ceeding in criminal actions; and, 5th. "The Code de Commerce," or code of law merchant. This whole body of law, comprising all these codes, was generally printed in one duodecimo volume.

We have dwelt more upon this history, and at greater length than might seem needful in this treatise, but we have seen already in our own state, the commencement of a system of codification already adopted, so far as regards the practice of the courts, and under a name that seems to have been borrowed from this French example, and with propositions, not yet adopted, borrowed from the same example, to extend to the whole system of civil and criminal jurisprudence of the state, by codification. It does not become us to say in advance, with what advantage to our own jurisprudence, if adopted.

It is said, by those who had the best opportunities of knowing, and pretty generally believed, that in no one prominent act of Napoleon's administration did he pride himself more, than in this code which bore his name. From the history which we have given of the manner in which it was drawn up and prepared; from the active part he took in commissioning the distinguished lawyers for that purpose;-from the fact that he presided over the body before whom it was so thoroughly discussed, and as we may beLieve from the active powers of his mind, he could well appreciate the points of such discussion;-and the fact that he honored the manuscript copy of this code with his imperial signature, we may perhaps, even at this day, judge somewhat as to the credit to which he was entitled, as the author of the Code Napoleon. His greatest admirers claim for him in this regard, to have been a second Justinian. This may be true, and still be an equivocal compliment; for history accords to Justinian about the same participation in the actual preparation of his great work called his Institutes, as to Napoleon in projecting his code. None will deny to either, the possession of imperial powers of mind; and none should detract from the credit of those great legal luminaries who prepared these codes for the consideration and adoption of their imperial masters. It is nevertheless true, that both Napoleon and Justinian rose to greatness in their respective empires, by other qualities of greatness, besides those which distinguished them as military chieftains.

But the Code Napoleon with its prefatory "Discours Preliminaire," became the statute law of France, and the jurisprudence of the countries dependent on French power. It was introduced in Holland, in the Confederation of the Rhine,-in the kingdom of Westphalia,-in Bavaria,-in the kingdom of Italy,-in Naples,-in Spain, and in various smaller states that were under the French influence. It was substantially founded on the principles of the civil law, the common basis of continental jurisprudence.

With all the merits of this French code, the downfall of the emperor was the signal for its disuse in the foreign dependencies of France; but in that country itself, it was so strongly rooted in the confidence of the people as to sustain itself. By a royal ordinance of July 17, 1816, it is declared:

"We are too well convinced of the evils of a fluctuating legislation in a state, to think of a general revision of the five codes, which were in vigor in our kingdom, at the time that our constitutional charter was granted. We reserve to ourselves, only to propose particular laws, in order to reform such things as admit of improvement; or in which time and experience shall have discovered imperfections. But although reforms of this kind can only be the work of time, and the fruit of long meditations, it is indispensable to suppress, from the present moment, those denominations, expressions and formulas in the different codes, which are not in harmony with the principles of our government, and which recall the recollection of times and circumstances, of which we would efface even the recollection."

In consequence of this decree, the various names and titles belonging to the imperial government, were erased, and the appropriate ones of the royal government, introduced in their stead. At various subsequent periods, laws have been enacted, considerably modifying, or wholly changing several important provisions of the "Code Napoleon."

This whole code was comprised in 2281 paragraphs, or sections, and numbered, like our own Code of Proceedure, for the greater facility of reference, but they are very brief and tersely written, and of about the average length of verses in the Bible. The work is divided into three books; each book into a certain number of titles; and each title comprises one or more chapters. The pre

liminary title is used to effect an understanding and the application and interpretation of the provisions of every part of the code, and precedes the whole body of the work; therefore the significance of the quotations by our author, Dwarris.

Again, with the highest degree of certainty of which laws are susceptible, doubts will still arise upon the sense of enactments, or as to their application. In all cases where the legislature has not defined with perfect precision the exact nature of its provisions, some authority will be required to decide upon the meaning of the terms which it employs, or the cases to which its provisions shall extend.

In ancient times, cases of the first impression, and all matters presenting any serious doubt or difficulty, were usually "adjourned into parliament, to be resolved and decided there." a To this effect Bracton observes: "Si aliqua nova et inconsueta emerserint, quæ nunquam prius evenerunt, et obscurum et difficile sit eorum judicium, tunc ponantur judicia in respectu usque ad Magnam Curiam, ut ibi per consilium curiæ terminetur." b For the high court of parliament met every year, "or oftener if need were," for the "maintenance and execution of the laws." c

In like manner it has been said in modern times, (and the sentiment has been before noticed with approbation,) parliament is always at hand to supply deficiencies and to correct mistakes. d Is the legislature then to be interrogated, every time a doubt arises upon the construction of a statute, to decide particular disputes? Assuredly not. For would not this be endless? Would it not impair the usefulness, and derogate from the dignity of the judicature? Would it not give room for partiality and oppression? "Forcer le magistrat de recourir au legislateur, ce serait admettre le plus funeste des principes; ce serait renouveler parmi nous la desastreuse legislation des Rescrits. Car, losque le legislateur intervient pour prononcer sur des affaires nees et vivement agitees entre particuliers, il n'est pas plus a l'abri des surprises, que les tribunaux." And under such circumstances certainly: "On a moins a redouter l'arbitraire regle, timide et circonspect d'un magistrat qui pent etre reforme, et qui est soumis a l'action en forfaiture, que l'arbitraire absolu d'un pouvoir independant, qui n'est jamais responsable."

