Code (Lat. codex, manuscript, originally designating any writing, but afterward used specially for a law, or some form prescribed by law; hence codicillus, the diminutive of codex, was a supplement to a will), in jurisprudence, a compilation of laws made by public authority. In a popular sense it is understood to be a complete body of law, or if it relate to a particular subject, that it is to that extent complete; in other words, that if it be intended as a general system of laws, it supersedes all previously existing laws not embraced in it; and so of a partial code, that so far as it goes it excludes all other sources of decision. This is however erroneous. No compilation of laws was ever made which was so complete as to provide for all the cases that could arise. Positive or statute law is comparatively a small part of the laws of any country. There is always a law of custom growing out of the habits and peculiar circumstances of a people. Legislative authority may take hold of certain principles developed by custom and give to them the form of written law, but it will still be incomplete, and the deficiency must be supplied by the same process which in the first instance brought into exercise those principles which have been incorporated in the written law.
A code of laws contains no inherent power of further production. Analogies may be furnished for many cases, yet even these will yield to the imperious force of changing circumstances and necessities. Other cases must incessantly occur, for the determination of which no analogy is furnished in the written law, and in these the constitution of society,' from which a law of custom is continually germinating, must be the sole authority. Still more erroneous would it be to suppose that in any community a code was ever preenacted as the basis of social organization and civil rights, and that the national character was derived therefrom. The reverse of this has been the uniform course, so far as we have historic records; and it is only when these are deficient that the unsupported hypothesis has been substituted whereby a lawgiver is supposed to have moulded a whole people by his legislative enactments. There have indeed been governments, especially in eastern countries, which have had unlimited power to make and unmake laws without regard to the rights or wishes of the people; but this is only saying that a people may be subject to such a despotism as to be virtually without law except the arbitrary will of an autocrat.
Under a des-potical government the laws may be enforced for a time, however unacceptable to the people; yet there is a limit beyond which no sovereign can go without the danger of revolution, as when he attempts to interfere with the ancient usages of the mass of the people. The form of the government may be changed, and political rights abrogated; but customs generally prevailing in domestic life or social relations, or involving religious faith, if such customs have become venerable by their antiquity, cannot be wholly suppressed except by the entire subjugation of the people to a foreign enemy, nor even then unless by a perfectly merciless war, as when the Britons were conquered by the Anglo-Saxons. The common version as to the mode in which laws were established in the Grecian states is in great part fabulous. As to Crete we have no authentic records remaining; but as to Sparta, Thirlwall and Grote maintain that Lycurgus, to whom is commonly attributed the formation of the constitution and laws of that state, in fact introduced no new principles in either the political or social organization of the people, but merely brought into systematic arrangement the usages previously existing, with some modifications or additional provisions essential to the conservation of the peculiar form of nationality already existing, and by a public enactment with a religious sanction gave permanence to the entire system as digested by him.
The double lines of kings, the gerusia or council of elders, the assembly of the people, even the ephors, with less authority than they afterward acquired - all these existed before the legislation of Lycur-gus; so also the distinction between Spartans and Laconians, and the still greater distinction between the former and their serfs the helots. Usages had grown up corresponding to this isolation of a small number in the midst of a numerous subject people, and it was for the carrying out more efficiently the design of these usages that Lycurgus prepared the code which thenceforth became the fixed law of Sparta. In like manner the Athenian state was harmonized by the laws of Solon, but more particularly by his constitution of political powers. The ar-chonship, the areopagus, and the council of 400 were constituent parts of the government before his revision of the laws. The assembly of the people had also taken some part in public affairs, but in a rude, irregular manner, without any fixed authority or prescribed mode of proceeding. Solon constituted it the chief legislative body, yet with the restriction that they were to consider only what was proposed by the senate.
