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ENTERED, according to Act of Congress, in the year 1859, by D. APPLETON AND COMPANY, in the Clerk's Office of the District Court of the United States for the Southern District of New York.

ENTERED, according to Act of Congress, in the year 1874, by D. APPLETON AND COMPANY, in the Office of the Librarian of Congress, at Washington.

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Among the Contributors of New Articles to the Fifth Volume of the Revised "Edition are the following:


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CODE (Lat. codex, manuscript, originally des- that the unsupported hypothesis has been sub

ignating 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 course, so far as we have historic rec


ords; and it is only when these are deficient

stituted 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 gerusia or council of elders, the

assembly of the people, even the ephors, with

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 ma

less authority than they afterward acquired— | and the commentaries of Roman writers, was all these existed before the legislation of Lycurgus; 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 archonship, 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 proceed-gistrates should be compelled to conform thereing. 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 after 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

to (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 majorum), 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 prætors (jus æquum), the opinions and writings of jurists (auctoritus prudentum), the rescripts of the imperial court, and the decisions of cases (sententiæ receptæ), were the voluminous exponents of the Roman common law, founded not upon legislative enactments (leges), but upon custom (mores). The edicts of the prætors, in which it was allowed annually to incorporate new applications of the jus æquum, 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 prætor. 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 legis

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