The whole question reduces itself then to the knowledge of which is the part the legislator ought to adopt from theory, and which part he ought to make conformable to the usages of the nation for which the laws are destined?.

He that would enact laws which may be able in time to co-operate with the happiness of the people, and prevent the inconvenience that new laws and institutions might produce, ought therefore to understand the laws, customs, and habits of that people; but he ought not to confine himself within the bounds of their actual dispositions only; he ought to seize upon their genius, and consequently to understand their origin, the circumstances which have produced them, the object that was proposed by those who have established them, the consequences they have had, the events which have influenced those consequences, the modifications they have suffered, and above all, the different stages of their jurisprudence; he ought to know what have been the revolutions which the nation itself suffered, as to its government, its customs, its relations of peace and war with its neighbours; he ought to have regard to the character of the prince and his advisers; the peace internally enjoyed by the people, or the troubles which have agitated them during such a reign; the state of the finances; where distress could excuse the necessity of measures otherwise imprudent, or where prosperity could permit that which in any other case is impossible; the resources of the nation, its commerce; in a word, he ought to study the earliest history of that people, in order well to comprehend all the changes which have taken place in their legislation, with the causes as well as their effects, and it is in this sense that Montesquieu has said that he must enlighten laws by history.

Afterwards the author passes in review the different parts of legislation, and judges that all are not equally interesting in their consequences, nor so intimately connected to history. The civil and commercial laws, the penal laws, appear to him to have been ranked among those which have an influence the least marked over the great interests of the people, the improvement of the human race. The civil and criminal proceedings have a more direct affinity with governments; but, the part of legislation most intimately connected with its history, is that which concerns the judicial institutions.' I know not if this distinction does not appear a little too fine, and if the expression judicial institutions does not include the idea of laws upon civil and criminal proceedings.

Indeed, it is but a dispute about words; the author explains himself afterwards, and exposes to us the subject of his work.

'We understand by judicial institutions, those which the laws have established for the administration of justice, the measures taken to the end that every citizen should exercise all his rights, and exact all that is due to him. It is the form of the courts of justice, the extent of their jurisdiction, and their relation

with other authorities, as well as with the citizens themselves, which constitute that part of legislation. What are the administrations or the persons charged to render justice? how far will their powers extend? what sort of affinity exists between the legislative authority, the administrative power and the judicial? what is the influence of this power upon the inhabitants? these are the questions to which they relate. It is, in a word, the organization of justice, taken in all its extent, and considered in its relations with government, which we believe ought to be designated by the name of judicial institutions.'

We see what an extension he gives to this idea; we see that he has combined many political considerations. But, we also think that the civil proceedings, and especially the criminal proceedings, ought to have entered into his subject; besides, the perusal of the book will convince us better than all the reasoning about terms. See now his design and his plan; it is himself again who would expound them to us.

We propose to return to the first source of the modern institutions, from them to explain the object, to develop the means employed to arrive at them, from them to trace the successive changes, to analyze the reasons which have induced me to relate the motive of these amendments, in order to understand their actual state; finally, to apply the result of these researches to that which might have been provided to be enacted by the new laws.

'We have comprised, in our work, England, France, the Low Countries, and Germany. England, whose institutions differ from all others, both ancient and modern, merits in the first place our attention; to present those who have not applied to the difficult science of legislation, the result of our experience, we will commence with the country which offers the greatest peculiarities. France claims a double investigation. The judicial institutions of this monarchy, before the revolution, are yet recent,* and many of our contemporaries have been well acquainted with them. They differed from many of the new forms introduced, and often changed in the revolution, all of which claim an examination; nevertheless, we have thought proper to separate them, and if we have made our researches upon the ancient forms of the French monarchy follow immediately after those of England, we have reserved the new institutions for the latter part of our remarks which relate to the actual state, not only as the chronological succession of these events, but also because they are the result of a systematic legislation. Before we proceed to the institutions of the Germans, we

* The author would say that it has not been long since these institutions were suppressed. We should not have made this remark if the expression had not perverted the thought. We sometimes find, in the style of Mr. Meyer, improper terms, and very incorrectly turned sentences. But we abstain from noticing them. The object of this article is not a grammatical criticism.

cannot excuse ourselves from examining those of the Low Countries: the very sensible difference that exists between the forms of these provinces and those of France or of Germany, between which there exists a natural transition, indicated by their geographical and political relations; the rank which the Low Countries have always maintained among the most powerful and liberal nations, and the interest which their institutions have inspired, justify this digression.'

The author anticipates the charges which will be made against him, on account of many omissions.

'We have not extended our researches to Russia,—she cannot perhaps be compared to any country, and does not present any result applicable to ordinary circumstances.

It is not, if it is permitted to use the term, historically that the Russians have themselves formed these institutions; it is by an act of authority alone that they see themselves elevated to a rank with well organized people.

'The south of Europe, Spain, Portugal, Italy, Hungary, and the three kingdoms of the north; the Swedes, Danes, and the Norwegians, do not present, as many of their judicial institutions are known to us, any point sufficiently prominent to justify a departure which would be necessary in the examination of these institutions.'

