Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/579

 17. BEALE: JURISPRUDENCE 565 were in consonance with the individualistic feelings of the times. Bentham urged codification on England for the same reason : " That which we have need of (need we say it?) is a body of law, from the respective parts of which we may each of us, by reading them or hearing them read, learn, and on each occasion know, what are his rights, and what his duties." The code, in his plan, was to make every man his own lawyer, and the spirit of individualism could go no further than that. Conservative England would not take the step r{ which Bentham urged, but a code prepared by one of his disciples upon his principles was finally adopted (by belated action) in Dakota and California, and was acclaimed as doing away with the science of law and the need of lawyers. The result of the adoption of the French Codes and the Benthamite Codes has been far from what was hoped and expected. They were to make the law certain and thus diminish litigation and avoid judge-made law. That litiga- tion has not been diminished by codification can easily be shown by comparing the number of reported cases in the states which have adopted the codes, and in states which have not adopted them. As a result of this comparison, we find that France has over fifteen volumes a year of reports of decisions on points of law, four of them containing over 2500 cases each; England has about ten volumes a year of reports of decisions on points of law, containing in all about 900 cases. California has from three to four volumes of reports of decisions on points of law each year ; 100 since the adoption of the code in 1871 ; Massachusetts has two to three volumes of reports of decisions on points of law, 76 in all during the same period. As bearing on the avoid- ance of judge-made law, which Bentham, by a curious igno- rance one is perhaps not quite justified in calling insane, re- garded as inferior to legislature-made law, the result of the codes in one or two points will be instructive. The French Code provided that all actions ex delicto should be decided by the court as questions of fact, without appeal for error of law. Notwithstanding this provision, recourse has been had