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LEGISLATURE 
 
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 JUDICIARY 
 
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 LEGISLATURE 
 
 AND 
 
 JUDICIARY 
 
 BY THE RIGHT HONOURABLE THE 
 
 LORD SHAW OF DUNFERMLINE 
 
 LL.D., K.C, ETC. 
 
 IHnlversite of UonDon press 
 
 PUBLISHED FOR THE UNIVERSITY OF LONDON PRESS, LTD. 
 BY HODDER & STOUGHTON, WARWICK SQUARE, E.C. 
 
 I9II 
 
HODDER AND STOUGHTON 
 
 PUBLISHERS TO 
 
 THE UNIVERSITY OF LONDON PRESS 
 

 
 C7 
 
 PREFACE 
 
 Upon the invitation of the authorities 
 of University College, London, I opened 
 a course of Jurisprudence there on 
 November 22 last. And they have kindly 
 urged that the address which I then 
 delivered be printed. Hence these pages. 
 
 The Chair of the Lecture Hall was 
 occupied by my distinguished friend Mr. 
 Haldane, now Viscount Haldane of Cloan, 
 the Secretary for War. He had just been 
 inspecting the drill of the University 
 Territorials in the College quadrangle. 
 That being concluded, he entered the 
 meeting and delivered a speech of even 
 more than the expected distinction and 
 
 941 
 
vi PREFACE 
 
 power. Those were great days of Rome 
 when the avenues to high place in the 
 State were the profession of arms, elo- 
 quence and law. But even then it must 
 have rarely happened that one man of mark 
 could have trod those three avenues in 
 one and the same afternoon. I regret to 
 add that the speech was not recorded : 
 otherwise I should have insisted on its 
 reappearing here ; for the learned Viscount 
 shared my views, but he set them forth 
 with a felicity to be envied, and a 
 philosophy which awakened interest and 
 thought. 
 
 The methods of the didactic treatise 
 were, of course, unsuited to a prelection of 
 this character, and accordingly elaborate 
 citation of authority has been avoided. A 
 good body of such authority exists in 
 England : but I may remark upon the 
 
PREFACE vii 
 
 pleasure with which I have observed the 
 growth in America of an expansive crop 
 of well-considered writings upon some of 
 the topics here dealt with. I speak in 
 the text of Dr. Coolidge Carter's work, 
 from which more than one quotation is 
 given : and the reader would peruse with 
 profit and pleasure a volume just issued 
 from Yale University, — Mr. Howard 
 Mcllwaine's book on "The High Court 
 of Parliament and its Supremacy." 
 
 I Palace Gate, 
 
 London, S.W. 
 
 March igii. 
 
LEGISLATURE AND JUDICIARY 
 
 There are two propositions with regard 
 to the relations of Legislature and 
 Judiciary which in our day have become 
 mere propositions of commonplace, — the 
 first, namely, that the former is free, and 
 the second that the latter is bound. And 
 if these propositions are taken in a sense 
 sufficiently general and wide, they may be 
 accepted as true. The British Legislature 
 is free — in other words, the power which 
 formulates and enacts laws can choose its 
 own road. The Judiciary is bound — in 
 other words, the power which interprets 
 and applies laws must choose the path 
 prescribed. 
 
10 LEGISLATURE AND 
 
 Were this wide and general truth the 
 whole truth, the relation between these 
 two forces in the State might be summed 
 up as those of control on the one hand — 
 to the point of domination, and of obedi- 
 ence on the other — to the point of sub- 
 serviency. Beyond this there would be 
 nothing more to be said. 
 
 Simple as all this seems now, it was 
 reached as the result of a development of 
 the constitution proceeding over hundreds 
 of years. The judges were the King's 
 officers of state ; they were not even 
 separated from the legislature, and they 
 interpreted Statutes or even set them aside 
 with a vigorous freedom. *' When," for 
 instance, "Counsel, in a case in 1305, 
 argued for a certain construction of 
 the Statute of Westminster Second of 
 1285, ^^ was cut short by the Chief 
 
JUDICIARY 11 
 
 Justice with the remark : ^Bo not gloss the 
 Statute : we understand it better than you^ 
 for we made it ! ' " It may, in fact, be 
 taken as generally accurate to say that the 
 predominance, the supremacy of Parlia- 
 ment over the Judiciary — as over much 
 else — dates from the Revolution Settle- 
 ment. You will find the story told in 
 the last chapter of Mr. Mcllwaine's work 
 on the High Court of Parliament. 
 
 But these two propositions reached, in 
 the hands of the great and accomplished 
 legal reformers, a theoretic rigidity and a 
 logical outcome which we look back upon 
 to-day with interest and with surprise. 
 
 A generation ago, or even later, many 
 of the school of Bentham and Austin 
 would have stoutly maintained that they 
 did contain not only the truth, but the 
 whole truth — holding, as they still did, to 
 
i 
 
 12 LEGISLATURE AND 
 
 the rough theory that enacted laws were 
 the whole law. Here was a handy broad- 
 axe : it sheared away origins, crippled 
 functions, smote philosophy and cleared 
 the ground of history — leaving the 
 student unharassed by notions of such 
 things as evolution or a scientific growth 
 in jurisprudence, and filled with a com- 
 fortable complacency that he lived in a 
 ready-made world. The exaltation of the 
 legislature, the humiliation of the judiciary, 
 were complete. 
 
 The inaccuracy, or — to put it at its 
 lowest — the inadequacy of such a view 
 is being more and more realized in this 
 country, and has long been felt else- 
 where. Nor is this to be wondered 
 at. For the great body of law, written 
 and unwritten, and the constant output of 
 regulations for human conduct — not alone 
 
JUDICIARY 13 
 
 by the High Court of Parliament, but 
 also by the rulings of the judiciary — these 
 proceed as society itself proceeds and 
 they are affected reciprocally, and yet 
 consistently, by the movement of opinion, 
 by what upon its subjective side is an 
 alteration of view-point and ideal, and 
 by what upon the objective side wc 
 call for short, the march of events. With 
 the years and even with the days, to 
 judiciary, as well as to legislature, there 
 come from society its proof and claim of 
 life^ and, with these, the need for recon- 
 ciling human interests in the ever new 
 relations in which they develop. 
 
 And to the judiciary the claim comes 
 with a particularity, an urgency and an 
 immediacy which the most prompt and 
 expert legislature in the world could not 
 answer. The casus improvisus is always 
 
14 LEGISLATURE AND 
 
 with us : and in ninety-nine cases out 
 of a hundred it must be settled before 
 Parliament can turn. The appeal is 
 made not to laws, for there are none, 
 but to law : call it what you like — 
 the common law, the principles of juris- 
 prudence — anything from jus divinum to 
 common sense, from recta ratio to a 
 square deal : it is on and by and with that 
 stuff that judges have to work, and they 
 must do so not as bondmen but as free. 
 Do not the accumulating experiences 
 of a country like our own — which has 
 not yet a written code and never had a 
 written constitution — show with increas- 
 ing plainness that there are more things in 
 Heaven and Earth than are dreamt of 
 in Bentham's philosophy } 
 
 How rank this heresy is, however, 
 how lively were Bentham's own con- 
 
JUDICIARY 15 
 
 victions about it, and how far he wished 
 them spread, are shown by a letter which 
 he went the length of addressing to the 
 people of the United States : " Yes, my 
 friends/' said he, " if you love one another 
 — if you love each one of you his own 
 security, shut your ports against our 
 common law as you would shut them 
 against the plague." This common law 
 
 he calls a '' tissue of imposture " which 
 makes men slaves. And he passionately 
 exclaims : " No ; never, never let slip 
 out of your mind this lesson — whereso- 
 ever common law is harboured^ security is 
 excluded.'' To President Madison, he is 
 even more explicit : " Yes, Sir, so long 
 as there remains any, the smallest scrap 
 of unwritten law unextirpated, it suffices 
 to taint with its own corruption — its 
 own inbred and incurable corruption — 
 
16 LEGISLATURE AND 
 
 whatsoever portion of statute law has ever 
 been or can ever be applied to it." 
 
