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said, anticipated that this would be the case ; for, in a paper which
- his lordship caused to be distributed among the commissioners before their first meeting, it was suggested for consideration whether it would not be expedient -to name a permanent committee of members, whose attendance, it was probable, could be obtained, and who should carry out, in detail, the resolutions of the general board.
The board, however, adopted a somewhat different course. The members divided into a number of sub-committees, each of which undertook to superintend the consolidation of a particular branch of statute law. For instance, Chief Justice Jervis and Baron Parke (with whom Sir Fitzroy Kelly and Mr. Greaves were subsequently joined) agreed to take the criminal law; Vice-Chancellor “food, Mr. Walpole, and Mr. Ker, agreed to take real property; Lord Campbell and the Lord Chief Baron agreed to superintend a consolidated bill on the law of masters and workmen; Sir A. E. Cockburn, in the first instance, and afterwards Sir R Bethell, took the subject of insurance, and so on. This arrangement, excellent as it may seem, did not work well. We cannot suppose that the members of the sub-committees were incompetent to perform the tasks which they agreed to undertake, but we suspect that they did not apply themselves very vigorously to them. Indeed, we find that just one year after the Lord Chief Justice and the Lord Chief Baron had undertaken the superintendence of a. masters and servants’ bill (which it appears had been prepared), the secretary to the board was directed to inquire of their lordships whether they had been able to examine it, and if not, whether they would wish to do so, or would prefer that it should be taken up by some other members of the board. The answer of their lordships is not on the minutes, but nothing more is heard of the bill; and, with the exception of the subcommittees on criminal law and real property law—-which appear to have done something—the sub-committees, as a. general rule, did nothing. V
Moreover, neither the board nor the sub-committees ever came to a definite conclusion as to the meaning of “ consolidation,” 0!‘
VOL. v11. no. xnr. K
the manner in which consolidation bills should be drawn. At the outset it was determined that groups of statutes should be selected and consolidated into single bills, and certain rules to be observed by draftsmen in the preparation of bills were drawn up, and, after considerable discussion, were settled by the board. The first of these rules is as follows :—“ As the immediate object of the commission is only to consolidate, not to amend, the law, the draftsman should consider it his duty, in the absence of special instructions, to present as correctly as possible the efi'ect of the statutes in force, without introducing amendments beyond the correction of clerical errors and omissions, which appear from internal evidence to be unintentional ; such amendments of the law as it may appear to him advisable to suggest he should, where practicable, present in a separate form; and, in cases where they are necessarily mixed up with other matter, he should be careful to note what is new.” And, in the second rule, the draftsman is told that “it is advisable to repeat exactly the material words of existing statutes, wherever such a course is compatible with concise and effectual consolidation." These rules, however, were not to be considered as absolutely inflexible, where special reasons could be assigned for departing from them ; and we presume that some little licence was left to the draftsman as to the wording of the bill.
After the board had proceeded under this system for some few months, down comes Sir A. E. Cockburn (then attorney-general), and objects altogether to the mode of proceeding adopted by the board He contended that, before the process of consolidation was commenced, the whole body of the law ought to be reviewed and arranged analytically; the parts of it which consisted of statutes should next be placed under their proper heads; and the process of consolidation should then be applied to those parts of the statute law which fall together under that arrangement. The whole operation, said Sir A. E. Cockburn, would thus be performed with regularity and system, and should be laid before parliament, not in detached portions, but as a. complete work. He thought that, if it was shown that it was a mere consolidation, and that it was carefully executed on fixed principles,
the bulk of the work would not be an obstacle to passing the whole through parliament at once.
Sir Richard Bethell, who then occupied the “subordinate situation” of solicitor-general, followed on the same side, and was in favour of commencing with an analytical arrangement of the law; but he further contended, that the process to be applied to the statute law ought not to be a re-writing of the old statutes in a condensed form, but a digest of the existing statutory provisions, without alteration of language, but with explanatory additions where they have been judicially interpreted. A digest of t-his kind, said this “ subordinate” officer of the crown, would admit of the incorporation of the common law wherever advisable, which could not be effected by merely producing aggregations of old statutes in new language. '
The Lord Chancellor admitted that some imperfections might result from attempting to consolidate in partial groups, which might be avoided by a preliminary classification of the whole subject; b_ut thought that difficulties of detail would occur under any system, and the most scientific arrangement was not always found the most practically convenient. (ln the whole, his lordship thought it advisable to commence by attempting what was known to be practicable ; well-drawn consolidated acts were admitted to be useful, and were generally regarded with favour; and if the board could produce some good specimens of consolidation, he thought it would gain the confidence of the public, and perhaps be empowered to attempt something on a larger and more scientific scale. After considerable discussion, it was agreed that an analytical arrangement of the statutes, as a. guide to the board in the choice of subjects for consolidation, should be prepared, but that the consolidation of separate groups of statutes should be proceeded with.
