to be absolute perfection, and the model of legislation to all the world. Far be it from me to deny its merits, in giving to France a reasonable and uniform code, in place of the discordant systems which previously prevailed in each province, and, together with many other excellent reforms, establishing in that land the trial by jury and the publicity of judicial proceedings. But its value has been greatly exaggerated, particularly in one respect. It is commonly believed in France, and by many here also, that the legislation of the Emperor Napoleon I. has brought the law of France into a state so perfect and intelligible, that any Frenchman desirous of knowing the law of his country on any given subject, has only to consult a small book which he can with ease carry in his pocket. A grosser delusion never entered the mind of man. The attributing to that legislation either unity, completeness, or immutability, demonstrates the most consummate ignorance both of the theory and practice of the law of France. In the first place, the laws of the Emperor Napoleon I. are not comprised in a single code: there are five bearing his name-the Code Civil, the Code de Procédure Civile, the Code de Commerce, the Code Pénal, and the Code d'Instruction Criminelle. But these neither contain, nor profess to contain, the entire law of France; various portions of which have been codified since, and much more remains uncodified to this hour. Many laws anterior to the first Empire are still in force in France, and all laws passed there by the legislature for the time being are regularly recorded and promulgated in the "Bulletin des Lois," which consists of a great number of large volumes. Nor has subsequent legislation spared the text of the imperial codes. Numerous and important alterations have been made in them, as any person who will take the trouble to look into the matter can easily ascertain and lastly, the Codes Napoléon, young as they are, have already begun to feel the characteristic evil of written codes-the being overrun with comments. There is that of Locré, in thirty-one volumes; that of Touillier and Troplong, in nearly fifty volumes (and on the Code Civil only); that of Pailliet; and that of Teulet, D'Anvilliers and Sulpicy; &c. In Germany there is less to censure, although even there jurisprudence is not cultivated as it ought to be. This is owing to several causes, but chiefly to one, which has also had its influence in other lands-namely, false notions respecting the Roman or civil law, and superstitious admiration of it. That law has had in truth a double existence: one in the land of its birth, and the other in countries which rose upon her ruins. The true way to dispel illusion on this subject is to advert to the great distinction that exists between the historical and the actual value of the Roman law. It is the law. of a people, who, whether for good or evil we need not now inquire, succeeded in planting their authority, their laws, their language, and their religion over a great part of Europe; and after the fall of Rome the roots of her law remained in those countries where it had been planted. Moreover, the Roman law was patronized by the German emperors, as a means of establishing a chimerical empire over all other nations; and had likewise the enormous advantage of being taken up and fostered by the clergy of the middle ages, who dovetailed it with the canon law, and, as far. as their power or influence extended, suppressed all other systems. By these means the Roman law has become the basis of a great portion of the general law of Europe. But this has little to do with its actual value. As well might it be contended that the Latin language, in which that law is written, is the finest of languages, because, owing to the operation of causes and the application of means not very dissimilar, it has become the most universal. With respect to the real value of that body of written law, the most opposite opinions have prevailed, and rarely has any system been more extravagantly lauded by its admirers, or unsparingly vilified by its enemies. Doubtless much may fairly be said on both sides. If the Corpus Juris Civilis contains the noble reasoning and philosophical spirit of the Pandects, it contains also the bigotry, the persecuting spirit, and the inanities of the Code; and even the Pandects consecrate the principles of domestic slavery and physical torture. So, if the Institutes are a clear and well-written summary of the principles of Roman law, they at the same time lay down political principles wholly inconsistent with civil liberty which, if worked out, would enthrone despotism all over the world. And many of the best things in all-Institutes, Pandects, Code, and Novellsare either borrowed from Greece, Egypt, or Judæa, or are principles of natural jurisprudence, which are likewise to be found in the laws of other countries which knew nothing of the laws of Rome, and, perhaps, never heard of her existence. Great and lasting would be the benefit to the human race, could the laws of Rome be reduced to their true level in the eyes of lawgivers and jurists! Some have carried this blind adoration of the Roman law so far as to declare it the sole fountain of international law. Learn international law from the Romans indeed-a people whose notions were limited to subjugating and plundering the world, and who, whenever they felt strong enough, trampled on the rights of every nation. And if the Roman law even were the base of international jurisprudence in Europe, how could its rules bind nations beyond its limits, who had never acknowledged the Roman name? One very mischievous consequence of all this is, that the views of European jurists have been limited to the extent of Europe; they seek for jurisprudence in the Rornan law or in that of their own countries, not reflecting that jurisprudence is to be found in and belongs to every nation, while it is the special property of none. The real jurist is not bound by the limits of Europe, or of any Gibbon's Decline and Fall of the Roman Empire, ch, xlix. vers. fin.; 1 Blackstone's Comm., 242. portion of the world. Having learned all that Europe can teach him, he turns his view to that part of the globe "Where the gorgeous East, with richest hand, Showers on her kings barbaric pearl and gold,"* and finds there systems far more ancient than that of Rome, and nearly, if not altogether, its equal in merit. To omit, for obvious reasons, all allusion to the Mosaic law, look at the Ordinances of Menu,† composed in Hindostan nearly 1000 years before our era, where we shall find, encased, indeed, in a system of priestcraft and imposture, a code showing the clearness of the views of its authors in the science of jurisprudence. Look, alse, at the digests of Hindu law, which have been translated by Halhed, Colebrooke, and Strange. We shall there find codes reduced into form, as in Europe, two of which extracted from Sir William Jones, ‡ deeply enamoured as he was with the Roman law, the admission that they "approach nearly in method and in merit to the Digest of Justinian." Nor need we confine our view to Hindostan. There is the code of Mohammedan law, called the