§ THE MARQUESS OF NORMANBY
* My Lords, I rise for the purpose of laying on the table of the House a Bill for the revision and expurgation of the Statute Law, from the earliest commencement of our recorded legislation down to the beginning of the eighteeenth century; the legislation, in fact, of about 500 years. Before I explain the provisions of my Bill, I would ask your Lordships to favour me with your patient and indulgent attention, while I offer some observations on the present state and condition of the Statute and Common Law. I will endeavour to speak in plain and simple language, avoiding the ordinary reproach of the lawyer that his words are taken from the vocabulary of his art. I solicit the attention of all your Lordships, as statesmen rather than as lawyers, because I feel convinced that the amendment of the law has suffered greatly from the circumstance of its being generally supposed that the subject belongs to lawyers exclusively. A great philosopher, who was also a great lawyer, has said:—"Jurisconsulti tanquam e vinculis sermo-cinantur." Lawyers, when speaking of legislation, discourse in chains and shackles; and what are they? They are the professional prejudices, the narrow horizon within which their views are bounded, and their blunted sensibility to evils with which they have been long familiar. But the same great author, Lord Bacon, treating of the 776 knowledge and handling of these subjects, says:—Certe cognitio ista ad viros civiles propria spectat,"—adding, in language which I am happy to say is applicable to many of your Lordships, "qui optime norunt quid ferat societas humana, quid salus populi, quid æquitas naturalis, quid gentium mores, quid rerumpublicarum formæ diversæ, ideoque possint de legibus ex principiis et præceptis tarn æquitatis naturalis quam politices decernere.Your Lordships are aware that the law of England is commonly divided into the written and unwritten law. The written is the Statute Law, and the Common Law is described as the unwritten law of the land.
The Statute Law is in a great measure supplemental to the Common Law, and a knowledge of the Common is necessary in order to enable a man to read and understand the Statute Law. The Common Law is traditionary—it is supposed to reside in the breasts of the Judges; and, accordingly, when it is necessary to ascertain it in this House, your Lordships require the attendance of the Judges, who are called upon to declare what that law is. In like manner, in the great court of equity to which belongs that large portion of natural justice which is ignored by the Common Law Courts, the Lord Chancellor originally had the power of determining what should constitute the rule of equity. This is, undoubtedly, a dangerous and a difficult trust. It is little less than legislative power, because the sources of the decision are of the most varied and uncertain description. Of the Common Law, much, no doubt, consisted originally of customs and usages, recorded only in the memories of men; much, of rules embodied in acts of the Great Council, of which no record now exists; much was derived from the civil law, relics of the old Roman jurisprudence, which remained so long throughout the land; and much was deduced from general maxims and principles handed down from one generation of lawyers to another. Thus the sources of the Common Law were in ancient times of the most indefinite character, and the power or liberty of judicial decision was equally unlimited. In the old time it was impossible to know what the law was until it was declared. The Judges were not only legislators, but the worst of legislators—legislators ex post facto.
Consequently, at an early period, it was deemed necessary, for the protection of liberty, and in order to get some kind of 777 approach to uniformity, constancy, and regularity in the law, that the grounds and reasons of the Judges' decisions should be given. At first an attempt was made to do so by entering the reasons for the judgments in the rolls of the court; and our Court Rolls, preserved from the time of Richard I., contain repeatedly the reasons for the decisions and sentences In the reign of Edward I. the practice of reporting the decisions of the Judges began, and from that period we have a series of judicial reports of those decisions. That was a great security, because it was an approach to certainty in the law. It introduced the practice of appealing to former decisions as authority for the determination of similar cases, and thus originated that distinctive peculiarity of the English mind—the love of precedent, a love of appealing to the authority of past examples rather than of indulging in abstract reasoning. This was the only mode in which the Common Law was recorded, and the only mode in which it became known. These reports were kept for a considerable period of time under the superintendence of the judges themselves, and great care was taken in sifting and ascertaining the proper grounds of decision. The evil was therefore comparatively little; but in course of time, as the Reports multiplied, and as the personal superintendence and care of the judges were withdrawn, there being no provision for revising and digesting the Reports from time to time, great complaints began to arise; and so much inconvenience was felt, that as early as the time of Lord Bacon it became a subject of general dissatisfaction, and led to his publishing his celebrated proposal for the compiling and amendment of the law of England. I must admit—and perhaps in stating this I shall best recommend myself to your Lordships—that what I propose will do little, if anything, more than revive the proposal of that great man. The wisdom and excellence of that proposal have been admitted from age to age; and the fact that nothing has been done to give effect to it we must attribute to the singular inertia that characterizes the English Legislature. Lord Bacon himself says—The common law of England is no text law, but the substance of it consisteth in the series and succession of judicial acts, which from time to time have been set down in the Reports; so that as these Reports