Today is the 175th anniversary of the Great Fire of 1834, which destroyed most of the British Parliament buildings. A vivid audio description, by the Parliament’s current Clerk of the Records, can be found here.
The hazardous state of the Parliament buildings, which were made of plaster-covered timber, was noted in the eighteenth century. In 1789, a report signed by fourteen architechts complained of the danger of great damage in case of fire. But few precautions were taken.
In October, 1834, the Clerk of the Works had to dispose of two cartloads of wooden “tally sticks” — remnants of an obsolete accounting system used by the Exchequer, a government finance department. On October 16, 1834, the Clerk had a couple of workmen burn the tally sticks in furnaces that were part of the heating system of the House of Lords. About 4 pm that afternoon, the deputy Housekeeper, Mrs. Wright, was conducting some visitors through the Lords chamber, and the visitors noticed that the floor was hot and had smoke seeping through it so thickly that they couldn’t see their hands in front of them. But she did nothing.
By 6 pm, the House of Lords was on fire. Through the night, the fire spread to the House of Commons chamber, the Commons Library, and other Parliament buildings. Heroic firefighting action by fireman, soldiers, and private citizens saved Westminster Hall.
Obviously the fire was a terrible, devastating event. But it did have consequences that some might regard as beneficial. Even as the fire occurred, Augustus Charles Pugin, an architecht, rejoiced that later additions to the Parliament buildings, which he regarded as ruining the original medieval structure, were finally gone.
And there is something else too. I became familiar with the 1834 fire when researching my forthcoming article, Law and Longitude. The article is a legal analysis of the controversy occasioned by the Longitude Act of 1714, which established a public prize for the discovery of a method of finding longitude at sea. (If you’ve read Dava Sobel’s delightful book, Longitude, you know all about it.)
Much of the controversy concerned the proper interpretation of the Longitude Act, and, in accordance with modern interpretive practices, I wanted to research the Act’s legislative history. But I couldn’t! The history was destroyed in the fire, except for such small portions as were preserved in the official Journals of the House of Commons.
Today there is, of course, a lively controversy about the use of legislative history in statutory interpretation. But one thing is certain: courts couldn’t use legislative history if the history were destroyed. Then we would be compelled to live in the textualists’ ideal world, in which we could only look at the text of the statute and try to determine what it means.
If you had the choice, would you put all legislative history to the fire?
1 comment:
Legislative history ought to simply become part of the law.
Legislative history as it exists today should be unnecessary. Pure textualism, in an enlightened society, should be adequate.
After many centuries of English and American style legislation and adjudication, it is almost incomprehensible that we still cannot - or will not - write legislation that is clear and simply constructed, with its meaning unmistakable.
Each word should be defined, and the definitions should be part of the law. Ambiguous or amphibolous text not explained should be void.
The purpose and scope of each law should be explicitly defined, and no law should have effect in areas outside of these limits.
Lists of conditions should be preceded by clarifying text explaining whether "any one of the following" or "all of the following" must be met before a law is applicable. Terms such as "including, but not limited to" or "and other items", so prevalent in current law allowing application beyond the stated purposes (the Patriot Act comes to mind) should be prohibited.
The fundamental error in our legal system is that judges are allowed to "interpret" ambiguous text in any manner that suits their personal preference, allowing their own political or moral biases affect their decision, particularly in cases involving the power of the state. Legislative history can be used or excluded at a judges discretion.
Since judges are as much the state as any other part of government, bias is implicit in favor of the state. Almost always, even with clear legislative history, decisions are made contrary to it, most notably in taxation cases.
There is no independent extra-legal authority to establish the truth or falsehood of adjudication or regulation.
In that respect, we have not a separation of powers, but a mere distribution of powers.
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