HISTORY OF COMMON LAW 335 



Customary law, even though it may come to be embodied in a 

 code, has no quality of permanence until it has become the law of 

 the land. That of the Jews has shown that if once attached to a 

 land, it may survive a separation from it. But the customs and codes 

 of the dark ages, binding only a part of the persons occupying the 

 soil, were in their nature temporary and evanescent, fit only for the 

 migratory hordes to which they appertained. 



Each particular land must have its own peculiar law, made by and 

 for its own peculiar people, and when it takes on written shape it 

 must reflect the genius of this people, or it will quickly perish from 

 the earth. In the words of one of the leaders of the American Bar, 

 "the work of declaring or making law, whether committed to the 

 hands of a judge, a legislature, or a codifier, is substantially the 

 same. It is the task of applying the national standard or ideal of 

 justice to human affairs." * 



The denial of this was one of the great defects of Bentham's 

 philosophy of legislation. He belonged to a race which had little 

 faith in large generalizations as to what is for the good of organized 

 society, and was content to settle each question as it might arise, 

 crossing no bridges until it came to them. He did not share in the 

 prevailing convictions of his own countrymen. Of those of Americans 

 he knew still less. Yet he was insensible to the folly of his formal 

 offer to the President of the United States to draw up a complete 

 code of laws for the United States and also for the several states, 

 including, as he wrote, " a succedaneum to the mass of foreign law, 

 the yoke of which in the wordless as well as boundless and shape- 

 less shape of common, alias unwritten law, remains still about your 

 necks." 2 



A country may or may not find it expedient to ordain or to ask 

 for a written constitution of political government. Social conditions 

 may render it inexpedient. Long usage may supply its place. 



But so far as concerns government in the daily affairs of private 

 life and the administration of justice between man and man in their 

 relations to each other, a written code will everywhere, in time, sup- 

 plant the common law on certain, and these the greatest, subjects, 

 as the first evidence to which to appeal in any controversy as to the 

 rule of conduct which the state may have prescribed. This will not be 

 because the code has replaced the common law. It will be because 

 it has expressed the common law. Its proper work is to arrange 

 rather than to change, and where there have been local differences, 

 to choose between them and take the ground approved by the 

 majority of the people. To do more than this, in any matter of sub- 

 stance, is to do too much. It is to disregard the inevitable rule that 



1 James C. Carter, The Proposed Codification of our Common Law, 40. 



2 Bentham, Papers relative to Codification, etc., 1. 



