The great acts of legislation, which have from time to time. appeared in the world, are divisible into two kinds, adapted to the occasions and the state of society which produced them. The first discovery which occurs to men, after having exchanged a separate and independent existence for social union, is the necessity of consenting to some fixed rules, which may determine the portion of individual free-agency that each member must resign, in return for the benefits of mutual strength and protection which he claims from the whole body. This consideration has led to the establishment of laws formed for the earliest stages of society, and founded only on original principles of mutual justice and utility: but universal experience has shewn that, in proportion to the duration and extent of societies, the laws adapted to their government have a natural and unavoidable tendency to multiply; and to become, from the fluctuations of manners and interests, perplexed, obscure, and contradictory. The second species of legislative labour has therefore been employed in pruning, digesting, and elucidating the unwieldy mass of jarring laws which the progress of time had accumulated. Without entering into a wider discussion on this topic, or going in search of all the historical illustrations of it which might be collected, we may adduce, as apt examples of our meaning, the Twelve Tables of Rome, and the Pandects of Justinian. The first of these was formed for society comparatively in its infancy; and the second was the result of that endless confusion into which the same laws had unavoidably run by the lapse of a thousand years. The task of reforming the laws of a country has been, in all times, a favourite object with those legislators who have entertained the ambition of securing a place in the memory of posterity: the most remarkable works of this character, in modern times, being the Body of Laws framed and published by Louis the XIVth in 1667, and the Code of Frederic the Great of Prussia, compiled for the government of his dominions in 1761.

We should have been glad if the limits of the present article had allowed us a free scope for discussing this interesting topic, with reference to our own country; and for considering more at large the agreeable speculations of those who are convinced that the present state of our jurisprudence requires a measure similar to the revision of the Roman laws by Justinian. This opinion is intitled to the greater weight, because it cannot be imputed to any modern spirit of innovation: for it is well known that Sir Francis Bacon, who was never accused of harbouring wild schemes of reform, laboured with great earnestness to procure a revision of our laws, which he proposed to methodize and reduce into one code. In pursuance of this favourite

measure,

measure, he drew up a plan, which is still extant, for the execution of that great work, assigning the reasons for its expediency; and, in justice to James the First, to whom that plan is addressed, it must be admitted that the design did not fail from any discouragement on his part: on the contrary, that Prince recommended the "Reformation of the statutes and acts of parliament as a worthy work, which it well deserved a parliament to be sat of purpose for it." At that time, the statutes were not one-tenth part so voluminous as they are at present the statutes of this reign alone being equal to more than one-third of the whole from the time of Henry the Third. A crude project was conceived and some attempts made towards the execution of it, in the Long Parliament; the failure of which has been attributed to the cabals of the lawyers, whose apprehensions for the loss of their profits induced them (according to the vulgar stories of that time) to hold secret meetings, and bestow large bribes in frustrating the design. This story, however, may safely be placed to the account of the violent prejudice which then prevailed against that body; and which occasioned, as Whitelock informs us, a solemn debate whether they should not be disqualified from sitting in parliament. The truth is that such a work, though likely enough to engage the fancy, was far above the skill of such workmen as would then have been employed about it; and we are neither to wonder nor to lament that the conception was not matured: but we may be allowed to regret the causes, whatever they were, which prevented the great and philosophic mind of Bacon from employing its powers in that noble undertaking: since a man so qualified for the task,-in whom penetration was so happily combined with experience, genuine philosophy, and the best spirit of antient and modern knowlege,-may not easily be found again. Yet the difficulty of the object can never occur as a decisive objection to any person who reflects on the state of the Roman laws when their reformation was effected under the auspices of Justinian; and who considers that the magnitude of the labour had been so much over-rated, that the completion of the design was effected in three years, being less than onethird of the period allotted by the Emperor for its accomplishment.

In France, however, besides the inconvenience arising from the vast mass of obscure, contradictory, and undigested materials of which the laws were composed, and which objection was common to those of all other nations whose laws are formed out of the accumulations of many ages, another imperfection called loudly for redress. This was the diversity and even contrariety in the laws which prevailed in the several provinces;

or the want of a common law of the land :—an evil which was universally acknowleged, but which was so deeply rooted as to resist all peaceable means of reformation, and manifested that any alteration could be effected only by a convulsion which broke down all antient establishments whatever. The opportunity afforded by the state of France, after the late Revolution, for correcting so injurious a system, could not be overlooked in framing a new government, by a legislator whose counsels possessed even the most moderate portion of wisdom. To set this matter in the clearest light, it must be recollected that France, like all the other European countries which fell by conquest under the subjection of the northern invaders, was parcelled out into distinct principalities or duchies; of which the chiefs indeed owned a nominal allegiance to one sovereign, but which were themselves subject to their separate governments, had distinct legislatures, and were regulated by institutions that had no dependence on the common head. The states were gradually swallowed up by the sovereignty, as far as the powers of government were concerned, but they still retained their own peculiar laws and regulations. England was the only one of those countries which had early attained an entire uniformity in this respect; and it is not an unlikely nor an unpleasing conjecture that the collection of laws promulgated by Alfred had this salutary object in contemplation. The separate states, into which the country had been broken, were indeed nominally formed into one kingdom: but it is probable that much of the local distinctions, peculiar to the laws and ordinances of each state, continued to prevail, and rendered the coalition doubtful and imperfect. It is indifferent, therefore, to the glory of that great and wise prince, whether he was the author or compiler of that body of laws which bears his name, if he sowed the seed of his country's greatness by first conferring on it that stable union which arises only from living beneath the same system of laws and civil polity.

