(Qarwll IGaro ^rijool IGibrarg Digitized by Microsoft® Cornell University Library KD 700.H73 Essays upon the form of the law / 3 1924 021 650 472 Digitized by Microsoft® This book was digitized by Microsoft Corporation in cooperation with Cornell University Libraries, 2007. You may use and print this copy in limited quantity for your personal purposes, but may not distribute or provide access to it (or modified or partial versions of it) for revenue-generating or other commercial purposes. Digitized by Microsoft® ESSAYS THE FORM OF THE LAW. THOMAS ERSKINE HOLLAND, M.A., FELLOW OF EXETEK COLLEGE, OXFORD, AND OF LINCOLN'S INN, BARRISTER-AT-LAW. AUTHOR OF "AN ESSAY UPON COMPOSITION DEEDS, ETC., TJNDEB 24 & 25 VICT. c. 134." LONDON: BUTTEEWOETHS, 7, FLEET STEEET, lata lluiligijerg to tfjc ©uccn'a most mellrnt fHajcahj. 1870. Digitized by Microsoft® Digitized by Microsoft® TO THE EIGHT HONORABLE RICHARD BARON WESTBURY, Cljis ©olnm* UPON A SUBJECT WITH WHICH HIS NAME WILL EVER BE ASSOCIATED IS BY HIS PERMISSION MOST RESPECTFULLY INSCRIBED. Digitized by Microsoft® Digitized by Microsoft® CONTENTS. Introduction PAGE 3 P 'ART I., with refer 'ence to the Law generally . . .. .. . . 7 A Plan for the Formal Amendment of the Law of England 9 Codification . . . . . . . . . . . . . . 27 Specimen of a Digest . . . . . . . . . . . . 65 General Remarks . . . . . . . . . . . . 67 Analytical Summary . . . . 73 Portion in Detail . . . ■ . . . . . . . . 79 Part n., with special reference to the Statutes . . .. .. 101 The Reform of the Statute Book 103 The Statute Book for 1866 123 A New Edition of the Statute Book 135 The Statute Book 142 The Pitfalls of the Statute Book 151 The Classification of the Statutes . . . . . . . . 159 Additional Note 173 Chronological Appendix 179 Index 183 Digitized by Microsoft® Digitized by Microsoft® INTKODUCTION. Digitized by Microsoft® Digitized by Microsoft® INTRODUCTION. Two great Questions may be asked concerning any system of Law: — I. Whether it is adapted to promote the welfare of the people among whom it is enforced. II. Whether the knowledge of it is easily accessible. The former has reference to the matter contained in the law ; the latter to the form in which the law is promulgated. A moment's consideration will show that, even if the material question is the more important, the formal question should precede it in order of time. Before inquiring how far a body of laws is adapted to secure the end at which it aims, it is essential first of all to place beyond dispute of what that body of laws consists. Although the Law of England is notoriously formless to a degree unparalleled in Europe, and is rendered annually more so by the copious addition to it of new matter by persons imperfectly acquainted with what it already contains, what we have called the " formal question " is only now beginning to attract attention in this country. B 2 Digitized by Microsoft® 4 INTRODUCTION. The Essays comprised in the present volume have been written exclusively with a view to making the importance of this question more prominent. Having been composed at different times, and having originally appeared, for the most part, in different periodicals, they occasionally touch more than once upon the same topic. For this, under the circumstances, scarcely avoidable tautology, the author can only ask the in- dulgence of the reader. He trusts, however, that the Essays derive from their common object sufficient coherence to justify him in combining them into something like a Treatise upon the Form of the Law, The first half of the volume is devoted, as will be seen, to a consideration of the form of the Law of England generally, both written and unwritten ; the second half to the form in which the results of direct legislation are promulgated in the Statute Book. The Author has throughout endeavoured to show that such changes as are necessary should be effected after careful pre- liminary definition of terms, and in accordance with scientific methods of classification, rather than by means of the miscalled " practical" expedients to which the English mind has hitherto been so prone. The views, which it has been the aim of the Author to support, may be summarised in the following propo- sitions : — I. That the amendment of the form of the Law of England is a more pressing necessity than the improvement of the matter of which it consists. II. That such formal amendment should, as far as possible, be conducted independently of material changes. Digitized by Microsoft® INTRODUCTION. 5 III. That the end to be aimed at in the formal amendment of the law is a Code, the objections to which are his- torically and theoretically unfounded. IV. That a Code should contain but one system of Law ; and, therefore, that no attempt should be made in a Code of the Law of England to exhibit incongruous laws which prevail in other portions of the British Empire. V. That some clear conceptions and definitions should be arrived at of a " Code" and of a " Digest," and of the processes necessary for the formation of either one or the other. VI. That in applying these processes to the different depart- ments of Law, a distinction must be drawn between such" departments as are founded upon statutes and have merely been interpreted or extended by the course of litigation, and those which, being essentially the product of the Common Law, have only been here and there modified by Acts of Parliament. VII. That these departments should probably be operated upon separately, though upon a similar plan, and with a view to ultimate amalgamation. VIII. That great pains should be devoted to the elaboration of a really scientific scheme for mapping out the different departments of Law, so as to exhibit their true relations to one another. IX. That when the Code, or (as a step towards it) the Digest, is completed, all subsequent legislation should have direct reference to some specific title of the Code or Digest. Digitized by Microsoft® INTRODUCTION. X. That the Code or Digest, as amended by new legislation and illustrated by new litigation, should be periodically revised and republished by authority. XI. That independently of the great undertaking of digest- ing the whole Law, the statutes should be reduced to order forthwith. That with this view, the publication of the long-promised edition containing only statutes actually in force should be hastened. That this edition should then be weeded of all Acts which have no operation in England, or which are not really general law. That the residue should then be con- solidated in accordance with the system of arrange- ment which would have been fixed upon for the Digest or Code of the whole Law. XII. That subsequent annual legislation upon such subjects as are departments of the general law of England should be dr,awn and promulgated upon a new and uniform system, with special reference always to a particular title of the consolidated Statute Book. Digitized by Microsoft® PART I. WITH EEEEKENCE TO THE LAW GENEEALLY : CONTAINING I. A Plan foe the Formal, Amendment of the Law of England. II. Codification. III. A Specimen of a Digest. Digitized by Microsoft® Digitized by Microsoft® I. % |)ktt tax % Jffltmal %tmtimtxrt d (Pamphlet, 1st March, 1867.) (Dedicated, by permission, to Lord Westbiiry.} Digitized by Microsoft® Digitized by Microsoft® CONTENTS. The Form and Matter of Law The Law Reforms of the Roman Emperors Their Excellencies and Defects New Definitions — A Digest . . Consolidation A Code . . The perfect Eorm of Law . . The successive Steps by which it is to be approached Practical Steps to be taken in England The Selection of a Scheme of Classification The Case-Digest The Statute-Digest Consolidation of the Cases of the Statutes The Case-Code The Statute-Code Final Union of Codes Difficulty arising from Distinction between Law and Equity Objections to Codes noticed The Revision of the Code, and Assimilation of new Law A permanent Law-Council Results immediately attainable Provisional Publication of Statutes Recapitulation PAGE 13 13 1G 17 18 18 18 ID 19 19 20 21 22 22 23 23 23 23 24 24 24 25 25 26 Digitized by Microsoft® Digitized by Microsoft® ( 13 ) A PLAN FOR THE FORMAL AMENDMENT OF THE LAW OF ENGLAND. Law Reform has been in England hitherto taken to Matter and mean almost exclusively an amendment of the matter of Form - the law. It is at length perceived that a remodelling of its form is at least equally important. The one species of reform by no means implies the other ; and although they have been very frequently com- bined in practice, it is submitted that much confusion has thus been caused, and that they should be, as far as pos- sible, kept separate. There seems to be no good reason for delaying the re-arrangement and re-expression of the law till all debateable questions which have arisen upon its matter have been argued out and finally determined. In all discussions upon the formal improvement of the Terms to law, three terms of art are of constant recurrence : e c nc • " digesting," " consolidation," and " codification," the indiscriminate use of which adds much obscurity to the subject. We shall be in a better position for attempting a definition of each of these terms, after briefly investigat- ing the circumstances under which two of them were for the first time employed. The state of English law at the present time is, Prelimi- indeed, so closely analogous to that of Roman law in the aminatfon fifth and sixth centimes, that in considering any proposed £^ e Re- Justinian. Digitized by Microsoft® 14 PLAN FOR THE FORMAL AMENDMENT OF The Sources of Law. The so- called " Code." The Digest. The Me- thod of the Code. The Me- thod of the Digest. improvement of the former, it would be a mere affec- tation of freedom from pedantry to neglect the lessons suggested by the latter. The faults of English law now, as of Roman law then, are almost entirely faults of form. In point of matter, it is difficult to say which system deserves the higher praise. With the Romans then, as with ourselves now, the sources of law were practically two : the Imperial Constitutions, or, as we should say, the Statutes ; and the writings of the great jurists, embodying what we should call the Common Law. Just as in our own case, their long series of statutes was arranged in no other order than that of time, and their common law had to be gathered from a vast library of authors, writing upon independent plans, and often differing in their conclusions. Out of these two sources of law, Justinian ultimately constructed two Digests of co-ordinate authority. One of these, containing the Statute law, was indeed called a " Code," but, as we shall presently show, it has no claim to this appellation, in the sense in which it will be most conveniently used. It was merely a new and very much more comprehensive edition of a similar Digest which had preceded it by a century, and is generally known as the " Theodosian Code." The other publication attempted, for the first time, a Digest of the Common Law. To form the (so-called) Code, the principal heads or topics of law were selected, and subdivided into minor titles. A framework was thus made, the parts of which were all subordinated to the whole according to a precon- ceived method. Then all " Constitutions," irrespectively of the year of their promulgation, which had reference to a given head of law, were placed under that particular head ; the Constitutions, however, in each title, or ultimate subdivision, being arranged merely in the order of the date of their publication. The Digest, actually so called, was constructed much in the same way, except that, under each ultimate subdivi- Digitized by Microsoft® THE LAW OF ENGLAND. 15 sion, the extracts from the writings of the jurists were arranged, not in order of date, but upon another arbitrary principle (a). In both works the fragments of Statutes, and of Treatises, retained their independent existence. The essential character of both compilations was the Their com- same. Their object was to substitute a logical order of ™°" 0b " subjects for the disorder arising from the mere chrono- logical sequence of the " Constitutions," and from the independent authorship of the Treatises. This object was, however, pursued only to a certain its Limita- point ; and the ultimate subdivisions were, in each instance, tl0n " left unorganic. The Code and Digest of Justinian may be compared to statues^ which have so far been hewn out of the marble that the arms are distinct from the bodies, and the hands are marked off from the arms, but the fingers are not yet separately defined upon the hands. Compilations formed upon so identical a method should They surely, in the language of Jurisprudence, be called by the na °g same name, irrespectively of any difference in the material common which they may contain. They are both included under the definition which we shall hereafter give of the term Digest. Theodosius had, indeed, proposed to carry the same The mag- system a stage further. He intended to weave together s^eme of the statute law and the common law into one compilation, Theodo- which should supersede all other sources of authority, and assume the " magisterium vitse" (#). This project came (a) That, namely, which was detected by Blume, but which is imma- terial to our present purpose. (J) This noble idea, turgid as is the language in which it is expressed, deserves more attention than it has received : " Ex his autem tribus codici- " bus (i.e., his own, and those of Gregorianus and Hermogianus) et per " singulos titulos cohrcrentibus prudentium tractatibus et responsis, eorun- " dem opera qui tertium ordinabunt, noster erit alius, qui nullum errorem, " nullas patietur ambages, qui nostro nomine nuncupatus sequenda vitanda- " que demonstrabit. Ad tanti consummationem operis, et contexendos " codices, quorum primus omni generalium eonstitutionum diversitate col- Digitized by Microsoft® 16 PLAN FOE THE FORMAL AMENDMENT OF to nothing, and even had it been carried out, would indeed have presented the Romans with one Digest instead of two, but not apparently with a Code, in the sense in which we shall use the term. It is submitted that the Roman Emperors took the Points in should fol- right course, and are useful for our guidance, in the low the Bomans. following respects ; (1.) That they began the formal improvement of the law by compiling Digests : (2.) That they digested the Statute Law and the Common Law separately: (3.) That they digested the Statute Law, without waiting till they had also digested the Common Law. Points in which we should not follow them. In the following respects it is submitted that they are not suitable for our imitation : — (1.) That they did not contemplate ultimately carrying on the Digests into the more perfect form of Codes : (2.) That their Digest and (so-called) Code were not arranged upon the same system : (3.) That the system was in neither case either scientific or convenient : (4.) That the Statute Digest was not forthwith perfected into a Statute Code : (5.) That the ultimate amalgamation of Statutes and Common Law, though suggested by Theodosius, was never effected (e) : (6.) That no systematic provision was made for the incorporation into the Digests of the results of new legislation. " lecta, nullaque extra se quam proferri liceat prastermissa, inanem Yerbo- " rum copiam recusabit; alter omni juris di?ersitate exclusa magisterium "vitas suscipiet, deligendi viri sunt," &c, &c. Cod. Theod. Lib. I., Tit. I., 5. (e) That is, before the publication of the Basilica. Digitized by Microsoft® THE LAW OF ENGLAND. 1 7 The above estimate of the Roman reforms will, it is Defini- hoped, show the importance of defining the terms of art lons- which are proper to this inquiry, and explain our reasons for framing such definitions of them as those which we are about to offer. A Digest is a distribution, according to a preconceived A Digest, system, into books, titles, chapters and so forth, of a body of laws previously not so distributed ; such laws retaining nevertheless the traces of their independent origin, and being, under the ultimate subdivisions of the work, arranged in a merely arbitrary order. The principle of its arrangement may be either logical or merely alphabetical (d). It may contain either statute law, or common law, or both combined. Its characteristic being — that all the large masses of law will be found in their proper places relatively to each other, but that the arrangement stops short of the final degree of finish. It is merely a mechanical arrangement of groups of laws (the ultimate groups remaining without any internal arrangement at all), not a conversion of a set of legal elements into a new product. The statutes, or parts of statutes, which it contains are still entitled as separate enactments; and the para- graphs of common law will still appear as quotations from such and such a jurist, or such and such a decided case. So that a Digest never, as it were, speaks with its own mouth, but is merely a convenient arrangement of frag- ments of laws, each of which preserves its own vitality. It is in this sense of the term that we asserted that the Roman bodies of law were all Digests and nothing more. The Romans invented name and thing, and carried their invention to considerable perfection. (d) In this way are digested the Maryland Statutes. C Digitized by Microsoft® 18 PLAN FOR THE FORMAL AMENDMENT OF Consolida- Consolidation is the welding together into an organic tlon- whole of the various enactments or decisions which bear upon a given legal topic. It is immediately applicable to statutes; but is inapplic- able to common law as embodied in concrete cases, or in acknowledged quotations from treatises, although it doubt- less might be applied to the net results of cases or treatises expressed axiomatically. A Code. A Code is a digest of which every title has been con- solidated. Being a digest it is orderly; being consolidated it is homogeneous and organic. It speaks with its own voice only, and retains no trace of the individuality of its constituent elements. It may contain statute law, or the net results of case law expressed axiomatically, or both combined; but it cannot admit case law as such. Though the name was invented, and used in a somewhat different sense by the Romans, the thing is of far more modern origin. Its best known example is the Code Napoleon. The Romans never advanced beyond a digest : we in England have never yet got beyond consolidation. They began from the general but never attempted the final polish of the particular : we, on the other hand, have polished many particular topics of law, but have never grouped them under more general ideas. The per- The most perfect form in which the law can be ex- ofLaw™ P resse d is attained in a code, embracing both common and statute law, which, though it must be subsequently modified both by litigation and by legislation, yet affords a solid and a well defined ground plan for any future additions. The Stages Such a code is however rather to be aimed at as an of Progress {& e2b \ than to be sought as attainable by the present generation. Short of this : the perfection of statute law would be obtained in a statute code. »■ Digitized by Microsoft® THE LAW OF ENGLAND. 