"Des lois intervenues sur des affaires privees seraient souvent suspectes de partialites, et toujours elles seraient retroactives et injustes pour ceux dont le litige aurait precede l'intervention de

a 2 Inst. 408.

b Bracton, lib. 1, ca. 2.

o 4 Edw. 3, ca. 14; 36 Edw. 3, ca. 20.

d Ante, p. 617, 641.

ces lois. De plus, le recours au legislateur entrainerait des longueurs fatales au justiciable," &c. a

It follows, that the questions of construction before adverted to, viz., the meaning of the terms employed by the legislature, and the cases to which the provisions of the law are applicable, must be left to the decision of the judges. If the judges of the inferior courts are mistaken in their construction of a law, their decision must be reviewed and corrected by the courts of superior jurisdiction. But by what maxims are the judges of both courts to be guided in their expositions,-on what ground will their determinations rest? Are the courts to proceed upon established principles to be governed by fixed rules; or, exercising a liberal discretion, to have recourse, in doubtful cases, to natural principles, -to aid and to moderate the law according to equitable considerations, to include in their deliberations those cases and circumstances which the legislator himself would have expressed, had he foreseen them?

To an English lawyer, brought up with a sober veneration of the wise maxim, (so consonant to the spirit of our constitution, and so constantly to be traced pervading the whole body of our jurisprudence,) that " Optima est lex, quæ minimum relinquit arbitrio judicis; optimus judex, qui minimum sibi;" b the question would seem to present little difficulty. An English judge, however, would be in no slight degree astonished at finding it laid down as a dogma of law, (as in the fourth article of the Titre preliminaire de la publication des Lois :)" Le juge qui refusera de juger, sous pretexte du silence, de l'obscurite, ou de l'insuffisance de la loi, pourra etre poursuivi comme coupable de deni de justice." c On

a Discours Preliminaire, &c., p. 26.

b Aphorism, 46; Bacon's Works, vol. 7, p. 148.

c P. 26, Titre Preliminaire.

NOTE 3.-"To force the magistrate to appeal to the legislator, would be to admit the most fatal of principles; it would be to renew among us the disastrous legislation of the Rescripts. For when the legislator interferes to decide on matters arising, or warmly agitated among private individuals, he is no better protected from surprises, than are the courts. We have less to fear from a controlled, timid, and circumspect decision of a magistrate who can be reformed, and who is liable to forfeiture of his place, than from the absolute, or arbitrary decision of an independent power which is never responsible to any one.

Laws originating in private affairs, would be often suspected of partiality, and they would always be retroactive and unjust to those whose suit would have preceded the intervention of those laws. Moreover, recourse to the legislator would induce delays, fatal to the persons, amenable, &c."

NOTE 4.-"The Judge who should refuse to decide under the pretext of the silence, the obscurity, or the insufficiency of the law, can be punished as guilty of a refusal to render justice."

which law the following passage in the Discours Preliminaire a may be considered as a commentary:-"Sur le fondement de la maxime que les juges doivent obeir aux lois, et qu'il leur est defendu de les interpreter, les tribunaux, dans ces dernieres annees, renrenvoyaient par des referes les justiciables au pouvoir legislatif, toutes les fois qu'ils manquaient de loi, ou que la loi existante leur paraissait obscure. Le tribunal de cassation a constamment reprime cet abus, comme un deni de justice.' From which important passage it is to be collected, that even among our enlightened neighbors, and at a very recent period, the boundaries of legislation and of judicial interpretation were so vaguely defined, and so imperfectly understood, that the Judges were constantly either mistaking the principles, or erring in the application of

them.

The doctrine laid down in the fourth article of the Titre Preliminaire, before cited, will probably appear to the ordinary reader, even in its present shape, not a little calculated to produce the effect which the Consul Cambaceres denounced as the probable result, before the adoption of an amendment suggested by him to control it :-" peut faciliter les usurpations des tribunaux sur le pouvoir legislatif." b The explanations, however, of this article, which were afforded during the discussion of the projet, are highly valuable:c

6

Le Ministre de la Justice dit, "qu'il y a deux sortes d'interpretations, celle de legislation et celle de doctrine; que cette derniere appartient essentiellement aux tribunaux; que la premiere est celle qui leur est interdite; que lorsqu'il est defendu aux juges d'interpreter, il est evident que c'est de l'interpretation legislative qu'il s'agit. Il cite l'art. VII du titre 1er de l'ordonnance de 1667, qui defend aux juges d'interpreter les ordonnances."

Le C. TRONCHET dit "que l'on a abuse, pour reduire les juges a un etat purement passif, de la defense que leur avait faite l'assemblee constituante, d'interpreter des lois et de reglementer. Cette defense n'avait pour objet que d'empecher les tribunaux d'exercer une partie de pouvoir legislatif, comme l'avaient fait les anciennes cours, en fixant les sens des lois par des interpretations abstraites

a P. 25, Discours Preliminaire.

b Deuxieme redaction, seance de 14 therm. an IX. c Titre Preliminaire, p. 28.

NOTE 5.-"On the basis of the maxim that Judges ought to obey the laws, and that they are forbidden to interpret them, the courts of late years have referred those amenable to justice, to the legislative power, whenever the laws were wanting, or when the existing law seemed to them obscure. The superior court has constantly repressed this abuse as a denial of justice."

NOTE 6.." Can facilitate the usurpations of the courts over the legislative power."