This Chapter concentrates on the sources of English law that were treated within the system as rules of recognition—as authority, in other words, for what the law was, rather than as mere descriptions of propositions that courts would apply as law. In formal terms, legislation and judicial precedent were the two sources that predominated, as they had for centuries. Some legal writings, together with established customs and similar practices, might also rate on occasion; but if they were admitted at all as sources, they tended to be treated as secondary.

These understandings were already part of the structure of the English legal system and they have not in essence varied very much since. However, by the period of the first franchise reforms, books were beginning to appear that treated the very rules for finding and using the law in resolving disputes with a new sophistication. In particular, Sir Fortunatus Dwarris’ Treatise on Statutes appeared in 1830–1¹and James Ram’s Science of Legal Judgment in 1834²—both to enjoy evident success, not least in the United States. Their publication suggests a shifting emphasis in court advocacy, since their focus was on permissible ways of arguing how the rules of English law were to be identified and applied. The readership must have been largely professional.³ In their turn these identification techniques linked to even more primal questions. What made legal rules and principles distinct from ethical ideas of other kinds? What forms should judicial reasoning take? To these issues we return later in this Part.⁴ What has first (p.42) to be considered is the hierarchy of norms in which parliamentary sovereignty accords primacy to legislation; but places it nonetheless in the complex inheritance of principles and rules contained in judicial precedent, one aspect of which included the interpretation of statutory texts by courts.

1. Statutes and Secondary Legislation

2. Law Evidenced and Law Made by Judges

In formal terms secondary to legislation, the precedents established by judicial decisions were nonetheless sources of authority that were the judges’ own. So they attracted a special loyalty from lawyers of every rank, much as they had from the time when printing had allowed their regular promulgation and preservation.⁸ Precedents were to be found in the decisions of the superior court judges and the reasons they vouchsafed for their judgments. The reporting of cases had begun to expand and improve from the mid-eighteenth century; but for many decades it would remain a private business which depended to some degree on the capacities of individual editors and publishers. Only in 1865 would an ‘official series’ (p.45) of Reports be instituted, run by an Incorporated Council for Law Reporting. On this body legal practitioners and judges took care to secure representation. The supply of this starting material for so much legal enterprise was not to be given over simply to a government publisher.⁹

In the common law, where the rule to be applied in litigation was at stake—and equally when the issue concerned how a statute was to be interpreted—judges and lawyers constantly sought out precedents. But if no prior rule appeared to be in point and the case was thus one of first impression, it would have to be decided by reference to ‘principle’, or ‘reason’, or some governing view of social objective or ethical principle. Much that was crucial to the adaptation of the law would be settled through pronouncements justifying what judges thought was just in the circumstances—rationalizations that in the eighteenth century might well have drawn on explicit moral precepts.¹⁰ These derived sometimes from the preachings of the Established Church; but increasingly from a view of expediency—a weighing of competing utilities, in the form of a rough estimate of what, across the social and economic range, would produce greater happiness.

The courts of common law, Chancery, and the civilian jurisdictions, together with the appellate bodies above them, considered that they held the essential rules of their part of the legal system as a whole in their body of precedent. This basic understanding allowed common law judges to continue in the tradition of Coke and Blackstone that their decisions did not lay down new law. Rather their pronouncements expressed what was already common throughout their jurisdiction—albeit dormant perhaps and awaiting the reviving embrace of a judicial declaration. It was a convenient theory, which with time would allow the emergence of a more structured set of rules associated with the concept ofstare decisis; which is discussed in the next section. Allowing the common law to fold into its rules the practices of lawyers, financiers, traders, and masters—even on occasion the behaviour of families—allowed an understated adaptation of principles and rules so as to fit them within prevailing social mores.

