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These two readings depict precisely the difference of sentiment between the learned Doctor of
“ The U.
niversity of Gottingen and myself on the intricate subject of laws.
Mr. Cooper's criticisms in his “ Account of Parliamentary Proceedings relative to the Defects of the Court of Chancery, &c." next demand
attention. In a review contained in the Foreign Quarterly of a recent publication entitled Lettres sur la Chancellerie d'Angleterre, written under the masque of a French suitor here to his brother, an advocate at Paris, and of which Mr. Cooper has since avowed himself the author, the reviewer adverts to some illustrations which I had bestowed upon my subject from the systems of other nations. Mr. Cooper, in the course of his reply to the critic, after liberally apppreciating the value of my suggestions on the direct subject of the law of Real Property, proceeds with some observations of which, in order to give them whatever weight they are entitled to, I must transcribe the whole. “ But few (continues Mr. C.), except the reviewer, would think of ascribing to Mr. Humphreys a familiar acquaintance with the foreign codes. (n) Indeed Mr. Humphreys himself, in his letter to Mr. Sugden, does not scruple to state how little he knew upon the subject. After observing that Mr. Sugden had expressed himself rather strongly as to the excess of law books, and of litigation, which had already inundated France from its code, he adds, “ on these subjects, however, we can both of us personally be but imperfectly instructed. Nothing short of close and repeated inquiries on the spot could afford any accurate result. And it is said, that Mr. Humphreys has immediately afterwards given a very apt illustration of what he has stated, by falling into a whimsical error ; from which it should seem that even inquiries made on the spot cannot always be relied on. Mr. Humphreys informs us that he had been recently honoured with an interview at Brussels by M. Van Maanen, the Minister of Justice, who bore no inconsiderable part in framing the constitution and the laws of the kingdom of the Netherlands; and from whose assurance he felt warranted in stating, that their code, which enjoyed the advantage of posteriority over that of France, worked well; and he tells us, after the publication of his letter to Mr. Sugden, that he perused the civil code of the Netherlands, and then traversed
(n) “ Since this Appendix was written I have derived much gratification from the perusal of Dr. Reddie's Letter to the Lord Chancellor, on the Expediency of the Proposal to form a New Civil Code for England. I cannot but recommend that pamphlet to the attention of the Reviewer. Dr. Reddie, I believe, studied under Hugo, and may be supposed, therefore, not to be altogether ignorant of the foreign codes and their working qualities.” (Note by Mr. Cooper.)
that country in almost every direction, which he found cultivated like a garden with a peasantry thoroughly at its ease, owing to the admirable working quality of the new.code.(0) Now, it is said that this code has not come into operation, that by 'a fundamental law of the new monarchy of the Netherlands, the code Napoleon was, for political reasons, to be abolished, and a new code established in its stead ; but that no part of the new code was to take effect until the whole should be finished ; and that, although the government has been engaged in the formation of the code ever since the year 1814, yet the only parts completed are the code civil, the code de commerce, and the code d'organisation judiciare; that the code pénal was to be the subject of discussion in the session of the States-General held last year, and that it has not yet been finished and approved; and that if it were finished and approved, the code de procedure criminelle would still remain ; and that the code Napoleon, with certain temporary modifications, is still in force in the kingdom of the Netherlands."
“ How far these on-dits are correct I will not pretend to determine; that they are not altogether without foundation will appear from the following extract from the last part of that excellent periodical work, published at Paris, Thémis ou Biliotheque du Jurisconsulte, Royaume des Pays-Bas. Les derniers titres du code civil et le code de commerce ont été adoptés, pendant la session de 1825-1826: on doit discuter pendant la session prochaine le code d'organisation judiciare. Il faut se rappeler, que tous les codes doivent être achevés avant qu'aucun d'eux devienne exécutoire. Mais quelques lois particulières ont dejà remplacé certaines dispositions des codes Françaises ; qui pour le surplus continuent à régir le royaume des Pays-Bas.'” (p)
I regret at being again compelled, as in the case of Mr. Reddie, to commence my reply by correcting a misrepresentation on the part of Mr. Cooper.
In preferring the charge in question, Mr. C.'s avowed object is to make me attribute the flourishing appearance of the Nether
(0) See the Preface, and the 218th page, of Mr. Humphreys's book, second edition.
(Note by Mr. Ccoper.) (o) “ M. Blondeau, who is known to more than one member of the Chancery bar, is the writer of the article froin which this extract is taken. I have never been able to procure any copy of the new civil code of the Netherlands, except one formed of the different numbers of that code as they have from time to time made their appearance in the Journal Officiel du Royaume des Pays Bas, This code does not at all correspond with Mr. Humphreys's quotations from the Belgic code. I have not the code Napoleon, as modified for the Belgic provinces; but if M. Blondeau is correct, it will probably be found that Mr. Humphreys, both in his conversation with M. Van Maanen and in his criticism, has mistaken that code for the new civil code of the Netherlands."
