be inconsiderable. On the opinion that fixed forms of action secure certainty in rights, I will only remark, that it well attests how complete in the legal profession is the divorce of law from jurisprudence. What follows the above remarks relates merely to the abolition of certain forms, now so rarely used as to be almost obsolete. And, in conclusion, the Commissioners say, 'We propose then to simplify the Law of Actions by discontinuing all those which are now maintainable between subject and subject, the following usual or well-known modes of remedy only excepted; viz., Covenant, Debt, Detinue, Dower, Ejectment (under its new form and denomination of Plea of Land), Mandamus, Probibition, Quare Impedit, Replevin, Scire facias, Trespass, and Trespass on the Case (including Assumpsit and Trover).'

"To oppose a difficulty instead of an answer to the above remarks, there are some equally attached to the existing forms and fictions as the Common Law Commissioners, who would say, By abolishing fictions you contribute to disturb ancient foundations, and you offer no adequate forms in the place of them." I reply, Your phrase is unnecessarily alarming: you cry, Fire, fire, fire! without the appearance of a spark to justify it. If you come to me to reason and advise, I request you to drop all party watch-words. I disturb no foundations. What I propose is to strengthen foundations, by removing a heap of what time has converted into obnoxious rubbish. The inadequacy is not in my recommendation, but in your own power of conception. True indeed I offer no fixed forms, because it is obvious there are no fixed cases;-as many plaintiffs so many different cases;-but there are principles and rules applicable to all cases: and what I contend for is, that as they have been applied to some and that a majority of cases, they should be extended to all cases. The form of action should be an expression of the facts of the case; not the irrelevant facts as a party states them to his friend or attorney, or legal adviser; nor mere circumstances which are only evidentiary of the facts: but the facts such as by law are inductive of the right claimed by the plaintiff. Of such forms I have hinted examples, and some of the existing forms are drawn on this principle. For instance, the action of Covenant. The declaration stat s, that by a deed of such a date, made between the plaintiff and defendant, the defendant covenanted to pay the plaintiff such a sum of money on such a day; yet he had not paid it on the day appointed nor since. Or, by a deed of such a date, made between the plaintiff and defendant, the plaintiff demised certain premises to the defendant for such a term, and the defendant covenanted to keep them in repair during the term; yet he had not kept them in repair during the term, but on the contrary had suffered them to become dilapidated in such and such particulars. What more in a declaration can be required? What fictions are here necessary? The action on the case ex delicto also is a statement of the real case, or so much of it as is necessary to support the action. This action, therefore, and the action of covenant, though called different forms, differ only as the cases differ; and as forms must differ, unless indeed for every case we give come one fiction for the parties to toss up, and say they have a right, and then wager the facts and the law upon it."

2. CIVIL LAW MANUSCRIPTS.

Recherches sur plusieurs Collections inédites de Décrétales du Moyen Age. Par Augustin Theiner, Docteur en Droit, &c. Paris. 8vo. 1832.

NEW proofs are daily produced, that imperfections in existing laws may be easily lessened by careful researches into existing materials, by means of which their texts may be corrected. Upon the Continent such researches are beginning to assume an organized character, although until lately the burthen of making them has been too much left to the activity of private individuals. The School of the Charters now established in Paris, and the revival of the Fifth Class of the Institute, are circumstances highly favourable to extensive and accurate inquiries into the foundations of law. It begins to be felt, that a knowledge of the past is not useless towards a due improvement of existing institutions; and deep learning and enlightened industry are found by lovers of free government in modern times, as by the Miltons and Seldens and Hampdens of the seventeenth century, to be perfectly compatible with sound, popular opinions. It will depend upon the direction to be soon given by Parliament to the labours of the Record Commission, whether Great Britain shall share largely in this improved spirit.

Of the private individuals devoted to inquiries into manuscripts, few have been more successful than Professor Haenel, of Berlin; and Dr. Theiner, of Breslau.

