Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/525

 15. DILLON: INFLUENCE OF BENTHAM 511 to reform it. But let me not be misunderstood. While the philosophic student is able to point out defects in the laws, yet the history of the law shows that only practical lawyers are capable of satisfactorily executing the work of reform. Bentham's failure in directly realizing greater practical re- sults grew out of his mistaken notion that the work of actual amendment could be accomplished without experts, — that is, without the aid of the bar and without its active support. The last matter to which I shall refer is that to which Bentham gave the name by which it is now universally known, — codification. With a view to ascertain with exactness Bentham's views, I have recently gone over anew his writings relating to this subject. Very different ideas in our day are, as I have here- tofore said, attached to what is meant or implied by a code, and much of the dispute concerning codification is after all one over words, or one arising from the want of a previous definition of the subject-matter of the disputation.^ What Bentham meant by codification, however, is plain enough. He meant that a code should embrace all general legislation, not simply as it exists, but as it ought to be amended and made to exist, — that is, all legislation except local and special statutes ; that It also should embody all the prin- ciples of the common law which It were expedient to adopt, — these to be expressed in words by legislative enactment, the gaps or lacunce to be filled up In like manner by the legis- lature ; the whole to be systematically arranged, so that all possible cases would be expressly provided for by written rules ; that the function of the courts to make " judge-made law " as he Is fond of stigmatizing it, should cease, and that thereafter all changes or additions to this complete and au- thoritative body of law should be made by the law-making body, and by it alone. I must say that in my judgment this in its full extent is not only an impracticable scheme, but one founded in part upon wrong principles. In a refined and complex civiliza- tion no legislative foresight, no finate intelligence, can antic- iSee ante Lecture VI., p. 180.