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ment which have left a permanent mark on the
ordinary civil law between subject and subject.^
Thus the formal art of legislation received no con-
sideration and made no progress at all for more
than two centuries. Ptapid increase in the bulk of
legislation is a conspicuous feature of the eighteenth

^ The Statutes of Limitation of Actions (James I.) and those
ofWards and Liveries, Frauds, and Distributions (Charles II.) are,
I believe, the only important ones.



VII ANCIENT AND MODERN STATUTES 357

century, but, as in the sixteenth century, the qucility
of the work becomes worse rather than better as the
quantity turned out is greater. It is true that in
the first half of the eighteenth century there was a
good deal of useful amendment of legal procedure,
afterwards forgotten just because it had done its
business without trouble ; but the enlightened judges
or chancellors who procured this to be done left
posterity to rest on their labours, and no school or
tradition of good workmanship was founded. About
the end of the eighteenth century the only art of the
parliamentary draftsman was to pile up as many
words as possible, significant and insignificant, on
the chance that in their multitude the intention
of the enactment might find safet}^ Perhaps the
style and structure of Acts of Parliament M'ere at
their very worst in the generation immediately pre-
ceding the Pteform Act of 1832. The Copyright
Act of 1842 was among the latest legacies of the bad
old style of drafting, and a more flagrant specimen
could not easily be found. Improvement began
only when the burden was becoming intolerable.

Proposals for systematic reform had not been Bacon's

proposals

wanting, indeed, from the time when the mischief for reform.
was first felt. Sir Nicholas Bacon, the father of
Francis Bacon, formed a plan of this kind as early



358 FIRST BOOK OF JURISPRUDENCE chap.

as 1557,^ and his more illustrious son put forward
in 1616 a carefully considered "Proposition touch-
ing the compiling and amendment of the laws of
England." - Many of his ideas anticipate the work of
modern law reformers, and some, though not all, have
been more or ^less carried out in our own time. He
desired to have a digest of ancient legal rules (for
convenience, not as an authoritative text), and revised
editions of the Statutes and the Year Books, omitting
obsolete matter. He did not recommend the framing
of a new " text law " — what we should now call a
code — of the Common Law : " I dare not advise," he
said, " to cast the law into a new mould." Coke,
no friend of Bacon's, gave a limited approval to
the scheme, so far as related to consolidation and
amendment of statutes, in the Preface to the Fourth
Part of his Reports. Nothing was done, however,
for more than two centuries afterwards. There were
projects of this kind under the Commonwealth and
after the Eestoration, but there is no record of any
result beyond the appointment of Committees.

^ See the lleport of the Statute Law Commission, 1835, ami the
Introduction to tlie Statutes of the lleahn, vol. i.

'^ Letters and Life, ed. Sjwdding, vi. 61. An earlier draft of
the same project is also preserved, op. cit. v. 84. The Aphorisms
appended to book viii. of the " De Augmentis " {in Phil. JForJcs,
voh i.) have been cited by modern Continental as well as English
writers, and contain much that is still of value.



VII ANCIENT AND MODERN STATUTES 359

The movement whose great monuments in Modern
political history are the first Eeform Bill and law com-

-— -— — -~^ — - missions

the Municipal Corporations Act at last gave an and
effectual impulse in this direction also. A series
of Commissions considered the consolidation and
improvement of the criminal law and of statute
law generally during many years from 1834 onwards.
The positive results ohtained were for a considerable
time so scanty as to seem altogether inadequate to
the labour expended. Nevertheless we can now
see that the labour was not thrown away, for it
bore fruit surely, though slowly, in the course of
the next generation.^ The improvements effected
within the last fifty years have not, it is true, yet
made the form of English legislation perfect. Over
and over again the most competent critics have
lamented the want of a final revising hand. Many
troubles and blunders would have been saved if
Parliament could have entrusted the last touches
of draftsmanship to some permanent and impartial

' The Reports extend from 1834 to 1845. Tliere was a Board
for the Revision of the Statxite Law from 1843 to 1854, expanded
into a standing Commission from 1854 to 1859, which made
extensive preparations but was prevented (it seems by differences
of opinion in details) from completing anything. Refei'ences to
its publications may be found in Professor Holland's Essays upon
the Farm of the Law, p. 117, and in a parliamentary paper of 1893
(22) entitled "Memorandum on Statute Law Revision and on the
Improvement of the Statute Law."



