« ElőzőTovább »
the reform of our present Courts. A few of the changes to be desired are obvious. In the first place, it is clear that the limit of the jurisdiction of the English County Courts is too low. The present limit of £50 excludes many cases which need not go to the Assizes or to Westminster. It is further clear, that a great many people are ready to do for nothing, if you call them assessors or judges, what they dislike doing if they are called jurymen; and it might be proper to avail ourselves of this amateur zeal, and to associate with the County Court Judge or a Sheriff in trying mercantile cases some men of business. That is done with advantage in England when a County Court Judge is engaged in trying Admiralty cases. Upon the whole, it is not so much new Courts, as the reform and popularizing of the existing Courts, which ought to be pressed for, and this was the opinion of the Parliamentary Committee which lately reported on the subject, and which said: "It seems to your Committee, that the County Courts might form a convenient and economic basis for the establishment of such tribunals." Pay the resident Sheriff well; let him be an excellent lawyer; let him command, when he is dealing with commercial cases, the advice and assistance of the most experienced members of the mercantile community. Let us obtain local Courts with wide jurisdiction, able judges in sufficient number and with adequate remuneration, assisted by juries or assessors who are experts, and we shall get what mercantile men are asking for in a somewhat unintelligent manner.
CODIFICATION IN GERMANY.
"UNTIL the beginning of the thirteenth century," says Stobbe," the law sources in Germany were few. Legislation was very scant, and concerned almost entirely with penal or constitutional questions -especially the preservation of peace between the different parts of the empire. The old public law and capitularies had wholly fallen into oblivion, and the Roman law was not yet known."
About this date some attempts were made to collect the unwritten consuetudinary law. Certain works, known as Law-books-Rechtsbücher-were published by private individuals, containing a collection of the laws in daily use in the part of the country in which they lived. These were the Sachsenspiegel, the Deutschenspiegel, and the Schwabenspiegel, called Spiegel--speculum-after the literary fashion of the period. The Sachsenspiegel was the most famous. It is a systematic collection of the laws then administered in the Saxon law courts, and was compiled by a local justice-Schöppe-called Eiko. For a long time it enjoyed a high authority in Saxony and other parts of Germany, being looked upon to some extent as Jus Scriptum.
These Rechtsbücher, and a certain amount of legislation, concerned chiefly with the privileges of towns (Stadtrecht), or the relationships
of private persons (Hof- and Dienstrecht), pretty nearly represent all the law sources from the thirteenth down to the reception of the Roman law in the fifteenth century. The old consuetudinary law was still developing itself, without any endeavour being made to unify or collect it. The emperors were too much occupied with questions of public and constitutional law to think of codifying the private law.
In the fifteenth century there was a great change. The Roman law, which, along with the canon, had for some time been receiving exclusive attention in the universities, was now first received and recognized in Germany as supreme common law. Hitherto though of some authority, particularly as the theoretic basis of the Kaiserrecht, it had been rather looked upon as foreign law; but in this century it became the general subsidiary law for nearly the whole empire. For the next three centuries, as is well known, little else was done than glossing and commenting on the Corpus Juris, and introducing the civil law principles in place of, or, when this was impossible, foisting them upon, the old gemeines Recht. Professors and judges vied with one another, in the universities and the law courts, in expounding and enforcing them, though not always with any great appreciation of their meaning. Down to the beginning of last century little or no attempt was made to check this vast and ever-increasing influence, or preserve the principle of the pure national law. The consequence was that, at that date, the common law of Germany presented itself as a confused and heterogeneous mass, Roman and canon law rules and maxims, being applied in practice to cases (in the law of process, for example), where their meaning was quite unintelligible to the German mind. In every part of the country, more or less, complaints were frequent of the insufficiency of the law and the law courts. As Leibnitz said in one of his letters, "jus multitudine, obscuritate, imperfectione legum, varietate tribunalium, disceptationibus peritorum obtenebratum, et ad miram incertitudinem redactum."
