"the successful party should, for the benefit which he "had derived from the proceedings of the court, contri'bute, in some degree, to the expences attending them; "and that the public, on account of the general benefit, "which it derived from the administration of justice, "should make up the deficiency." To secure to the judges the proportion which the suitors were to contribute towards the expense of justice, it was provided, by an ordonnance of St. Louis, that, at the commencement of a suit, each party should deposit in court, the amount of one-tenth part of the property in dispute: that the tenth deposited by the unsuccessful party should be paid over to the judges on their passing sentence; and that the tenth of the successful party should then be returned to him. This was varied by subsequent ordonnances : insensibly it became a custom for the successful party to wait on the judges, after sentence was passed, and, as an acknowledgment of their attention to the cause, to present them with a box of sweetmeats, which were then called épices or spices. By degrees, this custom became a legal perquisite of the judges; it was converted into a present of money, and the payment of it required by the judges before the cause came to a hearing :-) :--Non deliberetur donec solventur species, say some of the ancient registers of the parliaments of France. The practice was afterward abolished; the amount of the épiçes was regulated; and, in many cases, the taking of them was absolutely forbidden. Speaking generally, they were not payable till final judgment; and, if the matter were not heard in court, but referred to a judge for him to hear and report his decision upon it to the court, he was exclusively entitled to the whole of the épices. Those Among the magistrates, who were most punctual and dili

gent in their attendance in court, and the discharge of their duty, had most causes referred to them, and were therefore richest in épices; but the superior amount of them, however it might prove their superior exertions, added little to their fortune, as, in the whole year, it did not often exceed 501. and never 1007. The judges had some other perquisites, and also some remuneration from government; but the amount of the perquisites and remuneration of any judge, excepting those of the presidents, amounted to little more than the épices. The presidents of the parliament had a higher remuneration; but the price, which they paid for their offices, was proportionably higher; and the whole sum received by any judge for his épices, perquisites, and other remunerations, fell short of the interest of the money, which he paid for the charge; so that, virtually, the French judges administered justice, not only without salary, but even with some pecuniary loss. Their real remuneration was the rank and consideration, which their office gave them in society, and the respect and regard of their fellow-citizens. How well does this illustrate Montesquieu's aphorism, that the principle of the French monarchy was honour? It may be truly said, that the world has not produced a more learned, enlightened, or honourable order of men, than the French magistracy.

Englishmen are much scandalized when they are informed that the French judges were personally solicited by the suitors in court, by their families and protectors, and by any other person whom the suitors thought likely to influence the decision of the cause in their favour. But it amounted to nothing: the judges listened to all these solicitations with equal external reverence, and internal indifference: and availed themselves of the first moment,

when it could be done with decency, to bow the parties respectfully out of the room :-it was a corvée on their time, which they most bitterly lamented.

III. 3.

On the Limits of the Right of Courts of Judicature to interpret Laws.

MANY distinguished magistrates and advocates in France were declared enemies to the latitude of legal interpretation, in which the parliaments of France,-(the reader will bear in mind, that we consider them only as courts of judicature,)-too frequently indulged themselves.

It was of two sorts: Sometimes they signified their interpretation of law by arrêts, a species of judicial edict, having the effect of law within the jurisdiction of the parliament by which it was issued. To this kind of semilegislative interpretation of law, nothing in England bears any resemblance. On other occasions, the French parliaments interpreted the law, as it is generally done in courts of justice, by decisions on dubious points. Their interpretations of it by arrêts was frequently censured, as amounting in effect to an act of legislation; they were also reproached with carrying interpretation too far, in their decisions.

In the redaction of the Code Civil de Napoléon, this was a subject of much discussion. It gave rise to the fifth article of the preliminary title,-"On the publica"tion, effects, and application of the laws." The existence and extent of the mischief was admitted; some proposed, by way of remedy, an article, expressing "that "the judges should be forbidden to interpret the law by "general and prospective regulations." To this, others

objected, on the ground, that all interpretation of law was prohibited to judges, according to the maxim of the civil law, imperatoris est interpretari legem. To this it was replied, that there were two sorts of interpretation, one of legislation, the other of doctrine; that the first was prohibited to the judges, but that the second was essential to their office. The result of the discussion was, that, as the two sorts of interpretation were not easily distinguishable, it was better to omit the word interpretation. The article, therefore, was expressed in these words: "It is forbidden to the judge, to pronounce, by way of general and prospective regulation, on the cau66 ses which come before them.-Il est defendu au juge, "de prononçer par voie de disposition générale et réglémentaire, sur les causes qui leur sont soumises."

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That the right of interpretation should be vested in judges, no reasonable person can deny ; but, to what extent it should be allowed, or, in other words, to ascertain the exact point where judicial interpretation should stop, and legislative interpretation intervene, is a question of extreme difficulty. An English lawyer will perhaps admit, without any hesitation, that the decision of our courts, that after-purchased estates shall not pass by a previous will, was an exposition of the meaning of the word "having," in the statute of wills, which the courts were allowed to make, by the strictest rules of judicial interpretation; but he will, at least, doubt, whether the preservation of uses, under the application of trusts, both against the words and against the spirit of the statute of uses, was not a subject more proper for legislative than judicial provision.*

*The Reminiscent has frequently wished for leisure to compose a regular review of the code çivil, the master-piece of Napoléon's legis

III. 4.

Separation of Courts of Law and Equity.

EQUITY, as distinguished from law, arises from the inability of human foresight to establish any rule, which

lation, and likely to become the civil code of the whole continent of Europe.

He was particularly pleased with the discussion On the Interpretation of Laws, with which the Discussions sur le Code Civil com

mence.

He begs leave to detain his readers for a short time on this important subject.

He has long thought that no work would be more useful than one, which should show, where interpretation should stop, and legislation begin. The extent and uncertainty in the civil law, and, we are sorry to add, in our own, are chiefly owing to the want of ascertaining and observing this boundary. As far as the Reminiscent can learn, the French courts of justice have shown greater moderation than our own, in the exercise of this important duty of judicature. 1. The introduction of the practice of barring entails by common recoveries and fines, which the judges interpreted to be real, though they knew them to be fictitious processes: 2. The preservation,-already noticed,―of uses under the appellation of trusts, in the teeth of a solemn act of the legislature: 3. The various modes by which verbal. agreements are supported against the statute of frauds: 4. And the doctrine, that notice of a deed shall supply the want of its registration, though otherwise essential to its validity,—are but a small proportion of the instances, in which the decisions of our courts have had something very like legislative enactment.

In the instance last cited, the courts of law of England and France are directly at variance: this circumstance appears to the Reminiscent to deserve particular mention.

Several points of the laws of France, respecting substitutions, (or entails),-being unsettled, and the laws respecting them being different in different parts of the kingdom, they were all reduced into one law, by the celebrated ordonnance of August 1747. That ordonnance was framed by the chancellor d'Aguesseau, after taking the sentiments of every parliament in the kingdom, upon forty-five different questions. The thirty-ninth question is, "whether a cre