Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/527

 15. DILLON: INFLUENCE OF BENT HAM 513 " chaos tempered by Fisher's Digest." The American por- tion already exceeds in size and complexity the English por- tion, and as we attempt to survey it we are reminded of the dread and illimitable region described by Milton, where ..." Chaos umpire sits, And by decision more embroils the fray By which he reigns." I do not believe that it is practicable to codify it all, in the sense that the resulting code shall supersede for all pur- poses the law reports; but on many subjects, and to a very large extent in respect of all, codification is practicable, and so far as it is practicable, it is, if well done, desirable. Mark the qualification, if well done, not otherwise. Any code that is made, whatever may be its scope, must be based upon the fundamental principle that the existing body of our law as it has been developed in the workings of our institutions and tested by our experience is in substance the law that is best fitted to our condition and wants; for all true law has its root in the life, spirit, ideas, usages, in- stincts, and institutions of the people. It springs from within ; it is not something alien to the people, to be imposed on them from without. If a metaphor will not mislead, true law is a native, independent, natural growth, and not an exotic. Bentham did not deny this in principle, but he was too much inclined to look at laws logically rather than his- torically. It follows that a code must not be one imitated from or servilely fashioned after Roman or foreign models. On this subject Bentham had correct notions. His bold, original mind and his self-sufficient powers saw as little to admire in the Roman as in the English law.j I repeat it as my judgment that our code must not pre-suppose that the Roman law as it anciently existed, or as it exists in the mod- em adaptations of it in the States of Continental Europe, is superior in matter, substance, or value, to the native, natural, indigenous product. It must assume precisely the contrary. Freeman puts a general truth epigrammatically when he says " that we, the English people, are ourselves