19 The perfection of common law in a code of common law axioms. But a code, of any kind, presupposes consolidation ; and consolidation presupposes the selection of some prin- ciple of division and arrangement, which alone can de- termine the heads under which the law is to be con- solidated. Now such division and arrangement is the province of a digest ; which should be therefore everywhere, as it was with the Romans, the first step in the re-expression of the law. It remains to apply the general conclusions at which Practical we have arrived to the problem of Law Reform in A PP lica " -P, , x tiou to -England. English The very first care of those in authority should be to Law ' select a scheme of legal classification, which shall be at of Class?- 6 once logical, suitable to the comparative importance of fication - the conceptions upon which it is founded, and practically convenient. This is perhaps the most important and difficult step in the whole process ; the more so as it is most desirable that this identical classification should run through all the digests, and govern the distribution of the code of the future. The scheme should be made as perfect as possible ; so that, although a title may sometimes occur to which we have at present no rules of law corresponding (e), no portion of our law shall by any chance be discovered which shall be without an appropriate title for its recep- tion. It may be safely said that no code or digest, from the Code of Theodosius to the " Code Civil " of Lower Canada, has as yet been even tolerably well arranged. Not one shows any conception of the mutual relations of the great departments of law ; not one is governed by the logical principle of "dichotomy;" which, though it need («) &tte hsv'w fa e?h rl eTJo? — as Aristotle would say. C 2 Digitized by Microsoft® 20 PLAN FOR THE FORMAL AMENDMENT OF not be always visible on the surface, yet should underlie and determine the main features of every system of classifi- cation. Logic is as necessary to the jurist as anatomy to the painter. The Pi- When a plan has been selected, digests of the common gests law and of the statutes should be simultaneously com- menced. of Cases; (i.) To digest the common law will be a difficult and a delicate task. The Reported Cases, and the writings of a few of the sages of the law, must be classified in accordance with the plan; and. abstracts of them, or extracts from them, or references to them, must be placed under the appropriate titles : some cases must be chosen to support universals, others to support particulars. The large class of cases which has been decided upon the wording of statutes should be digested separately; with a view to the result being afterwards interwoven with the Statute- Digest, either by way of proviso or of illustration — i. e., either by insertion into the statute of words which have been decided to be therein implicitly contained, or by mere reference to the case as an illustration of the application of the statute. A great difficulty will beset the Case-Digest from which the Statute-Digest will fortunately be free ; for, while the existence of a statute is an easily ascertained matter of fact, the autho- rity of a case is frequently a matter of opinion. It is however submitted that it would be better, at any rate in the earlier editions of the Digest, where two cases of equal authority are in contra- diction, to print them both in juxtaposition, rather than to wait till one or the other has been sanctioned, either by the ordinary progress of Digitized by Microsoft® THE LAW OF ENGLAND. 21 litigation, or by the decision of high legal func- tionaries, to whom the duty of determining such questions might be assigned. The mode of working out a Case-Digest will, however, in its details, best be ascertained by experiment. (2.) A Digest of the Statutes may be far more easily of Statutes; and rapidly accomplished. Preparation for it has already been made by the registers of re- pealed Acts, which have been recently con- structed with great care under the direction of government, and by the nearly completed series of " Expurgation Acts," which have cleared the statute book of a vast amount of obsolete matter. When the plan, of the Digest shall have been once clearly and minutely drawn out, the task of fitting the statutes and parts of statutes into their proper places will be comparatively easy. The work would be, however, of very consider- able magnitude, were it necessary or desirable to include in the Digest the whole of the statutes now in force. But this is by no means the case. There are thousands of statutes which have no claim whatever to be embodied in a Digest of English law ; and would be as out of place there as a charter of incorporation, or a patent of nobility. In such a Digest, of course, none of the avowedly "Local and Personal," or "Private" Acts would be included; and even of the so- called "Public-General" Statutes the large ma- jority would be rejected as unsuitable. The "Public-General" Statutes may be divided into five groups, which we may call :— (1) The Non-English, comprising Scotch, Irish, Indian and Colonial laws. (2) The local and personal, really though not nominally such. (3) Annual enactments by which the machine of government is carried on. (4) Legislative warrants, which are merely cheques drawn by the nation on its Digitized by Microsoft® 22 PLAN FOE THE FORMAL AMENDMENT OF bankers, or licences to override the law for a special purpose. (5) Laws which are at once general and applicable to England. The last group alone is proper material for a Digest, and forms, probably, not more than a third of the total bulk of the so-called " Public-General" Statutes. The Statute-Digest might well be published within a year or two, and should then be de- clared to supersede and repeal all the enactments out of which it had been constructed. All other statutes would retain their validity, and be cited in the usual way. Consolida- Both Digests should, as soon as practicable, be con- tion solidated. of Case- Digests ; of Statute- Digests. Consolida- tion may be, to some extent, commenced at once. (1.) The Common-Law Digest cannot, as before ex- plained, be subjected to this process till, by an intermediate process, the cases and treatises have been reduced to axiomatic rules. And this must occupy many years ; unless indeed the work is distributed among many labourers, work- ing simultaneously under one management. (2.) The Statute-Digest might easily be consolidated throughout within two years from its completion. And such Statutes as, upon any conceivable arrangement of the Digest, must inevitably be arranged in a book, chapter, or title (as the case may be), by themselves, might be put in hand for consolidation forthwith, without waiting for the publication of the Digest. The law of Divorce, for instance, upon which an Act has been passed almost every year since the first Divorce Act of 1857, might be at once con- solidated in two parts ; of which the first should contain the substantive law, defining the right to Divorce, &c; while the second should be devoted Digitized by Microsoft® THE LAW OF ENGLAND. 23 to an orderly exposition of the procedure (/). The Acts regulating Common-Law Procedure, some hundreds in number, are also peculiarly suited for immediate consolidation. The subject should be arranged in three parts ; to be called respectively " Ante- Judicial," "Judicial," and " Post- Judicial ; " each siibdivided into titles, in which the order of the steps in an action should be closely followed, e.g., the first title of Part I. would be " Notice of Action," and the last " Notice of Trial 0)." Each Digest, as soon as it is throughout consolidated, Codifica- will have become a Code. In neither will the constituent tlon- laws be any longer distinguishable ; and both having been from the first arranged upon an identical method, they may then be with ease woven into a single Code, in which The final the distinction between Common Law and Statute will have ceased to exist. No mention has hitherto been made of a great difficulty Law and which stands in our way, but which was not present to E 1 ult y- the Roman legislators. With them the writings of the jurists had absorbed and superseded the " edict ; " but with us the chasm between Law and Equity is as wide as ever. It will therefore be necessary, under many titles, to have two sets of rules, exhibiting the different views of the law which prevail on the opposite sides of Westminster Hall. The mere juxtaposition of these different views must of itself promote their assimilation, and the ultimate identification of Law and Equity (A). (/) The Procedure in a suit should be treated chronologically, as in the Rules and Orders recently issued by the Judge-Ordinary. (^r) The present writer made considerable progress in such an arrange- ment of the Statutes bearing on Common Law Procedure; but found that the work would not be worth doing unless with a view to its receiving the authority of the Legislature. (K) The juxtaposition of the Common Law rule and its equitable exceptions, would frequently show that what is supposed to be the rule has Digitized by Microsoft® 24 PLAN FOR THE FORMAL AMENDMENT OF Objections It is often asserted that a code must limit the flexibility o ea, o £ ^ e COTnmon j aWj an( j ^hat it cannot provide for all possible contingencies. To answer these objections fully not would be beside our present purpose ; it must suffice to 6X1 e ' remark in the first place that before case-law can be used as a guide, a general proposition has to be elicited from the case, and if this can be done in the hurry of litigation, it may also be done by the deliberate action of a Royal commission. The general proposition is, and ought to be, inflexible when stated in a Code. It is, however, just as inflexible when it has been deduced from a case by a not com- judge. In the second place — a code is not intended to ! ' provide specifically for contingencies which have not arisen, nor does it prevent either new legislation or the growth of new case-law. What it professes to do, and what it may effectually accomplish, is to afford a " ter- minus a quo," a point from which all legal arguments must start, and behind which they are prohibited from wandering; while it maps out the whole field of legal ideas, so that any new law will at once find its proper place amongst kindred topics. The Revi- And this brings us to the consideration of the manner Code? 6 ™ which a Code, or a Digest, is to be preserved from be- coming out of date, or obscured by too thick an overgrowth of later legislation. This can only be accomplished, by the republication of the Code from time to time — say at intervals often years ; each new edition superseding and repealing the preceding one, and embodying the results of the ten years' legislation A perma- and litigation. Such a periodical revision could be car- Council'. " ried on only by the agency of a permanent Law-Council, or Department of Justice. Its duties would be to keep a watch upon, sift and classify the results of reported cases ; and also to see that all bills, affecting those portions of the law which were treated of in the Code, should be drawn really become the exception. The rule, " that a chose in action is not assign- able," may serve as an instance. Digitized by Microsoft® THE LAW OF ENGLAND. 25 with special reference to the particular book, chapter, and title, designed to be affected. It would see that all such bills were drawn according to a regular formula, such as the following :— " Be it enacted, that Book I. chapter xxx. " tit. x. sect. 13 be repealed," or " Be it enacted, that the " following words shall be added at the end, and shall form " part of sect. 13 : viz., &c. &c." Supplementary Acts, or " Novels," drawn in this way, would, during each decen- nial period, cause the profession very little expense or trouble, and would of course be easily noted up on the margin of the Code. The other classes of statutes would only be purchased by the lawyer when he had special need of them, but he would in general trouble himself as little about them as he now does about the hundreds of " Local and Personal Acts " which are passed each session " {i). For the later stages of the progress towards perfection The Sta- which we have attempted to describe, we shall doubtless j^]^ 1 ^ 8 * have many years to wait ; but there is no reason why the published earlier stages should not be very speedily attained. spe The Statute-Digest, at least, might almost immediately be placed in the hands of the profession : and it is the more desirable that its completion should be hurried, be- cause all new legislation upon subjects which come within its scope, might then begin to be conducted in the scientific manner which we have just been advocating. It is however probable that a delay of some years may intervene before a scheme of legal classification is selected, and a Statute-Digest, constructed in accordance with it, actually makes its appearance. We may therefore, per- The un- haps, be permitted to suggest that the cause of law-reform re P ealea > would be much aided if the Government were at once to English direct the publication, in a merely chronological order, of should t> e all statutes of a really general nature, which have their published , t it a * once. operation in England, and nave not been repealed. (i) Special collections of the Scotch, Irish, Indian and Colonial Acts should undoubtedly be published by authority for the use of those whom they may concern : but this is beside our present inquiry, which is confined to the Laws of England. Digitized by Microsoft® lation. 26 PLAN FOK THE FOKMAL AMENDMENT, ETC. A competent editor could easily select the statutes, and parts of statutes, which possess these three characteristics. They would form the material of the future Digest ; for which, with the aid of a good index, they would be no mean temporary substitute. The English lawyer would then possess an authoritative edition of every syllable of living statute law with which he has any habitual concern ; and that in the compass of certainly not more than half-a-dozen volumes. Recapitu- Briefly to recapitulate. The defects of the law at the present day are chiefly defects of form ; the consideration of which ought as far as possible to be kept distinct from the discussion of defects of matter. Our statute-law and our common-law are so distinct that their reformation must be undertaken separately, although upon an identical plan. The stages of progress must be, in each case, digest- ing — consolidation — codification. At some remote period we may hope to see the two codes blended into one. The authority of newly decided cases will be, doubtless, invoked to explain the meaning of the code, and these can be reduced within moderate dimensions only by being periodically revised and incorporated into new editions of the code. All legislative changes in that portion of the statute law which will be embodied in the code, i. e., the general law of England, must be by bills drawn with special reference to their effect upon the code ; and all alterations so effected must form part of the code itself at its next periodical republication. To carry out the proposed reforms, and to superintend the future work- ing of the system, a permanent body must be created. "We may add, that the president of this body should be some high legal dignitary, and that his subordinates should be logicians as well as lawyers. Digitized by Microsoft® II. (Mtt&aftrn. {From tlie Edinburgh Review, JS T o. 258, for Octoher, 1867.) Digitized by Microsoft® Digitized by Microsoft® ( 29 ) CODIFICATION («). It is now just half a century since attention was called in these pages to certain proposals which had been put forth by per- haps the greatest theoretical jurist who has ever lived (b). Mr. Bentham, despairing of encouragement from the govern- ment of his own country, had offered his services as legislator to the United States of America, and to the Emperor of Russia. By neither were his offers accepted, but from both he obtained a respectful hearing. England in those days was indeed be- ginning to bestir herself towards legal reforms, but her first steps were not in the path which had been most carefully explored by the philosophic jurist. The object at which Bentham chiefly aimed was the re-expression and re-arrange- ment of the law according to a scientific method. A more pressing necessity for English statesmen was to alter the law itself; to adapt to the ideas and wants of modern civilisation a system which had grown together in the comparative barbarism of the feudal ages. We had to get rid of a series of penal enactments, the indiscriminate severity of which defeated its own object, while it rendered our name a byeword throughout Europe ; we had to sweep away some of the more obtrusive absurdities which beset all dealings with landed property ; and we had to emancipate our procedure from a network of scholastic subtleties, which seemed woven expressly to prevent causes from being tried upon their real merits. (a) Edinburgh Review, No. 258, October, 1869. 1. Codex Tlieodosianns. Instruxit Gustavus Hiinel. Bonnse, 1843. 