It appears to me that these reasons are not sufficient to determine the author to pass over in silence, in his historical examination, the institutions of these people. I maintain that these reasons are not just. It would doubtless be an interesting description, the rapid triumph of civilization over barbarity, and the new relations established among the different people of the same empire, according to the improvement of their manners, and their information. The judicial institutions of nations who have found in honour and liberty resources to supply their number and force; and who, after having been polished by their contact with the Moors, have finished by expelling them from their territory; the judicial institutions of Italy itself, so fruitful in revolutions, in virtue, and in crimes, in the middle ages; the judicial institutions of Hungary, that fierce and warlike republic, are objects worthy to attract the attention of the philosopher and the legislator; and we could not consider an examination of their institutions as a departure in the consideration of the laws of the principal countries of Europe.

At the end of the introduction, the author announces the distribution and order of the several parts of his work, divided into two books, of which he only at present gives the first part to the public, and which contains the judicial organization of the ancient Germans.

'The following part will be appropriated to the modern institutions: the third book treats of those of England; the fourth of ancient France; the fifth of the Low Countries; the sixth of Germany; and the seventh of France since the revolution.'

Such is the general idea, the conception of the work. It remains with us to examine the execution of the part which has been submitted to us.

'If it be true, says the author, that all these nations may be derived originally from the Germans, among whom are to be included the ancient inhabitants of the country, it is in the ancient usages of the Germans that the first basis of the existing institutions of Europe ought to be found.

'The first part of our work shall therefore have for its subject the German people, from the most remote mention of them in the writings of Tacitus and other authors both Greek and Roman, down to those organizations which may be considered as common to all these people.-This first book is destined to the administrative institutions, and the second to the judicial organization.'

This division is not without its inconveniences. In the first book, the author traces the German colonies in their cradle, afterwards in the Roman provinces and in their conquest, showing successively their primitive customs, their new establishments in their new kingdoms, the alteration of their government, the rise, the progress of the feudal system, and at length its ruin, and the rise of villages and cities. When we come to the second book, a description of the judicial organization, we are obliged to go back to the point from which we set out, and again to travel over the same period of time, and to pass through the same historical aspect, from which results a monotony that destroys the interest of the work. Moreover, as the judicial institutions, such as are considered by the author, are so mingled and blended with the political and administrative institutions, it is impossible but he must sometimes fall into superfluous repetitions, in treating of the matters in the second book. It would have been better if he had thought of combining the two divisions of this double history, and have suffered the political and judicial institutions to preceed.

If we have noticed this defect, it is but just to praise the method of the author, and the perspicuity of his discussion. He begins by establishing the principal points, the customs and manners, in the darkest periods. He considers them as the germs of the institutions which developed themselves as the people advanced in experience; afterwards he observes with sagacity the changes they have undergone, and to render these changes more obvious, he divides them into different epochs, marking each one with a particular character.

If I undertook to enter into a profound examination and detail of this work, I should enter into discussions which would exceed

the bounds of this article. I shall content myself with stating my doubts upon some assertions of the author.

The ancient Germans were acquainted with an hereditary no bility; so Tacitus has formally declared: insignis nobilitas aut magna patrum merita, principis dignationem etiam adolescentulis assignat. But we are ignorant how they acquired it and what were their prerogatives; only, the chiefs were selected from among the nobles: reges ex nobilitate sumunt.'

The author could have cited twenty other passages from Tacitus containing the word nobilis. But he will nowhere find proof of the existence of an hereditary nobility. He must content himself with the value of the words nobilis and princeps. These were the equivalents that the Latins have found in their language, to indicate institutions and customs, for which they had no appropriate terms, because they had nothing like them in their policy. Tacitus designates by turns three kinds of persons by the word princeps: 1st, Men who had about them a troop of voluntary companions, devoted to their fortunes, and attached to them merely by affection and by an oath, not by any obligation of birth; 2d, The chiefs elected to administer justice in the districts; 3d, The chiefs elected again to command a party of the colony, or the entire colony, in an expedition. None of these principes could transmit their prerogatives to their children by hereditary right. Of what then did the nobility consist in this early state of society, so little removed from a state of nature? A simple personal preeminence, a great fame acquired by superior courage. Distinctions exist not in a state of nature; but they do in the constitution of men. At first, valour and strength were the grounds of a man's merit, or rather the man himself, in the dark ages. Without these qualities, he was, as it were, degraded from manly condition. While those who possessed them in a great degree attracted the esteem and admiration of their equals, and governed some by means of love, and others by that of fear. The bravest were the nobles. Among the Greeks, the words which designated the god Mars, a male, a man, the best man, and the noble and virtue have sprung from the same root.* Etymology shows us, among the Latins, and among the nations of the north the same origin of nobility. Afterwards, the greatness of the father procured esteem for his children. It is thus, according to Tacitus, a young man whose father had acquired much glory, could obtain, after him, the rank of prince, that is to say, could place himself among the principal men of the colony. This is an heritage from fact, and not from right; birth could only be an advantage not a politi

* Άρης, άρρνη, άνηρ, ἄριστοι, άρετη, tOps, optimus, optimates. Adel, adeling, See Hennece. Antiq. German.