae forte a me hodie rogabuntur, quae non sint in nostra republica, nec fuerint, tamen erant fere in more majorum ; qui tum, ut lex, valebat. But, more than this, his specimens of codification on the two great heads of ecclesiastical and constitutional law have come down to us in the second and third book De Legibus. It is evident from these that he was extremely conservative of the ancient faith on these two important points, and was thus far at least resolved to deviate as little as possible from the beaten track of prescriptive authority into the open and debateable domain of reason. Mfr Bentham, we think, could not have been induced to make similar concessions to national vanity or supposed expediency. There would have been some difficulty in persuading him into an apparent belief that he could make the standard of universal jurisprudence in matters of church and state happily fall in with the laws of Alfred and the Saxon code. But Cicero’s legislation is Roman throughout. His idea of nature for this occasion, was nature as it existed within the walls and policy of the eternal city; consequently the interest of the work, so far from being universal, is principally the interest which attaches to every thing belonging to Rome, and composed by Cicero. Nor is the treatise calculated to be of greater use, as a precedent, to a codifier, from any advantages of method. And Cicero having disappointed us in the execution of his plan, can we expect the practical official law-reformers to be more philosophical? If the philosopher by profession, when he came to apply his theories, bowed before the mos majorum, in obedience to the strict and statesmanlike reserve of his nation, Caesar and Justinian were not likely to have dreamed of being more latitudinarian. As masters of the world, they did not enter on the subject from any concern about the philosophy of legislation, but in the hope of lessening the burden of the obscure and conflicting laws which they were called upon to administer.

From this brief sketch, two things are evident in the case of the Roman law: first, what required to be done; next, the difficulty of doing it. Its evil condition had become not only perceptible, but so flagrant as to demand a remedy, as early as the time of Caesar. Suetonius declares that the mischief consisted principally in the immensa diffusa legum copia. ^[8. In Vit. Caesar. c. 44. ] Livy also and Tacitus repeat it. The complaint had become proverbial. It is admitted, moreover, that no remedy was applied till the melancholy crisis of the sixth century. At this extreme period, another, and soon indeed the only question, had arisen. It was this: Whether civilization should be left to linger out a few more decrepit years in impotent decline, or should come to a violent end at the hands of the barbarians? Whatever may be the imperfections in the legal production of Justinian— whether incident to the age or to the persons—it is acknowledged, not only that the older works on Roman law would hardly have been preserved at all, except for the different compilations of the many contemporary codes of this late season, “but, that it would scarcely have found entrance into modern Europe, had not Justinian’s works been among them, in which alone the spirit of the Roman law is discernible.” This is the statement of Savigny, generally regarded as the ablest opponent of codification in general, and certainly far from being an indulgent critic to the Justinian specimen in particular. Upon Savigny’s own statement, therefore, posterity at least is under great obligations to Justinian for having rescued the floating materials from destruction. Nor can we see that there is any reason for supposing that the desirableness of presenting the materials in an accessible form was not acknowledged even at the time, by his contemporaries. True, there is no existing trace of any experiment towards a code having been made by Papinian, Ulpian, and Paulus, who were not only the three most celebrated jurists, but were also proefecti praetorio. But, to infer, that therefore they considered a code as neither necessary nor advantageous, seems a very rash conclusion. Their wishes may have been practically thwarted by a hundred causes, and the evidence of their wishes may have perished a hundred times over. Such is, in truth, the legal history of many countries upon this very point. Savigny admits that, in the time of the classical jurists, “there would have been no difficulty in forming an excellent code.” But this being so, it is surely very much to be lamented that the middle period,—that between the infancy and the decline of Rome,—which, for this particular purpose, Savigny accounts the summit of appropriate civilization, was not taken advantage of. The actual generation might not itself be so much in want of a code as the generations that were to follow. But the highest duties of a statesman are partly prospective, in regard to affairs of this description. The opposite doctrine is poor indeed. The immediate generation itself, however, would probably have also been the better for it. Long before this middle period, the learned or technical element must have overgrown the natural or political one. The original confidence supposed to be possessed by a people in their common law must have disappeared. Accordingly, the only remaining problem—that which peculiarly belongs to an advanced stage of society—had already arrived: Ought artificial jurisprudence to be left at large, in all the varieties into which it branches out, or would it best perform its office by being from time to time consolidated, arranged, and authenticated in the shape of positive legislation?

In modern times, this arduous experiment has been tried upon the largest scale, and with the most success, by France. Political circumstances facilitated the legal innovation in a remarkable degree. The fury of the Revolution had made a clear space for the architects of the Code Napoleon to build upon. This was a great accommodation. But the necessity of a reformation, tantamount to a reconstruction of their whole legal system, existed previously, and had been admitted during two or three successive centuries by the most distinguished magistrates of France. Louis XI. “who had it in his mind (though he performed it not) to make one constant law of France, surely might have done well, if, like as he brought the crown (as he said himself) from Page, so he had brought his people from Lackey; not to run up and down for their [7:13:184]laws to the civil law, and the ordinances, and the customs, and the discretions of courts, and discourses of philosophers, as they used to do.”^[9. Bacon. ] The only question regarding the Code Napoleon must be as to the manner in which it was executed. None can be raised as to the necessity of a code.

Whatever may have been the incompetency of the French councillors of state on this occasion, there is no pretence for alleging that they were not sufficiently French, and that they ran wildly into foreign notions, revolutionary opinions, or abstract theories of human nature and general jurisprudence. For we are informed by Μ. Dupin, in his Dissertation on the Life and Writings of Pothier, that the treatises of that perspicuous and trust-worthy jurist furnished three fourths of that which is by far the most difficult and complex portion of law, the Code Civil. Mr Butler, in a learned note on Coke upon Littleton, disposes of what has been considered by many as one of the great boasts of modern civilization, in a very summary manner. After saying that Μ. Bernardi thinks that the Assizes of Jerusalem (which, in its present state, is a work of the thirteenth century) is superior to it, he adds, “The Codes Napoleon are five, the Code Civil, the Code Criminel, the Code de Commerce, the Code de Conscription, and the Code de Procedure. It is allowed that the first possesses great merit, that the third is very faulty, and that whatever is good in any of them is rendered almost entirely useless by the last, which has completely confounded and paralysed all the judicature of the country.” The practical merit or working qualities of specific laws can be only properly estimated by a native lawyer. The character, therefore, of the different codes, as given by Μ. Dupin in his letter to Mr Sampson of New York, 1826, is entitled to much greater credit than the comparatively hearsay judgment of Mr Butler. Besides, it carries the evidence down to a later date. It is as follows: “The civil code is the first and best of all; it is clear and methodical; neither too long nor too short; the language of the legislature is noble and pure; the rules are well laid down, and, with the exception of the difficult subject of mortgages, it has met with nothing but approbation, more especially at the present time, since the immoral law of divorce has been struck out. The code of civil procedure has simplified the forms and diminished the expense of lawsuits. No fault is found with it, except in the law form of execution (expropriation), the unfortunate though necessary adjunct to the law of mortgage. The commercial code, which re-enacts, in a great measure, the ordonnance relative to maritime affairs of 1681, and that of 1673 relative to commerce, is also generally esteemed. The only exception is the title of bankruptcy, which is equally complained of, both by bankrupts and by their creditors. The code of criminal procedure, and the penal code, are the last, and are those to which the greatest objections have been raised. Despotism dictated them. In many instances state policy has made them her instrument; and liberty has suffered accordingly. Their revision has therefore been demanded even in the Chamber of Peers. But all these codes, such as they are, have been productive of the greatest benefit; they have delivered us from the chaos of our ancient law. Above all, the institution of the court of cassation, which acts, as at a central power, to regulate and check the decisions of all the other jurisdictions, has been of the highest benefit.” What then is the result of this experiment in the instance of France? Under the opposition of local prejudices and private interests, it is very possible (as Μ. Dupin believes would have been the case), that, but for the Revolution, not even a Solon or a Lycurgus, placed ôn the throħe of France, could have been sufficiently powerful to carry an effectual reform. The reform nevertheless would not have been the less wanted. It is absurd to consider the codes as political measures artfully plotted by Napoleon, because they happened to be digested at last under his counsel, and promulgated in his name. The projet du code civil, commenced as early as 1793, proves that it was completed to a considerable extent years before the name of Napoleon was heard of. It was owing to the previous discussions on the original propositions of Cambacérès, that the Code Civil was enabled to be brought out at the command of Napoleon, within the short period of four months. The code of France may be, and doubtless is, far short of abstract perfection; but, with all its faults, an immense majority of those who live under it, of those who practise it, and of those who administer it, allow it to have been amongst the greatest of national blessings.

The desirableness of a code of laws for any particular country, at any given period, is a question of fact. Royer Collard sensibly observes, that it is impossible to give, on so mixed and variable a case, one uniform answer applicable equally to all times and places. What may have been clearly good in France may possibly leave a doubtful balance of advantage in England. On the other hand, what it would have been dangerous to attempt a hundred years ago in England, may perhaps be easily accomplished to-day.

Before entering upon the case of England, it may be observed, that the question with regard to a portion of her provincial legislation has been latterly supposed to be placed beyond dispute. Whatever balance of opinion for and against codification may be found to be elsewhere keeping legislation in suspense, there is one part of the globe, namely, British India, in which almost every body conversant with the subject appears agreed. The governorgeneral in council, assistée! both by the most experienced civil servants of the company, and by the judges of the supreme court, has certified that nothing short of a code, however slowly or gradually proceeded in, can meet the necessities of the case. The undertaking is certainly surrounded with many impediments, and will in its execution require at every step consummate prudence. On framing the precise provisions, some twenty different nations, now politically united under the British government, must be treated as distinct nations; varying sometimes in the spirit, frequently in the letter, of their laws. There is one branch, however, that of the criminal law, in which the difficulties belonging to this view of the subject are thought very lightly of. Yet it is the case of criminal law, to which, speaking of what has been called the best code of this kind in Europe, that of Bavaria, Mr Cooper has appealed as furnishing conclusive proofs in favour of Savigny’s. general objections against the present capabilities of Europe for framing codes. The judges of the supreme court of Calcutta are of opinion that “any one intelligent English lawyer, and one of the civil servants employed in the Nizamut Adawlut, with the assistance of the reports of that court recently published, might jointly prepare a regulation in a few months, which would be, for all persons throughout India, as good a penal code as any now existing in the world? ^[10. Appendix, 5, Affairs of the East India Company, 1831. ] In the instance of India, the nature of the specific evils to be provided for by a code cannot be more powerfully stated than in the words of one who has been since deputed to the high office of ascertaining and superintending the remedies to be applied. The passage to which we allude is contained in a speech delivered by Mr Macaulay, in the House of Commons, on the last renewal of the charter. The reader will there see, to what [7:13:185]complexion unwritten law, that is, law derived from other sources than the legislature, has a tendency to come. A force like that of gravitation is always dragging it in this direction. “Having given to the government supreme legislative power, we next propose to give to it for a time the*assistance of a commission, for the purpose of digesting and reforming the laws of India, so that those laws may, as soon as possible, be formed into a code. Gentlemen, of whom I wish to speak with the highest respect, have expressed a doubt whether India be at present in a fit state to receive a benefit which is not yet enjoyed by this free and highly-civilized country. I can allow to this argument very little weight beyond that which it derives from the personal authority of those who use it. For, in the first place, our freedom and our high civilization render this improvement, desirable as it must always be, less indispensably necessary to us than to our Indian subjects; and, in the next place, our freedom and civilization, I fear, render it more difficult for us to obtain this benefit for ourselves than to bestow it on them. I believe that no country ever stood so much in need of a code of laws as India, and I believe also that there never was a country in which the want might so easily be supplied. I said that there were many points of analogy between the state of that country after the fall of the Mogul power, and the state of Europe after the fall of the Roman empire. In one respect the analogy is very striking. As in Europe then, so in India now, there arc several systems of law, widely differing from each other, but co-existing and eo-equal. The indigenous population has its own laws. Each of the successive races of conquerors has brought with it its own peculiar jurisprudence; the Mussulman his Koran and its innumerable commentators, the Englishman his statute-book and his term-reports. As there were established in Italy at one and the same time, the Roman law, the Lombard law, the Ripuarian law, the Bavarian law, and the Salic law; so we have now in our eastern empire Hindu law, Mahommedan law, Parsee law, English law, perpetually mingling with each other, and disturbing each other; varying with the person, varying with the place. In one and the same cause the process and pleadings arc in the fashion of one nation; the judgment is according to the laws of another. An issue is evolved according to the rules of Westminster, and decided according to those of Benares. The only Mahommedan book in the nature of a code is the Koran; the only Hindu book the Institutes. Everybody who knows those books, knows that they provide for a very small part of the cases which must arise in every community. All beyond them is comment and tradition. Our regulations in civil matters do not define rights; they merely establish remedies. If a point of Hindu law arises, the judge calls on the Pundit for an opinion. If a point of Mahommedan law arises, the judge applies to the Cauzee. What the integrity of these functionaries is, we may learn from Sir William Jones. That eminent man declared, that he could not answer it to his conscience to decide any point of law on the faith of a Hindu expositor. Sir Thomas Strange confirms this declaration. Even if there were no suspicion of corruption on the part of the interpreters of the law, the science which they profess is m such a state of confusion, that no reliance can be placed on their answers. Sir Francis Macnaghten tells us, that it is a delusion to fancy that there is any known and fixed law under which the Hindu people live; that texts may be produced on any side of any question; that expositors, equal in authority, perpetually contradict each other; that the obsolete law is perpetually confounded with the law actually in force; and that the first lesson to be impressed on a functionary who has to administer Hindu law is, that it is vain to think of extracting certainty from the books of the jurists. The consequence is, that in practice the decisions of the tribunals are altogether arbitrary. What is administered is not law, but a kind of rude and capricious equity. I asked an able and excellent judge lately returned from India, how one of our Zillah courts would decide several legal questions of great importance, questions not involving considerations of religion or of caste, mere questions of commercial law. He told me that it was a mere lottery. He knew how he himself should decide them, but he knew nothing more. I asked a most distinguished civil servant of the company, with reference to the clause in this act abolishing slavery, whether at present, if a dancing-girl ran away from her master, the judge would force her to go back? ‘ Some judges,’

