« PreviousContinue »
for such work as is wanted. The caut 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
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
pretation of statutes, and interpretation of the law, is so different from the way in which the law is interpreted by the judges in New York, that he is convinced the code of New York would not satisfy our courts here; and he adds that there is not a line in the code of New York that would not employ the Court of Queen's Bench or the Court of Common Pleas for weeks.—[Minutes of Evidence before Committee of the House of Commons, Q. 343.] We are not now about to enter into any examination of this code, which, deficient as it is in the eyes of Mr. Ker, yet appears to be sufficient for the requirements of the people for whom it was compiled ; but we may, perhaps, learn from them how a commission ought to be formed, and what it ought to do.
The legislature of the State of New York passed an act in 1857, whereby three commissioners, and no more, were appointed to codify the laws of the State not comprised in the codes of civil and criminal procedure; their duties are defined by the act; they are appointed for five years, with directions to report progress, from time to time, to the legislature of the State. But what we would particularly draw attention to are the following provisions in the act :- The codes when prepared are to be printed, and distributed among the judges and other competent persons for examination, after which the commissioners are to re-examine their work, to consider all suggestions that may have been made, and to revise the codes accordingly. The codes, as finally agreed upon by the commissioners, are then to be reprinted, and, six months before being presented to the legislature, are to be redistributed for further examination."
Now, why cannot some such system as this be adopted in our own country? Why cannot we appoint three commissioners instead of twenty; and, above all, why cannot our commission be as open in its proceedings, as is the American commission ? Our system has failed ; why not try that of the Americans, which has succeeded? The great lawyers who prepared the real property acts of 1833, were not afraid of submitting their work to the profession before they submitted it to parliament, and the consequence is that those acts are excellent specimens of legislation. In those days, however, it was not thought necessary to introduce law reforms for party purposes. At the present day, on the other hand, it would seem as if all measures of this nature are purposely kept secret, in order to afford some member of the government an opportunity of making a brilliant speech, and of eliciting “loud cheers” from the enraptured Commons, and worthJess praise from the credulous public.
1 A notice of the first report of these commissioners will be found in this number amongst the notices of new books.-(Ed.)
Sir Fitzroy Kelly, some few weeks before the dissolution of parliament was thought of, told the House of Commons that he
was anxiously and impatiently waiting an opportunity to bring before the House a scheme for the consolidation of the entire statute law of the United Kingdom.” Sir Fitzroy, on the 14th of April last, found the opportunity he had so long panted for; but “at that period of the session felt compelled to abstain from submitting to the House, and to the country, any lengthened statement of the views of the government on this important question.” He, however, laid on the table of the House samples of the bills which he hoped would be introduced in the next session of parliament for the consolidation of the Criminal Law of England and Ireland. This is a step in the right direction. Members of the legislature and the legal profession will now be enabled to consider these bills, before any attempt is made to pass them through parliament. But mark how the views of the present government differ from those of the late commission! These new bills not only consolidate, but materially amend, the criminal law of England and Ireland, and assimilate the Irish statutes to those of England, a course which the commissioners (and among them Sir Fitzroy Kelly) ultimately determined was not advisable.
Sir Fitzroy was understood to say, that what he thus introduced was the first of a series of about one hundred bills
preparation, which, if they received the sanction of parliament, would consolidate the entire statute law of the united kingdom. We confess we are not over-sanguine as to the result. Governmental departments bave not, apparently, any very precise idea of the