are more or less perfect, the law itself is more or less certain, and indeed better or worse; whereupon a conclusion may be made, that 778 it is hardly possible to confer upon this kingdom a greater benefit than that these books should be purged and revised, whereby they may be reduced to fewer volumes and clearer Resolutions.In the time of Lord Bacon these Reports extended to, at the utmost, fifty or sixty volumes. During the 250 years that have passed since then nothing has been done in the way of revision or expurgation; but these fifty or sixty volumes have grown to between 1,100 and 1,200 volumes. Nay more, at this time there are at least forty or fifty distinct sets of Reports pouring their streams into the immense reservoir of law, and creating what can hardly be described, but may be denominated a great chaos of judicial legislation. The evil arising from this is manifest. As it existed in his time, it was described by King James I. in two speeches in 1607 and 1609, which to some extent may warrant his claim to the title of a wise king. Speaking at Whitehall in March 1607, he said—Where there is a varietie and uncertaintie, although a just judge may do rightly, yet an ill judge may take advantage to do wrong, and then are all honest men that succeed him tied in a manner to his unjust and partial conclusions. Wherefore leave not the law to the pleasure of the judge. It were less hurt that all the approved cases were set down and allowed by Parliament for standing laws in all time to come.'And again, in 1609, he refers to the subject in these words—Though it be true that no text of law can be so certain, wherein the circumstances will not make a variation in the case, &c. yet could I wish that some more certainty were set down in this case by Parliament, for since the very reports themselves are not always so binding but that divers times Judges do disclaim them, and recede from the judgment of their predecessors, it were good that upon a mature deliberation the exposition of the law were set down by Act of Parliament, and such reports therein confirmed as were thought fit to serve for law in all times hereafter, and so the people should not depend upon the bare opinions of judges and uncertain reports.Now, if that difficulty was felt then, and I think justly felt, your Lordships will at once understand how infinitely greater are the difficulty and the evil existing at the present time. The Reports are published without any judicial control or sanction, nor is there any provision to secure correctness or security against error; but as soon as a Report is published of any case, with the name of a banister annexed to it, the Report is accredited, and may be cited as an authority before any tribunal. The evil resulting from this state of things is, as to great part of it, sufficiently obvious, but it cannot be fully apprehended without 779 adverting to the authority which is sometimes conceded, and sometimes denied, to a reported case, according to the practice of our courts of justice.
If, therefore, your Lordships will indulge me with your attention for a few moments, I will describe the exact value, authority, and weight which reported decisions—that is to say, precedents—have by the rules of English law, and the manner in which their authority is sometimes admitted to almost an extravagant extent, and at other times denied, in courts of justice. The law on the subject may be explained in Very few words, both with regard to the authority of decisions in similar cases, and their authority for the purpose of determining new cases when they arise. Lord Coke says, "Our book cases are the best proofs of what the law is." Chief Justice Best says, "The judgments of the Courts of Westminster Hall are the only authority that We have for by far the greater part of the law of England." Chief Justice Tindal, an honoured name, in a Very recent case in this House, said, "Decisions of the Courts of Common Law are at once the best expositors, and the surest evidence of the Common Law itself." The doctrine of Mr. Justice Blackstone is that precedents and rules must be followed, unless they are flatly absurd and unjust. An ornament of your Lordship's House, whom, as he is not present, I may name, Lord Wensleydale, says—In our system of judicature we are bound by precedents, and by the authority of previous cases, unless they are plainly and manifestly founded on erroneous principles.Now, I beg the House to observe the enormous amount of uncertainty which is contained in these enunciations of the mode of ascertaining the law, particularly when it depends upon a rule being extracted from a number of varying and discordant cases. The rule of the great commentator is, that a precedent may be rejected when it is absurd and unjust. The rule of Lord Wensleydale is, that precedents must be followed, unless they re plainly founded on erroneous principles. The result, therefore, is, that each succeeding Judge has it in his power to determine what is absurd, what is unjust, what is the measure of erroneous principle. Nor is this the only evil inherent in the present system, for there is another necessarily inherent also, and it is this—in the language of Lord Bacon—that the unlearned age governs the more learned, be- 780 cause you take your rule as it is laid down in an early and undeveloped stage of society, and you are compelled to abide by that rule, if, for instance, it has regulated the disposition of property, until the Legislature intervenes to rescue the law from the necessity of following that which is often unreasonable and absurd. But the contradiction and anomaly do not end there, as I will render plain to your Lordships by citing one or two instances of the manner in which decided cases are occasionally dealt with by courts of justice. We have all heard the vulgar phrase "the glorious uncertainty of the law." It is the common opprobium of our system, which has passed into a proverb, and the saying has taken its rise in the fact that no man can tell with certainty whether a particular case which he finds recorded, and which is supposed to govern the particular case in