This restriction was afterward evaded, because the. assembly could modify any proposition that came before them without sending it back to the senate for approval; and again, when a law was desired by the people, any one could present it to the senate and procure the preliminary action necessary for bringing it before the people. A still greater popular power was conferred by the judicial authority given to the dicasteries, which were composed of a large number of citizens, drawn by lot, presided over by one of the archons. The number of jurors in important cases was very large, sometimes including the whole body of citizens qualified to serve. The other laws of Solon corresponded with this development of the popular element. All citizens over the age of 20 were entitled to speak and vote in the assembly, and to sit as jurors in the dicasteries; trade and manufacturing industry were encouraged, and intercourse with foreigners was promoted by giving to them greater privileges than were allowed by any other Grecian state.
Still it appears that all his legislation was in consonance with the spirit of the people, and the particular laws were probably for the most part reenactments of customs already existing, but with some wholesome restraints or new provisions intended for the maintenance of the . largest liberty within the proper limit of civil order. - The same principle is again exhibited in the Roman laws of the twelve tables. The account given by Livy is, that commissioners were sent into Greece to examine the laws and institutions of the principal states, and to transcribe the laws of Solon; that atter their return, another commission (the decemvirs) was constituted to draw up a code of laws, the result of which was the compilation of the twelve tables. But the laws of Solon were certainly not incorporated in the code of the decemvirs, nor, so far as we are able to judge of the original from the fragments remaining and the commentaries of Roman writers, was. that code transplanted from any foreign state. Acquaintance with the laws of other countries might have suggested a systematic form, perhaps have furnished some analogy for a rule in cases not otherwise provided for; but the law of the twelve tables was essentially Roman, and was undoubtedly compiled from preexisting sources peculiar to the Roman people.
As in the legislation of Solon, so in that of the decemvirs, one great object was to quiet political dissensions between the aristocracy and common people. It had been a subject of complaint by the people that the consuls, who had the whole judicial power, decided arbitrarily - not that there was no law, but no sufficient sanction to prevent perversion; and the remedy proposed was, that the laws should be made certain, and that the patrician magistrates should be compelled to conform thereto (quo omnes uti deberent), which it was supposed would be accomplished by having the laws written out and published.. This proposition was what led ultimately to the appointment of the decemvirs, and the laws which they reported were engraved first on wood and exposed in the forum; after the destruction of. the city by the Gauls they were engraved on brass, and are mentioned as still existing in public view as late as the 3d century of the Christian era. It is often said that the twelve tables constituted the basis of the Roman law for ten centuries; but this is in no proper sense well founded.
Themselves founded on custom (mores ma jorum), they constituted but a fragment of the vast body of law elaborated by the energizing force of social and political elements in all the diversified relations incident to a free and prosperous commonwealth. The judicial discretion of the praetors (jus aequum), the opinions and writings of jurists (auctoritas pru-dentum), the rescripts of the imperial court, and the decisions of cases (sentential receptee), were the voluminous exponents of the Roman common law, founded not upon legislative enactments (leges), but upon custom (mores). The edicts of the prastors, in which it was allowed annually to incorporate new applications of the jus aequum, were in the reign of Hadrian revised by Salvius Julianus, and the revision was confirmed by the imperial council, from which time it remained substantially unchanged. In a limited sense this might be called a code of the equitable laws administered by the praetor. Legislative ordinances, or what we should call statutes (leges, plebiscita, and senatus consulta), made comparatively little addition to private law; they related chiefly to political rights and to the forms of judicial administration.
So the decrees of the senate and the edicts of the emperor, after the popular government was subverted, during a long period related chiefly to public affairs; and even when they related to private law, it was rather in the nature of a decision or declaration of the law than any new provision. The distinction between legislative and judicial functions was little observed. The rescripts of the emperor (or of those authorized to make answers in his name) for the resolution of doubtful cases, the decrees in actions brought by appeal before the imperial court, and the edicts, as well those relating to the administration of the government as for the regulation of private rights, were all embraced under the general designation of consti-tutiones principum. The great number of these constitutions, and the crudity of many of them, rendered compilations and commentaries indispensable. Among these the principal are the imperial decrees or decisions collected by Paulus; "Rescripts of the Divi Fra-tres," collected by Papirius Justus; rescripts of Hadrian, compiled by Dositheus; the collection by Ulpian, in his work De Officio Proconsulis, of all the ordinances issued against Christians; and lastly, two general collections (codices) of constitutions from Hadrian to Constantine, the one by Gregorius, the other by Hermogenes (the latter a supplement to the first), both of which consisted chiefly, as is understood, of rescripts.
