all the variety of cases, which the ceaseless activity and diversified forms of civil life produce, the legislature must necessarily, in prescribing to the judicial tribunals rules of decision, restrict itself to those of a general character. The excellence of a general rule, is, that it comprehends all cases, whether foreseen or not; but a particular rule only settles one individual case. If the legislature undertakes to give special rules, and to swell its code by making minute distinctions, with a view to decide particular cases, it will fail of making a complete enumeration, and the consequence will be that the cases not enumerated will be left without a rule, and must in the administration of the law remain undecided, or be determined by the arbitrary discretion of the court; that is, the court must make the law for them.

Jurisprudence is precisely the reverse of legislation. It acts only on individual cases, and affects the past only and never the future. Its sole business is to decide on preexisting rights under the rules of law in force at the time when the rights were acquired. It applies the law to the particular cases, which are brought for decision before the judicial tribunals. Habitus practicus legis interpretandi applicandique speciebus obvenientibus, is the definition of the learned and accurate Heïneccius. Ad Pand. Pars 1. 19. The legislature should never make rules for particular cases, but the law should always embrace classes of cases, and it is the proper business of the courts to apply these general principles to the individual cases as they

occur.

These observations may be illustrated by a cursory review of two essays in legislation conceived in entirely opposite views under the auspices of two of the most celebrated monarchs that have appeared in any age of the world, the Prussian Code framed under Frederic the Great, and the French Code, under Napoleon. The code of Frederic was not intended to exhaust the whole subject of legislation, or to be a complete body of law. It professed to be merely supplemental to the preexisting local and provincial customs. The consequence was that the local law was every where paramount to the general law, and the latter prevailed only where the former was silent. Thus uniformity, one of the great desiderata in legislation, was sacrificed to the unwise project of preserving the various and

contradictory customs of the different provinces. This was the first capital fault in the code of Frederic.

The second was still more pernicious. Frederic, like most despots, bore no good will to the profession of law, and it was a favorite object in his code to render the services of the bar useless in the administration of justice. To effect this it was necessary to annihilate the scientific character of law, and degrade jurisprudence from a science, having its foundations in liberal and philosophical reasoning, to the rank of a mechanic art. For this purpose the code avoids, as far as practicable, general principles and confines itself to the enumeration of particular rules; or if a general principle is incorporated into the code, the redactors, under the pretext of rendering it plain, proceed to give the application of it to the special cases that fall within its purview. If the enumeration is incomplete, as under a comprehensive principle it unavoidably will be, when a case arises not specifically foreseen and provided for, a doubt will always arise whether the case in question is to be considered as a casus omissus, or whether it is to be brought by analogy within the general rule. This question, however, was not left in doubt by Frederic. The code is supposed to contain a precise text for every individual case, and to ensure the extinction of the last glimmering light of philosophy, the judges are expressly prohibited from all analogical interpretation of the articles of the code. If the case does not fall within the precise words of the text, it is held to be a casus omissus, and application is to be made to the legislative power to cut the knot by an act of ex post facto legislation.

The Institute of Frederic, framed in this way, is something between a code and a manual, and considered in either view it is faulty and defective. As an analysis of the law it is deficient in philosophical precision, and in the developement of general principles, and as a manual, it is deficient in not giving all the special rules for individual cases that occur. Science is buried in a mass of details and general principles smothered under a crowd of worse than useless examples. The scientific jurisconsult, even if he were not prohibited from resorting to analogical reasoning in applying the law, would in vain look for those comprehensive and pregnant rules which enable him to decide by just and logical induction every case that may occur in prac

VOL. IX.-NO. XVII.

2

tice, whether foreseen or not by the legislature; and the untaught empiric, who chooses to be his own lawyer, will be equally disappointed, after wading through the mass of details and special provisions, in not finding the text that exactly suits his case. Defaut dans les vues et dans l'exposé des principes, inapplicabilité dans la pratique, brièvité sans concission, longueurs sans epuiser la matiere, c'est ce qui rend le code Prussien si peu digne de figurer au nombre des legislations q'on peut citer ou imiter. Meyer, p. 149.

The code of procedure is framed under the same governing idea as the code of law. The intervention of counsel in the origin and progress of a suit is studiously excluded, and the judges are required officially to render to the parties those services, which in other countries are performed by counsel. But the jealousy of despotism has not been able wholly to exclude professional aid. The lawyers, after having been carefully fenced out in all the preliminary and preparatory stages, at last find their way into the suit. The consequences of this vicious system, both in the origin and concoction of the code, is what might have been naturally anticipated. Notwithstanding the general integrity of the Prussian courts, aided by the frequent interposition of the king to put an end to suits and correct judgments, that are in manifest violation of the principles of equity, in no country of Europe is the event of a suit so entirely problematical as in Prussia, and the jurisprudence of no other nation offers so many tempting opportunities to the least reputable part of the profession to protract a suit to an interminable length by the arts of evasion and delay. Meyer, p. 146.

