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book is but a sample of the mode in which all other subjects are treated. A principle is laid down in the time of the Plantagenets, altered under the Tudors, varied under the Stuarts, and partially repealed, and then perhaps revived in a new shape under the House of Hanover. And the trained mind of the bench and bar is wasted and degraded in the semi-mechanical labour of putting into juxtaposition for present use enactments historically separated by intervals of centuries.
The process by which such a state of things is to be remedied must be the grouping of all the statutes under certain heads, according to their subject matter, and irrespectively of their chronological order except as between the statutes grouped under the same head. Thus all the statutes relating to costs would be gathered out of the many volumes in which they are scattered, and confronted with one another in consecutive pages. The like would be done with the laws of marriage, master and servant, contracts of sale, and so on.
This process is called digesting.
When, however, the statutes relating to any given subject were confronted with one another under one head, a vast amount of verbiage would at once be seen to be superfluous, and due merely to the fact that the statutes were when enacted separated from similar statutes by long stretches of years, which it was necessary to bridge over by tedious recitals, and frequent phrases of reference. These would be retrenched, and the various statutes, with all their various provisoes, relating to any one subject would be modelled into one consistent whole. This process is that generally known as consolidation.
The next step would be a philosophical reconsideration of the principles upon which the statutes had been divided into
and such modification of this arrangement as should exhibit them in a really scientific order—the species under the genus, and the particular cases under the species. And this reconstruction, which might either precede or follow the last two processes, is fairly entitled to be called codification. The processes already enumerated, by which the statute law might be at once reduced to at most one-fifth of its present bulk, and at the same time become coherent and intelligible namely, sifting, expurgation, digesting, consolidation, and codification-affect merely the form in which the law is made accessible, not the substance of its enactments. They could also be effected once for all. The legislature will, however, never consent to abstain for ever from any alteration of even the most perfect statute code, which, indeed, from the movement of human affairs, would speedily become worse than useless. Another process, therefore, remains to which it must be subjected, which will affect its substance as well as its form, and which will never cease to operate.
call revision. It is in fact the result of the change which every year's
This we may
session of Parliament will work in both the substance and the form of the law-not the enactments themselves, which every year pass the Houses of Lords and Commons and receive the Royal assent, but the application of those enactments to the pre-existing statute code.
For, once having got our statute code into scientific shape, we must never allow it, by the accretions of new statutes arranged in the old chronological fashion, to fall into the old state of confusion. The uses and the interest of a merely chronological series of statutes are inestimable. Such a series, as Mr. Froude has pointed out and has demonstrated in practice, forms the most authentic skeleton of history.
Any more magnificent national monument than the ten folio volumes published under the direction of the Record Commissioners, which exhibit with critical accuracy every statute passed from the time of King Henry III. to the death of Queen Anne, it is impossible to conceive. Domesday itself must yield the palm to so indisputable and continuous a panorama of the state of England during five centuries. But the uses of such a monument are historical rather than legal. The proceedings entered on the rolls of Parliament ought doubtless to be printed in full in chronological order, and every great library should have a copy of the “Statutes at Large.” Scotch, Irish, Colonial, Local, and Personal Acts should also doubtless be printed separately, and preserved and combined in such ways as shall make them most useful for the purpose for which they were severally enacted; and some of these combinations should certainly be effected by Government. But what is pre-eminently the duty of Government is to select from the mass of statutes those which form part of the true law of England, to arrange them in a code in the manner before specified, and to provide that the code thus constituted shall alone be quoted as binding statute law in courts of justice. The duty of Government in this respect will of course not cease with the formation of the code. The process of “Revision” would consist in incorporating year by year into the code such portions of the year's legislation as might deserve a place there. In order to effect this it would be necessary
(1.) That Bills should be drawn upon a regular system, and always with reference to the part of the code which it might be intended to alter. No patchwork or verbal changes, or repeals by vague inference, should be allowed; but every Bill should expressly repeal such and such a section of the code, and in its place substitute such and such a new section, or should enact that to such and such a chapter such and such new sections should be added.
(2.) That every ten years the code should be republished by Government, containing the new sections in their proper places, and omitting those which had been repealed.
(3.) That to carry out this double work of introducing proper Bills into Parliament, and of adapting the results of legislation to the code, a permanent commission should be appointed. When the nation becomes conscious of the importance of the duties which such a commission would discharge, it would endeavour to attract into it by high salaries, and possibly seats in the Privy Council, the ablest intellects of the day. The lawyer would then possess in the code, we will say, of 1870,
, which would occupy perhaps five or six volumes, the whole statute law of England in force at that date. He would also, during the decade 1870—1880, have to purchase certain emendations on the code, which might be called by the old Roman word “Novels,” the effect of which upon the code would be so obvious, that an ordinary clerk might be trusted to note them upon its margin. After the year 1880 the lawyer might either continue to use his old code, as varied by the Novels, or at a moderate outlay might buy the new code which would be published that year, and which thenceforth would alone be allowed to be quoted in court. It appears to us that this plan would be both simpler and more efficient than any which has hitherto been proposed.
For many plans have been proposed for remedying the present intolerable confusion.
