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He, therefore, upholds the opinion of the majority of the Commissioners upon this point, as against that of Mr. Justice Willes. Mr. Fisher contends with great force that the compilation of a Digest will give opportunity and time for the acquisition of experience ; that upon the publication of the Digest, errors and imperfections in the work will be detected and removed with comparative ease. The more serious defects and contradictions in our law will then be clearly seen, and may be corrected by the Legislature, the jarring systems of Law and Equity fused, and all things prepared for the introduction of a perfect exposition of the law. The construction of a Code will then be a matter of comparative ease, for not only will the completed Digest serve as the foundation of the Code, but its very language will in most cases be transferred directly into the pages of the Code. At the same time all imperfections which may have been detected in the Digest will be carefully avoided. Not only will the Code, under such circumstances, be constructed with ease, there will also be all reasonable certainty that the work will be well done, and that the Code, when it at length appears, will be a good one. If, on the other hand, an attempt be made to construct a Code directly without the intervention of a Digest, Mr. Fisher obviously fears that the work may be characterised by serious imperfections. The latter was the course adopted in the case of the (so-called) Codes of New York. Upon these we have lately commented (see our previous numbers for August and November, 1869, and for May, 1870), and we observe, with some satisfaction, that Mr. Fisher's estimate of their value agrees with our
He, like ourselves, is compelled to regard them rather as wrecks to be avoided, than as examples to be imitated.
In the opening pages of his letter, Mr. Fisher is confronted by the question-what is meant by the terms “Code" and “Digest ?" We ourselves have often been met by the same difficulty, and could verily wish that the respective
terms were defined by Act of Parliament, or in some other authoritative manner, for by no other means can we venture to hope for the removal of the ambiguity which now besets them. Mr. Fisher is too cautious-perhaps too wise—to attempt a definition of the terms. He gives, however, an explanation of the sense in which he himself uses them; and this explanation is worth attention, inasmuch as it shows that the Digest which Mr. Fisher contemplates is something very different from that which many persons understand to be meant by the term. Mr. Fisher first adverts to the ordinary conception of a Digest and
s bodies of law which depend respectively upon external and internal authority.” This idea he notices only in order to repudiate it. A Digest, in his conception of the term, is none the less a Digest because it is authoritative. Indeed, he afterwards proposes that the future Digest of the English law shall itself receive a legislative sanction. He next proceeds to repudiate the idea that a Code is any the less a Code because it is drawn from previously existing law. “A Code, like a Digest,” says Mr. Fisher, p. 4, "is a condensed body of law; and if, like a Digest, it be also a condensed summary of existing law, it is not the less a Code, although, as in the case of Justinian's Code, it may be supported by references, and illustrated by citations." The true distinction between the terms lies in their respective origin. “Although the word Code may properly be applied to any body of condensed law, the use of the word Digest is more limited. A Code may be the mere creation of its framer, or may be made by collecting, arranging, and condensing laws which already existed; but a Digest that is, a pure and simple Digest-can be made in the latter way only.”
The Code contemplated by Mr. Justice Willes is presumed to be “a Code which shall be not merely a concise summary of the English law as it exists” (this would be a Digest), “but which, being purged from all conflicts and inaccuracies,
including the conflicts of Law and Equity, and enriched with such improvements from foreign laws and other sources as the wisdom and experience of its framers may devise, shall form a body of law thoroughly adapted to the habits and transactions of the English people, and as perfect as skill and learning can make it." Mr. Fisher, like Mr. Justice Willes, looks forward to the construction of such a Code as the ultimate end to be reached, but he desires,
we have already seen, to proceed by steps, and to complete a Digest before directly commencing a Code.