which he is interested, will or will not be followed by the Judges. Now, let me justify these words by some examples which I have taken without much research, and as they came immediately to hand. Others more striking, I dare say, might easily be found. The Court of Queen's Bench in 1801, when it was constituted of Judges of great reputation, speaking of a single case which had been decided by the same court only three years before, disapproved it, and yet considered the case before them as concluded by its authority, and that the matter having passed in rem judicatam, the merits could not now be entered into. On another occasion Lord Ellenborough said, "With a decided case exactly in point, it would be extraordinary if we were to apply a different rule of construction, although, if it were to be decided now for the first time, I should not think that decision right." In many instances the language is, "It is better stare decisis; the very case has already been determined." Lord Eldon says, "Where there is a decision precisely in point it is better to follow it." In a multitude of cases the authority of a single case, though not fully approved, has governed judicial decisions. The language used is, "Although if the matter were res integra, it might admit of difficulty;" or "although the doctrine is not founded on good sense," or "not bottomed in reason," or "although the Court cannot approve or cannot understand the reasons," yet the authority of the case must be followed; and courts ought no longer to reason on the rule but adhere to it. On the 781 other hand, a single case is frequently overruled, although it is declared that "no case can be entitled to more respect," or that it is a case to which "the Court looks with great respect," or that it is "a deliberate judgment," or because "the Court cannot conceive the principles upon which the decision is founded." Sometimes the Court says of a decided case that it stands altogether by itself, and sometimes the antecedent decision is tossed aside in a rude manner, as where Lord Ellenborough says, "The case referred to has had its day, and it is time it should case."
These things are not to be lightly regarded, because your Lordships will be kind enough to remember what is the position of the lawyer who is called upon for his opinion. A case is laid by a client before his adviser. The latter searches in his books of precedents. He finds that a particular case has been decided which he thinks will govern the one submitted to him, and he gives his opinion accordingly. Then he goes into court, and finds, to his astonishment, that the case may be treated either for or against his client, in the manner I have described; the result being that it is impossible to predicate with any degree of satisfaction or of certainty beforehand what will be the issue of a cause. Now, is that a condition in which the law of the land should stand? Is this a condition in which what is denominated a science should be permitted to remain?
But there is a further and a great peculiarity in the law of England, which is this:—By a legal fiction it is supposed that the law contains within itself the materials for the decision of every case, however novel in its circumstances; and, accordingly, when the Judges have a new-case before them, they do not profess to arrive at the law by reasoning, by theory, or by philosophical inquiry, but they profess to discover it by searching among the records of former decisions for cases which are supposed to be analogous to the case before them; and they derive from these analogies the rule which they desire for the determination of the particular case. I will refer your Lordships to the words of two of our most eminent Judges, explanatory of the mode of reasoning adopted by them for the determination of new cases It was described by Lord Chief Justice Tindal in an elaborate case which occurred in your Lordships' House, where the circumstances were new, and the relation had not previously existed, and accord- 782 ingly where new principles and modes of interpretation had to be discovered. On that occasion he said—I think it a safer course on this occasion, as I find has been the opinion of other Judges from the earliest period of the law, to adhere to any rule that can be inferred from the cases, rather than to institute another, although another rule may appear upon general principles more reasonable and just.No doubt Lord Chief Justice Tindal spoke in the spirit of the law in which he had been educated, and which he was bound to administer. But I leave it to your Lordships to consider whether it be advisable to continue to grope among the records of ancient eases until you find something similar; and to adopt new rules—not existing rules, be it observed—but new rules by inference from old cases, although other rules would "appear upon general principles more reasonable and just." Lord Wensleydale followed the Chief Justice, and he described the mode of procedure in new cases in these words—This case, therefore, is in some sense new, as many others are which continually occur; but we have no right to consider it, because it is new, as one for which the law has not provided at all; or, because it has not yet been decided, to decide it for ourselves according to our own judgment of what is just and expedient. Our common law system consists in applying to new combinations of circumstances those rules of law which we derive from legal principles and judicial precedents; and, for the sake of attaining uniformity, consistency, and certainty, we must apply those rules, when they are not plainly unreasonable and inconvenient, to all eases which arise.We are therefore led, whenever society gives birth to new combinations of circumstances, to the obligation of finding the rules which are applicable from such analogies as can be drawn from previous decided cases. Let your Lordships bear in mind the huge bulk of these eleven hundred volumes, and observe what an uncertain task it must be to find out from the chaos the materials for decisions on new cases. It is impossible to tell beforehand what may be the decision.
