CHINA AND THE YEAR BOOKS Or a Large Number

CHINA AND THE YEAR BOOKS Or a Large Number of Digressions on a Long Period in a Short Time Text of a lunchlime talk by DEREK ROEBUCK Professor of Law, City Polytechnic of Hong Kong WHEN I was asked to speak at this luncheon I was told I could be serious or amusing. Would that the choice were up to me! I know that the organisers were secretly wishing for something light and that you would probably be prepared to forgive a lack of tonnage but it's not so simple. There is a sensible practice nowadays for law teachers to ask students to complete a questionnaire saying what they think of the teacher and the course. In Papua New Guinea I got flattering grades, except C for sense of humour. When I asked my first LLB students here what they thought of my first term I carefully omitted any question about such a delicate matter. But unwisely I left a space for 'remarks'. One student saw the chance and wrote: 'Tells good jokes'. My cup ran over, and I hurried home to tell my wife. She said 'what jokes did you tell?', and I thought—and had to confess that I had not knowingly told any. By the way, I should have mentioned that the title of this talk is supplemented by a sub-title: 'Or a Large Number of Digressions on a Long Period in a Short Time'. The organisers —either through parsimony or concern that nobody would stay for coffee—declined to announce it. So, it may take me some time to get geographically to China or diachronically to the Year Books. However, lacking the confidence of the raconteur, as always when I'm stuck for a lecture, I fall back on legal history. Now legal history is not in fashion. I still teach it—but by subterfuge, concealing it under more fashionable dress as 'Sources of Hong Kong Law LW0103' and 'Comparative Legal Traditions I & II LW0701 and 702'. 18 Law Lectures for Practitioners I tell students what OW Holmes said: 'The rational study of law is still to a large extent the study of history. History must be a part of the study, because without it we cannot know the precise scope of rules which it is our business to know', (OW Holmes, The Common Law [Boston: Little Brown, 1881] 1-2), I remind them of Walter Scott's differentiation of lawyerarchitects and artisans. 1 try 'teaching law without history is like planting cut flowers' because I can't remember who said it and I can pass it off as my own, but that is how I get my G for sense of humour. So I have decided to let the primary sources speak to you for themselves. We start our wandering journey not far away in time or space with a case which has recently been decided by our highest court on a simple point of law arising from an everyday Hong Kong conveyancing problem. Hua Chiao Commercial Bank v Chiaphua Industries [1987] AC 99 (PC) and [1986] HKLR II (CA) had to decide a simple, even mundane, point of law. A tenant paid a deposit to the landlord to secure performance of the tenant's covenants. The tenant performed all the covenants. Gould it get the deposit back from the bank to whom the reversion had been assigned when the landlord could not repay a loan? 'No' said Master Boa. 'Certainly not!' agreed Mayo J. 'Of course it can' said the Court of Appeal unanimously. I'll come back to what the Privy Council said. Everyone was in agreement about the general rule of construction which applies in default of express provision: a covenant in a lease binds a party's successor in title only If it 'touches and concerns the land' as the common law puts it, or if it has 'reference to the subject matter of the lease' as the legislation no more helpfully provides. An important supplementary rule is that a covenant to pay a sum of money at the end of the term is personal to the original parties and the obligation does not pass to assignees. All this in default of express agreement to the contrary. That rule is to be found in Spencer's case (1585) 5 Go Rep i6a, first published in 1605. China and the Year Books 19 That a nice point of law, deciding an important contemporary commercial question (no doubt one on which the continued economic stability of Hong Kong ultimately depends) should have to be sought 400 years ago in England, in a dialect or register of a language known to precious few in Hong Kong (some might unkindly say a very precious few) is a matter of concern, or should be, and I shall eventually come back to it. Spencer's case is a decision of King's Bench, as it seems to have been called in Elizabeth's reign. If you open Part V of Coke's reports and leaf through looking for folio 16a, you will find yourself in the middle of Caudrey's case and Coke in full flight in a polemical tract explaining the royal powers over religion. What is Caudrey's case doing, stuck there at the front of Part V with a separate foliation? Now, that would be a digression! But why not? Part V seemed to Coke to be a bit thin. He had published most of the big cases he had taken notes of. His first four parts had sold well. Part V needed a case that would sell it and Caudrey's case was hot stuff. We had our own murderous bigots in England then and Coke sought not only royalties but royal favour by publishing what the king suggested he should. Part V ran into five editions between 1605 and 1624. as a result of the interest in his history of royal powers, which he rooted somewhat optimistically in a supposed King Kenulph. Gould he have been Cynewulf of the West Saxons 757-86? It's about the right time. But we must avoid just one digression, perhaps, to give spice to the rest, and get on to Spencer's case. Coke's