Page images
[ocr errors]


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

"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 :



[ocr errors]


“ 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 returued 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 cbief 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 Lill 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 modi

; fies, and whether any statutes, or clauses of statutes on the same subject, are left unrepealed or conflicting.

In February, 1857, this report was referred, hy 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. It was 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.


Falconer, judge of the county courts of Brecknockshire, and Mr. Yates, judge of the county courts of Cheshire, there were blanks (19 & 20 Vict., c. 108, s. 81).

An error of a somewhat more serious nature occurred in the act 9 Geo. IV., c. 55, which consolidated the laws in Ireland relating to larceny. The 46th section of that act recites, that a failure of justice arises from the subtle distinction between larceny and fraud, and enacts that the obtaining of property by any false pretence, and with intent to defraud, shall be treated as a misdemeanour. Then follows the following proviso :-“Provided always, that if, upon the trial of any person indicted for such misdemeanour, it shall be proved that he obtained the property in question in any such manner as to amount in law to larceny, he shall by reason thereof be entitled to be acquitted of such misdemeanour.” Six years after the passing of this act, it was amended by the 5 & 6 Will. IV., c. 34, which enacted that the act in question should be construed as if the word “not” had been originally inserted between the words “shall” and “by.” Is it possible to imagine any thing more careless than the mistake, or more clumsy than the amendment ?

It was reserved for Lord Palmerston, in his gay and cheerful manner, to call the attention of the House, a year or two ago, to a bill in which, by a grammatical error, the case of Good Friday falling on a Sunday was carefully and religiously provided for!

But it is in the composition of " titles” and “short titles” to acts that the draftsman usually displays his ingenuity, the flexibility of the English language, and his philological learning. How marvellously happy are some of the curious combinations we find spread over the statute book! For instance, “The Companies Clauses Consolidation Act, 1845,” is a combination of words which is surpassed only by that in the title, “ Lands Clauses Consolidation Scotland Act, 1845." Then again, “An Act to amend the Smoke Nuisance Abatement Metropolis Act, 1853," is an elegant, though not purporting to be a “short ” title. “The Dublin and other Roads Turnpikes Abolition Act, 1855,” is very good; but there are two specimens quoted by the com,



Failure and Fate of the Statute Law Commission.

[ocr errors]

missioners as being “very unlike pure English,” which far excel any we have yet mentioned; these are, “The Metropolitan Improvements Repayment out of Consolidated Fund Act 1853," and “The Great Southern and Western Railway Ireland Extension Portarlington to Tullamore Act 1847.

These specimens are taken quite at random; hosts of titles of a similar nature may easily be found. In the last session a bill was introduced “ To amend the drafts on the Bankers' Law Amendment Act, by repealing the fourth clause of the said act;" and an act was passed, the short title to which is, as observed by Mr. Toulmin Smith in his useful “ Parliamentary Remern brancer,” a curious misnomer. The act in question repeals the acts ordering certain days to be kept, one with fasting and humiliation, and the others with thanksgiving; but these acts did not require, or even authorize, any peculiar forms of prayer, and yet the repealing act has for its short title, “The Occasional Forms of Prayer Act!”

Three years have now elapsed since the commissioners advised the appointment of a revising officer or board; but their advice has received no attention beyond that which we have already mentioned. There appear to be difficulties in the way; some think parliament would be delegating its powers by allowing any officer or board to meddle with the wording of a bill. Others, again, think that a large staff of assistants would be required, who would have enough to do during the sitting of parliament, but who would be idle during the rest of the year; and the chancellor of the exchequer, no doubt, thinks of the expense. On the other hand, it is urged that private bills are now submitted to standing committees; that the chairmen have their counsel who advise them; and therefore there can be no reason why public bills should not be submitted to similar standing committees, or why the chairmen of these committees should not be advised by the proposed officer.

There cannot be any objection to this mode of proceeding, and, the fear of expense ought not to deter parliament from taking this matter seriously into consideration. To a country like ours, a few thousands a year expended with the view of attaining something

« PreviousContinue »