But a judicial opinion is also a legislative enactment. It decides a particular case, and it sets a precedent for all future cases. Therefore the Judges become legislators—legislators ex arbitrio; and, with this vast variety of material from which to select, what an impossibility for any one to ascertain beforehand the nature of the law that will be enacted. This is no idle statement or exaggerated picture. Let me bring it home to all your Lordships recollections by a simple narrative of what 783 occurred the other day. Tour Lordships remember, when the railway mania was rife, numerous companies were formed. Each company was initiated or formed by a provisional committee, who were appointed to take the necessary steps to bring the scheme into practical operation. Liabilities were incurred to a large extent, services were performed, goods were ordered, lawyers and surveyors were employed, and the liabilities of these committeemen were very serious. Many persons who had merely lent their names because they had been solicited to do so, found that actions were brought against them, although they had not participated in the acts which led to the debts for which they were sued. It was a new case; and the question arose, How was it to be dealt with? For years it was held that the only analogy to this system was that of partnership, and therefore, as a provisional committee most resembled a partnership, all the rules applicable to partnership were applied to these provisional committeemen. As we know, one partner is the agent of, and may bind another partner in all matters relating to the partnership; consequently it was held that the provisional committeemen who concurred in giving orders, did by those acts bind other committeemen who knew nothing of the transaction. The result was that hundreds were ruined. The liabilities thus created were of enormous extent, and many persons were obliged to leave the country; but at last it occurred to an eminent Judge, a Member of your Lordships' House, to question the analogy, and then it turned out that there was nothing of legal resemblance between a provisional committee and a partnership. Then happened that is continually occurring in this country. There was a flow of the tide one way, to be succeeded by a revulsion another way, and the refluent wave consequent upon the alteration of the judicial decision, in its turn, brought ruin to many who had trusted to the former exposition of the law. That is an example of the evil consequences of men being left without rudder, without light, without compass or chart, in traversing the immense sea of judicial precedent whenever a new combination of circumstances arises.
But those among your Lordships who are thoroughly conversant with the subject—and they are many—will perceive the gross logical error committed by lawyers in the use of the word analogy. 784 Analogy, as your Lordships well know, means equality of ratios, the sameness of two relations; and thus, if one relation be well known, it may serve to explain the other which is less known. Objections, therefore, in the relation which is less known, may be repelled by showing that they do not hold good in the relation which is well known. Such is the correct use of analogy in Bishop Butler's celebrated work. But in the vocabulary of the lawyer analogy means nothing but "resemblance," and when he has found or fancied two things to be like one another, he calls them analogous, and treats them as subject to the same rules. Thus, in the case I have cited, a provisional committee was supposed to be like a partnership, and immediately the incidents of partnership were transferred to it. The reversionary interest of a married woman in stock held by her trustee was supposed to resemble what is called at law chose en action, and accordingly the properties of a chose en action were applied to it, to the great inconvenience of the community. Hence it is that Paley has described the pleading of lawyers as "a competition of" (falsely-styled) "analogies.
These dangers and fallacies in legal reasoning, both in argument and decision, are greatly augmented by the circumstance that the materials for competition and argument are of that loose, indefinite, and uncertain character which I have described. But even that is not the full extent of the evil. It is not merely that the materials are of this indefinite extent; it is not merely that the application of them is so uncertain; it is not only that they are sometimes weighed in one scale and sometimes in another, but there exists in English law a peculiarity which it will surprise your Lordships to know. That which is known and published and accepted, may be nullified by that which was wholly unknown until it is produced and applied. It is competent to counsel when arguing, and for the Judge when deciding, to produce a mere manuscript decision, something that has never been printed or published, and which no one has ever heard of before. The advocate produces it from his pocket-book, or the judge produces it from his pocket-book, and that is the law of England. So, when a case has been considered and is mature for decision, proceeding upon authorities printed and known to all, suddenly there is produced some manuscript and unknown case, by which former 785 opinions are subverted, and the Judge yields to the force of this new discovery. Surely no one thinks that the law of England ought to remain in the state which I have described. In what way, then, is the change to be made? I intend to take Lord Bacon as my guide in his proposal to amend the laws of England, who describes exactly the work which it is my hope I shall be enabled to initiate, and which it will be the fortune of those who succeed me to complete. The first thing to be done with these Reports is to revise and to expurgate them, to weed them of decisions that are in contradiction with one another; where there are opposing decisions, to settle those which ought to remain; and to cleanse out and get rid of all matters that are not warranted by the present state of the law, or applicable to the existing condition of society. I divide the Reports into three classes. The first class would include all the old Reports to the end of the 17th century; the second would include the Reports of the 18th century and down to the death of George III.; and the third would include the Reports to the present time. I trust I may be successful in obtaining a Commission that may be directed for the purpose of accomplishing these objects. As to the old Reports, I propose that we should preserve only the conclusions properly come to; that in the second period we should weed the Reports of what is useless, and retain only those cases which are fit to be used as precedents; and to perform a similar work in respect of cases of the present time. The result will be a body of recorded precedents, brought into a moderate compass, and occupying, we may estimate, but a tenth of the bulk of the present Reports. The law being thus purified and refined, contradictions and uncertainties, if not entirely removed, will be materially reduced, and a much more satisfactory state of things will be the result. Such is the present state of the common law.
