The distinction between the technical excellence of a law and its expediency, or (in other words) between its form and its substance, is also important with refer ence to the question of codification, i.e. the making of a code of laws.
The making of a code of laws may in volve any one of the three following pro cesses :-1. The formation of a new sys tem or body of laws. 2. The digestion of written laws, issued at various times, and without regard to system. 3. The digestion of unwritten law, contained in judicial decisions and authoritative legal treatises. The ancient codes of law were for the most part works of new legisla tion; such were, for example, the codes of Solon and Draco, the Twelve Tables, the code of Diodes of Syracuse, and others. The codices of Theodosius and Justinian afford examples of the digestion of written law& [CONSTITUTIONS, Ro MAN.] The Digest or Pandects of Jus tinian afford an example of the digestion of unwritten law. The French codes were not digests of the existing law of France, either written or unwritten ; but they were in great measure founded on the existing law. The same may be said of the Prussian Landrecht. The statutes for consolidating various branches of the criminal law, the bankruptcy laws, the customs laws, the distillery laws, &c., are instances of the digestion of the written law of England. The Criminal Law Commissioners have furnished a specimen of a digest of the English common (or unwritten) law relating to theft. (First Report, 1835.) The digestion of existing law, whether written or unwritt en, re quires merely juristical ability ; the making of new laws requires, in addition to the knowledge and skill of the jurist, that ability which we have termed legis lative. In other words, the makin4 of new laws requires both attention to their utility or expediency, and technical skill in the composition or drawing of them Popular forms of government secure a tolerably careful examination of laws, with reference to their expediency ; but they do not secure attention to the tech nical or scientific department of legisla tion. Indeed nearly all the principal codes of laws have emanated from des potic governments, viz. the Roman, Prus
sian, Austrian, and French codes. The difficulty of passing an extensive measure through a popular legislature has, in free governments, discouraged attempts at systematic digestion of the law. The di gest of the law of real property in the state of New York however affords an example of such digest passed by a popu lar legislature.
The most convenient form for the com position of laws is a subject which has exercised many minds, but on which we cannot, consistently with the plan of this work, make more than a few remarks.
The inconveniences arising from too great prolixity or too great conciseness in the phraseology of laws are stated by Lord Bacon, in the 66th and 67th apho risms of his eighth book De Augmeutis. It' an attempt be made by an enumera tion of species, to avoid the obscurity which arises from the use of large gene ric terms, doubts are created as to the comprehensiveness of the law ; for, as Lord Bacon well observes, " Ut exceptio firmat vim legis in casibus non exceptis, its enumeratio infit mat eam in casibus nou enumeratis." (lb., aph. 17.) On the other hand, vague and extensive terms, if unexplained, are obscure and frequently ambiguous. The best mode of producing a law which shall at once be comprehensive, perspicuous, and pre cise, probably is, to draw the text of the law in abstract and concise language, and to illustrate the text with a commentary, in which the scope, grounds, and meaning of the several parts of the law are ex plained. A commentary such as we now speak of was suggested by Mr. Bentham (Traites de Legislation, tom. iii. p. 284; De la Codification, s. 4), and the penal code recently prepared for India has been drawn according to this plan. Doubts will arise in practice respecting the in terpretation of the most skilfully drawn laws ; and the best guide to the interpre tation of a law is an authentic declara tion, made or sanctioned by the legisla ture which enacted it., of its scope or pur pose. The want of such a commentary frequently causes the scope of a law to be unknown ; and hence the tribunals often hesitate about enforcing laws which may be beneficial. (Dig., lib. i. t. 3, fr.