report of Spencer's case is his usual blend of report and commentary, including homily. He begins by assuring us that 'after many arguments at the bar, the case was excellently argued and debated by the Justices at the bench: and . . . unanimously resolved by Sir Christopher Wray GJ, Sir Thomas Gawdy and the whole court'. We know who the others were: William Ayloff and John Clench. You can find out the judges who sat in any court at Westminster from 1066 to 1864 by looking it up in E Foss, Tabulae Curiales (London: 1864). If you use the copy in the City Polytechnic library, you will find it has been continued in manuscript for another dozen years or so, 20 Law Lectures for Practitioners making it unique, like much more in perhaps the best collection in Asia of antiquarian and other material on the, history of the common law. When we have settled into our new home later this year, you will all be invited to come and inspect it. But we are going too fast and must get back from Shek Kip Mei to Westminster Hall, Coke's commentary is part of his report and treated as authority. It makes no sense to talk of the ratio of a case reported by Coke. The commentary cannot easily be separated from the judgment, which was itself consciously laying down the law generally on the effect of the assignment of the benefit and burden of covenants, not only in leases but all kinds of deeds, carefully distinguishing express covenants and assignments from those which were created when certain magic words were used. Coke points out that the law on the assignment of reversions is statutory, referring to the Grantees of Reversions Act 1540 (32 HVIII c34). Coke says—the Act does not—that the statutory provision 'was resolved to extend to covenants which touch or concern the thing demised and not to collateral covenants'. In other words, the judges had glossed the statute, as they felt free to do in those days. They extended to assignmerits of the reversion the supplementary rule they had created for assignments of the lease. So, that is where we find the rule we need for our Hong Kong case. But Coke doesn't leave it there. His homily begins: 'Observe reader your old books, for they are the fountains out of which these resolutions issue'. What are those old books which need to be considered if we are to get to the bottom of Coke's thinking on Spencer's case? Coke refers us to his own writings, the great first volume of his Institutes, usually called Coke on Littleton, at i8a, note (c). There, at 384a, he discusses the legal effect of using abracadabras: 'warrantizabimus' and 'dedi', which is the nub of Spencer's case and implies a warranty of title. Now, to help us to understand what he is telling us, as well as to save repetition and to found his assertions on authority, (not even arrogant old Coke treated his own book as authority in his own lifetime) he directs us, through footnotes, to his sources. I have picked out two for no better reason than that China and the Year Books 21 they were at hand among my own books: Fitzherbert, Natura Bremum and YB 7 HVII 2. I found I needed to read Fitzherbert's Natura Bremum to understand the problem in Spencer's case and to give me a lead into the Year Book, Fitzherbert explains the distinction drawn by Coke (who digresses to remind us 'qui bene distinguit, bene docet') between warranties in deed and warranties in law, which we would now call less accurately express and implied. Fitzherbert explains that one who grants by certain words—terms of art—must back up the feoffee's title, when challenged, by warranting it. The foeffee has a writ of warrantia chartae against the feoffor but not his heir unless the feoffor expressly bound his heirs by words in the deed of grant. The feoffee does not have that writ if he could have vouched the feoffor and did not. And that law is found in YB 7 HVII 2, where in an action of trespass in King's Bench the court (?) said: 'Come in warrantia chartae n'est autre brief mes Unde cartam habet et pur ceo comment que son court ne garrantie le brief, uncore est bon, etc'. Now you may well ask what on earth that has to do with you, or indeed me, let alone the future of Hong Kong and the survival of the common law, or the subject of this talk—what was it?— 'China and the Year Books'. Well, we've visited the Year Books. How do we get to China? There is a story of the writer of serials for a boy's comic, whose hero was left at the end of an instalment in a cellar, chained and gagged, with the water flooding in and a venomous snake swimming towards him. The deadline for the next issue was an hour away and the author was lost on a binge. His colleagues struggled to think of a way to start the next instalment. At the last moment the hungover hack burst in, sat at the typewriter and wrote: 'With a merry laugh, Jack was at the window in one bound, wriggling through the bars and into the free air of London's streets' (I think I read something like that in E S Turner, Boys Will Be Boys [London: in about 1947]). How am I to emulate Jack and make it to China in the next five minutes? Some of you will remember Law Lectures for Practitioners 1980. A similar period separates us from the 1998 series which will, 22 Law Lectures for Practitioners of course, be held in China. Hong Kong's legal system will then be part of that of the People's Republic of China. The preservation of Hong Kong's common law will be guaranteed. When we bring the equivalent of warrantia chartae against the PRG Government or vouch it to warrant our title to that heritage, what is it that we