(Noteby Mr. Cooper.)
lands to “ the admirable working quality (as he tauntingly and gratuitously terms it) of the new code.” But how stand the passages to which he refers? The material one is contained in the preface to my second edition. It states my reasons for withdrawing from the work a comparison between primogeniture and equal succession, contained in the former edition. The article, I observe, “ bore rather a political than a legal character. Since the former publication, too, the author has perused the civil code of the Netherlands, and has traversed the country in almost every direction. The one establishes equal partibility; the other exhibits a country cultivated like a garden, with a peasantry thoroughly at its ease." Not a word here respecting the admirable working quality of the new code. This latter expression, however (bating the word 'new'), Mr. Cooper, after an evidently minute research, discovers in the second part of my work, (q) and transports it accordingly to the tail of his quotation. But this would have squared ill with the very limited purpose (for which alone I cited the civil code) of illustrating equal succession. The only course left was, to sink the passage which stated this object, and to supply its place with an expression suiting Mr. Cooper's construction from some other part of my work. When Peter failed to find the desired expression in his father's will, he next sought to collect it totidem verbis.
The brief language of a preface, especially on the very minor occasion of omitting an article in a former edition, did not call for a detailed exposition of the laws alluded to, I therefore expressed myself generally. Mr. Cooper should, however, have recollected, that the rule of equal succession was not introduced for the first time by the new code civil of the Netherlands, but that it subsisted equally under the Franco-Belgic, as well as under the ancient Dutch and 'Brabant laws, when the country (originally a Roman province) formed the seventeen provinces, united under the same laws, by a perpetual edict of the States, with the sanction of Charles V.(r) In fact, this mode of descent prevailed in the Netherlands, according to our own technical phraseology, “ from time whereof the memory of man runneth not to the contrary." Had it been otherwise, had either the Franco-Belgic or the new civil code substituted equal succession for primogeniture, the question, whether the latter code be in full operation, or be merely published (which Mr. C. conceives of such vital importance), would be of no moment; since in neither case could the difference of a few years have influenced the fixed habits of a long established civil government. (2) P. 218.
lo) Institutes of the Law of Holland, printed in 1806, and translated by Mr. Henry in 1828, p. 158. & 3 Meyer Institut. Judiciares, p. 360
But how would stand the charge if it even rested upon the mere fact of the active promulgation of the code civil of the PaysBas ? This code was published in successive portions in the Journal Officiel des Pays-Bas. The first number on the subject is dated 18 Juin, 1822; and after alluding to an article of the fundamental law, that, “il y aura pour tout le royaume le meme code civil,” &c. it contains the following among other regulations.-
“ Les lois sont executoires dans tout le territoire du royaume, en vertu de la promulgation qui en est faite par le roi."
« Elles seront executées dans toutes les parties du royaume du moment ou la promulgation en pourra être connue.”
“ Si la loi n'a point fixé une autre epoque, la promulgation sera reputée connue dans tout le royaume, le vingtième jour après la date que portera le Journal Officiel dans lequel la loi sera inserée."
The final number (61) is dated March 26, 1826, being seven months before I was in the Netherlands, and it closes with the following direction—" Mandons et ordonnons que la presente loi soit inserée au Journal Officiel ; et que nos ministères et autres autorités qu'elle
concerne tiennent strictement la main à son execution.
To these quotations I have little to add ; but Mr. Cooper cannot contest the authority of Mr. Reddie, whose pamphlet he so strongly recommends to notice. That gentleman, after speaking with some approbation of the Dutch code, as compared with that of the French (but without showing the difference between them), observes that, under the circumstances stated by him, " it is satisfactory, but not surprising, to learn, that the code works well, at all events better than the French code, till lately in force." (8)
Mr. Cooper kindly proceeds to show how my error arose. I must have mistaken the Belgic code, as modified for that country from the French code, while a part of the territory of France, for the present c: le civil. This latter code, he asserts, does not accord with my quotations from the Belgic code. I will assure him, I never saw the Belgic code; but in return I must entreat him to point out the instances in which my references to the code civil, as contained in the Journal Officiel, are incorrect.
So pre-determined is the learned gentleman to convict me of want of information respecting foreign codes, that I am represented by him as not scrupling, in my letter to Mr. Sugden, to admit the fact. Thc passage alluded to, however, was evidently written with reference, not to the French code itself, but to Mr. Sugden's assertion, that its effects were to increase litigation, and
(s) P. 40.
to add but one other book to the overloaded shelves. On this subject, which was merely a question of practice, “nothing short,” I observe, “ of close and repeated inquiries on the spot would afford any accurate result." "My critical inquisitor prepares the condemned passage for execution by first torturing it.
Such seem the sum and substance of Mr. Cooper's on dits.' To what conversational discussions, to whose light table-talk does he mean to attribute them; forming, as they do, the result of a toilsome effort to wrest, (by transferring two passages which stood, one in the preface, and the other in the closing part of a work, into one sentence), that which the author had, by mere allusion to a particular mode of succession, assigned as a reason for omitting a digression in a former edition, into a general description of the working effects of a code ;-to question the fact of the promulgation of a code of laws in the very teeth of its text';and to convert the author's declaration of his not having witnessed the actual practice of French courts of justice into a confession of his ignorance of a code which, with the discussions upon it, he has ever cited with minuteness, and, he trusts, with exactitude ? But the author of Les Lettres sur la Chancellerié was never felicitous at writing in character.
I cannot, however, conclude without paying the due tribute of commendation to Mr. Cooper's full exposure of the defects in the administration of justice in the Court of Chancery, and his free, and generally judicious, proposals for their reform. But, with what consistency can the propounder of such uncompromising, such radical corrections in the dispensation of equitable justice object to a systematic amendment of the laws themselves ? A celebrated French writer observes that, when a Protestant admits the Trinity, but denies transubstantiation, c'est par humeur.
I am, Sir,
Jas. HUMPHREYS. Lincoln's Inn, July 12, 1828.