The rest of the work is devoted to the strict historical proof of this proposition, enlivened with an occasional hit at the erroneous notions or bad principles of his adversaries.

The second chapter, entitled "Views or Theories of the Origin of Tithes in general," draws our particular attention to two: that of Möser, adopted by M. Rotteck, which considers tithes in the light of a tax, imposed and liable to be remitted by the state; the other, of which Grotius is the chief supporter, that what are called tithes on the Continent, are really rents or payments in kind, reserved by lords or sovereigns at the original granting out of the land. The purely English reader will probably consider this as a paradox, and Grotius, as regards it, a speculator; but a very little consideration will show that he has both probability and authority on his side. England, it must be remembered, is confessedly an exception. Here, lay-holders or impropriators are comparatively few, and every one of them traces his title to the church. In most other countries, lay-holders form the mass; the existence of tithes is clearly shown at periods long anterior to the establishment of Christianity; and, as is appositely observed by Grotius with reference to the Netherlands, although there are no examples in early times of tithes granted to laymen by the church, examples of spiritual corporations, endowed with ready made tithes by laymen, abound. A plausible argument is also drawn from the fact, that, during the dark ages, feudal proprietors, with the view of facilitating the collection of their rents, were often known to grant them to the clergy and take them back under the denomination of tithes, paying of course a reasonable consideration for the privilege. Nor is this all; for M Birnbaum has devoted a very long and elaborate chapter to prove, that the dues reserved under various names by the republic or emperors of Rome in parcelling out territories successively acquired, have come down to modern Europe under the denomination of tithes. He here treads on ground where Niebuhr and Savigny had preceded him, and it is no small praise to say, that he has managed to throw new lights on subjects which these great men had zealously discussed. The chap

1 In the grand Duchy of Baden, the clergy, both protestant and catholic, are paid by the state, and derive but a small portion of their revenues from tithes.

ter we allude to, occupying from p. 46 to 115, is the third. The fourth comprises the Frankish monarchy, with the exception of Saxony. In the course of it he has to combat an opinion, to which Gibbon, Selden, Montesquieu and Hallam incline, that Charlemagne subjected his whole empire to tithes for the benefit of the church; and he endeavours to explain away the capitulary1 on which they principally rely, by the supposition that it had no other object or effect than that of enforcing the regular payment of pre-existing dues to the church. It is right to add that Mably also has said that, in the whole of the Capitularies, there is not a sentence from which the general introduction of tithes by Charlemagne can be deduced. 2

The fifth chapter contains notices of the origin of tithes in Saxony and other parts of Germany not included in the Frankish empire; and Saxony, M. Birnbaum allows, being first conquered and annexed to Christendom by Charlemagne, was, by a general ordinance, subjected to the payment of tithes. But this is a very different thing, it is contended, from levying such an impost on his own christian subjects, for the benefit of a clergy already endowed.

In the sixth, the concluding chapter, M. Birnbaum sums up the results of his investigation; disposes of sundry strange fallacies, as, for instance, that tithe holders, having time immemorially held their lands subject to the payment, have now gained a prescriptive right to hold them exempt from it; comments with laudable severity, on the remissness of the English legislature in leaving the church unrestrained by a limitationlaw; and declares himself sincerely anxious that some equitable mode of commutation, or at least an effectual remedy for the worst evils of the tithe system, may be devised.

We intreat M. Birnbaum to believe that it is from no want of respect for the profound and varied learning he displays, that we have made so very sparing a use of it. When German statesmen of high character maintain, and succeed in gaining proselytes to the opinion, that tithe-owners may be deprived of their property because in its origin a tax, it be

Omnis homo ex suâ proprietate legitimam decimam solvat.

2 Observations sur l'Histoire de la France. Works, vol. i. p. 438.

comes necessary to prove them mistaken throughout; but the historical argument would be nugatory here, even were the origin of tithes in England identical with their origin on the Continent, which it confessedly is not. The mere fact of a property having been long in commerce under the sanction of the laws, is quite sufficient amongst us to neutralise the original taint; and no English lawyer would dream of saying that a tax in the hands of a bonâ fide purchaser might still be treated as a tax. We state unhesitatingly, that a man who should propose the repeal of our land-tax without remuneration to the proprietors, would not be thought worth arguing with. Although, therefore, for reasons formerly explained, the deputies of Baden will have the advantage of considering the tithe question distinct from the question and unembarrassed by the interests of an establishment, they are hardly, we venture to think, so thoroughly conversant with its real merits as ourselves. They are yet comparatively in their political apprenticeship, and may be excused for not penetrating to the essence of the controversy at once. But there are many brilliant exceptions to this remark. We have before us some writings of Mittermaier 2, equally remarkable for practical sagacity and research; and his enlightened colleague, Zaccharia, has placed this very subject in a light which we are tempted to regard as the true one. We are not in possession of his work, but M. Birnbaum tells us that Zaccharia considers tithes in their origin as of a mixed character, partaking, in fact, of almost all the natures which controversialists ascribe to them; but deems the further prosecution of the historical inquiry alien to the real matter in hand.