This state of matters led to a valuable remedy in the shape of codification. About the middle of last century codification may be said to have been first begun in Germany, on the basis of collecting and consolidating the whole common law; embracing in that term the old German customary laws and observances, along with the Roman, canon, and other foreign laws. Since that time, the activity in this field of jurisprudence has been great. Several codes have been prepared, not only of the common law, as existing in separate parts of the empire, but also, and these in the most recent times, as existing in united Germany (Allgemeines Deutsches Recht).
In England scarcely anything is known of these important works; and in fact they are hardly to be obtained in any of our public libraries. A slight historic sketch therefore of the chief of them may be of use, as showing how far the problems of codification have been solved in Germany.
We propose to regard here the codes from two points of view. On the one side, those drawn up by separate governments, as Austria, Saxony, &c., consolidating the common law in their territories; on the other, those embracing (but as yet only in special parts), the common law of all Germany.
In the sense of the first of these, the earliest attempt at codification was by Bavaria. In that country, the criminal, process, and municipal laws were, about the middle of last century, collected in three separate works known as the "Codices Bavarici." First, the Codex Juris Bavarici Criminalis, containing the whole criminal law and criminal process, was published in 1751; second, the Codex Juris Bavarici Judiciarii, in 1753, containing civil and bankruptcy process; and third, the Codex Maximilianeus Bavaricus Civilis, embodying the private law, and treating it on the same system as Justinian's Institutes, in 1756. Though the Codex Civilis deserves that name, in so far as consolidating the existing statute and customary lawsStatut- und Gewohnheitsrechte-of Bavaria, it still fell short of the complete idea of the word code. Though universal, it was not supreme; for, instead of superseding, it was declared to be still subordinate to the Roman, as subsidiary law. According to its promulgations-patent, "it contains not much that is new, but rather the old law, both statutory and common, brought into such form and definitions, that every one who may require to consult it, either on account of official duty or private affairs, will more easily be able to understand and obey it." It was still to be explained and extended by reference to the Roman law; and therefore was rather a collection of laws than a proper code.
To Frederick the Great of Prussia belongs the merit of the first complete attempt at codification, viz. on the principle of making a supreme and universal body of law which would supersede all existing laws and customs. His attention was first specially directed, on coming to the throne, to the extraordinary confusion in the law of process. He found the rules and forms of the Roman, canon, and Saxon laws, as these were understood in different courts, mixed up with local jus consuetudinarium-utterly without system or method. Of this branch of the law, accordingly, Frederick first projected a codification; but he soon saw the necessity of extending it to the whole common law. By a constitution therefore, in 1746, he appointed. his Minister of State, Samuel von Cocceji, to prepare a general code. This eminent jurist at once entered upon the task, and the first part of a projected "Corpus Juris Fredericiani" was published in 1749. But only the first two parts of this work (which was drawn up in three parts, on the same system as Justinian's Institutes) were ever promulgated; and only a small part was ever in actual authority. Meantime Frederick became involved in war, and the question went out of sight. But at the close of the wars new proposals were made for a complete codification. In 1780, the work was again ordered by Frederick to be undertaken; and a
commission to carry it out was shortly afterwards appointed, under the presidency of the Chancellor, Von Carmer.
