Curiosities of the Statute Law6
Most people have a confused idea that as new laws are made old ones are repealed; and that the Statute-Book, bulky as it is, contains nothing but what every Englishman is bound to know and observe.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were freed from the enactments which have become obsolete, or ceased to be in force without being specifically repealed, it would be reduced from forty to four or five volumes.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?