Mr. Fisher proceeds to contend that the contemplated Digest should not be confined to a statement of the principal propositions of law, but should also contain the minor rules by which those propositions are explained ; in fact, that it should constitute a complete'exposition of the whole of the existing law. In this recommendation we entirely concur. Anything short of this would be a skeleton, useless to the practitioner, and calculated rather to mislead than to guide the layman. Mr. Fisher is most anxious to combat the objection that a Digest composed upon these principles would necessarily swell to an unwieldy size. He entreats us to remember that compression, if carried beyond its due limits, will deprive the work of all practical value; and labours, by a variety of calculations, to show that the size of such a work would certainly not exceed twelve octavo volumes, and might probably be comprised within nine or ten. We see no reason to question the correctness of the calculation; but why this extreme anxiety about smallness of size ? By all means let us reject everything which is redundant or superfluous. But when these are omitted, why labour for the reduction of the residue? A Digest is designed to be a complete exposition and representation of the law. If it is less than this, it falls short of the first end of its existence. If then the existing law does not admit of complete exposition and representation, except at considerable length, it may be a misfortune, but it is one to which we must submit, as
we do to a long drought. To secure brevity at the expense of utility would be an act of madness. Brevity is of no importance, except as it tends to perspicuity and accessibility,” says Mr. Austin (Vol. III., p. 292), and we commend his words to the attention of those legal reformers with whom Mr. Fisher contends, and who seem to think that the first of all qualifications in a Code is, that it should be short. They might as well say, that the first of all qualifications in a map is, that it should be small.
Finally, Mr. Fisher considers the question of the authentication of the Digest when completed. Upon this point he proposes that the sanction of the Legislature should be conferred upon the Digest, and that it should become substantive law. This is Mr. Fisher's plan. Mr. Justice Willes, on the other
, hand, wishes to draw up a Code at once, omitting any intermediate stage. This course would save some trouble, and (possibly) some time. It is the bolder, but at the same time the more hazardous, step. We may point out one objection to immediate codification, which is not mentioned by Mr. Fisher. According to Mr. Fisher's scheme, the various organic changes in the law, which are contemplated by all, and of which the fusion of Law and Equity is the chief, will be made gradually, and one by one. They will also be kept distinct from the introduction of the authoritative) Digest,
a step which must necessarily constitute in itself a sweeping innovation. According to the plan of Mr. Justice Willes, all these changes, organic as well as formal, will be made simultaneously by the enactment of a Code-they must be swallowed in one huge gulp. It may be doubted whether the Parliamentary gullet is sufficient for the effort. It would be painful to see the Code, when at last complete, lying unheeded for years on the table of the Legislature-a fate which has already befallen the kindred Codes of New York.
But, perhaps, the most interesting portion of Mr. Fisher's letter is the Appendix. This contains a specimen of the Digest contemplated by Mr. Fisher. We imagine that we are not wrong in supposing that the extract in question is drawn from the completed portion of the specimen Digest, prepared by Mr. Fisher himself under the auspices of the Digest Commission. It possesses, therefore, especial interest as a sample of the work in hand. As such we hail it as of happy augury. It strikes us as a most skilful and masterly production-one of the best pieces of work of the kind that we have seen, whether of home or foreign manufacture.
Our readers will naturally desire to judge for themselves upon this point; and we cannot conclude our remarks better than by extracting the first few sections of the Appendix in question.
Nature of Lien.-122. A lien is an obligation which, by implication of law, and not by contract, binds real or personal estate for the discharge of a debt or engagement; but does not pass the property in the subject of the lien. Contract excludes Lien.-An express contract for a lien
excludes such a lien as, but for the contract, might
have arisen by force of law, 64. 123. Liens are possessory or non-possessory.
Subdivision 1.-Possessory Liens. Nature of Possessory Lien.—124. Possessory liens bind personal chattels of the debtor by virtue of, and during the possession thereof by the creditor ; without which, subject to the qualification in Article 137, they are not valid either at Law or in Equity.
Effect of Lien upon Money.—The possessory lien upon
money, as distinguished from the lien upon other personal chattels, is divisible, and only extends to so much of it as equals the amount of the debt due to the holder,