Professor Haenel's Catalogue of Manuscripts in different parts of Europe, published in 1830, included for England only those in the very important collection of Sir Thomas Phillips, of Middlehill. The Record Commission could not do better for several years to come than to complete the Professor's labours. To collect into one spot in London the Catalogue of all the masses of public manuscripts, and to verify those catalogues well, would require much care. The owners of private manuscripts on subjects interesting to the public, would doubtless contribute largely to such a collection.

Dr. Theiner's Researches, dedicated to Savigny, are of a more recent date. They treat of the author's discovery at Brussels, Bruges, and London of various canon law manuscripts of the 11th, 12th, and 13th centuries.

The success of Dr. Theiner in London seems to illustrate a curious and important point in church history. A collection of decretals by Bernard of Compostella had been rejected by Pope Innocent III., because it contained, as authorities, what had not received the papal sanction. Bernard seemed to diminish the

supremacy of the Bishop of Rome, and therefore the Pope took pains to supersede him by causing a new collection to be introduced into the Great Law University of Bologna. The old lawyers, however, placed much reliance on the works of Bernard; and in after times Cujas, the Pithous, Baluzius, and others, made laborious inquiries after early and authentic copies of it. They examined all the libraries in France for this purpose, but without success. Equally fruitless were the researches of Antoine Augustin for it in Spain, the country of the author. Dr. Theiner has been more fortunate; and as the result of his visit to England for the sake of the stores which remain hidden here may excite just attention to those stores on the part of their keepers, we give his modest account of his visit in his own words:

"Ce problème historique paraissait donc devoir rester sans solution. Cependant la lecture d'un catalogue d'une Bibliothèque d'Angleterre, dite Jacobéenne, me fit soupçonner que le manuscrit de cette Bibliothèque, intitulé: Innocenti III. Decretalium Breviarum per Bernardum Compostellanum, pourrait bien être l'ouvrage que l'on croyait à jamais perdu.*

"Pendant mon séjour à Londres, je fus assez heureux pour trouver dans la Bibliothèque royale du Muséum britannique un manuscrit contenant la véritable collection de Bernard de Compostelle. Ce manuscrit, côté 9 B. xI., est sans aucun doute celui de la Bibliothèque Jacobéenne, qui se trouve depuis long-temps réunie à la Bibliothèque royale du Muséum britannique.‡

"Le catalogue de cette dernière Bibliothèque ne le désigne que sous le titre de Innocentii III. Decretales, ce qui m'obligea de compulser toutes les collections de décrétales avant de le trouver.

"Il date du commencement du quatorzième siècle, et est écrit sur parchemin avec assez peu de soins."—Recherches, &c. pp. 49–51.

To this notice of manuscripts in England which more especially concerns foreign jurists than ourselves, but in the interest of which Doctors' Commons has a share, we may add, that in the extensive work of M. Dupin upon the profession of Advocates, the solution of a question of some importance is stated to depend on a manuscript once existing at Oxford.

It is high time that the members of the great republic of letters, scattered all over the world, should make common cause, and devise means for rendering access easy to this glorious common stock.

p. 245."

"Bernard: Catalogi MSS. Angliæ et Hiberniæ, Oxoniæ, 1697, fol. t. ii. p. 1, "A Catalogue of the Manuscripts of the King's Library, by David Casley, London, 1754, p. 170, in 4to.

"An Account of several Libraries, public and private, in and about London, for the satisfaction of the curious, whether natives or foreigners (in Harleian MSS. 5900). In the Gentleman's Magazine, year 1816, Sept. p. 213-226, et Oct. p. 317-319. Synopsis of the Contents of the British Museum. London, 1826, 8vo. p. 86, and sq.”

