The Sun.
London, England, 1867-11-30 00:00:00

THE DIGEST OF LAW.

The following is the first report of the Commis
sicqi

,46 To THE QUEEN'S MOST EXCELLENT MAJESTY.
" We, your Majesty's Commissioners appointed
to inquire into the expediency of a Digest of
Law, and the best means of accomplishing that ob-
ject., and of otherwise exhibiting in a compendious
and. accessible form the law as employed in judicial
decisions,' humbly submit to your Majesty this our
first report.
" 1. By the term law, as used in your Alajesty's
Commission, we understand the law of England,
coraynising the whole civil law, in whatever courts
administered, the criminal law, the law relating to
the constitution, jurisdiction, and procedure of
courts (including the law of evidence), and con-
stitutional law.
" In each of these divisions are comprised laws
derived from three distinct sources :
" 1. The first source is the common law, which
consists of customs and principles, handed down
from remote times, and accepted from age to age,
as furnishing rules of legal right.
" 2. The second source is the statute law, which
derives its authority from the Legislature.
" 3. The third source is the law embodied in,
and to a great extent created by, judicial decisions
and dicta. These, indeed, as far as they have rela-
tion to the common law and statute law, are not so
much a source of law as authoritative expositions of
it; but, with respect to doctrines of equity and rules
of procedure and evidence, they may often be re-
garded as an original source of law.
" That serious evils arise from the extent and
variety of the materials, from which the existing
law has to be ascertained, must be obvious from the
following considerations.
" The records of the common law are, in general,
destitute of method, and exhibit the law only in a
fragmentary form.
" The statute law is of great bulk. In the quarto
edition in ordinary use, known as Ruffhead's, with
its continuations, there are 45 volumes, although
(particularly in the earlier period) a large quantity
of matter is wholly omitted or given in au abbre-
viated form, as having ceased to be in force. The
contents of these volumes form one mass, without
any systematic arrangement, the acts being placed
in merely chronological order, according to the date
of enactment, in many cases the same Act contain-
ing provisions on heterogeneous subjects. A very
large portion of what now stands printed at length
has been repealed, or has expired, or otherwise
ceased to be in force. There is no thorough sever-
ance of effective from non-effective enactments, nor
does there exist in a complete form any authorita-
tive index, or other guide, by the aid of which they
may he distinguished. Much, too, contributes to
swell the Statute Book which is of a special or local
character, and cannot be regarded as belonging to
the general law of England.
" The judicial decisions and dicta are dispersed
through upwards of 1,300 volumes, comprising, as
we estimate, nearly 100,000 cases, exclusive of
about 150 volumes of Irish reports which deal to a
great extent with law common to England and Ire-
land. A large proportion :of these cases are of no
real value as sources or expositions of law at the pre-
sent day. Many of them are obsolete ; many have
been made useless by subsequent statutes, by amend-
ment of the law, repeal of the statutes on which the
cases were decided, or otherwise ; some have been
reversed on appeal, or overruled in principle; some
are inconsistent with or contradictory to others;
many are limited to particular facts or special states
of circumstances ftitnishing no general rule ; and
many do no more than put a meaning on mere sin-
gularities of expression in instruments (as wills,
agreements, or local acts of Parliament), or exhibit
the application, in particular instances, of established
rules of construction. A considerable number of the
cases are reported many times over, in different
publications, and there often exist (especially in
earlier times) partial reports of the same case at dif-
ferent stages, involving much repetition. But all thi:,
matter remains encumbering the books of reports.
The cases are not arranged on any system ; and
their number receives large yearly accessions, also
necessarily destitute of order; so that the volumes
constitute (to use the language of one of your Ma-
jesty's commissioners) 'what can hardly be des .;ribed,
but may be denominated a great cha)s of judicial
legislation.'*
" At present the practitioner, in order to form an
opinion on any point of law not of ordinary occur-
rence, is usually obliged to search out what rules of
the common law, what statutes, and what judicial
decisions bear upon the subject, and to endeavour
to ascertain their combined effect. If, as fre-
quentlyhappens, the cases are numerous, this process
is long and difficult; yet it must be performed by
each practitioner, for himself, when the question
arises, and in some cases, after an interval of time,
it may have even to be repeated by the same person.
Without treatises, which collect and comment on
the law relating to particular subjects, it is diffi-
cult to conceive how the work of the legal profession
and the administration of justice, which greatly de-
pends on it, could be carried on; but, however ex-
cellent such separate treatises may be, they do not
give the aid and guidance that wotild bo afforded
by a complete exposition of the law in a uniform
shape.

" A Digest, correctly framed, and revised from
time to time, would go far to remedy the evils we
have, pointed out. It would bring the mass of the
law within a moderate compass, and it would give
order and method to the constituent parts.
" For a Digest (in the sense iu which we under-
stand the term to be used in your Majesty's Com-
mission, and in which we use it in this report) would
be a condensed summary,' of the law as it exists,
arranged in a systematic order, under appropriate
titles and sub-divisions, and divided into distinct
propositions, which would be supported by refer-
ences to the sources of law whence they were seve-
rally derived, and might be illustrated by citations
of the principal instances in which the rjles stated
had been discussed or applied.
" Such a Digest would in our judgment be highly
beneficial.

" It would be of especial value in the making, the
administration, and the study of the law.
" When a necessity arises for legislation on any
subject one of the principal difficulties with which
those who are responsible for the framing of the
measures have to encounter is to ascertain what is
the existing law in all its bearings. The systematic
exposition in the Digest of the Law on the subject
would enable the members of the Legislature gene-
rally, and not merely those who belong to the legal
profession, to understand better the effect of the
legislation proposed. And there would be this fur-
ther benefit, that new la Ns when made would, on
periodical revisions of the Digest, find their proper
places in the •system, and would not have to be
sought for, as at present, in scattered enactments.
" The Digest would be of great use to every per-
son engaged in the administration of the law. All
those whose duties require them to decide legal
questions in circumstances in which they have not
access to large libraries or other ample sources of
information, would find in the Digest a ready and
certain guide. Counsel advising would be spared
much pains in searching for the law in indexes, re-
ports, and textbooks ; and judges would be greatly
assisted as well in hearing cases as in preparing
judgments.
" The Digest would be most advantageous in the
study of the law, for it would put forth legal prin-
ciples in a form in which they would be readily
appreciated, contrasted, and committed to mind,
and thus substitute the study of a system for the
desultory contemplation of special subjects.
" It is not unreasonable to expect that this con-
densation and methodical arrangement of legal prin-
ciples would have a salutary effect upon the law it-
self. It would give the ready means of considering,
in connection with one another, branches of the law
which involve similar principles, though their sub-
ject matters may widely differ. It would thus bring
to light analogies and differences, and, by inducing
a more constant reference to general principles, in
have a tendency to beget place of isolated decisions,

* Speech of the Lord Lord Chancellor (Lord Westbury)
on the Revision of the Law, House of Lords, 12th of June,
1863. Qtovon,s and Norton. Page 8.