« PreviousContinue »
which we have compiled from the published minutes, will show the number of times each member of the commission attended, the board from the time of his joining it :
NUMBER OF MEETINGS ATTENDED
Nov. 29, 1854, to Nov. 7, 1855, to Dec. 9, 1857,
both inclusive. both inclusive. both inclusive. Commissioners appointed 23d Aug. 1854. Out of 3.
Out of 11.
Out of 31.
3 Lord Brougham
4 Lord Wrottesley
17 The Lord Chief Justice
13 Mr. Moncrieff
3 Mr. Brewster
Lord Stanley and Mr. Greaves took their seats at the board for the first time on the 4th of June, 1856; the former attended ten, and the latter twenty-one, out of twenty-four of its meetings. Mr. Stuart Wortley, Sir H. S. Keating, and Lord J. Russell, who severally joined the board still later, had no opportunity of displaying their diligence.
From these particulars it is clear that the board comprised but few really working members, and Lord Cranworth, it must be
said, anticipated that this would be the case ; for, in a paper which bis 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 Wood, 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 misters 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.
Moreover, neither the board nor the sub-committees ever came to a definite conclusion as to the meaning of “consolidation," or
VOL. VII. NO. XIII.
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 effect 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; Lut 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 this 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; but thought that difficulties of detail would occur under any system, and the most scientific arrangement was not always found the most practically convenient. On 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 “conversations” 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 law 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 con olidated 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 will 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 subject)—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 difficulties which now suggest themselves, as to the new constructions whiclı might be put on consolidation acts by reason of change in the context,