 But, passionate and extreme as this 
 appeal is, there is no question that in one 
 sense it was addressed to the proper 
 quarter. Had Bentham lived, for instance, 
 in the times of Salvius Julianus, he would 
 no doubt have been heart and soul for the 
 perpetual edict. In his forceful way he 
 would have said : " Praetors, listen. Your 
 habits of prying in and around, and 
 annually patching up a fresh edict — how 
 can respectable citizens abide them ^ Are 
 not Romans entitled to know where they 
 stand ^ Away with your annual edicts : 
 an end to confusion : only when there is 
 one comprehensive edict and that is made 
 perpetual, shall there be an end, a glorious 
 end, to the uncertainties of the law as a 
 guide to relations and rights of men." 
 
JUDICIARY 17 
 
 Whether moved by this philosophy, or 
 whether a perpetual edict was thought to 
 be a more convenient instrument for the 
 growing forces of despotism one cannot 
 say : but the perpetual edict of Salvius 
 Julianus became a fact. The annual edicts 
 were superseded. 
 
 But with them did the evolution of 
 Roman jurisprudence suddenly close ? 
 From certain passages in Gibbon you 
 might think that it did. But it is plain 
 matter of history that the contrary is the 
 case. Having doubts as to these pas- 
 sages in Gibbon, I put the point to my 
 friend Professor Goudy, one of the very 
 safest of living civilians ; and in a letter 
 with which he has favoured me, Dr. 
 Goudy, in a few strokes of the pen, puts 
 the history in this way. The century, he 
 says, which followed the promulgation of 
 
 B 
 
18 LEGISLATURE AND 
 
 the perpetual edict is " the most splen- 
 did in the history of the Roman Law, 
 containing as it does the great Coryphaei, 
 Gaius, Papinian, Paul and Ulpian, from 
 whose works about three-fourths of the 
 Digest have been extracted. Commen- 
 taries on the Edictum Perpetuum really 
 ceased after the middle of the third 
 century, and the torch of jurisprudence 
 went out in an absolute monarchy and 
 decadent society." It is in this way alone 
 that Gibbon's remark is justified that 
 the edict was " buried under the weight 
 of commentators." As in many other 
 departments, so it is in jurisprudence : 
 finality is sterility ; but finality fails 
 and will fail until society itself grows 
 sterile. 
 
 Bentham was not holding an imaginary 
 conversation with the praetor of Rome : 
 
JUDICIARY 19 
 
 he was, as we have said, making an appeal 
 to a much more hopeful quarter. He 
 was addressing a new country ; but it 
 would be a mistake for one moment to 
 suppose that that country was willing to 
 scrap its English past. Race, the hand 
 of history, and the genius of men like 
 Hamilton, saved it from that. But by the 
 time of the Presidency of Madison the 
 sense of affiliation had slackened and earlier 
 antagonisms had grown more rigid. Above 
 all, Bentham's opportunity lay in this, that it 
 was a country that was to face the future 
 blessed with the panoply of a written 
 constitution, to which, not the judiciary 
 alone, but also the legislature was bound 
 to bow. Here, then, was a field in which 
 the letter of enactment was set in supreme 
 mastery — with every chance, if only human 
 affairs would permit it, of regulating all 
 
 B 2 
 
20 LEGISLATURE AND 
 
 without the aid of judge-made or common 
 law — that common law which was an 
 enslavement, a corruption, a plague. 
 
 Yet it is exactly there, viz. in the United 
 States of America, that the most luminous 
 criticism of the school of Bentham and 
 Austin has been made. It is in that very- 
 country that the common law has been 
 found to be of superlative value, and that 
 the function and work of the judiciary in 
 its expansive interpretation of the written 
 constitution are looked upon with venera- 
 tion — a veneration so great as to incline 
 Mr. Bryce, with whose judgment all must 
 , agree, to name Chief Justice Marshall as 
 ' holding in America a pre-eminence akin to 
 that of Mansfield in the domain of English 
 law and Papinian in the law of Rome. 
 
 In legal literature no scrutiny of the 
 Bentham and Austin position has been more 
 
JUDICIARY 21 
 
 penetrating, and no narrative more deadly, 
 than that of Dr. Coolidge Carter, that 
 distinguished member of the New York 
 bar who some years ago entered the lists 
 against David Dudley Field. On the 
 merits of the codification proposals of the 
 latter it is not proper here to enter ; but, 
 incidentally, they have caused the real 
 enrichment of juridical science by evoking 
 the lectures of Mr. Carter (alas ! never 
 delivered) on " Law, its origin, growth and 
 function." This book is of a value beyond 
 the limits of the particular controversy : 
 and I think it not inapt to quote his view — 
 the view of an American, a man of wide 
 culture, who lived and thought in the 
 very midst of the legal and constitutional 
 problems of the United States — his view 
 as to Bentham and that whole class of 
 mind. 
 
22 LEGISLATURE AND 
 
 His manner of dealing with particular 
 dogmatisms of Bentham, such as those 
 which I have quoted, is to expose them by 
 the simple device of placing them in the 
 disturbing glare of over a century of fact. 
 On the more general topic, and referring to 
 that creed, somewhat lacking in tolerance, 
 the creed of the efficacy of legislation per se, 
 he puts the matter thus : " In Bentham's 
 view the conduct most conducive to general 
 happiness — that is, of the greatest good to 
 the greatest number — could be ascertained 
 beforehand by intelligent men, and could 
 therefore be stated in writing and enacted 
 as law, and he seemed to think that if it 
 were once so enacted the vast change for 
 the better which it would everywhere pro- 
 duce would make society not only satisfied 
 but delighted with it, but that if all were 
 not satisfied with it they should be com- 
 
JUDICIARY 23 
 
 pelled to accept it and govern their conduct 
 accordingly. He was a courageous as well as 
 a skilled logician, and never flinched from 
 any true deduction from his theory. To 
 any suggestion that upon his doctrine the 
 task of the judge would be made simply 
 that of interpreting words, his answer 
 would be that this is just what he meant : 
 that there was nothing he so much detested 
 as judge-made law, and that he would 
 abrogate it root and branch by a declaration 
 that there should be no enforceable rules 
 outside of the code. To any suggestion 
 that such a priori rules must often, through 
 ignorance, carelessness or negligence, be so 
 formed as not to be applicable to the un- 
 known transactions of the future and thus 
 occasion injustice and inconvenience, he 
 would say that such evils would be far less 
 than those arising from the uncertainty. 
 
24 LEGISLATURE AND 
 
 expense and trouble incident to unwritten 
 law, and besides that they would be tem- 
 porary only and could be remedied for the 
 future by legislative amendments. If he 
 were reminded that his proposal seemed 
 contrary to the experience of mankind, of 
 which experience the common law was the 
 fruit, he would have answered that the 
 common law was the fruit of a fraudulent 
 usurpation of legislative power of the 
 judges ! He would not hesitate to tear 
 down the majestic fabric which the slow 
 processes of nature, operating through 
 ages, had reared, and replace it with the 
 wretched invention of some committee in a 
 legislature." 
 