360 FIRST BOOK OF JURISPRUDENCE chap.

expert body. The function of removing obvious
blemishes of form is at present not regularly com-
mitted to any one, and the House of Lords can
exercise it only occasionally and partially. Political
difficulties have so far been insuperable, and not
only elegance but even clearness of language has
often to be knowingly sacrificed to the exigencies
of working a Bill through Committee in the House
of Commons with as little contentious discussion
as possible. With all drawbacks, however, the
improvements effected are such as would have
seemed impossible to a lawyer of Blackstone's or
Eldon's time. Obsolete and merely temporary or
otherwise expired enactments are now systematically
repealed by Statute Law Revision Acts, and the pro-
cess has been brought down to Acts of the year 1900.^
The revised edition of the Statutes which has been
made possible by this process, together with the
official Index, which is periodically re-issued, and
embodies the latest alterations down to its date,
enables us to ascertain with comparative ease what
legislation is actually in force on any given topic."

1 Statute Law Revision Act, 1908.

■^ But the student must not suppose that the Statutes at large
have become a superfluous ornament in a library. Reference to
repealed and obsolete Acts is often necessary for practical as well
as liistorical purposes.



VII ANCIENT AND MODERN STATUTES 361

The Interpretation Act of 1889, which superseded
a similar but much less complete and workmanlike
statute of 1850 known as " Lord Brougham's Act,"
has ensured reasonable conciseness and approximate
uniformity in the wording at any rate of Acts of
Parliament introduced by Ministers and prepared
in the Parliamentary Counsel's Office, which has
been raised, chiefly by the work of Lord Thring
while he was at its head, to the rank of a distinct
and important State department. The chief danger
of downright bad drafting is now in private members'
amendments.

In 1845 the provisions usually inserted in special TheCiause
Acts forming public companies, and authorising dation
them to acquire land for their works, were embodied ^^'^ *^'"'
once for all in the Companies Clauses, Lands Clauses,
and Ptailways Clauses Consolidation Acts, " as well
for the purpose of avoiding the necessity of repeat-
ing such provisions in each of the several Acts
relating to such undertakings as for ensuring greater
uniformity in the provisions themselves." ^ These
were followed by similar Acts for Gasworks and
"Waterworks. It is said that in the first seven years
after this system came into operation it saved
100,000 folio pages of print. Allowing something

^ These words are identical in tlie }treaiiible to eaeli of tlie Acts.



362 FIRST BOOK OF JURISPRUDENCE chav.

for the increasing rate of commercial development
in the time that has since elapsed, the saving down
to the present date may well be estimated in millions
of pages. This admirable and beneficent invention,
which everybody now takes as a matter of course,
was due to Mr. Booth, then the Speaker's Counsel.
In our own time the same system has been applied,
with slight modification, to the Mutiny Act. The
Army Act, 1881, stands permanently on the
Statute-book, and is continued in force by an
annual Act. Vain repetition of the provisions for
tlie government and discipline of the army is thus
avoided, while the constitutional control of Parlia-
ment is as effectively maintained as ever.
Consoii- Many considerable bodies of statute law have

dating and tit • • i •

codify iug been consolidated at various times, and in some
cases the consolidating Acts are really codes to
the extent of the subjects dealt with. The first
notable example of this process was, 1 believe, the
Merchant Shipping Act of 1854 ; just forty years
later this and the later Acts on the same matters
were consolidated in the Merchant Shipping Act,
1894, whicli fills 292 pages in the Law Eeports
edition of the Statutes. Other groups of Acts
relating to various branches of public law, — Public
Health, Inland Eeveiiue, and others, — which formerly.



VII ANCIENT AND MODERN STATUTES 363

by their intricacy and the number of partial repeals
and amendments, presented great difficulties even
to experts, have from time to time been brought
together in an orderly fashion. More than this, a
certain number of well - settled portions of oui:
general commercial law have been declared in
statutory form, codified in fact, with the general
approval of men of business and acquiescence of
lawyers. Bills of Exchange and other negotiable
instruments were thus dealt with in 1882, Partner-
ship in 1890, the Sale of Goods in 1893, Marine
Insurance in 1906. So far these codifying measures
liave worked quite smoothly and have given rise
practically to no litigation ; that is to say, the cases
decided on their construction have been very few,^
and of those almost all have been on questions of
principle which the Acts had left open because the
existing law left them open, and which would equally
have called for a decision in a jurisdiction where
no such statute existed. In the English-speaking
colonies the Acts have been largely, I believe
universally, adopted ; there does not seem to be

' Americaii experience is similar. For details see the annual
reports of the Commissioners on Uniform State Laws published
with the ti'ausactions of the American Bar Association. Some
State Courts have been astute to construe the negotiable Instru-
ments Act in th(^ sense of their own former decisions. (Address
of Amasa M. Eaton, 1909.)



