Page images
PDF
EPUB

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 enactinents relating to offences 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 bills, revised in the manner indicated, were introduced into 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 third. The second report will be noticed presently.

means.

for Ireland, so as to include the Statute Law of Ireland also. The view, however, which we thus obtained of the extent of the difference between the laws of the two countries, led us to the conclusion, that in a consolidation in which no material alterations of the law were to be introduced, it would not be practicable to frame à bill, so as to include the criminal law of the two countries in a satisfactory manner; and though the modification of our plan above spoken of, has led to some change of our views in some instances, we still think that, generally, it would be best that the bills should not, in the first instance, be made to apply to Ireland, and that the law of Ireland should be subsequently consolidated in separate bills."

Now, continued indecision and imbecile vacillation, rash experimentalising and timid retractation, are causes ample enough to explain why any commission should fail in performing any useful duty. The Statute Law Commission, however, has put one thing beyond controversy, which, nevertheless, we think was generally known before. It has established the utter folly of attempting great and important objects with inadequate and unsuitable

The constitution of the cominission rendered it impossible that any practical result could be attained. But, on the other hand, it produced this advantage—the government was saved the necessity of finding out what was wanted, and was protected from the consequences of adopting any

views or taking any step in any direction. Nor could they be questioned as to what was being done in this important matter; for had they not placed on the commission the names of a host of eminent persons ?

It was indeed, as our black table above shows, only names of men which were used. If it had been desired to draw up a complimentary address, or to compile a body of amusing legal anecdote, such selection of persons might have been more appropriate ; but if any thing is clear on the subject (and we now begin to doubt this almost) it is, that the persons intrusted with the business of putting the statute book in order should be working men and lawyers, ready to devote their time and talents to the purpose. The law officers of the Crown, leading Queen's counsel, busy lawyers (in parliament all night and in court all day), judges whose duties are quite sufficient for their energies, bustling politicians, and aged ex-chancellors, are not the men to be appointed

for such work as is wanted. The cant phrase of the "right men in the right places” was never so applicable as here. The numbers in the commission, and its particular composition, as well as the feeble character of certain of the more prominent members influential from accident of position), are circumstances quite sufficient to explain its impotence. If any did know what was wanted and what to do-most did not.

“In the multitude of counsellors there is wisdom ;" but we never heard this quoted to prove that there should be twenty commanders-in-chief on the field of battle, or ten royal academicians to produce one grand portrait, or that harmony is produced by yoking together men of antagonistic principles, or diverse opinions and habits of thought. The commissioners could neither work all together nor in groups, nor indeed in any way. In one word, the individual members of the board were not the right men for the work, and the combined collection proves the utter miscomprehension of the business which those who designed the scheme possessed.

When the common-law procedure of England had to be revised, very different steps were taken. It is true that some of the most sterling and popular men at the bar were appointed on the commission. But these were men who, if they said they would undertake a task, were sure to perform it; and they were not men who had already done their professional work, and achieved their ultimate position. If, instead of Bramwell, Martin, and Willes, we had gone to the most respectable and aged of the judges, ex-chancellors, vice-chancellors, and old masters, and then added a few leaders of the houses of parliament, an overworked attorney-general or solicitor-general, and the ex-officers of the crown, and half-a-dozen more for ornament, and besought them to suggest, frame, and carry out the great reform which, since 1852, has been in operation in Westminster Hall, how would it have fared with our procedure now?

The Statute Law Commission, however, claims the “ credit of having actually commenced, and even made an important progress in, a work which others have only recommended.” For our part,

we cannot see that these commissioners have done more than the “others” they refer to; these “others," indeed, did recommend that certain steps should be taken ; the late commissioners, on the other hand, have so chopped and changed about, that it would be confiding folly to trust to any of their recommendations relative to consolidation. Their proceedings, minutes, and weak reports, are a disgrace, not only to the country, but also to every individual member of the commission.

Except for one purpose, it would hardly be necessary to add any remarks to the above statement of the facts, and the sad history of the ridiculous dead mouse which the ancient, fidgety, gossiping midwifery of the statute commissioners produced to the expectant law-reformers. But we know that there is a class of people on whom it is said that all past experience is thrown away. It becomes therefore our duty, as fresh attempts may be made, without reference to the past evil consequences of sham legislation, to consider whether any effectual measures could have been, or can be adopted to purify and simplify the statute book. And here let us say at once, that had Lord Cranworth's original suggestion been adopted, and one small permanent committee been formed, rather than a number of incongruous sub-committees -chips of the body sent out to play with bits of the businesssomething might have been done. Further, if the well-selected members of such a committee had frequently and thoroughly discussed the comparative advantages of the various methods of consolidation, and made up their own minds to some practicable course of proceeding, there might have been some likelihood of the majority of the commissioners confirming the conclusion come to by the committee, and of the crotchets of a minority of the board being disregarded.

But we are by no means advocates of the system of piecemeal consolidation suggested by Lord Cranworth. Such a system would be fraught with danger, inasmuch as statutes, or sections of statutes, bearing on the subject proposed to be treated, might easily be overlooked. We concur in this respect entirely with Sir Richard Bethell, and an analytical arrangement of the whole of

the statute law is, to our mind, absolutely essential before any attempt at legislation could with safety be made. In this arrangement, moreover, we would leave the wording of the statute law untouched; for, before revisions and amendments are proposed, the present state of the statute law ought to be thoroughly ascertained. There would not be any pressing necessity to pass the consolidation bills through parliament; indeed, such a course seems open to the objection put by Mr. Ker. But let us have an "edition" of the statutes compiled on this plan, and published under the authority of a competent commission. This work done, the process of revision and amendment could then be commenced with safety, and with some prospect of success.

But to ensure such success, and confidence in the commission, its proceedings must not be secret. We can conceive nothing more puerile than the desire which the late commissioners, and especially Sir Fitzroy Kelly, so strongly evinced of not disclosing any of the proceedings of the board. Sir Fitzroy Kelly, at one of the meetings, stated that he had caused a bill to be prepared for the repeal of the obsolete acts relating to religion and the church; and that he was ready to communicate the bill to the board, if he could be assured that it would be treated as a private document, and that any motion for its production in the House of Commons would be opposed ! Why should not the profession generally have an opportunity of judging of the efficacy of measures of this kind before they are introduced to parliament? Good measures would be approved of by the profession, and would on that account be all the more readily accepted by the legislature ; but should they be generally condemned as inefficient, dangerous, or badly executed, parliament would probably be saved the trouble of considering them.

Commissions on the other side of the Atlantic, appointed for similar purposes, are not secret commissions, and we can see no reason why ours should be. The State of New York has for several years been engaged in codifying its laws. Codes of civil and criminal procedure were presented to the legislature of that State in 1850. Mr. Ker says that our system of judicial inter

« PreviousContinue »