All of these were private compilations, and do not strictly come under the definition of codes as given at the beginning of this article. The Codex Theodosianus, published A. D. 438, by order of Theodosius the Younger, was a compilation of all the edicts of the eniperors which were deemed important, and also many of the rescripts. This was a work of great importance, not merely as the initiative of the great work of digesting the whole Roman law afterward completed by Justinian, but for its influence upon several of the Germanic, nations, by whom it was adopted or in some degree made the basis of their laws before the revision had been made which is now known by the name of Corpus Juris Civilis. The compilations made by order of Justinian in 528-'35, the Institutes, Pandects, and code, and the new constitutions which were published after his death in 565, have been described in the article Civil Law. In the same article will also be found an account of three of the barbaric codes, viz.: the edict of Theo-doric, king of the Ostrogoths, in 500; the Breviarium Alaricianum, issued by Alaric II., king of the Visigoths, in 506; and the Lex Romana of the Burgundians, published in 517-534. All of these were intended chiefly for Roman subjects.
But there were also distinct laws for the barbarians themselves, which it will be proper to notice more in detail. - First as to the Franks. There were two tribes, one called Salian (probably from the river Sala, or Yssel, upon which they were first established), the other Ripuarian (from the Latin ripa, the name expressing their location upon the banks of the-Rhine). These tribes had separate compilations of laws, which continued in force even after the union of the two tribes under Clovis. Of the Salic law our knowledge is derived from manuscripts still extant, most of which are an unmixed Latin text, but others have an intermixture of Germanic words. The latter are entitled Lex Salica antiqua (or antiquissima, or vetusta), the other Lex Salica recentior (or emendata, or reformata). M. Wiarda, in a work entitled Histoire et explication de la loi salique, has proved that none of the compilations are of an earlier date than the 7th century, and that the manuscripts containing Germanic words and purporting to be the more ancient are in fact later in time than the others.
The laws themselves he supposes to have been compiled after the Franks had become established in Belgium, and that they were originally written in Latin. He also concludes that they were not published as a code by public authority, but were compiled from customs and judicial decisions; and that they do not constitute all the laws of the Salian Franks. The earliest historical notice of any such compilation is in the 8th century, in a work called Gesta Francorum. Guizot (Histoire de la civilisation en France) deduces from a critical examination of all the manuscripts that the law is essentially penal. It contains 343 penal articles, and only 65 upon all other subjects. The nature of the crimes and punishments which are specified indicates an exceedingly rude condition of society. There is no generalization, but a chaotic mingling together of the various individual cases of crime that might occur in an uncivilized community, without definition, classification, or any arrangement. One peculiarity is observable, which indeed may be found in the laws of all the Germanic nations at an early period, viz., the extreme mildness of punishments as respects free men, whether Franks or Romans. Pecuniary composition, Wehrgeld or Wiedergeld (prohibition money), was the only penalty prescribed by the Salic law, and this only as a substitute for the right of the injured party to take personal vengeance; but if accepted, the law merely fixed the amount.
In respect to slaves it was different; they were subject to cruel corporal punishments, imprisonment, and death. Another peculiarity, which also belonged to the laws of other tribes, was the mode of proof in judicial trials. This was by the oath of compurgators or conjurators, that is to say, a certain number of the friends of the accused who deposed that he had not done what was imputed to him; and on the other hand, conjurators could be produced by the accuser. There was no examination of witnesses nor discussion of the facts, but a simple attestation under oath of the truth of the charge or a denial thereof. The laws of the Ripuarian Franks were essentially the same as those above described, with only the following distinguishing circumstances: 1, that there is more of precision and legislative form, and that the subjects are less exclusively penal; 2, that the mode of proof by compurgators or conjurators is more distinctly regulated; 3, judicial combat is recognized as a mode of deciding controversies. This custorn seems to have been intended as a check npon the right of private revenge. If the offended party insisted upon personal vengeance, then it was to be subject to certain terms, and was to be in the presence of witnesses.
