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THE REFORM OF THE STATUTE BOOK.
THERE was once a time when the study of the law formed part of the education of the finished English gentleman; and, accordingly, as late as the middle of the last century, Sir William Blackstone taught at Oxford “that a competent knowledge of the laws of that society in which we live is the proper accomplishment of every gentleman and scholar.” At the present day, as a rule, even the well-educated Englishman knows just as much about law as he knows about physic, and no
In common with the classes below him, he is, when he wishes to ascertain the rights or remedies to which he is entitled, absolutely in the hands of his professional advisers. There is no doubt that the gulph between lawyer and layman has widened. Abstruse as was the feudal system of jurisprudence, it at least was a system, and as such capable of being scientifically studied. On the other hand, every year of the later centuries of English history has witnessed the rise of endless new provisions, which, while they met the wants of new states of society, have not only ruined the symmetry of the old system, but have added to it a mass of detail which can be mastered only by the devotion of a life-time. Such a state of things is by no means satisfactory. Every citizen should be able to form a general conception of the rights and duties of which the law always supposes him to be cognizant, and every educated man should, besides this, have some acquaintance with the scientific principles by which the legislation of his country has been guided.
That such knowledge should be possible, implies of course that the law should possess some principles, and should be formed by some method. Where method is present, it is almost as easy to grasp a thousand details as a hundred. By strict sub-division of departments, the steam iron-foundry, which has been called into existence by the necessities of modern commerce, is managed probably with little more difficulty than the village forge, of which it is the development. But law has not been so wise in this respect as commerce.
Method has never been called in to organise the enormously increased mass of legal detail which is the unavoidable accompaniment of modern civilisation ; and the result is a jungle through which only the most dexterous lawyers can thread their way in safety, and from which all wise unprofessional people keep at a respectful distance.
Existing English law has, as most people are aware, two principal sources.
First, the Common Law of the realm-a collection of rules of immemorial antiquity, modified from time to time by judicial interpretation to suit the wants of a growing nation.
Secondly, new rules, altering or added to the rules of the Common Law, and imposed upon the country by the act of the legislature. These rules are known as the Statute Law.
Both kinds of law are, in their present state, equally open to the charge of want of method ; and both are, consequently, in this respect, in equal need of reform. It is obvious, however, that in order to reform a system of rules, it is necessary in the first place to know exactly what those rules are. Now, the rules of the common law can be learnt only from the (sometimes discordant) utterances of living judges, and from the (also sometimes discordant) utterances of their learned predecessors; and these utterances are embalmed, in the midst of mountains of irrelevant matter, in reports of cases decided at different times during a period of 500 years, and contained in not less than 1,200 volumes.
The statutes, on the other hand, although the product of many centuries of legislation, are all ready to our hand, and are contained in, say, fifty quarto volumes. It is, therefore, far easier to discover what is statute law than what is common law, and proportionably easier to introduce method into the former than into the latter. In fact, the first step in Law Reform is obviously the Reform of the Statutes. This alone has hitherto been attempted by Parliament, and to this alone will our remarks be confined on the present occasion. The subject is really one of the utmost importance to every Englishman, while the principles it involves are such as without any black-letter lore he is quite capable of understanding.
The mere statement of the present condition of the statute law is its sufficient condemnation. Every one must have derived from newspaper reports of the debates in Parliament some idea of the multitude and the incongruous character of the measures which each year become law. A six months' suspension of the habeas corpus, and a reconstruction of the law of Bankruptcy; the marriage portion of a royal princess, and a system of precautions against the spread of a cattle plague; a change in the electoral franchise, and a plan for the improvement of workhouses; all these objects are effected by Acts of Parliament, and all so-called “Public general ” Acts of Parliamentwhether they establish a tribunal destined to last for centuries, or grant an annuity to the door-keeper of an abolished public office whether they apply to the whole of the United Kingdom, or merely authorise the Government to sell a house in Leadenhall Street-take their place for ever, one after another, in chronological order, amongst the statutes of the realm. But the legislation of a year does not stop here. Endless acts are also passed giving extraordinary powers to railway companies, dock companies, corporations, and boards of every kind, and not a few affecting only single families or single individuals. Such are Acts empowering trustees to do what they are not allowed
to do by the terms of their trust, or an Act to enable the Reverend Jones Smith to hold any benefice in the United Kingdom to which he may be presented, any disability notwithstanding.
The total number of Acts passed in the last session was 415. They do not, however, all form part of the collection which is generally spoken of as “the statutes" of 1865. A rude system of classification has grown up, without any distinct legal recognition, which divides the Acts of each year, according to the manner in which they were intoduced into Parliament, into:
(1.) Public general, of which there passed last year 127;
(3.) Private, of which there passed 10; And the “public general” are alone generally considered as “ the statutes” of the year.
This arrangement is, however, entirely unscientific. Not a few " local and personal ” Acts might well have been included in the "public general,” and a vast number of the “public general ” ought to be relegated to a position among the “local and personal.”
The distinction, however, though ill carried out, is a true one, and lies at the root of all plans of re-arrangement. The laws which affect the whole nation are par excellence laws, and should be presented to the nation disencumbered of all those enactments which affect only definite localities or definite individuals. How little this object is even aimed at under the present system, will be apparent from an analysis of the so-called public general Acts of last session.