King Edward VI. wrote, “I have showed my opinion heretofore what statutes I think most necessary to be enacted this session ; nevertheless I could wish, that beside them hereafter, when time shall serve, the superfluous and tedious statutes were brought into one sum together, and made more plain and short to the intent that men might better understand them; which thing shall much help to advance the profit of the Commonwealth.”1
In the reign of Queen Elizabeth Sir Nicholas Bacon drew up a scheme for reducing, ordering, and printing the Statutes of the Realm, of which the heads were as follows: "First, where many lawes be made for one thing, the same are to be reduced and established into one lawe, and the former to be abrogated. Item, where there is but one lawe for one thing, that these lawes are to remain in case as they be. Item, that all the Actes be digested into titles and printed according to the abridgment of the statutes. Item, where part of one Acte standeth in force and another part abrogated, there shall be no more printed but that that standeth in force. The doeing of these things maie be committed to the persons hereunder written, if it shall so please her Majestie and her Counsell, and daye wolde be given to the committees until the first daie of Michlemass Terme next coming for the doing of this, and then they are to declare their doings, to be considered by such persons as it shall please her Majestie to appoint.'
(1) Apud Burnet's “ History of the Reformation." (2) MS. Harl., 249.
Several attempts at a reform of the statute book were made from time to time in accordance with these recommendations. Lord Bacon has left some remarks upon this subject which are worthy of their author. He had himself formed a design of digesting the laws, which he says he had relinquished “because it is a work of assistance, and that I cannot master it by mine own resources and pen;
but in the * De Augmentis Scientiarum,' he had laid down the method in which it ought to be done. “There are two ways,” he says, “ of making a
? new statute. The one confirms and strengthens former statutes on the same subject, and then makes a few additions and alterations; the other repeals and cancels all former enactments, and substitutes an entirely new and uniform law. The last method is the best." (Aph. 53.) And he well describes the confusion which even then existed. “Since an express statute is not regularly abolished by disuse, it comes to pass that through the contempt of obsolete laws, the authority of the rest is somewhat impaired ; and from this cause ensues a torment like that of Mezentius, whereby the living laws are stified in the embraces of the dead.” (Aph. 60.) The processes of amendment he enumerates as follows :First, let obsolete laws be omitted ; secondly, let the most approved Antinomies be received, the rest abolished ; thirdly, let the Homoionomies, or laws which are of the same import, be abolished; fourthly, let such laws as determine nothing be dismissed; lastly, let those laws which are found to be wordy and too prolix be more compendiously abridged. (Aph. 60.) When this has been done, he says that it will be expedient that the old volumes shall still be preserved in libraries, for the illustrations of antiquity, though the ordinary and promiscuous use of them be prohibited. (Aph. 63.) And he will not allow the fact that the jurists, who happen to be available at the time when reforms are projected, are inferior to their predecessors, to be an argument against the reforms being undertaken. “It is an unfortunate circumstance when, by the taste and judgment of a less wise and less learned generation, the works of the ancients are mutilated and reconstructed. But that is often necessary which is not best.” (Aph. 64.)
King James I., in a speech from the throne (1609), spoke of “divers cross and cuffing statutes, and some so penned that they may be taken in divers, yea, contrary sences;” adding, “and therefore would I wish both those statutes and reports, as well in the Parliament as common law, to be once maturely reviewed and reconciled; and that not onely all contrarieties should be scraped out of our bookes, but even that such penal statutes as were made but for the use of the time (from breach whereof no man can be free) which doe not now agree with the condition of this our time, might likewise be
(1) Epist. dedic. to "An Holie War.” Works (Stebbing), vii. p. 14.
left out of our bookes, which under a tyrannous or avaricious king could not be endured. And this reformation might (me thinkes) bee made a worthy worke, and well deserves a Parliament to be set of purpose for it.” A commission was appointed in the following year, and a MS. in the British Museum is probably the fruit of its labours. It contains a list of the statutes from 3 Ed. I. to 2 Jac. I. which had been repealed or had expired, and suggestions for further repeals and changes. The report was, however, never acted upon, and under the Commonwealth several commissions were appointed : “ to revise all former statutes and ordinances now in force, and consider as well which are fit to be continued, altered, or repealed, as how the same may be reduced into a compendious way and exact method, for the more ease and clear understanding of the people.” Other commissions have followed in different reigns from that time to this, and the Houses have on several occasions resolved that something should be done in the matter, but nothing was actually done till those measures were originated which we are about briefly to describe.
In 1853 Mr. Bellenden Ker, and two other gentlemen, were instructed by Government to examine the statutes and report upon the best method of revising them. These gentlemen accordingly made three most valuable reports, which are printed among the parliamentary papers, and commenced to classify and register the statutes. Their labours were, however, superseded by the appointment, in 1854, of the “Statute Law Consolidation Committee." appointed by Lord Chancellor Cranworth, and consisted of about thirty members, most of them high legal dignitaries, who of course could spare little time for theoretical jurisprudence. Mr. Ker was, however, a member, and the commissioners appointed several gentlemen, including those who had acted before with Mr. Ker, to carry out under their direction the work which had already been commenced.
The commission made four reports," which, with the three reports previously mentioned, contain a vast amount of curious information, carefully arranged tables of repealed or obsolete statutes, and specimen bills drawn experimentally upon a variety of subjects, upon various principles.
The reports speak very highly of the law itself, when clearly ascertained, but add, “we find that a rule, established and defined by centuries of experiment and discussion, and perhaps elaborated with perfect self-consistency, is registered in disorderly and cumbrous
(1) Harl. 244.
(2) Commons Journal, vi. 427. (3) 1854, vol. xxiv. pp. 154, 363, 407.
(4) Parl. Papers, 1855, xv. 829; 1856, xviii. 861; 1857, xxi. 203: sess. 2, xxi. 211; 1859, sess. 2, xiii. pt. 1, 1.