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all legislation must proceed, and is the text-book in all the universities.
The other codifications of the German law, of the same class as the Prussian Landrecht-embracing the whole common law of a particular country-it will be sufficient just to mention they are two: the Austrian Allgemeines bürgerliches Gesetzbuch, published in 1811; and the Saxon Allgemeines bürgerliches Gesetzbuch, which was promulgated in 1863 and came into force in 1865. The Austrian code differs from the Prussian in abolishing not only the common laws, but also all local laws and customs prevailing in the different provinces.2
With respect to the remaining governments of Germany, they have either no code of common law at all or have adopted one or other of the above. In Baden3 the Code Napoleon, with scarcely any alteration, was adopted, and is now the Badischer Landrecht. In Wurtemburg, and, as we have seen, in Bavaria, the Roman civil law holds its place as the supreme common law, and rules the decisions of their courts. There have been, however, a considerable ⚫ number of special codifications, i.e. of particular branches of the law, drawn up by many of the different governments. Such is, for instance, nearly universally the case with the criminal and procedure laws.
In recent years codification in Germany has been directed to a wider field. After the so-called Freiheitskrieg and downfall of Napoleon, attention was directed to the subject of a universal German code-Allgemeines Deutscher Gesetzbuch. Thibaut and others were most energetic in urging the undertaking. But the project met a strong opponent in Savigny. In his celebrated work, Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft, he attacked the proposals, denying the advisability of any codification whatever. He pointed out that a complete historical study of the sources of the common law was first necessary before a scientific code could be prepared. The excitement which his work caused, and the consequent formation of the so-called historical and analytical schools, and later the division into Romanists and Germanists, are too well known to require repetition here. After the long and somewhat embittered dispute between these schools, which bore fruit in some of the most brilliant works of modern jurisprudence, their differences by degrees diminished as the common law became better understood, and it was seen that the method of each was
equally essential. Ultimately the feasibility of complete codification of German law came again to be regarded with attention and took a more practical shape.
1 Amtliche Ausgabe, von 2 Janr. 1863.
A Justiz Hofdecret declares, "Seine Majestät keinem besonderen Recht oder Statuten für die einzelnen Provinzen ueber dem Allgemeinen bürglichen Gesetzbuch Stattzugeben befunden habe."
3 Also in the Rhine Provinces.
1814 (4th ed. 1840).
The first success achieved in the direction of aunited code was in that part of it relating to commercial bills and notes. by the publication in 1848 of the Allgemeine deutsche Wechselordnung. The extraordinary inconvenience to which merchants were put in Germany in their commercial relations before this Ordnung is scarcely to be exaggerated. Every petty principality nearly-inhabited by people of the same language and customs, and separated by merely artificial boundaries—had its separate law of exchange, and claimed its own international rights. A single bill would sometimes, in the course of circulation, fall under half-a-dozen different rules of law. A perfectly valid document in one territory might in another, perhaps only a few yards off, be held quite worthless.
Down to 1847, many proposals had been made by different States for the preparation of a general law on the subject. At length, in that year, on the invitation of Prussia, a conference was held at Leipsic, consisting of representatives from nearly all the German States; and by this assembly the present Wechselordnung was drawn up. This was accepted in the following year by the National Assembly which met at Frankfort, and declared to be law for all Germany. It was afterwards formally introduced by nearly all the different Governments (Austria being an exception) into their statute-books. As certain difficulties, however, which presented themselves in construing it were not everywhere receiving the same interpretation, it was found necessary to have these authoritatively decided. They were, accordingly, by order of the Bund, laid before the Conference which had met at Nürnberg for the preparation of a mercantile code; and its decisions, under the title of the Nürnberger Novels, were almost unanimously accepted. The Wechselordnung is divided into three sections and one hundred articles.1
The preparation of a general code of commercial law was the next great step. The Allgemeines deutsches Handelsgesetzbuch is a much more important and extensive work than the Wechselordnung. Both in 1836 and 1847, Wurtemburg, as one of the members of the Zollverein, had brought before the Diet plans for such a work. But political events caused the question to be shelved at that time. It was brought forward again, however, in 1856, and took practical shape. In that year Bavaria proposed that a conference of all the States should be held for drawing up a general code; and in the following year representatives from twenty-one States met at Nürnberg for this purpose. Previous to this however, in 1850, Prussia, in whose territories (owing to the variance between the rules of the common law code and the provincial laws), the necessity of consolidation had been peculiarly felt, had appointed a commission to sketch a new code on this branch for itself. The draft which it had prepared was now accepted by the Nürnberg Conference as a basis to work upon. Four years of almost constant 1 Edited by S. Borchardt, Berlin, 1869.
labour were spent before the present code was completed in 1861. In June of 1862 it was accepted by the Bundestag. As to the external plan of the Handelsgesetzbuch, it is divided into five books, and, as in the Prussian code, subdivided into titles, sections, and paragraphs. The subjects are taken up in the following order:
The first book treats of merchants generally, and their commercial relations (Vom Handelstunde); the second of partnership, including joint stock companies, limited and unlimited; the third of dormant partnership and temporary trading associations; the fourth of the various mercantile contracts; the fifth, during the preparation of which the Conference went to Hamburg to obtain the practical advice of merchants there, is devoted wholly to maritime law. (See recht.)
At the introduction of these two codes-the Wechselordnung and Handelsgesetzbuch-in 1869 into the North German Bund, a very important proposal was made by Saxony. This was the establishment of a common and supreme tribunal for the decision of mercantile cases. The proposal was adopted, and has borne fruit in the present Ober-Handelsgericht at Leipsic.