These discussions were renewed at intervals, and several “ con-H versations ” on the subject appear, by the minutes, to have taken place, but for some time they led to no result; and by the first report of the commission, made in July, 1854, it seems that the majority of the commissioners still adhered to the original plan.
Sir A. E. Cockburn, Sir R. Bethell, and Mr. Napier, however, did not append their names to this report.
But the views of the commissioners were modified by degrees. In April, 1856, we find a determination come to that the law on given subjects, and not groups of statutes, ought to be consolidated; and that no alteration whatever, except corrections of clerical errors, ought to be made in the law or language of the statutes. Upon this principle it was resolved—that the criminal law, the law of aliens and denizens, the law of carriers, the law of property, &c., should be consolidated; and, at the end of the session of 1856, eight criminal law bills thus prepared were laid on the table of the House of Lords by the Lord Chancellor. During the vacation of 1856, several bills on the la\v of property were completed under the same system; and on these bills, in December, 1856, Mr. Bellenden Ker made a report, from which we extract the following passages :—
“I have not yet had an opportunity of comparing the drafts with the enactments consolidated ; but, assuming that the instructions have been followed, no alteration has been made in the language of the statutes, nor has the effect of any judicial decisions on the language of the statutes been incorporated in the new bills. Although I consider that a consolidation on this principle is essential as a first step, in order to ascertain accurately what is the state of the existing statute law, I would suggest to the board, that perhaps it would be best not to attempt to bring forward any of these bills as complete measures, until this process has been applied to the whole general statute law ; for under the system now adopted, of consolidating the law on given subjects, rather than consolidating given groups of statutes, much more difficulty will arise in the process, which in no case can be completed with certainty, until the whole of the law to be consolidated has been exhausted. And I would also submit, that if the effect of judicial decisions on the statutes is not incorporated in these bills, they will be open to the objection, that they do not contain a true representation of the law as it now exists; and I also think that, unless the phraseology of the old acts is made plain and uniform, little real advantage Wlll be gained. Indeed, all the benefit that could be derived from bills drawn on the present system—(namely, providing the public with a synoptical arrangement of the contents of the statute book relating to each suhject)—can be attained by simply publishing them in a cheap form, without attempting to pass them through parliament ; and such a course would avoid all the difiiculties which now suggest themselves, as to the new constructions which might be put on consolidation acts by reason of change in the context,
or in the period of their coming in force, and many other difficulties of detail which occur on examining these bills with any reference to their being passed through parliament.”
Then in June, 1857, a report‘ is made by the commission, from which we learn that the commissioners, on revising the Criminal Law bills with a view to their re-introduction into parliament, had been led, at the suggestion of the Lord Chancellor, to modify to a certain extent the views which they entertained when they first gave instructions for their preparation. 'It now appeared to the commissioners that if the restrictions imposed on draftsmen were relaxed to a moderate extent, the bills would be much more satisfactory; and they proposed that the introduction of these bills, and of all other consolidation bills, should be made an opportunity for effecting some improvements in the law at the same time; not such improvements as were the subject of any differences of opinion, or would raise any discussion, but merely such as would remedy accidental defects ; for instance, the removal of unnecessary variations between enactments relating to oflences of the same nature, which existed in consequence of such enactments having been passed at different times or framed by different persons, the supplying of admitted deficiencies, and the correction of admitted inconveniences.
Shortly after the date of the report the eight Criminal Law hills, revised in the manner indicated, were introducedinto parliament. Their sad fate all will recollect. Discussion in the House of Lords was “put down” by the Lord Chancellor, and the bills, after being absurdly hurried through that'House in eight days, were rejected by the Commons.
The following is another remarkable instance of indecision on the part of the commissioners. In the report last alluded to they say:—
“The eight Criminal Law bills originally prepared, related to England only, but as we conceived it to be very desirable, if possible, that the law of England and Ireland should be included in the same bills, they were altered under the direction of the attorney-general
1 The Commissioners made three reports ; the one above-mentioned being the 1/“'1-d, The second report will be noticed presently.