The sun., 1884-02-10


| that category OF human Affairs which is gov
erned By private as distinguished from public |
Law. 30 Grnve arc the difficulties and dangers
| arising from this source that even such earnest |
advocates OF the principle OF codIhcaton as Mr.. |
| John Austin and Mr.. Sheldon Amos acknowl |
| edge THAT the problem Of dealing with the IN |
| foreeoen has not beeD solved by any civil code |
| as yct adopted or proposed. Mr.. Carter goes |
| further and undertakes 10 demonstrate that |
tho protAem Is insolubhe.
| On the other hand. 1t may DO said that no. |
| body pretends q code would be exhaustive and |
final. but that actual experiments mnds In the |
| Roman ompire Of Justinian. In Prussia. in |
| Francs. and In Louisiana. have proved |
that codlfication is at least great improve
nent on tho scattered. unsystematic case
law which It has there superseded. Now. II Is
| ono OF the conspicuous merits OF Mr. Car
ter's paper that he takes firmly BY the
horns this confident assertion which is too
often allowed to pass without verifcation or
qualification. A ludcrous blunder seems to
have been committed by q champion Of the
proposed New York code In eonfoundinG the
Codex OF Justinian. which was merely a sum-
mary Of existing statutes relating principally
| to public law. with tho Pnndects which were a
diRested compilation OF private law. Inns
much. however. as the Pandects bsing sane
toned by the Emperor. in whom was vested
supreme Legislative authority. were in the
|
the precise element whereby n code differs
from digest In our modern uses Of the words.
and therefore constituted virtually. though
not nominally. q code Of private law.
As to tho abstract merit OF the Pandccts re-
Earded as an experiment In codincation. that
is suhject whlch-very sensibly. In our judg-
ment-Mr Carter has refrained from discuss
ing at any length. seeing that no was writing
| Tor American lawyers. not orc In a hundred Of
| whom gould mn an n Hnrru freahm ayayu-
ination even in tho more familiar of tho two
classical languages. knowledge of which is in
dispensable to II perusal OF that Corpus Juris
whose name is so giibly taken In vain Tho
really pertinent question with reference to tho
Pandccts Is not whether the completion
Immediately required rrofuse amendments
for that. in view OF tho hugo amount
| Of law diGested. and the extent and COM
plexity of tho society to which 1t had to
adjust itself. ought to have excited in
| Gibbon no surprise but whether. on the
whole. practitioners and lItgnnts wero better
off with Justinian's authoritative digost than
they had been without IL. Touching this prac-
I tical and so fnr as the expediency OF codifyinG
the Roman law was concerned. decisive inquiry.
satisfactory evidence 10 not forthcoming in Mr..
Carter's pamphlet. nor indeed. would it be at
tainable without q great deal Of difficult and
recondite research.
We do not for an instant suppose that Mr..
. Carter personally lays much stress on the dis
credit which to the mind of the average egis-
lator from the rural districts might be cast
upon tho principle of codihcation from its hav-
ing been invoked by such notable representa-
a tives OF despotism as Justinian Frederick the
t Great. and NAPOLEON Bonaparte. A code. of
course. must stand fall its intrinsic
!. merits. and II 1t prove an admirable thing. SO
S much tho better for the despot who had
the good sense to enact 1t. Az a mat
I ter OF fact. moreover. the First Con-
: sui. in promoting the adaptation OF the
French codes. merely carried out the intention
OF the Convention. q body of reformers COM
pared with whom the authors OF the American
: revolution were oligarchs The true ground Of
/! exception to the Prussinn and French prece-
y dents for codi1lcatlon is by no means over
= looked by Mr.. Carter though the facts would
v have justified him in dwelling with more en-
phasis OH the peculiar nature OF the local and
= historical conditions. Notwithstanding tho di-
n vergence Of the principles which have pre-
Q vailed in courts OF law on tho hand
|. and OF equity on the other. England may now
r be- said to possess y homogeneous system OF
o Jurisprudence. Nothing Of the sort existed in
: the widely scattered dominions to which Fred-
y erick the Great succeeded. There was differ
o ent body OF substantive law and a distinct
Q mode OF procedure In tho isolated duchy of
y East Prussia. in the Mark Of Brandenburg. In
|
8 Rhine provinces. and Of course when ST.
It lesia and parts OF Poland were annex
= cd further elements of juristc COM
= piexity were added. The effect OF substituting
= a uniform code for all or most of these dis
n cordant judicial systems was to knit the alien
: constituents OF the Prussian State into u ma
/, tion. and patriots cannot refuse to welcome a
s result which it required the strong arm Of an
d autocrat to accomplish. The same thing may
a ~ ,a.,. i,,E
't was the aim Of Jacobin revoutionists to CEN
o tralize and unity. as well purify and lberate
II One kind OF law WAS administered by the Par.
II Lament OF Paris. another by the Parliament ol
u Toulouse. another by the Parliament of AK
l. another by tho Parliament OF Dijon Normandy
u had its customary law. SO hud Brittany
It SO had French Flanders. Obviously French
: republicans who were quite anxious as Ma
o polcon himself to develop national cohorence
= felt themselves irreslstibiy impellcd to dsplact
by q common code all those heterogeneous. seq.
u regatyo schemes of Jurisprudence. A like ob.
II seryRion detracts much of its apparent force
$ from tho Louisiana precedent In that State
IS as MIR. Carter does not fail to show there was
o a paIitical necessity for extension OF the
d province Of LEGISLATION over tn. field OF private
x law. arising from the crcumsa leo that Span
a isl. French. and American law. In many cases
70 competed with each other for supremacy"
e Evidently there woro powerful incentives t.
ID codincntion in tho Prusslan dom iHions OF Fred
u eriek the Great. In revolutionizd but still un
l. reGenernted France. in freshly coded and un,
"a assimilated Louisiana. that arc absent In the
D case OF England or OF the State of New York
, MIR. Carter also finds 1t easy to point out yer;
grave shortcomings In tho Prussian French
VI and Louisiana Codes and In makes effective
N use OF Mr.. Austln's admission that mo-
'r any OF those experiments In tho way o.
n codifcatIon would be preferable to the
T. present condition OF juriSprudence In England
70 but Mr.. Carter has been at no pains to ascer
10 tain whether. In spite Of all tho faults to whict
N he has adverted. a great majority Of the udge
TO and lawyers la Prussia. Franco. and I.oulsian,
s. do not consider their codes az an immense ad