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lence before us two vind, for we are minal Law, his, that

Philosophy. All else is but the vanity of speculation, and the pride of parts.

Before we proceed to the particulars of this Code, we must observe that the opinion of its brevity, the chief excellence for which it is admired, is founded on a mistake. We have before us two very bulky Octavos of a moderate type ; and more is still behind, for we are not yet made acquainted with a syllable concerning the Criminal Law, or the Juris. diction of the several Courts, &c. Add to this, that the work, when compleated, will not contain the whole Body of the Law, for it refers to another work already extant under the fame title. Now we will venture to say, that, making allowance for the difference of government, and the different ftate of trade and commerce between the two nations, our Laws are comprized in as little compass*; and do not abound with such endless tautologies and repetitions, which frequently perplex and confound the subject.

As the far greater part of these Volumes is filled up with dry disquisitions, which can only be agreeable to the Law Professors, we fhall confine our animadversions to those passages which may afford more general information and entertainment, beginning with the following extract from the Introductory Piece, which is called, A View of the King's Plan. " I do not think, says the Writer, that any oppression is to be dreaded froin the Great, because the superior Tribunal gives its Judgment in the same district in which the cause was first tried. It is not under the government of a just and powerful inonarch, in whose eyes all his subjects are equal, that we need to dread seeing Justice so wrested. And if the King had other notions, where should we find means to prevent Injustice ?"

The weakness and absurdity of these reflections are manifest : for, as we have already intimated, if a monarch, equally powerful, but not equally juft, should succeed to the throne, how is Injuítice to be prevented ? And what a comfortable system of Law must that be, which depends for Justice on tire personal virtues of a frail and short-lived being?

After this view of the King's Plan, follows a long Preface, then another Plan or Summary, then another Preface or In

* Our numerous Commentarier and Reports, &c. are not, amelly {peaking, a part of our laws; for though they often prove useful guides, yet their resolucions are not obligatory. B2

troduction;

troduction ; all which abound with tedious and endless repetitions. But perhaps it was policy to conduct us through fo many Chambers of State, before we were admitted to the presence of this Royal Oracle, who thus promulges his decrees under the head of Justice. " We prohibit the Judges to interpret it in doubtful cases, and under pretext of the intention of the law, and of an equity which very often has no foundation but in their own brains, to form, at pleasure, exceptions, limitations, or amplifications. They are, notwithstanding, authorised to apply and extend the law to all the similar cases, which the spirit and reason of the law had in view, though it may not have been possible to bring in every particular case.

“ Our will is, that when any point of this body of law Mall appear to the judges doubtful, and to need an explanation, they should apply to the department for affairs of jurtice, that they may give the necessary explanation and supplements. Doubts will be thus refolved, and we will cause pririt and publish such decisions every year. But our will is, nowise to allow the parties themselves to apply to us, under pretext of demanding the interpretation of a doubtful case. When that shall happen, we will indeed remit the petition to the judre-ordinary, with a rescript for the administration of justice; but we ordain, that the lawyer who figned the petition be fined in five rix-dullars..

“ The parties who shall find any law of this new body doubtful, must mention it in their informations or written papers. But if the law appear clear to the judge, and if he find it has no need of an interpretation, it will be sufficient if he pronounce sentence according to the dictates of his own confcience; and the party shall be at liberty further to propose his doubts, in the following calling, by way of grievance.

“Our pleasure likewise is, That the judges pay no attention to the rescripts which shall be manifeftly contrary to the · tenor of this body of law; for in giving them, we shall always fuppole, that, on the one hand, the reprefentation is founded on truth, and, on the other, that the rescript is agreeable to the tenor of the body of law. Thus the judges mast always give sentence according to the laws, without suffering themselves to be influenced by rescripts, which may be ob tained by a false representation, or contrary to the intent of the body of law. In like manner we declare, that whatever shall be ordered by such rescripts, contrary to the present or

dinance, dinance, shall have no force in law, and shall never be of any avail.

“ As to the orders which we shall give in our council, if the judges think them contrary to the intent of the body of law, they are to make their representation, and to ask new. orders ; and whatever thereupon Thall then be ordained and regulated by us, shall be put in execution.”

These Decrees are indeed truly oracular, for they are wrapt up in obscurity and ambiguity. Here we find that the judges are not to interpret according to what they think the equity and intention of the law, and yet they are to apply and extend it according to the spirit and reafon of the law. Reconcile this who can. Again, the judges are to pay no regard to rescripts contrary to the tenor of the body of law; and if the King issues orders in council contrary to the intent of the law, they are to ask new orders: but—what his Majesty ordains thereupon, shall be put in execution. So that it ultimately depends on his judgment and justice, whether the tenor of the law shall be observed or not.

