ART. II.-1. Codex Theodosianus.

HÄNEL. Bonnæ: 1843.

Instruxit GUSTAVUS

2. Civil Code of Lower Canada. Ottawa: 1866. From the Amended Roll deposited in the Office of Clerk of the Legislative Council, as directed by the Act 29 Vict. cap. 41: 1865.

IT

T is now just half a century since attention was called in these pages to certain proposals which had been put forth by perhaps the greatest theoretical jurist who has ever lived.* Mr. Bentham, despairing of encouragement from the Government of his own country, had offered his services as legislator to the United States of America, and to the Emperor of Russia. By neither were his offers accepted, but from both he obtained a respectful hearing. England in those days was indeed beginning to bestir herself towards legal reforms, but her first steps were not in the path which had been most carefully explored by the philosophic jurist. The object at which Bentham chiefly aimed was the re-expression and re-arrangement of the law according to a scientific method. A more pressing necessity for English statesmen was to alter the law itself; to adapt to the ideas and wants of modern civilisation a system which had grown. together in the comparative barbarism of the feudal ages. We had to get rid of a series of penal enactments, the indiscriminate severity of which defeated its own object, while it rendered our name a byeword throughout Europe; we had to sweep away some of the more obtrusive absurdities which beset all dealings with landed property; and we had to emancipate our procedure from a network of scholastic subtleties, which seemed woven expressly to prevent causes from being tried upon their real merits.

The Romillys, the Mackintoshes, the Peels, and the Broughams have done their work; our laws, in humanity and in comprehensiveness, are not unworthy of our civilisation; but the task to which Bentham devoted the best powers of his intellect has still to be commenced. The form in which our law is expressed remains just what it was, and is probably worse than that of any body of jurisprudence now extant in Europe or America. It may be as well to state at once what is meant by so sweeping a condemnation. The case is simply this: while almost every other civilised country has arranged its laws upon some sort of

* Ed. Review, vol. xxix. p. 217.

VOL. CXXVI. NO. CCLVIII.

A A

connected system, our law is identical with our legal history. The rules regulating, for instance, the relation of landlord and tenant, or of husband and wife, are to be found scattered at irregular intervals over the whole space which separates the days of the Saxon dominion from the present time. The records of our Parliament, stretching from the reign of Henry III. to that of Victoria; the words which from day to day have fallen from the lips of judges in courts of justice during the last six or seven centuries; the published opinions of such sages of the profession as have been, as it were, canonised by an admiring posterity-these are, not the raw material out of which our law has been constructed, but our very law itself; and we have none other. The statutes of the realm fill about fifty volumes; many of them have been repealed, but it is difficult to say which. The reported cases fill about 1,200 volumes; of them have been overruled, but none of them bear any outward sign of their fallen estate. Statutes and reports alike have accumulated, layer above layer, in a merely chronological order; so that a given legal topic resembles, not the plan of a well-defined field, but rather the vertical section of a geological formation. The most skilful jurisconsult, when asked to exhibit any particular rule of law, can do so only after first laboriously examining all the legal strata in which any traces of it are to be found, and then piecing together from the fragments thus collected what after all he can only present as a probable reconstruction of the required entity.

many

The Poet Laureate has described, with his usual fineness of perception and precision of language, the disheartening labours of the law-student who toils

Thro' which a few, by wit or fortune led,

May beat a pathway out to wealth and fame.'

(Aylmer's Field, p. 73.)

The

Such disorder and complexity in a body of law can but result in uncertainty, expense and delay to the suitor. evil, however, does not stop here. While cognate topics are scattered over a thousand different volumes, and totally dissimilar subjects are found in the closest proximity, it is utterly impossible either for the judge to form a clear conception of the principles which he is called upon to expound, or for the legis lator to see precisely what the rule is which he desires to repeal or amend. The tardy recognition by the nation of these practical mischiefs has fortunately synchronised with the growth of

a small class of theoretical jurists, who have, however, been obliged for some time to contend with the narrowmindedness of the profession and the apathy of the public--to wait till the patient was sufficiently aware of his illness to be ready to welcome the physician. Our object in the following pages will be to promote, if possible, the movement towards scientific legislation, which was initiated by the writings of Mr. Bentham and by the lectures of his distinguished follower, Mr. Austin.

The non-legal world is very far from realising the importance of the cause which we advocate-the cause of the formal as contrasted with the material amendment of the law. The distinction here drawn, although somewhat scholastic in sound, is in reality simple enough. To change the matter of the law is to change the nature of its provisions; to enact, for instance, that persons, instead of being allowed to make a will at the age of eighteen, shall not be capable of such an act till they attain twenty-one. To change the form of the law is to alter the mode of its expression; for instance, to gather into one chapter the various enactments upon the subject of forgery which had before been scattered through the statute-book. The formal amendment of the law is indeed one of the most useful services which can be rendered to the human race, and one which never fails of an ample reward of fame. Justinian is far better known for his legal reforms than for the success of his arms; and Napoleon was doubtlessly truly prescient of the final estimate which will be made of his greatness, when he said, 'I shall 'go down to posterity with my Code in my hand.'