The common law’s standard form of trial—by jury—allowed plenty of scope for finessing distinctions between custom and legal rule. Lord Mansfield had made bravura use of the possibilities by developing commercial principles within the common law in league with a regular special jury of City merchants.¹¹ In the mid-nineteenth century, according to the roseate recollection of Lord Halsbury, London special juries included ‘the first merchants of the City’ and ‘better (p.46) tribunals…for the administration of the commercial law, it was impossible to obtain’; but their replacements (probably because of the wider qualification rules of the Juries Act 1870) had drained them of their abilities and commercial litigants soon began to prefer trial by judge alone.¹²

The principles of equity, generated mainly in the court of Chancery,¹³ were—at least in origin—expressions of exceptional need. Before the Court came cases where the common law called for qualification or alteration or better enforcement in response to the dictates of some higher justice. The whole procedure stemmed from medieval notions of the monarch as the ultimate fount of justice, with a power therefore to correct injustices when they occurred from applying the common law without sufficient discrimination.¹⁴ This opposite character continued to colour the jurisdiction, and detractors of equity, appearing as they did in each generation, had long deplored it as ungoverned discretion.¹⁵ Against attacks that equity was thus the most formidable instrument of arbitrary power that could be devised—a denial within the legal system itself of any rule of law—the decisions of Lord Chancellors had increasingly hardened into established rule. In private law, since the Restoration of Charles II, that process had become of vital importance.¹⁶ Precedent thus became increasingly significant,¹⁷ even with (p.47) equity’s interventions, for all their appeal to an ultimate morality.¹⁸As equity had become more evidently rule-based, it had provided a number of qualifications upon common law principles that were of high importance to the emergence of a money-based economy; complex management structures proved necessary for both landed and industrial wealth. It was a small boost from equity that had prevented the common law structure of the strict settlement of land from collapsing at the behest of the current tenant for life.¹⁹ It was an instruction from equity which had allowed a debtor to be sued in a common law court by an assignee of the debt without having to face the accusation that he was maintaining another’s suit.²⁰ It was a prohibition from equity that gave the mortgagor the ability to repay his debt even after the date on which it was due.²¹ Above all, equity imposed its own liability on trustees who held property for other beneficiaries—a device with protean applications.²² A court which could supply such needs within the legal system could not be feared in the way that destroyed the prerogative tribunals of early modern England.

As for those courts with quite separate legal functions—notably the civilian courts administering ecclesiastical, probate, and admiralty law—precedent there had also acquired a significant role; but in the eighteenth century the records of their decisions had remained largely private, handed on by the judges and advocates of Doctors’ Commons as part of their own mystery.²³ It continued to have about it the air of secret doctrine known only to initiates.²⁴

(p.48) 3. Judicial Precedent and Stare Decisis

The doctrine of judicial precedent in its modern form was essentially a Victorian rationalization:

The common law did not develop a system of case-law by adopting explicit premises as to the authority of cases. It passed imperceptibly from a time when what was said in the course of cases was evidence of the law—of the legal custom applying in common to all parts of the realm—to a time when the law pronounced in the cases was itself the material of a substantial part of the system of law.²⁵

So long as the House of Lords acted as an ultimate authority in the settlement of disputes by voting rather than by articulating reasons for judgment, it was difficult to treat its decisions as settling legal rules in a general sense.²⁶ Equally, while there remained three distinct courts of common law, the extent to which each would follow the precedents set by the others when sitting in banc had to be limited by their apparent independence and the reasons for conserving it. Since all the judges of these courts also conducted trials in the assize courts on circuit, this provided a lower level of decision-making that added to the case law for subsequent citation in argument and judgment. Moreover, the intermediate jurisdictions in error were a strange labyrinth with paths that were only somewhat straightened in 1830.²⁷ The competition for jurisdiction between these courts, if it retained any real justification, lay in fears that judges might exhibit naked bias or more subtle forms of inclination towards one party or against another. To dispel these mistrusts, plaintiffs (but not defendants) had come to have some measure of protection, thanks to their choice of forum.²⁸

Probably the triumvirate of common law courts survived as much by the simple anchor of tradition. However that may be, it was accepted as a convention based on ‘comity’ that each bench would respect decisions of the others. As James Ram showed in 1834, the matter was not put in terms of any binding rule.²⁹ A consistent (p.49) line of authority would command very great respect; but a single precedent would not be followed if to do so was ‘plainly unreasonable and inconvenient’.³⁰ Each court in banc might therefore refuse to accept a precedent set by that very court, as well as a decision of one of the other courts; and judgments given at nisi prius would not necessarily be followed in later courts of the same level. Only the precedents of the House of Lords and the Court of Exchequer Chamber were taken to be binding on the three courts below and on the Chancellor in equity.³¹ Even so decisions might be found to have been misreported, or decided without any sufficient argument, or distinguished on their facts—perhaps after investigation of the details of the case that were on record.³²

