Code (Lat. codex and caudex). The primary meaning of the Latin word was the trunk or stem of a tree; afterwards it came to signify more especially wooden tablets bound together, and covered with a coating of wax, which were used for writing on. After parchment and paper were substituted for wood, the name code was still retained. Cicero applies it to a bill; but it was not till still later, in the times of the emperors, that it was used to express a collection of laws.
In its modern sense the word code may be defined as a systematic statement of the laws of a country (either the whole law, or any special department of it) having the authority of an act of the legislature. In other words, it is the expression of the law of a country in a systematic and authoritative form. This definition distinguishes it, on the one hand, from a digest, which properly signifies a collection of the decisions and rules of the common law arranged on a methodical plan, and, on the other hand, from a consolidated statute, which is nothing more than the incorporation of all the statutes relating to a particular branch of the law into one general enactment. While the digest differs from a code in so far as it wants the authority of a legislative enactment, the consolidated statute differs from it in that it does not deal with the unwritten or common law.
Whether it is for the advantage of a community that its laws should be expressed in the form of a code, is a question which has been much discussed both in Great Britain and abroad. On the Continent it has been practically settled in the affirmative, while in Great Britain and in some of the states of America (particularly the state of New York) the controversy is still keenly maintained. Two principal objections urged by the opponents of codification may be thus summarised: (1) That it checks the natural growth of the law and hinders its free development; and (2) that, as law is progressive, there would be no finality—that it would be necessary to be constantly altering the code in order to adapt it to the new conditions of society. The answer usually made to the first of these objections is, that although law is a flexible and progressive science, it is nevertheless capable of being known as it exists at any given time, and if so it must be capable of being expressed in language. 'The law of a country,' observes Mr Dudley Field, the distinguished American jurist, 'may be likened to its language, and to make a code of the one is like making a dictionary of the other.' If the law is not expressed in language, it must almost necessarily be left to the fluctuating opinions of judges to say whether a particular set of facts is in any given case of legal effect or not. To the second of the above objections the answer is: Granted that a code cannot be made for all time, there is nevertheless no reason why any changes required by altered conditions of society should not be adequately met by periodical revision. A commission of lawyers might be appointed for that purpose, and revision might take place, say, every ten years. On the other hand, the arguments specially urged in favour of codification are: (1) That it will simplify the law, thereby getting rid of a vast mass of statutes and judicial decisions, whose authority has become more or less doubtful, and which overload the book-shelves and waste the time of our lawyers and judges; and (2) that by simplifying the law it will be made accessible to and comprehensible by ordinary citizens.
Viewing the subject historically, we find that the Romans were the first to realise the idea of codification. The compilation of the Twelve Tables (q.v.) in 303 B.C. was the earliest attempt to codify the whole law, both public and private. But with the Romans the term code was confined in its application to the collections of the laws and constitutions promulgated by the emperors (the imperial edicta, rescripta, and decreta), and had not the extensive meaning of the word in its modern sense.
The following is an enumeration and description of the more celebrated codes, ancient and modern:
I. ANCIENT CODES.—(1) Codex Gregorianus et Hermogenianus.—These two collections of imperial constitutions (mainly of rescripta) were the first to receive the designation codex, and they supplied a model which was to a considerable extent followed in the subsequent codes of Theodosius and Justinian. They were both the work of private hands, although they were subsequently declared authoritative by a decree of Theodosius and Valentinian. The first of them is supposed to have been published about the end of the 3d century, and that of Hermogenianus a little later. Only fragments of each have been preserved.
