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about inconsistencies and contradictions which are alleged to abound in the text of the Rules. There were 1,100 Rules in 1883, when the R.S.C. were last revised, and since then over 500 Rules have been altered or added to the code. The criticism is that the rule-makers have occasionally failed to bear in mind the reciprocal effect of dozens of these Rules upon each other, and have passed amendments which, though adequately fulfilling the purpose for which they were primarily intended, conflict with other passages in the Rules whose text was left unchanged. It is almost a physical impossibility for judges, hard pressed by the demands and responsibilities of their work in the High Court and the Court of Appeal, to be so conversant with every phrase and section of so large a body of rules as to be able to guard against such errors. Contradictions are numerous in the Rules, and those whose business it is to study them closely, word for word from beginning to end, have often called attention to the fact.
Much was said and published upon this around 1893, when the drafting of amendments was not as careful as it has been at other times, and a strong demand for complete revision of the whole R.S.C. made itself felt. One of the letters written by Mr. Snow at that time put the matter in the following words :
"Legal machinery grows yearly both in bulk and complexity-a growth which is likely to increase rather than diminish. It is at once the most uninviting and the most indispensable part of the law . .. The mere bulk of the Rules of the Supreme Court is now very great, and many of the rules and groups of rules are so interdependent upon other rules or groups of rules, or upon sections of Acts of Parliament, that it is almost impossible to introduce a new rule, or a group of new rules, without bringing about results not foreseen. Having regard to the onerous duties of your office, it is impossible for your Lordships, or the Rule Committee, to have present to your minds, when dealing with matters of procedure and practice, all, or even a large part, of the many points which are certain to arise when such rules
are put into practice.” I Mr. Snow was for many years editor of the White Book (in which capacity he was able to gather information of many specific defects in the Rules), so that his statement carries the weight of experience and technical knowledge. His opinion was, to be sure, ratified by the Rule Committee when he was engaged to conduct a revision of the Rules in 1894, although the revision itself failed of acceptance.
Another expert on the Rules who has given public expression to his knowledge of inconsistencies in them is Master T. Willes Chitty, of the King's Bench Division, who has for some time edited the Red Book, the other annual commentary on the Judicature Acts and Rules. In his testimony before the 1913 Royal Commission on Delay in the King's Bench Division, he laid much stress upon the failure of the Rules on summonses for directions to complement properly the Rules on proceedings under such summonses, and he commented upon the flat contradictions, in respect to pleadings, between many of the Rules and Forms. Master Charles Burney, in his article on “Rules" in the Encyclopædia of the Laws of England, said of the present rule. making system :
“ Valuable as these provisions have proved in simplifying the practice and procedure of the Courts, it cannot be denied that there is room for improvement. Inconsistencies, anachronisms, incongruities, are present in the Rules, which ought to be swept
away." These are opinions by quasi-judicial officers whose daily duty it is to apply the Rules to actual cases before them.
1 Part of a letter in which be pointed out contradictions in the Rules newly made for the Arbitration Act 1889; the letter is published in 25 Law Journal, 268 (May 3, 1890).
? Parl. Paper, 1913, Cd. 6,762, Minutes of Evidence, Vol. I, pp. 21 el seq. 8 2nd ed. (1908), Vol. XIII, p. 59.
These inconsistencies are due not only to a failure to bear in mind all the consequences of an amendment in a series of interdependent rules, but sometimes to slovenly or hurried draftsmanship. This is another of the grounds of complaint against some of the R.S.C. Inelegant and careless drafting in statutory rules produces not only inconsistencies with other rules, but uncertainty as to the meaning of the Rules themselves. It must be acknowledged that by far the largest portion of the present code contains clear, concise English, which has stood the test of time and interpretation, and been copied in Rules of Court all over the Empire; but at certain periods in the thirty years of its life supervision over amendments was a trifle lax, and those periods have left their traces in the Rules. Public criticism on a point of this sort is usually somewhat reserved, but occasionally frank opinions get into print. For instance, this passage from a letter in a legal journal in 1886:-
"Practitioners have been and are sorely distracted by the numerous alterations of the last ten years. Practical men peruse the rules, from time to time altered, annulled, restored,
and re-amended, and blush for the responsible authors.” 1 And this line, editorially written in the same journal in 1893:
"One striking thing about Rules of the Supreme Court nowadays is their lack of finish.” ? Legislative drafting is an art that has been carried to a high degree of excellence in England, but there are some parts of the Rules whose form does not receive high commendation from the experts.