2. Civil Code of Lower Canada. Ottawa, 1866. From the Amended Boll deposited in the Office of Clerk of the Legislative Council, as directed by the Act 29 Vict. cap. 41, 1865. (V) Edinburgh Review, No. 57, November, 1819. Digitized by Microsoft® 30 CODIFICATION. The Komillys, the Mackintoshes, the Peels, and the Broughams have done their work; our laws, in humanity and in comprehensiveness, are not unworthy of our civilisation ; but the task to which Bentham devoted the best powers of his intel- lect has still to be commenced. The form in which our law is expressed remains just what it was, and is probably worse than that of any body of jurisprudence now extant in Europe or America. It may be as well to state at once what is meant by so sweeping a condemnation. The case is simply this : while almost every other civilised country has arranged its laws upon some sort of connected system, our law is identical with our legal history. The rules regulating, for instance, the relation of landlord and tenant, or of husband and wife, are to be found scattered at irregular intervals over the whole space which separates the days of the Saxon dominion from the present time. The records of our Parliament, stretching from the reign of Henry III. to that of Victoria ; the words which from day to day have fallen from the lips of judges in courts of justice during the last six or seven centuries ; the published opinions of such sages of the profession as have been, as it were, canonised by an admiring posterity — these are, not the raw material out of which our law has been constructed, but our very law itself; and we have none other. The statutes of the realm fill about fifty volumes ; many of them have been repealed, but it is difficult to say which. The reported cases fill about 1,200 volumes ; many of them have been overruled, but none of them bear any outward sign of their fallen estate. Statutes and reports alike have accumulated, layer above layer, in a merely chronological order ; so that a given legal topic resembles, not the plan of a well-defined field, but rather the vertical section of a geological formation. The most skilful jurisconsult, when asked to exhibit any particular rule of law, can do so only after first laboriously examining all the legal strata in which any traces of it are to be found, and then piecing together from the fragments thus collected what after all he can only present as a probable reconstruction of the required entity. The Poet Laureate has described, with his usual fineness of Digitized by Microsoft® CODIFICATION. 31 perception and precision of language, the disheartening labours of the law-student who toils— "Mastering the lawless science of our law, That codeless myriad of precedent, That wilderness of single instances, Thro' which a few, by wit or fortune led, May beat a pathway out to wealth and fame." (Aylmer's Meld, p. 73.) Such disorder and complexity in a body of law can but result in uncertainty, expense and delay to the suitor. The evil, however, does not stop here. While cognate topics are scattered over a thousand different volumes, and totally dissimilar subjects are found in the closest proximity, it is utterly im- possible either for the judge to form a clear conception of the principles which he is called upon to expound, or for the legis- lator to see precisely what the rule is which he desires to repeal or amend. The tardy recognition by the nation of these prac- tical mischiefs has fortunately synchronised with the growth of a small class of theoretical jurists, who have, however, been obliged for some time to contend with the narrowmindedness of the profession and the apathy of the public — to wait till the patient was sufficiently aware of his illness to be ready to welcome the physician. Our object in the following pages will be to promote, if possible, the movement towards scientific legislation, which was initiated by the writings of Mr. Bentham and by the lectures of his distinguished follower, Mr. Austin. The non-legal world is very far from realising the importance of the cause which we advocate — the cause of the formal as contrasted with the material amendment of the law. The dis- tinction here drawn, although somewhat scholastic in sound, is in reality simple enough. To change the matter of the law is to change the nature of its provisions ; to enact, for instance, that persons, instead of being allowed to make a will at the age of eighteen, shall not be capable of such an act till they attain twenty-one. To change the form of the law is to alter the mode of its expression ; for instance, to gather into one chapter the various enactments upon the subject of forgery which had before been scattered through the statute-book. The formal Digitized by Microsoft® 32 CODIFICATION. amendment of the law is indeed one of the most useful services which can be rendered to the human race, and one which never fails of an ample reward of fame. Justinian is far better known for his legal reforms than for the success of his arms ; and Napoleon was doubtlessly truly prescient of the final estimate which will be made of his greatness, when he said, " I shall "go down to posterity with my Code in my hand." We propose to show, by a slight historical sketch, that England stands alone among civilised nations in never having methodised her law; we shall then mention briefly the pre- liminary efforts which she has of late years made towards im- provement ; and shall offer in conclusion some suggestions as to the object which our legal reformers should propose to them- selves, and the means by which that object is most likely to be attained. I. In order' to keep our historical survey within moderate bounds, it will be necessary to confine it to the legislation of the European races. We must also leave unconsidered those very ancient codes which seem to have made their appear- ance at an early stage in the history of almost every nation. The Draconian tablets and the Twelve Tables at Rome mark an epoch when reading and writing have become common, when law has become so far fixed that it may be exhibited in a permanent form, and when the people are so far enlightened as to care to have their laws generally accessible. Our attention must be confined to a very different species of legal reforms, which appeared everywhere at a far more advanced stage of history, and which had for their object not so much to fix the law, or to take it out of the hands of a particular caste, as to render intelligible by arrangement upon scientific principles a mass of enactments, the growth of many centuries of inge- nious litigation. The legal reforms of the Roman emperors are not only the earliest instance, within the scope of our present inquiry, of the concurrence of an unmanageably bulky body of law with a school of jurists competent to reduce it into some sort of order, but they may also afford many hints for the similar work which has now to be undertaken in England. The sources of Digitized by Microsoft® CODIFICATION. 33 law were as numerous with the Romans as with ourselves. Cicero enumerates — " statutes, decrees of the senate, decided " cases, the authority of the sages of the law, the edicts of " magistrates, custom, and equity" (c), to which in later times were added the Rescripts and Constitutions of the Emperors. No wonder that the " immensus aliarum super alias acervatarum "legum cumulus," of which Livy speaks (d), became some cen- turies later " a load for many camels" (e). Caesar seems to have intended to reform this confusion (f) ; and much was gained when, under Hadrian, the praetorian edicts were consolidated into the " edictum perpetuum." But the first decided step in the right direction was the publication of the Gregorian and Hermogenian codes in the time of Constantine (g). These compilations, in which the imperial rescripts, from Hadrian to Diocletian, were conveniently digested under appropriate titles, though apparently the work of private individuals, soon ac- quired a very high authority. They were closely analogous to those arrangements of the statutes which have been from time to time attempted in England, by Tyrwhit and Tyndale, Chitty, and others. For the imperial constitutions bore an exact analogy to our Acts of Parliament, while the writings of the great jurists corresponded accurately enough to what we call common law ; and it was through these two sources alone that the other sources of law enumerated by Cicero were under the Empire practically known or operative. The constitutions, or as we should say the statutes, had become very numerous, and had been of course issued from time to time, just as the occasion prompted, upon no system whatever. But the enact- ments which these contained were simple and few when com- pared with the vast labyrinth of principles and illustrations (c) Top. c. v. (d) iii. c. 34. (e) Eunap. in vita (Edesii, p. 72. (/) "Jus civile ad certum modum redigere, atque ex immensa diffnsaque " legum copia, optima quasque et necessaria in paucissimos conferre libros." (Sueton. J. Ccesar, c. 44.) (ff) These codes, which exist only in fragments, are best edited by Hanel, in the "Corpus Juris Antejustinianeum" of Bbcking (Bonnse, 1837—41); where he shows their probable arrangement. D Digitized by Microsoft® 34 CODIFICATION. which derived its authority from the independent and often conflicting writings of generation after generation of great jurists. Statute law and common law were equally in need of re-arrangement, but the Komans wisely attacked the easier task first ; and thus it was that their first step towards legal reform was the introduction into the Constitutions, by Hermogenianus and Gregorianus, of a scientific method in place of a merely chronological sequence. And the next step was of a similar character. In the year 429 the Emperor Theodosius II., with the concurrence of Valentinian III., undertook to continue the work of Grego- rianus and Hermogenianus, by editing the constitutions which had been promulgated since the date of their publications. He therefore issued a commission to Antiochus, " ex-qusestor and prefect," with some others, empowering them to arrange and abbreviate the hitherto unarranged constitutions. Nothing having been in the meantime accomplished, another commission was issued in 435, to the same Antiochus and fifteen others, with larger powers than before : " Demendi supervacanea, et " adjiciendi necessaria, et mutandi ambigua, et emendandi " incongrua" (A). At length, in 438, Theodosius was able to promulgate his new code, and to decree that after the first of January in the following year, no imperial constitution should be quoted ex- cept from the three recognised compilations. The three codes were almost simultaneously adopted in the Western Empire, and arrangements were made by which such constitutions as should be subsequently promulgated by either emperor (novellce) should be forwarded to the other for his acceptance. The preamble of the constitution by which the code was enacted, though expressed in a viciously florid style, gives a clear idea of the state of things which the Emperor wished to remedy : — " I have," he says, " often wondered, that considering the great " prizes which are held out for the encouragement of arts and learn- " ing, the instances are so few and far between of a full and ripe (/*) These commissions are preserved in the codex. Digitized by Microsoft® CODIFICATION. 35 " acquaintance with the civil law ; and that, although so many faces " are weary and wan with study, it is rare to find anyone who is " solidly and thoroughly educated. But this state of things will " cease to be a difficulty, when one reflects upon the vast abundance " of books, the variety of actions, and the difficulty of the cases ; " and, lastly, the mass of Imperial Constitutions, which has hidden " the knowledge of itself from the human mind under a mountain of " thick blackness and obscurity" («'). He says that he has preserved the names of the emperors by whom each constitution was originally promulgated, " manet " igitur manebitque perpetuo gloria conditorum, nee in nos- " trum titulum demigravit nisi lux sola brevitatis." The code thus published contains constitutions varying in date from 312 to 438 A. v., arranged in sixteen books. It was augmented by various novels ; and, though involved at first in the overthrow of the Western Empire, and, upon the re-conquest of Italy by Narses, superseded by the reforms of Justinian, long continued to exercise a very powerful in- fluence over the legislation of the barbarians. It may be as well at once to observe that neither this code nor any of the Roman legal compilations (except to a certain extent the Institutes) possess that character of logical distribution which is essential to a "code," in the modern sense of the term, and in the sense in which we shall have occasion here- after to define it. The Roman codes were in fact merely what we should call "Digests;" and the method adopted both in the so-called codes and in the digest is almost identical. No logical distribution of the whole field of law according to the fundamental conceptions of jurisprudence was attempted in any of these works, but the various legal rules were gathered into certain large groups, and these groups were arranged one after another in an order which, though little more than arbitrary at first, became habitual, and was not only adhered to more or less from the time of Theodosius to that of Leo, but exercised a marked influence over the legal compilations of the middle ages. This order may be said to be roughly as (i) This Constitution is printed as the first novel. See Cod. Theod. by Hand. D 2 Digitized by Microsoft® 36 CODIFICATION. follows : — First, the law and judges are discussed, next con- tracts and successions, then the administration and the revenue, then local government, criminal law, and the Church (k). The other great source of law was not entirely neglected by Theodosius. In 429, in order to put some limit upon the cita- tion of authorities, binding and final weight had been given to the opinion of the five greatest jurists, and of certain others whom these had honoured by frequent quotation; and Theo- dosius in his first commission, already mentioned, intimates an intention, which was however never carried into effect, of dealing with the writings of the jurists after a fashion much more am- bitious even than that subsequently adopted by Justinian. He in fact projected an unification of statute law with common law in one great work, which would thenceforth form the complete rule of life (7). A century after the reform of Theodosius it was felt that a similar work was again necessary. Many new constitutions had been issued in the meantime, and many of them had effected important changes in the law. The writings of the jurists, moreover, still remained unarranged. Justinian therefore, in the year 528, commissioned Leontius, ex-quasstor of the palace, Tribonianus, and eight others, to arrange all the imperial consti- tutions, as well those included in the Gregorian, Hermogenian and Theodosian codes, as those of later date, in a new code to be called by his own name. He instructed the commissioners : — " To compile definite and shortly-expressed laws from the afore- " said three codes and the later constitutions, cutting off all prefatory " matter, which is useless as adding nothing to the laws themselves, (7i) The Theodosian Code is arranged^as follows: — Book 1 is devoted to judges, courts, &c. ; 2, procedure ; 3, 4, 5, contracts, wills and successions ; 6, 7, 8, the administration; 9, criminal law; 10, 11, revenue; 12 — 15, municipal corporations, public works, &c; 16, the Church. In the later codes ecclesiastical law occupies the post of honour. Legal method appears to us to he a subject which has never as yet received sufficient attention, and we propose, therefore, to append in the notes outlines of the arrangement of each of the more important codes mentioned in the text. (7) This meaning is not generally given to his certainly obscure expressions, but it is submitted that they will bear no other interpretation. Digitized by Microsoft® CODIFICATION. 37 " all repetitions and all contradictory passages, unless they are ex- " plained by another division of law, and all that is obsolete ; to " arrange them under appropriate titles, adding to and curtailing, " and even changing their words, as convenience may require ; col- " lecting into one enactment what is scattered through several con- " stitutions, and making the meaning clearer : yet so that the " chronological sequence of those constitutions shall be evident, not " only by references to dates and consulships, but also from their " arrangement itself; the earlier constitutions being placed first, and " afterwards the later ones." The Code was completed, and received the force of law in the following year, but was shortly afterwards suppressed, and in 534 re-published in the form in which we now possess it. No constitution might thenceforth be cited from any other source. Except that it gives the first place to ecclesiastical law, its order is not materially different from that followed in the Code of Theodosius (tw). In 530 the Emperor confided to Tribonian and such col- leagues as he might himself select, a far heavier task. He begins by saying that he had observed : " omnem legum tra- " mitem, qui ab urbe Roma condita et Romuleis descendit tem- " poribus, ita esse confusum ut in infinitum extendatur." He mentions that he had remedied this confusion in the case of the constitutions, but has now a higher ambition : — " To collect and emend the whole of the Roman jurisprudence, and " to exhibit, compressed into a single code, the scattered volumes of " innumerable writers, which no one else has ventured to hope or to " wish for. The thing appeared indeed to us to be very difficult — or " rather to be impossible — but lifting up our hands to heaven, and " imploring the aid of the Eternal, we have accepted this responsi- " bility also. We command you therefore to read the legal treatises " of the old lawyers, to whom the most sacred emperors gave authority " to compile and interpret the laws, and sift them, and so to collect " your material out of all these; omitting, as far as possible, both " repetitions and contradictions." (to) It contains 12 books : of which 1, treats of the church and judges ; 2, of adrocates, proctors and various actions ; 3, of other actions and servitudes ; i, of bailments ; 5, of marriage and guardianship ; 6, of slaves, successions and testa- ments; 7, of prescription, judgment and appeals; 8, of adoption and donations; 9, of crimes; 10, of the treasury and public services; 11, of ships and public works ; 12, of dignities and professions. Digitized by Microsoft® 38 CODIFICATION. The matter was to be arranged in fifty books, " according to " the order of the new code and of the perpetual edict," and the books were to be grouped into seven parts (n). The Digest or Pandects, the result of these instructions, was published in 533, and received the force of law. It contains the substance of more than two thousand treatises of the great jurists, and covers nearly the same ground as the first nine books of the Code. Justinian had previously, in 530, caused to be published, for the use of students, the " Institutes," which are arranged upon the model of the '•' Commentaries " of Gaius, and treat successively of persons, of things and of actions ; a distribution of subject which has exercised much influence upon modern jurisprudence (o). Great as were the achievements of Justinian, he fell short of the aspirations of Theodosius, who, as already mentioned, had dreamed of weaving together both statute and common law into one harmonious system. This project was, however, carried out three centuries later by the Emperor Leo the philosopher, whose " Basilica" were a translation into Greek, and a consolidation, in sixty books, of Justinian's Code and Digest, together with his novels, and those of the later emperors. Leo uses in his preface words which our own statesmen would do well to ponder : " It seemed to our majesty that the dispersed state of the law " was the cause of its difficulty and its want of precise arrange- " ment " (p). The Basilica were law of the Eastern Empire (ri) Part 1 was to contain the Elements ; 2 was to be intitled De judiciis ; 3. De rebus ; 4. De hypotheca, usuris, sponsalibns, tutelis, and other matters not grouped together in the Edict; 5. De testamentis; 6. Successions, obligations, &c. ; 7. Stipulations, delicts, crimes, appeals, municipalities and definitions of terms. These seven parts corresponded to the main divisions usual in commen- taries on the Edict. (o) This arrangement seems to have prevailed in the Edict. Hermogenianus (Juris Epitom. lib. i.) says, " Cum igitur hominum causa omne jus constitutum " sit, primo de pcrsonarum statu, ac post de ceteris, ordinem Edicti perpetui " seeuti dicemns." (Apud Dig. i. Tit. v.) (p~) h tvv voftw a7rofAEfA£piTy.Lvti outra xaratnao-tq eAXeiVeiv E&o^e t») @cttri'k£ia. h/xuv, Eie T£ tc TTapEKetv t>?? tSiv vojcaojv SuJ-^EpEUtj, nal 615 to avTriV ra^saig tu^eTv axpi/2ous' roiyapoZv -ra? Tl-aVTae T« voftaiv VfayfAaTeias hftt!