(2) Codex Theodosianus, named after the Emperor Theodosius the Younger, during whose reign it was compiled. The original idea of Theodosius was to prepare a complete body of the law, collected from the writings of the jurists as well as the constitutions of the emperors, but his instructions to this effect were never carried out. The codex, as we have it, occupied three years in preparation, and was promulgated as law for the Eastern empire on 1st January 439, and a few days thereafter adopted and declared to be law for the Western empire by Valentinian III. This Codex Theodosianus has been in a great measure preserved. It consists of sixteen books, which are subdivided into titles, and a chronological order in the arrangement of the constitutions has been followed. All but the first five books (containing the purely private law) have come down to us. By means, however, of the so-called Breviarium Alaricianum—an abridgment in great part of this code made by the order of Alaric II., king of the Visigoths—it became possible to reproduce a considerable proportion of the earlier books. Palimpsest restorations have also during the 19th century brought to our knowledge a number of the genuine constitutiones which were not to be found in the breviary of Alaric. The best editions of this code are those of Jac. Gothofredus, with his celebrated commentary upon Books VI. to XVI., originally published in 1665, and Häuel, contributed to the Corpus Juris Rom. Antequstin. (Bonn, 1842).
(3) Codex Justinianus.—This, which is the most celebrated of the ancient codes, was named after the Emperor Justinian, in whose reign it was prepared. In the year 528 A.D. a commission of ten persons, with the famous Tribonian at their head, was appointed by Justinian to compile a code, incorporating in it the earlier codes of Gregorianus, Hermogenianus, and Theodosius, and also the various constitutions issued subsequent to these codes. The work was performed in fourteen months, and it was then declared that the new code should supersede the older compilation. A second edition of this work, revised and having a number of new enactments of Justinian himself incorporated, was promulgated in 534 under the name of the Codex repetitæ prælectionis. This is what has come down to us, and is now known as the Codex Justinianus, and forms part of the corpus juris. It consists of twelve books, each of which is divided into chapters.
(4) Romano-Barbarian Codes.—Several collections were made of the laws of the barbarians of western Europe after they had become free from the domination of Rome. To three of these collections the name of the Romano-Barbarian Codes is usually applied. They are (1) the Edictum Theodorici, compiled under Theodoric, king of the Ostrogoths, about the year 500, and consisting of 154 sections (unsystematically arranged), dealing with all departments of the law, its materials being derived mainly from the Gregorian, Hermogenian, and Theodosian Codes. (2) The Lex Romana Visigothorum, prepared under Alaric, king of the Visigoths, and published in the year 506. This collection was one of great importance, and during a considerable part of the middle ages was treated as the principal exponent of Roman law, thus exercising great influence upon the Gothic law of western Europe. It was compiled by commissioners, appointed by Alaric, who derived their materials in great part from the Theodosian Code and the institutes of Gaius. This codex is commonly described as the Breviarium Alaricianum. (3) The Lex Romana Burgundionum, also published about the beginning of the 6th century, under Gundobald, king of the Burgundians. It was compiled from much the same sources as the code of Alaric II.
II. MODERN CODES.—As already observed, the idea of a code in the modern sense—viz. as a complete statement of the whole law, or any particular department of it—was not realised by the ancients. The Roman Codex was in many respects more akin to what we call a consolidated statute than a proper code.
(1) Prussian Code.—The first of the modern codes (leaving out of view certain ordonnances of a general nature promulgated at an early date in France and some other countries, but which hardly deserve the appellation Code) was the celebrated Landrecht of Prussia—the Code Frédéric—published in 1751. This work was due to the genius of Frederick the Great, and was intended by him to firmly cement the union between the various parts of his kingdom. In the introductory plan (or projet), Frederick tells what induced him to undertake the work—viz. the great uncertainty in the law arising out of the want of uniformity in the customs and statutes prevailing in the different parts of his dominions, and the excessive and costly litigations due to this uncertainty. He makes, at the same time, a violent onslaught upon lawyers generally, and hopes that one immediate result of the code will be to restrict their number to the most moderate dimensions. Out of this Code Frédéric, the existing Allgemeines Landrecht of Prussia has grown.
