The history of Jurisprudence remains to be shortly considered. In ancient Greece the materials of the study were exceedingly scanty. Sparta had no written laws; it was a part of the unnatural, absurd, and barbarous polity of Lycurgus — that is, of the early polity of which all the provisions are ascribed to him, its last collector and founder-to prohibit absolutely the reducing of the laws to writing. In Athens there were a considerable number of written laws; but as all their tribunals except the Areopagus were composed of great multitudes rather than presided over by benches of judges, the force of the law, except in extreme cases, could be but feeble, its application quite uncertain and precarious, its study as a system wholly impossible. We accordingly never perceive in the Greek writers, whether orators, historians, or poets, any thing like a reference to Jurisprudence as a subject of learning, or to the occupation of the lawyer as one for which men were qualified by previous training, except only in the rhetorical art, or indeed to the profession of an advocate as separated from the general vocation of an orator, that is, a statesman, a political adventurer. The Romans, somewhat late in the Republic, applied themselves to Jurisprudence as a study; but they had much earlier taken pains to provide the materials of this learning. At the beginning of the fourth century after the foundation of the city, the old laws were reduced to writing by a Supreme Council appointed for the purpose, together with such additions as they deemed expedient, chiefly borrowed from the Greek laws and customs. Ten tables were thus formed, afterwards increased to twelve, and were the foundation of the Roman law. But a fruitful source of legal enactments was provided in the single seated justice (to use Mr. Bentham's expression) of the Roman courts. The prætors, the greatest judicial officers, sate alone; one for the city, the other for the country districts: and upon entering into their annual functions, they promulgated an edict, or body of the rules which they intended to follow in deciding causes. These edicts in a great measure consisted of what were termed translatitious provisions, or those which were taken from the edicts of the preceding magistrates, and were thus handed down from one age to another. In part, however, they embraced new provisions adapted to the changing circumstances of society. The lawyers came by degrees to regard those edicts as so important that they wrote commentaries upon them; and the science of Jurisprudence was thus founded. It seems exceedingly difficult, considering the multitude of those works, of the edicts, of the senate's decrees or Senatus Consulta, of the people's decrees voting in tribes, or Plebiscita, to understand Cicero's boast in answer to some one who taunted him with his imperfect legal knowledge. He retorted by threatening if he heard such jibes repeated by technical men, that he would learn the law in a month when he happened to be unemployed, and so beat them all on their own ground. It is certain that in after times the number of the law books had enormously increased, and to their massive volumes and inextricable confusion we owe the great work undertaken by the emperors in the fifth and sixth centuries of our æra, when the works on Jurisprudence were said to have become "the load of many camels" (multorum camelorum onus), and yet the people were so ignorant of the subject, that if the name of any great jurisconsult was mentioned in society, it was supposed to designate some uncommon fish. Theodosius, in 435, caused the first Digest, called after him the Theodosian Code, to be made; and Justinian, in 530, commissioned Tribonian and other lawyers to prepare the Pandects, or an abstract of the whole civil law in fifty books, arranged under titles, and consisting of dicta taken from above fifty of the text writers. Ten years were allowed them to finish this task; they accomplished it in three; and a few weeks before the promulgation of the Digest thus formed, in 533, they published the Institutes, a more general and popular treatise on the whole law, in four books, remarkable for the admirable arrangement of its parts, the symmetry of the whole work, and the great clearness of the language in which the entire law is explained. The Emperor gave also to the world a Code of imperial law subsequent to the Digest: and these, with the Authenticæ or Novels, subsequently added from the Imperial rescripts, or answers of emperors to cases laid before them, but which under that most arbitrary government had the full force of 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 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 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 1 As in Shakspere, – "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. |