1 Some English writers, we are aware, refer all tithes alike to a period of indefinite antiquity. Dr. Morgan Cove, for instance, contends that they are the consequence of "some unrecorded revelation made to Adam," which, he says, is not only "a most rational, but the most probable solution." (Essay on the Revenues of the Church of England, p. 33.) "To what parish church (says the Rev. Sydney Smith) Adam paid his tithe, the doctor has not ascertained; nor does he show his accustomed vigilance in not adverting to the fact, that, if Adam paid tithe, he must have paid it to himself, -a practice which, if followed by his descendants in this island, would lead to consequences most pernicious to the establishment."

2

A distinguished leader of the liberal party in the second chamber of Baden, and co-editor, with Zaccharia, of the Kritische Zeitschrift. Both are Law-professors of the University of Heidelberg.

It would seem from M. Birnbaum's preface, that a plan of commutation has been proposed, but he does not state the particulars. If upon inquiry we find it worth mentioning, it shall appear in a future Number.

H.

ART. XI. THE SPANISH CODE OF COMMERCE.

Codigo de Commercio. Madrid, 1829.

Madrid, 1829. 4to. pp. 326.

It will surprise many of our readers to find that there are such things as tithes in Germany; it will surprise still more of them to be told that there is such a thing as a code of commerce in Spain, recently adopted and universally approved; in Spain, the head-quarters of ignorance and bigotry and superstition,-in Spain, whose moral and political degeneracy is now a bye-word to the world. Such, however, is indubitably the case, and we have noted down a few particulars to confirm and explain the existence of the phenomenon.

Although Spain has only just succeeded in framing a uniform system of commercial law, she has long possessed some valuable provincial ordinances, which the code in question has consolidated. The oldest of these (dating as far back as the 13th century, at least) is the Catalonian compilation, better known by the name of le Consulat de la Mer, which still helps to regulate the maritime affairs of the south of Europe, and has been the foundation of most modern maritime legislation. The Customary of Valentia, framed in 1250 on the plan of the Digest, contained a great number of commercial regulations. Many such are also to be found in the 9th title of the 5th part of the Partidas of Alphonso, which still form the ground-work of the civil legislation of Spain. A considerable body of laws

and regulations relating to the marine and to maritime contracts, had been published since the 16th century, under the title of Recopilacio dellas Indias, successively augmented in subsequent editions, the most recent being that of 1774 in four folio volumes. Spain, therefore, could boast of a respectable system of commercial law, before France had even framed the ordinances of 1673 and 1681, out of which her code of commerce was principally composed. From the 15th century downwards, the crown had authorised the formation of the Contractacions of Burgos, of Seville, of Bilboa, of St. Sebastian, &c. and the regulations framed by these corporations may be fairly termed codes of commerce. Indeed, the ordinances of the chamber of commerce of the city of Bilboa, which received the royal sanction in the year 1737, obtained a degree of authority very seldom accorded to provincial regulations. They gradually superseded the other local systems of Spain, until, at the beginning of the present century, they are said to have been received in most provinces as general commercial law.1

The great object, consequently, was to melt these compilations into one uniform code, and the principal obstacle appears to have been that presented by ancient usages and provincial rights. A despotism, however, makes light of this description of difficulty. The royal mandate of August 1827, which established a tribunal of commerce at Madrid, commanding it to conform provisionally to the ordinances of Bilboa, announced the project of a code. The commission charged with the duty of compiling it, was named on the 11th of January 1828, and the code was promulgated the 30th of March 1829, thus occupying scarcely fourteen months in the formation. Let our common law and real property commissioners compare their own labours, and blush.2

The Spanish code of commerce contains 1219 articles,

1 An English translation of the 17th chapter, relating to bankrupts, was published in 1815; but neither author nor publisher is named.

2 These details are almost exclusively taken from an article in the Revue Judiciare from the able pen of Professor Pardessus, the compiler of the valuable Collection de Lois maritimes Antérieurs au xviiie siecle. The first volume, which appeared in 1828, is said to have gained the author the honour of being elected a member of the Academy of Inscriptions. The second volume was promised about now.