Rhenish provinces of Bavaria, the grand duchy of Berg, the Rhenish provinces on the left bank of the Rhine, of Hesse Darmstadt, Poland, Geneva; and though it has been in form abolished in other countries formerly subjected to it, yet in those countries which have since adopted codes, its principles have been in part incorporated, and its influence continues to be felt in their new laws. It is a saying originating with M. Michelet, and adopted by his countrymen, that the French law is winning Europe almost as rapidly as the French language; as already stated, according to M. Bigot Preameneu, it has become the common law of Europe. That it will extend its influence seems more than probable. The celebrated letter of the present French Emperor on the occupation of the Papal States by the French army will be remembered: "It is thus I epitomize the temporal government of the Pope;—a general armistice, the secularization of the administration, the Code Napoléon, and a liberal government." Notwithstanding the extent of our colonies, and of the United States, it is a question whether the spirit of the Code Napoléon in Europe, or that of our Anglo-Saxon system, at this moment regulates the affairs of the greatest number of civilized beings; and can there be a doubt, it will be asked, which of the two systems it would be desirable for mankind should most widely predominate?

It is extremely difficult for the practitioners of one system of law sufficiently to understand the peculiarities of another system, fairly to estimate the relative value of the two; and prejudice rather than reason is apt to incline the scale in favour of the one in which they have been nurtured. The English law has never been fairly dealt with by its own votaries. On the one hand, it was formerly cried up as the perfection of reason." 'Reason," said Sir Edward Coke, "is the life of the law,-nay, the common law itself is nothing else but reason, which is to be understood of an artificial perfection of reason gotten by long study, observation, and experience. By many successions of ages it hath been fined and refined by an infinite number of grave and learned men, and by long experience grown to such perfection," &c. The justice in part of this view has made it survive to the present

cerns.

generation, and still subsist; and a recent writer of standing and repute says, "If it does not arrive at, certainly it approaches, the perfect reason which Sir Edward Coke disOn the other hand, the current having turned, and set the other way, it has met with unmeasured vituperation, especially from the votaries of the Roman law. It has been denied all merit; its language has been described as a barbarous, heterogeneous jargon; its materials have been characterized as an immense chaotic mass of undigested details of positive law wanting system and arrangement, and beyond the grasp of the most powerful intellect! Our judges have been said to base their decisions on forms and precedents, rather than on general rules of law, and to be so wedded to detail that they are incapable of generalization and enlarged views; the consequence, it is further averred, is, that the law of England is unscientific and uncertain, leaving the judge at liberty to decide in one way or the reverse without any reproach on his probity or judgment. And one devotee of the Roman law has included our greatest lawyers (Sir Edward Coke, Lord Eldon, and most of our judges) in one sweeping charge of " applying the morbid acuteness of perverted intellects" to the affairs of man. The advocates of codification, too, have urged that it is an act of bare justice to the inhabitants of this or any country, 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 that our laws are so diversified as continually to clash, and so latent as to remain often unknown. The extreme views just referred to, like almost all exaggerations, have some basis whereon to rest; but a careful examination of the working of the English system, as compared with that of France, or any other country, would test their real foundation; and in the following statements we hope to further this object, and assist, in some degree, towards a correct, well-founded opinion on the subject before us.

From the prolonged and conjoint use of the English, Latin, and Anglo-Norman French in the pleadings, writings, reports, and records of portions of our law, continued down to recent times, many words from each of those languages have retained

their place in our phraseology, and not having in the people's mouth undergone the process of assimilation to our present English tongue, nor scientific culture, apart from technical use, -our law language is justly chargeable with some degree of rudeness and barbarism.

In point of arrangement, statement, and expression, the English law will not bear any comparison with the French code. There seems, as regards legislative enactments, to exist a singular inaptitude among us for the expression of law in a simple form. Let anybody compare a page of our statute-book with a page of the French statute-book, or code. The one lays down general rules in simple and terse language, the other is overwhelmed with verbiage and a multiplicity of detail. Our statute-book is admitted to be a vast tautological jungle. No doubt some slight improvement has been made in the wording of modern Acts of Parliament, but it has been by giving a special vocabulary to each statute (first defining in what sense words are used), so that in one Act they are used in one sense, and in another Act they are used in a more confined or more extended signification; and in a third, again, differently; and so on; thereby adding greatly to the difficulty of general scientific knowledge and cultivation of the law, each statute requiring us to forget the general legal signification of the words employed, and to study the specific sense in which they are used in it. This no doubt adds to the certainty of the meaning of that particular statute, but it offers great obstacles to the advance of the general science of the law. Nevertheless, though the speciality and individuality thus given to each Act of Parliament is detrimental to the law as a general science, it has great practical advantages; and the remarks of Mr. Macaulay so perfectly characterize our Statute Law, and the application of law to facts, that we cannot do better than repeat them. Speaking of the Toleration Act of William III., he says,—