he said, ‘ send a girl back; others set her at liberty. The whole is a mere matter of chance. Every thing depends on the temper of the individual judge. Even in this country we have had complaints of judge-made law; even in this country, where the standard of morality is higher than in almost any other part of the world—where, during several generations, not one depositary of our legal traditions has incurred the suspicion of personal corruption—where there are popular institutions—where every decision is watched by a shrewd and learned audience—where there is an intelligent and observant public—where every remarkable ease is fully reported in a hundred newspapers—where, in short, there is every thing which can mitigate the evils of such a system. But judge-made law, where there is an absolute government and a lax morality—where there is no bar and no public —is a curse and a scandal not to be endured. It is time that the magistrate should know what law he is to administer; that the subject should know under what law he is to live. We do not mean that all the people of India should live under the same law: far from it: there is not a word in the bill susceptiblc of such an interpretation. We know how desirable that object is; but we also know that it is unattainable. We know that respect must be paid to feelings generated-by differences of religion, of nation, and of caste. Much, I am persuaded, may be done to assimilate the different systems of law, without wounding those feelings. But, whether we assimilate those systems or not, let us ascertain them, let us digest them. We propose no rash innovation; we wish to give no shock to the prejudices of any part of our subjects. Our principle is simply this: uniformity where you can have it—diversity" where you must have it—but in all eases certainty. As I believe that India stands more in need of a code than any other country in the world, I believe also that there it no country on which that great benefit can more easily be conferred. A eode is almost the only blessing—perhaps it is the only blessing —which absolute governments are better fitted to confer on a nation than popular governments. The work of digesting a vast and artificial system of unwritten jurisprudence is far more easily performed, and far better performed, by few minds than by many—by a Napoleon than by a chamber of deputies and a chamber of peers—by a government like that of Prussia or Denmark, than by a government like that of England. A quiet knot of two or three veteran jurists is an infinitely better machinery for such a purpose than a large popular assembly, divided, as such assemblies almost always are, into adverse factions. This seems to me, therefore, to be precisely that point of time at which the advantage of a complete written code of laws may most easily be conferred on India. It is a work which cannot be well performed in an age of barbarism—which cannot, without great difficulty, be performed in an age of freedom. It is the work which especially belongs to a government like that of India— to an enlightened and paternal despotism.”

2 A [7:13:186]We proceed to refer in the most summary manner to the domestic history of codification in England. Our observations will relate to what has been performed, and what projected by parliament; and, next, to the principal arguments and objections on both sides out of doors, as we find these elicited in the course of the discussions from the reign of Elizabeth down almost to the present time.

On tracing the course which the English parliament has followed with regard to the defects of English law, its course will be found to have hitherto been marked by its habitual reluctance to great changes. Law-reformers need not shrink from discussion. But, owing to the prevalence of apprehensions and jealousies, and from a weak subservience to personal interests, many of our most useful reforms have been hitherto introduced and passed with as little noise as possible. In point of fact, therefore, English codification, whilst it has taken place to a considerable extent, has only been partial. Some of its experiments have been confined to a mere consolidation and amendment of concurrent or conflicting statutes; others have, by adding the incorporation and revision of the corresponding portion of the common law, gone the whole length of codification on particular subjects. This is admitted, and even approved of, both by Mr Reddie and Sir Edward Sugden; on which Mr Humphreys naturally observes: “Whether the result be termed a code, or be an act, or a series of acts, to amend and consolidate the laws in question, is a mere question of words. Many of our present reforming and consolidating acts, for instance those relating to the customs and the excise, to crimes against property, to trustees and mortgagees under legal disabilities, to bankrupts, to insolvent debtors, are all in effect distinct parts of a code; correcting and embodying all prior laws and rules, whether statutory, judicial, or textuary, on the same subject.” The necessity of such a revision, and the mode of making it, are amongst the different matters submitted to the several commissions appointed of late years for inquiring into the different departments of the English law. Important parts of the law of real property will be shortly comprised in express legislative provisions under the recommendation of the real property commission. It is true, that the amendments of the criminal law, brought in under the sanction of Sir Robert Peel, are chiefly examples of the process of statutory consolidation only. But the present commissioners on the criminal law have closed their first Report (1834, p. 35) with a strong opinion that “the combination of a digest of the statute law with that of the common law, into one body of criminal law, is a measure which will tend greatly to the improvement of the jurisprudence of the country. In support of our views upon this subject,” they add, “we may observe, that the definitions of crimes, the nature of punishments, and the forms of criminal procedure, originated, for the most part, in common-law principles. But most of the unwritten rules touching crimes have been modified by acts of the legislature, which assume the terms and definitions of the common law. And thus it happens that the language in which these acts are expressed, and the subjects to which they refer, are commonly unintelligible without a knowledge of the common law. The actual law in regard to any particular offence lies partly in the statutes, and partly in the reports and text-books. A reference to a single instance may be sufficient to illustrate our meaning. A modern statute makes it essential to the statutory offence, that it does not amount to an offence at common law, and thus the common-law description of the offence must be referred to for the purpose of ascertaining the limits of the statutory offence. As one digest, therefore, would be imperfect without the other, this seems to be a sufficient reason for uniting them. But it may be further urged, that most of the advantages which may be expected to be derived from a consolidation of the statute law will be attained by combining the two digests into one body of criminal law; and, in particular, the size of a joint digest would be much more compendious than that of two separate digests, and, what is still more essential, the means afforded by methodical arrangement, and by the context, for construing the intention of the legislature with certainty and precision, would, if the two digests were united, be greatly increased.”

The above Report was accompanied by a digest of the common law of theft. It is given as a specimen of what may be accomplished in the case of an offence, the decisions upon which are more technical, complicated, and confused than any other portion of the English criminal law. But the public and the profession will soon have the means of judging with greater precision how far this encouraging expectation is likely to be realized. For, on alluding to the subject in the following year, in their Report on the general question of the propriety of a consolidation of all the statutes, civil as well as criminal, they state that they had already made considerable progress “in forming a digest of the criminal law, as well unwritten as written, into one statute, with such partial alterations as might be considered to be necessary or expedient for more simply and completely defining crimes and punishments, and for the more effectual administration of criminal justice.” The criminal digest, although it will be the first executed, can only be meant to be a beginning. The example will do much. But, independently of the example, their general recommendation in favour of a statutory incorporation comprehends every case where statute law and common law are mixed up together. It can never be intended to do any thing so anomalous as stop here; as it were solely for the purpose of excluding from the national code that small remainder of the common law, with which it may have happened that no legislative enactments had ever interfered. They mention three plans. The first suggests a mere redaction of existing statutes, by clearing them of whatever in form or in substance is superfluous or obsolete. The second plan proposes to go a step further, and, by consolidation and classification, to bring the whole statute law into a systematic form. But the last goes further still, and advises that, wherever judicial decisions have altered the natural meaning of the words of an enactment, the enactment itself should be forthwith verbally corrected, so as to make its apparent import cor» respond with its legal effect. On this, their final recommendation, they observe that “no plan of reformation short of remodelling the statute law on the third principle proposed will be co-extensive with existing evils; but that whilst such a reform would be highly desirable, and is in their opinion practicable, its execution would be difficult, would require the greatest caution, and occupy a considerable portion of time.” These are vigorous resolutions; and if once duly acted on, the English legislature will soon recover whatever ground it may have lost.

The above statement comprehends nearly all that England has yet performed in parliament upon this subject. Before passing on to the next point, namely, what she has projected, it is proper, in connection with this part of the case, and almost as a portion of it, to notice what the American legislatures have been doing. Their principal legal materials are so nearly identical with, and their circumstances for this purpose so similar to our own, that the question of codification is substantially the same question in both countries.

America, during her short political career, has proceeded in this great undertaking with a remarkable union of zeal and caution. Mr Livingstone had comparatively easy work in Louisiana, which stands alone in this respect. The civil law on which he had to work was already sys∙
[7:13:187]

tematized; and the Code Napoleon was, mutatis mutandis, ready to his hand. The committee appointed to revise the statutes of New York brings us on English ground. It published, as early as the year 1827, an analysis of a portion of their labours. The charge committed to them was limited to the statute law. But they seem to have considered that they could perform this limited duty very imperfectly, unless they also included in their operation the interpretations which the courts of justice had put upon the statutes. This precedent appears to be precisely that which the English commissioners have since adopted, as far as they have gone. The following passage will explain the views taken at New York. “In attaining the object prescribed to us, to collect together the various provisions on the same subject, to introduce, in their proper places, the successive alterations which had from time to time been made by the legislature, it was obviously impossible to preserve the original language of the statute which was amended, and of the amendments. Parts of sectionshave been repealed and qualified, and an amendment had again been amended. Enactments are frequently contained in provisos, and, in the haste with which statutes are often drawn, the language frequently does not express the precise intent, or expresses more than was intended. In these cases, changes in phraseology were unavoidable. In other cases it became necessary to break up sections containing provisions on distinct subjects, or containing complicated and voluminous details and provisos, in order to distribute them in their proper places, and to arrange them in a natural order. This also unavoidably produced a change in the language. Some statutes which were passed in different years in England, explaining or amending others which preceded them, have been copied into our volumes, with the original acts which were the subjects of amendment, in the very language which had required subsequent legislation. In the same manner, later statutes, which were intended to include prior acts, have been retained with the acts so included. In some instances, by the omission of preambles, a different meaning was given to the statutes. In these cases great changes were indispensable. We have not been able to understand why the language of the written law should defy all attempt at improvement, more than the language of any other science, or upon any other subject. It must be susceptible of emendation, by undergoing the process which improves every other production of human skill; and more especially when new interests and new wants arise, which it was not originally intended to embrace. Still, whenever it was practicable, and consistent with the general plan of the revision, we have preferred to retain the important words of the present statutes, unless they have received a settled construction, which would not at once occur to an attentive reader. In these cases the language of the courts has been substituted, whenever it appeared ‘ more plain and easy to be understood.’ In doing so, and in expressing the supposed meaning of various statutes, we have been guided by the decisions of the chancellors and judges of our state, under whose examination almost every statute embraced in this part has at intervals been brought. Those decisions form a body of practical .construction and exposition, as honourable to those who made them, as they have been useful. Their utility will be consummated by transferring them into the very body of the statute which they illustrate and explain. And it is one of the results of the arrangement adopted, which gives us the greatest satisfaction, that it has enabled us to incorporate with the law the expositions it has received, and thus communicate directly to those who examine the statutes, for information and government, their sense and intent, as understood by the events. For forty years our statutes have been the subject of professional criticism and judicial exposition. For centuries those borrowed from England have been, in like manner, illustrated and expounded. If at this time a knowledge of their meaning and of their defects has not been attained, it probably never can be acquired. But it is believed that a meaning has been affixed to them, that their discrepancies and incongruities have been ascertained, and that industry and care only are necessary to comprehend that meaning, and to be apprised of those defects. It will, therefore, not be a difficult task to determine whether we have or have not faithfully rendered the existing law whenever we have professed to do so, and whether the imperfections we have supposed to exist are not such, and whether the suggested alterations are or are not necessary and expedient.” The Report in the same year, 1827, of the Committee of South Carolina, in favour of a code of the statute and common law, was thought so convincing, that it overcame the previous scruples of their legislature, and its execution was afterwards directed. Mr Wilson’s speech must have done much towards converting all whom argument was calculated to convince. According to his recommendation, the common law will be left in the extended form of a digest, instead of being compressed into precise enactments. He sees, like Bacon, a stronger objection to touching the form or language of the common law, than is felt by his professional brethren, the commissioners consulted in England or in New York. It cannot now be long before the two systems, as respectively proposed in New York and in South Carolina, are at work. The old English system remains undisturbed in the other states. Three several methods will therefore be then going on together under nearly similar circumstances. In each instance their practical effect must accordingly be soon observed. Considering the premeditation with which the English legislature proceeds, there can be little doubt but that some definite results, nearly decisive one way or the other, as to the obstacles which the peculiarities of the common law are supposed by some people to interpose in the way of codification, will thus have been arrived at in the United States, before it can be expected that the recommendation of the English commissioners shall come to be acted upon in England. The following is an apposite extract from Mr Wilson’s speech: “I would, in the first place, recommend a general and careful classification of the whole statute law, which should be printed and put in the hands of the citizens, with a well-digested index. All acts of a homogeneous nature should be reduced to one act, with reference in the marginal notes to the statute from whence it is taken. The verbose jargon of the acts should be reduced to precise and definite terms. The division should be into chapters and sections, so that a reference to any particular act, or part of an act, would be rendered easy. Immediately after the acts, should be noted the decisions of our courts upon them respectively, and the point ruled should be set down in plain and direct terms, and the point ruled only. So much of the common law as relates to the subject of any particular division, should follow in the nature of a digest. If this plan was well executed, a great deal would be gained. I would require the judges, when any new case arose which was not provided for by the laws, to give it the best determination in their power, which decision should be the law of that case; but it should be their duty to report the case to the succeeding legislature, so that a law might be enacted to meet future cases of the like kind. Thus, if the representatives of the people were true to their trust, they would be enabled to keep the laws in pari passu with judicial legislation. It is a fact, not to be resisted, that the judges make more laws than the legislature, notwithstanding the inhibition of the constitution, which specially requires that the three great co-ordinate branches of the government should be kept for ever distinct. I do not think it would be well, and certainly [7:13:188] very difficult, to break up the common law into legislative enactments. Lord Bacon has said, that the work which he propounded, ‘ tendeth to pruning and grafting the law, and not to ploughing it up and planting it again: for such a remove he held, indeed, for a perilous innovation.’ I agree entirely with this opinion. No legislative reconstruction of the common law should be attempted, nor would it be requisite. When the digest of it should be made and settled, the statutes classed and purged of their verbosity, contradictions, and uncertainties, a short enactment declaring the code to be the law of the land, as well with respect to the common as the statute law therein contained, would be all-sufficient. Thus, afterwards weeding out all the cumbrous references which, however useful now, as vouchers indicating the authentic sources of the text, would become useless when the text should be established as authentic in its own right; after settling the disputed points, by declaratory or explanatory enactments; and after constituting the digest in its own natural miscellaneous style, it would be practically found to answer every useful purpose of municipal law, better than the most copious enactments. Whoever undertakes the work must guard against the omission of any obscure or straggling rule, enactment, or decision, in any stage of the work. He should take care not only that each enactment, rule, and decision, be included, but that it be inserted in every division with which it can properly be deemed to connect itself. In the index, which will accompany each process of the work, the reference to every topic should be registered, not merely under one appropriate title, but under all the titles under which it could reasonably be sought. The marginal abstracts in each enactment, or other article, should be constructed in such a manner as to give to each word its appropriate sense and proportionate value with respect to the entire subject to which the particular article so abstracted or analysed may relate. 1 have thus briefly stated my views of the plan of a code, and suggested some rules to be observed in carrying the plan into effect. I hope I have satisfactorily established the following points:

“1. That our laws are in that crude and indigested state, that they are a mystery to all but those of the profession.

