laws, compose the body of civil law (corpus juris), which was commented upon in after times and formed the groundwork of the municipal law in most of the countries of Europe. But after the Roman empire was overrun by the Northern nations, their rulers and magistrates gradually formed legal systems for their own guidance. The principles of the civil law entered largely into these, but they were mingled with and modified by the customs and the habits of the Barbarians. Indeed so early as the latter part of the fifth century, and between the compilation of the Theodosian and Justinian Codes, the Visigoth Code appears to have been framed. It was in existence as early as 470, although extended and improved in 506, united with the Roman law in 652, and finally promulgated in its complete form by the Council of Toledo in 693. The Burgundian laws were digested about 501, the Salic soon after, then the Ripuarian; but all these continued long unwritten, the Salic and Ripuarian till the beginning of the seventh century. In 644 the Lombard laws were digested by Rotharis, although they received great augmentations under his successors; and, next to the Visigoth Code, they were held in more estimation than any of the Barbaric systems of Jurisprudence. Generally, however, throughout Europe, the civil law afforded the foundation of the legal structures. They formed the subject of all speculations and all lectures on Jurisprudence for many centuries; they monopolised the name of law; and to this day they have very high authority in almost every country, unless on matters which have been regulated by the arrangements of the law that grew out of the feudal system. In recent times the study of Jurisprudence has made great progress. The able and learned authors who have handled the subject, no longer confining themselves to the mere learning of the Schools, the arguments derived from mere authority of former writers, and from the institutions of lawgivers, have examined with boldness but with judgment the principles upon which the science is founded, and upon which systems of law ought to be constructed. Hand in hand with their enlightened and useful speculations have proceeded the efforts of governments to digest and arrange their laws in or systematic Codes. Frederick II. as early as 1750 gave one, though a very defective one, to his states, which was greatly improved and finally promulgated in 1794 by his successor, under the title of Land-recht · or National Law. The example was followed by Austria as early as 1753, and the work was completed in 1811, under the title of Gesetz-buch Book of Laws. In 1802 the most elaborate Digest of any age was given to France by Napoleon, consisting of Five Codes, civil, criminal, civil procedure, criminal procedure, and commercial. Great progress had been made under the Republic in preparing the first of these; and indeed, beside the old evil justly complained of in France, that there were above 300 different local laws existing in the country, the mass of enactments during the revolutionary times rendered a digest absolutely necessary. If the law writings of Rome had reached the bulk of many camels, the mere text itself of the Revolutionary laws seemed to approach this bulk; for in less than three years and a half nearly nine thousand laws had been passed. In 1833, a penal code was published for Bavaria. About the same time the Austrians gave a code in the Italian language to their dominions in Lombardy and Venice. Some years later a civil and a criminal code were promulgated in the Sardinian states. Finally, in America considerable progress has been made in the same important undertaking. Louisiana, New York, and South Carolina already possess codes; and the other states, to use their own phrase (borrowed however from the mother country1), are progressing in the same direction. Nor can any one who observed what passed in our own parliament last session upon Lord Brougham's motion, doubt that the able and learned Report of the Law Commission will ere long be adopted. In fact, the Criminal Code was introduced and read a first and a second time. The vast importance of the science of Jurisprudence needs not be dwelt upon any further. The interest which all lawgivers have to make themselves acquainted with its principles appears too manifest to require any illustration. But all "Let me wipe off this honorable dew That silverly doth progress on your cheeks." The use of progress as a verb is frequent with the writers of this age. ? Messrs. Starkie & Ker. men, especially all proprietors of land, of capital, of money, have a direct interest also in obtaining a general acquaintance with the law they live under, and promoting by all the means in their power both its study and its improvement. In former times legal learning was deemed so much a necessary branch of education with the upper classes of this country, that Fortescue records the singular fact of 2000 sons of landed gentry (filii nobiles) being in his time students of the different Inns of Court and of Chancery. That was in the reign of Henry VI. in Elizabeth's time not above half the number were so entered, and the Inns of Chancery afterwards became confined to attorneys and solicitors. : The object of the work of which this discourse serves for an introduction, is to promote all discussions connected with this department of science and of literature. And the manner in which it is proposed to render this assistance to the great work of making sound principles more accurately and more generally known, of furthering the improvement of the law on right grounds and with due care and due knowledge, and of checking the prurient and reckless desire of change which would adopt all manner of propositions merely because they offer something new, whether there be any value or even any safety in the suggestion or no, will be understood by looking at the prospectus of this work, but especially by attending to the execution of the plan in the present number. 26 ART. II.-RESISTANCE TO THE GRADUAL IMPROVEMENT OF THE LAW. Est modus in rebus; sunt certi denique fines, Παν το περιττον ακαιρον. HORAT. Gr. Anth. It is assuredly no part of our object in this paper to dwell upon the praise of moderation, the golden mean; a topic quite as threadbare as it is fertile. But inasmuch as there is no one department of human exertion in which a neglect of it is more fatal than in the political, and more especially in efforts for amending the law, and improving the legislation of any country advanced in civility and refinement, we deem that it will not be foreign to the purposes of this work nor useless in tendency, if we expatiate a little upon the peculiar necessity of moderation, and the dangers of unreflecting haste and extravagant attempts in the great work of law improve ment. It may safely be asserted that as the circle of the sciences presents no one subject of speculation or of study which demands more sound, practical judgment than Jurisprudence, so there is none upon which more temperance is required to guide the conduct of those who would alter the established system with a view to its improvement. In truth Jurisprudence is eminently a. practical science; its subject is all that men do, or suffer, or contrive; Quicquid agunt homines. It is also a subject to which a vast number of men are continually directing their attention, in which the community at large always feels a deep interest. Two consequences follow from hence; both the too long delay of needful reforms excites general and very great discontent in the country, and any error committed in the alteration of the law becomes at once generally known, because generally felt, and leads to a distrust of all improvement. Nor is it of any use to explain the causes and to point out the risks and the obstacles attending an im provement refused, or the accidental and temporary nature of the circumstances accompanying the operation of an improvement granted. The public mind is closed against all such arguments and appeals; and the clamour continues strong and general for a change in the one case, and against it in the other. If any one would form to himself an adequate notion of the effects, so contrary to the design, produced by pertinacity in refusing needful improvements, he has only to recollect the constant opposition made to all change in the law by Lord Eldon during his long reign over the department of justice and jurisprudence in this country. His repugnance to any improvement of the system was quite general and quite inflexible. No new measure proposed was so insignificant as not to fill him with alarm, rouse all his opposition, and call forth all his resources for resisting it. There seemed no proportion ever kept between the importance of the proposition and his hostility to it. Action and re-action were here not at all equal, and opposite; for the reaction was always in truth great though the momentum and force of the moving body were ever so small. It seemed as if he regarded the whole system as an arch, so that each stone was as material to its support as the key stone. It was as if he believed the whole existing institutions to be connected like important portions of the same fabric, which must crumble to pieces if any one fragment were moved from its place. He appeared to consider all existing laws as finally established like the laws of nature, and that whoever would counteract or attempt to alter them committed a sacrilege and deserved the fate of Salmoneus. Demens ! qui nimbos et non imitabile fulmen Ære cornipedum et pulsu simularet equorum. How often has he bemoaned the necessity of making some change to suit the political exigences of the times! But also how much more bitterly has he bewailed his cruel fate when compelled to yield to numerical force without any such necessity! On a pernicious and costly excrescence being lopped off the trunk of the legal tree, and the sap obtaining only the freer scope as well as the life of the great plant itself being preserved from decay, he advised the Lords, with all solemnity and in a pathetic strain, to hasten home with their |