What then of the question whether appellate courts were bound by their own previous decisions—an issue that has stood in modern times as the ultimate mark of stare decisis? Restructuring the superior civil courts by the Judicature Acts would give the question new force; but earlier in the century, the House of Lords had begun to treat its own decisions as binding. By the end of his long occupancy of the Woolsack, Lord Eldon was prepared to commit himself to the view that the House was bound to apply its own earlier decision, even where subsequent judges doubted its correctness, unless special circumstances allowed it to be distinguished.³³ In 1844 it ruled that, for there to be a valid celebration of a marriage, a member of the Established clergy must be present;³⁴ and in 1861, the House, led by Campbell CJ, insisted that it must accept that decision as the law, even though it went against the better judgment of most of those hearing the appeal.³⁵ Robert (p.50) Stevens has argued that this step must be seen in its own context.³⁶ It was taken by a court of final resolution that still had no permanent judges of its own and remained in some sense part of the upper legislative House.³⁷ This was moreover a time when courts did not always distinguish clearly between deciding the same case again and applying the rule derived from one case to another raising similar issues.³⁸

Even so, an understanding seemed to be emerging that the final instance in the great common law structure could only give sufficient stability and certainty if it regarded what it had concluded once as a settlement of argument for all time. After the Appellate Committee of the Lords took distinct form, with Lords of Appeal in Ordinary as part of its membership,³⁹ it continued to insist that its own precedents were not open to reversal. Blackburn, one of the first appointees, was firmly of this view.⁴⁰ In London Tramways v. London County Council, the bluff Lord Chancellor, Halsbury, pronounced that the rule had been ‘established now for some centuries’ and was ‘universally assumed by the profession’ in the interests of legal certainty.⁴¹ As Pugsley has shown, this undoubted exaggeration (p.51) nonetheless represented a well-endorsed view stretching back some 70 years.⁴² The decision was taken to put the rule beyond question, finding some echo with the keystone courts of the dominions.⁴³ Scrutton LJ would sneer: ‘All judges make mistakes. Only the House of Lords do not make mistakes because there is no-one to tell them that they do.’⁴⁴ Indeed, it was only after his retirement that the Court of Appeal would finally adopt the principle that it too was bound by its earlier decisions, save where they were reached in ignorance of a statute or a binding decision, or had created a conflict between one another.⁴⁵ The resilience with which the Lords defined their once-for-all role expresses a confidence in their own capacities that seems particularly of its period. Certainly there was pressing need to give settled answers to legal questions. With the small number of superior judges, the demand for rules fit for an immense Empire was hard to meet.⁴⁶ Better a rule that, short of statutory overturning, had to be taken as settled than a conditional rule always open to revision in later litigation. So plainly the most senior judges felt.

In his apologia for the doctrine of precedent, Holdsworth claimed for it an ideal flexibility, amounting to a formula which allowed for cautious extension and revision of legal rules, but nothing that in essence disturbed the declaratory rationale—that judges were only uncovering a principle or rule.⁴⁷Even after the House of Lords’ self-denying ordinance in London Tramways, the scope for limiting a prior decision certainly remained considerable. The art of distinguishing a rule set by precedent, particularly by finding that the facts were not on all fours, had been deployed by judges great and small since at least the eighteenth century.⁴⁸ It might well be used where the earlier decision had been the subject of (p.52) criticism among judges and practitioners, or even where a particular judge found it wholly unreasonable. In turn there could then be aspersions against unwarranted distinctions that were, as Lord Hardwicke had once put it, ‘slight and cobweb’.⁴⁹ Here too were assumptions that would gain in legal sinew with time. Where one court was bound by the earlier decision of another, it was obliged to apply the ratio decidendi of that case, but not obiter dicta that were no more than judicial adumbrations on other matters. In the 1930s the dichotomy between the two would lead to much scholarly disputation in the pages of the Law Quarterly Review. ⁵⁰ How far, in particular, must the later court treat the earlier judge’s formulation of the applicable rule as binding ratio, rather than passing dictum? What scope was left for the later judge to engage in ‘restrictive distinguishing’ that reformulated the earlier rule, as distinct from pointing to a factual difference in the cases which justified following a different rule?

