THE STATE OF THE LAW.

New Zealand Mail, Issue 1424, 15 June 1899, Page 41

THE STATE OF THE LAW.

(By “S.S.C.”)

No. 11.

In the previous article I tried to point out the uselessness of touch citation of decided cases. I also snowed, by extracts from “Plowden’s Reports,” and from a judgment of Chief Baron Pollock, and from a paper by Sir Erskine May, that the judges of to-day look much more to the mere letter of an act of Parliament than did their brethren of past times. I cited no authorities, however, against the practice of too frequent citation. I will now, with your leave, repair that omission. Let us take first that luminous judge, the late Sir George Jessel. Mr Peters, in his preface to “Jessel’s Decisions.’ says : —“He (Sir George) never fettered himself with previous decisions upon other instruments except as a last resort.” Next, Lord Halsbury (Sir Hardinge Stanley Giffard), the Lord Chancellor, having stated that he intended to try to seo “through the instrument what was the mind of the testator,” added that when he was ‘'overwhelmed with authorities about what particular judges had thought about other particular instruments. ... he confessed himself to be in a hopeless state of confusion” —1890. 44 C'h. D., at p. 600. On page 609 Lord Justice Lindley (well known to the legal and commercial worlds as the author if “Partnership” and “Companies”) said : —“The difficulty arises when you look away from the document which you have to construe. ... I do not propose to deal with decided cases at all.”

Reverting to the subject of Acts of Parliament, the fault in construction does not lie wholly with >.he judges. The draftsmen are not free from Uame. The process of word-weighing and wordpiecing goes on in the draftsman's ’ chambers as v r ell as in the court. The several processes act and re-act upon one another. “Why,” it may be asked, “does the draftsman potter with words ?” “Because ho believes the judge uill weigh words.” “Why,” again, “does the judge weigh words?” “Because the draftsman does.” Obviously mutual advances must be made. The result would be a more virile style of drafting, in which the reader’s mind is carried irresistibly along a strong current of thought, sweeping away all obstructions and difficulties arising from lack of verbal nicety. One word more about statutes. Those who know most about Bill drafting (especially former law officers) are the most lenient towards the draftsmen and the Legislature. I will again quote. “I am not,” said Sir G. Jessel, “one of those judges rvlio carp at the language of the Legislature”—lß76, 4 Ch. D., 738. “The work of framing them (statutes) is committed to few hands while the task is a Herculean one”—Sir Alexander Cockburn, 1876, Guildhall speech. “We ought to make great allowance for the framers of Acts of Parliament in these days”—Lord St. Leonards, 1857, 6 H.L.C., 179. “Wo are not living in Utopia, where a perfect or ideal language may he had very readily” -Lord Macnaughten, 1891, App. Cas.. 576. I am in the vein for quotation. Lord Macnaughten’s words remind me of the following passage from Balfour’s “Foundations of Belief,” chapter on “ Idealism”—“lf terms were counters, each purporting always to represent the whole of one unalterable aspect of reality, language would become, not the servant of thought, nor even its aliy, but its tyrant. The wealth of our ideas would be limited by the poverty oi our vocabulary”—page 267. “A new statute, to be perpetually incorporated with the law of England, was regarded as no light matter”—Hallam’a “Middle Ages,” chapter 8. But we, in New Zealand, turn out statutes by the hundred. Mr Sidney Webb expressed to the writer an amused surprise at our firm conviction that a new statute was the panacea for every ill. “Multiplicity of laws do hut distract the judges, and render the law less certain,” said Chancellor Oxenstiern. Yet there is the opposite danger of a too great conciseness, of “densest con densation, hard to mind and eye”— Merlin and Vivien.