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men, statesmen, and jurists of the whole German nation; prizes were offered for the best remarks, which were furnished very abundantly by the German universities, which are combinations of professional schools of theology, jurisprudence, medicine, and philosophy. By this means, after it had been thus before the enlightened public, and had been repeatedly considered, it was finally published in 1791. This method of procedure would be advisable in this country, in bringing such a work to the highest state of perfection.
The Austrian Code. The compilers of this code were ordered not to confine themselves to the Roman law and the existing local laws, but in every point to follow the dictates of equity and reasonableness. The basis of this code was, after all, the Roman law, and the commentaries on it, contained in eight thick folio volumes. It was finished in 1767. From this Horten made an extract, which was prepared for the code by Martini. This code was then published, and communicated to the Austrian courts of justice, and universities, for their examination. After their criticisms, the work was again reconsidered, and then published as a code. They did not take advantage of the literature and science of the German universities, and learned men in general, in this business, as the Prussians did, and they thereby lost a very valuable coöperative influence, which was owing to the small degree of in
' Prussia, though entirely independent in its state organization, and though sustaining its own individual relations with the other powers of Europe, still having a German people, and situated in the midst of Germans, takes its part in all matters affecting the general interests of Germany, and is one of the most eminent members of the German confederacy. The same may be equally said of Austria.
? Zeiller's Vorbereitung zur neuesten Estreichischen Gesetzkunde. Wien und Triest, 1810. Band 1. Page 19–30.
tercourse between the learned men of the different provinces. It is certainly improper, intentionally, to neglect to hear the opinion of the most able men of the time. Thus the work, which, to have been perfect, should have occupied the scientific men of the whole nation, was accomplished by the state in its own isolated character. The isolation of the state diminishes the possibility of an entirely satisfactory result of any general enterprize. Therefore the code formed under these circumstances was far less favorable than it otherwise would have been ; but yet it must be acknowledged, that the code possessed great merit for the clearness with which it has given the general principles and rules, although it needs more precision.
The French Code. At the compilation of this code, several circumstances conspired to prevent it from being as good as might have been expected. The knowledge of the law at that time stood at no very high eminence, since all attention was drawn towards politics, and very seldom towards the investigation of science. And, unhappily, those four lawyers to whom Napoleon entrusted the fabrication of the work, were particularly deficient in a knowledge of the Roman law, which, with the customs (coutumes), formed the source from which the code derived much. But those men, among whom Portalis, Bigot-Preameneu, and Maleville were more eminent, possessed much talent. Another disadvantageous circumstance was, that they hastened their work too much.
The revolution had destroyed also, with the old government, a great part of the civil law, and new rules had taken its place, which, with what remained, required to be reduced and combined into one harmonious whole. This would have required the most thorough and accurate labor of years to prepare a work that should comprise the whole
civil law for a great realm. Instead of which, they were obliged to hasten it, in order to heal, in that point, the wounds of the revolution as soon as possible.
The plan of the code was very briefly sketched, and in a few months communicated to the highest courts of justice, for their criticism ; then amended in the council of state, and immediately laid before the tribunate. This body was justly severe in its criticisms, blaming and rejecting some parts of it; the draft was then withdrawn, and the opposing members were removed, and new ones placed in their stead.
In this purified tribunate, preliminary discussions were held, in which their opinions and wishes were considered, and in the sessions of the years 1803–4, praises only of the drafts were heard. All parts of it passed, and received the name “Code Civil des Français."
When, at a later period, the republic was transformed to a monarchy, many things were accordingly altered in the code; and it received, in 1807, the name “Code Napoleon."
That, according to the history of its compilation, the code could not be perfect in its contents is evident; and since it introduced, in such an imperfect manner, in part, the new law, it brought lawyers into many difficulties in trying to apply it, still the better parts of it deserve praise for their clearness. It is to be regretted, that the force and learning of a Montesquieu could not have given soul and consistency to the whole work, and his peculiar precision to its outward form. Then, indeed, would a work have been obtained which would have satisfied the demands of the nation and restored its equilibrium.
| All these discussions are printed in Conference du code civil avec la discussion ... du conseil d'etat et du tribunat. Paris. Didot, 1805. 8 vols. in 12. Code civil suivi de l'expose des motiss. Paris : Didot, 1804. Analyse des observations des tribunaux et de tribunal de cassation sur le projet de code civil. Paris, 1802. Maleville, analyse raisonnee de la discussions du code civil. Paris, 1807.
Now that we have exhibited, openly and impartially, the merits and defects of these four codes, we must declare our conviction that the errors, which have been committed in their construction, do not exclude the possibiliiy of a better procedure and more satisfactory result. It is possible to avoid these faults by adopting only what has been good in former experiments; and, for the rest, making the proper attempts to improve and complete them. We may here very properly apply, in conclusion, the words of Schiller on the legislation of Lycurgus, (Works, vol. xvi. p. 114). “Although the first experiment has proved defective, it must still be always remarkable to a philosophical inquirer into the history of mankind. It is a grand movement of the human spirit to treat that as an art which had before been left to accident and passion. The first step in the most difficult of arts must necessarily be imperfect, but it is always valuable, because at the same time made in the most valuable of all arts. The sculptors began with 'Hermes's columns,' until they could rise to the perfect forms of an Antinous or an Apollo of the Vatican. The lawgiver must practise long in rough experiments, until, at last, the happy harmony of the social elements starts forth full formed. The stone suffers patiently the progress of the forming chisel, and the strings which the artist touches answer without resisting his fingers. The lawgiver alone labors on a self-acting, obstinate material; the human freedom will permit him only imperfectly to realize the ideal, which he may have entertained never so clearly in his own brain. But here the mere attempt deserves all praise, if undertaken with disinterested benevolence, and presented with consistent moderation."
ART. III. — THE INTERNATIONAL LAW OF THE SLAVE TRADE,
AND THE MARITIME RIGHT OF SEARCH.
[From the Law Magazine, for August, 1841.]
The prize law looks primarily to violations of belligerent rights as grounds of confiscation, in respect of vessels not actually belonging to the enemy; yet any trade contrary to the general law of nations, although not tending to, or accompanied with, any infraction of the belligerent rights of that country whose tribunals are called upon to consider it, may subject the vessel employed in that trade to confiscation. Thus, in the case of the Amedie,' which was that of an American (neutral) ship employed in the slave trade at the time of capture, sir William Grant, M. R., said :
“In all former cases of this kind, which have come before this court, the slave trade was liable to considerations very different from those which belong to it now. It had, at that time, been prohibited (as far as respected carrying slaves to the colonies of foreign nations) by America ; but by our own laws it was still allowed. It appeared to us, therefore, difficult to consider the prohibitory law of America in any other light than as one of those municipal regulations of a foreign state of which this court could not take any cogni
But by the alteration which has since taken place, the question stands on different grounds, and is open to the application of very different principles. The slave trade s'has since been totally abolished by this country, and our legislature has pronounced it to be contrary to the principles of justice and humanity. Whatever we might think as individuals before, we could not, sitting as judges in a British court of justice, regard the trade in that light, while our own laws permitted it. But we can now assert that this trade cannot, abstractedly speaking, have a legitimate exist
' 1 Dodson, 84, note; and 1 Acton, 240; 2 Acton, 1, 4, 6.