364 FIRST BOOK OF JURISPRUDENCE chap.

any reason why we should not before long have, in
substance, a codified and uniform commercial law
for all the Common Law jurisdictions of the British
Empire, In tlie United States the same problem is
being dealt with by a body of commissioners repre-
senting most of the States, and working in con-
junction with the American Bar Association; and,
notwithstanding the difficulty caused by the existence
of so many independent jurisdictions, considerable
progress has been made. A Negotiable Instruments
Code generally resembling the English Act is already
law in nearly all' the States. Codes of the law of Sale
of Goods, Bills of Lading, Warehouse Eeceipts, and
Stock Transfer have been more lately settled and are
in force in several States, Partnership is still in
hand. It is hoped that " the separate codification of
each branch of the commercial law will gradually
bring about a great commercial code." ^
Criminal Our statutory criminal law remains, in point of

form at least, in a relatively backward condition,
notwithstanding the laudable endeavours of the
late Sir James Stephen and others. Many portions
of it, and some of the most important, are unavoid-
ably entangled with controversial matter of several
kinds, so that non-contentious amendment seems

1 See Journ. Soc. Comp. Lccjisl. xxxvi. (July 1016) 154, IGG.



VII ANCIENT AND MODERN STATUTES 365

extremely difficult. Yet the Italians have suc-
ceeded, under a system of parliamentary government
not widely dififerent in principle from our own, in
passing a new and thoroughly revised Penal Code.
Here we can only note the fact that England has
made no great advance on the Criminal Law Con-
solidation Acts of 186 1, which are not codifying Acts
because they assume knowledge of a great deal of
unwritten law ; for example, in the definitions of
murder and manslaughter. The definition of theft
and like offences is now improved.^ Broadly speak-
ing, the administration of our criminal law — what
the French call 2^malit4 — is now mostly if not
wholly reduced to the written form : the substance
of it is not.

Lord Westbury's elaborate project for a Digest Codifica

tion.

of the wliole law, which seemed to promise great
things in its time, and came to an end in 1870,
need be mentioned here only for the purpose of
showing that it has not been overlooked. It not
only failed of its immediate purpose, but failed
to leave any considerable result, save that two of
the gentlemen employed to prepare specimens of
the proposed digest converted their work into
meritorious and useful text-books of the ordinary

' Larceny Act, 1916. '.



366 FIRST BOOK OF JURISPRUDENCE chap.

type, which went through several editions.^ To
the present writer, at any rate, it seems that the
example of the Anglo-Indian Codes" has been more
practical and fruitful. Codification was forced
upon British India by the necessities of Indian
government, and the experiment has on the whole
been remarkably successful. There is no reason
why it should not succeed in England when public
education is sufficiently advanced to demand it,
and competent English lawyers are set to do the
work instead of discussing whether it is possible.
For the commercial parts of our unwritten law
codification is already accepted in principle, and
has been carried into execution in some important
branches. The further extension of the process is,
in my opinion, no longer doubtful in principle, but
only in time and opportunity. But the question

^ Oue of these is Goddard on Easements : the Preface to the
fourth edition contains an account of the Digest of Law Com-
mission, omitted in tlie fifth (1896) and later editions.

'^ Edited by Dr. Whitley Stokes, Oxford, 1887. See his Intro-
duction for a short history of codification in India. See, too, Sir
Courtenay Ilbert's articles, "Indian Codification," Law Quart. Ecr.
V. 347; "Sir James Stephen as a Legislator," i6. x. 222; and
articles of my own on Sir James Stephen in the National Review
for August 1895, and the Encyclopccdia Britannica, 11th ed. It
is unfortunate that the codification of commercial law in India, » so
far as it has gone, began and has proceeded on lines of its own,
so that ultinuxte uniformity with the commercial codes of the
English-speaking world will be diflicult of attainment.



vii ANCIENT AND MODERN STATUTES 367

involves so much controversinl matter, and is so far
from elementary, that it cannot properly be pursued
in this work. In the United States there is quite
as mucli difference of opinion as here, and the
discussion has been complicated by premature and
over-ambitious legislation, or attempts at legislation,
in some of the States.^ Meanwhile the improve-
ments in form which are effected in tliis country
are for the most part followed, after no long
interval, by substantially identical legislation in the
English-speaking Dominions and colonies. The con-
sideration that statutory consolidation and amend-
ment of the Common Law in this country are likely
to be taken as an example by great part of the
English-speaking world is a reason for proceeding
with the utmost caution and employing the very
best learning and skill that can be secured for the
work. It is no reason for leaving a great and
beneficial work undone, but rather for keeping it
constantly in view, and advancing it as occasion
serves.

