THE

Law Magazine and Law Review:

OR

QUARTERLY JOURNAL OF JURISPRUDENCE.

No. XLI.

ART I.-LEGISLATION.

BY C. S. GREAVES ESQ., Q.C.

A TIME when a new Parliament has just met appears to be

very appropriate for considering what is the most expedient mode by which the laws of this great Empire may be reduced into the best practicable form. We shall take it for granted that the state in which these laws at present exist is very unsatisfactory, as it seems to be admitted on all hands that such is the case.

In considering the question, we propose to review the different methods which have been suggested, and it may be well to begin with the plan which differs in the least degree from the present mode of legislation; this is the consolidation of the different enactments relating to one particular subject, which are scattered in the statute book, into a single statute.

At first sight it was very natural, even for persons familiar with our statute law, to have supposed that such a consolidation would be attended with little difficulty; but when it was attempted, under the Statute Law Commission, to carry this plan into execution, it became apparent that there

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were such serious obstacles in the way as to make mere consolidation, without alteration or amendment, either impracticable altogether, or, if practicable, highly inexpedient.

The supposition that a consolidation of the statutes in their very terms is practicable proceeds upon the assumption that the terms in the consolidated statutes would bear the identical same meaning as they did in the former statutes. Now, although this might be so in many cases, it certainly would not be universally so; for there are many old Acts, the terms of which have, by the decisions of the courts obtained a special and particular meaning, so that the existing law can hardly be said to depend upon the words of the Acts alone, but is rather to be found in the Acts together with the cases upon them; and consequently, if the old Acts were repealed and re-enacted again in their very terms, whenever a case arose upon them the question might, and no doubt would be raised, whether the new enactment was to be understood in the same sense as the decisions had put upon the old enactment, and the amount of uncertainty that might be thus created would be very great, The difficulties, which might have arisen from this cause in the case of the Treason Act, 25 Edw. 3, st. 5, c. 2, were felt to be so great, that the Statute Law Commissioners, after the most mature consideration, determined that this statute could not safely be consolidated with the other criminal enactments.

Another difficulty arising from such a cause is, that a clause in one statute may, either by itself or when construed with the rest of that statute, bear one meaning, but when transferred into a consolidation Act, and separated from its former associated clauses and placed among clauses taken from other Acts, it may be open to an entirely different construction; and in this point one of the greatest difficulties of consolidation consists; for it is hardly possible, even with the greatest care, to foresee the effect of placing in the same Act, especially if it be a long one, clauses taken from different Acts. A person who draws an entirely new Act is much more likely to make

all the clauses consistent with each other, than a person who places different enactments taken from different statutes in the same Act. In the former case he must necessarily have in his mind the meaning in which he intended the terms he has used to be understood; in the latter, the question must ever be, whether he has correctly apprehended the meaning which clauses framed by others really convey.

Another very great difficulty arises from direct and implied repeals. In many instances direct repeals, which expressly refer to the clauses intended to be repealed, are so inaccurately worded, that it is next to impossible to determine how much of the clause is really repealed.

A second form of repeal is one that has crept in of late years. It is the repeal of every enactment inconsistent with the statute in which the repeal is found, without mentioning or referring to any Act at all. By this mode of repeal, doubt is thrown upon every previous clause, and it must be compared with every part of the Repealing Act, in order to ascertain whether it is repealed or not. Such repealing clauses are nearly as mischievous as implied repeals, which abound in the Statute Book, and are the most difficult of all to ascertain. These take place whenever any affirmative or negative clause is so far inconsistent with a previous enactment, that both cannot be in force at once; and it often requires a solemn decision to determine whether any, and if so, what part of an older enactment is impliedly repealed.

A single instance will well illustrate these difficulties. The Statute of Frauds, 29 C. II., c. 3, s. 1, provides that "all leases (exceeding the term of three years) not put in writing and signed by the parties, &c., shall have the force and effect of leases at will only, and shall not, either in law or equity, be deemed to have any greater force." The 8 & 9 Vict., c. 106, provides, inter alia, that "a lease required by law to be in writing ""shall be void at law unless made by deed." In a bill to consolidate the law of landlord and tenant, prepared by a very able and careful gentleman for the Statute Law

Commission, both these enactments were introduced, one after the other, without any remark. On examining this bill it occurred to us that the 8 & 9 Vict., c. 106, had impliedly repealed the Statute of Frauds as to all leases for more than three years having the force of leases at will, and had rendered them void unless they were made by deed; and upon the question being mooted before the Commissioners, it was unanimously agreed that the Statute of Frauds was, to some extent, repealed by the latter Act; but there was a great difference of opinion as to whether the later Act did not make such leases only void at common law, but leave them valid in equity, so that they might be enforced in a court of equity. Some of the greatest lawyers of the present day, whether on or off the Bench, differed on this question, and it was never settled. Such instances might easily be multiplied, and they show that mere consolidation is impracticable; for in such cases it must first be determined what the law is or ought to be, and then an enactment must be framed accordingly. If that be done, the bounds of mere consolidation are passed.

Only one other objection need be stated, but that is a most weighty one. Supposing all the statutes could be consolidated without alteration or amendment, what would be effected by it? The law would not be altered in any respect, and all that would ensue would be that, instead of the enactments on each particular subject being scattered over the Statute Book, they would be collected together in Acts devoted to each. No doubt this would be a considerable advantage, but this would be counterbalanced by much greater disadvantages. It would continue all enactments whether good or bad, and very possibly might revive some that are now sleeping in harmless oblivion; and it would make no improvement whatever in the existing law, but would leave every defect, however apparent, and every amendment, however desirable, for future legislation; and as it is plain that it must be followed by statutes curing such defects and making such amendments, it is obvious that any mere consolidation could only be temporary, and

must be superseded by better statutes, and the ultimate result would be that so much more useless matter would have been added to the already overgrown Statute Book.*

With these remarks we shall pass on to the consideration of the expediency of a Code.

It cannot be doubted that at the present time there is a very strong feeling-not to say prejudice-in England against a Code. We cannot help thinking, however, that this feeling is mainly, though perhaps not entirely, founded upon a great misconception of what a Code really is; and, therefore, we shall endeavour to explain what the real nature of a Code is.

A Code may well enough be described as the statement of either the whole or part of the laws of a State, which has been enacted by the legislative authority of that State. It is in reality neither more or less than a Statute or Act of Parliament. There may be any number of Codes in operation in the same State at the same time. In the United States of America a Bill is now passing through Congress to consolidate, revise, and simplify all the Statutes, applicable to the whole of the United States. In the State of New York there are, either actually in operation or in preparation, the Code of Civil Procedure, the Code of Criminal Procedure, the Political Code, the Civil Code, and the Criminal Code. And it is obvious that the legislature of any State may enact as many separate Codes as it may think fit. In truth, the number of Codes, and the subjects contained in each, are wholly dependent upon the will of the legislature.

Again, the Codes may embrace the whole, or may be confined to any part of the laws of a state. In the State of New York an endeavour has been made to provide for every case that may occur by means of their five Codes; but the very learned Commissioners who have framed these Codes have, with prudent caution, framed them so that if there be an existing rule of law

*The substance of these remarks on consolidation is to be found in the preface to Greaves' "Criminal Law Consolidation Acts."