WASTEL.
CODE (Lat. Codex, the stock or stem of a tree—originally the board covered with wax, on which the ancients originally wrote). A body of law established by the legislative authority of the state, and designed to reg ulate completely, so far as a statute may, the subject to which it relates.
From the rude beginning, expressed in the derivation of the word, there developed the somewhat diversified signification which it has acquired in jurisprudence. It has been used to describe a collection of into laws arranged and classified into a logical system, or one intended to be such, without the interpolation of new matter, and also a declaration of the law composed partly of such materials as might be at hand from all sources,—statutes, adjudications, customs,— supplemented by such amendments, altera tions, and additions as seemed to the law givers to be required to constitute a com plete system and adapt it to the purpose of its adoption, or promulgation.
This mixed character, it may probably be asserted with confidence, is essential to the existence of a code as the term is now un derstood, and has entered more or less into the composition of every body of laws known as such in history.
The idea of a code involves that of the exercise of the legislative power in its pro mulgation ; but the name has been loosely applied also to private compilations of stat utes.
The subject of codee and the kindred topics of legal reform have received great attention from the jurists and statesmen of the present century. Probably no subject in the domain of law has been the occasion of more extended and earnest discus sion than the relative merits of the Code system as it is understood by jurists, and that which is con sidered and treated on both sides of the controversy as its antithesis, a body of law partly written and partly unwritten, finding its beginnings in customs gradually ripening into customary law ; seeking later expression in statutes and passing through a period of judicial interpretation and modification by being fitted, as it were, into successive cases, with sufficiently varying facts to produce that flex ibility which is needed for final crystallization Into a body of rules and principles sufficiently well set tled as to have attained the dignity of a well order ed system. Of the one the Roman Law is the illus
tration unrivalled in history, as Is the English Com mon Law of the other. While, however, these do represent two distinct and well defined systems of the development of law, the thoughtful and impar tial reader of what is written by the ardent advo cates of each, assuming as many of them do that the adoption of the one is the exclusion of the oth er, may find himself inclining to the conclusion that in dealing with this as with most juridical ques tions, an entirely one-sided view will leave much to be desired. It may be permissible to question whether these two systems are, essentially distinct and antagonistic types, or different methods employ ed in and essential to the evolution of municipal law as a whole, and of the science of jurisprudence in its widest sense. It is true that there are record ed in history proposals to form a code of laws de novo having relation only to the future and disre garding the past, but this has been properly regard ed as the visionary dream of the enthusiast rather than the matured conclusion of a judicious law giver. It is hardly to be questioned that no code has ever taken its place as an instrument of legal administration into which there did not enter as a substantial constituent a body of existing common law, and that every body of unwritten.law on a giv en subject is tending towards ultimately finding its expression In what is tantamount to a code, wheth ed called by that name or not. Indeed, if dry tech nicalities of definition be avoided, it is hardly an exaggeration to say that there are single decisions of English or American judges, such, for example, as Coggs v. Bernard, which may not be inaptly termed a code or codification of the law on the sub ject to which they relate, and which come to be rec ognized as such with authority which could hardly be increased by legislative affirmation. The diffi culty of making a hard and fast line between the two systems is quite well shown by all the attempts to define precisely the word code. A judicious writ er, after a review of the historical codes, concludes that substantially they are of three kinds; and his classification is not only satisfactory in itself but admirably illustrates what has been said.