I NAPOLEON AND HIS CODE 119 Models and Sources ^^ The idea of a civil code, i. e., one devoted exclusively to private, substantive law seems to have originated here. Certainly the Roman prototypes furnished no model. The nearest approach to one was probably the Institutes of Justinian with its four books, the first three of which treated respectively of Persons, Property and Obligations — the Gaian ^' order followed in the main by the French draftsmen. But the fourth book of the Institutes treated of actions, which the French now relegated to a separate code, , that of Procedure Civile. Similarly the other special codes eventually evolved in France — Penal, Commercial, and Criminal Procedure (Instruction Criminelle) — were all departures from Roman pro- totypes. Justinian's Code, indeed, contained more public and criminal law than did the Digest, but neither was devoted exclu- sively to any particular branch, and no clear distinction was made between remedial and substantive law. But if the scope and arrangement of the draft code were original its contents were not. Even the finished instrument contained little new law, and that seems to have been largely added by Na- poleon himself. The original draft, as it came from the hands of the Commission, was mainly a purged reproduction in codified form of the existing French law. "Little is known of the special training through which the true authors of this work had passed; but in the form which it ultimately assumed, when published as the Code Napoleon, it may be described, without great inaccuracy, as a compendium of the rules of Roman law then practised in France, cleared of all feudal admixtiu-e — such rules, however, being in all cases taken with the extensions given to them, and the interpretations put upon them by one or two eminent French jurists, and particularly by Pothier." ^^ Commentators. — The last-named author's Traite des Obliga- tions had appeared in 1761, about a generation before these draftsmen began their work, and one writer goes so far as to say " On this topic see generally Dtifour, Code civil avec les soltrces ou toutes SES DISPOSITIONS ONT 6t£ PUISNES (Paris, 1806), four volumes ; Dard, Conference Du Code civil avec les lois anciennes, 4 ed., 1827. 1^ "It is, mutatis mutandis, practically the same division as that of Blackstone's Commentaries." Esmein, 6 Encyclopaedia Britannica, ii ed., 634, 635. " Maine, Village Communities, 7 ed., 356-58.
