The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1847-04-26

SARATOGA SPRINGS. April ~. Isi7.
Hon ADDISON GARDINER. Lieutenant Governor
and President Of the Sendte-
DEAR SIR-Permt me- through you, TO express TO the
Legislature my thanks for the confidence implied In my
appointment by them n Of the Commissioners OF
the Code by of the 5th inst and my sincere re-
greet that obliged to decline the acceptance OF that
important Office Soon after the commencement OF the
session when was urged several Of friends both
in and out of the Legislature to allow my name TO be
used for this situation frankly stated 10 them Una.
my feelings gratitude to the people OF the state for
the evidences Of their confidence, with which i
twenty years of judicial labor in their service
would not allow mo to decline any appointment en-
which they should think proper TO confer, the du-
ties of which could discharge to my own salts
faction and bencfcaly to the State gave my friends
distinctly to understand however, that should in no
accent this office unless It could be so arranged
that should not be prevented from examining ana de,
Gliding tho which had been argued before me- and
then remained undecided Justice to sitors who had
been ut the expense of employing and paying counsel,
to argue required this and hoped to be able to
accomplish by the first middle Of Juy-for the sub
mted causes could be well examined and decided by
my SUCCESSORS by another court, as by me- 1t was
also understood by those with whom converscd on tho
subject that my acceptance Of this employment would
in any event depend upon the question whether the
commission was organized as to satisfy me that the
commissioners appointed under it would have the
quste time and means to frame code which would
carry out the principle Of the constitution on the sub,
ject and which would be crcditable to themselves and
beneficial to the people Of the State.
1t is made the duty Of the commissioners appointed by
the Legislature under seventeenth section of the first
articles the constitution only to reduce into
systematic code the whole body of the written and
written law OF this State or 50 much thereof as they
the amendments which they shall consider proper to be
made in the existing law and am not one of those
who believe 1t is wholly impraccable to carry out the
provisions Of the constitution this subject On the
contrary, think it not only practicable, but highly
expedent to collect the general principles OF the unwrt
ten commercial and other civil law, and of equity
system, well the criminal law of the State
scattered throug hsome thousands OF reatse
commentaries digess and reports Of judicial decisions
and to them under appropriate heads divisions
and titles in connection with the statute law the same
subjects Such notifications OF the law should also be
suggested and Incorporated into tho code as are
cessary to adapt tho law Of the State TO the pre-
our free institutions. ! think, too, that many of
tho valuable principles of the ancient civil law might be
citizens Of this State The entire code could probably
be comprised within the compass of five six volumes
OF the statute law would of course be combined with
the principles of the common law in these volumes,
cordng to the of the Constitution to
fly the whole law fur practcable and If had con-
cluded to accept the appointment of commissioner OF
the CODE should have considered it my duty to at
tempt TO codify the laws upon these principles.
do not, however, believe it practicable to frame
code which will regulate provide all which
msy sns
fexiby ofthe common Aw, which adapts itself to
or well rules Of law in cognate cases This as
understand It, the principle upon which the civil and
commercial codes of Napoleon framed Mons Porta
lis OF the commissioners who prepared the first OF
these Codes says We have guarded against the danger
ambition Of wishing to regulate and to
thing The wants of society varied-the inter-
between is active-ther interests null
tfarious and their relations cxtended-that it is I'M
possible for the legislator provide for every emcrgen-
cyn The codes Of course abolished all laws which were
inconsistent with the provisions Of the written law
braced in them But the French civil code itself pro-
vdes that the Judge who shall refuse to determine
the rights of the parties under preext silence OBJ
security, nsufcency of the law, shall be liable to be
proceeded against guilty of refusal of justice pre-
sumo therefore, that in where the code is silent
the Judge must resort to the anages Of the code itself
they to be found therein and not to the unwrit
ten law previously existed, to enable him to decide
the rights of the litigatng parties.
The compilation and adoption of such code have
supposed to be both practicable and cxpedient and
which tho constitution directs to be made although it
cannot provide for every will embody all the great
principles of law which exist in civil criminal and
commercial systems; and it will greatly facilitate the
QUESTION of knowledge of the law not only by those who
diligently devote themselves its study but also by the
liar with the leading principles of the code, they
with those Of the revised statutes But those who
have not particularly considered and examined the SUBJ
ect in all its details have adequate conception of
the time, study labor and which will be requisite
embody and arrange all the principles of the unwritten
law which regulate the rights of individuals with their
various exceptions and notifications when applied to
special cases. in connection with the whole statute law
under their appropriate titles and heads in well digest
ed code have therefore looked into the history of the
formation of some of the codes which have heretofore
been adopted to what has been deemed necessary to
their proper formation and the time which has been
employed thereon.
The first code of Justinan was n mere revision and
codfcaton Of the constitutions written laws of the
Christian emperors, commencing with the perpetual
edicts adopted by the Emperor hadrian Joannes and
his nine associates, including Tribonan and Theoph-
lus compiled this code in the short Of fourteen
months. But they had in its compilation not only the
assistance of the two codes of Gregorus and Hermoge
ncs but also of the celebrated Theodosian code upon
which great labor had been bestowed and which had In
fact coded all the constitutions edcts Of the Chris
tan emperors down to the time of the younger Theodo
sius and yet imperfect the work of these ten dis
that within five years afterwards new commission was
formed to revise it. The result of the abors of the
commissioners is the code which has come down to
tery the original code having been entirely suppressed
by the order Of the emperor. The compilation Of
the larger and moro important work, called the di
gest fandects, committed, by Justinan, to n
commission of seventeen persons, at the head OF
whom Trbonan placed; and they allowed
ten years for the completion Of tho work They.
in fact completed it in about one third Of that time
Yet many writers upon the civil law have regretted
haste In which this volumnous and important work
gotten up. 1t however, work of great merit and
is undoubtedly the from which of the most
valuable principles Of the equity system of this country
and OF England derived. But it cost the learned
and ndefagabe Pothier years Of labor to change the
order in which the laws been arranged In
dects bring tho whole of the law relating to the
subject together and to correct and explain pnci
pies which were apparently contradictory and frequent
ly erroneous.
The Sete Pardas Code Of Alfonso tho 10th Of
tile oomped about the middle of the I3h century
pied four Spanish urisconsuts in its
ration was considering age the state Of legal
learning at the time it made work of greater merit
than the institutes the CODE and the pandccts Of JUS
tinian But an examination of the work itself shows
that the learned men to whom its compilation n
trusted drew very largely from the ample stores of the
Justinian law The best evidence Of the merits of the
Partidas CODE is the fact that they have endured
for nearly six hundred since they promulged
by Alfonso the wise, and FIVE hundred years since their
formal recognition by the Cortes Of Acaa in 34S and
they form the general law Of Spain and its depen-
dences and of sister State of Louisiana, except
where it has been altered by subsequent legislation
local customs changes in the constitution Of the
eminent.
One of the five codes of Napoleon called the civil code
prepared by three commissioners, appointed in
August, 1900 They prepared their draft in very
short time, that the last part of the code finally
adopted by the legislative body in April, 1904 And
than half of it adopted in March of the proceed
ing year But learned writer who has carefully and
fully examined the subject says in relation to the pre-
paraon of this part of the French codes that various
trcatisos Of FATHER were rapidly disseced by these
commissioners, and with morses from Domat and
the ancient ordinances formed into the article.
of the projected CODE that the titles relative to con-
tracts arc analysis of the treatscs Of fothcr
on these matters and that ut least three fourths
Of the whole work consists Of extracts from Pc
theirs works II So the labor Of preparing the draft
the civil code in the first instance could not have been