Changes in Laws
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 Law5 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.”