UTILITY OF THE CONSOLIDATION OF THE STATUTES AND SKETCH OF THE WORK OF THE COMMISSIONS OF 1842 AND 1856.

The first report said that the utility, or rather the necessity of collecting, classifying and consolidating written or customary laws or compiling judicial customs cannot, on general principles, be overrated. This process is known, at present, by the generic term of Codification. To make a regular collection of laws out of a confused mass of legislative provisions, spread over an innumerable number of volumes, to co-ordinate, simplify, and submit them to a clear and terse compilation, by reforming them, to make of the whole a methodical and precise collection, relieved from the verbosity of legal style and rendered intelligible to the general public, is an idea so intimately connected with the first wants of society, that it had early taken root in the minds of those inclined to extirpate abuses and carry out reforms. This necessity was felt by every nation at some period or other of its history.

This fruitful idea, which, under Justinian, produced the Corpus Juris Civilis, which, thanks to the labors of the monk Gratian, and of Popes Gregory IX, Bonifatius VIII and Clement V, brought forth the Canonical Law, which gave birth to the Frederick Code in Prussia, and the Code Napoleon, (the prototype of every contemporaneous Code,) has created, in America, the Civil Code of Louisiana and that of Lower Canada.

This latter was not, however, its first fruit in our country. Before the codification of our civil laws, we had already had two collections of our statutory legislation, one in 1845, the other in 1861, an interval of 16 years, exactly the same period as between the last revision and the present. But considering the continually increasing volume of legislation and the alterations made since 1867, in the constitution and the legislation of the Provinces composing the Canadian Confederation, the present codification is by far the most important and difficult.

The first Commissioners, A. Buchanan, H. Heney, G. W. Wicksteed, C. D. Day and C. R. Ogden, esquires, were appointed on the 16th March, 1842, in accordance with an address of the Legislative Assembly: "to compile and revise the several statutes and ordinances, passed in that portion of the Province, heretofore known as Lower Canada, which were then in force, either in whole or in part, and to consolidate those of the said statutes and ordinances appertaining to the same subject or which it might be advantageous to consolidate,

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and to make thereon such a report as they would deem most advantageous for the welfare and good government of the Province."

As may be seen, the powers of these Commissioners were of two kinds 1st. To compile and revise the statutory laws (statutes and ordinances) of the late Province of Lower Canada, then wholly or partially in force, that is to say, to compile and collect them; 2nd. To consolidate, that is to say, to make them into a body of laws, which, in the manner of all statutes, should receive the sanction of the Legislature and repeal all anterior legislation.

The Commissioners carried out only the first portion of their work. We shall see why they omitted the second.

Their proceedings and the result of their work are to be found in three reports made by them to the government of the Province of Canada, at two different dates, in 1843 and 1845.

They first compiled the statutes and ordinances of Lower Canada and, after establishing the provisions in force, they divided them into ten classes, which were subdivided into titles, by order of subjects of each class.

In the ten classes and in the order of their particular titles, they distributed all the laws in force in their textual sense and the order of their first drawing up, without altering anything, either in matter or

form.

The result of their labors was a simple revision; that is to say an expurgation of the laws, by the removal of repealed or expired provisions, and a classification, that is to say, their arrangement in their logical and natural order.

This work, published in 1845, is known by the name of "Revised Statutes and Ordinances" of Lower Canada. It contains the laws successively passed in the period, from 1777 to the Union of the two Canadas, by the Legislative Council, the Lower Canada Legislature and the Special Council. The usefulness of this revision is incontestable but it never had force of law, the source of which had still to be found in the original statutes. It was a simple compilation, authorized by public authority, but having no legal weight.

Then came the Legislation under the Union of the two Provinces of Canada, made, at times, for each separately and, at other times,

jointly for both. In 1854 these laws had reached an alarming figure and rendered a new revision necessary. It was not only the special laws of Lower Canada that had to be searched out of the collection of statutes, but those of Upper Canada, and their provisions common to both Provinces. It is hard to say at which of these two periods 1845 or 1861, the want of revision was most acutely felt.

On the 28th September, 1854, Attorney General Drummond moved an address before the House of Assembly of the Province of Canada, authorizing the appointment of two Commissions to revise, collect, or consolidate and classify the public statutes of the old Provinces of Upper and Lower Canada, and those of the Province of Canada, as well as the ordinances. It will be seen by the terms of that address that, not only the statutes of Canada were in question, but those of Upper and Lower Canada, which had been already revised and classified, as we have already seen for Lower Canada, and also, as we shall see, for Upper Canada, and which were included in the new work, as if it had never been done.

