Open main menu
This page has been proofread, but needs to be validated.
633
CODE

The same causes which made collections of laws necessary in the time of Justinian have led to similar undertakings among modern peoples. The actual condition of laws until the period when they are consciously remodelled is one of confusion, contradiction, repetition and disorder; and to these evils the progress of society adds the burden of perpetually increasing legislation. Some attempt must be made to simplify the task of learning the laws by improving their expression and arrangement. This is by no means an easy task in any country, but in England it is surrounded with peculiar difficulties. The independent character of English law has prevented an attempt to do what has already been done for other systems which have the basis of the Roman law to fall back upon.

The most celebrated modern code is the French. The necessity of a code in France was mainly caused by the immense number of separate systems of jurisprudence existing in that country before 1789, justifying Voltaire’s sarcasm that a traveller in France had to change laws about as often as he changed horses. At first published under the title of Code Civil des Français, it was afterwards entitled the Code Napoléon (q.v.)—the emperor Napoleon wishing to attach his name to a work which he regarded as the greatest glory of his reign. The code, it has been said, is the product of Roman and customary law, together with the ordinances of the kings and the laws of the Revolution. In form it has passed through several changes caused by the political vicissitudes of the country, and it has of course suffered from time to time important alterations in substance, but it still remains virtually the same in principle as it left the hands of its framers. The code has produced a vast number of commentaries, among which may be named those of A. Duranton, R. T. Troplong and J. C. F. Demolombe. The remaining French codes are the Code de procédure civile, the Code de commerce, the Code d’instruction criminelle and the Code pénal. The merits of the French code have entered into the discussion on the general question of codification. Austin agrees with Savigny in condemning the ignorance and haste with which it was compiled. “It contains,” says Austin, “no definitions of technical terms (even the most leading), no exposition of the rationale of distinctions (even the most leading), no exposition of the broad principles and rules to which the narrower provisions expressed in the code are subordinate; hence its fallacious brevity.” Codes modelled on the French code have, however, taken firm root in most of the countries of continental Europe and in other parts of the world as well, such as Latin America and several of the British colonies.

The Prussian code (Code Frédéric) was published by Frederick the Great in 1751. It was intended to take the place of “Roman, common Saxon and other foreign subsidiary laws and statutes,” the provincial laws remaining in force as before. One of the objects of the king was to destroy the power of the advocates, whom he hoped to render useless. This, with other systems of law existing in Germany, has been replaced by the Civil Code of 1900 (see Germany).

The object of all these codes has been to frame a common system to take the place of several systems of law, rather than to restate in an exact and exhaustive form the whole laws of a nation, which is the problem of English codification. The French and Prussian codes, although they have been of great service in simplifying the law, have failed to prevent outside themselves that accumulation of judiciary and statute law which in England has been the chief motive for codification. A more exact parallel to the English problem may be found in the Code of the State of New York. The revised constitution of the state, as adopted in 1846, “ordered the appointment of two commissions, one to reduce into a written and a systematic code the whole body of the law of the state, and the other to revise, reform, simplify and abridge the rules and practice, pleadings, &c., of the courts of record.” By an act of 1847, the state legislature declared that the body of substantive law should be contained in three codes—the Political, the Civil and the Penal. The works of both commissions, completed in 1865, filled six volumes, containing the Code of Civil Procedure (including the law of evidence), the Book of Forms, the Code of Criminal Procedure, the Political Code, the Penal Code and the Civil Code. In the introduction to the Civil Code it was claimed that in many departments of the law the codes “provided for every possible case, so that when a new case arises it is better that it should be provided for by new legislation.” The New York code was defective in the important points of definition and arrangement. It formed the basis, however, of the present codes of civil and criminal procedure in the state of New York. Much interest has attached to the Penal Code drawn up by Edward Livingston (q.v.) for the state of Louisiana. The system consists of a Code of Crime and Punishments, a Code of Procedure, a Code of Evidence, a Code of Reform and Prison Discipline, and a Book of Definitions. “Though the state for which the codes were prepared,” said Chief Justice Chase, “neglected to avail itself of the labours assigned and solicited by itself, they have proved, together with their introductions, a treasure of suggestions to which many states are indebted for useful legislation.” Most of the other states in the United States have codes stating the law of pleading in civil actions, and such states are often described as code states to distinguish them from those adhering to the older forms of action, divided between those at law and those at equity. A few states have general codes of political and civil rights. The general drift of legislation and of public sentiment in the United States is towards the extension of the principle of codification, but the contrary view has been ably maintained (see J. C. Carter, Provinces of the Written and the Unwritten Law, New York, 1889).

Since the time of Bentham, the codification of the law of England has been the dream of the most enlightened jurists and statesmen. In the interval between Bentham and our own time there has been an immense advance in the scientific study of law, but it may be doubted whether the problem of codification is at all nearer solution. Interest has mainly been directed to the historical side of legal science, to the phenomena of the evolution of laws as part of the development of society, and from this point of view the question of remodelling the law is one of minor interest. To Bentham the problem presented itself in the simplest and most direct form possible. What he proposed to do was to set forth a body of laws, clearly expressed, arranged in the order of their logical connexion, exhibiting their own rationale and excluding all other law. On the other hand the problem has in some respects become easier since the time of Bentham. With the Benthamite codification the conception of reform in the substantive law is more or less mixed up. If codification had been possible in his day, it would, unless it had been accompanied by the searching reforms which have been effected since, and mainly through his influence, perhaps have been more of an evil than a good. The mere dread that, under the guise of codification or improvement in form, some change in substance may secretly be effected has long been a practical obstacle in the way of legal reform. But the law has now been brought into a state of which it may be said that, if it is not the best in all respects that might be desired, it is at least in most respects as good as the conditions of legislation will permit it to be. Codification, in fact, may now be treated purely as a question of form. What is proposed is that the law, being, as we assume, in substance what the nation wishes it to be, should be made as accessible as possible, and as intelligible as possible. These two essential conditions of a sound system of law are, we need hardly say, far from being fulfilled in England. The law of the land is embodied in thousands of statutes and tens of thousands of reports. It is expressed in language which has never been fixed by a controlling authority, and which has swayed about with every change of time, place and circumstance. It has no definitions, no rational distinctions, no connexion of parts. Until the passing of the Judicature Act of 1873 it was pervaded throughout its entire sphere by the flagrant antinomy of law and equity, and that act has only ordered, not executed, its consolidation. No lawyer pretends to know more than a fragment of it. Few practical questions can be answered by a lawyer without a search into numberless acts of parliament and