*; a-xpa.nirvmirip.mi iv riv^lim e£ trvawpa.'Ka.iii-afyiw. Digitized by Microsoft® CODIFICATION. 39 till the fall of Constantinople ; and, upon the recent establish- ment of the independence of Greece, were declared to be law in the new kingdom (q). Even the barbarians, who in the fifth century overran the Eoman Empire, saw the importance of employing their newly- acquired familiarity with the art of writing in the compilation of bodies of law. This was indeed the more necessary on ac- count of the personal, rather than territorial, obligation which was then almost everywhere the characteristic of legal systems. Romans, Goths, and Lombards, though all living under the same sovereign, were amenable only to the Eoman, Gothic or Lombard law respectively. The conquerors, therefore, on the one hand, caused collections of Eoman law to be published for the benefit of the conquered race, while, on the other, they committed to writing for the first time the rules which had guided themselves when as yet they were on the further side of the Ehine and the Danube. As these attempts preceded the reforms of Justinian, the compilations of Eoman law were founded on the Code of Theodosius. In the earlier of them little or no order is discernible. The edict of Theodoric the Ostrogoth (a.d. 500) contains 154 unconnected titles, entirely derived from Eoman sources. The " Breviarium" of Alaric the Visigoth was published in 506, with the following heading : — " In hoc corpore continentur leges sive species juris de Theo- " dosiano et diversis legibus electse, et sicut prseceptum est " explanatse"(r). It contains abridgments of the Theodosian Code, of the novels and of several approved treatises. It was superseded about 650 by the " Lex Eomana Visigothorum," which is arranged far more scientifically than any of its prede- (§■) The general arrangement of the work is as follows : — Book 1. The Catholic faith ; 2. Laws ; 3. Bishops ; 4 and 5. Monasteries ; 6. Magistrates ; 7 — 10. Courts and procedure ; 11. Pacts; 12. Partnerships ; 14— 26. Bailments, suretyships, &c; 27. Disputed ownership ; 28— 30. Marriage"; 31 — 33. Children; 34. Postliminium ; 35—45. Testaments, guardians and successions; 46. Status; 47. Donations; 48. Manumissions; 49. Patrons; 50. Dominion and possession; 51. Exceptions and prescription; 52. Ohligations and actions; 53. Ships; 54. Municipalities; 55. Agri- culture; 56. Revenue; 57. Army; 58. Servitudes; 59. Funerals; 60. Criminal law. (»•) See these codes in Canciani, " Leges harharorum." Digitized by Microsoft® 40 CODIFICATION. cessors (s). The Burgundians, who shortly before the Prankish conquest, i. e. about 520, had published a law for their own race, published a few years later a compilation for the use of their Roman subjects, which is generally known as the " Papiani Responsa." It is quite unsystematic. A few of the more important collections of pure barbarian law will next claim our attention. About the year 638, Rothar, king of the Lombards, published his edict, of which he says : " Leges patrum nostrorum quse scriptse non erant condimus" (t). The Lombard was the most generally received of the barbarian systems in Italy, and was even translated into Greek for the use of the southern provinces (w). The characteristic of the Teutonic group of codes is that they are almost exclusively occupied with the subject of pecu- niary composition for offences. The salic law of Clovis con- tains eighty titles all devoted to this topic ; and the " lex salica " reformata" of 798 is of the same character, as are the Ripu- arian and Allemannic compilations ; that of the Bavarians is considerably more artificial (#). The laws of our own Ethelbert closely resemble these continental codes. Its eighty-nine titles are all devoted to composition, and bear no trace of Roman influence. After the laws of particular Teutonic peoples come (s) The subjects of its several books are as follows : — I. De instrumentis legalibus ; II. De negotiis causarum ; III. De origine conjugali ; IV. De origine naturali ; V. De transactionibus ; VI. De sceleribus et tormentis ; VII. De furtis et f allaciis ; VIII. De inlatis violentiis et damnis ; IX. De fugitivis et ref ugientibus ; x. De divisionibus et temporibus atque limitibus ; XI. De segrotis medicis mortuis et transmarinis negotiis ; XII. De removendis pressuris et omnium hsereticorum sectis extinctis. It was a territorial law, and it altogether proscribed a reference to the Roman law — " nolumus sire Eomanis legibus sive alienis amplius vexari." (ii. 1.) (f) Titles 1 — 152 of this Edict treat of crimes ; 153 — 229 of successions, gifts and marriage ; 230 treats of sales ; 240 of offences against landmarks, of coining, theft and damage ; total number of titles 390. In the twelfth century the laws of Rothar and his four successors were digested into the " Lombarda." (u) The translation was published by Zacharias, Heidelberg, 1835. (a;) It is thus arranged : — Title I. De ecclesiasticis rebus ; n. De ducibus; III. and IV. De liberis (i. e. the compositions for injuries to free men) ; v. De servis ; vi. De nuptiis ; vii. De uxoribus ; viii. De furto ; ix. De incendio ; x. De vio- lentia; xi. De terminis ruptis; xn. De pignoribus; xin. De vitiatis animalibus xiv. De commodatis et commendatis ; xv. De venditionibus ; xvi. De testibus xvil. De campionibus; xvin. De mortuis; xix. De canibusj XX. De avibus xxi. De pomariis et nemoribus et apibus. Digitized by Microsoft® CODIFICATION. 41 the "capitularies" of the Frankish kings, affecting all their subjects alike. These were first digested in 1327 by Ansegisus. His order is inartificial enough. The first book of his " Capi- " tularium regis Francorum " contains the ecclesiastical ordi- nances of Charlemagne, the second those of Chlodovic, the third Charlemagne's mundane ordinances, and the fourth the mundane ordinances of Chlodovic. Benedictus Levita, in 1345, added to the work three more books. The early legislation of the Teutonic races was however soon superseded by, on the one hand, a revived study of Roman law — the natural conse- quence of advancing civilization ; and, on the other hand, the growth of feudal customs. In Italy, the old jurisprudence, after a long competition with various barbarian systems ( ?/), became the common law of the country ; although by the time of Petrarch such inroads had been made upon it by the " Statuta " of the various cities, that he says " Senescunt pasne jam Romanse leges." The Roman law also regained its sway in France south of the Loire, the " pays du droit ecrit," and continued paramount there till the Revolution of 1789 ; but France north of the Loire, the " pays coutumier," was quite overgrown by local customs. The Visigothic law prevailed generally in the kingdoms of the Spanish peninsula till the thirteenth century, while Ger- many long divided its allegiance between local customs and Roman ideas imported by the emperors from Italy. Of the various legal compilations produced by this state of things a cursory notice must suffice. The Italian municipa- lities very frequently revised their " Statuta." This was done, for instance, by Milan in 1218, by Verona in 1228, by Florence in 1285, 1353, 1408 and 1415. The most famous revision of the Venetian laws was that of the Doge Tiepolo in 1242 (z). (y) Agobard in a well-known passage says : " Plerumqne contingit ut simul " eant aut sedeant quinque homines, et nnllns eorum communem legem cum " altera habeat." (T. vi. p. 356.) Sclopis ("Legislation Italienne," i. p. 57) enumerates five distinct systems which were simultaneously in force in Italy. (z) Many of these collections have been recently edited by Italian antiquarians. Sclopis, ii. p. 135, gives an abstract of the Florentine revision of 1415, and p. 140, of that of the Doge Tiepolo. Digitized by Microsoft® 42 CODIFICATION. The earliest coutumiers of France were compiled in the thirteenth century. They were succeeded by the couiumes, the earliest of which is that of Ponthieu, 1495. At a later period came" the reformation of the coutumes, which commenced in 1580, and produced revised editions of the coutumes of Paris, Orleans, Amiens and other places. The national jurisprudence of Germany gave rise also to bodies of customary law, such as the " Sachsenspiegel," written in the thirteenth century by Eike von Repgow, and, later, the " Schwabenspiegel," the " Kaiserrecht " and the " Deutschen- " spiegel." The customs of certain great towns were followed by neighbouring cities ; and the customs of various provinces were consolidated into a " Landrecht," such as the " Oestreichisches Landrecht" of the thirteenth century (a). The introduction of Roman law on a large scale into Germany led in the sixteenth century to general revision of the national customaries (5). In Spain, the period of the collection of local customs (fueros), e. g. the " fuero de Leon," 1020, was followed by attempts at legislation for the whole country. In 1258, Alphonso X. of Castile promulgated the " Siete Partidas," which however were not ratified by the Cortes till 1348. Partida I. relates almost exclusively to ecclesiastical matters ; II. to the king and great officials ; III. to judicial procedure ; IV. and V. to contracts, &c. ; VI. to testaments and successions ; VII. to crimes. In 1567, Philip II. published a Digest of laws, each entitled according to the year and reign of its proclamation, which is known as the " Recopilacion." This was revised and repub- lished in 1776 and in 1804 (c). The local statutes of Portugal were collected in the fifteenth century in the " Codex Alphonsinus," and, during the union of the country with Spain, in the " Ordinatio Philippina." (a) The Landrecht of Bavaria, 1346, the "leges TJpstalbomicse," 1326, and the " Charte de Hainault," 1200, were of the same character. (b) To this movement was due the publication of the Bavarian customs in 1578, of those of Frankfort in 1578, 1611, &c. (c) It contains 12 books, arranged as follows : - I. The Church; n. Ecclesiastical tribunals; III. The king; IV. Royal jurisdiction; v. Ministers; VI. Ranks and taxation ; vn. Municipal government ; VIII. Arts and sciences ; IX.- Commerce and mines ; x. Contracts, testaments and successions ; XI. Civil tribunals ; XII. Delicts and criminal tribunals. Digitized by Microsoft® CODIFICATION. 43 The Slavic customs of Russia were compiled under the title of " Pravada" in the twelfth century. In 1231, Frederic II. published in three books the " Constitutions of the Kingdom of Sicily;" and in 1395, Eleonore, Judge of Arborea in Sar- dinia, promulgated the famous " Carta de Logu." In 1430, Amadeus VIII. of Savoy edited his five books of decrees {d). As the stream of European legislation widens, it becomes impossible within moderate limits to attempt a complete survey of its course ; the general character of which may however be suggested by a few features which must serve as specimens of the rest. In 1532, the Emperor Charles V. published the " Carolina," which is an ordinance embodying the criminal law, as established by custom or derived from the Roman jurispru- dence. It contains 219 articles. In 1610 was published " Das " des Hertzogthums Wurtemberg emeuerte gemeine Land- " recht.*' The laws of Norway were codified by Magnus Lagabaeter, who died 1280, and republished in 1604 by Chris- tian IV. Christian V. of Denmark, in 1683, promulgated a code in six books (e) ; which, when Mr. Laing visited Nor- way, was to be found, comprised in one pocket volume, in every peasant's house in the country {/)• In 1608, Charles IX. of Sweden published a code, which had been preceded in 1442 by the Code of King Christopher (g). Up to this point Europe had added nothing to the ideas of legal method which it had inherited from the Romans. The Romans had introduced three great improvements into formal jurisprudence : first, they had substituted, for a multitude of heterogeneous sources of law, the sole authority of certain (). That it will ever cease to be a source of law is neither to be expected nor to be desired. All that can be wished is to sweep away and supersede all the case-law which exists at the present moment, and to provide, in a way which (a) The utility of judge-made law at certain stages of civilization, when the enlightenment of the courts is superior to that of the legislature, is another question, and beside our present purpose. See Maine, "Ancient Law," ch. ii. (I) See Austin, "Jurisprudence," vol. ii. p. 369. Digitized by Microsoft® CODIFICATION. 57 we shall presently describe, for its periodical absorption, as it springs up again, into the Digest or Code. The main objections urged against codified law are that its provisions will be rigid and inapplicable to new cases ; this ob- jection we have already discussed ; and further, that being thus rigid, it ought to provide expressly for every conceivable case, which of course it will fail to do. These objections to a code have always appeared to us to rest upon a misapprehension of its real nature. Because it defines the terminus a quo, the general principles from which all legal argument must start, it seems to be imagined that it also defines the terminus ad quern, the extent of the application of which those principles are sus- ceptible. A code is therefore asserted to be either an impossi- bility or an evil. An impossibility, if it attempts to state the infinite variety of subsidiary rules which must necessarily be re- cognized before its general rules can be applied to every case which may conceivably arise ; an evil, if it rests satisfied with a statement of the law with reference to cases which have been already considered ; because it must thus leave new cases wholly unprovided for. The fallacy upon which these alternative charges are grounded seems to be the idea that law when ex- pressed in a code has any greater pretensions to finality than when expressed in statutes and reported cases (c). Clearness, not finality, is the object of a code. It does not attempt impos- sibilities, for it is satisfied with presenting the law at that precise stage of elaboration at which it finds it ; neither is it obstruc- tively rigid, for deductions from the general to the particular, and " the competition of opposite analogies," are as available for the decision of new cases under a code, as under any other form in which the law may be embodied (cT). (c) The true idea of a code is well described by the New York Commissioners as follows: — "All that we know of the law we know from written records. To " make a, code is therefore but to make a complete analytical and authoritative " compilation from these records." M. Portalis (" Discours preliminaire du projet " de Code Civil," Locre, vol. i.) said well : " Tout simplifier, est une operation " sur laquelle on a besoin de s'entendre ; tout prevoir, est nn but qu'il est " impossible d'atteindre." (d) Mr. Austin, whose lectures are a mine of thought upon the question of Digitized by Microsoft® 58 CODIFICATION. If, as we hope, we have satisfactorily disposed of the principal objections to codification, it will be unnecessary to do more than briefly enumerate the obvious advantages of such a measure. A code, and the same remarks will apply though in a less degree to a Digest, will greatly popularise the knowledge of law. This is truly stated by the Digest Commissioners to be nothing less than a national duty. " Your Majesty's subjects,"- they say, " in their relations towards each other, are expected to conform " to the law of the state, and are not held excused, on the plea " of ignorance of the law, from the consequences of any wrongful " act. ... It is, as we conceive, a duty of the state to take " care that these laws shall, so far as is practicable, be exhibited " in a form plain, compendious, and accessible, and calculated " to bring home actual knowledge of the law to the greatest " possible number of persons." The knowledge of law which under a well-arranged system is practically attainable by the people is much greater than may be imagined. There are many countries of Europe where the man of business is in the constant habit of consulting his code for guidance in his affairs, and where a certain acquaintance with the law of the land is made the condition of admission to a public employment. But a still more important point in favour of a code is, that it makes it possible for lawyers at least to know the law thoroughly. And this, not only because the law itself will be more rational, and therefore more knowable, but also because the profession will be released from those merely mechanical operations of bringing into juxtaposition statutes separated in date by hundreds of years, and cases decided without the remotest reference to each other, which at present absorb so much of their time and inge- nuity ; and will thus have leisure for attaining a real mastery of principles, and a habit of logically applying them to the new cases which will continually arise. In this way not only will the subject become better understood by the profession, codification (see especially vol. ii. pp. 308 — 378, and vol. iii. pp. 275—298), maintains, in opposition to the distinguished writer of the article in vol. xxix. of the " Edinburgh Review," to which we have already had occasion to allude, that the " competition of opposite analogies " takes place as much under a code as under judge-made law. Digitized by Microsoft® CODIFICATION. 