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with the former existing laws on the subject, and with those of other countries.
Still greater solicitude was manifested, and equal care taken, to give perfection to the Commercial Code. After the plan of it had been formed and discussed in the council of state, a copy of it was sent to every court of justice, and to every chamber of commerce, throughout the empire; and their separate observations required on every article which appeared susceptible of amendment. These observations, forming an immense mass of opinions, of suggestions, and of arguments, were laid before the council of state, and the code again taken into consideration, and such alterations made in it as were judged proper; after which it was submitted to the legislative body for final adoption. Human ingenuity could not have devised, nor human happiness desired, a mode better calculated to ensure perfection to a work of this nature. Not only the most distinguished judges and statesmen, but every merchant of character and respectability in France, was thus called upon to contribute his information and experience in the formation of this system of laws.
The Code Napoleon contains all the general principles of civil and municipal law. Its provisions em. brace all the various relations of men in society, their rights, duties and obligations, both in respect to the public authority, and to each other. It secures the enjoyment, and regulates the descent and transfer of property ; recognises the principles of equity in the construction of contracts and engagements, and pro. . vides for their faithful performance.
The Commercial Code provides for the application of the general principles recognised in the Code Napoleon, to the numerous and diversified cases arising out of the operations and transactions of trade. It is, therefore, in many respects, conformable to the spirit of the commercial laws of other civilized nations, though it differs from them in some important points, and contains many new and highly valuable provisions. Such a body of mercantile law, condensed in so small a compass, its various parts arranged and exhibited in so able a manner, is not to be found in the jurisprudence of any other nation. The commercial law of England exists not in any definite and distinct form. It must be sought in the voluminous pages of the statute book, and still more in the countless volumes of elementary treatises and reports of adjudged cases, which encumber the library, and distract the mind of the judge and the lawyer. Founded originally upon usage, it has, from time to time, received par. tial additions and alterations from acts of parliament; and derives its force and authority much less from positive regulations, than from the numerous, and sometimes contradictory, decisions of the courts. The Lex Mercatoria of England, though equally the law of the land, forms no part of what is called the common law. The former has borrowed most of its principles, and many of its rules, from the commercial regulations of the continental nations, and from none more than from those of France, whose celebrated ordinances and enlightened authors have contributed more to improve and enrich the commercial jurisprudence of England,
than all the statutes of her parliaments or the writings of her jurists. The treatises of Pothier, of Jousse, of Domat, of Emerigon and of Valin, are deservedly held in the highest estimation in Great Britain ; and neither national antipathy nor inveterate prejudice has been able to resist the influence of these luminous and masterly productions. Even the ordinances of Louis XIV. have extorted the highest encomiums from the bench and the bar of England; and are cited as authority in almost every commercial question of importance, before the courts of that country.
Sir William Jones, one of the most accomplished men of modern times, a lawyer, a judge, and a scholar; skilled in every science, and learned in almost every language, has done ample justice to the writings of Pothier, the most distinguished of the French ju. rists. He has strongly recommended the study of his works to the English lawyer, as being well calculated to enlarge his legal knowledge, on subjects involving many of the most important principles of English law. Equally above the narrow prejudices of national jealousy, and the groundless fears of ignorance, or the per. verseness of obstinacy, he has, with his usual candour and eloquence, paid a just tribute of praise to the merits of the civil law: and completely refuted the absurd and ridiculous notions, once entertained in England, against the study of that noble system of jurisprudence.
The common law of England, which we have borrowed from that country, with her general system of jurisprudence, undoubtedly contains many excellent
principles, but its provisions, for the most part, origi. nated in the doctrine of the feudal system, and still bear the rude stamp of its character. Adapted to a confined and unlettered state of society, in which commerce was scarcely known, or the arts cultivated, it embraced, in its early stages, but a limited range of human action; and is indebted to the improvement of modern times for much of that wisdom and purity which it now exhibits. On this subject I cannot forbear quoting a passage from a very learned and eloquent opinion delivered by Judge Waties of South Carolina, in a libel case lately before the court of appeals of that state : it is in the following words:
“ It is a great error to look to the first sources of the common law for the purity of its principles. The best and purest of these were of later accession. The sources of the common law (except such parts as were derived from the laws of Rome) were shallow and muddy. In its downward course, it has been continually filtered and enlarged by passing through courts of increased wisdom and science; and it is owing to these continued filterings and accessions that we see it as it now is, a clear, wholesome, deep, and majestic stream." See Hall's Law Journal, No. 1. 2d Series. The State v. Thomas Lehre.
Though the liberal and enlightened spirit, the just and rational views of modern times, have contributed so much to the improvement of the English law; yet the system is far from being adapted, in all respects, to the prompt administration of justice, or to the genius of our government.
It is, therefore, susceptible of melioration. Though we may fondly cherish the sacred and venerable princi. ples of the common law, something may yet be learned from the laws of other nations, by which we may impart light and efficacy to those principles, and extend their operation to the various pursuits of life, in the present state of society.
Let us, then, throw off the shackles of antiquated rules and precedents, unfounded in reason and truth, and diligently endeavour to ingraff into our system of jurisprudence those pure principles of equity and jus. tice, which give dignity to law and security to property; which, while they strengthen the bonds of civil society, present a simple, sure, and prompt mode of redress, against the infraction of obligations and the violation of private rights.
In an age of science and of letters, whatever the wisdom and the genius of any nation has produced, which may contribute to private happiness or public order, is entitled to credit and consideration.
Whether it be the Code of George or Napoleon, of Frederick or Alexander, which is offered to our notice, why should we not equally examine its principles and provisions? Some new discoveries, some important regulations, may be suggested, which, so far from being incompatible with our own laws, may greatly tend to enrich and invigorate them. Who will venture to affirm that our jurisprudence has already attained perfection? Who will pronounce it to be fully adequate to the calls of justice and the wants of the commu