shall be asking them to preserve and how shall we expect them to do it? Government has seen the need to translate Hong Kong's Ordinances into Chinese and aspires to bilingual drafting. It is possible that in 1997 all" legislation applying in Hong Kong will be available in some sort of Chinese, though not in the same sort, because drafting in Hong Kong is significantly different from Peking's. Even if the translation is not completed here, it is being separately attempted in Shen Zhen, I hear. But what about the common law? There are no plans to translate the Hong Kong Law Reports. That would be futile anyway. The common law of Hong Kong is not found there but in the vast bulk of reports of cases not only in Hong Kong and England but in the other common law countries whose decisions are cited. They certainly multiply faster than they can be translated into Chinese. There are no plans to codify the whole of Hong Kong's common law, except for its most important part, the criminal law. The Law Reform Commission's paper on codification is dismissive, reflecting the attitudes of lawyers in the English tradition. Now it is true that attempts at comprehensive codification have failed in England from Francis Bacon's initiative in Coke's time to the present impotence of the Law Commission. But the English have the alternative of keeping the common law if they do nothing. We have not. The standard of English—never mind Latin or Law French—needed to understand the common law is not likely to become more widely available in Hong Kong after 1997. The requirement that the law should be intelligible to the rulers, if not to the ruled, will have more weight. We cannot assume that English will be the language of Hong Kong's legal system, or any part of it, for ever. I do not have to prophesy when Chinese China and the Year Books will become dominant to make my case, which is for a Chinese Digest of Hong Kong Common Law. The creation of such a Digest will be an enormous task. Resources are limited. Can it be done? Is it worth it? How should we set about it? It can be done. There are models we can learn from Jenks in England (based on the German Burgerliches Gesetzbuch), the American Restatement, successful local partial codes, such as the Bills of Exchange and Sale of Goods Ordinances, all give ideas and encouragement. It is worth it because it is the only way to preserve the common law. I could, but won't, now try to elaborate a list of its virtues that we would like to preserve. I think I can take for granted there are some, though we may differ about what they are. For the common law to survive it must now be planted out, taken from the greenhouse of British government protection and given a chance to become an indigenous growth. Who knows, it may then turn into a, strain which will spread to the rest of China. A research team has already set about the task. The nucleus of linguists, lawyers and lawyer-linguists has been formed at the City Polytechnic of Hong* Kong and already we have received enthusiastic support from practitioners in Hong Kong and scholars here and abroad, in China as well as Europe and USA, who will help with the various tasks. We need not try to do everything at once. We have started with contract and we shall take on other topics as we find our feet. It is not a job that any of us are likely to see completed, because it will need to be revised indefinitely. Quite apart from changes in the law, we should learn to do better from our experience on the job. The Digest is being created in Chinese. That is its most significant characteristic. It will be translated into English as we go. Instructions to the drafting teams will necessarily be in English. Drafts will be published widely and submitted to the scrutiny of a panel of experts, of different backgrounds, to ensure that the law is stated as accurately as possible in as good and comprehensible modern Chinese as possible. Tough deci- 24 Law Lectures for Practitioners sions must be made. The common law of Hong Kong is not self-evident or certain, A commentary can reveal the uncertainties but the Digest will try to resolve them. It must take a stand. It must also choose between linguistic alternatives. Do we use the character for 'contract' used now in Hong Kong or the one used in PRG legislation? But the difficulties are what makes the work interesting and worth the serious attention of the scholars and lawyers who intend to devote to it great effort and skill without financial reward. I invite you all to join in this great enterprise on similar terms. I have forms here, economically and significantly double sided. On one side you can say if your interest in legal history has been quickened and you would like to join the Hong Kong group of the Selden Society, which is devoted to the study of the common law's history. On the other you can tell me if you would like to be kept informed of the progress of the Chinese Digest or even share in the work. So thank you for allowing me to get away with making a virtue of my lecturing vice and for putting up with digressions instead of a theme. I think with a morning of Landlord and Tenant behind you and an afternoon of Deeds of Mutual Covenant to look forward to, further frivolity from me would be superfluous. Oh, in case you're wondering what happened in the Privy Council, they reversed the Court of Appeal, making no mention of Spencer's case but taking their law from our student textbook, Cheshire's Modem Real Property, an authority so recent that I am proud and old enough to have sat at his feet.