' See Judge Johu F. Dillon's Laws and Jurisiyrvdcncc of
England and America, Leet. ix., for a summary of American facts
and opinions down to 1894. The arguments against codification
were strongly jiut by the late Mr. J. C. Carter of New York, in a
course of lectures prepared by him but never delivered {Law : Us
Origin, Groivth, and Function, 1907).



INDEX



" Action," Roman meaning of, 94
Action, right of, for breach of

public duty, 99

" Act of tile law, " meaning of, 144

' ' Act in the law, ' ' meaning of, 145

Acts, ilistinguisbed from events,

142

under what conditions regarded

bylaw, 141, 146
void and voidable, 164
Acts of Parliament, see Statutes
Agreement, breach of, 93
Aliens, position of, 58
Anglo-French, use and degrada-
tion of, 296-301
Aristotle on intent and motive,

149
Artificial persons, 115, 125
corporations, 115-118, 120
firms, 120
the State, 121
capacity of, 122
Attempt to commit offence, 160
Authority, delegated and <Ie-
volved, 248
use of, 316

text-books are not, 317
Auxiliary rules, 73

Bacon, Francis, his proposals for
law reform, 357, 358

Blackstoue on the supremacy of
Parliament, 266

" Books of authority," 250

Bracton's Note Book, 294



Capacity, of natural persons, 122
disqualification of, 124
of artificial persons, 125
Case-law, 241

iu England, 245, 246
Chancellor, early jurisdiction of,

258
Codification, 362-364

in the United States, 363 «.,
364
Colonies, special laws of, 350
Common Law, relation of, to

custom, 253, 254
Commons, House of, political

supremacy of, 272
Consent, valid, conditions of,

162, 164
Consequences, proximate and re-
mote, 158, 159, 166
unintended, 160, 166
Constitution, law of the, 97
(Contract, breach of, 93

importance of, iu modern law, 94
involving personal skill, 211
for sale, 213
for payment, 216
how supplemented by local
custom, 289
Conveyancers, practice of, 327
Copyright in books, 134, 137,

140, 200, 203
Corporation, an artificial person,
115-118, 120
different theories of its nature,
116

369 2 B



370



FIRST BOOK OF JURISPRUDENCE



Corporation, created by express or

general autb ority of State, 129

cannot be guiltv of crime, 126,

127
Crown as, 121
liability of, for wrongs, 126
Corpus Juris, Justinian's, 244
Court for Crown Cases Reserved,

340
Courts of Appeal, 328
Criminal Law Commission, reports

of, 353, 359
Crown as Corporation, 121
Custom, nature of, 10

relation of Common Law to,

253, 254
legal meaning of, 280
conditions of its validity, 281
ancient, 283
of merchants, 285, 286
local, 289

Damage, remoteness of, 169
Debt, archaic notion of, 222
Decisions, Continental Courts
generally not bound by, 244
authority of, 319
manifest error in, 326
of Court of Appeal, 328
of House of Lords, 330-338
of Judicial Committee, 338, 342
of Supreme Court of U.S.,

341-344
of Irish and Scottish Courts,

343, 344
at Nisi Prills, 344
reasons for ascribing authority
to, 345
Definition of law, 29
Discretion, judicial, 38, 39
Duty, positive and negative, 58,
70, 71
performance of, how far com-
pellable, 59
none without right, 64
of State, 65
personal, 85-88, 91
public, 95
Duties, relation of, to rights, 72,
73



Duties, created by acts, 161

Easements, 177

"in gross," 193, 199 n.
relation of, to ownership, 192

sqq.
application of prescription to,

195
negative, 198
Equitable estate, 215
Equity, origin of, 257
Ethics not co-extensive with law,
45
must deal with outward acts,
46
Events, 141, 142
Evidence, archaic notions of, 44
rules of, 77, 79-81

Family, personal duties incident
to, 207, 208

relations, 89, 92
Fee simple, Littleton on, 176
Foreign law, use of, 350
Form, rules of, 50

of acts, rules as to, 1 65

General Part, meaning of, 108

Hobbes, his theory of the State, 67
Honour, laws of, 14, 15, n.
House of Commons, see Commons,
HoTise of
of Lords, see Lords, House of

Ignorance of law, 163
Infancy, 122

Intention, distinction of, from
motive, 147
proof of, 153
complexity of, 155
disregarded in archaic law, 159
International Law, 14
Interpretation of law, 233, 238
Ireland, decisions in, how far
authority in England, 343,
344

Judge and jury, functions of,
distinction between, 80



INDEX



371



Judge, when one can be, in his
ow-n cause, 268, 269
not above Parliament, 270, 271

Judicial and extra-judicial opin-
ions, 242

Judicial Committee, decisions of,
338, 342
not binding in English Courts,
342, 343

Judicial discretion, 38, 39

Jurisdiction, equitable origin of.
257

Jury and judge, functions of, dis-
tinction between, 80

Jus Commune, 254, n.

