Fire — Good or Bad?

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?

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4 Responses

  1. Dave Hoffman says:

    Not sure on the merits. But as to the process question “fire good or bad,” I’d following President Obama’s lead and try to make peace with it.

  2. Edward Swaine says:

    Jon, you’re the expert on this — wouldn’t all statutes be construed against the arsonist? One would hate to be Mrs. O’Leary’s cow. (I know, maybe Daisy didn’t do it.)

    Assume, alternatively, that all legislative history spontaneously combusted on its own. That’s still different than instances today in which legislators had the opportunity to establish such history but did not. Would that make a difference — so that, for example, a Senator might testify as to what was in a committee report?

    I guess the purer question is whether we would prefer that a disaster befall ancient legislative histories (that were still good law) of which no other evidence can be mustered — consider, maybe, the ATS — or a world in which they could not be created at all.

  3. The Quiet Lawyer says:

    I’d put them to the flames (metaphorically). As Max Radin put it some 80 years ago, legislatures do not exist to have an intent — they are there to pass laws, which is a pretty specific act. If the legislature wants something treated like a law, then let them meet the constitutional formalities (passage by both houses of the legislature and approval of the executive). Nothing prohibits the legislature from making the commentary a part of the act, for example.

    Besides which, people ought to be able to learn the legal duties imposed on them by reading the statute, without having to worry about being blindsided by something planted in a committee report.

  4. Guest says:

    “If you had the choice, would you put all legislative history to the fire?”

    No; because it’s common sense that legislative history has functions beyond manipulative usages in certain kinds of proceedings.