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- or 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 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." 2 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. should it fail him. Nor should any party, as a general rule, be suffered to cross-examine his own witness. But this rule ought to be relaxed in cases of surprise and trick, as where a party has stumbled upon an adverse witness unknown to himself, and especially where means have been used to deceive him, either by the opposite party, or the witness himself. 15. As testimony at first hand from witnesses is alone to be taken, and never hearsay, so the best kind of evidence is always to be required; thus, if a bargain has been reduced to writing, it can be proved only by the written document; and all originals must be produced, and not copies or parole entries of their contents, unless the originals have been lost or destroyed, and without the procurement of the party seeking to prove their contents. 16. The law ought in all cases to encourage the reducing contracts to writing, by giving advantages in every instance to such proof, and by requiring it peremptorily in cases of any importance. 17. An opportunity should be afforded of registering all documents of importance, whether wills, or gifts, or contracts, or conveyances, or other muniments of title. Parties should be enabled to register every instrument, and to prove its contents by office copies, authenticated by the public officers, unless when any question turns upon the writing or appearance of the original, which should then be required to be produced. But either party should be entitled, at his own cost, to produce the original in cases where proof by an office copy is allowed. Parties should be induced to record documents by the law giving a preference to instruments so registered; and in cases of conveyance, the registration should be enforced, by giving posterior lenders, purchasers, or grantees, the prior claim, if their title has been first recorded. 18. In case of any miscarriage through the judge's fault at a trial, means should be afforded of reversing the decision, whether upon a question of evidence, or upon any direction given by the judge; and in case of manifest error in those who decide on the fact, a new trial should be allowed. But no relief should be given against the consequences of any oversight committed by the party or his advocate. 19. In all criminal cases a power of pardoning or partial remission of the sentence should be vested in the Executive Government; but this should be most cautiously and sparingly exercised, even on the application of persons unconnected with the proceeding, almost always under the advice of the Judge who tried the cause, never without fully consulting him. 20. Compensation should be made to a person tried and acquitted, unless where the acquittal was owing to technical mistake, or where there existed no doubt of the guilt, but the strict legal proof failed. Such are the general principles which should govern the Code of Procedure, civil and criminal, in every civilised country, and by departing from which the penal regulations of any country will become defective. But the head of procedure cannot be kept wholly separate from the head of rights and wrongs, actions and crimes; because the course of legislation respecting these will in every case materially affect the course of procedure respecting them. Thus the provisions touching contracts, or conveyances, will materially tend to make the remedy under them more or less expeditious, more or less certain, more or less expensive. So the provisions respecting offences will tend to make the prosecution, the trial, and the conviction of offenders more or less expeditious and more or less certain. Every one knows how greatly the severity of a penal code tends to facilitate the escape of criminals, both by disinclining parties injured to complain and produce proof, by disinclining witnesses to disclose all they know, and by disinclining courts to convict. The general principles of jurisprudence which we have now gone through are of universal application. It is even quite possible that the codes of all civilised nations should be constructed upon them, whatever be the difference of their governments, of their other institutions, of their religions, of their climates, of their characters, of their pursuits and occupations, of their foreign as well as domestic policy. There is no conceivable state of civilised society which would exclude their application, none in which the stability of the government and institutions of the country would not be promoted by their adoption, none in which the prosperity and happiness of the people, as well as the security and ease of their rulers, would not be greatly augmented by the operation of a legislative system thus framed. It is possible that an absolute or oriental despotism should be supposed unable to exist in its full force when the judges were named for life, and all judicial proceedings were public and independent. But still, even in such a state, the judicial system which we have been describing as perfect might co-exist with the arbitrary power of the sovereign; he might be suffered by the constitution to treat individuals as he pleased, and to change the laws at his pleasure; and yet if the perfect system was allowed to act wherever he did not interpose his authority, the greatest benefit would accrue to all the orders of the community, and a great security be derived to the throne itself. It must, however, be remarked, that in every country the laws have a tendency to become, in harmony with the circumstances of the state, accommodated to the form of its government, modified by the character and habits of the people, though in their turn they re-act upon the government and the people. Thus in monarchies the laws naturally tend to the descent of lands according to the rule of primogeniture; in republics they as naturally tend to a more equal distribution of real property. In aristocratic communities, land is apt to be regarded by the law differently from chattel interests. In both monarchies and aristocracies, there is a tendency to bestow privileges on particular classes, even in the ordinary transactions of commerce and of landed possessions. Governments have interfered in these and numberless other instances in the declaration of rights and remedies, as well as in the prevention or punishment of crimes, with a view to mould the laws according to the spirit of the political institutions, and to draw from the laws a support to those institutions. So the pursuits and character of the people have left their stamp upon the course of legislation; a mercantile nation's code differing from one wholly or almost wholly engaged in agriculture; a humane people giving its code a far milder aspect than the laws of a cruel and sanguinary nation. These modifications do not affect the soundness of the grand fundamental principles, nor even limit their possible application. |