Justice, relation of, to law, 32
natural, 12, 42

Law, how far definable, 4, 29

constituted by rules of civic
conduct, 7

can exist without legal pro-
fession, 9

moral and natural, 12

of nations, 13

of honour, etc., 14, 15 n.

abstract and concrete senses of,
16

as extra-judicial rule of con-
duct, 17

in scientific language, 19

ambiguity of the English word,
17

sanctions of, 23, 26

as "will of the State," 27

definition of, 29

of nature, 13, 19, 31

its relation to moral justice, 33

order as fundamental principle
of, 34

relation of, to special acts of
sovereignty, 34

the regular marks of :
generality, 37
equality, 38
certainty, 41

a distinct science 45

cannot enforce all moral rules,
48

artificial development of, 54



Law, contents of, 57

enforcement of, 59, 63

whether binding on State, 66

auxiliary rules of, 73

substantive and adjective, 82

divisions of, 84

public and private, 95, 99

of the constitution, 97

of nations, 101

Roman divisions of, 103

inequality of persons in, 105

meaning of "person" in, 113

"acts of," 144

forms of, 232

written and unwritten, 233,247

sources of, 247

customary, 253
" Law-French," see Anglo-French
Law Merchant, 285
Law Reports, T/ie, 311 sqq.
Legislation, improvements inform

of, 359
Liability, legal, may be without

moral blame, 51
Limitation of actions, 190
Littleton on fee simple, 176
Lords, House of, bound by its
own decisions, 332

will not reverse settled course
of decisions, 330

Marriage, common law of, 334

Maxims, 233, 235, 236

Mistake, 163

Monopolies, 200

Morality, influence of law upon,

48
"Motive," meaning of, 148, 152

distinguished from intention,
147

internal and external, 152

National character, conceptions

of, 118, 119
Nations, personification of, 118
Nature, " laws" of, 13, 19, 31, 101
Negligence, 168
Negotiable instruments, 219
Nisi Prius, decisions at, 34 4
" Novation," meaning of, 210



372



FIRST BOOK OF JURISPRUDENCE



Obligation, meaning of, 87

personal duties outside, 89
Obligations, personal, in early law,
209
arising from wrongful acts,
226
Ownership, 178-180

Parliament, supremacy of, 261
Acts of, not judicially dis-
putable, 268, 269
Perpetuities, rule against, 239
Person, in law, what is, 113
Persons, equality of, in law, 105
presumption of their equal

rights, 106
relation of, to things. 111
natural, 114, 122
artificial, 115, 125
Personam, duties and rights in, 86
Pleading, rules of, 79-81

simplification of, in modern
practice, 81
Pope, legendary self-deposition

of, 278, 279
Possession, 76

nature and results of, 174, 180,

188
definition of, 198
right to, 175, 176, 181, 182
as evidence of title, 183
wrongful, 186

by temporary or partial use,
195
Practice, in legal sense, what, 12
Precedent, medieval importance

of, 321-324
Prescription, 190

application of, to easements
195
"Private International Law," 102
" Private Law," meaning of, 96
Privy Council, see Judicial Com-
mittee
Procedure, judicial definition of,
78 «.
rules of, 79, 83
Property, 171

Common Law abhors vacuum
of, 139



Property, incorporeal, 205

transferof, bycontract, 213,214

Public Duty, 95

Public Law, meaning of, 95
distinguished from private law,
99, 100

Quasi-possession, 196, 197
"Quia Emptores," statute of, 355

Rem, duties and rights in, 86

Remoteness of damage, 169

Reports, nature and origin of, 291
modern type of, 307, 308
estimated number of, 314 n.

Restraint of Trade, relation of
to public law, 98

"Restraint of Trade," antiquity
of the doctrine, 256

Right, meanings of, 18

indeterminate or determinate,

61
can a man have, against him-
self ? 67
acquisition and transfer of, 74

Rights, ill rem and in personain,?>%
equal, presumption of, 106
incorporeal, 133, 134

Road, rule of, 50

Roman Law, divisions of, 103
inequality of persons in, 105
meaning of " action " in, 94


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