“2. That every nation, in its progress to civilization, has acknowledged the propriety and necessity of reducing its laws to the form of a code.

“3. That the practicability of doing this has been established by every people that have attempted it.

“4. That it is imperative upon the legislative authority to reduce the law to writing, and, when so reduced to a code, to promulgate it in a way so public that every inquiring citizen may know it.

“5. That to punish the infraction of an unknown law, which no ordinary diligence or foresight could have acquired, is against the dictates of common sense, as well as revelation.

“6. That much of the common law of England made of force here, partakes largely of the ignorance and superstition of the age that produced it, and should be abolished by legislative authority.”

The next stage in the history of English law reform brings us to the schemes or approximations towards a code, which have been at different periods unsuccessfully debated in the English legislature. From the reign of Elizabeth unto the present day, parliament has never lost sight of the necessity of an amendment of the law more or less extensive. Subject to two exceptions, it, however, never carried its views beyond a revision of the statutes. These exceptions are the criticisms of James I. on the common law, in his speeches at Whitehall in 1607 and 1609; and the directions submitted to the committees which were appointed in the years 1652 and 1653, during the Commonwealth. James, coming from the more liberal and scientific system which Scotland had borrowed from the civilians, and, moreover, a scholar of extensive reading, was naturally shocked at the pedantry, meagreness, and looseness, in which he found the legal system, if it could be so called, of his new kingdom. It was his favourite wish to assimilate, as much' as possible, the laws of England and Scotland; a wish since indulged in by Lord Hardwicke and Lord Kames, but equally in vain. If James had succeeded, the project could have been accomplished only by means of a code. The first of the Commonwealth committees was instructed to report generally upon the inconveniences of the law; the second, to consider of a new model or body of it. The first committee, of which Sir Matthew Hale was a member, reported a revised system of law to the house within the year. But it is plain, from the shortness of the time taken, that it can have been nothing more than asketch; perhaps detailing the general views contained both in his preface to Rolle, and in his considerations touching the amendment of the law, which have since been printed by Mr Hargrave. If the system thus reported had been, as Mr Cooper has described it in his Letters on the Court of Chancery (p. 153, note), un livre qui contenait un système complet des lois, it seems impossible that a work of this importance, from the hands of Hale, Cooper, and Rushworth, should have been lost. The reverence which from the first gathered around the name of Hale, and which has since faithfully abidedbyit, would have prevented such a result. Cromwell attributed his failure, as Ludlow has recorded, and as Mr Bentham rejoices in repeating, to a conspiracy amongst the lawyers, the sons of Zeruiah. But Ludlow was politician enough probably to be well aware of the real reason why “a reformation of the laws was so much desired by those then in power, and, on the other side, as industriously and warily r declined and shifted off' by many good and knowing men that were respected in those times.” At all events, Mr Bentham might have learned it in Hale’s fourth chapter “on some things necessarily to be premised, touching the matter, the manner, the persons, and the season of public undertaking for a reformation of the laws.” And Mr Cooper would have found there the utmost extent to which any parliamentary report or system subscribed to by Hale at that period could possibly have gone. “The things desired were many of them for the matter good; but the end and design, and the state and condition of things, would not allow of such an undertaking. And therefore those that were solicited to undertake that business rather chose to propound such things only to be done as might be done by the power of courts of justice, but declined whatsoever required a new law to authenticate it.” Lord Colchester, in a Report to the House of Commons on temporary and expiring laws, as early as 1796, set forth at length a long array of the several ineffectual attempts which had been made by parliament, year after year, towards a revisal of the statutes. The narrative has been subsequently copied into almost every publication directed to this object. The fail* ure cannot in fairness be laid at the door of the lawyers.^ As a body, they have been amongst the loudest to complain of the evil of the present system. But, doing so, they would have performed this duty very imperfectly if they had not equally protested against the quackery of insufficient remedies. The cause of the delay which has taken place is sufficiently obvious. In the successful commencement made by the professional commission at last appointed, the grounds of the failure of all former schemes for consolidating the law is at once explained. Parliament is really incompetent to the task. Nevertheless, it would never before, except during the commonwealth, intrust the task to a separate and permanent commission, capable of doing for it that which it was incapable of doing [7:13:189]for itself. If James I. could have taken as wise and prudent a course for the law of man as he took with the law of God (see his Letter, in 1604, to the archbishop, for the naming of fifty-four learned persons to translate the Bible), he might have identified his reign with another lasting service to the kingdom. At all events, if the work had been so completed, government would have set an example such as the public is entitled to expect from its superior station. It is true, the work might have been łfterwards thrown aside. This has been the case with the reformatio legum ecclesiasticarum, the code of which was prepared even at a still earlier period. The labours of Cranmer and the other commissioners who were appointed under 27 Hen. VIII. and 3 Edward VI. to correct the canon law, have ever since been unaccountably neglected, both in and out of parliament. The consequence is, that a great division of the English law, which, properly authenticated and amended by the legislature, might have lived and done the state some service, has lain, for upwards of two centuries, civilly dead, and covered with the dust of contempt and oblivion. The same neglect cannot produce the same consequences in the case of temporal laws. But it does something of the sort; much more, from the silence with which it works, than most people are aware.

Thus much for the puny and abortive adventures, or rather the inroads, made into this unknown territory by parliament itself. English legal literature has been a little more active. This literature begins with Coke and Bacon, and it opens with a demand for law reforms. James I. had, amongst other things, required that there should be one plain penal statute, taking care not to repeal what had been profitably woven into the common law. Of this, Lord Coke promised that, “God willing, somewhat in due time shall be performed.” Yet Coke left it to be begun upon by his successors, and they passed it on and on downwards to Sir Robert Peel. The distinction by which Coke acknowledges, that, “to reduce the penal laws into method and order were an honourable, profitable, and commendable work for the whole commonwealth,” yet ιdds, “for the bringing the common law into a better method, I doubt much the fruits of that labour,” is a distinction we do not comprehend. It is a distinction the less intelligible in the person of Lord Coke; since it is admitted by a vehement opponent of codification, that Coke’s great work, “under the title of Reports, is in truth a most masterly and powerful redaction of each head of law to which his reported cases bring him.” In other words, it was “a bringing of so much of common law into a better method.” The method and the service of this compilation were so universally recognised, that Bacon, notwithstanding his personal enmity, bears witness that, “to give every one his due, had it not been for these Reports, the law by this time had been almost like a ship without ballast.” Lord Bacon was both a philosopher and a lawyer. Great weight is deservedly attributed to his name, wherever it can be enlisted on either side of any argument. From the pertinacity with which the rival parties in this dispute have struggled to grace themselves with his sanction, it might be inferred, that, if his authority be great, his obscurity is still greater. This makes it necessary to examine, with some minuteness, the evidence, as it exists, concerning his opinions. It is admitted by the adversaries of codes, that his Aphorisms, taken by themselves, might mislead superficial readers. But audacious codifiers are remanded, for an answer to them, or an explanation of them, to the proposition made by him to James I., “touching the compiling and amendment of the laws.” The precise measures there recommended, it is said, conclusively control the general expressions in his Aphorisms. On a closer inspection, however,.it will be found that a comparison between the two leads to no alteration in either. If it did, the rule that, between two contradictory opinions, the latter abrogates the former, would oblige us to enlarge the practical measures of the attorney-general of the year 1613 into conformity with the deliberate maxims of the ex-chancellor of the year 1623; for the Aphorisms were the later work, and were originally published by him in 1623, as a portion of the first part of his Great Instauration of the Sciences. Bacon never appears to have wavered as to the necessity of something very like a code. It had been one of the first objects of his legal Jife, and it was evidently a favourite object with him to the last. Towards the close of the reign of Elizabeth, he thanks her Majesty “for having imparted to him a purpose, for these many years infused into her breast, to enter into a general amendment of the state of her laws, and to reduce them to more brevity and certainty.” By way of contributing to this end, he inscribes to the queen a selection of twenty-five out of three hundred maxims. He had set himself upon extracting out of the books the essence as it were of the law, with a general view to the amendment, “in some measure, of the very nature and complexion of the whole law; since particular positive learnings of laws do easily decline from a good temper of justice, if they be not rectified and governed by such rules.” The Aphorisms also, although published, for the first time, towards the close of his life, had been amongst the cherished meditations of his early years. They are in truth the self-same supplements which, in the Advancement of Learning, as far back as 1605, he had promised, “having begun a work of this nature to propound hereafter.” So far from their being in contradiction with the practical measures recommended by him when attorney-general, the measures are applications, and almost translations, of the greater part of them. It is thus shown, that the principles of his Aphorisms must have lain by him, carefully treasured up, as rules to proceed by, for many years. There can be no falser view of the conduct of the great father of experimental philosophy on this occasion, than to suppose that he was a lawreformer in the abstract only; or that his theory was one thing, and his practice another. The measures actually proposed by him are such as, were they to be agreed upon, would bring the dispute amongst reformers within narrow limits. His plan, as laid before James I. is as follows. It consists of three parts, Lŕ, a reforming and recompiling of the statute-law; 2cZ, a reducing and perfecting of the course of the common law as contained in the reports; and, 2dly, the further paternal office of certain introductive and auxiliary books touching the study of the law. For the sake of civilians, he has added in his Aphorisms a caution which, addressing a king of England, it would have been superfluous to include in the above practical arrangements. The English system has never acknowledged the direct authority of text writers. Bacon was, however, well aware of the encroachments by which institutional or legal literature had become authentic in the civil law, and also of the degree to which both legislative and judicial authority had been thus seriously undermined. Accordingly, he provided against the occurrence or continuance of the evil, in his seventy-eighth Aphorism. But there is further evidence that this great man separated theory from detail as little in law as in philosophy. In his old age, and after his disgrace, that is, contemporaneously with the first publication of the Aphorisms, he was as anxious as ever for the royal permission to realise their application at home. The renewal, at this mournful period, of his offer to the king of a digest of the laws of England, is at once a commentary on the permanence of his opinions, and a testimony of the earnestness with which he held them. “I have commended them,”he says on this occasion, “for the matter, but surely they ask much amendment for the form, which to reduce [7:13:190]and perfect, I hold to be one of the greatest dowries that can be conferred upon this kingdom! There is an air of touching and melancholy self-reproach, joined to a consciousness of the importance of the proposition which he was making, in his concluding words. One could almost imagine that he was looking to this occasion as a providential means by which he might indemnify his country for the scandal he had brought upon its justice, and might redeem in some degree his own judicial fame, “Your majesty is a great master in justice and judicature, and it were pity the fruit of that your virtue should not be transmitted to the ages to come. Your majesty also reigneth in learned times, the more (no doubt) in regard of your own perfection in learning, and your patronage thereof; and it hath been the mishap of works of this nature, that the less learned time hath (sometimes) wrought upon the more learned, which now will not be so. As for myself, the law was my profession, to which I am a debtor; some little helps I have of other arts, which may give form to matter; and I have now (by God’s merciful chastisement, and by his special providence) time and leisure to my talent, or half talent, or what it is, to such exchanges as may perhaps exceed the interest of an active life. Therefore, as in the beginning of my troubles, I made offer to your majesty to take pains in the story of Englaiid, and in compiling a method and digest of your laws, so have I performed the first (which rested but upon myself) in some part; and I do in all humbleness renew the offer of this latter (which will require help and assistance) to your majesty, if it shall stand with your good pleasure to employ my service therein.”