Hidayah, composed about eight centuries ago, of which we have a translation by Hamilton, which demonstrates the existence in the East of another great people to whom the maxims of jurisprudence were familiar. Nor does the jurist stop at Asia. The codes of every nation, however savage, bring some light to this great subject, and the works of Grotius and Montesquieu are much enriched and strengthened by quotations from them. These comments lead naturally to the subject of comparative jurisprudence. One great use of this is, that it enables men to form just notions of the value of the law of their own country; prevents their either overrating or underrating it; shows us where we ought to borrow from other nations, and where they, if wise, will borrow from us; and thus acts as an excellent check on national vanity on the one hand, and undue depreciation of ourselves on the other. The obtaining correct ideas on this subject is a great step towards sound legal reform; for there it is necessary to guard against empiricism, and take care that in abolishing existing evils we do not introduce greater. There are two parties among us, one of which can see nothing wrong in the English law, and the other can see nothing right in it. The true philosopher and jurist looks on both with a smile of compassion. Then as to private international law—a subject whose importance is on the increase, and must ever go on increasing-its very existence rests on a knowledge of the laws of other lands as well as our own. This is so obvious, that to enlarge upon it would be waste of time. There is one respect in which I am apprehensive of being mis * Paradise Lost, Book ii. Ch. viii. on Judicature. Translated by Sir W. Jones. See his Works, vol. iii. understood. Nothing is farther from my intention than to attempt to disparage really practical men or true practical information, and were I capable of making such an attempt, in no part of the world would it prove more harmless than in England. The Englishman is essentially practical, rather too much so, for he asks the question of cui bono too soon: the danger a man incurs here is of becoming swallowed up in practice and neglecting principle, not of becoming theoretical or dreamy. The drill-serjeant's labours form the soldiers, who make up the army which defends the country, and all honour to him; but woe to the government that infers from this that the drillserjeant is fit to command and manoeuvre an army, much more to conduct a campaign. So of the practical man of the law. To him we resort for legal advice and assistance in existing difficulties as the law actually stands, and all honour to him also; but woe to those who convert him into a legislator. If what I have said should have the effect of dispelling any popular, professional, or national errors or prejudices respecting jurisprudence; and of promoting the cultivation of a noble science, the study of which is the only safe guide to all true legal reform; and teaches men obedience to the laws of their country, by showing that they are not a collection of arbitrary rules devised for man's oppression and annoyance, but a system designed for the good and happiness of all, and founded on fixed and for the most part rational principles; in short, that like the universe, it is "A mighty maze, but not without a plan;' my object will have been fully attained. Not that I pretend to say that much of the present paper is new. The necessity for law has ever been recognised by the human race, and the study of it in a scientific form has been recommended and practised by the ablest of its children. Of these I will only refer to one-the celebrated Hooker, and with whose words I now conclude. He looks on law in its most general sense, as including the rules which govern both intelligent agents and inanimate matter, and having defined it," That which doth assign unto each thing the kind, that which doth moderate the force and power, that which doth appoint the form and measure of working, the same we term a law;" he says, “Of law there can be no less acknowledged, than that her seat is the bosom of God, her voice the harmony of the world, all things in heaven and earth do her homage, the very least as feeling her care, and the greatest as not exempted from her power; both angels and men, and creatures of what condition soever, though each in different sort and manner, yet all with uniform consent, admiring her as the mother of their peace and joy." * Pope's Essay on Man, Ep. 1. Ibid, Book i., § 16. + Eccl. Pol., Book i., § 2. On the Election of Representative or Governing Bodies by Exhaustive Majorities and Unanimous Quotas of the Constituencies. By THOMAS HARE. AT our meeting at Bradford in 1859, I read a paper "On the mode of Electing Representatives in Parliament and Municipalities," and I will now briefly report to the Association the progress of the movement. My own labours, as well as my opportunities for diffusing a knowledge of the system, are necessarily limited. I had proposed three essays: the first, showing the result of the method in collecting in the representative body the élite of the community; the second, showing the manner in which effect would be given to the sympathies and opinions of every locality, and every combination of intelligence; and, in the third, it was my intention to have considered the operation, in the moral and mental culture of the individual man, of the habit of seeking out, and exercising his personal choice of those in whom his highest types of human excellence appear to be embodied. The first two papers were published in Frazer's Magazine for February and April, 1860. Before the third-and, in my estimation, the most interesting of the three views-could be prepared, it seemed to the caterers for the public taste that all interest in the improvement of representative institutions had departed. Since that time, in June, 1860, I read before the Statistical Society a paper "On the application of the method to the ascertainment of the votes of Majorities in a more exhaustive manner."* In a new and revised edition of my "Treatise on the Election of Representatives," published in 1861,† the method was greatly simplified. In a paper in Macmillan's Magazine for February in the present year (1862), on the University Election Act, I have treated on the same subject. A select committee was appointed by the House of Lords in the spring of 1860, to inquire, amongst other things, into the causes of the difference between large and small constituencies, in respect of the proportion of the registered electors who usually vote in contested elections. It appeared to me, and to others, that on pursuing the inquiry into such causes, the deductive reasoning, which is necessary, might be verified by gathering the individual experience of a number of competent persons; and to that end, I ventured to address letters to many gentlemen in the metropolis and large towns, a considerable number of whom favoured me with replies. The committee of the House of Lords, however, after consideration, refused to admit the information I had thus collected, and it was * Printed in the Journal of the Statistical Society, 1860, p. 337. |