In the 24th Section it is thus ordained, « Such Privileges as shall not turn to the prejudice of the public, nor of a third person, shall not be revoked by our successors, especially if they have been granted in consideration of services done to the state.” We confess, we are at a loss to conceive, by what means his Majesty can bind his successors, equally absolute as . himself, by this prohibition. It is absurd to think of laying any Restrictions on the supreme power, wherever it is lodged; and it is no less a maxim of natural Reason than of Law, that Statutes against the power of subsequent Statutes are not

binding.

In the concluding section of this head we find the followi ing inference: “ It follows, from what has been laid down as a principle, that justice consists simply in letting every one enjoy the rights which he hath acquired in virtue of our laws; that the question is here only of particular, and not of universal justice, under which philosophers comprehend likewise mo. sality, and which have occasioned subtile and unnecessary distinctions, which we have excluded from the present body of law; such are the distinctions of justice into distributive and commutative, and those of proportion into geometrical and arithmetical: And there is properly but one single general rule of right, namely this, Give every one his own.

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We profess ourselves as much enemies to subtlety as our royal Legislator; but though we are not fond of these refinements of Aristotle, and his Commentators, Grotius, Puffendorf, &c. yet we can conceive cases, wherein this simple Rule of Right will be an insufficient guide. In criminal matters, for instance, when the question is about the proportioning of punishments, these distinctions must neceflarily be taken into consideration.

In some instances, this Code descends to Minutiæ, which are really puerile and ludicrous. Thus, under the title of the reciprocal rights of Husband and Wife, we read that" The husband has power over the wife's body, and she cannot refuse him the conjugal duty.” Again, -" The wife hath the power of her husband's body, who cannot refuse to pay her the conjugal duty, when he is not prevented by fickness, or other accidents.”

Surely nothing can be more absurd, than to enjoin that as a Duty, which must flow from the spontaneous Impulse of Na.. ture: and it would be equally sensible, to compel'a man to be witty, by Law, as to be amorous. The Prussian Legislator, however, is not so precise as the pleasant Athenian Lawgiver, who went so far as to ascertain the extent of this Duty, “ too three nights, at least, in a month, if the wives were heiresles *." From the extreme moderation of this injunction, we may conclude that the Grecian was not over and above uxorious; and that a woman, who unfortunately was no heiress, was out of the protection of law, and must trust to the influencé of her own allurements. But to return from the Digression into which these whimsical institutions have betrayed us.

Under the head of Legitimation, we find, that children niay be legitimated by the Prince's Refcript: but it is added, “ The only privilege which such legitimated children acquire consists in this, that they cannot be reproached with the fault of the father and mother, and cannot be excluded from offices or communities.” The latter, indeed, are real privileges, but the former is merely imaginary ; for it is ridiculous to fuppose, that the Rescript of the Prince, or of any human Power, can wipe off a reproach which is founded on the inoral relation of things.

It must be confessed, nevertheless, that this Code contains many Institutions which may be copied to advantage. Under the Title of Dissolution of Marriages, for instance, are the following provisions. Plutarcbus Solone.

« A

Whe diffolution of be only gradu and all the modo; ob

« À lawful marriage, though completed, may be dissolved for several causes; namely,

“ I. By the death of one of the spouses, which is also to be understood of their civil death, when one or other of them is, proscribed.

“ II. When married people shall demand, with common consent, the diffolution of their marriage, our will is, that the procedure in the affair be only gradual. First, Endeavours shall be used to reconcile the parties, and all the motives that ought to determine them to this, shall be proposed; ob-, serving, if it be necessary, to call a clergyman, to give them a suitable exhortation. If these steps prove ineffectual, they shall be separated from bed and board for one year.

“ If, at the year's end, there remain no more hopes of reconciling the parties, and they persist in their petition, the marriage may be dissolved.

« III. The marriage may be dissolved at the request of one of the parties, having lawful causes to petition for its dissolucion; such are the reasons following:

“ IV. When one of the married persons shall have committed adultery, and been convicted of it; which shall be observed, even though we had granted such person letters of pardon.

“ From this rule must be excepted the cases following.

“a) If the spouse complaining, had also committed adultety; and in this case, we reserve to the fiscal the right of prosecuting both, for the public benefit. b) When the offended party has pardoned the other's fault; which shall be presumed, if such party had perforined the conjugal duty to the other. c) If one of the spouses had occasioned the other to commit adultery, as if such party had refused the conjugal duty, or if, for example, the husband himself had acted as a pimp to his own wife, &c. d) If the woman commit adultery, really believing that she has to do with her own husband. e) If the wife marry again, after having received credible accounts of her husband's death, and after having produced them before a judge, and the first husband appear again.

“ V. If a wife, against the inclination and prohibition of her husband, have a suspicious correspondence with a man, as if the wrote him love-letters, &c. for although the crime

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