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 commissioners were to compile one code out of the “three codes— Gregorian, Hermogenian, and Theodosian,” 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 In 534 the new code was published and the first edition superseded.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 constitutions are arranged in chronological order, and 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 Cambacérès, one of which had been found too complicated and the other too condensed. Napoleon, on becoming consul, appointed a commission headed by Μ. Tronchet to review previous efforts and present a new project. In four months 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 Français ; it was afterwards entitled the Code Napoleon,— the emperor wishing to attach his name to a work which he regarded as the greatest glory of his reign. The Code Napoléon consists of 2281 articles, arranged under titles and divided into three books, preceded by a preliminary title. The subjects of the different books are—lst, “Des personnes”; 2d, “Des biens et des différents modifications de la propriété;” 3d, “Des différents manières d’acquérir la propriété.” 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 Duran ton, Troplong, and Demolombe. The remaining French codes are the Code de procedure 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.” The French coc.es have, however, taken firm root in most of the countries of continental Europe. Introduced 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 Rhine Provinces, Poland, and Switzerland. The principles of the French code prevail in most of the Latin races.

The Prussian code (Code FrédériP) 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. 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 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 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 “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 is defective in tho important points of definition and arrangement. Much interest has attached to the Penal Code drawn up by Edward Livingston for tho State of Louisiana, about 50 years ago. 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,” says 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.” A complete edition of Livingston’s works has recently been published by the National Prison Association of the United States.

Since the time of Bentham, the codification of the law of England has been the dream of our 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 of late 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 connection, 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 connection of parts. Until the passing of the Judicature Act 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 reported cases. To laymen, of course, the whole law is a sealed book. As there are no authoritative general principles, it happens that the few legal maxims known to the public, being apprehended out of relation to their authorities, are as often likely to be wrong as to be right, It is hopeless to think of making it possible for every man to be his own lawyer, but we can at least try to make it possible for a lawyer to know the whole law. The earlier advocates of codification founded their case mainly on the evils of judiciary law, iae., the law contained in the reported decisions of the judges. Bentham’s bitter antipathy to judicial legislation is well known, Austin’s thirty-ninth lecture (Lectures, ed, 1869) contains an exhaustive criticism of the tenable objections to judiciary law. All such law is embedded in decisions on particular cases, from which it must be extracted by a tedious and difficult process of induction. Being created for particular cases it is necessarily uncomprehensive, imperfect, uncertain, and bulky, These are evils which are incident to the nature of judiciary laws. Of late years the defective form of our existing statute law has also given rise to loud complaints. Year by year the mass of legislation grows larger, and as long as the basis of a system is judiciary law, it is impossible that the new statutes can be completely integrated therewith. The prevailing mode of framing Acts of Parliament, and especially the practice of legislating by reference to previous Acts, likewise produce much uncertainty and disorder.

Whether any attempt will ever be made to supersede this vast and unarranged mass by a complete code seems very doubtful. Writers on codification have for the most part insisted that the work should be undertaken as a whole, and that the parts should have relation to some general scheme of the law which should be settled first. The practical difficulties in the way of an undertaking so stupendous as the codification uno caetu of the whole mass of the law hardly require to be stated. The probability is that attempts will be made from time to time to cast the leading portions of the law into the form of a code. Some years ago it was believed that the proper preliminary to a code would be a digest of the law, and a commission was appointed in 1866, under which draughtsmen were set to work to prepare specimen digests of three selected portions of law. The attempt was abandoned in 1872, the commissioners being of opinion that it could not be properly proceeded with in detail, and they recommended that a general digest should be undertaken.

In discussions on codification two difficulties are insisted on by its opponents, which have some practical interest— (1) What is to be done in those cases for which the code has not provided 1 and (2) How is new law to be incorporated with the code 1 The objection that a code will hamper the opinions of the court, destroy the flexibility and elasticity of the common law, <fcc., disappears when it is stated in the form of a proposition, that law codified will cover a smaller number of cases, or will be less easily adapted to new cases, than law uncodified. The Code Napoleon orders the judges, under a penalty, to give a decision on all cases, whether contemplated or not by the code, and refer them generally to the following sources :—(1 ) Equité naturelle, loi naturelle; (2) Roman law; (3) ancient customs; (4) usages, examples, decisions, jurisprudence; (5) droit commun; (6) principes généraux, maximes, doctrine, science, The Prussian code, on the other hand, requires the judges to report new cases to the head of the judicial department, and they are decided by the legislative commission. No provision was made in either case for incorporating the new law with the code, an omission which Austin justly considers fatal to the usefulness of codification. It is absurd to suppose that any code can remain long without requiring substantial arbitration. Cases will arise when its meaning must be extended and modified by judges, and every year will produce its quota of new legislation by the state. The courts should be left to interpret a code as they now interpret statutes, and provision should be made for the continual revision of the code, so that the new law created by judges or directly by the state may from time to time be worked into the code. The process of gradual codification adopted in India has been recommended for imitation in England by those who have had some experience of its working. The first of the Indian codes was the Penal Code drawn up by Macaulay, and presented to the Governor-general in 1837. It did not become law, however, till 1860. It has been highly praised, and its merit is the more remarkable as Macaulay had only a slight professional acquaintance with the law before he went to India. A code of Civil Procedure became law in 1759, and was followed by a code of Penal Procedure in 1861. The substantial law was then undertaken which published its first instalment in 1865. The use of illustrations is a peculiar feature of the Indian code. (e. r.)