"Of all the Acts that have ever been passed by Parliament, the Toleration Act is perhaps that which most strikingly illustrates the peculiar vices and the peculiar excellences of English legislation. The science of politics bears in one respect a close analogy to the science of mechanics. The mathematician can easily demonstrate that a certain power, applied by means of a certain lever or of a

A

certain system of pulleys, will suffice to raise a certain weight. But his demonstration proceeds on the supposition that the machinery is such as no load will bend or break. If the engineer, who has to lift a great mass of real granite by the instrumentality of real timber and real hemp, should absolutely rely on the propositions which he finds in treatises on Dynamics, and should make no allowance for the imperfection of his materials, his whole apparatus of beams, wheels, and ropes, would soon come down in ruin, and, with all his geometrical skill, he would be found a far inferior builder to those painted barbarians who, though they never heard of the parallelogram of forces, managed to pile up Stonehenge. What the engineer is to the mathematician, the active statesman is to the contemplative statesmen. It is indeed most important that legislators and administrators should be versed in the philosophy of government, as it is most important that the architect, who has to fix an obelisk on its pedestal, or to hang a tubular bridge over an estuary, should be versed in the philosophy of equilibrium and motion. But as he who has actually to build must bear in mind many things never noticed by D'Alembert and Euler, so must he who has actually to govern be perpetually guided by considerations to which no allusion can be found in the writings of Adam Smith or Jeremy Bentham. The perfect lawgiver is of a just temper between the mere man of theory, who can see nothing but general principles, and the mere man of business, who can see nothing but particular circumstances. Of lawgivers, in whom the speculative element has prevailed to the exclusion of the practical, the world has during the last eighty years been singularly fruitful. To their wisdom Europe and America have owed scores of abortive constitutions, scores of constitutions which have lived just long enough to make a miserable noise, and have then gone off in convulsions. But in the English legislature the practical element has always predominated, and not seldom unduly predominated, over the speculative. To think nothing of symmetry and much of convenience; never to remove an anomaly merely because it is an anomaly; never to innovate except when some grievance is felt; never to innovate except so far as to get rid of the grievance; never to lay down any proposition of wider extent than the particular case for which it is necessary to provide; these are the rules which have, from the age of John to the age of Victoria, generally guided the deliberations of our two hundred and fifty Parliaments. Our national distaste for whatever is abstract in political science amounts undoubtedly to a fault. Yet it is perhaps a fault on the right side. That we have been far too slow to improve our laws must be admitted. But though in other countries there may have occasionally been more rapid progress, it would not be easy to name any other country in which there had been so little retrogression."-(Hist. Eng. vol. iii. pp. 84-86.)

The authoritative expression of the Common Law is quite as bad as, or even worse than, that of the Statute Law. Our great

Common Law luminary, Sir Edward Coke, is a specimen rarely seen of want of order and methodical arrangement, absence of generalization, and accumulation of treasures of positive law without regard to scientific expression of general and abstract principles. At an earlier period we may boast of at least one Englishman who knew how to treat the subjects of jurisprudence. Lord Campbell, in his Lives of the Chancellors, vol. i. p. 162, speaking of Bracton, says, "For comprehensiveness, for lucid arrangement, for logical precision, this author was unrivalled during many ages." And in more recent times Sir W. Blackstone has given us an outline of the whole law, by which he has justly earned the title of an elegant commentator; and in the present day we have many learned and profound treatises on portions of the law which can well afford to bear comparison with the best writers of the Continent on the practical parts of the law within their scope. But in what is called juridical method we are still greatly behind the agc. The most popular book in the profession is, we believe, the late Mr. Smith's "Selection of Leading Cases," consisting as it does of reports of important cases decided in the Common Law Courts, with notes and comments on the subsequent decisions of the Courts down to the present time, but which from its nature can make no attempt at systematic arrangement. And as to deeper science, Lord Campbell's sarcastic remark, though perhaps carrying the matter a little too far, is not without truth. He says, in a note to the paragraph we have just quoted, "It must be admitted that juridical writing is a department of literature in which the English have been very defective, and in which they are greatly excelled by the French, the Germans, and even by the Scotch. The present state of the Common Law may now probably be best learned from 'The Notes of Patteson and Williams on Serjeant Williams's Notes on Saunders's Reports of Cases decided in the Reign of Charles II., and written in Norman French.""

It is also true that the English law reports have attained an unwieldy, unmanageable bulk, and this evil is on the increase. Having thus candidly admitted so much as we believe to be true in the arraignments against our law, we can with less risk of imputation of prejudice deny the alleged absence of science, and can state our firm belief that the English law is, when