 This passage is interesting as an illustra- 
 tion of the power of answering a theory by 
 the manner of expounding it. But it has 
 a deeper than a literary interest. From 
 
JUDICIARY 25 
 
 America here Is a testimony of the highest 
 cogency and value to the pervasive power of 
 the common law, which, in spite even of a 
 written constitution and above, beneath and 
 around it, appears in the social organism — a 
 living, moving, growing thing — underlies 
 and encompasses the letter of all codes and 
 the judgment of all courts, reveals to 
 the clearest and the choicest minds new 
 aspects of truth and inspires them with 
 fresh emanations of the very spirit of 
 justice. 
 
 Although Bentham and Austin have 
 been bracketed together, it is but fair to 
 the latter to say that his attitude on the 
 topic of judicial interpretation is very 
 different from that of the former. In 
 one passage, indeed, he goes to the 
 other extreme : " I cannot understand," 
 he argues, " how any person who has 
 
26 LEGISLATURE AND 
 
 considered the subject can suppose that 
 society could possibly have gone on if 
 the judges had not legislated, or that 
 there is any danger whatever in allowing 
 them that power which they have in fact 
 exercised to make up for the negligence 
 or the incapacity of the avowed legislator. 
 That part of the law of every country 
 which was made by judges has been far 
 better made than that part which consists 
 of Statutes enacted by the legislature." 
 
 Long ago this need for judicial inter- 
 pretation, in the sense not of shutting out 
 the past, but of setting it in its proper 
 place and power, was expounded by Coke, 
 and its value was likened by him to the 
 making of light to shine in darkness. 
 " To know," says he, " what the common 
 law was before the making of any Statute 
 (whereby it may be known whether the 
 
JUDICIARY 27 
 
 Act be introductory of a new law or 
 affirmatory of the old) is the very lock 
 and key to set open the windows of the 
 Statute." 
 
 All this being said, however, the main 
 propositions — the right of legislative 
 supremacy, the duty of judicial loyalty 
 — stand out of question. And, to set it 
 forth in other words, it of course must 
 stand admitted that under the British 
 Constitution it is never open, to judges 
 or to any other authority, to challenge 
 the validity of legislation by the Imperial 
 Parliament as an excess of power. The 
 centuries have brought us to treat that 
 as settled. From the legislature there lies 
 no appeal, as in the United States, to a 
 Supreme Court on the ground of breach 
 of the Constitution. No question of ultra 
 vireSy as, for instance, in the interpretation 
 
28 LEGISLATURE AND 
 
 by the Privy Council of the ambit of 
 delegated legislative authority within the 
 Empire, can arise. So also is it incompetent 
 to challenge the validity of legislation within 
 the United Kingdom by urging that the 
 action of Parliament betrays injustice, 
 caprice or unreason. The judiciary is in 
 most cases willing to act, but in all cases 
 it does act and must act on the familiar 
 truisms that " the legislature, being in 
 truth the sovereign power, is always of 
 equal, always of absolute authority," and 
 that the corrective lies solely and ultimately 
 with the body of the people. The out- 
 standing restraint of legislative power, 
 limitless as regards its past, is that Parlia- 
 ment cannot bind its future, and that no 
 form of language will avail in any attempt 
 to do so. The corrective of the action 
 of Parliament as a human and fallible 
 
JUDICIARY 29 
 
 institution is not a legal corrective — lies 
 not with the judiciary ; but is, and is alone, 
 a constitutional corrective — lies, and lies 
 alone, with Parliament itself — acted upon 
 by a fresh wave of public opinion, a higher 
 sense of duty, a wider range of experience, 
 or a broader perspective in the regions of 
 applied justice. 
 
 Cardinal as is this truth, with regard 
 to the relative positions of legislature and 
 judiciary, it is sometimes forgotten in the 
 latter quarter. And distinguished men, 
 while agreeing that an enactment means, 
 and was even intended to mean, only one 
 thing, have been known to suggest that if 
 the matter had only been left to judges, 
 they would have acted on a superior 
 intellectual or moral canon. Occasion- 
 ally, also, the grumbling comes from the 
 people at large as they painfully realize 
 
30 LEGISLATURE AND 
 
 the results of what is not a legal but a 
 Parliamentary omission or mistake. These 
 occasions are rare. Both public and judicial 
 opinion swerve quickly back towards the 
 right road, viz. that of improvement, 
 through the agency of Parliament itself. 
 It is thus and thus alone that the serenity 
 of constitutional progress is resumed and 
 the fruits of constitutional development 
 are secured. 
 
 You may be surprised that I should be 
 reminding you of a fact so elementary. 
 But ever and anon there is forgetfulness 
 of it, and rebellious suggestions spring up 
 in a confused public mind. And I would 
 even venture another and a final word on 
 this part of the topic. Any other theory 
 would be of really revolutionary sig- 
 nificance, and any other practice, although 
 supported by a transient gust of thought- 
 
JUDICIARY SI 
 
 lessness or passion, would be quickly felt 
 to be a disaster of stupendous magnitude. 
 Parliament always will and always ought to 
 claim, nor is it likely to part with the right 
 to declare, that its latest word is not its last 
 word. It must change its own mind, and 
 it will not allow, and the people behind it 
 will not allow, that the judiciary should 
 change its mind for it. 
 
 But the whole of the foregoing is set 
 out upon the footing that the case there 
 being dealt with is a clear case — that is to 
 say, that the will of Parliament has found 
 expression which is unmistakably plain. 
 The duty of loyalty on the one hand, and 
 the position of supremacy on the other, 
 are thus and then equally plain. Up 
 to this point a clear-cut definiteness of 
 relation, function and sphere has been 
 arrived at. 
 
32 LEGISLATURE AND 
 
 Yet too often the boundary line is far 
 from being so clear ; and in that single 
 fact lies the much greater complexity of 
 subject, to which we now advance. The 
 fallibility of human efforts, the imper- 
 fections of human speech, omissions, in- 
 consistencies, obscurities, contradictions — 
 all these weaken the challenge of the 
 legislature to the judiciary, "What doest 
 thou ? " and lay it open to an immediate 
 rejoinder of the judiciary to the legis- 
 lature, namely, " What meanest thou ? " 
 In a moment, accordingly, and by the very 
 nature of the imperfect human instrument 
 we come upon the whole set of doctrines 
 as to the construction and interpretation 
 of statutes. 
 
 It is no part of my purpose to resume 
 the labours of many authors upon this 
 topic — an important topic, but not one of 
 
JUDICIARY 33 
 
 great difficulty if only it be remembered 
 that artificiality should be eschewed, and 
 that the interpreter should remain on 
 friendly terms with good sense, and keep 
 up throughout his operations and com- 
 ments the closest intimacy with the text 
 itself. 
 
 Now, however, the relations between 
 legislature and judiciary become closer. 
 For the most laboured product of the one 
 must of necessity face the ordeal of the 
 most rigid scrutiny of the other. A 
 deductive philosopher might declare that 
 the clash and conflict thus likely between 
 two great social powers would result in 
 confusion, in chronic public injury and 
 public loss. But a sound induction teaches 
 a wiser lesson. Experience of the contact 
 and interlinking of these two powers has 
 upon the whole led not to collision, but 
 
34 LEGISLATURE AND 
 
 to co-operation, whether in the region of 
 the security or of the advance of society. 
 And I do not think that the secret of 
 this has been sufficiently unfolded. 
 