(2) Code Napoléon.—This is the most celebrated of the modern codes. At the time of the great Revolution there was an endless variety of particular laws and customs (droit écrit et droit coutume) prevailing in the different parts of France, entailing great uncertainty and expense in the administration of justice, and preventing anything like true solidity and unity in the nation. Napoleon realised the necessity of the unification of the local laws by a code applicable to the whole country. No doubt, a good deal had been done towards unification by the preparation of an admirable act of ordonnances in the reigns of Louis XIV. and Louis XV., but they only went a small way in rectifying the evils. The Constitution of 1791 and Projet de Code Civil of Cambacérès (q.v.) partly anticipated the Code Napoléon, which, elaborated in four months by a commission comprising Tronchet and three others, was published and promulgated between 1804 and 1810. It consisted of five parts—viz. the 'Code Civil,' dealing with the main body of the private law; the 'Code de Procédure Civile;' the 'Code de Commerce,' dealing with the laws relating to commercial affairs; the 'Code d'Instruction Criminelle;' and, finally, the 'Code Pénal.' Each of these five parts was independent of the others, though prepared on the same system and governed by a uniformity of plan. In order to prevent absolutely an appeal in any case to the authority of the old laws and customs, it was expressly enacted that if cases should occur for which the code had made no provision, the judge should decide according to what he might consider to be good sense and equity or ancient custom—in this respect differing from the Prussian Landrecht, which requires that any questions unprovided for by it shall be referred by the judge to a legislative commission for decision. The Code Napoléon (or, as it has been re-christened under the Republic, the Code Civil) remains in force as the law of France at the present day, and despite many defects in its original construction—necessitating a large number of interpretative commentaries—it has, beyond doubt, proved a great boon to that country. Napoleon (though he had, of course, no share in the legal work performed by Cambacérès, Tronchet, Pothier, &c.) is said to have been prouder of it than of any of his victories. The best test of its excellence is that it has been (in whole or part) the model for a large number of continental codes; as, for example, those of Belgium, Italy, and Greece. So also in the Rhenish provinces, upon which it was originally imposed by force, it remains to this day the basis of legislation.
(3) German Codes.—Prior to the constitution of the present German empire in 1871, two important codes of the German commercial law had been prepared and adopted by the North German Confederation. These were the Wechsel-Ordnung, codifying the laws relating to bills of exchange, which was published in 1848, and the Allgemeines Handelsgezbuch, codifying the whole commercial law, exclusive of bills of exchange and bankruptcy, which was published in 1861. Since 1871 these two codes have been made applicable to the whole of the empire, and three other departments of the law have since been codified—viz. the law of bankruptcy (Konkurs-recht), the law of procedure, and the criminal law. A commission was charged with the enormous task of codifying the whole civil law of Germany, and from time to time groups of laws have been adapted for the empire.
(4) United States Codes.—In most of the states codification, either of the whole law or of particular branches of it, has been effected. At the same time it is noticeable that in one or two of the states the expediency of codifying the private law is still much controverted. This is particularly the case with the state of New York, where in 1857–65 a draft civil code was prepared (mainly by the distinguished jurist, Mr Dudley Field), but did not receive the sanction of the legislature. This draft civil code has, however, been adopted by California and Dakota. The penal code was adopted in 1882.
(5) British and Colonial Codes.—The only result in the way of codification achieved in the United Kingdom is in the department of the law which relates to bills of exchange (including promissory notes and cheques). By the Bills of Exchange Act, 1882, the statute and common law of the three kingdoms relating to this important department of mercantile jurisprudence was in great measure reduced to the form of a code. This enactment is, perhaps, not a complete code in the strict sense, seeing that it does not profess to entirely shut the door of the common law in questions affecting bills—decisions prior to the Act being still authoritative so far as they are not inconsistent with its express provisions. But in other respects it fulfils the proper requirements of a code. Having been drafted with much care and skill, it has, since it came into force, proved of great value and benefit to the mercantile community in the way of diminishing litigation and otherwise. Efforts have been and are now being made by law-reformers (prominent among them being Sir James F. Stephen) to have other branches of the law codified, and more particularly the law of evidence and the law of crimes, and criminal procedure. As regards British possessions it may just be observed that an excellent code exists in Canada, and that in India several branches of the law have been codified by the celebrated Anglo-Indian codes. The criminal code of India was drawn up in the year 1837 under the auspices of Lord Macaulay, though it was not promulgated till 1860.