The work did not reach publication in the lifetime of Frederick. It was not till 1794, in the reign of his successor, Frederick William II., that it came finally into operation, under the title of Allgemeines Landrecht für die Preussischen Staaten. "This Landrecht," to use the words of the prefatory publications-patent, signed by the King, (sec. 1), "is intended to come in place of the Roman, common Saxon, and other subsidiary laws and legislative enactments, which have been hitherto prevailing in our lands." It had been based by Frederick on the principle of being a supreme and universal body of law, all existing common laws and customs being superseded and abolished. So much of the Roman, canon, and other laws was incorporated as was considered useful; and only so much was in future to be of any authority. In this sense, therefore, it was a complete code of the common law. But the laws and customs prevailing in separate provinces, and not common to the whole kingdom, were not to be abolished. The Prussian monarchy, it must be remembered, consisted originally of provinces of separate nationality, and having all a political independence of their own. They had developed their own jus particulare. Accordingly, by sec. 3 of the above-mentioned patent, special provision is made for retaining the provincial laws intact. It is then declared, that all legal questions shall be decided, in the first place, by the particular law or custom, and only in default of such is the code to be appealed to. Of course, questions of purely private law are alone meant. But, to prevent all uncertainty, it was ordered that these provincial laws should also be collected and arranged on the same principle as the Allgemeines Landrecht. For this purpose a Judicial Committee was appointed in March 1791, and three years given it to complete codifications for all the provinces. As the task was, however, unaccomplished at the publication of the Landrecht in 1794, two more years were added as an overabundance of time (zum Ueberflusse), to use the King's expression. It turned out, however, to be anything but an Ueberfluss; for, from that day to this, only two provincial codes have been completed, viz., the Ostpreussisches Provinzialrecht, for East Prussia, in 1801, and the Westpreussisches Provinzialrecht in 1844. The intention of completing any others seems now to be given up.
To attempt anything like an analysis of the Allgemeines Landrecht, or an estimate of its position, is beyond our present purpose. Only the following points, in regard to its general character as a code, seem proper to be noticed. By the epilogue of the Publicationspatent (sec. 17), it is forbidden, under pain of royal displeasure, to attempt to explain or illustrate the Landrecht by reference to any of the laws it superseded; "and least of all, will any Court or Judge be permitted, of their own accord, to depart from the clear and distinct precepts of the law, either on the ground of some pre
sumed scientific explanation, or under pretext of an interpretation derivable from its purpose or design." This reminds us of Justinian's similar stringent prohibitions against all further writing of law-books after the publication of his work. In the Einleitung (which treats of laws in general), secs. 46-49, special provision is made for cases where the precepts of the code may be deficient. The code itself is alone to be regarded by the Judge, grammatically and logically interpreted. Should it contain no law specially bearing on a particular case, then the general principles embodied in it, and the laws laid down for similar cases, are to be looked to for the grounds of decision.
Though, in what Bentham would call "Integrality," the Landrecht is perhaps not perfect, it is still a very complete code. It contains, besides the whole of the private municipal, also constitutional, ecclesiastical, police, and criminal, and parts of the public law. The general external plan and arrangement is very systematic. It is divided into two parts, containing twenty-two and twenty titles respectively. The system, however, it may be noticed, upon which this division is based has been found great fault with. It is that of subjective rights. Unlike the common division of legal rights in their relations to persons, things, and actions (the tria objecta juris), this system regards the subject of rights alone, and in a double relation. In the first part the person is regarded as to his rights of property; in the second, as to his rights in the family, social relations, etc. This has led to the necessary arrangement of some branches of law in a most unscientific way. For example, the law of obligations is treated in the first part solely as a means of acquiring property; and the law of succession-Erbrecht-has to be taken up separately in both parts. The titles are divided in most cases into sections, and all of them subdivided into paragraphs. As to the "method" (to use another Benthamism) of the Landrecht, the style and language is clear and simple, and, compared with that of our own statutes, a very model of precision.2
By Prussian legislation in this century, and now especially by the codifications which have been recently made of parts of the whole common law of Germany, considerable parts of the code have necessarily been superseded. By a law, for instance, passed in the last session of the Landtag,3 most important alterations have been made on the law of land and heritable securities; and the German mercantile and penal codes have superseded the parts of it treating the matters they embrace. It still remains the basis, however, of the private law of Prussia, with reference to which
1 Similarly in the Introduction (Einleitung, sec. 6), "Auf Meinungen der Rechtslehrer, oder ältere Ausprüche der Richter, soll bei künftigen Entscheidungen keine Rücksicht genommen werden."
It is edited by Dr. C. F. Koch. His just published 4th edition contains, besides a very valuable commentary, all the alterations made by Statute since 1794. This eminent Jurist died only last year.
Gesetze über Grundeigenthum und Hypothekenbuch.