The Allgemeines deutsches Strafrecht is the last achievement in the codification of the common German law. The laws relating to crimes and their punishment have always been rightly looked upon as most standing in need of codification; for anything like uncertainty or irregularity in them is naturally felt most grievously. Accordingly we find that in nearly every country whose scientific jurisprudence has reached the stage of codification at all, a penal code is the first to which attention is directed. This is to be seen in Germany, where nearly every one of the separate governments have, at some time or other, produced one. În the old Empire, too, almost the only successful attempt at codifying the law was in this branch of it, viz., by the celebrated Carolina, published in 1534, under Charles the Fifth. The preparation of the present Strafrecht is due to the North German Bund. It is noticeable generally for its mildness, being in that respect a great advance upon some of the territorial codes, such as the Bavarian of 1808 and the Prussian of 1850. It is divided into two titles, the first containing five, and the second twenty-nine sections, and is subdivided into 370 paragraphs.
Since the establishment of the new Empire, these three codes, Wechselordnung, Handelsgesetzbuch, and Strafrecht, have been formally accepted in the Reichstag, and are now fixed laws for the whole land.
A common code of process law has not yet been attained; but it is expected that one will be brought before the next meeting of the Reichstag.
A common code of the whole private law of Germany can scarcely 1 Down to introduction of the present Allgemeines Strafrecht, the Carolina seems to have retained authority in some parts of Germany; e.g. Mecklenburg-Schwerin.
be said to have advanced much beyond the region of hope. As may easily be supposed, it is a work of enormous difficulty-a giant task (riesige Arbeit), as one jurist has truly styled it. Yet it is one of which some of the best minds of Germany do not despair; and there is little doubt that that country, at the right time, will not want her Tribonian. H. G.
JURISDICTION IN CONTINUOUS CRIMES.1
In the recent cases of Bradbury, July 25, 1872, and Allen, November 1872, before the High Court of Justiciary, a question of jurisdiction with regard to crime, involving not only many points of interest to the lawyer, but points also of no little importance to society, was raised in connection with this subject.
In these cases the prisoners were charged with the crime of falsehood, fraud, and wilful imposition. Bradbury, who resided in England, had written and despatched therefrom to certain parties. in Scotland letters containing orders for goods of various descriptions. He signed the letters with false names, and gave various addresses in England where the goods were to be delivered to him. Payment was to have been made on delivery, or at such time thereafter as the parties should agree to. On the faith of these letters, the parties to whom they were addressed were induced to part with their goods, and the panel obtained possession of them. The transaction on the part of the accused was represented as fraudulent, in respect it was in pursuance of a scheme for obtaining goods from parties in Scotland without paying or intending to pay therefor. Allen's case differed only in respect that he connected himself with Scotch subjects by means of advertisements in Scotch and English newspapers, offering, upon payment in advance of certain interests and expenses, that he should lend money in pursuance of a fraudulent scheme conceived by him in England to obtain payment of such interest and expenses without lending or intending to lend the said money.
It was urged on the prisoners' behalf in both cases that no crime was set forth, because what was charged was not in either case a crime in England, and therefore Englishmen could not be responsible for ignorantly transgressing a rule peculiar to the law of Scotland.
As to the general principles which regulate jurisdiction in criminal cases all writers are agreed. Especially it is not disputed that this jurisdiction is local or territorial, that the right of supervision and punishment of a crime belongs to that country within which the crime was committed. This principle lies at the root of all theories of criminal jurisdiction, not only in this country but in all countries where anything like a system of jurisprudence has been developed.
1 See ante, J. of J. for Oct. 1872, vol. xvi. p. 544.
Among our own lawyers Kames and Hume very explicitly express the doctrine. "No crime committed in a foreign country," says the former (Principles of Equity, ii. 326), “ can be tried in Scotland. The jurisdiction of the Criminal Court is strictly territorial, being confined within the limits of Scotland; and the extraordinary jurisdiction of the Court of Session with respect to foreign matters extends to civil causes only." And after referring to the grounds on which it is expedient that the civil jurisdiction of a country should not be so strictly limited, he continues: "But there is not the same necessity for an extraordinary jurisdiction to punish foreign delinquencies; the proper place for punishment is where the crime is committed, and no society takes concern in any crime but what is hurtful to itself."
Hume is even more explicit on this point. He says (Hume, ii. 57): "It is the general result of all that has been said, that the prime and most proper forum in criminal matters is the forum delicti, and that the chief if not the only circumstance which of itself creates a jurisdiction to the Court of Justiciary, is that of the offence being committed within the realm of Scotland." This is the broad statement of the principle of criminal jurisdiction, but it may be well to observe here in passing a certain limitation of the principle which is stated in the immediately succeeding paragraph: "But even this circumstance is not of itself sufficient in the case of a foreigner who is only transiently here. In this case he not yet having formed any permanent connection with this country to lay him under an obligation to answer in our Courts, no proceeding can take place against him. In this respect, therefore, the forum delicti and the forum contractus are on one footing; they only affect a footing si deprehendatur, if he is found within the territory where he offended or contracted."
We may have occasion in the sequel of these remarks to refer more particularly to the limitation indicated in this passage. In the meantime we have to do only with the general principle, universally recognized, that the forum in criminal matters is the forum
In applying this principle to such cases as that of Bradbury and Allen, the first difficulty with which we are met is involved in the circumstance, that in these cases the whole facts libelled did not take place in the same country, part of the res gesta having occurred in England, and part in Scotland. The question thus raised is, assuming that in the general case a crime can be committed only in one place, where is the locus delicti in cases where the series of acts complained of as the completed crime are enacted at different times and in different countries?
In casting about for an answer to this question, two media of decision suggest themselves, each capable of being considered separately from the other, yet to a large extent running the one into the other. We may ask, in what consists the essence of the crime?