 This co-operation, upon which so much 
 depends for the orderly progress of the 
 State, is co-operation on a common ground. 
 Standing on this common ground — ancient 
 ground, historic ground, almost sacred 
 ground — one finds, as I have already ven- 
 tured to observe — one finds it to be only 
 partially true that the legislature is free, 
 and only partially true that the judiciary 
 is bound. What is that which of necessity 
 constrains the one, and of dutv broadens 
 the range of the other ? 
 
 Neither code nor constitution has set 
 open or delimited this ground. And 
 rarely in the history of England has Par- 
 liament expressly recognized it. A few 
 
JUDICIARY 35 
 
 instances of such recognition do certainly 
 
 occur. On one such instance apparently 
 
 much store is set by no less an authority 
 
 than Blackstone. He cites the preamble 
 
 of 25 Henry VIII, chap. 21, as the 
 
 " remarkable words . . . addressed to 
 
 the King's Royal Majesty." These are 
 
 the words : " This your Grace's realm, 
 
 acknowledging no superior under God, 
 
 but only your Grace, hath been and is 
 
 free from subjection to any man's laws, 
 
 but only to such as have been devised, 
 
 made and ordained within this realm for 
 
 the wealth of the same, or to such other 
 
 as by sufferance of your Grace and your 
 
 progenitors the people of this your realm 
 
 have taken at their free liberty, by their 
 
 own consent, to be used among them ; 
 
 and have bound themselves by long use 
 
 and custom to the observance of the same ; 
 
 c 2 
 
36 LEGISLATURE AND 
 
 not as to the observance of the laws of 
 any foreign prince, potentate, or prelate ; 
 but as to the customed and ancient laws 
 of this realm, originally established as 
 laws of the same by the said sufferance, 
 consents and customs, and none otherwise." 
 No doubt it is true that this address 
 assumed the specious dignity of a protest 
 against the intrusion of the Canon Law 
 into English jurisprudence. But I cannot 
 think of the Act without thinking of the 
 man and the policy behind it. As for 
 the King, the less said the better: the 
 Act was but an astute step in the stormy 
 progress of his passion for Anne Boleyn. 
 Had the Canon Law favoured his designs 
 he would have swept it into English 
 jurisprudence with as little compunction 
 as he sv/ept it out of it. But there is 
 another view. Think of the situation : 
 
JUDICIARY 37 
 
 it was 1534. Wolsey had just died : his 
 genius, his iron will, his ambitions, his 
 great imaginings of an extended con- 
 tinental power for his King, and for 
 himself, his dream that he might wear 
 the triple crown : all these vanished when 
 he was flung from power. He had with- 
 stood the royal will : against him there 
 stood the charge of having outraged by 
 forced benevolences the traditional right 
 of his countrymen to tax themselves ; by 
 his sudden death he avoided indictment 
 under the Statute of Praemunire. It 
 was the dawn of the new and greater 
 terror ; when Henry found in Thomas 
 Cromwell that inscrutable and devastating 
 minister of absolute power. But the royal 
 intrigue for the divorce of Katherine of 
 Aragon found its intellectual defence in 
 the subtlety of the minister. Cromwell, 
 
38 LEGISLATURE AND 
 
 even at a moment so unpropitious for a 
 popular claim, was skilful enough to 
 enlist in that pitiful plot the spirit of 
 independence of the English people, 
 their indomitable pride, their loyalty — 
 unquenchable and easy to fan into a 
 flame — their loyalty to their own ancient 
 customs, habits and traditions as the 
 foundation of their laws. And in Eng- 
 land before and since, in all the times 
 propitious for the speech and life of 
 freedom, this foundation stands sure. 
 
 As I have indicated, what is of value, 
 and what bears upon our inquiry is this, 
 that the consent of the people of England 
 was procured to the declinature of foreign 
 jurisdiction by the association of their in- 
 dependence with their own ancient customs. 
 The foundation of the law is there : and 
 in my opinion it is there also that there is 
 
JUDICIARY 39 
 
 to be found that common ground of which 
 we are in search, the ground upon which 
 the true relations of legislature and judiciary 
 ought to stand. 
 
 But while I tender my adhesion to 
 that class of doctrine which settles the 
 foundation of law upon custom, 1 must 
 respectfully enter my protest (I am not 
 sure if in this I be not also aiming 
 even at Mr. Carter) against the custom, 
 tradition, association, habit, and the rest 
 being treated merely as the fruit of 
 intellect in practice, and being emptied 
 on its evolutionary side of all ethical 
 content. It would be indeed strange if 
 the weapon could be so treated which is 
 wielded either in Parliament or courts : 
 for it is a fundamentally ethical appeal 
 which underlies the denomination of the 
 one as the nation's assize and of the 
 
40 LEGISLATURE AND 
 
 other as courts of justice. Much might 
 be said upon this, and it may be that 
 the saying would be more acceptably 
 received now than would have been the 
 case half a century or even a quarter of 
 a century ago. But it may suffice that I 
 simply illustrate the point when I proffer 
 the opinion that the erasure of witchcraft 
 from the list of crimes, the abandonment 
 of trial by fire as a test of truth, the 
 abhorrence of torture as a part of judicial 
 procedure, the mark indelible on each of 
 these as worthy only of a savage state — 
 these, and the like of these, appear to me 
 to indicate that the evolution of a nation's 
 customs and habits of mind partakes, in 
 the region of jurisprudence, of an evolu- 
 tion not in intellectual breadth and 
 subtlety alone, but of an evolution in 
 personal and national morale. 
 
JUDICIARY 41 
 
 Leaving that not out of but in the 
 reckoning, now ask yourselves the ques- 
 tion : Is it not historically as well as philo- 
 sophically true that in the social organism 
 within which the legislature is a moving 
 force, its liberty — the liberty of the legis- 
 lature — appears not as a caprice, but, upon 
 a broad review, to evolve through order, 
 to consist with order ? And what is that 
 order but the whole system of thought, 
 scheme of life, and practice of a people 
 which we express under the terms tradition, 
 custom, a living past ? To this — a restraint 
 which is constant, real, insuperable — I 
 shall again allude. 
 
 And historically and philosophically it 
 is as broadly true that no judiciary is 
 entirely bound. The record of past judi- 
 cial opinion and decree, the text of legisla- 
 tive enactment, — consistency and loyalty, 
 
42 LEGISLATURE AND 
 
 make their imperious claims that these be 
 respected ; but even as the tribute is paid 
 there still remains a consistency with and 
 a loyalty to something deeper and more 
 basic, a something which is found lodged 
 in a people's modes of thought and those 
 general views and understandings which 
 fundamentally underlie all authorized ex- 
 pression and make the work of interpreta- 
 tion and the task of the judiciary also an 
 evolution. 
 
 The habits, traditions, associations, 
 customs and modes of thought to which I 
 refer — this should not require, but it does 
 require stating — are not those of either 
 legislature or judiciary as a class or separate 
 portion of the constitution : they are those 
 of the people themselves. Herein for 
 the judiciary lies a danger to be constantly 
 avoided — the tendency to a narrowness 
 
JUDICIARY 43 
 
 more technical than that of professional- 
 ism, the narrowness of a trade. 
 
