Page:Encyclopædia Britannica, Ninth Edition, v. 6.djvu/125

Rh edicta of the chief of the state had the force of law. The practice of collecting the constitutions of the emperors seems to have been begun by private lawyers such at all events is the character of the oldest collection, known as the Codex Gregorianns ft Hermogenianus, which formed the model for the imperial codes of Theodosius and Justinian. The Theodosian code was the work of a commission of sixteen, to whom, in 435 A.D., the emperor intrusted the task of collecting the edicts and constitutions from the time of Constantine. It was finished in 438, and promulgated as the law of the empire. In 528 the Emperor Justinian ordered a new collection to be made, and appointed a commission of ten for that purpose, including the celebrated Tribonian. The com missioners were to compile one code out of the &quot; three codes Gregorian, Hermogenian, and Theodosian,&quot; and the constitutions which had been ordained since the last of these was confirmed. The commissioners had full power to make such changes as might be necessary in the language of the constitutions, and to omit all that was unnecessary, obsolete, or inconsistent. The collection was to include rescripts as well as constitutions, and was to supersede (as the Theodosian code also did) the sources from which it had been compiled. The code was finished within fourteen months, but a revised edition was rendered necessary by some new decisions and constitutions of the emperor. In 534 the new code was published and the first edition superseded. The second is the Code we now possess ; the first has been lost. The Code is divided into twelve books, and each book into titles, under which the constitu tions are arranged in chronological order, arid with the names of the emperors by whom they were enacted. There is a general correspondence between the order of the Digest and the Code of Justinian, but neither the Digest nor any of the codes pretended to scientific classification. The arrangement was dictated by the order of writers on the Praetorian Edict. The same causes which made these collections 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 our own it is surrounded with peculiar difficulties. The independent character of English law has prevented us from attempting 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 Code Napoleon, 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. The conception of a general code for the whole country had occurred to jurists and statesmen before Napoleon, and the Convention, in fact, discussed two projects presented by Cambace res, one of which had been found too complicated and the other too condensed. Napoleon, on becoming consul, appointed a commission headed by M. Tronchet to review previous efforts and present a new project. In four mouths the project was presented to the Government, submitted to the judges, and discussed by the Council of State Napoleon himself taking part in the deliberations. At first published under the title of Code Civil des Francois ; it was afterwards entitled the Code Napoleon,- the emperor wishing to attach his name to a work which he regarded as the greatest glory 105 of his reign. The Code Napoleon consists of 2281 articles, arranged under titles and divided into three books, preceded by a preliminary title. The subjects of the different books are 1st, &quot;Des personnes&quot;; 2d, &quot; Des biens et des differents modifications de la propriete ; &quot; 3d, &quot; DCS diffe&quot;rents manieres d a-;qu6rir la proprieleV The code, it has been said, is the product of Roman and customary law, together with the ordi nances of the kings and the laws of the Revolution. In form it has passed through several changes caused by the politi cal 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 Duranton, Troplong, and Demolombe. The remaining French codes are the Code de procedure civile, the Code de commerce, the Code ^instruction criminelle, and the Code penal. 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. &quot; It contains,&quot; says Austin, &quot; no definitions of technical terms (even the most leading), no exposition of the rationale of distinctions (evtn 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.&quot; The French coces have, however, taken firm root in most of the countries of continental Europe. Intro duced by French conquest they nevertheless were eagerly adopted by the people after the French arms had withdrawn. The Penal Code, for .example, was thus established in Italy, Sicily, Holland, Belgium, the Ehine Provinces, Poland, and Switzerland. The principles of the French code prevail in most of the Latin races. The Prussian code (Code Frederic) was published by Frederick the Great in 1751. It was intended to take the place of &quot;lloman, common Saxon, and other foreign subsidiary laws and statutes,&quot; 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. The Italian civil code, published in 1866, on the establishment of Italian unity, is founded mainly on the French code. The object of all these codes was 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 Neiu York. The revised constitution of the State, as adopted in 1846, &quot; 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, etc., of the courts of record.&quot; By an Act of 1837, 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, now fills 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 is claimed that in many departments of the law the codes have &quot; provided for every possible case, so that when a new case arises it is better that it should be provided for by new legislation.&quot; The New York code is defective in tho VI. 14