Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/526

 512 IV. THE NINETEENTH CENTURY ipate, define, catalogue, and formulate in advance rules ap- plicable to the infinite number and the infinite variety of cases that will inevitably arise. This view of a code also exaggerates, or, to use Bentham's language, maximizes, the evils of case-law, and underrates or minimizes its advantages. It overlooks the fact that case-law is a permanent necessity. The judicial office will, at all times, under any possible code, have to deal with and determine questions and cases not pos- sible to be provided for by any express statutory provision.^ A well-constructed code may, and doubtless will, lessen the number of such questions and cases ; but no code can do more. The rest must be left to the courts. M. Portalis, in a well-known paper relating to the French Civil Code, ex- presses this truth with clearness and force. " It is to juris- " prudence [using the term in distinction from statute or " positive law] that the legislator must abandon those rare " of a rational legislation ; the variable, unaccountable de- " islator, and all of those objects which it would be in vain " to attempt to foresee, and dangerous prematurely to « define." We have now, and for centuries have had, two wholly in- dependent manufactories, so to speak, of law, — the legis- lature professedly making statute law, the courts silently making case-law; and this without any unity of conception, plan, or action. Statutes are piled upon statutes, and the law reports of Great Britain and America may be roundly put at eight thousand volumes, and are constantly multiply- ing. ^ This colossal body of case-law is wholly unorganized and even unarranged, except so far as digests and elemen- tary treatises may be considered as an arrangement, which scientifically viewed they are not. The infinite details of this mountainous mass in its existing shape — bear me witness, ye who hear me ! — no industry can master and no memory retain. The English portion of it has been aptly likened to iSee ante Lecture X., p 268; Dillon, Munic. Corp. (4th ed.), vol. ii., § 934, a; Amos, " Science of Law," chap. v. 2 See ante Lectures VIII., IX., X., passim.
 * ' and extraordinary cases which cannot enter into the scheme
 * tails which ought never to occupy the attention of the leg-