 This tendency, this temptation, which 
 it will always be the glory of the judiciary 
 to resist, they are not modern. Very 
 far indeed from it. Think of this : " a 
 small body of men, all of them patricians, 
 and some of them priests, retaining in 
 their memory and transmitting to their 
 disciples a number of rules and maxims, 
 often expressed in some carefully-phrased 
 and scrupulously-guarded form of words. 
 . . . An important place among these 
 rules was held by the formulas which it 
 was necessary to use in actions or other 
 legal proceedings, the slightest variation 
 from the established phraseology of which 
 would be a fatal error." What is this ^ 
 Is it some daring sarcasm of Swift on the 
 judges of his time ? No : it is the sober 
 
44 LEGISLATURE AND 
 
 history of Mr. Bryce ; and the " body of 
 men " were the jurists of Rome before 
 the enactment of the Twelve Tables. 
 
 For the habits, modes of thought and 
 the like to which I have referred are from 
 the very nature of the case not profes- 
 sionally circumscribed. They are, as I 
 have said, those of the people themselves 
 — the people who, in spite of defiance and 
 protest, and sneer and wonder, remain the 
 true masters. It is their language which 
 must be spoken-— to mean what they 
 mean, to be read without artificiality or 
 distortion, but as naturally and plainly 
 as the words allow ; to accord, unless 
 where discord or reversal be an express 
 imperative — to accord with the convictions 
 and customs not of a caste or section, 
 but of the mass and body of the nation, 
 be it added, with the convictions and 
 
JUDICIARY 45 
 
 customs not of a sterile past, but of a 
 moving and experimentally unfolding 
 present civilization. Neglecting this, the 
 legislature soars and operates in the clouds : 
 despising this, the judiciary gropes and 
 becomes purblind. 
 
 Under a representative system and a 
 democratic constitution, the position of 
 the legislature affords a guarantee against 
 more than a temporary lapse from this 
 fundamental canon. But with the judici- 
 ary it is otherwise. The legislature can 
 undo the mischiefs of its own misuse 
 of words ; but a misuse of the judici- 
 ary becomes a precedent in mischief 
 which only a watchful legislature can 
 correct. 
 
 Be it remembered also that the canon 
 which compels deference to those habits 
 and meanings and understandings — those 
 
46 LEGISLATURE AND 
 
 things which insensibly affect the founda- 
 tion as well as the evolution of the com- 
 mon law — is not only a broad and popular 
 but a present-day canon. With the change 
 of manners, the alteration of the environ- 
 ment of the individual, the unfolding of 
 new ethical and social ideals, it cannot be 
 expected that such things which affect the 
 very shape and structure and action and 
 life of society should fail to infuse a less 
 archaic and a fresher spirit into its law. 
 I To be ignorant of such movement is a 
 1 misfortune ; to be wilfully blind to it is 
 pedantry. You cannot interpret the lan- 
 guage of a man of the world in the spirit 
 of a recluse. To bind the present by a 
 past which has been outlived produces 
 irritation, confusion, mischief and wrong. 
 In this sense we can with heartiness 
 subscribe to the lines — 
 
JUDICIARY 47 
 
 " What custom wills in all things should we do't; 
 The dust on antique time would lie unswept, 
 And mountainous error be too highly heaped 
 For truth to overpeer." 
 
 Against judicial action of that kind 
 there properly arises a clamour for legis- 
 lative relief. 
 
 But a word to the legislature on this 
 topic. By the obsolete in practice a Court 
 of Law can refuse to be bound : even 
 where the obsolete has been affirmed by i 
 decisions of former generations, the 
 judges may set against it the altered 
 modern spirit ; but, when the obsolete in 
 custom and practice remains unrepealed 
 upon the Statute-book, the judiciary finds 
 itself confronted by an obstacle which the ^ 
 legislature alone can surmount ; and Mr. 
 Lynx has found his opportunity. Struggles 
 are of course made against the result. 
 But I should personally prefer that the 
 
48 LEGISLATURE AND 
 
 obsolete even in Statute were liable to 
 condemnation by a judgment on desue- 
 tude, rather than, by refinement, be evaded 
 or if possible whittled away. As matters 
 stand, however, the watchfulness of the 
 legislature is needed in the ever-widening 
 region of useful repeal. 
 
 But to return from the obsolete past 
 to the living present : if the language of 
 Parliament is so plain that under the 
 familiar rules of construction they can 
 only have one meaning, the duty of the 
 judges is of course as plain as the words, 
 and these must be given effect to without 
 the fear of man or consequences. These 
 are the mere platitudes of the case, and 
 in our country are not uttered. But take 
 the other case, by no means rare ; on the 
 contrary, very familiar. Place the same 
 legislative language before the judiciary. 
 
JUDICIARY 49 
 
 before judges of what eminence, skill and 
 power you may figure, trained in various 
 schools or even in the same school ; and 
 although with all of them there may be 
 the best will in the world, obscurities will 
 appear to one set of minds where all is 
 clear to the other, the same words will in 
 the result mean two or more different 
 things, a generality of expression may be 
 held to cover cases many and frequent or 
 few and rare, and, over all, the very place 
 of the Statute relative to the existing body 
 of law written and unwritten is only found 
 after not a few windings and turnings. 
 Therefore it is that if the relations of 
 legislature and judiciary are ever to reach 
 that deeper note of harmony which should 
 accompany the co-action of two great 
 instruments of social and constitutional 
 progress, you must get beyond mere rule 
 
 D 
 
50 LEGISLATURE AND 
 
 of construction to that spirit of interpre- 
 tation which, nurtured in the traditions 
 and practice of the past, is yet in accord 
 with the spirit of the people and the spirit 
 of the time. 
 
 We are thus brought abruptly up to a 
 point of enormous difficulty — the duty of 
 legislature and judiciary respectively in 
 view of the growth in bulk and in detail 
 of modern Statute law. 
 
 In one of his essays John Stuart Mill 
 observes that for no small period of 
 modern English history the labours of 
 legislators and the agitations of politics 
 and society were directed to the removal 
 of barriers and restrictions which a pre- 
 vious generation had set up. But present- 
 day legislation is a task which has also 
 opened a new sphere. It appears to 
 
JUDICIARY 51 
 
 demand a further and a different kind 
 of energy. It enters not alone into the 
 wide arenas of liberty, of constitutional 
 rights, of imperial and colonial obligations 
 and the like high topics, but, democratized 
 in its composition, it has become demo- 
 cratized in its labours, its views, and its 
 conscious sphere of duty. 
 
 And when the legislature goes slum- 
 ming, it stirs about among vested rights — 
 rights of property, rights of government, 
 rights of local control, rights of personal 
 liberty, and the thousand and one interests 
 thus affected rush to the law courts with 
 points for decision and application — points 
 which in their subtlety and multiplicity 
 puzzle and perplex the judiciary, and 
 would, had they all been presented at 
 the earlier stage, have unnerved and 
 paralysed even Parliament itself. 
 
 D 2 
 
52 LEGISLATURE AND 
 
 More than ever in the history of these 
 kingdoms, and ever more and more, does 
 the need arise for clearness of expression 
 on the one hand and sympathetic inter- 
 pretation on the other. Without the one 
 on the part of the legislature its work 
 might conceivably become a quagmire of 
 injustice and mistake ; without the other 
 on the part of the judiciary it might 
 conceivably so descend to the practice of 
 flaw- finding and checkmate that juris- 
 prudence would fall from its high estate, 
 and appear as one of the meanest and 
 most beggarly of the arts. 
 