The importance attributed, and justly, to the opinions of so extraordinary a man, must be our excuse for going a little more into particulars, in order to show that there is no opposition to be reconciled. Indeed, on the contrary, the Aphorisms of Lord Verulam the philosopher, and the propositions of Sir Francis Bacon the attorney-general, throw light upon each other, and must have been meant to do so. The statute law is divided from the common law in the Proposal. The two are separated in the same manner by Aphorism 61. The Proposal divides the suggestions for the reformation and recompiling of the statute law into four parts. These agree with Aphorisms 54, 60, and 78. The common law he emphatically calls, in the Proposal, by way of distinction from the statutes, the laws of England. The way “to reduce and recompile” them, he conceives, should be laid down as follows: In the first place, he requires a full examination of the judicial records, that they may be set down and registered (rarely in haec verba), so as to show in order of time, not by title, the antiquities of the law. This recommendation coincides with Aphorisms 76, 86. In the next place, he requires that there should be prepared a complete series of the year books or reports from the time of Edward I. to this day, leaving out all such cases as are obsolete, and all such points as are merely idle queries; of identical cases, retaining those only which are best reported and argued, specially noting what cases have been so long militant, that they must be brought before the exchequer chamber or parliament to be set at rest; cutting off from prolix cases all tautologies and impertinencies, and rectifying errors by the record. These recommendations coincide with Aphorisms 60, 72, 73, 74, 75, 89, 91, and 92. A note subjoined to this part of his propositions shows to how late a period he was zealously watching and preparing the necessary means for carrying his scheme into execution. He observes, that, in order to secure competent reporters, he had obtained of the king, when he was chancellor, the appointment of two grave and sound lawyers, with a stipend of L.100 a year a piece. This constitution of reporters, he vainly hoped, was thus “settled for all times.” These were Bacon’s amendments of the past, and his provisions for the present. They might be expected to secure the future also, as far as human prudence can secure it. But Bacon was not content with this. Knowing the frailty of man, and the influence of the innovator time, Aphorisms 55, 56, 57, and 58, recommend, that, from every three to five years, parliament should revise the jurisprudence which had been forming during the interim. For this purpose, special commissioners are to examine into and report upon contradictory decisions, under express directions not to seek out ingenious distinctions for reconciling inconsistencies, so as, omnia, ut loquuntur, salvare. These commissioners are to be vested with the power, ex officio, of clearing away all obsolete laws, against which even courts of equity are to be authorized to decree. It is a sign of Bacon’s good sense in the affairs of life, that he did not embarrass the former measures of immediate urgency by adding this ulterior recommendation to those enumerated in the Proposal. When the law had once been reformed, it might have been introduced at any future time. Bacon’s third object, —the official composition of auxiliary books conducive to the study and science of the law,—was a distinct consideration, with which we need not trouble ourselves at present.

Now, the above statement proves two things beyond dispute. It proves, first, that by Bacon’s plan, the statute law and the common law were to be kept distinct; that each was to preserve its own ancient speech; and that, whilst he dared not advise casting the law into a new mould, yet both statute law and common law were to be alike consolidated, corrected, and arranged. It proves, secondly, that the entire body and substance of the law, thus consolidated, corrected, and arranged, should be authenticated as law by the express sanction of the state; and that the successive jurisprudence of the country should be constantly kept in order and in view, by being submitted to the legislature for revision at very short periods. English law reformers are contending more for a shadow than for the substance, who are not satisfied with this. Bacon expressly declares, that he does not mean to enter on the general question, whether text law, meaning thereby the articulate propositions of a statutory enactment, is or is not the most advantageous form of legislation. “It is too long a business to debate, whether lex scripta, aut non scripta, a text law, or customs well registered, with received and approved grounds and maxims, and acts and resolutions judicial from time to time, duly entered and reported, be the better form of declaring and authorizing laws.” Neither codifiers nor anti-codifiers can pretend, therefore, that they have any colour for conjecturing even what was the opinion of Bacon as to the general question of code or no'code. His argument, in its most universal form, is particular, and proceeds upon the dilemmas of a supposed complicated system. But two points are sufficiently clear with regard to the particular case of England. On the one hand, he held the new-moulding of the whole of its common law to be a perilous innovation; and, on the other hand, he contemplated a thorough reconstruction of its form. The method he proposed to employ for the “reducing and recompiling” of the common law, was the very method of a miscellaneous digest which has been lately recommended by Mr Wilson to the people of South Carolina. The difference between the two methods is a difference solely of arrangement. Bacon preferred an historical digest in order of time; Mr Wilson prefers a logical one according to the order of the subjects.

The late Mr Park objected that Bacon’s plan, if applicable to the wants of the sixteenth century, was inapplicable to the wants of the nineteenth. The two grounds on which this notion is founded, are equally singular. First, [7:13:191] it is surmised that the state of things which made a digest desirable in the age of Bacon, and even of Hale, no longer exists; namely, a want of books in which the law is exhibited with scientific coherence and development. The reign of James I. he observes, knew only of two abridgments, those of Brooke and Fitzherbert. He surely had forgotten the protests of Bacon, Coke, and Fleetwood, against abridgments, or he would not suppose that they were likely to set a high value on this department of our wealth. Only eleven treatises, he adds, were then to be found in a lawyer’s library; whereas we have at least two hundred treatises at present, some of them by writers of the highest ability and learning; for instance, Fearne and Butler, Mr Preston and Sir Edward Sugden. The extent to which Bacon would have allowed this statement to be an answer to any part of his recommendation, supposing the works enumerated to be as good as possible, can be carried no farther than this: We may dispense with the composition by authority of auxiliary books, according to his third suggestion. That is all. The poverty of their legal literature, and the superfluity of ours, are considerations which, as far as they apply to the other suggestions—the only ones with which we are now concerned—aggravate the comparative necessity of a code at present. For, what was the real object which Bacon contemplated when he required that, in a system as complex as that of England, the whole law, as law, should be put under legislative sanction? He expresses it in the motto to the first title of his Aphorisms, “de prima dignitate legum, ut sint certae." This title was the only title that he finished; and, on summing up, he adds that he gave it αd exemplum digesti reliqui quod meditamur. Uncertainty, therefore, was in his eyes the great grievance to be removed, and by means of a digest from out of all laws. At the close of the reign of Elizabeth, he had previously declared, that “the uncertainty of law is the principal and most just challenge that is made to the laics of our nation at this timed Can it be said that things are in this respect any better at present? and that it is to the number of its volunteer authors on this’ subject or on that, that the law of England is indebted for scientific development and coherence? In spite of its two hundred treatises, the uncertainty of the law, its inglorious uncertainty, still· continues to be its reproach. In case of this being denied, we answer by the celebrated reply which Lord Eldon made to the representation of the bar, when they requested that he would not encumber his judgments by the declaration of so many doubts. Mr Park’s second objection presumes, that a digest, if useful, practicable, and economical, when the reported cases lay in the compass of twenty-five volumes (their number when Bacon wrote), would be useless, impracticable, and ruinously costly, when they amount to somewhere about four hundred, as at present. The reader will judge for himself, whether Bacon would not on this very account have held that the want of a digest of the common law must be so much the more felt. The necessity for a digest of the reports, and for a digest of the statutes, depends on the same cause; and in both cases it must of course rise precisely in the same proportion with their voluminousness. The work, it is true, will require greater pains. The cost would be once only. Money advanced for a saving of time, of thought, and of error, is the best money that can be laid out. But this last objection, as it was already made in Bacon’s time, is one which we can reject in his own words, “Sciences must lead books, not books sciences.”

Half a century or thereabouts intervened between the propositions of Bacon and those of Hale. Burnet does not notice Hale’s service during the commonwealth, on the par-iamentary law commission. It had evidently been objected to him as an undue compliance with the times; but how falsely, is proved by his own account of his conduct as a commissioner. He verily believed, he says, owing to the very great earnestness of those who had gotten the power into their hands, “that anything which prudent and knowing men would have offered, might have been then passed for the reformation of things amiss in the law.” This belief imposed a consequent obligation upon him. He was bound to endeavour to recover for the public similar advantages, as soon as the political reasons were removed, in consequence of which, according to his own narrative, he had been accessory to the obstructing of the law reforms in the promotion of which he was nominally engaged. Hale was remarkable for the moderation of his opinions, for the superstitious extent to which he reverenced prescriptive authority in government, and for the unrivalled mastery which he possessed over all the mysteries of legal learning. However, notwithstanding the apparent prevarication incident to the awkward position in which he was placed, he was thoroughly honest; and the language which he used after the restoration, proves that he felt the obligation which he had incurred. “The very name,” he observes, “of reformation and of reformer has begun to be a style of contempt and obloquy, so that men are as fearful to be under the imputation of a reformer of the law, as they would of the name of knave or fool or hypocrite; on which account its sages dare not meddle with it, but let it live as long and as well as it can in the state they find it. Only, to save their credit upon such occasions, they meddle with some little inconsiderable things, as they set the price upon turnip and carrot seed; but nothing is dared to be done of use and importance.” He proceeds to excuse the generation immediately preceding for having left all schemes of legal reformation untouched. But his excuse is coupled with a warning to his contemporaries and their successors. “The truth is, that for the last forty years, little hath been done of this kind: the times were tumultuous and not seasonable for it: and indeed there is the more need, by reason of that intermission and chasm, that somewhat of this kind should be done. Indeed it may justly be feared, that if something considerable for the reformation of things amiss in the law be not done by knowing and judicious persons, too much may some time or other be done by some, either out of envy at the professors, or mistaken apprehensions or humours.” But little of this “something considerable” has been yet performed. In law reforms the authority of Hale in favour of really substantial changes is not and cannot be disputed. Our present question is, In the execution of his reforms, how far, and in what direction, would Hale have travelled towards a code? Are there sufficient means of learning? What he would not do, is abundantly evident, both by his Considerations touching the Amendment of Law, and by his preface to Rolle’s Abridgment. He would have had nothing to do with anything tending to the alteration of the government; nothing that would change the foundation or integral principle of the law; nothing that, by depriving the common law of its particularity, fitted to almost all particular occasions, would have left it to rest in generals. On the other hand, he saw that it was the very nature of the body of the laws, as in the rolling of a snowball, to increase in bulk in every age, till it became utterly unmanageable. “Every age did retain somewhat of what was past, and somewhat of its own, and so carried over the whole product to the quotient. And this produceth mistakes. A man perchance usetlì one sort of conveyance, where he should have used another. It breeds uncertainty and contradiction of opinion, and that begets suits and expense. It must necessarily cause ignorance in the professors, and profession itself, because the volumes of the law are not easy to be mastered.” From the unfinished state of the fragment which Mr Hargrave published, the whole extent and precise nature of the remedies[7:13:192] here contemplated by Hale cannot be clearly ascertained; but Mr Hargrave adds in a note,^[11. Hargrave’s Tracts, p. 275. ] that there is on this subject another manuscript of Lord Hale, which contains “ a chapter on the boohs both of the statute and common law, with a view to the reduction and digest of thenιT To this extent, therefore, the advocates of a code, it seems, are warranted in appealing to the authority of Hale. It is just what we should have expected from a paragraph in the preface to Rolle, notwithstanding the attempt that has been made to narrow down its general scope to the single object expressed in the· concluding words: α It were to be wished,” he says, “that some complete corpus communis juris were to be extracted for the contracting of the laws into a narrower compass and method, at least for ordinary study.” But that Hale had in view the use of the public in courts of justice, as well as that of students in a lectureroom or at a special pleader’s chambers, is sufficiently clear by his reference, in the preceding paragraph, to the precedents of the compilation of the laws of Rome by Justinian, and of those of Wales by Edward I.

Latter times ought perhaps not to be harshly judged of for allowing a question, which Bacon and Hale had been unable to bring to any practical conclusion, to go quietly to sleep. At all events, it is no wonder that the law partook of the general incapacity by which the eighteenth century will be known in English history. It was one of those comfortable periods in which, wearied with excitement or satiated with food, mankind seems sunk in a dose, and indisposed to trouble itself with comprehensive views, or the exercise of original powers, or the engaging in vigorous enterprises. Of all departments, the law is that in which the spirit of routine has ordinarily and properly the most undisputed way. The repose was far too profound in England to be interrupted by the various experiments towards a code which, from one end of the Continent to the other, were receiving the patronage of almost every sovereign in Europe. Savigny dates from the year 1746 the continuous series of Prussian legislation. It began under Cocceii with the Code Frederic in 1750. This led on in 1780 to the compilation of the Landrecht. The Landrecht was promulgated in 1794, and appeared in a revised edition in 1803. The same authority assigns to 1753 the first germ of the new Austrian legislation. It passed through the ordeal of the reigns of Maria Teresa and of Joseph II. and finally issued in the present Gesetzbuch, which was promulgated in 1811. During all this time Russia was equally busy, manufacturing and remanufacturing the project which had been commenced as far back even as the time of the father of Peter the Great. The Empress Catherine imagined, or affected to imagine, that she could construct, by means of barbarous deputations from distant provinces, a national legislation. The Emperors Alexander and Nicholas have condescended to take up this splendid scheme as a part of their imperial inheritance. Nicholas, we learn, promises his subjects a new code as the fruits of his law commission (Introduction by Μ. Dumont to the Principles of Codification, 1828; Annales de Legislation, t. i. p. 290). The youthful philosopher of Naples was so much the dupe of the first volume of the legislative romance of a Russian code of perfect jurisprudence, as to predict, in 1785, that all the inhabitants of Europe might some day receive their laws di questa sobria nazione. Il codice di Caterina (he adds) mi da piu di pensare che la sua flotta spedita nell ’ Arcipelago. In this foreign panegyric Filangieri had probably in view (as was usual with Voltaire on such occasions) an object nearer home. That object was to reproach his fellow-citizens for the opposition which bad stifled the Codice Carolina of Tanucci. Tanncci had been obliged to content himself with a much more scanty reform than what he had wished to introduce. What he hoped that he had secured, is comprised in a decree Del Raggionamento delle Sentenze, published in 1774. The end contemplated by the decree was, as far as possible, to compel the old materials to do the office of a code. For this end it was ordered that all suits should be decided according to an express text of law; that, in case of any ambiguity in a particular text, the judges should interpret it in such a manner that the two premises of the judicial syllogism should be founded upon express laws; that, when the legal argument could not be so framed, or the law was altogether silent, the judges should .apply to the supreme power of the state for assistance; that the authority of the doctors should be forthwith banished from the tribunals; and that every judge should publicly deliver in writing the grounds on which he founded his sentence. The argument published by Filangieri in defence of this decree, at the age of twenty-two,^[12. Filangieri, t. v. p. 346. ] is, all things considered, fully as remarkable a production as the Science of Legislation itself.