59 but it will afford a better intellectual training to all who have to do with it. The existence of a code would also effect a vast improvement in our legal education, by providing it with an object susceptible of systematic study. Legislation, it is almost needless to say, would be greatly facilitated by the existence of an authoritative statement of those laws upon which, by way of addition, subtraction, or alteration, the legislature has to operate. Local judicatures would be more readily established if a succinct body of law were always at hand for the guidance of the judge ; and were our commercial law embodied in a definite division of a code, it would be possible, by mutual concessions, to assimilate it to the corresponding division in the codes of the Continent. A code may or may not be attained per saltum. In times of revolution the law of a country has been occasionally recast in a very few years, or even months ; but in these cases an old system of law has suddenly given place to a new one generally drawn from a foreign source (e). Here the matter of the law has itself been changed, but such a change is no essential ac- companiment of the formation of a code, which is essentially only a re-expression of what previously existed in a less con- venient form. Where however no important change in the matter of the law is contemplated, a code must be preceded by a digest ; and, especially in a country where so much respect is paid to antiquity as in England, must be a work of much time and labour. A remark, made originally by Mr. Austin in a wider sense, is especially true as applied to codification : " What," he says, " is commonly called the technical part of legislation is " incomparably more difficult than what may be styled the " ethical. In other words, it is far easier to conceive justly " what would be useful law, than so to construct that same law " that it may accomplish its object (_/"). Since the code, in the highest and modern sense of the term, (e) The three codes for the kingdom of Greece, to which we alluded in p. 361, were drawn up in fifteen months. The so-called " codices " of the Roman emperors were likewise framed in a very short space of time, but these were, according to our present use of the term, mere " digests." (/) Jurisprudence, vol. ii. p. 371. Digitized by Microsoft® 60 CODIFICATION. which, as we have said, should be the ideal after which all legislation should strive, is to supersede both our written and our unwritten law, it must be produced by the union into one work of a common-law code and a statute code. It is our opinion that, to avoid confusion, each of these codes should be compiled separately; though of course upon the same plan, with a view to their ultimate unification. For the compilation of each of them five processes are neces- sary. We shall consider these, first, in their application to the statutes, and, secondly, as apphcable to the reports. In order to the formation of a statute code, the Acts of Par- liament must first undergo expurgation. The living statutes must be severed from the dead, and useless ones which still show some signs of vitality must be slain outright by the legis- ture. This process, which, as we have already stated, has been going on some time, is now on the point of completion. Elabo- rate registers have been constructed of all Acts heretofore expressly repealed, and more than three thousand Acts, or parts of Acts, which though not repealed were perfectly obsolete, have been repealed in express terms by the recent expurgation acts. The result is to be presented to the public in a revised edition of the statutes, vastly reduced in bulk by the omission of all that are no longer in force. We would, however, venture most respectfully to suggest to the Government, that this edition might be still further reduced in bulk and increased in utility, if before publication it were subjected to the process which we are about to describe. Nor would its progress thus be delayed for more than a month or two. The next process may be called sifting, and is rendered neces- sary by the very heterogeneous character of our so-called " public-general " statutes, many of which apply exclusively to Ireland, Scotland, India and our colonial dominions. Now it hardly needs argument to prove that, in collected bodies of statutes, Acts affecting England, or the whole of the United Kingdom, should form one body, while those affecting Ireland only, or India only, should form separate publications. It is scarcely less evident that only laws of a really " general" nature should be admitted into such collections ; whereas numbers of Digitized by Microsoft® CODIFICATION. 61 our public-general statutes differ only from avowedly " local and personal " and " private " Acts in having been introduced into parliament at the public expense. An Act confirming an order of the Home Secretary, made under the Local Govern- ment Act, for the improvement, say of Newcastle, is not a whit better qualified for a place among the statutes of the realm, from the accident of its being passed at the public expense, than if it had been introduced as a private Act by the corporation of that borough (^7). Nor, again, should Acts be comprised in a permanent body of law which, although of a really general character, are operative only for the current year, or whose effect is exhausted in conferring exceptional powers upon the executive for some definite object. We would therefore get rid, by sifting, of (1) all non-English statutes; (2) all Acts which are really " local and personal," though technically " general ;" (3) annual Acts ; (4) what may be called mere " legislative warrants ;" leaving only (5), true general English laws. Some idea of the reduction which this process would effect upon the Statute Book may be formed from the fact that out of 122 Acts passed in the Session for 1866, and occupying 1,007 pages, only 54, occupying 336 pages, answer the description of true general English laws (A). The residuum of statute-law, after expurgation and sifting, must be digested. The nature of this process will be already understood from what has been said before. We may define a " Digest " as a distribution, according to a preconceived system, into books, titles and so forth, of a body of laws previously not so distributed, such laws retaining nevertheless their independent vitality, and being, under the ultimate subdivisions of the work, arranged in a merely arbitrary order. The first step towards the formation of a Digest is therefore the selection of a scheme of legal classification ; which should be at once logical, suitable to the comparative importance of the conceptions upon which its (g) [The statute book has been since partially relieved of acts of this nature, though in a very unscientific manner. See the address to the Law Amendment Society, printed later in this volume.] (h) The rest are thus distributable under the other heads: (1) 33; (2) 18; (3)9; (4)8. Digitized by Microsoft® 62 CODIFICATION. divisions are founded, and practically convenient (i). This scheme should be selected with the utmost care, and should be adhered to in all subsequent stages of the progress towards per- fection. When it has been selected, the task of fitting the sta- tutes, and parts of statutes, into their proper places, with refer- ences to the original statute upon which the authority of each depends, will be comparatively easy. The next step is consolidation, the welding together into an organic whole of the various enactments upon a given topic. This process, operating upon the various fragments of Acts of Parliament arranged under any given head in the Digest, would annihilate their separate existence, omit their redundancies and fuse them into one new enactment. Codification is hardly so much a separate process as the completion of consolidation ; for a code is a Digest in which every title has been consolidated. Being a Digest, it is orderly ; being consolidated, it is homo- geneous and organic. It speaks with its own voice only, and contains no trace of its constituent elements. The common law code must be formed in the same way as the statute code. After the reports and such treatises as are acknowledged as sources of law have been cleared of dead law by expurgation, and of law not suitable for an English code by sifting, the residuum must be digested ; the cases must be classified in accordance with the plan; and abstracts of them, or references to them, must be placed under the appropriate titles : some cases must be chosen to support universal, others to support particular propositions. Consolidation, and conse- quently codification, are inapplicable to common law as em- bodied in concrete cases, which must therefore be reduced to their net results stated axiomatically before they can be sub- jected to these processes. Either the common law, or the statutes, or both, may of course remain for any length of time at the digest stage, in order to receive the most mature consideration before they are carried on into codes. It would probably be proper at the (i) The final selection of such » scheme may, of course, he postponed till the stage of codification, and the arrangement of the digest may be merely pro- visional. Digitized by Microsoft® CODIFICATION. 63 same time that the digests are promulgated, to abrogate and repeal, as independent sources of law, all the materials which have been employed in their construction. When the two codes are complete, both having been from the first arranged according to an identical method, they may be with ease woven into a single code, in which the distinction between common law and statute will have ceased to exist. Many important questions have been necessarily left unconsidered in our rapid sketch of a plan for the formal amendment of the law : such as the expediency of making any changes in the matter of the law at the same time that the improvements which we have described are effected in its form ; and the bearing upon the subject of the English distinction between Law and Equity. One essential point, however, remains to be noticed. One other process, which we may call revision, is necessary to per- petuate the good effects of those which we have already de- scribed. Expurgation, sifting, digesting, consolidation and codi- fication may be effected once for all; but revision should be perpetually in operation, and could only be carried on by a per- manent Law Council or department of Justice. The duties of such a council would be in the first place to superintend all legislation upon subjects treated of in the code (_/) ; to see that all bills affecting this portion of the law were drawn according to a regular formula, and with expressed reference to a par- ticular book, title and chapter of the code. The result of such supplementary Acts, or " novells," would be readily noted up by the practitioner. The council ought also to keep a watch upon, sift and classify the results of reported cases, and should from time to time cause bills to be introduced into Parliament embodying the new rules of law thus developed, and assigning to each its proper position as a new section of the code. Lastly, the council should, say at intervals of ten years, republish the code under the authority of Parliament; each new edition re- pealing the preceding one and embodying the results of the inter-decennial legislation and litigation. The absence of some such provision for the incorporation of new law as that which (,;) Many Acts of Parliament, it will be remembered, would have no place in, or effect upon, the code. Digitized by Microsoft® 64 CODIFICATION. we have briefly suggested, and of an organ such as a permanent Law Council, by which the operation might be carried on, appears to us to be a grave defect in most schemes of codifica- tion, and greatly to impair the usefulness of those which have been realized in practice (A). For the later stages of the progress towards perfection which we have attempted to describe, we shall doubtless have many years to wait; but there is no reason why the earlier stages should not be very speedily attained. Of one thing we feel con- fident- 1 — that when once the importance of the question shall be clearly recognized by the people, the day will not be far distant when our law will deserve a reputation for scientific form equal to that which it has long enjoyed for substantial equity. (7i) A periodical revision of the Code Frederic seems to have been contem- plated; a revised edition of the Kussian Code has actually appeared; and the Indian Law Commissioners have recorded their opinion that " at intervals of only " a few years, the enacted law ought to be revised, and so amended as to make " it contain as completely as possible, in the form of definitions, of rules or of " illustrations, everything which may from time to time be deemed fit to be made " a part of it, leaving nothing to rest as law on the authority of previous judicial " decisions." Digitized by Microsoft® III. >ptcimm ai k gigesi. A. & C> L R ; 2 Ch> Ap> 15g . Wood> y _q ^ SmM y> Owen, 35 L. J., Ch. 317. The right is not limited to its present user; but this rule ap- plies only where the general character of the Sect. 3. — The Extent of the Enjoyment. " The right conferred or recognized by the statute 2 & 3 " Will. 4, c. 71, is an absolute indefeasible right to the enjoy- " ment of the light, without reference to the purpose for which " it has been used. Therefore, even if the evidence satisfied " me, which it does not, that for the purpose of their present " business a strong light is not necessary, and that the plaintiffs " will have sufficient light remaining, I should not think the " defendant had established his defence unless he had shown " that, for whatever purpose the plaintiffs might wish to employ " the light, there would be no material interference with it." Ld. Cranworth, Yates v. Jack, L. R., 1 Ch. Ap. 295. " The two authorities" ( Yates v. Jack and Martin v. Goble, q. v. infra) " may be reconciled by saying that the Lord " Chancellor's observations may apply to the user of a house as " it stands, for any purpose for which it may be used in that " condition, not to the user of a house when its whole character Digitized by Microsoft® THE BIGHT TO LIGHT. 83 " has been changed, and it has been rebuilt, leaving the old building " windows untouched, as in the malthouse case." Wood, V.-C, ™ mains ^ j . *. r „ - „ t ne same j Dent v. Auction Mart Co., L. R., 2 Eq. 251. " It is plain that Lord Cranworth was there directing his and only " attention to a case where the plaintiffs are claiming only the ^ h ? re - the " ordinary degree of light." Malins, V.-C, Lanfranchi v- for an or- Mackenzie, L. R, 4 Eq. 421. dinary de- gree of light. Lord Westbury, in the absence of any authority, and with The con- much hesitation, decided that the right is limited to the extent trary view " of its present user. Jackson v. D. of Newcastle, 33 L. J., Ch. 698. " In whatever way precisely the right to enjoy the unob- The right " structed access of light and air from adjoining land may be f^nlL " acquired — still the act of the owner of such land, from which is not ex- " the right flows, must have reference to the state of things at tended ^° " the time when it is supposed to have taken place ; and as the enlarge- " act of the one is inferred from the enjoyment of the other, it ment °* jt - " must in reason be measured by that enjoyment. The consent, " therefore, cannot fairly be extended beyond the access of " light and air through the same aperture (or one of the same " dimensions and in the same position) which existed at the " time when such consent is supposed to have been given." Blanchard v. Bridges, B. & Ad. 176. " If there be a particular user, and the quantity of light A right to " claimed for that is such as would not belong to the ordinary a ? extra °r- dinary " occupations of life, a person who claims that extraordinary amount of " quantity of light cannot establish his right to it unless he can light can "show that he has been in the enjoyment of it for twenty q u i re d by " years." . . . " If he has been in the enjoyment of an extra- known en- " ordinary user for twenty years, that would establish the right g U g n an " against all persons who had reasonable knowledge of it." amount for Malins, V.-C, Lanfranchi v. Mackenzie, L. R., 4 Eq. 421. years. In an action for obstructing the lights of a house which had JSTor can a only seven years previously been converted from a malthouse j^jr* a into a parish workhouse, M'Donald, C. B., said, " This house ordinary " had for twenty years enjoyed light sufficient for a malthouse, amount be " and up to this extent, and no further, the plaintiffs could still to a right g2 Digitized by Microsoft® 84 to an ordi- nary amount except in the same way. The right is not lessened by the use of blinds. The right is the same in town and in country. OF EASEMENTS. " require th.at light should be admitted to it." Martin v. Goble, 1 Camp. 322. To an action for obstructing lights, the defence was, that the windows obstructed had till lately been shaded by blinds sloping upward which had prevented the plaintiff from seeing into the defendant's garden, but that the blinds had recently been taken down and the defendant's privacy injured. Lord Kenyon, after ascertaining that the plaintiff's house was darker in consequence of the defendant's obstruction than it had been while shaded by the blinds, said that " anything which tended to deprive a per- " son of the enjoyment of the light and air in the same quantity " to which his house was entitled as an ancient messuage, " entitled him to an action." Cotterell v. Griffiths, 4 Esp. 69. (So in Yates v. Jack, L. R., 1 Ch. Ap. 295; Dent v. Auction Mart Co., L. R., 2 Eq. 251.) " With respect to the right of the owner to be protected " against any obstruction to the access of light and air to win- " dows, there is no distinction between houses in towns and " houses in country." Kindersley, V.