Under the old order of things in France, the general or written law was every where modified and controuled by the customary or local law. Among the customary laws, were more than 180 that were general, and extending more or less over the various provinces; and these general customs were again modified by local usages. Neither the Salic Law, which was the first code of the Franks after their establishment in Gaul, nor the Capitularies which followed them, abrogated or entirely superseded the usages or customs of the countries in which they were promulgated: those laws only were abolished by them which were contrary to the regulations which they established. In other respects, the codes not only permitted, but

in

in some instances expressly directed, that the old usages should remain in force; and, after the antient Codes and Capitularies fell into disuse, these customs greatly multiplied. The monarchs of the Capetian line, in the charters by which they granted fiefs, prescribed the terms on which they were to be holden; and, in imitation of their sovereigns, the great vassals of the crown granted their charters for regulating the possessions holden of them. Thus each seignory had its particular usages; and such was their diversity that, throughout the whole kingdom, two seignories could scarcely be found which were governed in every point by the same law. Charles the Seventh, some time after he had expelled the English from France, (i. e. in the year 1453,) adopted a plan for ascertaining rather than reducing to uniformity these various usages. By his letters-patent, he assembled the three estates in each province; and, under the direction of this assembly, the judges, greffiers, and the other judicial and ministerial officers, prepared memoirs of all the customs, usages, and forms of practice, which they had been accustomed to observe from traditionary authority. These memoirs were laid before the assembly, who referred them to chosen committees, to arrange and report their contents. The minutes thus framed were read in the assembly; and the articles being separately approved or corrected, according to the knowlege and suggestions of the individual members, the whole was ratified and transmitted to parliament to be registered. The customs of each place, thus reduced to writing and sanctioned, were called the Coutumier of that place; and these were formed into one collection, and called the Coutumier de France, or the Grand Coutumier. As we may readily suppose, the variation in these customary laws was so great, that the Chancellor D'Aguesseau regarded the project of Bourjon, of finding out a common principle among them all, as wholly impracticable. The impossibility of superseding or of reconciling this variety of local jurisprudence frustrated all the good effects that were intended by the measure of Louis XIV.; and, while the excellence of the Marine Code of that monarch, which was not impeded by a similar obstacle, has led to its adoption as a standard by the consent of most European nations, the Civil Code became altogether ineffective.

In this state of things, the Revolution, by levelling the antient edifice to the ground, afforded the only possible means of removing the evil. Advantages that are purchased at a price so much above their value should least of all be neglected; and both the design and the execution of a systematic code, which might give to France the benefit of an uniform jurisprudence,

must

must be applauded as the wisest and most salutary measure which its existing condition could suggest. The several parts of the work were not published at one time, but the respective titles or heads were promulgated as each received the sanction of the legislature at different periods, between the 15th of March 1803, and the 25th of March 1804.

We shall now take a succinct view of the principal contents of the Code; which we shall do the more summarily because we have already performed the same task in our review of the Discussions on the Civil Code, (see Appendix to Vol. lv. p. 449. and Appendix to Vol. lvi. p. 449.) and shall consider this article as only a supplement.

The arrangement is the same with that which prevails in the Institutes of Justinian, and is the most simple and natural which the subject admits, viz. proceeding from Persons to Things.-The first title regards the Enjoyment and the Privation of Civil Rights. The second regulates the form of the Public Registries, or what are called Acts of the Civil State; a most useful and important ordinance, by which a register is provided for births, marriages, and deaths. Whether any provision of this sort existed under the old order of things, we are not able to say: but, if it be newly introduced by the present system, it is a strong recommendation of the good sense of the new legislators. The heads of Domicile and Absentees occupy the third and fourth titles. The regulations regarding the latter are numerous and minute; arising, probably, from the peculiar circumstances of the country, in consequence of the emigration caused by the Revolution.

-

The fifth title concerns the important subject of Marriage; which is divided into separate chapters, relating first to qualifications and conditions, and secondly to the formalities necessary to constitute a good marriage. The age at which marriage may be contracted is eighteen for the man, and fifteen for the woman: but it requires the consent of parents or guardians for the son who has not attained the age of 25 years, and for the daughter under 21. Of the formalities relative to the celebration of marriage, the most remarkable feature is that the ceremony is performed and the union declared by the civil officer, without any mixture of spiritual interference. This is a very wide departure from the antient establishment; and we shall venture to predict that the prejudices of old times will restore the solemnity of this institution to the ecclesiastics. The puritanical government formerly established in this country, in its zeal to depart as far as possible from the ceremonies of the Romish church, by an ordinance passed in 1653 abolished the old marriage-service, took it out of the hands of the miniREV. MAY, 1814.

F.

ster,