The Ripuarian laws, it is supposed, were compiled in the 7th century. The laws of the Burgundians are of an earlier period, probably between the years 468 and 534, the latter being the date of the final conquest of the Burgundians by the successors of Clovis. The chief characteristic of those laws is that they apply to Romans and Burgundians alike, and that civil rights and procedure are more prominent than in the laws of the Franks, probably by reason of the great interfusion of Roman law. - The capitularies of Charlemagne and several of his successors have been commonly classed among compilations of laws. They are, in truth, the acts of the government in all its functions, including instructions to magistrates, financial regulations, political, civil, and canonical legislation, judicial decisions, even moral precepts, and propositions or questions for consideration. Guizot has arranged the acts of Charlemagne into 1,150 articles. Of these the greater proportion belong to canonical legislation, including under that term the acts of councils and the ordinances of the emperor in relation to affairs of the church. The next most considerable subject is political legislation, relating to administrative offices, courts, and police, and is contained in 293 articles.
Penal provisions are numerous, but differ little in character from the previous penal laws of the Ripuarians, Lombards, and other barbarian nations who had become subjects of Charlemagne. There is one exception, in the severity with which he punished the conquered Saxons. Legislation concerning private rights is comparatively inconsiderable. Among the capitularies are some additions to the ancient laws, as the Salic and Ripuarian, the laws of the Lombards, Bavarians, etc.; there are also extracts from these laws, which were probably intended for some particular purpose. It is said that a revision of the Salic law, and of the laws of the Lombards and others, was made by order of Charlemagne, but only fragments of such revision appear in the capitularies. In fact, the capitularies themselves are but fragmentary, many of them being imperfect, and others being referred to which are lost. The most complete edition of the capitularies was published by Baluze (Paris, 1677). - The laws compiled by Alfred the Great in the 9th century have been celebrated as the supposed origin of the peculiarities of the English common law. Trial by jury is commonly referred to this monarch as if first introduced by him. But this is certainly not sustained by authentic evidence.
It was a familiar principle in the usages of all the Germanic nations that a free man should be tried only by his peers. In the laws attributed to Alfred we find the same general characteristics as in those of the Franks and other Germanic nations, pecuniary compositions for every species of crime, proof by compurgators, and the like. A law was indeed enacted by Alfred, making wilful murder a capital offence, but it seems not to have been enforced. There is one provision in these laws which may have originated in the humanity of the sovereign, but more probably in the regard which the Anglo-Saxons had for a man's house as being sacred, which feeling has been transmitted to their descendants, and exists to this day. If a man who had committed an injury should keep within his own house, his adversary might besiege him for seven days without attacking him; but if within that time the besieged person should be willing to surrender himself and his arms, his adversary might detain him 30 days, but after that must restore him safe to his kindred, and be content with the compensation prescribed by law.
Trial by ordeal and other superstitious methods appear to have been frequent among the Anglo-Saxons. Judicial combat, if in use at all, was seldom resorted to until the Normans substituted it in place of compurgation. - Coming down to a more recent period, we find a peculiar law of custom developed under the feudal system, especially in France. In the southern part of that monarchy, which had been occupied by the Visigoths and Burgundians, the Roman municipal institutions, judicial forms,and rights of property, were to a considerable extent preserved. That part of the country was for that reason called pays du droit ecrit. Yet even here, in some districts, many peculiar customs (droits coutumiers) were established in the feudal anarchy. In other provinces, especially the northern, the Roman law was almost entirely lost, at least was no longer distinguishable, and a new system succeeded, of various character, according to the degree of independence maintained by the great feudal lords; and these provinces were designated as pays du droit cou-tumier. The laws of Normandy are the most important on account of their bearing on the English law of landed property. The customs of the county of Paris were next in importance, as they were regarded as precedents in other districts.