The first period of the French revolution, says M. Meyer, was fertile in grand ideas, and gave birth to a series of innovations on long established customs, which, for the extent of their influence and the rapidity of their succession, form a perfectly unique chapter in the history of the human race. One of these bold ideas was the conception of a uniform and universal legislation, which in its comprehensive terms should embrace every interest of man in civilized society, and by its brevity and simplicity should be on a level with the understanding of every citizen. This bold conception partook of the exaggeration of the era, which gave it birth. It was thought to be within the limits of possibility to reduce the whole body of law

to a series of abstract propositions so plain and certain, that any man of a common share of intelligence could decide all questions of jurisprudence for himself; the decision of every particular case being deduced from some general rule of law with all the certainty of a corollary from a theorem in geometry.' The fervor of innovation, however, gradually cooled, and people returned to a more calm and philosophical way of thinking. The jurisconsults recovered their influence over the public mind, which they had lost during the exaltation and fanaticism of the first years of the revolution. It was not, however, until three projets had been offered and rejected that the great work was finally completed under Napoleon.

The code Napoleon, in the opinion of M. Meyer, is by far the most perfect specimen of legislation that has yet been produced. The French law, as it existed at the time, furnished greater facilities for the formation of a code than the jurisprudence of any other nation. The basis of that law, except in the pays coutumier, was the civil law, which had been already methodized by the philosophic genius of the Roman jurisconsults. And every title of the law had been fully and systematically treated by such men as Dumoulin, Domat, and especially by Pothier, who, adopting the civil law as the substratum, had incorporated into systematic treatises all the variations, which had been introduced into the jurisprudence of their own country. The redactors of the code therefore found the law already formed to their hands, and for the most part arranged in as perfect an order as could be given to it. More than three quarters of the Code Civile, says Dupin, was taken from the works of Pothier, adopting not only his doctrine but the order, the divisions, and often the words as they stand in his treatises. Dissertation sur la vie et les Ouvrages de Pothier p. 114. The authors of the code, having such means prepared for them by men who, as jurists, have seldom, if ever, been surpassed in any age of the world, have thought themselves justified in presuming that it provided a rule for the solution of every possible

1 These exaggerated notions had not entirely subsided at the time of the redaction of the code. I had at first,' says Napoleon, 'fancied it would be possible to reduce all laws to simple geometrical demonstrations; so that every man who could read and connect two ideas together, would be able to decide for himself. But I became convinced almost immediately that this idea was absurd.' Las Casas' Journal, vol. 6, 133.

case that could arise. Acting on this bold hypothesis the code declares that The judge who shall refuse to decide under the pretext of the silence, of the obscurity, or the insufficiency of the law, may be prosecuted as guilty of a denial of justice.' Art. 4. Code Civile.

The French legislators,' says M. Meyer, who were profoundly versed in the knowledge and practice of the law, in order that they might safely assume this perfection, have followed two principal rules, which every legislator should continually keep in view. The first is that the law can contain only imperative dispositions; the second, that it should never descend to particular cases, a l'individualité. In conformity with the first rule, the legislature should give no definitions, unless the idea defined be dependent on the law. The law should never give a definition of a thing that exists independent of the definition. It is too hazardous to attempt to define that which exists in fact, and may not correspond exactly with the terms employed by the law. If definitions were within the province of legislation, it would follow that all which was not within the terms of the definition would be excluded from the operation of the law.

'In conformity with the second principle the law prescribes only general rules, and confines itself to genera, au genre. He who would descend to special rules, specialiser, much more he who proposes to apply the rule to individual cases, ought thoroughly to explore the subject, and to trace the rule into all the distinction of cases and to each individual case. To him it belongs to make distinctions, divisions and sub-divisions; and in him we expect to find the science, which deduces from the imperative dispositions of the law, a scientific whole, a complete treatise, a learned and methodical explication of the law. All this falls within the domain of jurisprudence; it constitutes the knowledge necessary for a jurisconsult and a magistrate. It is not the law, but it teaches us to apply the law, by particular rules, to the individual cases which present themselves in the ordinary transactions of civil life.' Meyer, p. 168-170.

The French code, so far from excluding analogical reasoning, relies upon it as forming a sort of complement of the text. Instead of spreading itself out into more than a million of distinct articles, containing as many special rules, in the vain hope of giving a special rule for each case, all these particular rules are