New digests of laws

LIX. But if laws heaped upon laws shall swell to such a vast bulk, and labor under such confusion as renders it expedient to treat them anew, and reduce them into one sound and serviceable corps, it becomes a work of the utmost importance, deserving to be deemed heroical, and let the authors of it be ranked among legislators, and the restorers of states and empires.

LX. Such an expurgation and new digest of laws is to be effected by five particulars; viz., 1. By omitting all the obsolete laws, which Justinian calls ancient fables; 2. By receiving the most approved contradictories, and abolishing the rest; 3. By expunging laws of the same purport, and retaining only one, or the most perfect; 4. By throwing out such laws as determine nothing—only propose questions, and leave them undecided; 5. And lastly, by contracting and abridging those that are too verbose and prolix.

LXI. And it would be very useful in such a new digest, separately to range and bring together all those laws received for common law which have a kind of immemorial origin, and on the other side the statutes superadded from time to time; because in numerous particulars in the practice of the law, the interpretation and administration of the common law differs from the statute law. And this method was observed by Trebonianus in his digest and code.

LXII. But in such a second birth of the law, and such a recompilement of the ancient books and laws, the very words and text of the law itself should be retained; and though it were necessary to collect them by fragments and small portions, they may afterward be regularly wove together. For allowing it might perhaps be more commodious, and, with regard to the true reason of the thing, better, to do it by a new text than by such kind of patchwork, yet in the law, style and description are not so much to be regarded as authority, and its patron antiquity; otherwise this might rather seem a work of mere scholarship and method than a corps of majestic laws.

LXIII. ’Twere advisable, in making this new digest, not utterly to abolish the ancient volumes, and give them up to oblivion, but suffer them at least to remain in some library, though with a prohibition of their common use; because in weighty cases it might be proper to consult and inspect the revolutions and series of ancient laws. ’Tis also a solemn thing to intermix antiquity with things present. And such a new body of laws ought to receive the sanction of all those who have any legislative power in the state, lest under a pretence of digesting the old laws new ones should be secretly obtruded.

LXIV. ’Twere to be wished that such a recompilement of the laws might be undertaken in such times as excel the ancient (whose acts and works they model anew) in point of learning and universal knowledge; the contrary whereof happened in the work of Justinian. For ’tis an unfortunate thing to have the works of the ancients mangled, and set together again at the discretion and choice of a less prudent and less learned age. But it often happens that what is necessary is not best.