 Trite it may be — one still hears Carlyle 
 thundering it — but it is still very pro- 
 foundly true that the condition of real 
 insight is sympathy. And the effort of 
 both these great powers towards unity of 
 thought and purpose is a worthy effort, 
 
JUDICIARY 53 
 
 making against antagonism and for that 
 co-operation which promotes and secures 
 the peaceful and orderly arrangement and 
 advance of civil society. 
 
 In the spirit of this effort I venture with 
 diffidence, but with conviction, to offer 
 with regard to both these powers the 
 following observations. 
 
 As to the legislature : In the first place, 
 1 have spoken in vain if Parliament be 
 considered to work on a tabula rasa. It 
 is in the midst of influences and an en- 
 vironment of habits and customs, modes of 
 thought and speech, notions of right — 
 traditional, national, ethical ; it is in the 
 midst of all these surroundings that the 
 legislature operates. But no overt duty 
 arises from this situation ; for this rule 
 over Parliament is an unconscious, constant 
 
 \ 
 
54 LEGISLATURE AND 
 
 and inevitably operating rule. The real 
 lines of duty follow; but the attempt to 
 lay them on any but this basic fact would 
 be a vain attempt. Parliaments are fleeting, 
 and the acts of each are but additions to 
 or variants upon not only the legislation of 
 preceding ages, but the great mass and 
 body of the common law. This fact may 
 be forgotten, but remains. 
 
 In the second place, however. Parlia- 
 ment in the course of time and by the 
 very necessities of its business speaks the 
 common tongue in a dialect which gradu- 
 ally comes to bear a specialized and tech- 
 nical significance. It must also be saved 
 the labour of constantly repeating the inter- 
 pretation of the terms employed, and so 
 arise Statutes of Interpretation like that of 
 1889, which are the working handbooks of 
 the Parliamentary draftsmen. 
 
JUDICIARY 55 
 
 I cannot refer to that small but highly- 
 skilled body of men except in terms of the 
 warmest and most sincere admiration and 
 respect. In labours they are unwearied, 
 their task is stupendous ; it is minute to 
 the point of irksomeness ; and no man 
 who has ever undertaken the framing of a 
 measure of any complexity or the handling 
 of it in its stages of Committee and Report 
 can fail to look back upon their assistance 
 without gratitude or to rank them and 
 their office high in the working of the 
 British Constitution. You will find this 
 subject dealt with instructively by Sir 
 Courtenay Ilbert in the highly valuable 
 resume of the work of the Parliamentary 
 Counsel's Office which is found in his 
 book on Legislative Methods and Forms. 
 And his description of the hammering of 
 a Statute into shape, or out of shape, is so 
 
56 LEGISLATURE AND 
 
 authoritative, so vivid, and so entertaining, 
 that, happily fortified by the learned 
 author's consent, I make no apology for 
 quoting it in full. 
 
 It is contained in his chapter on Parlia- 
 ment as a legislative machine, and is in these 
 terms: "In judging English Acts of 
 Parliament it must be remembered that the 
 defects with which they are chargeable are 
 in great measure directly due to the princi- 
 ples of the constitution under which they 
 f are framed. In the first place, an ordinary 
 I Act of Parliament is essentially a creature 
 of compromise. In point of form it is a 
 compromise between the terms of art 
 demanded by the lawyer and the popular 
 language required by the layman. If the 
 former finds such a term as ' land ' loose 
 and slipshod, to the latter * hereditament * 
 is pedantic and unintelligible. The result is 
 
JUDICIARY 57 
 
 that the layman usually finds his satisfaction 
 in the text, the lawyer has to be consoled 
 with a definition. In point of arrange- 
 ment, an Act is a compromise between the 
 order most convenient for debating a Bill 
 and the order most convenient for admin- 
 istering an Act. In point of substance a Bill 
 as it enters Parliament may be, and as it 
 emerges frequently is, a compromise be- 
 tween divergent views. It is the work of 
 many minds and the product of many 
 hands. Now compromise and co-operation 
 are admirable things in politics, but they do 
 not always tend to clearness or accuracy of 
 style, logical arrangement or consistency in 
 literary composition. 
 
 '' Those who are familiar with Parlia- 
 mentary procedure are well aware of the 
 difficulties with which the promoter of any 
 important measure has necessarily to 
 
58 LEGISLATURE AND 
 
 contend. The measure may have gone 
 through a long period of gestation before its 
 introduction to Parliament. Information 
 and opinions on different points will have 
 been confidentially obtained from various 
 quarters ; the provisions of the measure 
 will have assumed many varying forms ; 
 and the alternatives will have been carefully 
 discussed and compared. Yet, in spite of 
 these precautions, as soon as the measure 
 has been printed and circulated swarms of 
 amendments will begin to settle down on 
 the notice paper like clouds of mosquitoes. 
 The minister in charge of the Bill has to 
 scrutinize all these, with the help of his 
 permanent staff and of the draftsman, to 
 formulate reasons for their acceptance or 
 rejection, and to prepare replies to, or 
 amendments for meeting, the numerous 
 points raised since the introduction of the 
 
JUDICIARY 59 
 
 Bill. Letters and articles appear in the 
 newspapers. Questions are asked in the 
 House. Correspondence pours in from all 
 parts of the country. The peculiar circum- 
 stances of the Parish of Ockley-cum- 
 Withypool must surely have been over- 
 looked by the framers of the Bill. There is 
 a local Act which will require consideration. 
 Above all there are the vested interests. 
 Journalists may write eloquent leaders, 
 members of Parliament may make sonorous 
 speeches, about the effect which the measure 
 will have in promoting the welfare or 
 undermining the institutions of the country. 
 But to the parish beadle of Little Peddling- 
 ton the question of supreme importance is 
 how it will affect his emoluments, existing 
 and prospective. It is with reference to 
 them that he studies the Parliamentary 
 debates, indites missives to his repre- 
 
60 LEGISLATURE AND 
 
 sentative, and organizes deputations to 
 departments. Every member of Parliament 
 knows this beadle under various names. 
 Questions of this kind occupy all the 
 working time during the interval between 
 the second reading and Committee, and 
 during the progress of the Committee stage. 
 Inside the House the Minister is battling 
 with amendments, some from enemies 
 anxious to make the Bill unworkable or to 
 reduce its operations to a minimum, others 
 from indiscreet friends. Amendments are 
 often framed hastily without reference to 
 grammar, logic, consistency or intelligibility. 
 They are apt to be crowded in at the begin- 
 ning of each clause or sentence with the 
 view of obtaining precedence in discussion. 
 The language of a law ought to be precise, 
 accurate and consistent, but the atmo- 
 sphere of a crowded or heated assembly is 
 
JUDICIARY 61 
 
 not conducive to nicety or accuracy of 
 expression. Decisions often have to be 
 taken on the spur of the moment, and in 
 view of the possibility of a snap division. 
 At last the amendments are cleared off the 
 paper, the new clauses often raising the 
 same questions one disposed of ; and the 
 much-buffeted craft with tattered sails, the 
 deck encumbered with wreckage, and with 
 several ugly leaks in her hold, labours 
 heavily into a temporary harbour of refuge. 
 There is a short interval for repairs, and 
 then the struggle begins at the report stage. 
 There may or may not be a sufficient oppor- 
 tunity for making such formal amend- 
 ments as are necessary to make the measure 
 decently consistent and intelligible. If not 
 they must be left for the House of Lords." 
 I am not prepared to deny that that, or 
 something very like that, is what goes on. 
 