I now turn for a few moments to the corresponding state of the statute law, for there is a remarkable similarity between them. The statute law is contained in forty-three or forty-four thick quarto volumes, commencing with the 20th of Henry III. The statutes are printed without the least regard to order; there is no system or arrangement. They are printed just as they have been passed, chronologically. There is, of course, a great variety of subjects, and enactments on the same subject are 786 dispersed and scattered over an immense extent of ground. Unfortunately, our legislation has been always extemporary. We wait till a grievance is intolerable, and then we apply ourselves to a remedy which does not go beyond the grievance. Our legislation has always been on the spur of the moment; nay, more, it unfortunately happens that the manner in which the legislation is conducted, contributes more than anything else to the evils that he so palpably on the surface of the statute book. You have no persons to assist you who are trained or educated in the great work of legislative composition. But legislative composition is one of the most difficult things that can be conceived. When you address yourselves to a new statute, after having considered the general principle of the proposed measure, the Bill is subjected to the process of Committee, and there it constantly happens that things are grafted upon a statute, under misconception, at variance altogether from the original conception of the framer. Your new Acts are patches on an old garment. You provide for the emergency, but you pay not the least regard to the question whether the piece you put into the old garment suits it or not. Such being the mode of your legislation, it would be utterly impossible that your statute book should be other than it is—a mass of enactments and of statutes which are in a great degree discordant and irreconcilable. Hence the utter imposibility frequently of arriving at a consistent interpretation.
This, then, being the state of the law and of the statute book, what I propose is the course dictated by natural good sense, that it shall be revised and expurgated—weeding away all those enactments that are no longer in force, and arranging and classifying what is left under proper heads, bringing the dispersed statutes together, eliminating jarring and discordant provisions, and thus getting a harmonious whole, instead of having, as at present, a chaos of inconsistent and contradictory enactments. With that view, we have with considerable care, and, I am sorry to say, after a long period of time than I had desired, as the first step, examined and revised the whole of the statute roll from the 20th Henry III. down to nearly the end of the eighteenth century. The statutes that are weeded out may be described as those which are no longer applicable to the modern state of society,—enactments 787 which have become wholly obsolete—enactments which have been repealed by obscure and indirect processes, which is one of the evils with which we have to contend, because it perpetually happens that a particular enactment is in effect repealed without its being said so, by the indirect process of another general law. Sometimes it is repealed silently by the introduction of another rule, if that rule be inconsistent; but while these conflicts exist, and until they are extirpated from the statute book, they are and will be constantly the cause of uncertainty. I may just bring to your recollection how common it is in a modern Act of Parliament to say, "all former enactments inconsistent with this Act are hereby repealed." Or you repeal so much of an Act as relates to such and such a matter; but it is often extremely difficult to determine what is inconsistent, and what is included in the words "relating to."
We have endeavoured to apply a remedy to this state of things. The task was one of great difficulty and delicacy. The reason for every alteration will be found in the schedule given opposite to the description of the enactment to which it applies. This was done in order that the work might be accomplished with something like that certainty and assurance of safety with which works of this kind ought always to be accompanied. You should be perfectly satisfied of the accuracy of the conclusion, that the particular enactment which is supposed to be swept away comes within the general clause of expired, obsolete, inconsistent, unnecessary, or repealed enactments. In carrying out this plan, of course it becomes most desirable to preserve intact all those ancient monuments of our legislation, connected with our political rights and institutions, on which no man should lay his unhallowed hands. Those statutes which may be considered to have become stones in the edifice of the constitution are preserved wholly intact; and no enactment or statute is touched that may be considered to have entered into the common law, or formed the foundation of any rule of practice or procedure, or may be referred to as the basis on which the right or title of property is made to rest. Such a work required great care and circumspection, so that in the process of excision no existing right should be impaired. When this is done—when the statute book has been cleared of superfluous and 788 unnecessary matter—I hope to propose that another process be gone through to which the previous labour is merely introductory. The enactments spread throughout the statute book relating to different subjects must be brought together in a collected form. I shall propose, therefore, to have a systematic classification of the subject matter of your legislation, preserving, however, the order of time, because the order of time in regard to enactments is most material for the proper understanding of the law, but arranging the different portions of the statute book under appropriate heads, so as to present an accurate and methodical analysis of the law comprised under each head. And I hope, concurrently with this, that the corresponding parts of the common law extracted from the Reports may be added, so that in that shape you may have a digest of the present law, both common and statute. I use the word digest advisedly, because your Lordships may frequently hear any procedure of this kind described as an approach to codification.
