Wil-You. Wilson v. West Hartlepool Rail. Co., 2 De G. J. Wimbish v. Tailbois, Plowd. at p. 59 ford, 6 C. B. N. S. 356. Wood, Re, L. R. 7 Ch. at p. 306 v. Riley, L. R. 3 C. P. 26 v. U. S. 16 Peters, 342 Woodward v. Cotton, 1 C. M. & R. 44 v. Sarsons, L. R. 10 C. P. at p. 746 v. Watts, 2 E. & B. 452 Worsley v. South Devon Rail. Co., 16 Q. B. PAGE 227 115 11 147 240 236 147 174, 285 210 72, 75 21 155 326 220 205 109, 115 300 YALE v. The King, 6 Brown Parl. Cas. 27, 30 York, Dean and Chapter v. Middleborough, 2 Y. York, Matter of Dean of, 2 Q. B. 34 Ystalfera Iron Co. v. Neath & Brecon Rail. Co., Page 70 (note f) for Crowther's case read Crouther's case. 32 32 187 (note d) for R. v. Cambrian Rail. Co.'s scheme read Re Cambrian Rail. Co.'s scheme. CHAPTER I. STATUTES AND STATUTE LAW. Law: finition. STATUTE Law has usually been defined as the Statute written law, lex scripta, in contrast with Common usual deLaw, which has received the name of the unwritten law, lex non scripta (a). But this definition is manifestly incomplete and unsatisfactory. It is open to the grave objection that it substitutes a comparison of two things, not having necessarily such a relation to each other, for the exact description of the one thing which it professes to supply. By thus putting Statute Law in antagonism with Common Law, it virtually assumes that the leading characteristic of the one is opposed to the leading characteristic of the other. Regarding Common Law as unwritten, and therefore residing solely in the breasts of the judges, it would teach us to consider Statute Law as written, and therefore placed above all the changes and chances of judicial interpretation. In the one case, we boast of Implies elasticity; in the other, we look for certainty. Statute Yet the most cursory examination of the Statute certain. (a) Hale's Hist. Common Law, 21; 1 Blackstone, 63; 1 Kent's Commentaries, 446. B that Law is Causes of its uncertainty. 1. Imperfection of Book, and of the cases which have been decided upon the construction of statutes, will show that this result cannot be expected, and has never been attained. "Sure I am," said Lord Bacon in his Proposal for Amending the Laws of England (b), "there are more doubts that rise upon our statutes, which are a text law, than upon the Common Law, which is no text law." The experience of nearly three centuries has fully justified this saying, and shown the prophetic insight of its author. But if such doubts prevailed in comparatively early times, before the framers of statutes had passed from extreme conciseness to extreme diffuseness, from the enunciation of general principles to an enumeration of particular instances; before successive Parliaments attempted by compromises to cure the evils of a past legislation which they were neither bold enough nor strong enough to undo; before succeeding generations of judges sought by refined and subtle distinctions to minimise the effect of decisions which they would not overrule, but in which they could not acquiesce; what words can express the feelings of perplexity with which a modern observer must approach the subject? The doubts and difficulties which chiefly tend to create uncertainty in the Statute Law are due to several causes. The first of these, though not the most fruitful, language. is the imperfection of all human language. The greatest care, the highest art, the fullest mastery (b) Bacon's Works, by Basil Montagu, vol. v., p. 346. of diction, have not always availed to banish obscure passages from the works of our classical authors. Even if a writer has a clear conception of the thoughts which he wishes to express, and chooses with extreme accuracy the precise words which convey his meaning, he cannot be certain that his readers will understand those words in the same sense as that in which he has used them. "There is no word in the English language which does not admit of various interpretations. It is, no doubt, frequently found that the imperfection of language leads to litigation on the construction of statutes and the meaning of terms" (c). Words which when first received into our language had a definite meaning, and which retained that meaning so long as their origin was regarded, have lost their primary sense by passing from the few to the many, from the works of scholars to the talk of the people. Sometimes the primary sense of the word survives the change, but is used by purists only. Sometimes the popular use gives way to the necessities of some art or trade, and the word acquires a technical meaning. While language itself brings in these elements of doubt and is subject to such constant change, it is difficult to accept a definition which would give Statute Law the character of certainty. guage and We come, however, to a much more fruitful 2. Lansource of trouble when we consider the language style of and style which have been adopted by the framers themof our statutes. The draftsmen who have pre (c) R. v. Skeen, Bell's Crown Cases, at p. 134, per Pollock, C.B. statutes selves. |