Page:The American Cyclopædia (1879) Volume V.djvu/9

 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 despotical 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 gentsia or council of elders, the assembly of the people, even the ephors, with