Philofophy. All elfe is but the vanity of fpeculation, and the pride of parts.

Before we proceed to the particulars of this Code, we muft obferve 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 ftill behind, for we are not yet made acquainted with a fyllable concerning the Criminal Law, or the Jurifdiction of the feveral 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 fay, 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 fuch endlefs tautologies and repetitions, which frequently perplex and confound the fubject.

As the far greater part of thefe Volumes is filled up with dry difquifitions, which can only be agreeable to the Law Profeffors, we fhall confine our animadverfions to those paffages which may afford more general information and entertainment, beginning with the following extract from the Introductory Piece, which is called, AView of the King's Plan. "I do not think, fays the Writer, that any oppreffion is to be dreaded from the Great, because the fuperior Tribunal gives its Judgment in the fame diftrict in which the cause was firft tried. It is not under the government of a juft and powerful monarch, in whofe eyes all his fubjects are equal, that we need to dread feeing Juftice fo wrefted. And if the King had other notions, where fhould we find means to prevent Injustice?"

The weakness and abfurdity of thefe reflections are manifeft: for, as we have already intimated, if a monarch, equally powerful, but not equally juft, fhould fucceed to the throne, how is Injustice to be prevented? And what a comfortable fyftem of Law muft that be, which depends for Juftice on the perfonal virtues of a frail and fhort-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 Commentaries and Reports, &c. are not, firely Speaking, a part of our Laws; for though they often prove useful guides, yet their refolutions 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 prefence of this Royal Oracle, who thus promulges his decrees under the head of Juftice. "We prohibit the Judges to interpret it in doubtful cafes, 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, notwithftanding, authorised to apply and extend the law to all the fimilar cafes, which the fpirit and reafon of the law had in view, though it may not have been poffible to bring in every particular cafe.

"Our will is, that when any point of this body of law fhall appear to the judges doubtful, and to need an explanation, they fhould apply to the department for affairs of juftice, that they may give the neceffary explanation and fupplements. Doubts will be thus refolved, and we will caufe print and publifh fuch decifions every year. But our will is, nowife to allow the parties themselves to apply to us, under pretext of demanding the interpretation of a doubtful cafe. When that fhall happen, we will indeed remit the petition to the judge-ordinary, with a refcript for the administration of juftice; but we ordain, that the lawyer who figned the petition be fined in five rix-dollars.

"The parties who fhall 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 fufficient if he pronounce fentence according to the dictates of his own confcience; and the party fhall be at liberty further to propose his doubts, in the following calling, by way of grievance.

"Our pleafure likewife is, That the judges pay no attention to the refcripts which fhall be manifeftly contrary to the tenor of this body of law; for in giving them, we fhall always fuppofe, that, on the one hand, the reprefentation is founded on truth, and, on the other, that the refcript is agreeable to the tenor of the body of law. Thus the judges muft always give sentence according to the laws, without fuffering thcmfelves to be influenced by refcripts, which may be obtained by a falfe reprefentation, or contrary to the intent of the body of law. In like manner we declare, that whatever fhall be ordered by fuch refcripts, contrary to the present or

dinance,

dinance, fhall 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 fhall then be ordained and regulated by us, fhall be put in execution."

Thefe Decrees are indeed truly oracular, for they are wrapt up in obfcurity 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 refcripts contrary to the tenor of the body of law; and if the King iffues orders in council contrary to the intent of the law, they are to ask new orders: but-what his Majesty ordains thereupon, fhall be put in execution. So that it ultimately depends on his judgment and justice, whether the tenor of the law fhall be obferved or not.

In the 24th Section it is thus ordained," Such Privileges as fhall not turn to the prejudice of the public, nor of a third perfon, fhall not be revoked by our fucceffors, especially if they have been granted in confideration of fervices done to the state." We confefs, we are at a lofs to conceive, by what means his Majesty can bind his fucceffors, equally absolute as himfelf, by this prohibition. It is abfurd to think of laying any Restrictions on the fupreme power, wherever it is lodged; and it is no lefs 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 follow ing inference: "It follows, from what has been laid down as a principle, that juftice confifts fimply 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 univerfal juftice, under which philofophers comprehend likewife morality, and which have occafioned fubtile and unnecessary diftinctions, which we have excluded from the prefent body of law; fuch are the diftinctions of juftice into diftributive and commutative, and those of proportion into geometrical and arithmetical: And there is properly but one fingle general rule of right, namely this, Give every one his own.

We profefs ourselves as much enemies to fubtlety as our royal Legiflator; but though we are not fond of these refinements of Ariftotle, and his Commentators, Grotius, Puffendorf, &c. yet we can conceive cafes, wherein this fimple Rule of Right will be an infufficient guide. In criminal matters, for instance, when the queftion is about the proportioning of punishments, these diftinctions muft neceffarily be taken into confideration.

In fome inftances, this Code defcends to Minutia, which are really puerile and ludicrous. Thus, under the title of the reciprocal rights of Hufband 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 ficknefs, or other accidents.

Surely nothing can be more abfurd, than to enjoin that as a Duty, which muft flow from the fpontaneous Impulse of Nature and it would be equally fenfible, to compel a man to be witty, by Law, as to be amorous. The Pruffian Legislator, however, is not so precife as the pleasant Athenian Lawgiver, who went fo far as to afcertain the extent of this Duty, "to three nights, at least, in a month, if the wives were heireffes *." 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 truft to the influence of her own allurements. But to return from the Digreffion into which thefe whimfical inftitutions have betrayed us.

Under the head of Legitimation, we find, that children may be legitimated by the Prince's Refcript: but it is added, "The only privilege which fuch legitimated children acquire confifts 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 fuppofe, that the Refcript of the Prince, or of any human Power, can wipe off a reproach which is founded on the moral relation of things.

It must be confeffed, nevertheless, that this Code contains many Institutions which may be copied to advantage. Under the Title of Diffolution of Marriages, for inftance, are the following provifions.

• Plutarchus Solone.

"A

« A lawful marriage, though completed, may be dissolved for feveral caufes; namely,

"I. By the death of one of the fpoufes, which is alfo to be understood of their civil death, when one or other of them is profcribed.

"II. When married people fhall demand, with common confent, 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, fhall be proposed; obferving, if it be neceffary, to call a clergyman, to give them a fuitable exhortation. If thefe fteps prove ineffectual, they fhall 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 perfift in their petition, the marriage may be diffolved.

"III. The marriage may be diffolved at the requeft of one of the parties, having lawful caufes to petition for its diffolution; fuch are the reafons following:

❝IV. When one of the married perfons fhall have committed adultery, and been convicted of it; which shall be obferved, even though we had granted fuch perfon letters of pardon.

"From this rule must be excepted the cafes following.

a) If the fpoufe complaining, had alfo committed adultery; and in this cafe, we referve to the fifcal the right of profecuting both, for the public benefit. b) When the of fended party has pardoned the other's fault; which shall be prefumed, if fuch party had performed the conjugal duty to the other. c) If one of the fpoufes had occafioned the other to commit adultery, as if fuch party had refufed 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 he has to do with her own hufband. 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 fufpicious correfpondence with a man, as if fhe wrote him love-letters, &c. for although the crime