Many of these local systems were collected in the Etablissements de St. Louis. In the reign of Charles VII., in 1453, it was decreed by the assembly of the states that all customary laws should be reduced to writing. This brought into distinct and recognized legal existence a vast number of systems, a collection of several hundred of which has been made by Bourdot de Richebourg (Coutumier general, Paris, 1724). This diversity, instead of being relieved by general legislation as the authority of the crown increased, was only made more perplexed by ordonnances not founded upon comprehensive principles, and therefore having no tendency to assimilate the heterogeneous elements before existing, Collections of these ordonnances were repeatedly made, some of which received the inappropriate designation of codes; as the Code Henri, made by Brisson in the reign of Henry III.; the Code Murvillac or Michau, under Louis XIII. (1629), relating to judicial procedure; and the Code Louis XV., by Chaussepierre, containing the ordonnances from 1722 to 1740. Several comprehensive ordonnances, which were in fact codes of laws relating to particular subjects, were enacted in the reign of Louis XVI. But the necessity of a general compilation, and the assimilation of all the different systems into a homogeneous jurisprudence for the use of the whole nation, became more and more pressing, till the revolution paved the way for its accomplishment.
It was early the subject of discussion, and projects were reported by Cambaceres in 1793 and 1795, which, though incomplete in details, and on the whole unsatisfactory, yet furnished a perspicuous and well arranged outline. By a consular decree, Aug. 12, 1800, a commission was constituted "to compare the order which had been followed in the preparation of the projects for a civil code hitherto published, to determine the plan which the commissioners should think best to adopt, and to discuss the chief principles of civil legislation." Portalis, Tronchet, Bigot de Preameneu, Maleville, and the minister of justice were the commissioners. In 1801 they reported a draft of a civil code, which was submitted to the court of cassation and other courts of appeal, and with the reports of the judges was finally brought before the council of state, in which Napoleon (then first consul) presided in person. The discussion, which was consecutive and thorough, may be found in a work entitled Conference du code civil, avec la discussion particuliere du conseil d'etat, etc. (Paris, 1805). In the discussion and adjustment of the code, Tronchet, Roederer, Portalis, Thibaudeau, Cambaceres, and Le Brun were the most conspicuous.
Of these, Tronchet was the most regarded by the first consul for profound and enlightened views; Le Brun was the best qualified as a redacteur. In the same manner the other codes were reported, discussed, and amended. The whole revision was finally adopted under the title of Les cinque codes, consisting of the civil code (which, as the first in order, and most important, was distinguished by the appellation of the Code Napoleon), the code of criminal procedure, penal code, code of civil procedure, and code of commerce. Another was added by Charles X. (1827), entitled the Code forestier, which is a collection of laws relating to the administration of the wood lands belonging to the king, or to cities, villages, etc.; and the whole is now published under the title of Les six codes. Of the merits of this great work we have sufficient evidence from the fact that it still continues, with but little change, to be the law of France, notwithstanding the subversion of the government by which it was established. The extent of its influence upon the laws of other countries has been very great.
Civil codes modelled after the Code Napoleon were promulgated in the Two Sicilies in 1819, the Netherlands in 1822 and 1837, Hayti in 1826, Sardinia in 1837, the Swiss cantons from 1819 to 1855, and Bolivia in 1843; and everywhere the Latin races appear to be following these examples. - In Germany, until a recent period, the laws, both civil and criminal, have been in a state of great confusion. In 1532 the statutes commonly known as the Carolina Criminalis were enacted by the emperor Charles V. for the regulation of criminal proceedings. Prior to that time the law of the empire relating to crimes was threefold: 1, the Germanic, contained in the ancient barbaric codes and subsequent local usages; 2, the provisions of the Roman law in the compilations of Justinian, particularly the Libri Terribiles of the Digest, and the 18th title of the Institutes; 3, the various penal provisions of the canon law (Corpus Juris Canonici). The Carolina Criminalis purported to be "a simple instruction for unlearned judges, to teach them how to proceed in criminal cases." It did not supersede the previously existing laws, but referred to them, sometimes defining what was obscure, and fixed punishments with more exactness, but more particularly regulated the form of criminal proceedings.