-C, Martin v. Headon, L. R., 2 Eq. 430. (Following Yates v. Jack, L. R., 1 Ch. Ap. 295, and Dent v. Auction Mart Co., L. R., 2 Eq. 238, rather than Clarke v. Clark, L. R., 1 Ch. Ap. 16; Curriers Co. v. Corbett, 13 W. R. 1056; Durell v. Pritchard, L. R., 1 Ch. Ap. 244, and Robson v. Wliittingham, ib. 442.) Digitized by Microsoft® ( 85 ) Title III. THE ACQUISITION OF EASEMENTS. Chapter I. BY GRANT. Sect. 3. — In the case of Light. " Light and air, not being to be used in the soil of the land of Light is " another, are not the subject of actual grant ; but the right to °°y^ of " insist upon the non-obstruction and non-interruption of them actual " more properly arises by a covenant . . . not to interrupt S rant - " the free use of the light and air." Littledale, J., Moore v. Rawson, 3 B. & C. 332. " If a man build an house upon his own ground, and then If the " grant the house to A., and grants certain lands adjoining to ^dern * " B., B. could not build to the stopping up of A.'s lights." house and Ld. Hale, Cox v. Mathews, Ventris, 239. l S?\* Al ' ' the house, " If a man have a vacant piece of ground and build there- neither he, " upon, and that house has very good lights, and he lets this nor a ™ b ~ " house to another, and after he builds upon a contiguous piece vendee of " of ground or lets the ground contiguous to another, who tlle la ^ d > " builds thereupon to the nuisance of the lights of the first struct the " house, the lessee of the first house shall have an action upon ^S^ts of " this case against such builder, &c, for the first house was " granted to him with all the easements, and delights then " belonging to it." Ld. Holt, Eosewell v. Pryor, 6 Mod. 116. " The case was, a man erected a house on his own lands, and and it was " after sells the house to one and the land adjoining to another, ®f lfI to be .. Digitized by Microsoft® 86 OF EASEMENTS. the land is sold first and the house after : " who, by putting piles of timber on the land, obstructed the " lights of the house : and it was resolved, that although it be " a new messuage, yet no person who claims the land by pur- " chase under the builder can obstruct the light any more than " the builder himself could, who cannot derogate from his own " grant, by Twy'sden and Windham, JJ., Hyde being absent " and Kelguge doubting . . . and Kelguge said, suppose the " land had been sold first and the house after, the vendee of " the lands might stop the lights." Palmer v. Fletcher, 1 Levinz, 122. " The action is maintainable against a possessor holding as " tenant for an obstruction to a window existing in the land- " lord's house at the time of the demise, although of recent " construction, and that although there was no stipulation at the " time of the demise against the obstruction." Ld. Tenterden, Riviere v. Bower, 1 Ry. & Moo. 24. or when the quasi- dominant and quasi servient tenements are sold at the same time. Where two unfinished houses were sold together to different persons, spaces existing at the time which were intended for windows, and a plan having been also then produced in which the intended windows were indicated, it was said : " This pur- " chase must be taken to have been subject to certain conditions " at the time of sale, and as these unfinished houses were at " that time so far built as that the openings which were in- " tended to be supplied with windows were sufficiently visible " as they then stood, we must recognize an implied condition " that nothing would afterwards be done by which those " windows might be obstructed, and the purchasers must have " taken subject to what then appeared." Thompson, C. B., Compton v. Richards, 1 Price, 27. " It is well established by the decided cases, that when the " same person possesses a house, having the actual use and en- "joyment of certain lights, and also possesses the adjoining " land, and sells the house to another person, though the lights " be new, he cannot, nor can anyone who claims under him, " build upon the adjoining land so as to obstruct or interrupt " the enjoyment of those lights. . . . The sales to the " plaintiff and defendant being sales by the same vendor, and " taking place at one and the same time, we think the rights of " the parties are brought within the application of the general " rule of law." Swanborough v. Coventry, 9 Bing. 305; S. C, Digitized by Microsoft® ACQUISITION BY GRANT. 87 2 M. & Sc. 362. Cf. the opinion of Parke, B., in Pinnington v. Galland, 9 Ex. 220. " If indeed the builder of a house sells the house with the land But it is " and appurtenances, he cannot build upon the remainder of the now held " ground so near as to stop the lights of the house ; and as he rate only " cannot do it, so neither can his vendee. But if he had sold applies " the vacant piece of ground, and kept the house without re- h^eis^ " serving the benefit of the lights, the vendee might build sold and " against his house ; but in the other case, when he sells the retailed. " house, the vacant piece of ground is by that grant charged " with the lights." Ld. Holt, Tenant v. Goodwin, 2 Ld. Raym. 1093. (Ld. Holt's opinion upon this point is also reported, though less fully, in 6 Mod. 314, but not in 1 Salk. 360.) This view is fully adopted in White v. Bass, 7 H. & N. 722. ( Cf- Suffield v. Brown, 33, L. J., Ch. 249, where Ld. West- bury declared that the French doctrine of the " destination " du pere de famille" is not recognized in English law, and that the rules as to creation of easements upon the severance of property rest upon the maxim that no man may derogate from his own grant.) " There may appear to be some hardship in holding that the No right is " owner of a close who has stood by, without notice or re- S ained . " monstrance, while his neighbour has incurred great expense twenty " in building upon his own adjoining land, should be at liberty, y ears > b y " by subsequent erections to darken the windows, and so de- acquies- " stroy the comfort of such buildings. Yet there can be no cence of " doubt of his right to do so at any time before the expiration bonr^at " " of twenty years from their erection, and this with good common " reason." Blanchard v. Bridges, B. & Ad. 176. law- " If a party who has neglected to secure to himself rights so " important by previous express licence or covenant, relies for " his title to them upon anything short of an acquiescence for " twenty years, we think the onus lies on him of producing " such evidence as leads clearly and conclusively to the inference " of a licence or covenant. It is difficult, perhaps impossible, " to define the necessary amount of such evidence." lb. " Where new lights have been opened with the knowledge of In equity a " and without hindrance from a neighbour, that neighbour will P e ^ son . ac_ ° ° qmescmg " be restrained by a court of equity from obstructing them; and in the Digitized by Microsoft® 88 throwing out of new lights will not be allowed to obstruct them. Nor will his vendee. OP EASEMENTS. " the doctrine of Lord Eldon (in Danny. Spurrier, 7 Ves.231, " 235) applies. Lord Eldon said: ' This Court will not permit " ' a man knowingly, though but passively, to encourage another " ' to lay out money under an erroneous opinion of- title; and the " ' circumstance of looking on is, in many cases, as strong as " ' using terms of encouragement.' " Romilly, M. E., Cotching v. Bassett, 32 Beav. 101. And if the owner of land, adjoining to a building in which new lights have been thrown out with his acquiescence, sell the land, the vendee takes the land subject to the easement, although he has no notice of its existence. Ld. Chelmsford, Miles v. Tobin, 17 L. T., N. S. 432. Chapter II. BY PRESCRIPTION AT COMMON LAW. Br twenty years' nser a presump- tion is raised of a grant. Sect. 3. — In the case op Light. " Evert man, on his own land, has a right to all the light and " air which will come to him; and he may erect, even on the " extremity of his land, buildings with as many windows as he " pleases. In order to make it lawful for him to appropriate to " himself the use of the right, he does not require any consent " from the owner of the adjoining land. He therefore begins " to acquire the right to the enjoyment of the light by mere " occupancy. After he has erected his building, the owner of " the adjoining land may afterwards, within twenty years, build " on his own land, and so obstruct the light which would other- " wise pass to the building of his neighbour. But if the light " be suffered to pass, without interruption during that period, " to the building so erected, the law implies, from the non- " obstruction of the light for that length of time, that the owner " of the adjoining land has consented that the person who has " erected the building upon his land shall continue to enjoy the Digitized by Microsoft® ACQUISITION BY PRESCRIPTION. 89 " light without obstruction." Littledale, J., Moore v. Rawson, 3 B. & C. 332. Nor is such a presumption rebutted by proof that the lights did not exist twenty-two years before the obstruction. Pen- warden v. Ching, 1 Moo. & Malk. 400. (Here it would be necessary to arrange the other cases upon lights at common law, especially those upon the persons who may acquire the right, and those against whom it may be acquired. It may, perhaps, be permissible to remark that by a slight modification of the provisions of Sect. 3 of the Prescrip- tion Act, as to the mode of computing the twenty years, this head of law might be entirely dispensed with. The cases on the custom of London would also here be necessarily inserted.) Chapter IV. SPECIAL METHOD OF ACQUISITION PECULIAK TO LIGHT. Sect. 1. — The Statute 3 & 4 Will. 4, c. 71, s. 3. " And be it further enacted that when the access and use of " light to and for any dwelling-house, workshop, or other " building, shall have been actually enjoyed therewith for the " full period of twenty years without interruption, the right " thereto shall be deemed absolute and indefeasible, any local " usage or custom to the contrary notwithstanding, unless it " shall appear that the same was enjoyed by some consent or " agreement expressly made or given for that purpose by deed " or writing." Sect. 4 {q. v. supra, Chap. III.) applies to this right. Sect. 5 (q. v. ibid) applies also ; except as to allegation of " enjoyment as of right.' ; See Merchant Taylors Co. v. Truscott, 11 Exch. 855 ; Frewen v. Phillips. Sect. 6 (q. v. ibid.) applies to this right. Digitized by Microsoft® 90 OF EASEMENTS. Sects. 7 and 8 do not apply. See, as to Sect. 8, Palk v. Skinner, 18 Q. B. 568. Sects. 9 and 10 (q. v. ibid.) apply to this right ; but N. B., that by 21 & 22 Vict. c. 42 the Prescription Act is extended to Ireland. The enjoy- ment need not be as of right, but must be as an easement. Sect. 2. — Nature of the Enjoyment necessary under the Act. " The third section does not say ' when the access and use of " ' light shall have been enjoyed as of right,' because every " person has a right to so much light as can come in at his " windows. The Prescription Act brought this to a simple " question : it says, that after twenty years' enjoyment without " interruption, the right shall be deemed absolute and inde- " feasible." Cresswell, J., Truscott v. Merchant Taylors Co., 11 Exch. 855. Cf. Flight v. Thomas, 11 Ad. & E. 695. " What, then, is the enjoyment contemplated by the third " section ? We think it clear, that notwithstanding the absence " of the words in the second section above referred to (' by any " ' person claiming right thereto'), it converts into an easement " such an enjoyment only of the access of light over contiguous " land as had been had for the whole period of twenty years, in " the character of an easement, distinct from the enjoyment of " the land itself. The legislature contemplated such a right as " might be interrupted by the adjoining occupier at least during " some part of the time." Parke, B., Harbidge v. Warwick, 3 Exch. 552. (Here would be inserted numerous cases bearing upon the interpretation of the Prescription Act as to, — the mode of calcu- lating the twenty years ; what constitutes " interruption ;" the abrogation of the custom of London ; the " consent or agree- ment in writing ;" &c, &c. A few cases are set out below as to the rights of a reversioner.) The right " It may be that if a man opens a light towards his neigh- may be « ]3 0ur ' s land, the reversioner may have no means of preventing acquired ' J , . under the " a right thereto being acquired by twenty years enjoyment, act without « un i egs h e can prevail upon his tenant to raise an obstruction, the consent, r r Digitized by Microsoft® ACQUISITION BY SPECIAL METHOD. 91 ' or is able to procure from the other party an acknowledgment or even " that the right is enjoyed only by consent." Pollock, C. B., ^there- 6 ' Frewen v. Philips, 11 C. B., N. S. 455. versionerof the servient " The right to window lights may now (as the enjoyment tenement. " need not be as of right) be gained, not only without the con- " sent, but also without the knowledge of the servient owner." Bramwell, B., Jones v. Taplin, 12 C. B., N. S. 853. So Ld. Cranworth in S. C, 11 H. L. 312, and Wood, V.-C, in Simper v. Foley, 2 Johns. & H. 555. Digitized by Microsoft® 92 OF EASEMENTS. What amount of acquies- cence will extinguish the ease- ment in equity. Title IV. EXTINGUISHMENT OF EASEMENTS. Chapter I. BY EXPRESS RELEASE UNDER SEAL. Sect. 3. — In the case op Light. ( Qy. whether any examples f) Chapter II. BY ACQUIESCENCE IN OR CONSENT TO AN OBSTRUCTION. Sect. 3. — In the case op Light. Where the acquiescence is not very decided, equity will grant relief against the obstruction at the hearing of the cause. A slight amount of acquiescence ■will disentitle the plaintiff to an interlocutory injunction against the continuance of the obstruction. L. JJ., Johnson v. Wyatt, 33 L. J., N. S., Ch. 394. Acquies- A plea of acquiescence and replication of fraud, both on cence may e q U ;table grounds, held good in Davies v. Marshall, 10 C. B., at common -N. S. I. law. Digitized by Microsoft® EXTINGUISHMENT BT ABANDONMENT. 93 Chapter III. BY ABANDONMENT. Sect. 3. — In the case of Light. " TVe must consider the enjoyment as giving the right, and What " that it is a wholesome and wise qualification of that rule to amounts i • , ( a t com- " say that the ceasing to enjoy destroys the right, unless at the m0 n law) " time when the party discontinues the enjoyment he does some *? an aban- , , .... , , donment of " act to show that he means to resume it within a reasonable lights. " time." Bayley, J. " It seems to me, that if a person entitled to ancient lights " pulls down his house and erects a blank wall, and suffers that " blank wall to continue for a considerable period of time, it " lies upon him at least to show, that at the time when he so " erected the blank wall, and thus apparently abandoned the " windows which gave light and air to the house, that was not " a perpetual but a temporary enjoyment, and that he intended " to resume the enjoyment within a reasonable period of time." Abbott, C. J. " In this case the building of a blank wall is a stronger cir- " cumstance than if he had merely pulled down the house.'' Littledale, J., Moore v. Rawson, 3 B. & C. 332. A window having been filled up with brick and mortar above twenty years, Lord Ellenborough held that the case stood as if it had never existed. Laurence v. Obee, 3 Camp. 514. If an intention to abandon lights has been communicated to the owner of the servient tenement, quare whether, until such owner has altered his position in reliance upon the intention so communicated, the right is destroyed. Stokoe v. Singers, 8 EU. &B1. 31. Defendant having argued that a flue erected by the plaintiff created the same obstruction as that complained of, it was held that, " nothing short of an act on the part of the plaintiff which " created an obstruction somewhat to the amount of that which " was complained of could deprive a plaintiff of the right to an " injunction." Arcedeckne v. Kelk, 2 Griff. 683. " It would seem that it (the right acquired by twenty years' Digitized by Microsoft® 94 OF EASEMENTS. The tests of aban- donment. The open- ing of a new win- dow is in itself an innocent act, which does not operate as a forfeiture or aban- donment of the right to an an- cient win- dow. A neigh- bouring owner may therefore block up the new light only when he can do so without interfering with the old one. " user under the Act) cannot be lost or defeated by a subse- " quent temporary intermission of enjoyment, not amounting to " abandonment." Ld. Westbury, Taplin v. Jones, 11 H. L. 290. When a plaintiff, having acquired a right to light to his windows, blocks them up, and the defendant, while they are blocked up, purchases the servient tenement and commences building on it, so as to obstruct the windows if open, whereupon the plaintiff opens them and sues for the obstruction ; the plain- tiff's right to recover depends on two points — that he did not close his lights so as to lead the defendant to incur expense or loss on the reasonable belief that they had been permanently abandoned, nor so as to manifest an intention of permanently abandoning the right of using them. Stokoe v. Singers, 8 Ell. & Bl. 31. " Suppose, then, that the owner of a dwelling-house with " such a window, that is with an absolute and indefeasible right " to a certain access of light, opens two other windows, one on " each side of the old window, does the indefeasible right become " thereby defeasible? By opening the new windows he does no " injury or wrong, in the eye of the law, to his neighbour, who is " at liberty to build up against them, so far as he possesses the " right of building on his land ; but it must be remembered that " he possesses no right of building so as to obstruct the ancient " windows, for to that extent his right of building is gone by the " indefeasible right which the statute has conferred." Ld. West- bury, Taplin v. Jones, 11 H. L. 290. " The plain principle appears to me to be, that no one can " interfere with the absolute and indefeasible right of another, " unless where such interference is made necessary by the " wrongful act of the party possessing the right." Ld. Cran- worth, Ibid. < " The owner of the privileged window does nothing unlawful " if he enlarges it, or if he makes a new window in a different " situation. The adjoining owner is at liberty to build upon " his own ground so as to obstruct the addition to the old " window, or to shut out the new one; but he does not regain " his former right of obstructing the old window, which he had " lost by acquiescence; nor does the owner of the old window " lose his former absolute and indefeasible right to it, which he Digitized by Microsoft® EXTINGUISHMENT BY UNITY OP OWNERSHIP. 