Now, I am not at all disposed to disguise my own individual opinion that it is to the form of a code that the law of any advanced nation ought ultimately to be reduced; but I am not at all prepared to say that the law of England is now in such a state that it may be codified with advantage and success, and for this reason—that a codification of law is the last result which it attains when it has been perfected and has reached its maturity. But if law is still in a transitory condition, it is not fit for that process. I regard the English law as still in a state of progress, because you have still in it the relics of barbarous times—you have still got that absurd division between the province of common law and the province of equity; not the distinction which is inherent in the nature of things between the written rule and the equity required for its just application, but two antagonistic systems; because, my Lords, you still have cases which would be decided one way on one side of Westminster Hall, and another way on the other side of Westminster Hall. Therefore, until you have got over that, and are in a condition to tell your statesmen and jurists that there is now unity and concord and certainty in the law of England, and unity in its forms of procedure; until you have attained to that, which the process of digesting will, I hope, facilitate, and of which it will be the introduction, you are 789 not in a position to approach the formation of a code. Neither are you in a position to approach the framing of the code until you have got among the body of your lawyers that which is still wanting; viz., precision of language, a complete and settled legal vocabulary, and accuracy in legislative construction and composition, which will supply the means of framing Acts of Parliament and rules of law with more simplicity, clearness, and exactness than at present characterize any of your attempts at legislation.
It is remarkable that the original proposal made in the reign of Edward VI., with regard to the improvement of our statute law, is thus recorded by Bishop Burnet in his "History of the Reformation," vol. ii. Speaking of a plan for the amendment of the law, sent up by the Commons to the Lords in 1549, he says:—It was proposed that the common and statute laws should be, in imitation of the Roman laws, digested into a body under titles and heads, and put in good Latin. But this was too great a design to be set on foot or finished under an infant king.The subject of the consolidation and expurgation of the statutes of this country was also brought forward again and again in the reign of Queen Elizabeth. Sir Nicholas Bacon proposed, in a few words, that "the Acts should be digested into titles," and expressed the same thing as I have, in a greater number of words, described as the systematic classification of enactments according to their subjects, Lord Bacon, in his last address to King James, offers a digest of the laws of England as an argument for the mitigation of his punishment. In 1650 a Committee was appointed by Parliament "to revise all former statutes and ordinances now in force, and consider as well which are fit to be continued, altered, or repealed, and how the same may be reduced into a compendious way and exact method." The same thing was repeated in 1653, when a Committee was appointed "to consider of a new model or body of the law;" but the most definite Resolution was that which was passed by your Lordships' House in 1816, in which, after conference with the other House of Parliament, your Lordships embodied your opinion of what was necessary with regard to the statute law in the following words:—That from the present state of the statute laws of this realm, it is highly expedient that effectual measures should be taken to arrange the 790 matters contained in the statutes of the United Kingdom of Great Britain and Ireland, and in the statutes passed in the separate Parliaments of England, Scotland, and Ireland respectively, under distinct and proper heads.That Resolution, I am sorry to say, has not been acted upon. It stands upon record as a monument of what this House, after deliberation and consultation with the other House, determined ought to be done in this matter. Undoubtedly this task requires a great deal more labour than the weak force placed at my disposal could accomplish.
My Lords, the work that has been done has been the work of four years; yet you will not be surprised at that period having been occupied by it when I tell you that the services of two gentlemen only are at the command of the Lord Chancellor and the Law Officers of the Crown, and those two gentlemen receive such inadequate salaries that they are enabled to give up only such hours to this employment as they can subtract from their ordinary professional avocations. I hope and trust that in the debates on this measure it will be the opinion of the House that this proposal ought, both with respect to the common and the statute law, to be prosecuted with more effect. If it be prosecuted with more aid, I should hope that the process of revision and expurgation of the statute book will not take much more than another year; and then the arrangement and classification of the different subjects of our enactments may be proceeded with. In that way we may expect to have the body of our statutes relieved from the chaotic state of disorder in which it now stands. I intend, my Lords, that the Commission should also direct its inquiries into another important point—namely, the correction and improvement of the present system of reporting, because it is of no use to reduce, expurgate, methodize, and arrange that which exists, unless we have a means of preventing the recurrence of the evils which now exist.