3. THE LAW OF STRANGERS IN FRANCE.

Code des Etrangers, ou Traité de la Législation Française con cernant les Etrangers. Par B. J. Légat. Paris. 8vo. 1832. STRANGERS are peculiarly objects of jealousy to the inhabitants of half-civilized states; and it is a just reproach to France, that her laws were long severe, in the highest degree, against them. They who visited the country were subjected to numerous vexations in person and property. When they died there, religious rites were refused to their remains, if they were Protestants; and, in no case, could their property be transmitted either by will, or to their relations. All they might leave was seized by the King under the droit d'aubaine, a right which the eightteenth century had derived from the enlightened days of Charlemagne and Louis le Debonnaire. In 1790, the constituent assembly introduced a more humane system, which was afterwards swept away with a thousand other good works done by the great men of the first period of the revolution; and Napoleon did not sufficiently revive it, when completing the Codes projected by the constituent assembly. The debates upon them contain, indeed, curious proofs of the existence of prejudices, which the despot fostered in favour of France only, in order that Frenchmen might become more exclusively instruments of his gigantic ambition. In 1819, the droit d'aubaine was abandoned; and the revolution of 1830 seems to have drawn attention satisfactorily to the general subject.

An old barbarous rule, however, like that which in the Turkish law,* directs contracts made by foreigners out of Turkey not to be tried in the Mahommedan courts, is still in force in France. A recent writer, the title of whose work is prefixed to this paper, appeals against it in the following terms, which, at least, prove that codification has not yet performed its task perfectly in France :

"Mais lorsque les etrangers, tant le demandeur que le defendeur, n'ont point leur domicile en France, nos tribunaux sont-ils competent pour statuer sur leurs contestation. La jurisprudence est divisée sur ce point; ou, pour mieux dire, il n'y a pas de jurisprudence; car nos cours et tribunaux ne parlant point d'un principe certain, se declarent quelquefois competens, et d'autres fois refusent de juger."

Aucun differend entre deux étrangers sur des engagemens contractés hors de l'empire, ne peut être jugé en pays Mussulman.”—Notice sur la législation Othomane, Themis, vol. iii. p. 316.

The Turkish law is consistent upon this subject; and extends this rule to contracts between Mussulmen and strangers, whereas the French courts admit such suits between Frenchmen and strangers.

It is difficult, nevertheless, to find words clearer than those of the 11th, 13th, 14th, and 15th articles of the Code Civil, under which some of the French courts pronounced the decisions which occasioned these observations of Monsieur Légat. The translation of these articles is as follows:

"Article 11. A foreigner shall, in France, be invested with the same civil capacities as are, or shall be granted by the treaties of their nation to Frenchmen in their country. 13th. A foreigner licensed by the king to become domiciled in France, shall be invested with all civil capacities so long as he shall reside there. 14. A foreigner, even if not a resident in France, may be summoned to appear in the French courts upon obligations incurred by him in France, in favour of a Frenchman. He may also be sued in the French courts, upon obligations incurred by him abroad in favour of a Frenchman. And, 15th. A Frenchman may be sued in a French court upon obligations incurred by him abroad even in favour of a foreigner."

Upon these plain enactments we find the following recent decisions, from which it is not rash to infer, that much more is, needed in order to make men observe law, than to set it forth in an intelligible code. That is an indispensable step, but the code must be consistent with advancing civilization, or it will be daily infringed. Private engagements will be formed in reference to opinions opposed to the letter of the law; and judges will be found, from time to time, to yield to such opinions, which they themselves share; and, in spite of duty, to neglect the laws which they disapprove. From this conflict must inevitably arise doubts and litigations, which it is the true mission of codes to remove. The decisions referred to are as follows;

In December, 1827, the Civil Court at Boulogne admit jurisdiction.

In January, 1828, in the same case, the Tribunal of Commerce at Calais reject the jurisdiction claimed for it; and, in the same year, the Supreme Court in Paris supports the decision of the Tribunal of Commerce at Calais.

Again, in 1832, it is decided by one court, that the French indorsee of an English bill of exchange may recover upon the bill against the English drawer whom this French indorsee happens to find in France.

But in the same year, 1832, another court decides a jurisdiction case directly the other way.

Whilst a third court of high rank, in a third case of a like kind, upon an English bill of exchange, also gives judgment in favour of the indorsee.

Again in the same year, 1832, the Supreme Court of Appeal supports the jurisdiction of the French Courts in a mercantile case, although the contract was clearly made between two foreigners in