62 LEGISLATURE AND 
 
 In short, when one considers the stress 
 of a modern Parliament during the latter 
 half of every session, and the distracting 
 strain under which the draftsman's work 
 is carried on, I declare to you that I am 
 amazed at the results forming upon the 
 whole such a workmanlike and creditable 
 product. In our day judicial observations 
 from the bench as to inartistic drafting 
 grow fortunately fewer, under the force 
 of this juster and more generous con- 
 sideration : and the causticity of comment 
 upon Parliamentary labours — which so 
 often equated with slenderness of Parlia- 
 mentary experience — is passing away. 
 
 In the third place, Parliament has a 
 special and particular duty in regard to 
 what I may term the risk of issuing con- 
 tradictory orders. This is no light task : 
 and it is largely true that as matters at 
 
JUDICIARY 63 
 
 present stand, the official drafting staff of 
 a department of Government has to face 
 it alone. It is for consideration whether 
 further help and strength should not be 
 provided in this previsory and advisory 
 function. As illustrating this, I may 
 observe that, when Parliament, engaged 
 upon a particular topic, has been left in 
 ignorance or confusion as to its own past 
 statutory record, and so has not plainly 
 declared its mind upon the subject — when 
 that has occurred, no task more difficult is 
 laid upon the judges than to settle the 
 doctrine of implied repeal. 
 
 So far as that can be accomplished, 
 these highly delicate issues should be 
 settled for the judiciary by the legis- 
 lature itself. To the extent to which 
 this is neglected, dangers as unexpected 
 as they are inevitable are sure to arise. 
 
64 LEGISLATURE AND 
 
 To watch and avoid the collision of 
 present legislative efforts with the contents 
 of the Statute-book — this would tax the 
 best efforts of a bureaucracy ; but to 
 expect it from the most conscientious of 
 Parliaments, democratically elected and 
 necessarily short-lived, is to expect too 
 much, so long as the construction and the 
 working of the Parliamentary machine are 
 as they are now. 
 
 To take but one point : in nineteen 
 cases out of twenty the details of a 
 measure involving questions of involved 
 reference to previous legislation, with all 
 the points of partial reversal or total 
 repeal, or on the contrary of recognition 
 of and mere addition to the existing statu- 
 tory law — all these details are thrashed out 
 in the House of Commons. Does it not 
 — I put the point — appear to you that 
 
JUDICIARY 65 
 
 when it reaches another Chamber it should 
 undergo treatment with new and skilled 
 knowledge and with a fresh perspective ? 
 
 I do not speak of reversal of policy or 
 change of principle : not at all. Whether 
 that is on the whole good or on the whole 
 evil, whether it should be continued or 
 stopped — all that is to be dusted out in 
 quite another and a stormier arena. But 
 I do speak of the need which grows with 
 the complexities of our social life, the need 
 for greater reality in the work of a Second 
 Chamber as a revising Chamber. 
 
 I repeat that I do not aim at altering 
 the meaning, but of making the meaning 
 plain, not in itself alone, but in its bearing 
 on the existing content of legislation. But 
 if public men happen to be thinking of 
 such things as how to find the best of 
 revising Chambers, it may occur to them 
 
 E 
 
66 LEGISLATURE AND 
 
 that a place may be found In their scheme 
 of things for at least such a strengthening 
 and change as will secure sounder adminis- 
 tration and a more workmanlike product. 
 
 One fears to use the plea that this would 
 save litigation. Recent experiences demon- 
 strate that promises of that kind, uttered 
 with the deepest conviction, are pitifully 
 belied by events. But may not the defect 
 in the Parliamentary machine on which I 
 am venturing to lay stress have something 
 to do with these results ? My suggestion 
 of further help and strength, whether on 
 official or constitutional lines, is not a 
 political suggestion, is not a suggestion of 
 check or counter-check, or of the balance 
 of social forces or opinion : it is a sugges- 
 tion for the strengthening of Parliament 
 however constituted, a suggestion of good 
 business. 
 
JUDICIARY 67 
 
 All of the above, be it observed, refers 
 to those occasions when the collision to 
 be avoided or settled springs from Act 
 meeting Act. But, in the fourth place, 
 a task beyond that, and of infinitely 
 graver difficulty, emerges : and it demands 
 both on the part of the public and the 
 legislature a greater constancy of watch- 
 fulness and care. Round every important 
 Statute there inevitably grows a body of 
 judicial decisions. Often, and swiftly, 
 these accumulate, precedent being heaped 
 upon precedent till the legislative text is 
 obscured and the legislature, remembering 
 its own intentions, views the interpreted 
 results — with surprise. When the legis- 
 lature or the public pays as much heed 
 as this, it is well ; for the public mind is 
 quickened and clarified as to the need for, 
 and the direction of, amendment of the law. 
 
 E 2 
 
68 LEGISLATURE AND 
 
 But when the legislature does not 
 pay heed, and when for a generation or 
 even two generations or more things are 
 allowed to drift, then the results may be 
 indeed serious. The remedy does not lie 
 with the judiciary ; it lies with the legis- 
 lature : and it is not far in history to seek 
 to discover that if the legislature leave 
 the work of the interpreter alone, the 
 confusions and mischiefs which ensue to 
 the commonwealth often spring from the 
 very loyalty and reverence of the inter- 
 preter for the text of the law. Schools 
 are formed, sects arise, doctrines clash. 
 The Mosaic law, for instance ; the Para- 
 dise of the codifier ! That law was 
 overlaid with meticulous commentary — 
 increasingly elaborate, increasingly arti- 
 ficial — until, viewed from the standpoint 
 of human life and rights and needs, the 
 
JUDICIARY 69 
 
 law as expounded became a byword of 
 Intolerable insincerity. No doubt even 
 mischiefs may be allowed to grow for a 
 little to see the extent of their ramifi- 
 cations before they be cut down. But 
 such expediencies are dangerous : and the 
 balance of public good lies not alone 
 in watchfulness, but in promptitude of 
 remedy. And the longer a return to 
 right reason is delayed, the greater will 
 be the wrench of the check and the 
 rebound — until what is only the retriev- 
 ing of the past from distortion is open 
 to the charge and the difficulties of even 
 revolutionary change. 
 
 In the next place, however, juris- 
 prudence evolves its doctrines all the 
 while — not its mere canons of statutory 
 interpretation, but its standards of civil 
 responsibility, its deductions of rights, 
 
70 LEGISLATURE AND 
 
 liabilities, privileges, its processes in the 
 regions of evidence, assumption and pre- 
 sumption — all those things and modes 
 innumerable which are woven into the 
 very texture of the common law. And 
 it needs no imagination to figure how 
 far, starting from a very slight switch 
 in precedent, the rails of practice go. I 
 do not merely speak in this regard of 
 the high constitutional requirement for 
 a legislative eye being kept on these 
 developments, but also of the duty which 
 is nearer home and which in my opinion 
 is of special urgency — the duty of so 
 framing Statutes as to lift from the 
 judiciary the enormous task of fitting 
 the new to the old — and this by the 
 simple and frank expedient of saying 
 whether well-known and established legal 
 principles are or are not to be applied. 
 
