Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/528

 614 IV. THE NINETEENTH CENTURY " and not somebody else. . . . Englishmen after all are " Englishmen." ^ This is equally true of the American people. And both Englishmen and Americans want their own laws, and not those of some other people. It would be as impossible radi- cally to change their legal systems as to change the nature of the people. The materials for such a code already exist. A period of development is at some time reached in the legal history of every people when it is necessary to restate and reconstruct their laws. It seems to me that we have reached that period. Our materials for such restatement and reconstruction, which we may, if you please, call a code, are ample. They surpass in extent, in abundance, in variety, in richness, and above all, in adaptation to our wants, any supply that can come from foreign sources. ^ What Sir Henry Maine aptly calls " tacit codification '* is a process which is in constant operation, through the la- bors of judges and text-writers. In this work elementary writers of learning and experience take an important part. In the scattered condition of our case-law their works are indispensable. When judges and text-writers deduce from the cases a principle and formulate it, and that formula is stamped with authority, either by long usage or judicial sanction, so that the courts do not go behind it to the cases from which it was deduced, there you have to this extent codification. This " stereotyping, as it were, of certain " legal rules, is," says Maine, " at this moment proceeding " with unusual rapidity, and is indeed one of the chief agen- What is needed is the constructive genius and practical wisdom that can take these truly rich, invaluable, native but scattered materials, — using with a wise and generous eclecticism foreign materials only when the native do not • See ante Lecture VI., p. 174; I/Ccture X. •Village Communities" (Am. Ed.), pp. 368, 369. The subject of text-books as one of the literary authorities of our law, their office and use, the functions of text-book writers, and the nature of text-book law, I have seen nowhere so fully or well presented as in Professor Clarke's " Practical Jurisprudence," part ii., chaps, vii.-xii., inclusive.
 * cies which save us from being altogether overwhelmed by
 * the enormous growth of our case-law." ^
 * Preface to lecture, " Chief Periods of European History."