If your Lordships should confirm that view, I shall undoubtedly at some future time ask you further, to give me a Committee for the purpose of ascertaining what is the best mode by which the future legislation of this country may be conducted so as to secure an improved form in the composition of Bills. When the task of expurgating and classifying the statutes has been completed, it will still be necessary to adopt some, system for revising 791 future reported, cases so as to check the uncertainty and confusion they introduce into the law. For, observe the manner in which error grows up in the law. A case is decided, say, by a Vice Chancellor, or by one of the courts of law at Westminster. The decision may be bad, but one of the parties to the litigation may not have the means of appealing against it, and so it is not corrected by a higher court. Then this bad law is recorded in the Reports, and passes unnoticed for three or four years. It is then cited as a precedent before another Judge. That other Judge says, "I find that Mr. Justice A B, or Mr. Vice Chancellor C D, decided a case from which the case now before me cannot be distinguished;" and thus a bad precedent is accepted and confirmed. The thing therefore becomes inveterate, and bad law is established, there being in our system no agency at all to exercise that which ought to be exercised—namely, an annual revision of the reported cases, with power to determine what is to be regarded as entitled to authority, and what ought not to be quoted hereafter for the purpose of determining the law. All this might be accomplished by what is called the institution of a Department of Justice. At all events, there ought to be some mode and power of revising these Reports from time to time, as long as you adhere to the practice of making them guides for judicial decisions. I could say much more on this difficult and important subject, but I am afraid I have already trespassed too long upon the time of your Lordships.
I trust I have not given an exaggerated or distorted account of the evils which require to be remedied. In the works of our best and most philosophical jurists those evils are forcibly depicted as matters loudly calling for legislative interference. It is with confidence that I submit the Bill which I now hold in my hand to your Lordships, and I earnestly hope that you will not allow this attempt to deal with a question of paramount importance to be added to the unsuccessful efforts of former years.
The noble and learned Lord then presented a "Bill for promoting the Revision of the Statute Law, by repealing certain enactments which have ceased to be in force or have become unnecessary."
said, their Lordships were deeply indebted to his noble-and learned Friend for his full and luminous statement. He had often brought for- 792 ward the same subject—the consolidation of the law—in both Houses of Parliament; but he did not think he had ever painted so dark a picture of the state of the law—both of the common and the statute law—as his noble and learned Friend had laid before them to-night. Not that his noble and learned Friend had at all exaggerated; on the contrary, he had given chapter and verse for all he stated, and in some respects he had passed rather too lightly over the evils which existed. His noble and learned Friend had laid down two propositions—one in reference to the consolidation of the common law as found in the decisions of the Judges, the other in reference to a revision of the statute law, and classing it under proper heads. Beyond doubt, the revision of the statute law would be a most useful, but, at the same time, a very difficult operation, and he believed it could only be done in one way—namely, by Parliament giving its confidence to certain individuals, and adopting the result of their labours almost as a matter of course. That confidence was equally required, whether it was a digest of the common law or a revision of the statutes; for if a Bill of a hundred and fifty or two hundred clauses were to be brought in for discussion in both Houses of Parliament, their Lordships knew by experience what the result would be. He joined with his noble and learned Friend in lamenting that we had not a Department of Justice, though he thought it would be entirely out of the question to allow it to have anything whatever to do with revising the decisions of the courts of law and equity. That the Reports contained many bad decisions was a fact which could not be disputed, but the only way in which those decisions could be altered was by the Judges themselves, by the appellate jurisdiction, or the act of the Legislature. He also agreed with his noble and learned Friend in thinking that many errors arose from the present mode of framing Act a of Parliament, and hoped that some change would speedily be introduced. He hoped his noble and learned Friend would be more successful than himself, and that in the end there would be some safe and convenient means provided of preparing and examining our legislative measures before they became law. If there were some Department charged with this duty, in the end no one would bring in a Bill, or propose an Amendment in a Bill, without consulting it. He gave his cordial assent to the first reading of the Bill.