It is impossible to guess whether these continental proceedings would have ever attracted attention in England, but for the French revolution. The consequences of that event, and of the exciting discussions on every thing connected with law and politics which it provoked, were soon visible. It is true, that, for a time, reform was by most official persons, and by a great part of the public, considered as only another word for rebellion. But prejudices of this kind necessarily pass away with the alarm. Meanwhile the arguments and the appeals, the philosophy and the personalities, of Mr Bentham, began to attract the admiration of a very intelligent portion of his country, although as yet inconsiderable in point of numbers. They convinced some, and familiarised all, to views on legislation of a much bolder and more original character than had hitherto ever been presented by an English writer to the English public. It was not till 1817 that his papers on codification were first published. Within a year or two afterwards, they were themselves codified into French by Μ. Dumont. The principles had been sufficiently declared in his earlier works. It was not Mr Bentham’s fault that the world received from him principles only. He offered his services as a codifier to America, Russia, Spain, and Portugal, in succession. But, in cônsequence of his specific offers having been declined, there is extant no plan of a regular code prepared by him, but what is far too general to be of much use beyond the purposes of an outline. Of all Mr Bentham’s professional disciples, the only one who has come forward with direct propositions and specimens, is the late Mr Humphreys. In applying himself to the law of real property, and in undertaking to ground it anew on the three titles of enjoyment, transmission, and liability, he at once tried his strength with the most difficult problem in the whole English system. The approbation expressed in the Edinburgh Review by Sir Samuel Romilly, of Mr Bentham’s general views on codification, and the favourable opinion expressed in the Quarterly Review by Mr Butler, of the more special measures of Mr Humphreys, compose, in point of professional authority, as strong a presumption, as practical men can ever expect to have, in behalf of any theory seeking to be put upon its trial. The ablest papers on the question will be found in the several numbers of the Jurist. Mr Hammond has laboured only in the comparatively narrow field of statutory consolidation; for instance, on the masses of criminal law contained under the heads of forgery and game laws. Indeed the censure on written laws, which he has prefixed to Sir David Evans’s collection of the statutes, is so sweeping in [7:13:193]its principle, that he can scarcely be reckoned amongst the advocates of statutory enactment, much less amongst the advocates of codes. Mr Uniacke, on more than one occasion, has recommended an entire redaction of the law, after the manner of Domat; and, with the assistance of Mr Harrison, he has gone so far as to lay before the public one or two specimens of his method, for example, the chapter of evidence. Air Twiss appears to have adopted, as he certainly enforced, in his Enquiry into the means of consolidating and digesting the Laws of England, that part of Mr Uniackc’s views which relates to the correction of the very defective mode, both in arrangement and phraseology, in which the common law and the statute law have hitherto expressed their respective rules. However, suppose Mr Twiss to have to this extent lighted his taper at his predecessor’s candle, what does the illumination amount to? Merely to the suggesting, first, that, on digesting the common law, the leading principles and general rules on each subject must be extracted and laid down, with their reasons and diversities; next, that, wherever it can conveniently be done, the general rule should comprise the particular cases which it affects; but, where that cannot be attained, the particular cases should be placed in supplemental sentences. A similar course is recommended for adoption on consolidating the statute law. Instead of throwing all the particular cases into one integral and necessarily involved rule, the general rule ought to be extracted in a clear phrase by itself, and then a subsequent enumeration of the cases which fall under it should be adjoined. These suggestions are such as Mr Symonds would admit to be very reasonable. There is nothing in them, however, so ingenious or characteristic as to make them the peculiar property of any individual as their inventor. An inconceivable irritability seems to attach to almost all writers who have meddled with the subject, whether as friends or as foes. Otherwise, Mr Uniacke might have expected to accept gratefully a more lucid and elegant exposition of his argument than he had given to it himself. Mr Twiss expressly disclaimed any pretence to original invention. His particular object was simply to present the respective measures which better authorities had recommended, in such a consecutive order and relation, that each would be complete and available in itself, independently of those others which might or might not be executed after it. This he has done in a business-like sketch of the scheme by which it might be best managed; and, next, by pointing out what would be a proper constitution of the body which was to be intrusted with the work. The present law-commission may probably think that their own body is as well constituted for the purpose, as either the body proposed by Lord Stanhope in 1816, or the one proposed by Mr Twiss in 1826. Nevertheless, it may be well worth their considering whether it would not be advisable, in the execution of their task, to proceed step by step; securing, first the classification, next the consolidation, and lastly the re-enactment of the statutes previously consolidated; and, secondly, proceeding, first to the classification of the unenacted law, then to the digesting this with the former, and lastly to the imposing the legislative authentication upon the whole. In this manner, let the work proceed fast or slow, stop in the middle, or advance to its termination, every movement must tell, and not an iota of the labour so expended will be thrown away. We cannot dismiss this catalogue of names without expressing our respect for the zeal and foresight of the private lawyers, who, notwithstanding public indifference and public obloquy, have not feared to anticipate their age, and sow the seeds of a harvest which posterity will reap.

In England nobody has taκen a part in this discussion who has not admitted in the most unqualified manner the absolute necessity of very considerable amendments in the English law. To the legislative alteration of .certain defective principles the late Mr Park was ready to consent: further, however, he could not go. Acknowledging the evil of our judicial literature, and its inevitable tendency to become worse and worse, he could not bring himself to adopt any of the means by which codifiers seek to counteract it. AIr Cooper does not merely allow, he insists that a great deal has to be done.^[13. Lettres sur ια Cour de la Chancellerie, 1830, Appendix, p. 382. ] Nor would he stop with Mi-Park. We see no reason for supposing that he would keep out of the crucible of reform, as needing no amendment, a larger portion of the common law, than the most determined codifier also might exclude. His quarrel with the codifier begins with the further question, What are the most appropriate measures by which these necessary amendments should be effected? On this point, however, we have nothing more definite from Mr Cooper or from Mr Park than their contemptuous repudiation of a code. They have not divulged their secret, nor breathed a syllable, enabling us to judge of the character and efficiency of the reformatory measures which they propose to be substituted instead. In case no other measures are devised, or none which are adequate, what alternative remains for the English nation? We have to choose between the state of the law as it exists before the code, and the state of the law as it will exist after it, according to the best opinion we can form of an untried future. In other words, we have to choose between the suffering from the actual disorder, and the suffering from the proposed operation. Competent persons differ in opinion, which way the balance inclines at the present moment. It is certain, however, that a burden is daily accumulating in the scale which represents .our actual system; a burden heavier than our fathers have borne before us, and heavier than we or than our children can ever bear. The crisis in the legal history of England, foreseen by Mr Hallam, “when our laws, like those of Rome, must be cast into the crucible,” is at hand. It is a responsibility which her statesmen and her lawyers may well be excused for regarding with apprehension; but it is one for which, when it can no longer be safely avoided, it is their duty honestly to prepare. The important questions are, Is the time arrived? Are we equal to the occasion? How should it be done?

The objections mooted by Air Cooper and by Mr Park range at a wider distance. Agreeing with the partisans of codes on the nature of the present evils, they persist nevertheless in declining to entertain the question of a code. This appears, therefore, to be the proper place for shortly stating the grounds of their respective objections. They have paid considerable attention to the subject, and have written upon it with much of learning, and still more of warmth. Their writings, however, do not, if we properly understand them, contain the proportion of well-directed and determinate reasoning which an argument of this magnitude demands. Mr Cooper can scarcely expect that persons reading for information would be satisfied by general assertions of the following description. A code will plunge us in uncertainties; it will multiply litigation; it will lower the price of land; it will put us back to the condition of an infant people. Codes, instead of being called for by the people at large, or instead of having been the result of free naticnal legislation, have been almost always the gifts of despotic princes; codes are not wanted since the multiplication of the copies of law-books at a reasonable price by means of printing; parliament could never induce the best men to abandon the more profitable employment of [7:13:194]the bench and of the bar, in order to take their intellectual share in so very precarious an adventure, &c. These are dogmatisms, which, we candidly confess, go with us for very little; yet, we hope, for all that they are really worth. But some of Mr Cooper’s letters contain a great deal of very valuable instruction. We allude to the parts where he endeavours to distinguish between the actual condition of law and society in England and that of other countries, for the purpose of showing what may be the comparative exigency for, and what the probable efficiency of, an English code; again, when he points out the imperfections of the principal codes which have hitherto been devised; but, above all, in his endeavours to reduce within reasonable bounds the extravagant representations of what any code can possibly effect towards restraining law-books and lawsuits in an intelligent and flourishing society. Law reformers are not a kind of people to be charmed or intimidated by declamation. Nevertheless, all whom he can have intended to address would have been thankful for a complete and correct analysis of the advantages and disadvantages, in general, of legislating by way of codes, as compared with other systems of legislation. They would attentively listen to an historical statement of the advantages and disadvantages which had been practically experienced by particular countries on the adoption of codes. They are also fully aware of the use of judicious prospective calculations. If a similar balance-sheet, adapted to the case of England, had been thoughtfully prepared for them, they would have carefully studied its probable results, before permitting the experiment to be tried upon the existing elements of English law, and in the atmosphere which surrounds it. Towards this, Mr Cooper has done something; and so far he has done wisely and well.

Mr Park, in his Contreprojet to the Humphreysiam Code, and to the projects of Redaction of Messrs Hammond, Uniache, and Twiss, took up a position of his own. His circle appears a wide one; but it is in fact almost a single point. He abstains from entering into the general discussion for or against codes. He has been informed that Savigny had settled the general question in the negative. The province to which he confines himself, is that of showing that, whatever may become of the argument in other countries, the law of England is a law of precedents, dependent upon established maxims and rules of adjudication, and framed upon some peculiar principle of its own. He calls it the principle of systematic coherence and dialectic deduceableness. To this character he conceives codes or redactions must be alike fatal; for they must equally (as he opines) withdraw the law as a science from the mastery of its practitioners, and introduce a corresponding uncertainty into the decision of its judges. We fully admit the judicial origin of the greater part of the English law in times past. We even believe that the most important hints, and perhaps the most important materials of law and legislation, must continue for the future also to come out of courts of justice. Yet the question recurs, What possible good can the public derive from the above theory of assumed coherent principles, which the public cannot equally possess when the actually existing law is transferred into a code? Mr Tyrrell observes, that a considerable shaking of precedents must occur when principles are taken up and separated from their context. We agree, that upon transplanting maxims, a little time will be wanted before they take root kindly in the new soil prepared for them. But that is all. Besides this temporary annoyance is different, in different systems. In some, a single thread cannot be loosened but the whole web is ravelled up at once. In others, the system has grown up piecemeal and in the dark: it has started originally from no more comprehensive principle than the circumstances of the moment: it has spread by individual accretion only: it is kept together by cohesion rather than coherence. In this case, whatever principles and rules are hammered out at last, or rise up under the moulding influence of time, they exist there in so arbitrary and conventional a state, that the percentage of temporary inconvenience which may accompany their removal to a more favourable position must be cheaply purchased. If there are no principles and rules to be discovered, whatever precautions may be taken in dealing with a mere chaos of nominal authorities, is tenderness misplaced. But granting them to be in existence and in operation, it is impossible to believe that they cannot do their work as effectually in a code, as whilst they are scattered up and down in the floating repository of voluminous reports. Of the two presumptions, which is the more probable,—that the qualities of systematic coherency and dialectic deduceableness will be the natural accompaniments of a system which branches out from sound general principles, however originally derived, into plain didactic regulations? or that they will be the artificial consequences of a fictitious system, built upon an interminable series of specialties, called precedents; especially when it is considered that the very element of case-law involves so many points of variation, that, on any occasion, nobody can be sure that be is not exercising his logic upon a different set of precedents, or upon those specialties in the self-same precedent, which, after all, the judge may not consider as properly applicable to the case? There are embodied in almost every precedent, opposite analogies, with sundry hanging threads attached to them, any one of which a judge, who is a little capricious, may lay hold of at his pleasure.