Objection is often raised to the frequency with which the Rules have been amended. Since 1883 nearly half the 1100 Rules in the Code have been amended or annulled. To a certain extent this was inevitable-changing conditions
30 Solicitors' Journal, 154 (January 2, 1886). 2 38 Solicitors' Journal, 124 (December 23, 1893).
called for changes in procedure; again, observation of the Rules at work brought out many points in which they could be improved, which it would have been wrong to neglect. But some critics appear to believe that the need for change has been exaggerated. Lord Davey, among them, in his article on “Judicature Acts" in the Encyclopædia Britannica, said of the Rules:
Complaints are made that they go into too much detail, and place a burden on the time and temper of the busy practitioner, which he can ill afford to bear . Rules have sometimes been made to meet individual cases of hardship, and rules of procedure have been piled up from time to time, sometimes embodying a new experiment, and not always con
sistent with former rules.” Lord Davey was never a member of the Rule Committee. In similar vein is this outburst of a writer in the Solicitors' Journal in 18942 :
"If anyone supposes that a solicitor with a good practice has time at his disposal to follow this bewildering kaleidoscope of procedure regulations, he has a most inadequate idea of the daily requirements of a solicitor's business. Solicitors are only human after all, and they are rapidly becoming oppressed by the masses of new procedure rules, and repeals of old rules, which are pitched into the pathway of their daily work with
inconsiderate liberality." Since that time four practitioners have been added to the Committee to give it an “adequate idea” of their requirements. There may be too many Rules issued by the Committee: it is a fault to be guarded against. It is, however, a fault far easier to put up with than the old rigidity of procedure that marked the period before the Rule Committee came into being. “It is the natural course in things judicial,” says Mr. Birrell, in his entertaining essay on Bills
1 Written for the 1902 Supplement to the 9th edition. In the present (the 11th) edition it appears, slightly revised, in Vol. XV, p. 541.
39 Solicitors' Journal, 92 (December 8, 1894).
in Equity,l "for a procedure to stiffen as in an arctic frost." Every batch of new rules, therefore, thaws out a bit of the stiffness.
A fourth cause of complaint occasionally heard against the Rule Committee is that its powers are too great. In 1883, when Lord Selborne's revision of the Rules was first published, there was some effort to have its taking effect postponed by Parliament, Lord Halsbury (then Sir Hardinge Giffard) leading the opposition in the Lower House. In his address ? he protested against what he termed “this silent and secret mode of altering the law," and complained that the Rule Committee was able to legislate without public knowledge of its proceedings. This objection was eventually removed by the Rules Publication Act in 1893. . The habit of Parliament to delegate to the Rule Committee and to similar authorities the power to supply the details for the operation of statutes has grown steadily, but the opinion is sometimes expressed that it is carried too far. As one legal journal explains 3 :
"The origin of this propensity to leave matters to be settled by rules was probably in part an appreciation of the convenience to a legislator who is in a hurry of presenting to Parliament a sketch only of his proposals, asking for authority to complete them by rules at his leisure ; and in part, a notion that opposition to a measure will be obviated if debateable details will be left out of it. We have repeatedly called attention to the dangers of this practice.”
Especially in the last few years, there has been great dissatisfaction with the manner in which controversial Acts have been rushed through Parliament, leaving wide discretionary authority to executive and judicial officers for the framing of rules to fill up their gaps. This is an objection which applies to all latter-day legislation, and
1 A Century of Law Reform, p. 179 (London, 1901).
37 Solicitors' Journal, 677 (August 5, 1893).