§ LORD CRANWORTH
said, his noble and learned Friend proposed two objects as likely to arise from the present measure—a consolidation and abridgment of the decisions of the courts of common law, and a revision of the statute law. With regard to the first of these objects, the consolidation of the common law, he was afraid, though he should be most happy to find himself mistaken, that his noble and learned Friend had undertaken an impossible task. It was a fallacy to talk about doubts as to what the law was, as being that which gave rise to the difficulties in administering the law. Except in comparatively rare disputed cases, there was no difficulty in ascertaining what the law was; but it was impossible to make a law ah ante which would exactly meet all the different combinations of facts which arose in the varying circumstances of social life. All that could be done was to apply the analogies of former cases to the new circumstances which arose from time to time. If a new state of circumstances arose to which former principles could not be applied, it became then the duty of Parliament to interfere and make a new law. He admitted that lawyers, unknown to themselves perhaps, might be bound by trammels which made them sometimes obstinate with reference to proposed reforms; but he did not believe, that if a perfect code were drawn up, it would make the law a bit more certain than it was now. Even the Code Napoléon did not make the law more clear when difficult questions arose. Some time ago there was a case before the Privy Council in which it became of great importance to ascertain what was the law of France. The opinion of twelve of the most eminent lawyers the Bar of Paris could produce was taken, and six of them decided one way and six another. No code could say what would be the law on a set of circumstances arising fifty years after. But he should listen with the greatest satisfaction to any proposal for making the law more clear, and if it could be done by the sort of digest proposed by the noble and learned Lord, he certainly should have nothing to say against it. With regard to the second branch of the subject, he rejoiced that the noble and learned Lord had introduced a Bill for the revision of the statute law. There were more difficulties in the consolidation or revision of the statute law than were apparent at first sight. He spoke with some experience on the 794 subject, though he confessed that his efforts in this direction had not been so successful as he could have wished. Still, the criminal law and other subjects had been consolidated. In any attempt to consolidate and revise the statute law so as to make anything like a complete system of it, there was this difficulty at the outset—the whole law of the country might be codified, but it was impossible to codify the statute law, which was simply a supplement to rectify the omissions of the unwritten law. When he held the Great Seal, he came to the conclusion that the best mode of consolidating the statutes was to begin with the statutes passed in the last Session, and to read them through section by section, and to see exactly what had been done by Parliament on every subject, from the present back to the remotest time; then to take the Session before, and so on, working backwards. This had been done up to the commencement of the century; and if it were continued, he had no doubt that the work of revision and expurgation would in time be completed. But though they could not codify the statute law, they might greatly improve it by the consolidation of all the various laws relating to the subject—for instance, the Church. In respect of the first object, therefore, he did not think his noble and learned Friend's Bill would lead to any result; but, with regard to the latter, he thought it perfectly practicable, and he wished his noble and learned Friend success.
§ LORD KINGSDOWN
said, that one great objection to the codification and revision of the statute law, in addition to the difficulties of which the noble and learned Lord had just spoken, was, that they might settle the statute law of England under half a dozen different heads, but they had Parliament sitting every year which passed many new laws, which would unsettle those that had already been consolidated or codified. He thought that the proposition made in reference to those statutes which were no longer in force would work very great convenience to lawyers and others; but still he thought that there would be very great difficulty in carrying it into effect. He agreed that there was very great inconvenience arising from the multitude of Reports of decisions in the law courts, there being frequently three or four sets of Reports for one court published by different booksellers, who competed for the priority of furnishing information. His noble and learned Friend 795 proposed a Commission to examine these different Reports, and purge them of what was contradictory or inconsistent; but surely this would be to substitute the Commission for their Lordships' or some other competent court of appeal. The Commissioners also must decide without argument, or they must have the cases reargued before them.
THE LORD CHANCELLOR
said, he wished to guard himself against being supposed to be attempting a codification of the law, for a codification would imply a re-writing of the law. He by no means intended that, for a great part of the statute law had received judicial decision settling its meaning; and to-substitute a new text would be to give abundant cause for controversy. It was said that each line of the Statute of Frauds Was worth a subsidy; but, on the other hand, it was said that the cost of construing that statute had amounted to half a million. What he proposed in reference to the statutes was simply this:—to bring together the dispersed enactments, according to subjects, and to make an analytical digestive arrangement according to the natural order, and to harmonize the statutes thus brought together, where it was found that there were opposing enactments. As to the decisions, what was the course now adopted by text writers? The book of his noble and learned Friend (Lord St. Leonards) upon the law of vendors and purchasers of estates was accepted by the Courts as a code or digest of the decisions upon that subject. The way in which this was done was by the writer expunging what he considered bad, and retaining that which was good in the decisions; and if this could be done upon that subject, surely it might be done upon others. In conclusion, he could only express the hope that he would have their Lordships' assistance in dealing with the measure now before them.
§ Bill read 1a; and to be printed. (No. 133.)