JUDICIARY 71 
 
 May I illustrate ? A modern Act is 
 passed laying certain duties upon certain 
 individuals. These are reckoned so im- 
 portant for the safety of human life and 
 limb that a failure in them is made 
 punishable as a criminal offence. Query: 
 Does this exhaust the liability of the indi- 
 vidual, or is he also civilly responsible ? 
 You are sure of that ? Very well, then ; 
 are all the canons of civil responsibility, 
 or of escape from it, imported .^^ Is, for 
 instance, the doctrine of common employ- 
 ment a sound defence against the civil 
 responsibility of a master for neglect of 
 statutory duty by his staff .^ 
 
 This is not the place for an answer 
 to these puzzles : the point is that 
 the puzzles are there, and they are 
 there because the legislature's attention 
 was not officially and pointedly drawn 
 
n LEGISLATURE AND 
 
 to them, the judgment of the legis- 
 lature asked upon them, and a settlement 
 in a single line of the Act obtained 
 which would dispense with national un- 
 certainties and mountains of litigation. 
 When a settlement upon a great public 
 issue has to be made, the citizen makes 
 a fair claim when he asks that he should 
 reach his rights by a plain and firm 
 parliamentary road rather than through 
 a quagmire of judicial formulae. 
 
 Over every legislative act many ques- 
 tions hover, and of these I have brought 
 down only a few. But they are serious 
 questions. How will a British subject 
 read this ; how much would he infer from 
 it ; how much with all his upbringing, his 
 traditions and customs would he import 
 into it ; does it square with authorized 
 
JUDICIARY 73 
 
 interpretation; how far does it modify or 
 affect the contents of the Statute-book, 
 the dicta of the law courts, or those 
 elements of the common law which have 
 appeared as legally evolved, but yet 
 accepted and governing doctrine ? These 
 questions and such as these are accom- 
 panied by the consciousness that a failure 
 to settle them means a continuance of 
 evil, public and private. 
 
 From the public point of view, an im- 
 provement in the structure of the legis- 
 lative output — such an improvement as 
 would afford clearer and more guiding 
 answers to those questions would be a 
 worthy achievement. To remove friction 
 from the relations of legislature, execu- 
 tive and judiciary, in the balance of which, 
 Montesquieu held, lay the glory of the 
 British Constitution, and to promote their 
 
74 LEGISLATURE AND 
 
 co-operation — this, indeed, would be a 
 creditable task, reaching the dimensions of 
 a beneficent constitutional change. Nor 
 let it be forgotten that in these particulars 
 these Kingdoms would not benefit them- 
 selves alone. One of the most striking 
 facts in modern comparative legislation is 
 that the Parliaments of the great self- 
 governing colonies in sober fact treat 
 the British Parliament as the mother 
 of their own, imitating her procedure, 
 watching her developments, and actually 
 reproducing the text of many of her 
 Statutes. 
 
 Only the other day there stood upon the 
 roll of the Privy Council two causes very 
 near each other. In the one, rights had 
 to be determined under a Families Com- 
 pensation Act, and in the other under a 
 Patents Act. These were but Colonial 
 
JUDICIARY 75 
 
 reproductions of British modern legisla- 
 tion. The one occurred in British North 
 America and the other in Australia. 
 
 But I own that 1 plead for an addition 
 to the effectiveness of the legislature, as a 
 co-agent with the judiciary in the advance 
 and security of society, not merely on high 
 constitutional, but upon humbler, grounds 
 — those which affect the every-day rights 
 and comfort of the commonwealth. Large 
 issues raise themselves. As in a moment the 
 negligible in politics becomes the urgent, 
 and the cloud no bigger than a man's 
 hand darkens the sky. But at present 
 neither legislature nor executive has a 
 constitutional apparatus which can arm it 
 to prevent and cure in those many cases 
 where mischief and suffering and wrong 
 are not publicly acute. No standard or 
 machinery either of diagnosis or prognosis 
 
76 LEGISLATURE AND 
 
 exists except when the force impelling re- 
 form is on a great scale, or when the political 
 consequences of neglect bode peril. So 
 injustices, many of them proceeding, no 
 doubt, from judicial affirmation, but really 
 springing from legislative omission or con- 
 fusion — injustices numerous and hard to 
 bear, but as yet without a louder voice than 
 that of private suffering, linger on, leaving 
 many more than the starved apothecary to 
 declare, " The world is not my friend, nor 
 the world's law." And the law's delay, 
 not in a judicial but in a legislative sense, 
 becomes a canker in society, a canker 
 arising merely from permitted precedents 
 in mischance. To change the metaphor : 
 the legislature in digging and in planting 
 the garden of the State has forgotten to 
 weed it and to prune. 
 
 It may be said that " in all this, you are 
 
JUDICIARY 77 
 
 driving at far more than a mere strengthen- 
 ing of the draftsman's department." I 
 agree. Again, it may be said that " the 
 introduction of this machinery for advice 
 upon and scrutiny of all Bills with the 
 objects you set out, and before they receive 
 the Royal assent — this is of the nature 
 of a substantial addition to the machinery 
 of the Constitution." Well : again I in- 
 cline to agree. But in the end of the year 
 1 9 10, when the powers and functions of 
 the respective Houses of Parliament are 
 under searching consideration, you may 
 not think it inopportune that from a Uni- 
 versity centre should come no aggravation 
 of polemics, but a plea for a greater and more 
 gifted previsory and advisory power to mini- 
 mize confusion and friction, and to promote 
 a happier and more fruitful co-ordination 
 of the standing forces of the constitution. 
 
78 LEGISLATURE AND 
 
 Of the legislature enough. But one word 
 more of the judiciary, and to emphasize 
 the fact that I address a Faculty of Law 
 and within a University. To attempt to 
 set up a framework of rules of inter- 
 pretation has been no part of my task — far 
 less so the presumption of setting forth a 
 canon for the judiciary. Here and there, 
 however, you may have discerned that I 
 hold certain ideas, and on consideration 
 you will take them either as warnings or 
 suggestions. If I have stood by loyalty, 
 favoured sympathy of interpretation, 
 ranked co-operation high above checkmate 
 in the forces of the constitution, suggested 
 that it was as vain to scrap the past as to 
 sterilize the future, spoken as if of a living 
 force of the spirit of the time — of all 
 these things you will judge. That spirit, 
 unless your own be craven, you will not 
 
JUDICIARY 79 
 
 fear to commune with, remembering that 
 you cannot mould nor guide it if you are 
 dragged behind it. 
 
 Beware, in this regard, as lawyers, be- I 
 ware of your categories. On this subject 
 Pitt once eloquently and roundly de- 
 nounced no less a man than Mansfield : | 
 and Pitt was right. Beware of your j 
 categories. They m.ay be too strict for \ 
 the expanding ideas, or too wide for the 
 specialized particulars of our evolving 
 civilization. Theoretically and rationally   
 they may be a grotesque misfit, and in 
 practice and with the sanctions of the 
 law they may become a veritable bed 
 of Procrustes, a cruelty and wickedness 
 by standard, an instrument of tyranny. 
 In the changes and complexities of modern 
 life, what shall be the bounds of dominion 
 between the principle of the dead hand 
 
80 LEGISLATURE AND JUDICIARY 
 
 and that of the living organism ? That, 
 indeed, is a difficult question to answer. 
 Books and rules, time-honoured doctrines, 
 printed categories fail: a wider knowledge 
 avails much ; far more the sympathetic 
 realization of advancing thought, the broad 
 wisdom of the cultured mind. 
 
 Printed for the University of London Press, Ltd., by 
 Richard Clay and Sons, Ltd., London and Bungay. 
 
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