In regard to the English system, Mr Park considered himself unquestionably safe upon ninety-five per cent, of the advice which he gave his clients. Mr Preston informed him, that upon an inspection of his opinion-books for thirty-three years, an average of not above three per cent, went on to judicial litigation. Here, exclaims Mr Park, are 33,000 cases intercepted in their course towards the tribunals. Now, we know why it is that codified France requires 5000 judges. Before any such use, to the disadvantage of the Code Napoleon, can be made of this closetcalculation, we must have before us the average of error and litigation incident to the consultations of French lawyers of equal eminence. Mr Park appears to imagine that there are no cases disposed of in this quiet way under codes, and that the French tribunals are all occupied in dispatching what English practice would have anticipated out of court. In trying the merits of the question—code or no code—by experiment, the judicial systems for the administration of each must be taken to be equally good; and the code must be something steadier than “a heaving ocean of jurisprudential ethics?” If it be answered, that the supposition of this inferiority in the judges and in the code is a part of the case, there is no use in continuing the discussion, except to say that the supposition is a pure assumption. It is one, too, as little warranted by fact or probability, as the opposite theory of Mr Bentham, whose delight it was to anticipate the golden age, when codification should have deprived opinionists of their bread. The statistics of litigation in different countries have as yet been far too imperfectly observed, to allow of our forming even a guess as to what would be the result, in this respect, of a comparison between France and England. We have no reason to believe that tlíe return would be unfavourable to the working of the Code Napoleon. But the advocates of codification in general, still less of English codification, are not bound to put their case on the issue of any single comparison. The case of England is too peculiar to be governed by the success or tailure of any of the codes of modern Europe. The peculiarities, as they are acknowledged to prevail up to our own times, are sufficiently striking. The testimony of Mr Park’s [7:13:195]favourite authority, Mr Preston, is decisive upon a subject, too, which, above all others, has exercised and exhausted for ages the learning of the English bar: although it seems, nevertheless, that it had been little studied as a science. “Till a recent period, the knowledge of this branch of the law (that of real property) had received a very moderate share of attention as a science. The rules of property were scattered in books on the subject of the laws in general...The knowledge of these rules was not to be acquired with ease. Much perplexity and confusion must have been experienced by the student, who, out of many disagreeing opinions equally specious, was to collect the one best supported by principles; on whom it was incumbent, from a number of particular cases, to propose to himself, or to extract, a genera! rule, and to mark the cases which were not within the reason or the scope of the rule. This was to be accomplished only by discriminating the very minute circumstances, by which cases within the reason of the rule were to be distinguished from those cases which were beyond or beside that reason.” If this were the case, till very recently, with the most elaborate and systematic part of the law, assuredly the doubt which sensible persons will entertain, is not so much, whether a code upon this portion of the law were wanting, as whether this particular portion were in a state ripe enough to be incorporated into a code. It is trifling with men, after a statement of this description, to tell them that the uncertainty is not in the law, but in the method of discovering it; that method being the only one you have. When a precedent is overruled, how is a suitor the better off for being told by Blackstone that there has been no change in the law; but that all that has taken place is, that an imposition has been unmasked, and a certain amount of supposititious law displaced to make way for the rightful interpretation. The law is a practical science. What can be that marvellous perfection which is consistent with being obscure, unmanageable, and inaccessible? What would be said of a musical instrument, which, from its size and complication, required a Polyphemus to play upon it? In law, as in morals, there must be a mistake somewhere, when what is called the theory is one thing, whilst the practice turns out to be something else. The desire of anticipating every possible exercise of discretion, through the instrumentality of refinements and subtleties, and by means of an enormous magazine of case-law, only opens the door to discretions of another class. We have admitted that there is a certain inconvenience attending the most, necessary changes. On constructing a code, a short intermediate period must elapse before it settles, as builders say. During this interval, however, it is some compensation, that, even from the first, the decisions will keep closer and closer to the merits; and that, according as the doubtful points become gradually fixed, they will be fixed on foundations which will not fail us. But Mr Preston says, that the law of real property has latterly acquired the character of a science. Let us take his single treatise on Merger. Its author calls it elementary. But it is considered as one of the most profound books in an English law library; and one must hope, for the sake of the English community, whether clients, practitioners, or students, that it is justly considered so (or what is to become of them under such a system of jurisprudence ?) when we are told by its author that the volume “contains at least 3000 propositions on subjects of every day’s occurrence.” Whoever may be called upon to codify the law of Merger, will owe much to Mr Preston. Books of this class represent at the present lay the writings of the jurists of the third century under the Roman law. They must at last have to be put to the same honourable use. Their authors are our Ulpians and Papinians, preparing the way for the Tribonian who is to come. Mr Hallam has said, that it will be a disgrace to the nineteenth century if it should not produce one. We pray, then, for better things.

Does England mean, as the master and the maker of English law, to fall back into the wake of the United States? If not, we may have no great time to lose. We have already shown how far New York and South Carolina are in advance. But the division of opinion upon this point, which exists in some quarters amongst our transatlantic coparceners in the common law, as well as amongst ourselves, seems with them to be more entirely a question of time, and not of principle, than is yet the case in England. In the meanwhile, the turn which it has taken there, appears to be both rapid and singular. It was only the other day that Mr Madison scarcely thought the offer of a code from Mr Bentham worth the trouble of acknowledging. The common law was a thing too sacred and tender to be touched. But that delicacy is over. Law, framed as the common law has been framed, will want reforming at some time. The only doubt is, whether lawyers of the years of our Lord 1823, 1836, are born too late or too early for the Herculean task. Mr Sampson has great merit for having taken the lead in disabusing his countrymen of their blind idolatry of the common law. He proposed, in his discourse of 1823, an immediate revision of it. His view would seem to be, that nothing is to be got by waiting till it gets worse. On the other hand, Mr Duponceau, in his Dissertation on the Nature and Extent of the Jurisdiction of the Courts of the United States, only begged of reformers, the year afterwards, to have a little patience. If they refrained a little longer, the judges would have substituted for the still remaining errors of these old Sybilline books more solid principles of jurisprudence, and we should have a common law worth codifying, “It is much better that things should remain as they are until the common law shall, by successive improvements, have attained its highest degree of perfection, and then it will be time to reduce its principal provisions to a text; for the details must always be left to the sound application of the principles of the system, as it is impossible for any legislator to foresee all the cases that may possibly arise. I think, however, that we are sufficiently ripe for a national system of commercial law, and therefore I have ventured to express a hope, that congress will exercise the powers which the constitution has given them upon that subject.” The particular question of time was submitted in 1826 to Mr Dupin. His answer, although diffident in form, is positive enough in substance. “As to the precise point of whether your country is ripe for such a digest, I do not undertake to decide it. I confess that, if our codes had been digested in the fifteenth, or even in the sixteenth century, they would not have possessed by any means the qualities which now recommend them. To produce them, it was necessary that the labours of jurists, the decisions of magistrates, and the experience of all classes, should have brought the science, as it were, to a certainty. Are you yet arrived at this point? You can answer this better than I can. I admit the force of the reason given by some of your adversaries, that a badly made law would tie up the judges, and prevent them from improving the system by degrees. But what are these improvements which they suppose must result from the liberality and the wisdom of the judges, but the exercise of arbitrary power? And is not this attended with most serious inconveniences? Bacon has well said, optima lex est quoe minimum relinquit arbitrio judicis, optimus judex qui minimum sibi. And yet there are persons in your country who would wish the judges in reality to be legislators. Can your nation, so enlightened in matters of politics and government, be only in arrear in matters of civil and criminal law?” Under these circumstances, the scruples of Mr Duponceau and his friends may perhaps be already over [7:13:196]come; for he has declared that he thinks “the common law is susceptible of being carried to the highest degree of perfection, and that he believes the honour of producing the result is reserved to the jurists of the United States.” It is impossible, therefore, to tell with what rapidity this process may be taking place, and when the propitious hour may happen to arrive. English jurists have nothing to wait for on either of these opposite suppositions. On the argument of Mr Sampson, they ought not merely to be content, but to make good speed with their actual materials for legislation. The rubbish gets deeper and deeper every year. According to the expectation of Mr Duponceau, they have nothing to stay for. The promised contributions to the perfection of our old vernacular jurisprudence are not to come from us. Unless, therefore, we mean to wait for the American Tribonian, we should do well, without more delay, to set about providing ourselves with a Tribonian of our own.

Mr Justice Story, in his Discourse on the Past History, Present State, and Future Prospects of the Law, delivered about the same period, looks on the mother country more favourably. He admits her into partnership in this heroic work. We cannot, therefore, do less than quote his advice. “The mass of the law is accumulating with an almost incredible rapidity, and with this accumulation the labour of the students, as well as professors, is seriously augmenting. It is impossible not to look without some discouragement upon the ponderous volumes which the next half century will add to the groaning shelves of our jurists. The habits of generalization which will be acquired and perfected by the liberal studies which I have ventured to recommend, will do something to avert the fearful calamity which threatens us, of being buried alive, not in the catacombs, but in the labyrinths of the law. I know, indeed, but of one adequate remedy, and that is, by a gradual digest, under legislative authority, of those portions of our jurisprudence which, under the forming hand of the judiciary, shall from time to time acquire scientific accuracy. By thus reducing to a text the exact principles of the law, we shall, in a great measure, get rid of the necessity of appealing to volumes which contain jarring and discordant opinions; and thus we may pave the way to a general code, which will present, in its positive and authoritative text, the most material rules to guide the lawyer, the statesman, and the private citizen. It is obvious that such a digest can apply only to the law, as it has been applied to human concerns in past times; but, by revision at distant^[14. Bacon says short. ] periods, it may be made to reflect all the light which intermediate decisions may have thrown upon our jurisprudence. To attempt more than this, would be a hopeless labour, if not an absurd project. We ought not to permit ourselves to indulge in the theoretical extravagancies of some well-meaning philosophical jurists, who believe that all human concerns for the future can be provided for in a code speaking a definite language. Sufficient for us will be the achievement to reduce the past to order and certainty; and that this is within our reach cannot be matter of doubtful speculation. It has been already accomplished, in a manner so triumphant that no cavil has been able to lessen the fame of the authors. The Pandects of Justinian, imperfect as they are, from the haste in which they were compiled, are a monument of imperishable glory to the wisdom of the age; and they gave to Rome, and to the civilized world, a system of civil maxims which have not been excelled in usefulness and equity. They superseded at once the immense collections of former times, and left them to perish in oblivion; so that, of all ante-Justinianian jurisprudence, little more remains than a few fragments, which are now and then recovered from the dust and rubbish of antiquity, i∏ the codices rescripti of some venerable libraries. The modern code of France, embracing as it does the entire elements of her jurisprudence, in the rights, duties, relations, and obligations of civil life; the exposition of the rules of contracts of every sort, including commercial contracts; the descent, distribution, and regulation of property; the definition and punishment of crimes; the ordinary and extraordinary police of the country, and the enumeration of the whole detail of the civil and criminal practice and process; is perhaps the most finished and methodical treatise of law that the world ever saw. This code forms also the law of Holland, and, with comparatively few alterations, has been solemnly adopted as its fundamental law by the state of Louisiana. The materials of it were to be sought for among an almost infinite variety of provincial usages and customary laws, and were far more difficult to reduce into system, than any which belong to the common law. It is left to the future jurists of our country and England to accomplish for the common law what has thus been so successfully demonstrated to be a practical problem in the jurisprudence of other nations, a task which the modest but wonderful genius of Sir William Jones did not scruple to believe to be within the reach of a single mind successfully to accomplish.”

Marvellous pains are taken, and with marvellous success, to make people misunderstand each other, to exaggerate the importance of the minor points upon which they differ, and to slur over or forget the far greater matters on which they are agreed. From the way in which Mr Bentham’s adversaries represent or rather misrepresent his opinions, their readers would not suspect him to have stated that there are three stages of legislation, of which it is the last which will terminate in a code. This view, or something extremely like it, is also that entertained by Savigny. In the muster-roll of names, it is repeatedly mentioned, that Thibaut, Feuerbach, Pfeiffer, Almendigin, Gonner, and others, have written in favour of codification; Schlosser, Hugo Schrader, and others, against it. We have had no opportunity of seeing the particular works alluded to. But we comfort ourselves in our ignorance of the fact, by the probability that the real bearing of their debate is confined to Germany; since this is true, even in the instance of Savigny’s celebrated essay upon The Vocation of our Age for Legislation and Jurisprudence. His very title significantly fixes the object of the work. It is addressed to the present age. This ought to have been enough to put honest readers upon their guard against drawing conclusions beyond the intention of the author. On reading it, it is plain that his general observations have a positive and limited reference, as much as his special criticisms. By no possibility can they be reasonably applied to any country but to one which is placed by its political circumstances, by the character of its laws, and even by the state of its language, as well as of its legal attainments, in the particular predicament which the whole of his argument assumes. Μ. Meyer has inscribed to Mr Cooper a very able essay, which we have -cited before for another purpose. We agree with him in the greater part of the opinions which he has expressed, and altogether in the conclusions in favour of codification at which he has arrived. But in criticising Savigny, he appears to us, in attacking him, to have mistaken occasionally the extent of this admirable scholar’s argument, equally almost with the English writers, who, without discriminating very accurately their right to claim it, have sought for shelter under his name. Savigny’s essay, at [7:13:197]the time it was published, was a political pamphlet against the French. Prussia had just cleared her soil of their bayonets, and her tribunals of their laws. Körner’s songs are not more the burst of triumph from a soldier at their military emancipation, than Savigny’s pages are the exulting gratulations of an enthusiastic lawyer on the recovery of his country’s legal freedom. The work did∙and does infinite credit to his patriotism. His statements, too, according to our understanding of them, we can have no difficulty in taking upon his own authority. The inaptitude of Prussian lawyers to legislate for themselves at present may be true to the letter. Trained up under the minutiae of the landreeht, it is natural to expect that this should be the case. Meyer ought to have borne these circumstances in mind; in which case, he would have made more allowance for the local and temporary spirit in which the argument of the Prussian jurist is not only conceived, but actually expressed. There are, however, essential differences in the legal principles and the habits of these two writers, and in their general drift of thought. Savigny is an ardent advocate of the historical school of law; Meyer of the pragmatic. Savigny looks to the traditions from which laws are derived; Meyer to the express sanction by which they are imposed. But when Meyer says, that if the system of the historical school be well founded, not only are written codes and positive legislations chimeras and impossibilities, but every attempt to arrive at them must lead to serious inconveniences, and adds, that Savigny thinks so too,— the observation is much too sŵeepingly worded. With the exception of a few bitter sneers at France, Savigny argues the case of Germany only. The single point he makes, is its incapacity at present to frame a code of any real merit, owing to the defective education of its lawyers, and the insufficiency of its language. His objection includes every species of legislation and jurisprudence; and only specifies codes in particular, because they are more prominent and arduous than the rest. Instead of saying that a good code is universally impracticable, he says just the contrary. Nay, he goes the length of saying, that by means of historical law-schools, well conducted, Germany itself will become qualified to frame one. But whether it would be prudent or not to do so; in other words, which system would be preferable, that of enacted or unenacted laws; is a further point on which, like Bacon, he abstains from intimating an opinion. It is no imputation on Savigny to state that the essay was written under great political excitement, and with the professed object of beating up a crusade against denationalization. Under these circumstances, we feel that it is not presumptuous to surmise, that if he could have honestly pronounced an opinion universally unfavourable to the adoption of a code, he would not have withheld it.