In the early nineteenth century, it remained not unknown for judges to express hesitations about how to decide a case over considerable periods. They might reserve their decision until the body of their brothers could be consulted; they might hear re-argument after a search for further precedent or a better report; they might discount cases as wrongly reported or for not having been reported; they might note that a case dealing with a new issue was decided only for its particular facts; and so on.⁵¹ It may also be noted that the House of Lords, hearing an appeal in error, continued their occasional practice of seeking the opinions of the common law judges on issues of law raised in a case. However, they would not necessarily accept the advice they were offered by all or a majority of the judges who responded.

4. Interpretation of Statutes by Courts

Despite his obeisences to parliamentary sovereignty, Blackstone had treated much on the statute book as unsatisfactory, as became evident in his treatment of the approach of courts to statutory interpretation.⁵² The complaint would continue to (p.53) surface often enough, for there had been no system established even for drawing up legislation promoted by the government. Instead each ministry had its own tactics which were part of their ever-growing need for legal advice. In 1867, the office of Parliamentary Counsel was established as a resource to which a Department could turn if it chose. Henry Thring as its first head did much to establish what was needed to produce an effective draft for legislation, the first requirement being adequate instructions and behind them, adequate discussion of the policies being aimed at. Equally assiduous was his successor, Courtenay Ilbert.⁵³Since departments could choose to rely instead on the skills of their own civil servants, or of legal practitioners consulted on an ad hoc basis or seconded to their service for a limited period, the quality of legislation would continue to be variable.⁵⁴ By the late nineteenth century judges tended to voice their criticisms of particular legislation more in sorrow and less in anger; but still they were regularly faced with obscurities and inadequacies of drafting for which they did not care.

A considerable section of Dwarris’ book presented judicial pronouncements on the proper approach to the interpretation of enactments.⁵⁵ Concluding that statutes—for the most part like wills, deeds, contracts, and royal grants ⁵⁶—must be read so as to understand and give effect to their intent, he starts with attention to the long-lived ‘Mischief Rule’ and is even able to call in aid that high legalist, Baron Parke, who on one occasion remarked: ‘We must always construe an act so as to suppress the mischief and advance the remedy.’⁵⁷ But Parke soon qualified any prospect of a free-ranging search for what Plowden had once called the ‘soul’ of the law—its ‘internal sense’ and ‘reason’⁵⁸—by insisting, as modern judges do, that it is the words used that determine the legislature’s intent; and that accordingly it is often difficult to discern what that motive or purpose was.⁵⁹

(p.54) The judges had long claimed to adhere where possible to a principle—the so-called ‘literal rule’—by which the words of a statute were to be interpreted by ‘their ordinary and familiar signification and import, regard being had to their general and popular use nothing adding thereto, nothing diminishing’.⁶⁰ That did something to enhance their claim to be deciding objectively and without resort to personal opinions, feelings or ethical strictures. But they continued to qualify that stance, sometimes by reliance on Baron Parke’s ‘golden rule’,⁶¹ and sometimes by resort to a whole splay of presumptions expressed in maxims such as ut res magis valeat quam pereat and expressio eorum quae tacite insunt.

