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Commissioners an absolute power over the whole Statute Law of England! I conceive, on the contrary, that Parliament would never entertain such a proposal for a moment; and that if it did, it would be a most improper and unconstitutional abandonment of all its duties and functions.
With respect to the “Resolutions" of the Committee, the general purport of them is that an “authorized” edition of the Public Statutes should be prepared, omitting all Acts or parts of Acts which are expired, obsolete, or expressly or impliedly repealed, as to which edition, when completed, there should be an Act to declare that no public general enactment which is not inserted in it should be of any force or effect. Omitting criticism on minor points (such as the question what are public general enactments, and very many
others which present serious difficulties), the effect of this proposal is, so far as regards Acts unequivocally expired or repealed, that there should be an Act to declare that repealed Acts are repealed, and that expired Acts have expired; and as regards implied repeals, that the Parliament should (as already objected) abdicate its duties in favour of “certain Commissioners" 'to an extent quite unjustifiable and entirely out of the question.
I hope you will not think it improper to lay these few hasty observations on the Report of the Committee before the members of the Society at its next meeting. I should observe that I have not attempted to go into all the details of the statements in the Report.
Your faithful Servant,
H. BELLEN DEN KER. February, 1856. Note.- I could not produce a better example of the difficulty there must always be in any attempt to repeal any large body of the Statute Law without the most careful and laborious consideration, than by referring to a Bill brought into Parliament last year by your Lordship, “ for the further Relief of the Subject from Penalties and Disabilities touching Religion and Religious Worship.” In the preparation of this Bill you had the assistance of your learned friend Mr. Field, of the Chancery bar, and of that gentleman's brother, and also of Mr. Anstey, whom you characterize (and most justly I conceive) as a learned and indefatigable fellowlabourer.. This Bill proposes to repeal ninety-nine English statutes, in whole or in part. It having been referred to the Statute Law Commission, it became my duty to consider in detail the different statutes to which it referred. Of the ninety-nine, seven had been already expressly repealed ; sixteen had expired or had performed their office. I am aware that some advocate the necessity of clearing the Statute Book, as it is termed, by repealing all Acts not in force. I cannot see the propriety of this, and in some cases it must be wrong, as the repeal of the attainder of Sir Thomas More. Thirteen I conceived re not fit to be repealed without much detailed discussion. I may, however, give an example of one, 29 C. 2, c. 9, which abolishes the writ de hæretico comburendo, reserving the ecclesiastical jurisdiction in heresy and the power to proceed therein as therein is mentioned. Now if this statute had been repealed, it would have revived the writ. What was intended, I assume, was to repeal the reservation. As regards the rest of the ninety-nine Acts, so far as their repeal might be advisable, they could only with propriety be repealed by at the same time amending and consolidating the law relating to
1. The Constitution and Services of the Church.
H. B. K.
ART. IX.-CURRENT LEGAL LITERATURE.
1. Smith's Leading Cases. 4th ed. By MR. JUSTICE WILLES
and MR. KEATING, Q.C., M.P. 2. Blackstone's Commentaries abridged. By SAMUEL WARREN,
Esq., Q.C., M.P. 3. Commentaries on the Common Law. By HERBERT BROOM,
M.A., Reader in Common Law to the Inns of Court.