The following are the passages in which Savigny contemplates the euthanasia of the historical school. The first regards the substance of the law, as it will have been created by legal talent: “Let jurisprudence be once generally diffused amongst the jurists, in the manner above mentioned, and we again possess, in the legal profession, a subject for living customary law, consequently for real improvement; the practice of our courts of justice is but a clumsy substitute for this customary law, the practice of the law-faculties the clumsiest of all. The historical matter of law, which now hems us in on all sides, will then be brought under subjection, and constitute our wealth. We shall then possess a truly national law, and a powerful expressive language will not be wanting to it. We may then give up the Roman law to history, and we shall have, not merely a feeble imitation of the Roman system, but a truly national and new system of our own. We shall have reached somewhat higher than to a merely sure and speedy administration of justice; that state of clear perceptiveness which is ordinarily peculiar to the law of young nations, will be combined with the height of scientific development. Then, too, may future degenerate times be provided for, and then will be the time for considering whether this be done best by codes or in another form. I do not say that this state of things will ever arrive; this depends upon the combination of the rarest and most fortunate circumstances. What we jurists can contribute towards it, is an openness to conviction, and honest hearty co-operation.” The following passage regards the language in which this substance is supposed to be enshrined and communicated: “It has frequently been required that the code should be popular; and Thibaut also once refers to the demand. Properly understood, this demand may be complied with. For language, the most effective medium by which a communication of mind can take place, also checks and limits this mental intercourse in many ways. The best part of thought is frequently absorbed by this medium, in consequence of the incapacity either of the speaker or the hearer. But, by natural ability or art, this medium may be brought under such command, that neither sort of incapacity is any longer an obstacle. The thought passes over the varying characters and capacities of the listeners, and hits them in the common intellectual centre point. Then is it that the high are satisfied, whilst all is clear even to the low; both see the thought above them, in an elevated improving point of view; and it is within the reach of both. Thus, there was somewhere a miraculous image of Christ, which had the property of being a hand’s breadth taller than the tallest man who might place himself beside it; were it a man of moderate size, or a little man, that came, the difference was still the same, never greater. This simple, truly popular style, is to be seen (to speak only of our native literature) in our better sort of chronicles, but it may also appear in many other forms. Should we once regain it, many an excellent thing will be possible; amongst others, a good historical style, and, amongst others, a popular code.” Savigny plainly states the real grounds of his objections to be, not to a code qua code, but to a code made by the present contemporary generation, in consequence of their incompetency. “Thibaut sees the cause of the evil in the sources of the law, and believes that they could remedy it by a code. I, on the other hand, find it in ourselves, and believe, for this very reason, that we are not qualified to frame one.” The conditions which he requires for the purposes of composing a good system of law in any shape, are, according to his account, all wanting in Prussia. The first condition is unity of system. “To begin with the least important particular, let any man run over in his mind a number of the jurists now living, and ask himself, whether the existing law could be so much as systematized by their combined labours; he would soon be convinced of the utter impossibility. But that a code is a much greater work, and that a higher degree of organic unity must be required of it, is what no one will deny. In reality, therefore, the code, if it is not to be a mere lifeless, mechanical, and, consequently, worthless composition, could not be framed by such a committee, but only by an individual: the others would only be able to afford a subordinate description of aid, by communicating their advice and opinions on the occurrence of particular doubts, or by exerting themselves to purify the work when completed, by the detection of individual defects. But whoever admits this, must, as regards the present age, despair of the practicability of the proposal; for, to find that same individual the true lawgiver, is perfectly impossible, because, by reason of the heterogeneous character of the modes of thought and knowledge of our jurists, no individual can be treated as the representative of the species.” The next condition is, that laws, properly grounded and combined, must consist of leading axioms.
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t ∙ i To distinguish these, and deduce from them the internal connection and the precise degree of affinity which subsist between all juridical notions and rules, is amongst the most difficult of the problems of jurisprudence. Indeed, it is peculiarly this which gives our labours the scientific character. If, then, the code be formed in a time which is unequal to this art, the following evils are inevitable. In the attempt at material completeness, particular decisions, unnoticed by the framers, will be constantly crossing and contradicting each other, which will gradually come to light by practice only, and, in the case of a bad administration of justice, not even by that. This result would be clearly inevitable, so far as contemporaries are concerned, were an age, without being fully qualified, to fix its legal notions by legislative authority in this manner; but the effect of it would be no less injurious to succeeding times.” The last condition provides for the form of laws, and for the art of exposition and of expression, whether it be brevity or diffuseness which the occasion may require. We have extracted and brought into juxtaposition the above passages, with two purposes in view.

The reader will now understand what are the precise qualities upon which Savigny considers the faculty of making good law’s of every description to depend; there being no further particularity in the case of codes, but that the difficulty rises with the magnitude of the undertaking. On recapitulating the conditions, the reader must determine how far the English lawyer can comply with them. We cannot but think that the approximation is sufficiently close to encourage us in making the attempt. According to the degree that our conclusion is correct, England need not disclaim the vocation of her age to legislation and jurisprudence. To begin with the last condition, language; Latin was perhaps a better legislative language than even the Greek. French and Italian may have a similar pre-eminence in modern times. Yet there is no reason that we know of for believing that the vagueness of the English statute-book is attributable to the language, and not to the compilers of it. The next condition was a perception of the affinity between different juridical rules and notions. Notwithstanding the extent of the English law, and the consequent dangers hanging over it from day to day, its axioms, and what has been termed the science of legal judgment, have not yet escaped the grasp of the profession. In their talent for analogical reasoning, for seeing the proper legal relation in an individual case, and for an union of theory with practice, the existing English school resembles the Roman, as it existed at the best times of classical jurisprudence. It may be said equally of the great men of both, “Their theory and practice are the same; their theory is framed for immediate application, and their practice is uniformly ennobled by scientific treatment. They see in every principle a case of application,Tn every case the rule by which it is to be decided; and in the ease with which they pass from generals to particulars, and back again from particulars to generals, their mastery is undeniable.” But the resemblance between the two in the remaining condition is still more striking. “Amongst the Romans in Papinian’s time, a code was possible, because their aggregate juridical literature constituted an organic whole. It might be said (to use an expression of the later jurists), that at that time the individual jurists were fungible persons. In such a state of things, indeed, there were many ways leading to a good code; one jurist might frame it, and the others afterwards supply particular defects; which was practicable, because each individual jurist was then entitled to rank as the representative of the juridical cultivation of the time; or several, independently of each other, might each work out the whole, and, by collating and combining their productions, a new one might be formed, more complete than each taken singly, but homogeneous with all.” On these grounds, taken from the tests of competency laid down by Savigny himself we feel justified in submitting to his admirers, that a prima facie case at least is made out to this extent, viz. that the common law of England is capable, at the present moment, of being converted into a code.

It may be proper to remind all parties that England, on entering upon this labour, has two great advantages. They are advantages, in the degree to which she enjoys them, certainly peculiar to herself. The first is, the unity of her present system. She has no disturbing forces arising from permanent disparities of soil and of climate between different parts of her empire. She has no personal laws, the inheritance of races that refuse to amalgamate with each other. She has few' conflicting customs representing cherished recollections, and wrought into the character of respective portions of her population. The early centralization of her judicial system has prevented all this. She is saved from those embarrassments which the appeal court of Montpelier so forcibly depictured in their criticism on the compromise enforced by the Code Napoleon, between the laws and usages of the pays du droit écrit and the pays du droit coutumier. These were the obstacles by which James I. was foiled in his darling project of an union between the laws of England and Scotland. He could not succeed, even with the comparatively simple and flexible principles of the criminal laws. What is to be done in a case like that of Canada, where the French and English settlers make it* a point of national pride and national antipathy to cling the closer, each to their opposite systems of jurisprudence? Extensive variances of this description, whilst they constitute one of the great necessities for an uniform system of law throughout our Indian empire (if we mean to govern it by Europeans, and to govern it by law), also, on the other hand, constitute a great, though it is to be hoped not insuperable, difficulty in the execution of the task. It is unfortunate that, in this point of view, the practical difficulty of the task must always rise precisely in proportion to the abstract importance that it should be performed. Savigny would estimate very highly the advantage belonging to the unity in our materials; and he would be disposed to do this by the general policy of his historical creed. But all Prussians have been made sensible of it, from the tenderness with which Prussia has been compelled to humour her subjects on this very point. A government which, by breaking up the estates of its landowners, has invaded, and, in the course of a few years, overturned, the rights of private property; which has formed into codes at its pleasure the great body of its Germanized Roman law; and which had actually decreed that all provincial laws should be also turned into codes within three years; was nevertheless defeated here. They were unable to succeed in this last object, excepting in a single province, that of East Prussia; and they have since been compelled to suspend, if not abandon, their purpose in the rest.

The second advantage is scarcely an inferior one. If the remark of Sir James Mackintosh be correct, “that there is but one way of forming a civil code, either consistent with common sense, or that has ever been practised in any country, namely, that of gradually building up the law in proportion as the facts arise which it is to regulate,” too great value cannot be set on the quantity and quality of the judicial materials which the history of a nation may thus have collected in its course. It can be nothing but the intrinsic merit of the English reports which has extorted from Mr Bentham repeated panegyrics. “A library composed of the books in which these cases are thus brought to view,—such a library, even though there were not so much as a single law in it, is at any rate a rich storehouse of materials for legislation; [7:13:199]such a storehouse, that without it no tolerably adequate system of laws could be made. The more ample the stock, so that it be not to such a degree vast that the mind is lost in it, the more effectual the provision made for this most necessary and arduous of all intellectual works. The greatest quantity of wealth possessed in this shape by any other nation, is penury in comparison of that which has been furnished by English common law.” In the immense mass to which the repertory of its adjudged cases extends, it has well acquitted itself of that preliminary process on which Leibnitz set so high a value. Speaking of the writers of consultations, he has said that they are “almost the only juridical writers who really extend jurisprudence, and enrich it by the observation of new eases.” In his autoribus laudibile est, quod ηοvos emergentes casus perpetuae memorice consignant, or-bernque juridicum continua auctione locupletant, quod non faciunt autores exercitationum et commentatiorum semper vetera ruminantes.”

There is an ancient prejudice which has been conceived against the law, both by men of the world and by men of learning. It is high time that the prejudice were removed. This would be done as soon as ever means were taken to do justice to the good sense, the close reasoning, and just principles, at present buried under its forms. The science, however, must be reconstructed by authority, before the points and peculiarities of the law can, by a proper analysis and synthesis, be so separated and combined as to clear away unsatisfactory anomalies, and present its rules in a way which will bear examination. When Lord Mansfield boasted that the English law was a law of principle,die at least saw the means of making it so. He had made it so for himself. When Hald called upon every student to methodize the law in his reading, telling him, that otherwise he could never carry it in his memory for seven years together, or a much shorter period, he could not have stopped by choice at the case of individual students. He must have been prepared to call upon the legislature to take the same course, for the sake of the profession who were to practise it, and the public who were to obey it. The advantage of whatever method or principle can be put into the law is one of those advantages which ought to be diffused as widely, and put forward as prominently, as possible. These two things are so nearly connected, that we must not expect to get the benefit of one without the other. By the help of method, the true principles are brought to light; and then, by a philosophical re-action, the principles do as much in return, or more, towards assisting us to improve our methods. The perfection of both terminates in a code. With this view, Bacon’s collection of legal maxipis appears to have been one of his most valuable works, though only a small portion of them has been preserved. He speaks of them as the regulae juris, with their differences and limitations, warranted by good authorities, and set forth by discourse and deducement in a just tractate, “the thing most important to the health and good institution of laws.” He had seen little in this kind either in our law or in that of others which satisfied him, but he was so well satisfied with the beginning which he had made himself, that he had the confidence to assure his majesty, “I am in good hope, that when Sir Edward Coke’s reports, and mv own rules and decisions, shall come to posterity, there will be (whatsoever is now thought) question who was the greater lawyer.” It will be seen, when the English law is thus put into system, whether it can, equally with the Roman, deserve the commendation which Leibnitz bestowed upon the Roman, when he said of it, that he knew nothing so mathematical out of the mathematics.

The practical question upon which the estimate of a code, or, m other words, of enacted law, must depend, involves three distinct points. First, what are the evils inherent in unenacted law generally? next, what are those which are peculiar to the particular shape which unenacted law has assumed in England? These are matters of fact. There is a further question, how far the turning of unenacted into enacted law is likely to get rid of these evils. This must be comparatively a matter of opinion. These points have been anticipated more or less in our historical narrative. The inquirer is referred for a more particular detail to Mr Bentham’s papers on Codification, and to the comment on them by Sir Samuel Romilly in the fifty-seventh number of the Edinburgh Review. He will find there what is the nature of the unknown God from whose worship it is one of the principal objects of a code to set him free. These evils are reduced in malignity under the English system, and, to a considerable degree, are kept out of public sight, from the manner in which common law and statute law are there mixed up together. Otherwise a system of barefaced judge-made law, and nothing else, would not be tolerated for a day. It is true that laws, however constituted, cannot sustain the character of a people, when, from more powerful independent causes, the national character is falling into decay. It is true also that such a people will pull down their laws with them. Still it is a presumption against the possible stability and firmness of unenacted law, that all the admitted excellence of the expositions of the Roman jurisconsults of the third century could not prevent the civil law from getting into such a state of anarchy, that a code, put together by very inferior workmen, was acknowledged, universally, of two evils to have become the least.

