Knowledge for the Time / A Manual of Reading, Reference, and Conversation on Subjects of Living Interest, Useful Curiosity, and Amusing Research

by John Timbs

The Statute Law and the Common Law.

Lord Chancellor Westbury, in the House of Peers, in the Session of 1863, made the following statement with reference to the revision and expurgation of the Statute Law, from the earliest commencement of our legislation down to the beginning of the 17th century—the legislation, in fact, of about 500 years.

The Laws are divided into Written and Unwritten law. The written is the statute law, and the decision of the judges constitutes the unwritten law of the land. The Statute Law[5] 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 only traditionary—it is supposed to reside in the breasts of the judges; accordingly, when it is necessary to ascertain it in the House of Lords, their 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 repudiated by the common law, the judges have the power of determining what constitutes the rudiments of that law. This is, undoubtedly, a dangerous and a difficult trust. It is little less than legislative power, because the sources of common law are of the most varied character. It is probably derived in a great measure from customs and usages, recorded only in the memory of man; it is partly derived, no doubt, from old rules embodied in acts of which no record now exists. It is partly made up of relics of the old Roman jurisprudence which remained so long throughout the land; and it is partly the result of customs and maxims, handed down from one generation to another. The sources were so varied in ancient times that the custom of declaring the law also varied. In the old time it was impossible to know what the law was. The judges were not only legislators, but the worst of legislators—legislators ex post facto. Accordingly, at an early period, it became necessary for the protection of liberty, in order to get some kind of 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. At the latter end of the reign of Edward II., or in the beginning of the reign of Edward III., the practice of reporting the decisions of the judges began, and from that period down we have a series of judicial reports of those decisions. That was a great security for the people, because it was an approach to certainty in the law. The origin and reason of it was a distinctive peculiarity in the English mind—namely, the love of precedent, a love of appealing to precedent rather than indulging in abstract reasoning. This was the only mode in which the 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 grounds of the 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, 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 which attracted his attention, and led to his compiling and publishing his celebrated book for the amendment of the law of England. The Lord Chancellor, in his revision and expurgation, proposed to do little, if anything at all, more than revive the proposal of Bacon. “The wisdom and excellence of that proposal has 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 characterized the English Legislature.”

Curiosities of the Statute Law.[6]

Most people have a confused idea that as new laws are made old ones are repealed; and that the Statute-Book, bulky as it is, contains nothing but what every Englishman is bound to know and observe. Such, however, is not the case: for the old laws, instead of being cleared away to admit the new ones, have been allowed to remain, so that nine-tenths of this Statute-Law is really not law at all; and if the Statute-Book were freed from the enactments which have become obsolete, or ceased to be in force without being specifically repealed, it would be reduced from forty to four or five volumes. Enough of confusion, prolixity, and repetition would still remain within this compass to exercise the wits and fill the pockets of the lawyers; but the perusal of it would no longer occupy a lifetime, and this excuse for our ignorance of it would be very much weakened.

To show the necessity of the revision of our Statute-Book, we shall quote from the schedule of the Bill presented by the Lord Chancellor to the House of Lords in the Session of 1863, a few samples of useless or inoperative enactments, to show how curiously the history of a bygone age is reflected in its legislation.

Here in the midst of provisions confirming or modifying feudal privileges and liabilities is, “The Sentence of Curse given by the Bishops against the Breakers of the Charters.” No less out of place in the Statute-book, according to modern notions, is “The Award made between the King and his Commons at Kenilworth.” Next, we light upon enactments prescribing “The Remedy if a Distress be impounded in a Castle or Fortress,” and prohibiting the custom of distraining upon one foreigner for the debt of another. By the famous Statute Circumspectè Agatis laymen are restrained from laying violent hands on a clerk, while other Acts warn “men of religion” against aggression on their lay neighbours. Then we come to a whole series of sumptuary laws, and laws for the encouragement or discipline of particular trades. Bread and ale are placed under special protection; butchers and cooks are forbidden to buy flesh of Jews, and sell the same to Christians; exporters of wool are to give surety to import silver in return; iron is not to be exported at all; “no shoemaker shall be a tanner, nor any tanner a shoemaker;” yet (by a later Statute) “shoemakers may tan leather till the next Parliament;” all merchandises of a certain kind are to be carried to Calais; gowns and mantles are to be worn of a specified length; salmon, herring, and eels are to be packed in a specified manner; long-bows are not to cost more than a specified sum; calves are not to be killed at the will of their owners; the “breade of horsys” is subjected to State control; and “the stuffynge of feather-bedds” does not escape the vigilance of Parliament. Most of these Acts, and a very large per-centage of all those which are proposed for repeal, have reference to a state of society which has little in common with our own. Instead of enacting that “every one may put his child to school,” we debate now-a-days as to whether he should not be compelled to do so; and, instead of fixing the rate of workmen’s wages by Act of Parliament, we tolerate a liberty of combination which sometimes enables them to exact more than the market value of their labour. If the habit of “telling slanderous Lyes of the Great Men of the Realm” is not quite extinct, it is no longer checked by penalties, and we are content to leave “fonde and fantasticale Prophesies” to refute themselves.

The expurgation by which it was proposed to rid the Statute-book of this lumber was originated some 250 years ago, by Bacon, as stated in pp. 104-105; but the statutes which he marked, before the Restoration or the Revolution, before the Union of Scotland or Ireland, before the abolition of the feudal tenures, before the passing of the Habeas Corpus Act, still encumber the Statute-book; and the plain, sensible, and unanswerable suggestions which he threw out for the heroic work of consolidating the statutes have remained without effect. Each succeeding generation has employed itself in adding something more to that mass of evil which the great philosopher felt and denounced. If the mind of Bacon was shocked at the tangled labyrinth of our Statute Law in the reign of James I., if Sir Matthew Hale occupied his mind with the same subject in the reign of Charles II., what would they have said could they have foreseen the 10,000 statutes passed in the reign of George III., and the Ossa which the industry of the last forty-five years has piled upon the shoulders of that mighty Pelion?

Secret of Success at the Bar.

Sir Thomas Buxton relates that he once asked Sir James Scarlett what was the secret of his pre-eminent success as an advocate. He replied that he took care to press home the one principal point of the case, without paying much attention to the others. He also said that he knew the secret of being short. “I find,” said he, “that when I exceed half an hour I am always doing mischief to my client; if I drive into the heads of the jury important matter, I drive out matter more important that I had previously lodged there.”