HE titles above collocated, of works occupying several and
distinct portions of the field of legal literature, and addressed to different classes of readers or students of our law, suggest to us important questions, which are now beginning somewhat vehemently to agitate and perplex the mind of the community. Is law susceptible, as any other science, of being exhibited in a definite shape to the inquirer's eye,--of being mapped out,reduced within fixed rules and principles, and put forth as an intelligible whole? Is our law, indeed, but a crude and illdigested mass of subtleties and arbitrary dicta,-of statutory provisions, untranslatable by the vulgar,--of precedents which by seeming analogies invite but to destruction the unwary or unadvised ? These are questions to which none who had pondered on and considered them would willingly respond with a simple Yea or Nay. And there is another problem still behind, to the solution of which the thinking part of our population is beginning steadfastly to apply itself. Can the codification of our common or unwritten law successfully be attempted ? If carried out, would it effectuate the ends which those who advocate codification have in view ? Questions such as these-of grave and serious import-suggest themselves to us on perusing the titles merely of the works prefixed to this article ; by any one who examines, with even moderate assiduity, their contents, the importance and pertinency of the queries above submitted will most indubitably be recognised. In these Leading Cases, selected with a cautious and unerring judgment,-in these Commentaries upon the Law, abridged and condensed within the very strictest limits,—we find compressed and methodized an amount of matter tested as to its accuracy by the most recent decisions, and elaborated with the most earnest care, which, we really think, might go far towards supplying the desideratum of a code to the full as good as that of our continental neighbours; or at all events might convince the most stubborn and sceptical of non-codifiers, that the plan which has been proposed for their acceptance is feasible and sound. Without, however, committing ourselves at this moment to a decided opinion in reference to the point here mooted, we can very earnestly deprecate one objection, which we have occasionally heard put forward to the scheme of codifying our common law :-"Granted that this be done,” it is said, “how many cases annually will call for judicial settlement not falling within the letter of the code?" To which the answer offered is, “So many that the code itself will prove to be of little use, perchance will become an incumbrance, instead of a help, to the administrators of justice.” Now, admitting that reports will still be needed—not a whit less than at presentby that race of lawyers who shall witness the promulgation of a code; admitting, as we most unfeignedly do, that laws cannot be framed or organized applicable “to every possible transaction,”—every contingency or state of facts,—we yet think that the public has a right to demand that the leading rules, civil as well as criminal, which are to govern it, shall be presented in a clear, simple, and intelligible form, so that he who will may read, learn, and understand them. That the object here indicated might be effected by a code, and never has been or will be effected by treatises of a technical character, or by critical disquisitions upon decided cases, we most surely and most cordially believe.
During that long interval, however, which will indubitably elapse ere the codification of our Common Law be realized, recourse must be had for information upon legal topics to Treatises and Commentaries upon Law, to Selections of Cases, or to the Reports themselves, of which the arrears, accumulated for centuries, have now to be digested by the lawyer. In this belief, and without further preamble, we shall proceed to direct the attention of our readers very briefly to the list of books noticeable suprà.
To the fourth edition of “J. W. Smith's Leading Cases," by Mr. Justice Willes and Mr. Keating, we have applied ourselves with very lively interest. In the first volume, we mark the omission, necessitated by recent changes, of four cases; viz., Aslin v. Parkin, Crogate's case (for which has been substituted Taylor v. Cole, 3 T. R. 292), Robinson v. Raley, and Trueman v. Fenton. In the second volume of the work before us, one case–Bent v. Baker-is omitted, and one-Doe d. Didsbury v. Thomas—is added. To the report of Godsall v. Boldero is subjoined that of Dalby v. the India and London Life Assurance Company (15 C. B. 365); and in the Note appended to these cases various important additions and alterations have been made.
With reference to a book so very well known and thoroughly appreciated as this, laudatory remarks would be superfluous. We shall, however, be of some service to such of our readers as are conversant with the preceding edition of it, by suggesting a perusal of the following passages :—The observations as to the science and system of pleading since the passing of the Common Law Procedure Act, 1852; and as to New Assignments, and the consequences which are now to be apprehended from a mistake in the form of action (vol. I. pp. 102-105, and 358); the rule of law applicable where the plaintiff has himself contributed to an injury caused mainly, or in part, by the defendant's negligence (id. p. 220); and the lucid statement of the law exhibited under the form of nine distinct propositions, touching “the exoneration, satisfaction, or discharge of debts or demands not under seal,”—a subject very complicated and difficult.-(Id. p. 253.)
In the second volume of this work we observe, that in commenting on Hadley v. Baxendale (9 Exch. 341), the learned editors give as their opinion that the rule there laid down “is one which it would be in many cases difficult to apply in its precise terms, and it was not perhaps intended to lay down that the amount of damages should depend on the mere knowledge or ignorance of the defendant of the surrounding circumstances, apart from contract, express or implied, to be liable for the extraordinary amount of damages to which those circumstances might give rise; and, reading the expressions in the judgment secundum subjectam materiem, they appear capable of this construction.”
Of Mr. Warren's work we have already recorded a favourable opinion in these pages (Law Magazine for August last, p. 8); it is a masterly abridgment of Blackstone's Commentaries, and much more than an abridgment, inasmuch as the changes in our law are here traced out down to the most recent period, and explained with much care, clearness, and conciseness. “ It is considered,” remarks the author, " that the proper method of preparing for the public such a work as the present, is to conceive, if possible, how Sir W. Blackstone would now look at the edifice of our laws and constitution after a century's legislation, giving him credit for being himself imbued with the spirit of an age entitled to be regarded as one of progress and enlightenment. It has been endeavoured to do this in the present volume, which may be regarded as a synopsis of our laws and constitution as they stand in the year 1855.”—(Introd. p. xlix.) The object here set forth has, we think, been zealously kept in view and faithfully carried out by the learned compiler of these