95 " had gained by length of time." Ld. Chelmsford, Ibid. (This case overruled Renshaio v. Bean, 18 Q. B. 112, and Hutchinson v. Copestake, 9 C. B., N. S. 863, with many others. Though decided upon the statute, its reasoning seems to apply equally to cases of prescription at common law.) Chapter IV. BY UNITY OF OWNEKSHIP. Sect. 3. — In the case op Light. " If I have an ancient house and lights, and I purchase the The ease- " next house or ground when yet no nuisance is done to my ™ ent } s . e *~ ° ... tanguished " former house, now it is clear that my privilege against that I by union of " have purchased ceaseth, for I may use mine own as I will. *? °wner- " Now then suppose I would lease my former house, I may dominant " build upon the latter, or, if I lease my latter, he may build and ser_ " against me as it may seem." Robins v. Barnes, Hobart, 173; me nts. 1 Eo. 937; Sid. 167. " If I am seised of freehold premises and possessed of lease- This is " hold premises adjoining, and there has formerly been an on v , . . case where " easement enjoyed by the occupiers of the one as against the there is a " occupiers of the other, while the premises are in my hand the unlt 7 °* S61S1H * " easement is necessarily suspended, but it is not extinguished, where there " because there is no unity of seisin, and if I part with the i s ^ ut a " premises the right not being extinguished will revive." possession Alderson, B., Thomas v. Thomas, 2 Cr. M. & R. 41. the ease- " I apprehend it is clear that the effect of an union of the on i„ sns . " ownership of dominant and servient tenements for different pended. " estates is not to extinguish an easement of this description " (i.e. of light), but merely to suspend it so long as the union " of ownership continues ; and that upon a severance of the " ownership the easement revives." Wood, V.-C, Simper v. Foley, 2 Johns. & H. 555. Digitized by Microsoft® 96 OF EASEMENTS. Title V. MSTUKBANCE OP EASEMENTS AND KEMEDIES FOB THE SAME. Chapter II. IN THE CASE OF LIGHT. What dis- " In order to give a right of action, and sustain the issue, turbanc.es t " there must be a substantial privation of light sufficient to give a right ° of action at render the occupation of the house uncomfortable, and to law. When a remedy is given in equity. " prevent the plaintiff from carrying on his accustomed business " on the premises as beneficially as he had formerly done.' 7 Best, C. J., Back v. Stacey, 2 C. & P. 466. " With the single exception of reading or for and, I appre- " hend that the above statement correctly lays down the " doctrine in the manner in which it would now be supported " in an action at law." Wood, V.-C, Dent v. Auction Mart Co., L. E., 2 Eq. 245. " It is not every possible, every speculative, exclusion of " light which is the ground of an action ; but that which the " law recognizes, is such a diminution of light as really makes " the premises to a sensible degree less fit for the purposes of " business." Tindal, C. J., Parker v. Smith, 5 C. & P. 438. " To sustain this action there must be a considerable obstruc- " tion of light, and the merely taking off a ray or two will not " be sufficient." Ld. Denman, Pringle v. Wenham, 7 C. & P. 376. Cf. Embrey v. Owen, 6 Exch. 353. " There are many obvious cases of new buildings darkening " those opposite to them, but not in such a degree that an " injunction could be maintained, or an action on the case, Digitized by Microsoft® DISTURBANCE AND REMEDIES. 97 " which however might be maintained in many cases which " would not support an injunction." Ld. Eldon, Attorney- Gen. v. Nichol, 16 Ves. 343. " Where substantial damages would be given at law, as " distinguished from some small sum of 51., 101., or 201., this " Court will interpose." Wood, V.-C, Dent v. Auction Mart Co., L. R, 2 Eq. 238. " Wherever it is shown that the comfort or enjoyment of a " man or his family in the occupation of his house is seriously " interfered with, and still more where he is prevented from " carrying on his business with the same degree of convenience " and advantage as theretofore, by reason of the abstraction of " light caused by his neighbour's new buildings, there is suffi- " cient ground for the interference of this Court." Kindersley, V.-C, Martin v. Heaalon, L. R., 2 Eq. 425. " When the obstruction of the ancient lights of a manufactory " or of business premises renders the buildings to a material " extent less suitable for the business carried on in them, it is, " in my judgment, a case for an injunction, and not merely for " compensation in damages. The foundation of the jurisdiction " appears to be, that injury to property which renders it in a " material degree unsuitable for the purposes to which it is now " applied, or lessens considerably the enjoyment which the " owner has of it. The Court considers that injury of this " nature does not admit of being measured and redressed by " damages." Ld. Westbury, Jackson v. D. of Newcastle, 33 L. J., N. S., Ch. 698. " The Court would probably not interfere (not merely when Where an " the right is of short duration, for I have interfered in cases of m l° nct jon b will not be " very short duration with reference to the obstruction of light), granted. " but when the whole of the property is about to cease imme- " diately — as for instance in the case of notice given under a " Railway Act to take a house." Wood, V.-C, Dent v. Auction Mart Co., 2 L. R., Eq. 238. An injunction refused when title doubtful and there was no reason for hurry. Winstanley v. Lee, 2 Swans. 333. " It seems to me that when, opposite to ancient lights, a wall " is built not higher than the distance between that wall and " the ancient lights, there cannot be, under ordinary circum- " stances, such a material obscuration of the ancient lights as H Digitized by Microsoft® 98 OF EASEMENTS. " to make it necessary for this Court to interfere by way of " injunction.'' Stuart, V.-C, Beadel v. Perry, L. R., 3 Eq. 465. An upright screen of translucent fluted glass, having slanting openings in its framework for the passage of air, raised to a height of thirty-five feet from the ground, and at a distance of thirty feet from the windows of an adjoining house, is not such an obstruction of light and air as the Court will interfere with by injunction. Radcliffe v. D. of Portland, 3 Giff. 702. Where the plaintiff is guilty of laches in coming for an injunc- tion, he will be left to his remedy at law. Cooper v. Hubbuck, 7 Jur. 457. Cf. Senior v. Pawson, 15 W. R. 226. Where an offer is made which will have the effect of putting the plaintiff in as favourable a position as before the erection of the obstruction, the Court should not interfere to compel pulling down or restrain completion of the building. Low v. Innes, 10 Jur., N. S. 1037. When equity will grant a mandatory injunc- tion. " This jurisdiction, so far as it partakes of the nature of a " preventive remedy, that is prohibition of further damage, or " an intended damage, is a jurisdiction that may be exercised " without difficulty, and rests upon the clearest principles. " But there has been superadded to that the power of the Court " to grant what has been denominated 'a mandatory injunction,' " that is, an order compelling a defendant to restore things to " the condition in which they were at the time when the " plaintiff's complaint was made. The exercise of that power " is one that must be attended with the greatest possible caution. " I think, without intending to lay down any rule, that it is con- " fined to cases where the injury done to the plaintiff cannot be " estimated and sufficiently compensated by a pecuniary sum." Ld. Westbury, Isenberg v. East India House Estate Co., 33 L. J., N. S., Ch. 392. " No general rule can he laid down, that relief by way of " injunction will be refused wherever the damage has been " completed before the bill was filed ; but every case must " depend upon its own circumstances, and the Court will not " interfere by way of mandatory injunction, except in cases in " which extreme, or at all events very serious, damage will " ensue from its interference being withheld." L. JJ., Durell v. Pritchard, L. R., 1 Ch. Ap. 251. Digitized by Microsoft® DISTURBANCE AND REMEDIES. 99 " A Court of Equity is not obliged under 25 & 26 Vict. c. 42, A court of " to award damages for disturbance of an easement ; it may e 1 mt y ma y " award them under 21 & 22 Vict. c. 27." Ibid. assess and An enquiry with a view to awarding damages was ordered awar d da- by the Court of Chancery in Isenberg v. East India House Estate Co., ubi sup.; was refused in Johnson v. Wyatt, 33 L. J., N. S., Ch. 394, and in Durell v. Pritchard, ubi sup. " Where the defendant's buildings are completed, and are of " considerable importance, while that of the plaintiff is com- " paratively of small value and importance, the Court will " rather award compensation in damages to the plaintiff than " order the defendant's buildings to be pulled down." Kin- dersley, V.-C, Curriers Co. v. Corbett, 2 Dr. & Sm. 355. The Court refused to appoint a person under 15 & 16 Vict. c. 86, to survey the property before the hearing. Stokes v. City Offices Co., 13 L. T. (N. S.) 81. Liberty given to the defendant to apply at chambers in order to learn whether the works he proposed to carry out would be an interference with the easement. lb. An injunc- ... , y~., ti° n may An injunction granted at common law. Jessel v. Chaplin, sometimes 2 Jur., N. S. 931. be obtained at common law. By certain works done by a railway under their act of par- Compensa- liament, a diminution of light was caused to the plaintiff's house, * 10 ° *°\ ... injury to though the value of the house was otherwise enhanced, so as light under upon the whole not to be diminished in value. It was held that *k e Lan(is . . Clauses an easement is an interest in land for damage to which com- Act. pensation may be claimed under 8 & 9 Vict. c. 18, and that it was no answer that by reason of accidental circumstances the saleable value of the premises was not diminished. Eagle v. Charing Cross Rail. Co., L. E., 2 C. P. 638. The Court will restrain an obstruction to light, though the Person to plaintiff is not the occupier of the house and may have no in- sue ~T t tention of occupying it. Wilson v. Townend, 30 L. J., Ch. 25. be the oc- cupier ; A tenant from year to year may file a bill for an injunction, may be but the injunction will be limited to the duration of his tenancy. * enant Simper v. Foley, 2 Johns. & H. 555. to year ; H 2 Digitized by Microsoft® 100 OF EASEMENTS. or merely A lessee whose term has expired, but who has, agreed for a agreement renewa 'j ma y maintain a suit for obstruction. Gale v. Abbot, for a re- 8 Jur., N. S. 987. newal of an l^ 1 . -^ reversioner may sue for an obstruction to light, not only or rever- when the obstruction is of a permanent nature, but also when sioner. its continuance may afford evidence in denial of his right. Shadwell v. Hutchinson, M. & M. 350 ; Bower v. Hill, 1 Bing., N. C. 555 ; Metropolitan Association v. Petch, 5 C. B., N. S. 504. (Here should be noticed also the cases as to the person to be sued.) Digitized by Microsoft® PART II. WITH SPECIAL KEEERENCE TO THE STATUTES: CONTAINING IV. The Keform of the Statute Book. V. The Statute Book fob 1866. VI. A New Edition of the Statute Book. VII. The Statute Book. VIII. The Pitfalls of the Statute Book. IX. The Classification of the Statutes. X. Additional Note. Digitized by Microsoft® Digitized by Microsoft® IV. Cfr* §Amt of % Statist* |toL {From the Fortnightly Review, 15th September, 1866.) Digitized by Microsoft® Digitized by Microsoft® THE REFORM OF THE STATUTE BOOK, go There was once a time when the study of the law formed part of the education of the finished English gentleman ; and as late as the middle of the last century, Sir William Blackstone taught at Oxford that " a competent knowledge of the laws of that " society in which we live is the proper accomplishment of every " gentleman and scholar." At the present day, as a rule, even the well-educated Englishman knows just as much about law as he knows about physic, and no more. In common with the classes below him, he is, when he wishes to ascertain the rights or remedies to which he is entitled, absolutely in the hands of his professional advisers. There is no doubt that the gulph between lawyer and layman has widened. Abstruse as was the feudal system of jurisprudence, it at least was a system, and as such capable of being scientifically studied. On the other hand, every year of the later centuries of English history has witnessed the rise of endless new provisions, which, while they met the wants of new states of society, have not only ruined the sym- metry of the old system, but have added to it a mass of detail which can be mastered only by the devotion of a lifetime. Such a state of things is by no means satisfactory. Every citizen should be able to form a general conception of the rights and duties of which the law always supposes him to be cognizant, and every educated man should, besides this, have some ac- quaintance with the scientific principles by which the legislation of his country has been guided. (a) Fortnightly Review, 15th September, 1866. Digitized by Microsoft® 106 THE REFORM OF THE STATUTE BOOK. That such knowledge should be possible, implies of course that the law should possess some principles, and should be formed by some method. Where method is present, it is almost as easy to grasp a thousand details as a hundred. By strict sub-division of departments, the steam iron-foundry, which has been called into existence by the necessities of modern com- merce, is managed probably with little more difficulty than the village forge, of which it is the development. But law has not been so wise in this respect as commerce. Method has never been called in to organise the enormously increased mass of legal detail which is the unavoidable accompaniment of modern civilization ; and the result is a jungle through which only the most dexterous lawyers can thread their way in safety, and from which all wise unprofessional people keep at a respectful distance. Existing English Law has, as most people are aware, two principal sources. First, the Common Law of the realm — a collection of rules of immemorial antiquity, modified from time to time by judicial interpretation to suit the wants of a growing people. Secondly, new rules, altering or added to the rules of the Common Law, and imposed upon the country by the act of the legislature. These rules are known as the Statute Law. Both kinds of law are, in their present state, equally open to the charge of want of method ; and both are, consequently, in this respect, in equal need of reform. It is obvious, however, that in order to reform a system of rules, it is necessary in the first place to know exactly what those rules are. Now, the rules of the common law can be learnt only from the (sometimes dis- cordant) utterances of living judges, and from the (also some- times discordant) utterances of their learned predecessors ; and these utterances are embalmed, in the midst of mountains of irrelevant matter, in reports of cases decided at different times during a period of 500 years, and contained in not less than 1,200 volumes. The statutes, on the other hand, although the product of many centuries of legislation, are all ready to our hand, and are contained in, say, fifty quarto volumes. It is, therefore, far Digitized by Microsoft® THE REEOEM OP THE STATUTE BOOK. 1 07 easier to discover what is statute law than what is common law, and proportionably easier to introduce method into the former than into the latter. In fact, the first step in Law Reform is obviously the reform of the Statutes. This alone has hitherto been attempted by Parliament, and to this alone will our re- marks be confined on the present occasion. The subject is really one of the utmost importance to every Englishman, while the principles it involves are such as without any black-letter lore he is quite capable of understanding. The mere statement of the present condition of the statute law is its sufficient condemnation. Every one must have de- rived from newspaper reports of the debates in Parliament some idea of the multitude and the incongruous character of the measures which each year become law. A six months' sus- pension of the habeas corpus, and a reconstruction of the law of bankruptcy; the marriage portion of a royal princess, and a system of precautions against the spread of a cattle plague ; a change in the electoral franchise, and a plan for the improve- ment of workhouses ; all these objects are effected by Acts of Parliament, and all so-called " public general " Acts of Parlia- ment — whether they establish a tribunal destined to last for centuries, or grant an annuity to the doorkeeper of an abolished public office ; whether they apply to the whole of the United Kingdom, or merely authorize the government to sell a house in Leadenhall Street — take their place for ever, one after another, in chronological order, amongst the statutes of the realm. But the legislation of a year does not stop here. Endless acts are also passed giving extraordinary powers to railway companies, dock companies, corporations, and boards of every kind, and not a few affecting only single families or single individuals. Such are acts empowering trustees to do what they are not allowed to do by the terms of their trust, or an Act to enable the Eeverend Jones Smith to hold any