They may be roughly grouped under the following heads : Ireland, 20 Acts; Scotland, 9; Colonies and India, 7; armed forces, annual enactments, 3; the revenue of the year, 5; certain public works, 7; indemnity, 1; certain counties and places, 8; certain private matters, 1; confirmations of orders by certain administrative bodies, 16; Parliament, 3; the Church, 5; the Universities, 1; the armed forces, 7; docks and harbours, 2; administration of justice, 6; police, 1; prisons, 1 ; customs and excise, 6; pensions, 1; poor, 2 ; lunatics, 1; companies, 1; partnership, 1; wills, 1 ; carriers, 1; patents, 1 ; sewage, 1; locomotives, 1; public-houses, 1; dogs, 1; salmon, 1; to continue an Act, 1; foreign jurisdiction, 1. Total 125.
Under the first 10 heads we have grouped 77 Acts; under the remaining heads 48. The arrangement only professes to be accurate enough for purposes of illustration, but, subject to this observation, it is submitted that the 77 Acts grouped under heads 1 to 10 have no right to a place in the statute book at all. In the first place the accident of the English Government being at the head of a vast colonial empire, as well as of the kingdom of England, is no valid reason for encumbering the statute book of the realm with those colonial laws which it happens to be necessary to pass in the
Imperial legislature. Laws affecting Canada only, or India only, must of course be officially printed, and must not only be communicated to such parts of the world as they may concern, but must also be accessible in England, because England contains the supreme legislature, executive, and court of appeal of the empire. Such enactments, however, form no part of the law administered in the ordinary courts of justice, and should form no part of the English statute book. The same reasoning would expunge also laws affecting only Scotland and Ireland.
Another set of enactments which might well be banished from their present position, are those which merely keep in motion the machinery of government during the current year. These we have grouped under heads 4—7. They are really in the nature of warrants issued by the sovereign power to its officers, empowering them to do certain definite acts, or cheques drawn by the same power upon its banker. Some of them may doubtless have to be pleaded in the ordinary law courts, during the year of their currency, and perhaps even after that year, but this alone is of course no proof that an enactment is a real law.
Under heads 8-10 we have placed those laws which, though now printed as public general Acts, are essentially local or personal.
Acts re-arranging the sessional divisions of the county of Sussex, or for discontinuing the borough gaol at Falmouth, are more analogous to Royal charters than to laws proper. It may doubtless be questioned whether Acts applicable to the metropolis only are to be considered of this nature, or whether, since they affect the seat of government, they should be treated as of a "public" character.
" Of a distinctly local character are the numerous Acts passed to give validity to acts done by various administrative bodies in excess of their inherent powers. These, which should properly be private Acts, are made “public general,” merely to save expense to the parties concerned. It is scarcely necessary to add that “an Act to render valid marriages heretofore solemnised in the Chapel of Ease called St. James the Greater Chapel, Eastbury, in the parish of Lamborne, in the county of Berks,” is very ill-described as a “public general” statute.
We have shown cause for the elimination—I. of statutes which have no reference to England ; II. of statutes which merely keep in motion for the year the machine of government; III. of statutes which affect only certain localities or certain individuals in England. These last year amounted to 77. There were also in the same year 278 so-called “Public, Local, and Personal,” and 10 avowedly
“ Private Acts; giving thus a total of 365 Acts which have no valid claim to a place in the statute book. They differ widely amongst themselves, and greatly need improved classification, but have one property in common—that they are not properly laws of the realm : and this excludes them from our consideration. The legislative result of the year 1865 is, therefore, reducible to the 50 Acts which we have arranged under the heads 11–34.
That is to say, we have, in idea, reduced the statute book of last year to less than half its actual bulk. The same process applied to the statute book as a whole, would obviously reduce the fifty volumes of which it at present consists to twenty-five.
This satisfactory result would be accomplished simply by excluding from our collection of public laws all enactments which are not public laws. This process we will call sifting. But some other processes should follow the first. An enormous number of Acts and sections of Acts either have been expressly repealed, or have become, from the changed circumstances of the nation, practically obsolete. These should evidently be weeded out of the statute book, of which they constitute perhaps half; and the process of weeding them out is well described as expurgation.
Sifting and expurgation would reduce the statute book from fifty volumes to perhaps ten. The diminution in bulk would be in itself a great gain ; but evils even worse than excessive bulk would remain uncured. These evils are due to the merely chronological order in which the statutes are arranged, and will be at once understood by an instance.
At common law neither the plaintiff nor the defendant were entitled to get the costs of an action in which they were successful paid them by the losing party. It was, however, provided by the statute of Gloucester (6 Edward I. c. 1) that the plaintiff, in all actions in which he recovers damages, shall also recover against the defendant his costs of suit, and in almost every reign from that time to the present, statutes have been passed extending, varying, and abridging the claim of the successful party to the costs which he has incurred in enforcing his rights by action. A suitor therefore at the present day in order to ascertain his right to costs in any particular case might have to consult a statute of Edward I., one of Elizabeth, one of James I., one of George III., and half a dozen of Victoria. Well might the Common Law Commissioners say, “ The statutes which give to the parties a right to costs are in a very confused and unsatisfactory state. Not only have the separate enactments of the older statutes given rise to a variety of decisions, but subsequent statutes have in some instances modified, and in others partially repealed, former enactments, so that it is extremely difficult to ascertain what the real state of the law is upon this subject. We are of opinion that these statutes should be revised and consolidated.” The mode in which the subject of costs is treated in the statute
(1) Third Report, 1850, p. 7.