Later, general Interpretation Acts and the incorporation of definition clauses into particular statutes would reduce the need to delve around in order to discover the ‘mischief’ that the statute was intended to eradicate.⁶² In any case the judges stood out against hearing arguments as to what ministers, promoters, and others said about meaning during the progress of a bill and rarely would they consider the reports of preceding Royal Commissions or Parliamentary or Ministerial Committees. The Assize circuits could scarcely carry their own copies of Parliamentary Debates or Blue Books.⁶³ More fundamentally, the judges insisted upon interpreting statutes as they saw fit after hearing argument before them. Thus it was, in their view, that the balance of power between legislature and bench had to be set, even as true democracy approached. Further English texts would tackle statutory interpretation afresh in the 1870s. To an ill-defined degree, it continued to be said that judges would not allow ‘a fraud on the law or an insult to an Act of Parliament’. ⁶⁴ What was more evident was the tendency to resort to presumptions as starting points, such as the restrictive interpretation of penal statutes, the presumption against retrospective effect, the requirement that for an act to affect the position of the Crown it must say so, the avoidance of collision with other principles, the choice of the solution most agreeable to justice or reason, the choice of meaning that was consonant with international obligations. (p.55) A large portion of P. B. Maxwell’s On the Interpretation of Statutes⁶⁵ was cast in this mould; likewise H. Hardcastle’s The Construction and Effect of Statutory Law.⁶⁶ The guidelines on how to construe statutes formed a web of rationalization which judges used to justify their acceptance of one argument over another. Referring to such propositions could lend weight to what was no more than off-the-cuff preference.

5. Codification of Basic Legal Principles

In the early nineteenth century, the balance between what was set forth in statute and what was left as part of common law had little about it that was pre-ordained; and so matters would largely remain in the development of the modern law. The issue was, however, long the subject of argument between the supporters of tradition and the advocates of rationalizing reform. As the polities of the European continent loosened the trappings of feudal government, the states that emerged were often larger than before and were searching for their own legitimacy. The changes set in train a determination to state their general laws of civil and criminal responsibility, of trade and of court procedures, in the form of codes. It was a reshaping that could help to replace overlordly power with government under a rule of law—a Rechtsstaat. It could well lead to an intellectual shift in which legal sources were taken to consist solely in the Codes and other legislative acts or decrees. In face of this urge to legislate, there was likely to be some withering of the sense that there existed a body of rules known to those who exercised judicial power and expressed in their reasons for judgment. Precedent (jurisprudence in French terminology) accordingly tended to lose its status as a source of law.⁶⁷ Instead, scholars in universities gained increasing respect and admiration for their exposition, commentary and exegesis upon the codes themselves, providing doctrine (again in the French sense) that held its own authority for those seeking to settle what the law was.

These European legal codes, which derived, at least in part, through various historical channels from Roman Law or interpretations of it, had their own models in the immense Prussian Code of 1794 and in the French Code civil of 1806, so enthusiastically engendered by Napoleon. Yet it was an Englishman, Jeremy Bentham, who made the case for codification with particular spirit, urging the need to replace custom and judicial practice with a coherent and complete panoply (p.56) of publicly stated rules. Certainly his writings on the subject attracted numerous countries to the cause as the nineteenth century progressed. Bentham’s long voyage as a moral philosopher had as its engine his self-proclaimed ‘genius for legislation’ and it was still running at speed in 1820, when he had another 12 years to live. It would carry him into massive plans for legal ‘codification’ (the word is his own); into writings on many elements in social life, pursuing ideas of economic liberalism but backing them by state provision against communal disaster; into attempts at practising his novel ideas—as with his Panopticon scheme for prisons, poor law workhouses, asylums for the insane and the like; into advocacy of complete democracy (for adult males); and into plans for executive government that would cast the citizenry in the role of constant watchdog and critic of official acts and omissions.

Bentham left no completed version of his Code of Codes, the Pannomion—which was to comprise a constitutional code and under it four codes of private law, civil procedure, penal law, and criminal procedure; but his writings explored basic issues about the structure and the content of each part of the whole. We shall return below to fundamental aspects of his analysis of the nature of law and the need to justify its policies by the principle of utility, rather than by some ineffable moral sense.⁶⁸Despite what was put about by his disparagers, he by no means believed that the Codes could be so complete and unchanging that the role of the judges would be simply to apply them to cases before their courts. He foresaw a regular process for revising the texts to meet new circumstances, which would often start from an ‘ameliorative-suggestive function’ assigned to the judges (the term being a typical piece of his conflated word-smithery). This would draw them into the business of necessary law reform, without leaving them with their distinct power of decision by reference to earlier precedents. In that process, he believed that they should act, as did Lord Mansfield, by reference to principle, rather than to authority.