bene- fice in the United Kingdom to which he may be presented, any disability notwithstanding. The total number of Acts passed in the last session was 415. They do not, however, all form part of the collection which is generally spoken of as " the statutes" of 1865. A rude system Digitized by Microsoft® 108 THE REFORM OF THE STATUTE BOOK. of classification has grown up, without any distinct legal recog- nition, which divides the Acts of each year, according to the manner in which they were introduced into Parliament, into — ■ (1.) Public general, of which there passed last year, 127; (2.) Public, local and personal, of which there passed 278 ; (3.) Private, of which there passed 10; And the "public general" are alone generally considered as " the statutes" of the year. This arrangement is, however, entirely unscientific. Not a few " local and personal" Acts might well have been included in the " public general," and a vast number of the " public " general" ought to be relegated to a position among the " local " and personal." The distinction, however, though ill carried out, is a true one, and lies at the root of all plans of re-arrangement. The laws which affect the whole nation are far excellence laws, and should be presented to the nation disencumbered of all those enactments which affect only definite localities or definite individuals. How little this object is even aimed at under the present system, will be apparent from an analysis of the so-called public general Acts of last session. They may be roughly grouped under the following heads: — Ireland, 20 Acts; Scotland, 9; Colonies and India, 7; armed forces, annual enactments, 3 ; the revenue of the year, 5 ; cer- tain public works, 7; indemnity, 1; certain counties and places, 8 ; certain private matters, 1 ; confirmations of orders by certain administrative bodies, 16; Parliament, 3; the Church, 5; the Universities, 1; the armed forces, 7; docks and harbours, 2; administration of justice, 6 ; police, 1 ; prisons, 1 ; customs and excise, 6 ; pensions, 1 ; poor, 2 ; lunatics, 1 ; companies, 1 ; partnership, 1 ; wills, 1 ; carriers, 1 ; patents, 1 ; sewage, 1 ; locomotives, 1 ; public-houses, 1 ; dogs, 1 ; salmon, 1 ; to con- tinue an Act, 1; foreign jurisdiction, 1. Total, 125. Under the first 10 heads we have grouped 77 Acts; under the remaining heads, 48. The arrangement only professes to be accurate enough for purposes of illustration, but, subject to this observation, it is submitted that the 77 Acts grouped under heads 1 to 10 have no right to a place in the statute book at all. Digitized by Microsoft® THE REFORM OF THE STATUTE BOOK. 109 In the first place the accident of the English Government being at the head of a vast colonial empire, as well as of the kingdom of England, is no valid reason for encumbering the statute book of the realm with those colonial laws which it happens to be necessary to pass in the Imperial legislature. Laws affecting Canada only, or India only, must of course be officially printed, and must not only be communicated to such parts of the world as they may concern, but must also be accessible in England, because England contains the supreme legislature, executive and court of appeal of the empire. Such enactments, however, form no part of the law administered in the ordinary courts of justice, and should form no part of the English statute book. The same reasoning would expunge also laws affecting only Scotland and Ireland. Another set of enactments which might well be banished from their present position, are those which merely keep in motion the machinery of government during the current year. These we have grouped under heads 4 — 7. They are really in the nature of warrants issued by the sovereign power to its officers, empowering them to do certain definite acts, or cheques drawn by the same power upon its banker. Some of them may doubtless have to be pleaded in the ordinary law courts, during the year of their currency, and perhaps even after that year, but this alone is of course no proof that an enactment is a real law. Under heads 8 — 10 we have placed those laws which, though now printed as public general Acts, are essentially local or per- sonal. Acts re-arranging the sessional divisions of the county of Sussex, or for discontinuing the borough gaol at Falmouth, are more analogous to Royal charters than to laws proper. It may doubtless be questioned whether Acts applicable to the metro- polis only are to be considered of this nature, or whether, since they affect the seat of government, they should be treated as of a " public" character. Of a distinctly local character are the numerous Acts passed to give validity to acts done by various administrative bodies in excess of their inherent powers. These, which should properly Digitized by Microsoft® 110 THE REFOKM OF THE STATUTE BOOK. be private Acts, are made " public general," merely to save expense to the parties concerned. It is scarcely necessary to add that " An Act to render valid Marriages heretofore solem- " nized in the Chapel of Ease called St. James the Greater " Chapel, Eastbury, in the Parish of Lamborne, in the County " of Berks," is very ill-described as a " pubhc general" statute. We have shown cause for the elimination — I. of statutes which have no reference to England; II. of statutes which merely keep in motion for the year the machine of government; III. of statutes which affect only certain localities or certain individuals in England. These last year amounted to 77. There were also in the same year 278 so-called " public, local " and personal," and 10 avowedly private Acts; giving thus a total of 365 Acts which have no valid claim to a place in the statute book. They differ widely amongst themselves, and greatly need improved classification, but have one property in common — that they are not properly laws of the realm : and this excludes them from our consideration. The legislative result of the year 1865 is, therefore, reducible to the fifty Acts which we have arranged under the heads 11 — 34. That is to say, we have, in idea, reduced the statute book of last year to less than half its actual bulk. The same process applied to the statute book as a whole, would obviously reduce the fifty volumes of which it at present consists to twenty-five. This satisfactory result would be accomplished simply by excluding from our collection of pubhc laws all enactments which are not pubhc laws. This process we will call sifting. But some other processes should follow the first. An enormous number of Acts and sections of Acts either have been expressly repealed, or have become, from the changed circumstances of the nation, practically obsolete. These should evidently be weeded out of the statute book, of which they constitute per- haps half; and the process of weeding them out is well described as expurgation. Sifting and expurgation would reduce the statute book from fifty volumes to perhaps ten. The diminution in bulk would be in itself a great gain ; but evils even worse than excessive bulk would remain uncured. These evils are due to the merely Digitized by Microsoft® THE REFORM OF THE STATUTE BOOK. Ill chronological order in which the statutes are arranged, and will be at once understood by an instance. At common law neither the plaintiff nor the defendant were entitled to get the costs of an action in which he was suc- cessful paid them by the losing. party. It was, however, pro- vided by the statute of Gloucester (6 Edward I. c. 1) that the plaintiff, in all actions in which he recovers damages, shall also recover against the defendant his costs of suit, and in almost every reign from that time to the present, statutes have been passed extending, varying and abridging the claim of the suc- cessful party to the costs which he has incurred in enforcing his rights by action. A suitor therefore at the present day, in order to ascertain his right to costs in any particular case, might have to consult a statute of Edward I., one of Elizabeth, one of James I., one of George III., and half a dozen of Victoria. "Well might the Common Law Commissioners say, " The " statutes which give to the parties a right to costs are in a very " confused and unsatisfactory state. Not only have the separate " enactments of the older statutes given rise to a variety of deci- " sions, but subsequent statutes have in some instances modi- " fied, and in others partially repealed, former enactments, so " that it is extremely difficult to ascertain what the real state of " the law is upon this subject. We are of opinion that these " statutes should be revised and consolidated (S)." The mode in which the subject of costs is treated in the statute book is but a sample of the mode in which all other subjects are treated. A principle is laid down in the time of the Plantagenets, altered under the Tudors, varied under the Stuarts, and partially repealed, and then perhaps revived in a new shape under the House of Hanover. And the trained mind of the bench and bar is wasted and degraded in the semi- mechanical labour of putting into juxta-position for present use enactments historically separated by intervals of centuries. The process by which such a state of things is to be remedied must be the grouping of all the statutes under certain heads, according to their subject-matter, and irrespectively of their (i) Third Report, 1850, p. 7. Digitized by Microsoft® 112 THE REFORM OF THE STATUTE BOOK. chronological order except as between the statutes grouped under the same head. Thus all the statutes relating to costs would be gathered out of the many volumes in which they are scattered, and confronted with one another in consecutive pages. The like would be done with the laws of marriage, master and servant, contracts of sale, and so on. This process is called digesting. When, however, the statutes relating to any given subject were confronted with one another under one head, a vast amount of verbiage would at once be seen to be superfluous, and due merely to the fact that the statutes were when enacted sepa- rated from similar statutes by long stretches of years, which it was necessary to bridge over by tedious recitals, and frequent phrases of reference. These would be retrenched, and the various statutes, with all their various provisoes, relating to any one subject would be modelled into one consistent whole. This process is that generally known as consolidation. The next step would be a philosophical reconsideration of the principles upon which the statutes had been divided into groups, and such modification of this arrangement as should exhibit them in a really scientific order — the species under the genus, and the particular cases under the species. And this reconstruction, which might either precede or follow the last two processes, is fairly entitled to be called codification. The processes already enumerated, by which the statute law might be at once reduced to at most one-fifth of its present bulk, and at the same time become coherent and intelligible — namely, sifting, expurgation, digesting, consolidation and codification — affect merely the form in which the law is made accessible, not the substance of its enactments. They could also be effected once for all. The legislature will, however, never consent to abstain for ever from any alteration of even the most perfect statute code, which, indeed, from the movement of human affairs, would speedily become worse than useless. Another process, therefore, remains to which it must be subjected, which will affect its substance as well as its form, and which will never cease to operate. This we may call revision. It is in fact the result of the change which every year's session of Parliament Digitized by Microsoft® THE REFORM OF THE STATUTE BOOK. 113 will work in both the substance and the form of the law — not the enactments themselves, which every year pass the Houses of Lords and Commons and receive the Royal Assent, but the application of those enactments to the pre-existing statute code. For, once having got our statute code into scientific shape, we must never allow it, by the accretions of new statutes arranged in the old chronological fashion, to fall into the old state of confusion. The uses and the interest of a merely chronological series of statutes are inestimable. Such a series, as Mr. Froude has pointed out and has demonstrated in practice, forms the most authentic skeleton of history. Any more magnificent national monument than the ten folio volumes published under the direction of the Record Commissioners, which exhibit with critical accuracy every statute passed from the time of King Henry III. to the death of Queen Anne, it is impossible to conceive. Domesday itself must yield the palm to so indis- putable and continuous a panorama of the state of England during five centuries. But the uses of such a monument are historical rather than legal. The proceedings entered on the rolls of Parliament ought doubtless to be printed in full in chronological order, and every great library should have a copy of the " Statutes at Large." Scotch, Irish, Colonial, Local and Personal Acts should also doubtless be printed separately, and preserved and combined in such ways as shall make them most useful for the purpose for which they were severally enacted; and some of these combinations should certainly be effected by Government. But what is pre-eminently the duty of Government is to select from the mass of statutes those which form part of the true law of England, to arrange them in a code in the manner before specified, and to provide that the code thus constituted shall alone be quoted as binding statute law in courts of justice. The duty of Government in this respect will of course not cease with the formation of the code. The process of " Revision" would consist in incorporating year by year into the code such portions of the year's legislation as might deserve a place there. In order to effect this it would be necessary — (1.) That Bills should be drawn upon a regular system, and always with reference to the part of the code which it might be Digitized by Microsoft® 1 14 THE REFORM OF THE STATUTE BOOK. intended to alter. No patchwork or verbal changes, or repeals by vague inference, should be allowed ; but every Bill should expressly repeal such and such a section of the code, and in its place Substitute such and such a new section, or should enact that to such and such a chapter such and such new sections should be added. (2.) That every ten years the code should be republished by Government, containing the new sections in their proper places, and omitting those which had been repealed. (3.) That to carry out this double work of introducing proper Bills into Parliament, and of adapting the results of legislation to the code, a permanent commission should be appointed. When the nation becomes conscious of the importance of the duties which such a commission would discharge, it would endeavour to attract into it by high salaries, and possibly seats in the Privy Council, the ablest intellects of the day. The lawyer would then possess in the code, we will say, of 1870, which would occupy perhaps five or six volumes, the whole statute law of England in force at that date. He would also, during the decade 1870 — 1880, have to purchase certain emendations on the code, which might be called by the old Roman word " Novels," the effect of which upon the code would be so obvious, that an ordinary clerk might be trusted to note them upon its margin. After the year 1880 the lawyer might either continue to use his old code, as varied by the Novels, or at a moderate outlay might buy the new code which would be published that year, and which thenceforth would alone be allowed to be quoted in court. It appears to us that this plan would be both simpler and more efficient than any which has hitherto been proposed. For many plans have been proposed for remedying the present intolerable confusion. King Edward VI. wrote, " I have showed my opinion here- " tofore what statutes I think most necessary to be enacted this " session ; nevertheless I could wish, that beside them hereafter, " when time shall serve, the superfluous and tedious statutes " were brought into one sum together, and made more plain " and short to the intent that men might better understand Digitized by Microsoft® THE REFORM OF THE STATUTE BOOK. 115 " tliem ; which thing shall much help to advance the profit of " the Commonwealth" (e). In the reign of Queen Elizabeth Sir Nicholas Bacon drew up a scheme for reducing, ordering and printing the statutes of the realm, of which the heads were as follows: — "First, where " many lawes be made for one thing, the same are to be reduced " and established into one lawe, and the former to be abrogated. " Item, where there is but one lawe for one thing, that these " lawes are to remain in case as they be. Item, that all the " Actes be digested into titles and printed according to the " abridgment of the statutes. Item, where part of one Acte " standeth in force and another part abrogated, there shall be " no more printed but that that standeth in force. The doeing " of these things maie be committed to the persons hereunder " written, if it shall so please her Majestie and her Counsel!, " and dare wolde be given to the committees until the first daie " of Michlemass Terme next coming for the doing of this, and " then they are to declare their doings, to be considered by such " persons as it shall please her Majestie to appoint" (d ). Several attempts at a- reform of the Statute Book were made from time to time in accordance with these recommendations. Lord Bacon has left some remarks upon this subject which are worthy of their author. He had himself formed a design of digesting the laws, which he says he had relinquished " because " it is a work of assistance, and that I cannot master it by mine "own resources and pen"(e); but in the " De Augmentis " Scientiarum," he had laid down the method in which it ought to be done (/ ). " There are two ways," he says, " of making " a new statute. The one confirms and strengthens former " statutes on the same subject, and then makes a few additions " and alterations ; the other repeals and cancels all former enact- " ments, and substitutes an entirely new and uniform law. The " last method is the best." (Aph. 53.) And he well describes the confusion which even then existed. " Since an express (c) Ajiud Burnet's " History of the Reformation," ii. pt. ii. p. 14. (