« PreviousContinue »
and gradually build up your system by progressive stages, of which even a Digest is far from being the first. Festina lente.
It is now just twenty-two years ago—just the whole lifetime of this Association—since my attention was called to this subject by my being appointed one of the draftsmen employed by the then existing Statute Law Commission to prepare one of the Bills needed for the then contemplated consolidation of our Statute Law. I pointed out then, in the note which each draftsman was required to append to his draft, that the work could not be thorougly and satisfactorily done until the actual state of the Statute Law had been accurately ascertained; and that for that purpose a carefully revised edition of the entire Statute Book, excluding all that had been repealed or amended or had become obsolete, was an essential preliminary. The idea was too prosaic for acceptation by the Commission, and accordingly they went on accumulating draft Consolidation Bills, which have ever since slumbered peacefully in some Government pigeon-holes or other, if, indeed, they have not long ago found their way to the butterman or the trunk-maker. At any rate, none of them, except Mr. Greaves’s Criminal Law Consolidation Bills, has ever been submitted to Parliament. Some ten years ago, however, the plan of a revised edition was taken up by the present Lord Chancellor (certainly not upon any suggestion of mine, I can claim no part in it whatever), and within the last few months we have seen it brought to a completion by the publication of the fifteen volumes which contain all the existing Statute Law down to the year I868, and for the first time render a systematic digest of that Law reasonably practicable. That edition is the fruit of the continuous labours of the Statute Law Committee for ten years: how long do you suppose it would take to prepare and edit, by authority, a similar edition of the reports? Certainly, not a shorter time: and yet, till that has been done, it would be hopeless to look for even a reasonably good Digest, that is to say, a text-book which might be used as authority, and as containing all the authorities, on any branch of our Law; not to speak of a Code, which, as I have said before, is intended to supersede the unwritten as well as the written Law.
These preliminary steps, however, require nothing but time, care, and patience to carry them into effect. The same agency which has authoritatively edited the Statutes could, if so minded, issue an equally authoritative Digest, though that, if confined to the Statute Law, would be of but little advantage. But a similar agency could, no doubt, with the concurrence of the judges, which we have no reason to suppose would be withheld, prepare—first, a complete edition of all that is still valuable in the reports ; and then, such a Digest as well of the positive law contained in the Statute Book as of the common law so far as it has hitherto been formulated by judicial expression, as would bring before us in a manageable shape all that at present constitutes our Corpus jurisz it is when you propose to give to your Digest—whether further developed into a-Code or not—that legislative sanction without which it must at best remain merely a higher sort of text-book, that your great difficulty will have to be encountered : and with our present system of legislation, and unless you can find a House of Commons ready and willing to take your law on trust and accept your measure as a whole——to do which you must return to the days of Henry VIII.—I do not see how such a measure as would be needed can ever be expected to become law.
The difficulty here referred to is not, however, by any means peculiar to this question, but one which, as it seems to me, more than any other retards all progress in law-reform, and is due to the very defective machinery which we employ for the manufacture of new laws, and the amendment of old ones; and the most important, if not the most pressing, of all reforms, is a reform in the machinery of legislation.
How can the framers of a bill of any importance be expected to produce a consistent and intelligible document when, no matter with what careful accuracy it may have been originally contrived, no matter what pains may have been taken to preserve its homogeneity, with the rest of the law bearing upon the subject, it is impossible even to guess at the form in which it may eventually become law. An amendment introduced alio intuitu may, perhaps in mere ignorance, destroy an important connection ; may—-—not unfrequently does —by the use of some term in a sense different from that
in which it is used elsewhere, introduce an element of ambi
guity into the whole Act ; may even, as the result of some compromise upon a question of detail, introduce unforeseen complications which go far to render the whole measure unworkable. And all this because, not content with deciding every question in difference—which is clearly within their competence—the House at large insists on settling, if necessary by division, the precise form of words in which their decision is to be enunciated, an office for which they are eminently unfit. Hence result delays and difficulties in the progress of any measure of importance, which have become proverbial; hence the necessity of extensive, sometimes oppressive, litigation to determine the construction of every new statute; hence, worse than all, the perpetually recurring necessity of fresh Acts for the amendment and re-amendment of old ones; till instead of a single systematic and intelligible statement of the law, you are overwhelmned by a congeries of conflicting enactments, scattered at random through a wilderness of volumes; and after the expenditure of infinite labour, the last state of the Law on the subject is worse than the first.
The remedy is simple, and is not now propounded for the first time: I can lay no claim whatever to originality in the suggestion I am about to make, but I have all the more
confidence in its soundness. W'ithout a standing Committee, which should be respon
sible for the language—but the language only—of all Acts pf Parliament, and which should be supreme upon all questions of wording, it is hopeless to expect our legislation to be either intelligible or consistent. '
Such a Committee ought not to be numerous, certainly not more than five in number: and should be given such a position as to rank and salary as would secure the acceptance of the office, which ought to be a permanent one, by the most experienced parliamentary draftsmen of the day. To this Committee every Bill should be referred as soon as it has been read a second time; and it should be their duty to point out all inconsistencies of language, either with the Bill itself or with any part of the prior law not proposed to be repealed, and to make suggestions for their removal. After the Bill has passed through committee of the House it should be again referred to this Committee, who should now be bound to introduce all the amendments made by the House in appropriate language, so as to give effect to the intention of Parliament in the best possible manner. It should, of course, be competent for the House to recommit the Bill and then send it back to the Committee with further instructions; and this process might be repeated indefinitely; but no alteration should be allowed upon report or on the third reading of any Bill, nor should any Bill be proposed for third reading except in the shape in which it has last left the standing Committee.
I know that it will be said that the process here described is too cumbrous to work, and that the waste of time involved in the passage of the Bill back and forward between the House and the standing Committee would be prohibitory of all legislation whatever. I do not concur in this opinion: I am satisfied that on the whole more time is consumed in the verbal discussions now inevitable in the course of any measure of importance through Committee than would under the plan suggested be ordinarily required for the whole passage of the Act; because all questions of language being removed from the cognisance of the House and reserved for the Committee, the former body would be occupied with questions of substance only, with a saving both in time and labour, which only those who have carefully followed the progress of a hotly contested Bill can fully appreciate.
And even if this hope were deceived, if it should turn out, contrary to all reasonable expectation, that under the new system we succeeded in passing somewhat fewer Acts of importance than are passed now, the improvement in the quality of legislation would be cheaply purchased even by a considerable diminution in the quantity thereof; to say nothing of the enormous waste both of time and money in the shape of litigation, from which we might fairly hope to be delivered.
Among the most disastrous of the consequences of this very defective system of legislation are the impediments thereby thrown in the way of the assimilation of the laws of the different parts of the Kingdom. No one will, I presume, contend that it is otherwise than desirable that the whole of this nation should, so far as practicable, be governed by the same laws: I do not mean, of course, to challenge the desirability of what is known as Local and Personal legislation, nor do I deny that occasional differences of circumstance exist which require a corresponding difference of treatment, but I think that it will be accepted almost as an axiom that the general law affecting the whole Kingdom should be, as far as possible, identical.
As regards Scotland there are, I admit, considerable difficulties in the way, because the law of Scotland proceeds upon a basis essentially different from that of England, though even these are not, I think, nearly so formidable as they are commonly considered. But in the case of Ireland this difliculty does not exist, the basis of the law there and here is precisely the same, and with a rational system of legislation there would be no difficulty either in bringing the laws of