Odger's English Common Law

THE GROWTH OF PARLIAMENT. 61
and businesslike : they merely laid down a general principle, which the
Law Courts were expected to carry out in detail. But the natural con-
servatism of the judges soon caused difficulty, as it has doue occasionally in
more modern times. They were devotedly attached to the old customary
law, and refused to give effect to any statute which purported to alter it,
unless its language was imperatively clear and express. Parliament some-
times met this difficulty by asserting—untruthfully—that a statute was
merely declaratory of the common law. But later it adopted the practice
•of stating full details in the Act, showing precisely what it wished to
change, and why, and how the change was to be carried into effect. The
result was that statutes became diffuse and prolix, and this continued in
later years. During the Tudor period the bulk of legislation enormously
increased, and the drafting was careless and slovenly.
The great difficulty now in the way of legislation is want of time. The
parliamentary machinery is of antiquated construction, and works slowly.
Compromises have to be effected and amendments accepted in order to save
time ; clearness of expression has often to be sacrificed to the necessity of
carrying a bill through Committee in the face of opposition. During the
lastfifty years obstruction has become a science. The shorter the bill, the
fewer are the opportunities afforded for obstruction ; but such brevity is often
attained only at the risk of obscurity. Again, the Government, in its
anxiety to save time, is often driven to another objectionable practice, which
is called " legislation by reference." It incorporates into the bill which it
is seeking to carry through Parliament numerous sections from a former Act
on a somewhat different subject, with a provision that certain words in
these sections are to be read as though they were certain other words, unless
such au interpretation be inconsistent with the context. And yet every
British subject is supposed to know the law by which he is governed !
Possibly some of these evils might be remedied if it became the rule for
a bill, after it had passed through Committee, to be sent to an impartial
body of experienced draftsmen for final revision before it is read a third
time. 1 These gentlemen, while loyally carrying out the intentions of the
Legislature, should reconcile all inconsistencies and remove all obscurities
of expression in the bill ; they should pay special attention to the effect
produced by the amendments of private members. Further, whenever a
new Act is passed which affects antecedent legislation, all the former Acts
of Parliament dealing with the particular subject should be repealed and,
so far as is necessary, re-enacted, so that the latest Act may contain the
whole law on the subject. 2
The phrase " common law" is 'used in two very different
senses. It is sometimes contrasted with equity ; it then
1 Something of this sort was done in the days of the later Plantagenet kings. At
the end of a session a committee, consisting of members of both Houses and of the
judges of the superior Courts, met to recast the petitions of the Commons and the
King's answers thereto into the form of statutes.
2 This has been 'done, for instance, in the case of the successive Acts for Prevention
of Cruelty to Children, 1889, 1894, and 1904. And see the Official Secrets
Act, 1911, and the Larceny Act, 1916.