The influence of these ideas was felt both in foreign countries and also within the British Empire, notably in India. After the 1857 Mutiny, Britain assumed the direct reins of government and saw codification as the instrument that, so far as possible, would make English common law part of the great Imperial mission to civilize the teeming peoples of the sub-continent.⁶⁹ Not so at home. Against attempts to codify the common law there was a tide of resistance that flowed throughout the century, as often enough since. It was a rebuttal of the Benthamic programme, powered above all by the judges and the practising professions working in the interstices of the legal system.

(p.57) There were determined efforts from the period of the First Reform Act onwards to get down to the business of English codification. Because of its patchwork effects it is worth summarizing even at this early stage. It was led by lawyers who had some measure of sympathy with radical arguments for legal reform. Henry Brougham exhausted the House of Commons in 1828 with a six-hour speech on the subject of the defects of English common law and its machinery,⁷⁰ and it caught a mood of impatience for change that had strong links to the cause of parliamentary reform.

Soon enough Commissioners were investigating the tangled interstices of the land law and conveyancing and others were looking to the prospects of codifying, or at least re-stating, criminal law and procedure, and of re-working the very texture of civil procedure.⁷¹ The land law would over time be patched by a succession of statutes that, at least until the major re-designing of the subject and its coordinates in 1925, would fall well short of any code.⁷² Civil procedure was gradually re-set. Particularly in the 1850s, Commissions recommended that old limitations on the structure of judicial bodies, on remedies in the different courts and the application of particular rules and changes were introduced by statute.⁷³ Two decades later, it became possible to create a single hierarchy of superior civil courts to hear disputes based on rules drawn from common law, equity, and the civilian jurisdictions; but in large measure the changes were in jurisdiction and practice, not in the substantive content of the rules themselves.⁷⁴ Between 1833 and 1850, two sets of Commissioners wrestled long to produce Criminal Law and Procedure Codes, but at the end of their efforts the judges and law officers returned what was in effect a vote of no confidence in their drafting and, at base, in the very project itself.⁷⁵ Of all branches of law to which laymen should be entitled to access through clear statement, criminal law was the obvious case. But it was said in riposte that potential criminals knew well enough already what they (p.58) should not do.⁷⁶ A code would only rigidify the ability of the courts to mould common law principles to fit the cases before them, and that would be a constriction of far greater moment. Instead, after further work, the mass of statutes on parts of the criminal law were consolidated—with amendments that rationalized the possible sentences for different crimes and made occasional adjustments to definitions of the crimes themselves.⁷⁷

In the 1870s, FitzJames Stephen returned from a term as Law Member of the Viceroy’s Council in India, enthused with the cause of codification to which he had been contributing there, as had Sir Henry Maine before him. But his own Criminal Code for England failed to secure enactment. Fellow members of a Royal Commission to consider his draft accepted that it should go forward. But then the commanding Lord Chief Justice, Cockburn, raised a plethora of objections to its General Part and promised more for the rest. In England it was shelved, though it would be the basis of enactments in Queensland, Western Australia and other colonies.⁷⁸ Opposition from senior judges was undoubtedly a main source of resistance, but other difficulties were to be anticipated as well. No Justice Ministry had emerged, criminal law being the charge of the Home Office. Its day-to-day preoccupations were with policing and detection, the carrying out of punishments, particularly in custodial institutions, and managing criminal courts at the superior and summary levels.⁷⁹ Systematic statement of the definitions of criminal liability was far removed from its main objectives. On the other hand, the business of applying the principles to particular cases was one part of the law where, as justices of the peace, English gentlemen were engaged in running the system. How could a code of criminal law and procedure ever be expected to pass the scrutiny of a Parliament made up of such men?⁸⁰

In the late nineteenth century, codes would be enacted on a number of relatively specific aspects of commercial law, largely because of pressure from groups with financial or business interests. They wanted legal advice grounded on the plain speaking that they thought legislative language provided; they abhorred opinions from their barristers built out of the nuanced weighing of judicial pronouncements into a seat on the fence. The codes covered bills of exchange, (p.59) partnership, sale of goods, and marine insurance. But even these fell short of the codes of commercial law that were finding a place in many Continental countries.⁸¹