We propose to show, by a slight historical sketch, that England stands alone among civilised nations in never having methodised her law; we shall then mention briefly the preliminary efforts which she has of late years made towards improvement; and shall offer in conclusion some suggestions as to the object which our legal reformers should propose to themselves, and the means by which that object is most likely to be attained.

I. In order to keep our historical survey within moderate bounds, it will be necessary to confine it to the legislation of the European races. We must also leave unconsidered those very ancient codes which seem to have made their appearance at an early stage in the history of almost every nation. The Draconian tablets and the Twelve Tables at Rome mark an epoch when reading and writing have become common, when law has become so far fixed that it may be exhibited in a permanent form, and when the people are so far enlightened as to care to have their laws generally accessible. Our attention

must be confined to a very different species of legal reforms, which appeared everywhere at a far more advanced stage of history, and which had for their object not so much to fix the law, or to take it out of the hands of a particular caste, as to render intelligible by arrangement upon scientific principles a mass of enactments, the growth of many centuries of ingenious litigation.

The legal reforms of the Roman emperors are not only the earliest instance, within the scope of our present inquiry, of the concurrence of an unmanageably bulky body of law with a school of jurists competent to reduce it into some sort of order, but they may also afford many hints for the similar work which has now to be undertaken in England. The sources of law were as numerous with the Romans as with ourselves. Cicero enumerates- statutes, decrees of the senate, decided cases, the authority of the sages of the law, the edicts of 'magistrates, custom, and equity,"* to which in later times were added the Rescripts and Constitutions of the Emperors. No wonder that the immensus aliarum super alias acervatarum legum cumulus,' of which Livy speaks,t became some centuries later a load for many camels.' Cæsar seems to have intended to reform this confusion; § and much was gained when, under Hadrian, the prætorian edicts were consolidated into the edictum perpetuum.' But the first decided step in the right direction was the publication of the Gregorian and Hermogenian codes in the time of Constantine. These compilations, in which the imperial rescripts, from Hadrian to Diocletian, were conveniently digested under appropriate titles, though apparently the work of private individuals, soon acquired a very high authority. They were closely analogous to those arrangements of the statutes which have been from time to time attempted in England, by Tyrwhit and Tyndale, Chitty, and others. For the imperial constitutions bore an exact analogy to our Acts of Parliament, while the writings of the great jurists corresponded accurately enough to what we call common law; and it was through these two sources alone that the other sources of law enumerated by Cicero were under

* Top. c. v.

Eunap. in vita Edesii, p. 72.

† iii. c. 34.

Jus civile ad certum modum redigere, atque ex immensa diffusaque legum copia, optima quæque et necessaria in paucissimos conferre libros.' (Sueton. J. Cæsar, c. 44.)

These codes, which exist only in fragments, are best edited by Hänel, in the 'Corpus Juris Antejustinianeum' of Böcking (Bonnæ, 1837-41); where he shows their probable arrangement.

the Empire practically known or operative. The constitutions, or as we should say the statutes, had become very numerous, and had been of course issued from time to time, just as the occasion prompted, upon no system whatever. But the enactments which these contained were simple and few when compared with the vast labyrinth of principles and illustrations which derived its authority from the independent and often conflicting writings of generation after generation of great jurists. Statute law and common law were equally in need of re-arrangement, but the Romans wisely attacked the easier task first; and thus it was that their first step towards legal reform was the introduction into the Constitutions, by Hermogenianus and Gregorianus, of a scientific method in place of a merely chronological sequence.

And the next step was of a similar character. In the year 429 the Emperor Theodosius II., with the concurrence of Valentinian III., undertook to continue the work of Gregorianus and Hermogenianus, by editing the constitutions which had been promulgated since the date of their publications. He therefore issued a commission to Antiochus, ex-quæstor and præfect,' with some others, empowering them to arrange and abbreviate the hitherto unarranged constitutions. Nothing having been in the meantime accomplished, another commission was issued in 435, to the same Antiochus and fifteen others, with larger powers than before: Demendi supervacanea, et adjiciendi necessaria, et mutandi ambigua, et emendandi "incongrua.'*

At length, in 438, Theodosius was able to promulgate his new code, and to decree that after the first of January in the following year, no imperial constitution should be quoted except from the three recognised compilations. The three codes were almost simultaneously adopted in the Western Empire, and arrangements were made by which such constitutions as should be subsequently promulgated by either emperor (novella) should be forwarded to the other for his acceptance.

The preamble of the constitution by which the code was enacted, though expressed in a viciously florid style, gives a clear idea of the state of things which the Emperor wished to remedy:

'I have,' he says, 'often wondered, that considering the great prizes which are held out for the encouragement of arts and learning, the instances are so few and far between of a full and ripe acquaintance

* These commissions are preserved in the codex.