Debunking Millar v Taylor: the History of the Prohibition of Legislative History

Abstract

The generally accepted belief about the rule prohibiting recourse to legislative history as an aid to statutory interpretatioon is that it began with the case of Millar v Taylor in 1769, and it was followed thereafter in England and throughout the United States through to the 20th century. However, all four judges on the panel in Millar v Taylor considered evidence from the Journal of the House of Commons and changes made to the relevant bill in their opinions. Meanwhile, the case was widely cited for several substantive and procedural matters throughout the 19th century, but it was not cited by a judge as a precedent for the rule against legislative history until 1887. A careful examination of the relevant cases and secondary literature from the 18th and 19th centuries reveals a much more nuanced and complex history. Its emergences becomes less clear because it is shrouded in judicial silence. Its beginnings must be inferred from a general and often unstated principle that lawyers felt free to disregard. Furthermore, the development refinement and decline of the rule followed a different timeline in England, the US federal courts, and the state courts.