Being in form didactic rather than statutory, a large license was taken by judges in administering the law as thus prescribed, and uncertainty still prevailed. The revision of the Prussian laws known as the Code Frederic, published 1749-'57, revised after 1780, but not put in force till 1794, was intended to obviate, according to its preface, 1, the difficulties of the Roman codes; 2, the disputes of the commentators; 3, the contradictions of Roman and German law. Like the Institutes, it divides the subject into the law of persons, of things, and of obligations. The penal laws have since been repeatedly revised. In 1826 a commission was appointed to prepare a new penal code, in pursuance of which six different projects were presented and discussed at various times, during a period of 25 years; and the code which is now in force was finally adopted in 1851, and has been highly praised. Other German states made efforts toward codification in the last century. A criminal code for Bavaria was promulgated in 1751, and for Austria in 1768, and again in 1786. In the latter country a civil code was produced in 1811, founded in great measure on the Prussian code; and a code of criminal procedure was published in 1852, which adopts the classification of offences contained in the French penal code.
In Bavaria a penal code prepared by Feuerbach was adopted in 1813, which was received with such favor as to be accepted by several other states. - In Russia a commission, which originated with Peter the Great, reported in 1832 the Svod zakonov, which became the exclusive source of law in 1835. This comprises eight codes, devoted respectively to - 1, the state and imperial family; 2, public services; 3, finance; 4, the classes of persons; 5, civil law; 6, administration; 7, police; 8, penal law. It contains about 38,000 articles, each of which is referred to some preexisting ordinance. - In the United States the first experiment at a legislative remodelling of the entire law was made in Louisiana. That state was originally a French colony; it was afterward ceded to Spain, when the Spanish law was introduced, but again reverted to the French, and from them was acquired by the United States. The confusion of laws introduced by these numerous changes of government made a revision necessary, and a code was prepared and adopted in 1806-'8, which did not, however, supersede the ancient laws, except so far as they conflicted with it.
A further revision was found necessary, and in 1822 commissioners were appointed for that purpose, who reported a complete civil code, which was adopted in 1824. Mr. Edward Livingston, one of the commissioners, and who is understood to have had the chief part in the compilation, had been familiar with the common law, and introduced from it many valuable provisions, though the basis of the work was mainly the French civil code. Mr. Livingston also reported a penal code, which was received with favor by the legislature, but not formally adopted. It brought to its author great reputation, especially in Europe. A penal code and code of procedure have since been adopted. The most important, however, of the attempts at codification which have been made in the United States are those of the state of New York, which had their origin mainly in the able and persistent efforts of David Dudley Field, which he began in 1839, by a public letter on the subject addressed to Gulian 0. Yerplanck, then a state senator, and continued by a series of addresses to legislative committees, of articles in the newspapers, and of pamphlets. The result of this agitation was that the revised constitution of New York, adopted in 1846, had two separate provisions in relation to codification.
The first directed the appointment of three commissioners to reduce into a code the whole body of the law of the state, or so much thereof as might be deemed expedient. The other directed the appointment of three other commissioners-to revise the rules of practice and pleadings in courts of record. Both commissions were filled by the legislature in 1847. The practice commissioners made a partial report on Feb. 29, 1848, containing an incomplete code of civil procedure, in such shape as to cover the principal reforms proposed in the practice of courts of record in civil cases, and this report was immediately adopted by the legislature. The complete codes of civil and criminal procedure were not reported until Dec. 31, 1849, and were never adopted by the legislature, although some portion of the amendments suggested by the commissioners were gradually incorporated by legislation into the text of the original and incomplete code enacted in 1848. On April 6, 1857, the legislature created a new commission to prepare codes of all the law not covered by the reports of the practice commission, and appointed David Dudley Field, William Curtis Noyes, and Alexander W. Bradford the commissioners, for a term of five years, which was afterward extended for three years further.
