, 1879-01-26

Is Codif3catfon Practicable ?
10 the Editor Of The Trfbunk-

| Is Codincation Practicable
| 10 ths Editor Of The Trfbuns-
CHICAGO, Jan. 25.-As defined in the prcced-
ing article, codiication consists in making a
concise statement and systematic arrangement
| OF such principles anu rules defining rights.
prescribing duties, and regulating remedies as
have been settled BY legislative enactment and
judicial decision. In legal pariance, the law
which is recorded In the five thousand volumes
| Of reports, which constitute the principal part
OF every perfect law library, Is un.critt<n,-so
designated because In the early time, before the
| existence Of a common law literature, 1t was
| handed down By tradition from one generation Of
Judges to another. This was in the dawn OF
| Anglo-Sa1on civilization; yet the distinction
| between tile written and uuwritten law Is
reverently preserved to indicate the difference
| between that which is written by the Legislature
and that which is written BY the Courts. It is all
| written law, and that which has been written in
the statute and the opinion may be written
| again in aIform divested OF argument aud dis
incumbcred from the special combinations aud
complications Of facts to which the abstract
principle is applied.
| The proposed reform Is no untried expert
ment; it is as old as the literature OF the law.
t The evolution Of the law Is from the usage to
the CODE The usage is developed into the cus-
/ toms; from customs are evolved the rules which
| are recorded in detached enactments and judi
cial decisions, and these are finally stated aud
| arranged in the code. Legal systems derived
from the inner consciousness Of the philosophers
| haVe always been found visionary and impractf-
| cable. Locke's ttAmerican Constitution was,
| and Bentham's Is proposed Russian Cod" would
| have been found, beautiful in theory and WORTH
less In practice. The codes Of the semi-barbnr-
| Gus European nations from the eighth to the
| twelfth centuries we're mere reductions OF ex-
| isting usages and customs to written form. The
codes Of Lycurgus and Scion were nothing
more. The law Of Rome was essentially Gus
tomary until reduced to definite statement
! in the Twelve Tables. After these, new
| customs we're developed and new edicts, constt-
tutions, and opinions Of juris~consults we're pro-
J mulgated. From time to time the laws were
| collected in reyislons called codes, and finally
about the year a. .. 534. Iriboniaa and bis
associates, under authority conferred by the
Emperor Justipian, reduced the laws Of Rome
to q code which abroeated all distinctions be-
tween lam and equity, abolished forms OF pro-
ceediug, und rendered comparatively worthless
the 2001 volumes before necessary to every laW
library. The purpose Justintan sought to ac-
complish vas declared in the constitution Great
ing the Commission charged with the duty Of
completing the first code:
stTo diminish the length Of lawsuits and do
away with the confused mass Of constitutions
contained in the Gregortan, Hernogenian, and
Theodosian codes, published by Theodosius, BY
Ills successors, and By ourselves; We wish to
put them all together in single code under
our own suspicious name"
The duties of the Commissioners we're thus
prescribed:
ave permit them, suppresslng preambles,
repetitions, contradictory or disused clauses,
to collect and classify the laws under proper
titles, adding, cutting down, modifying. COM
pressing, # need be, several statutes into a
single enactment, SO as to render the sense
more clear aud ret preserve in each title the
chronological order, so that this order may be
date.'
The great work accomplished under these in
structions remains to this day the model Of
every system in Continental Europe-the most
enduring monument of Roman civilization.
ssThe vain titles" says Gibbon, "of the VIC
tories OF Justinan are crumbled, but the name
Of the legislator is Inscribed on fair aud ever
lasting monument-'' The grandeur OF bis
achievements for the laws Of Rome have almost
obiiterated the memory OF his many crimes
against all laws, human and divine
The most celebrated OF the moderc codes is
revolutionary era in France BY the First Consul.
The revolution destroyed the feudal and ecc1esi-
astica1 systems In France and substituted in the
67st instance system founded on the territorial
divisions OF the country Zach province was
furnished With its own peculiar complications
QUE haFing as basis for 4 Heterogeneous
mass Of regulations the civil law Of Rome;
another, ancient traditions; another, orders OF
the Kings and the DEGREES Of the Imperial Co1n-
ellis. Cambaccres and lew associates inaugu- |
u rl,t& 4
1909 Napoleun created commission charged with |
the duty of examining the schemes OF reform |
which had been proposed. to agree upon |
the one which should be followed, and "discuss
the chief principles Of legislation" In 1901 the
Commissioners submitted their report, which !
Was reviewed By the Judges Of the higher courts,
aud finally considered clause By clause in the |
Council OF State. With all its defects OF ar /
rangemcut and construction, it has remained the |
law OF Fra nee Cor nearly century. The revo-
lrtons which have Overturned the Empire, the ]
Kingdom, the Republic, and the Commune have
not displaced the Code Napoleon. The PROV
changed their allegiance, but refuse to surrender
the code, and it is to-day the basis OF the laws
Of one American State which at that time was |
province Of France.
Space will not permit even hurried examina-
tton Of the codes Of Austria. Prussia, and ]
Russia, all OF which were modelled upon that |
OF Justinian.
That the laws OF the Latin raccs have been |
SUCCESSFULLY reduced TO 8 cOO!ueQ lOrfn Will not
be disputed By any one familiar with the history |
OF the law. It is claimed, however, in some |
quarters that there is an inherent difference be-
tween the common law OF the Anglo-9axon
races and the customary laws OF Continental |
Europe, and that this difference will forever |
prevent codifcation Of the common law. That I
there are differences will not be denied; yet
they relate to detail mainly, and are attributable
TO the different constitution Of the people. |
The principles OF general Jurisprudence
philosophy Of positive 1aw-lie at the tounda-
ton Of every legal system. The resemblance Of |
the common law to the customary law of Komc,
before the latter wns reformed, strikes every |
student of the civil iaw.
The common law OF the nineteenth century is
ia the condition of the Roman law il the sixth.
Cicero in the case Of Murena, and Brougham
in his celebrated speech on Law Reform, IN 1892
Tidiculcd the same technical absuFdities. Tie |
harsh rules of the customary law Of Rome were
modified br the pzaetoriau Jurisdiction. as those
OF the common LAW OF England have been bv the
Chancellors. The fundamental principles OF |
both systems are the same. The differences
correspond with differences OF climate, quality |
OF soil, occupation OF the people, carly instttu-
tions, RELIGION, wealth, commerce, manners, and
These control the application Of general
sornn f}pprpn 1nntd thar, in