There is a proverbial saying, by which law is denominated a necessary evil. The expression assumes, and assumes truly, that there are evils inseparable from law. Amongst these, are particular consequences, which it has been sometimes absurdly expected, or disingenuously represented, that codification would remove. We must mention a few of those which wise reformers never held, and which ignorant ones must instantly give up. The first of these fallacies, and almost the most absurd, is the imagination of such a thing as an immutable code. There is no such combination as “man and for ever.” We must leave to pretenders, playing at legislation, like Frederick the Great or the Empress Catherine, the fiction that a code may be a manual as cheap, short, and familiar, as a catechism; and that its immediate consequence will be the enabling the world to dispense with lawyers as a distinct profession. Instead of doing away with judges and lawyers, professionally educated, the effect of a good system must be quite the reverse. It is among the merits of a code properly made and properly studied, that it will want lawyers of a higher order, and that it will help to make them. The notion of doing without the profession of the law belongs to the region of the legal debates during the Commonwealth, in one of which it was seriously moved to burn the records. The unlearned member was of course proceeding upon Knox’s principle in ecclesiastical reform, viz. to displace the rooks by pulling down the rookeries. Flale had some trouble to bring the fanatics to reason. If the notion of simplifying the interpretation of a code by destroying the old authorities be absurd on one hand, equally so is the opposite notion, that the neglect of them will be the necessary consequence of a code. It is nothing to the discredit of the reforms by .Justinian (quite the contrary) to admit that, in case he bad been succeeded by enlightened times, the Jurisprudentia ante- Justinianea would not have been suffered to fall into oblivion. Is the question a different one with regard to the > contributions of contemporary legal learning? Not at all. Yet the government of Bavaria was insane enough, in publishing its new penal code in 1813, to follow it up [7:13:200]by an ordinance that no public servant or lawyer should print a commentary upon it. It was the plain consequence of such an order, as far as government was concerned, to abolish law as a science, to deprive it of all capability of improvement, and to perpetuate every existing blunder. The most appropriate and righteous censure which could be passed upon such folly, was the necessity which they had to submit to, of stultifying themselves by being obliged to add to this perfect work above one hundred novels within the four succeeding years. An attempt to repress what the French call the Jurisprudence des Arrets, by discouraging the preservation and the study of judicial decisions, under the alarm of being overwhelmed by them, is even still more prejudicial. For this is to dry up at its source the natural fountain, whose tributary waters, if duly analysed and conducted, are, from among many subsidiary means, the best qualified of all for supplying the code from time to time with whatever accessions it may require, and for maintaining it on a proper level with the wants and the intelligence of society. It shows the incorrigibleness of mankind, that most of these modern errors are only repetitions of the very errors which were committed by Tribonian.

The sooner all delusive hopes are laid aside the better. We are spared disappointment in quarters where nothing but disappointment is to be met with; and by concentrating our efforts in the right direction, upon objects within our reach, all that is attainable is more likely to be attained. Hew far is it possible to reduce the causes of litigation by giving to the law what Bentham has chosen to term cognoscibility 2 Every possible facility to litigation, wherever rights given to a party by the law are violated or withheld, is one of the most obvious, though one of the most neglected, duties of society. On the other hand, that it is extremely, desirable, and also to a certain extent practicable, to reduce the causes of litigation, which arise from the uncertainty of the law, nobody can deny. But, on comparing their respective amounts of litigation, with the view of testing thereby the merit of their respective legal systems, there are unavoidable difficulties in the way of a fair comparison between one country and another. Tabular returns from courts of justice, in the case of countries governed respectively by enacted and unenacted law, have, as was said above, never been inquired into with this object. But the tables are yet to be drawn up, which a person who knew what he ought to look for would be at the trouble of consulting. Tables, to be of any use for this purpose, must distinguish, by appropriate classification, the falling off in litigation, which is to be set down to the clearness with which a government has simplified or particularized its laws, from the falling off which as certainly would take place as often as a government had succeeded, by the help of complication, expense, or terror, in obstructing the entrance into its tribunals. Consequently we should not place much value (were they to be had) on numbers given in the gross, one way or the other. But there are facts in evidence which, whatever else may be their value, are fully sufficient to refute the assertion that codes must necessarily increase litigation. Filangieri, for example (t. v. p. 370), quotes from Eormey s abridged Exposition of the Royal Plan for the Reform of Justice, the example of Pomerania. In consequence of its having been proverbially called terra litigiosa, it was the first selected by Frederick the Great for his experiment. The result was, that law-suits became rarer every day. After such an event as the French revolution, how many causes, besides the legal novelty of the code, might explain a sudden rush into courts of justice. Meyer observes, that, in the Low Countries, and in Rhenish Prussia, authentic interpretations of the Code Napoleon, during the short time that those countries had been subjected to its jurisdiction, had so satisfactorily verified the greater part of its debateable points, that this class of litigation was already sensibly on the decline. We have no reason to believe that it is not the same in France. Again, although it is essential to improvement in the law that juridical learning should be cultivated, and adjudged cases collected and studied, yet it is as essential to one of the main advantages expected from a code, that its auxiliary literature should not supersede, and, as it were, swamp the precise letter of the enacted law. The character of cognoscibility would otherwise again belost. The opponents of codes have strenuously maintained that juridical learning comes of so progressive and masterful a stock, that a code cannot possibly escape from the alternative of all or none. The proposed dilemma leaves us to choose which of the evils we shall prefer. Whichever we may choose, we are asked in a sarcastic tone to calculate the mighty stakes which we have won, and to answer honestly, whether we find them worth the trouble which we have had in playing for them. On this point also the example of France is shaken in terrorem over England and America. All who would lay irreverent hands upon the ark of the common law, are solemnly and perseveringly assured that the drowning of the Code Napoleon in a sea of literature and jurisprudence, is already the most charac. teristic and undoubted fact in the legal history of France. This, by the way, were it correct, would be an ample answer to the narrowness and poverty of their legal learning, which Savigny conceived must be the consequence of the adoption of a code in the actual circumstances of that country. There can be no question that such a state of things as that described, supposing the representation accurate, would be a good argumentum ad hominem to any Frenchman who were to boast that the Code Napoleon had solved the problem. But it would prove nothing against codification in general; unless codifiers were to admit that the Code Napoleon, and the circumstances under which it had been introduced and administered, were all as good as possible. What, however, are the facts? In 1822, Μ. Dupin wrote his Essay de la Jurisprudence des Arrets, with the view principally of remonstrating against the excess to which French advocates were carrying, especially in the provinces, the citation of judicial precedents in their arguments. He mentions as a flagrant abuse (whatever English practitioners may think of it), an instance where an advocate had cited fourteen cases. The practice, he adds, sometimes passed from the bar even to the bench. This was thought to look ominous. Fortunately we have the positive testimony of Μ. Dupin himself, that, notwithstanding an occasional dip or so, the code keeps its head triumphantly above the waters, and easily shakes off these encumbrances. In 1826, Mr Sampson had been so perplexed by what he was constantly hearing of the warning to codifiers, contained in the present state of French jurisprudence, that he took courage and addressed Μ. Dupin personally. “We are told,” he says, “that the French codes have had but the life of a day; that the civil code, the model of all the others, is already almost buried by the multiplicity of laws, decrees, and commentaries with which it is loaded; and that, in a short time, the law will be sought for, not in the code, but in the solutions of its difficulties, and in the questions to which it has given rise. What degree of credit is due to the assertion ?” It was impossible to consult an oracle more above all suspicion than the lawyer who, four years before, was on the alert, and had appeared to be himself sounding the alarm. But nothing can be more satisfactory than Μ. Dupin’s answer on the question put to him. On the other hand, he properly recognizes and claims, in aid of a code, the full benefit of the just distinction between the learning of the jurist and the authority of the law. “The assertion,” he answers, “is not true, that the jurisprudence [7:13:201] of decided cases has prevailed in any way against the text of our codes; nor are we in any way threatened, even at a distance, with the danger of seeing the letter of our laws disappear under the load of interpretations. In every discussion, the text of the law is first looked into, and if the law has spoken, non exemplis sed legibus judicandum est. If the law has not clearly decided the point in question, its silence or its error is endeavoured to be supplied. But what country is there where decisions have not thus been used to supply the defects of legislation ?” That this is, therefore, the fact in France, we must take Μ. Dupin’s word; and we can have no difficulty in taking it. But the last paragraph admits that in France judge-made law is creeping in beyond what Meyer states it to have done in the Low Countries. And, though Μ. Dupin is protected against the error of putting the two sources of law, the legislative and the judicial, in opposition to each other, it is equally certain that inferior lawyers are equally secure. He had observed, in his Jurisprudence des Arrets, that nothing was more common than to hear the two things put in contradiction, law and jurisprudence. Il est de principe en droit que—mais la jurisprudence est contraire; d est-à-dire, les arrets ont juge autrement. After such a statement, he must not be surprised that strangers have been misled by his book, or that hostile readers of his letter should only use it in order to quote him against himself. Taking the letter by itself, all that is wanted in French legislative organization is an institution charged with the duty of condensing and carrying up the rectified spirit of their judicial decisions from the courts to the legislature. The legislature ought to permit no department in the state to exercise legislative power except itself; and it ought to be provided with the official means of duly discharging its trust. The province of the court of cassation, as a central and regulating power, is of infinite use. Its decisions are reported officially, but its province stops short of the still higher jurisdiction of the institution which is required for the present purpose. The necessity of a “council of laws” of this description has been frequently established by writers on the theory of legislation. It was mentioned during the discussions on the Code Napoleon, but unfortunately dropped through. Without it, any system of enacted law, however complete and correct, at a given moment, cannot long continue so. Jurisprudence must get ahead of law. Upon these points, therefore, how does the argument stand? Whatever may be the form in which laws subsist (code or no code), on either supposition fresh cases will be rising up, which are fairly determinable under the existing law, but only determinable by means of judicial interpretation. The question is, which of the systems offers the likelihood of the’fewest of these instances occurring, and, when they do occur, that a ready and a rational interpretation will be at hand? Again, on either supposition, fresh cases must also be rising up, which, not falling within the existing law, must be provided for, directly or indirectly, by further legislation. There are many reasons, in our opinion, why, upon both occasions, viz. that of a demand for fresh interpretation and for fresh legislation, the work would be better done under a system of enacted than of unenacted law. For the converse conclusion we are aware of no reason whatsoever.

On the supposition that a code is decided upon, there remain behind very important considerations, which have been incidentally alluded to in former parts of the present paper, but which the space that we have already occupied will not allow of our formally discussing. 1. Every species of preliminary aid ought to be forthcoming. By what inquiries, arrangements, and writings, shall we best prepare the way for the formation of a complete and correct code, and facilitate its practical introduction? 2. The best machinery for executing the work ought to be procured. Is it likely to be most effectually performed by a single presiding mind, as Mr Bentham proposes? or by a commission more or less numerous? In the latter case, the principle on which the labour is distributed amongst the persons employed will have to be well considered. At this stage, too, the main question of all comes to be determined; that is, upon what principle the code is to be drawn up. Are the common law and the statute law to be kept distinct, or to be incorporated with each other? In either case, is the form to be that of articulate propositions, or of a miscellaneous digest? If a digest, is it to be arranged by title and method, or by historically following the course of time? 3. A code will Avant protecting against encroachment, from the moment that it is passed. Accordingly, the collateral regulations which may help to secure it by a vigilant control over the judiciary, must be carefully reviewed. For this end, questions of the following kind should be anticipated and fixed. Ought judges to be required in every judgment to specify the authority in the code'on which their judgment is founded? Ought judges in pronouncing judgment, or advocates in conducting a forensic argument, to be restrained to a particular class of authorities? Concurrently with the formation of a code, a tribunal distinct from and raised above the ordinary courts (something like the court of cassation) may be wanted, in order to keep the ordinary administration of justice within the sphere to which it is one of the definite objects of a code that judicial interpretation should be confined. 4. Lastly, the code will want improving. This must be provided for by prospective regulations; by the creation of a minister of justice, or a council of laws, expressly appointed to superintend the unity and the efficiency of the entire system, and specially instructed to keep open an active communication between the tribunals and the legislature. Cases, either not provided for at all, or provided for imperfectly, will from time to time be brought unsuccessfully before the courts. The occurrence of such cases will direct the attention of the officers in question to a point upon which, it is evident, by the supposition, that new legislation is wanted for the purposes of justice. In other cases, which nevertheless have been successfully carried through the courts to final judgment, the interpretation of the courts will have wandered wider than is expedient from the strict letter of the law. The occurrence of this latter class of cates will point out the necessity of enlarging the provision of the'code into a more explicit conformity with the judicial construction put upon them. Theoretical writers, in contemplating the possibility of drawing nearer and nearer towards a perfect system, have perceived, that an institution of this kind is an indispensable condition. We repeat the observation here, from our sense of its importance. This is the object of the permanent commission recommended by Lord Bacon. And a council of laws for the absorption and assimilation of occasional jurisprudence into the general body of the law, is part of the political mechanism suggested in the “idea of a perfect commonwealth.”

We cannot dismiss this subject without referring the reader to the concluding observations of the Second Report of the Commissioners appointed to inquire into the Consolidation of the Statute Law (page 29). The Report bears date July 1835. The suggestions are the deliberate recommendations of practical lawyers, acting under the authority of parliament. On remarking how nearly they approach to the recommendation of a code (for the whole principle of a code is contained in the suggestions), the thinking part of the public may well feel satisfied with the quiet progress which the question is making from year to year. The time is evidently approaching, perhaps more rapidly than we are aware, when “a work rare enough in the memory of times to show it excellent, and yet not so rare as to make it suspected for impossible, inconvenient, or [7:13:202]unsafe,” must be undertaken by us. Glory and gratitude to the men who shall be privileged in that day to stand in the presence of their fellow-citizens, having so raised their minds, and shaped their studies, as to be worthy of the “vocation” to which our age and country are assuredly called. (e. e. ľ. e.)