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So the study of jurisprudence was introduced into France by Budæus, the most accomplished scholar of his age. In the next generation Alciati and Cujas taught in the same breath the laws of the Romans and their literature to the students who flocked to their lecture-rooms :

nor can the science ever be said to have languished in France, though the legislation of that country till the Revolution profited very little by the science of its lawyers. In Holland, jurisprudence rose at the same time with literary refinement, and, in addition to producing the most celebrated of modern jurists, it was cultivated by a crowd of professors who fitted their pupils for the highest offices of state; yet the legislation of Holland bore no traces of science. The great German jurists of the 16th and 17th centuries were also the greatest scholars and philosophers of their time, but Leibnitz (a) in vain recommended new Pandects. To England the science of jurisprudence came also with the revival of letters, but foreigners tell us that we have not produced a single man whose name can be mentioned with credit in this science except Selden ; and certainly, if we have had great jurists, they have done nothing for our legislation, except one or two illustrious men who have sat upon the bench, and framed their judicial legislation with as much science as the rude subject-matter would admit.

The spectacle presented by a cultivated and refined nation, ruled by a legislation of this description, is indeed a very striking one. While those whose duty it is to provide the laws of a nation, content themselves with occasionally thrusting in some new law with little reference to the laws which were existing before, and bordering upon it; while they allow laws which once bore fruit, to remain a mischievous incumbrance after their fruit-bearing days are past; while many fields of industry, which might be fertile in happiness and wealth, lie desert through want of laws; while, in short, the garden of legislation runs wild by the neglect of its custodians—a small circle of thoughtful men, endowed with no legislative power, sit apart and study in their solitude the principles of jurisprudence. As Leibnitz says—“Dum potentes aliud agunt,

(u) Nova Methodus Discend. et Docend. Jurispr. Pars ii. c. 85, 90.

juris-consulti, eruditi, prudentes, bene animati, conferant capita privatim, cogitentque de jure constituendo ut reddant certius quam nunc : posset is labor præludere principum auctoritati." For at last the evil becomes intolerable, and the men of science are called in to reduce to order the wilderness of law: when they come upon the scene we arrive at the third school of legislation.

Now, the legislator has in all his efforts to bear in mind three principles :—First, That the law he proposes to enact should do justice with reference to the persons or things it immediately affects. Second, That it should harmonize with the laws of the nation; and in doing justice in the sphere in which it immediately operates, it should do no injury to the commonwealth at large. Third, That it should be framed with a view to preserve the simplicity of the whole scheme of legislation. Every new law should, if possible, rather simplify than complicate those which existed before. It is not till the third school of legislation arrives that these three principles are kept steadily in view ; and the characteristic of the school is, that while the natural growth of the laws continues, and while they do not cease to be the gradual result and exponent of the social changes, the wild crop of laws which had arisen before is reduced to a scientific order, and the new laws which are rendered necessary by the progress of the nation, are introduced into their proper place in the body of laws; and it is provided that, while they effect the immediate good for which they are intended, they should not disorder or introduce complications into the established system.

The great example of this school of legislation is of course the Roman, from the time of Augustus to that of Justinian. I need not here go over the ground which Savigny has made his own, and show how, during the classical age of Roman law, their legislation was distinguished, not less for its being ultimately fashioned into shape by the masters of jurisprudence, than for its being originally the developed result of customs, manners, and popular faith ; so that the legislator did not invent and lay down laws of his arbitrary will; but

he was the means of introducing scientifically into the system of laws what the operation of the internal powers of the state required to be introduced into the statute book. The mode in which the laws of the Rhodians, the customs which prevailed among the maritime populations which gradually became subject to the Roman power, were absorbed into the digests of the Roman law, is a striking and instructive instance. In short, during the third school of legislation, the spirit of legislation differs from that of the preceding school, only in that the publication of laws (comprehending of course the digests of the old laws) is presided over by men of science. Before parting from this topic there is one more remark to be made, an expression of surprise how few nations have had a scientific legislation during the days of their greatness. The republics of ancient Greece and modern Italy perished without it. Holland had none till its greatness had long passed ; nor had the German customs of the sixteenth and seventeenth centuries. The legislation of France before the Revolution, though influenced to some extent by the great and scientific lawyers of that country, can hardly be classed under any but the second school of legislation ; and the question may perhaps be mnooted how far a highly scientific legislation is possible without the existence of a strong political centralization, and of a certain blending of the legislative and executive functions which may not be conducive to liberty.