They reported a political code, a penal code, and a civil code. These codes have not up to the present time been adopted by the legislature of New York; and indeed, although reported by committees, the legislature has always been too much occupied with special legislation to give the necessary time for their consideration. The code of civil procedure, in whole or in part, has been adopted into the laws of 23 states and territories of the Union, viz.: New York, Ohio, Indiana, Kentucky, Missouri, Wisconsin, Iowa, Minnesota, Kansas, Nebraska, Nevada, California, Oregon, North Carolina, South Carolina, Alabama, Washington, Montana, Idaho, Dakota, Wyoming, Utah, and Arizona. It has also been adopted for the consular courts of the United States in Japan. The code of criminal procedure has been adopted in ten or more states and territories. In California a code commission created by the legislature reported in January, 1872, a complete series of codes framed upon the basis of the projected New York codes, all of which were adopted by the legislature, to take effect on Jan. 1, 1873. This consisted of a political code, a civil code, a penal code, and a code of civil procedure; the practice in criminal cases being regulated by the penal code.
The territory of Dakota in 1864 also adopted the civil and penal codes of the New York commissioners. The principal feature of the code of civil procedure thus adopted in New York and other states was the entire fusion of law and equity by which the same principles were for the first time in the history of New York, or of any other states inheriting the English practice, applied to all species of actions. The courts of Pennsylvania had from the organization of the state decided actions at law upon the principles of equity, but they have never been clothed with all the powers of courts of equity as defined by the English practice. The union in one tribunal of all the powers belonging to a court of chancery as well as to a court of common law, and the application of all the principles of both systems to every controversy arising before the courts, was therefore an absolute novelty in 1848 in any state or colony founded by Englishmen and inheriting English law. The practice in English law courts being entirely different from that of courts of equity, it was necessary to devise a single and homogeneous system including the most useful parts of each form of procedure, and this was done by the code of civil procedure reported by the New York commissioners.
Without this preliminary reform it would have been almost im- possible to frame an intelligible code of law for an English-speaking community, inasmuch as many elementary questions were disposed of in one court upon precisely the opposite principles from those enforced by the other court. This difficulty being removed, however, it has been found as practicable to reduce the common law of England to the form of a code as the law of any other country. The civil code, defining the rights of individuals as between each other, is the one most interesting to the public at large. This code, as reported in New York and adopted in California and Dakota, consists of three principal divisions, viz., persons, property, ,and obligations, and a fourth or supplemental division containing general provisions applicable to more than one of the chief divisions already mentioned. Under the head of "Persons" are treated the subjects of personal rights and relations, including marriage, parentage, guardianship, etc, with the rights and duties growing out of them. Under the head of "Property" the rules, conditions, limitations, and incidents of ownership in both real and personal property are stated, including the modes of transfer by grant, will, inheritance, and otherwise.
Under the head of "Obligations" the interpretation, transfer, and extinction of obligations are treated, together with the entire subject of contracts, under which special title are set forth the rules governing the creation, interpretation, and extinction of contracts, and the particular rules governing sale, exchange, deposit, loan, hiring of property, personal service, carriage or transportation, trusts or confidential relations, agency, partnership, insurance, indemnity, guaranty, liens (including pledge and mortgage), and negotiable instruments. Under the fourth division there are five titles: 1, relief, including the law of damages, injunctions, specific performance, etc.; 2, debtor and creditor, including fraudulent transactions, and assignments for the benefit of creditors; 3, nuisance; 4, maxims of jurisprudence; 5, definitions. The civil code of California has, in addition to the matter contained in the New York code, extensive and detailed provisons regulating the management of corporations, and the business of mining, which has in that state an exceptional importance. - The subject of codification has for many years been under discussion in England and the United States, especially since the time of Jeremy Bentham; but the codes framed by the New York commissioners were the first in which any real attempt was made to embody the old law of any English-speaking community.
Since their publication the expediency of codification has become a subject of renewed interest in England, and the adoption of a code has been urged not only by private individuals but by members of the present, government (1873), with' every prospect of ultimate success. A commission was some time since appointed in England to prepare a digest of the existing law as the basis for the construction of a code, and the result of its efforts is generally understood to be strong conviction in the minds of the leaders of the legal profession that a complete code rather than a mere digest must become an absolute necessity.