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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 pro
1 A notice of the first report of these commissioners will be found in this number amongst the notices of new books.--(Ed.)
fession 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 worthless praise from the credulous public.
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 now in 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 have not, apparently, any very precise idea of the
meaning of the word “entire.” We trust, however, that Sir Fitzroy Kelly's "entire reconstruction” of the Statute bouk, may not, like Sir John Pakington's "entire reconstruction of the navy,” prove an "entire ” mare's nest.
With regard to the second purpose for which our defunct Statute Commission was issued—namely, the suggestion of rules for ensuring simplicity and uniformity in future statutes—the commissioners are more decided. They devote their second report (dated 5th March, 1856) to this subject, and propose two plans—(1.) the appointment of an officer or board to revise current legislation; and (2.) the classification of the current public general statutes. These plans are entirely independent the one from the other. The first is the more necessary of the two; the second would become necessary if a consolidation of our statute law were effected, for otherwise the confusion in the statute book would, after a lapse of ten or twenty years, be as great as it is now. But there is no reason why the first plan should not be adopted at once.
The necessity for some general and competent supervision over the details of current legislation has been abundantly proved. In a letter addressed to Sir James Graham by Lord Brougham, in 1849, the learned lord writes :
“Our laws are prepared by individuals, or by boards in connection with the government, but there is no communication between those parties from whom the different bills proceed. Hence there is no guarantee whatever against the most manifest inconsistencies in their various provisions.
Whoever has attended to the manner in which bills are first framed, and then altered during their passage through parliament, must be aware what gross blunders are committed ; and that such blunders are inevitable so long as the work is prepared by various unconnected parties, without any superintendence. Thus, it has often been said that the scissors of the draftsman make many a clause, and so does the pen of the amender. Hence, nothing is more common (as lawyers who answer cases well know) than to find one section of a statute referring to something as aforesaid,' when nothing of the kind was said before ; but the section had been cut out of a former act in which there had been an antecedent which was not taken. Thus far the scissors, but so too of the pen. I was astonished to find my Patent Bill of 1835, in one or two places made wholly insensible when it was returned
from the Commons. And how? By the members there introducing new matter wholly at variance with the old, which they left unchanged. But though much embarrassment was sure to arise in courts of law and equity from this blunder, I was forced to submit on pain of losing the bill. In 1834 I was compelled to alter a clause sent up from the Commons, which would have suspended all the criminal justice of the country from the next October sessions. The Commons were angry at their blunder being detected, and threw out the bill, depriving the country of a very valuable measure ; for such it was, all except that erroneous portion.”
The commissioners consider that the chief cause of confusion in current legislation is the way in which hasty and inconsistent amendments, ill-assorting with the rest of the measure, are made while the bill is going through committee; the promoter of the bill often assenting to changes of which he does not approve, for the sake of averting opposition: The commissioners think that an officer or board ready at the right time to give information and point out errors, would be effective in remedying the evils of the present system of legislation, and they recommend the appointment of such an officer or board, with a staff of assistants, whose duty it should be to advise on the legal effect of every bill which either House should think fit to refer to them, and in particular, on the existing state of the law affected by the proposed bill, its language and structure, and its operation on the existing law; also to point out what statutes it repeals or modifies, and whether any statutes, or clauses of statutes on the same subject, are left unrepealed or conflicting.
In February, 1857, this report was referred, by the Lords and Commons, to select committees ; but shortly afterwards parliament was dissolved, and the committee was not renewed in the new parliament. Before the dissolution, the Commons' committee reported, but offered no opinion on, the evidence taken before them.
We are not inclined to agree entirely with the commissioners, that the greatest risk of defect in legislation arises from the manner in which amendments are admitted in committee of the House. We agree rather with Mr. Coulson, the eminent counsel to the Home Office, who said, “It is a considerable risk, and it
certainly is convenient for framers of bills, at any rate, to adhere to the doctrine that it is the greatest.”—[Minutes of Evidence before Com. of House of Com., Q. 50.] Doubtless errors do often occur from the insertion of ill-considered amendments; but the chief cause of error in our disgraceful legislation is careless and indifferent drafting, and we undertake for every blunder made by an amender, to point out at least ten made by a draftsman. The following are a few amusing specimens of carelessness on the part of each :
The Act of 1845, to amend the law of real property, enacts that a lease, required by law to be in writing, and a surrender in writing, shall be void at law unless made by deed. A proviso, inserted by some member who thought this enactment ought not to apply to Ireland, ran thus :-"Provided always that the said enactment, so far as the same relates to a release or a surrender, shall not extend to Ireland” (8 & 9 Vict., c. 106, s. 3).
In 1850 an act relating to piratical ships was passed. intended to come into operation on the 1st of June, 1850; but it unfortunately happened that the act received the royal assent on the 25th of June, 1850, and the draftsman had provided that it should come into operation on the 1st of June next. A second act, to remedy the error, was passed immediately after the first (13 & 14 Vict., cc. 26 & 27).
In 1853, a government act relating to assessed taxes was passed, by which the duties then payable were repealed, and the duties set forth in several schedules were intended to be granted in lieu of the repealed duties. It so happened, however, that the draftsman, in granting to her Majesty the duties mentioned in the schedules, omitted noticing one of these schedules which comprised the duties payable in respect of certain horses and mules, and consequently none were payable for those animals. This act was amended in the next session (16 & 17 Vict., c. 90; and 17 Vict., c. 1).
The County Court act of 1856 provided that certain judges, mentioned in a schedule, should receive the salaries set opposite to their names in that schedule ; but opposite the names of Mr.