But, however that may be, the progress of nations un. doubtedly leads from local and personal inequalities to rigid centralization, founded on an universal equality of the subjects, varied only by distinctions conferred by the central power. And this introduces to us the fourth and last school of legislation—the legislation by codes. Now, it is certainly quite open to any legislator to frame a code of laws which shall merely be directed to protect and enforce the rights which he found established; but usage has given to the word "code" the meaning of a system of laws, which are intended to protect and enforce a new system of rights suddenly introduced, and altogether different from that which previously existed in the country; and perhaps the definition should go on to say, that these rights are founded on social equality and centralization.

It is very natural that the imperial despot, who has won his empire by the abasement of aristocracies, and all other forms of social inequality, should seek to consolidate it by a code; and, accordingły, a code was the dream of Cæsarpremature—for centralization was not yet completely established; a code was the dream of Catherine, the care of Frederick, and the glory of Napoleon. All the great founders of lasting despotisms aim to stand in history with a sword in one hand and a code in the other. That of Napoleon was certainly the most brilliant achievement of the kind, and perhaps furnished the very best system of laws which could have been then established in France. The old institutions were so utterly uprooted, that it would have been idle to make pandects or digests of the laws which grew out of, and belonged to, those institutions, and when the institutions were gone, would have been inappropriate for France. The abolition of monarchy and aristocracy, and all the traces of the feudal régime, introduced a multitude of new rights; and the codes which were begun long before Napoleon was heard of, but which he completed, and which now go by the name of the Codes Napoléon, are not more deserving of their celebrity for their scientific precision and simplicity, than for the art with which they embodied so much of the old French law as might be justly retained, because it belonged to institutions not abrogated. The Codes Napoléon have been less serviceable to other countries, where, without a substantial change of rights, their old laws have been abolished, and the codes substituted under the impression that they would serve as a useful ally to those who desired to establish a centralized equality; and in this respect, as in so many others, the theorists who desire to found an ideal kind of liberty upon a centralized equality, concur with the introducers of a tyranny. Justinian, Frederic, and Napoleon desired to attain, though for a different purpose the same object as that which Bentham aimed at. Each sought to enforce uniformity and


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equality by a simple and rigid code; the one, in order to make equal freemen, the others, to make equal slaves,

Now, although the word code has thus been applied to designate the legislation of equality, which is that of despots (a meaning not altogether foreign from its use among the Romans, for codex there signifies a compilation of imperial constitutions, as distinguished from the digests of the old naturally-developed laws of Rome), yet there is no reason why the rights established in any country should not be enforced by laws reasoned out from first principles, and laid down with the scientific precision of a code. But between digests and codes there is this broad distinction-digests are merely the scientific redaction of laws which are the natural product of the state of society: they are generally confined to the statement and consolidation of laws which have been already tried in practice, and are the considered and systematized results of actual experience; whereas codes (a), in the sense in which they are usually understood, are, in fact, the application to civil matters of the mode of legislation previously in force with reference to criminal matters: they foresee and provide beforehand for cases which have not arisen an effect very possible of accomplishment in criminal, but not possible of accomplishment, to any great extent, in civil matters ; and codes add to this provident characteristic, the systematic aspect derived from laying down general principles and axioms in the first instance, and by deducing from them the propositions of law, ambitious endeavour is made to anticipate the contingencies which in all future time may require the intervention of the tribunals. The methods of proceeding in the two cases are almost the direct inverse; and it is obvious that the expansiveness which is necessary for the civil legislation of a progressive nation, is not impeded by the framing of digests and pandects, while it runs a great risk of being destroyed by the rigidity of the codes, though the experiment has hardly yet been made; for not a single instance can be pointed out of a code which has existed for any length of time in a nation which is at once progressive and free.

(a) Projet de Code Civil; Discours Prelim. Paris, an ix., p. x.

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