There were two reasons for this. The revision and classification made for Upper Canada had no legal sanction, any more than those of Lower Canada. Even had they been sanctioned, this revision must have been included in the new one, for a consolidation, made at any time, can have no weight unless it comprises, in a single collection, all the legislation in force, whether it had been already consolidated or not, without its being necessary to refer to former legislation.

This Commission, voted in 1854, was only organized in 1856. For Lower Canada, alone, five commissioners were named, according to the terms of the address, to revise, classify and consolidate the public statutes affecting Lower Canada only, and those relating to both. Upper and Lower Canada. Hence two distinct compilations, the Consolidated Statutes of Canada, and the Consolidated Statutes for Lower Canada. This time, the work was not merely a revision and classification, but a consolidation.

In 1859, two collections were completed, containing the laws in force, the provisions repealed, expired or absolute being expurged and extending over a period of more than eighty years.

During the sessions of 1859 and 1860, two statutes were passed giving them force of law, from the date of their proclamation by the Governor General. From that date, all previous legislation was abol

ished, and the Consolidated Statutes of Canada and for Lower Canada (as they were called) took its place. Henceforth, it was the statutory and the only statutory law of the country.

Each collection of the Consolidated Statutes of Canada and of Lower Canada make up but one body of laws, or rather one only law divided into titles and chapters. The Statutes of Canada contain eleven titles and one hundred and eleven chapters. Those of Lower Canada contain twelve titles and the same number of chapters as the Statutes of Canada. The references to both collections are made by titles, with special references to each collection.

By proclamation dated the 5th November, 1859, the 5th December following was fixed upon as the date of the coming in force of the Statutes of Canada, and, by another proclamation of the 24th January, 1861, the 31st January was chosen for the coming into force of the Consolidated Statutes for Lower Canada.

This double or rather triple consolidation, for the Public Statutes applying to Upper Canada were also consolidated and came into force at the same time as those of Canada, did not stop the action of the Legislature of the Province of Canada, and from 1859 to 1867, the date of Confederation, each session furnished its contingent of laws in the ever increasing volumes of our statutes. This legislation, either by repeal of or amendments to the Consolidated Statutes of Canada and for Lower Canada, or by new laws, was carried on in the same manner as since the Union of 1841, for Upper or Lower Canada separately or for both together.

The legislative action of Confederation creating the Federal Parliament and the Local Legislatures, added its vast contingent to the mass of laws already passed since the second consolidation. Everything had to be created under this new system, in public order, constitution, government, public departments, finances, institutions, in a word, in the Federal and Local organization of each Province; and, in particular circumstances, numerous laws became necessary to make private interests harmonize with the new order of things. Such was the task of the Parliament and Legislature of Quebec, to confine ourselves to our own Province, during the eight years from 1867 to 1875.

And thus, at the latter period, confusion was again at its height, and called for new consolidation. The Legislature of Quebec acknow

ledged this fact, and, in the session of 1880, passed chapter 2, the statute under which the present Commission was organized.

That law authorizes the appointment of a Commission with power "to classify, revise and consolidate the statutes of a general and permanent character of the late Province of Canada, affecting the Province of Quebec, and within the jurisdiction of its Legislature, as also those of this Province since 1867. (Secs. 1 and 2.)

Sec. 3. "In consolidating such statutes, the Commission shall only incorporate therein the provisions which they shall then deem to be in force....They may change the phraseology of such statutes, without however altering the sense; they shall strike out all unnecessary or improper expressions, and shall, as far as possible, render each provision thereof simple, clear and precise."

Sec. 4. "The Commission may suggest such amendments to the law as they deem advisable, by distinctly specifying them and accompanying them with the reasons by which they support them."*

Sec. 5. "The Commission shall publish, in the manner most convenient for reference, either with the Consolidated Statutes or in a separate volume, as they may deem most advisable, the general statutes which affect this Province, but are not within the jurisdiction of its Legislature, including Imperial statutes, and the statutes of the late Province of Canada."

This third consolidation is the first which has been organized by law, the others having been by simple addresses from the Houses. The greater importance of the work justified this deviation from the usage hitherto followed.

It was no longer a simple collection and consolidation which was entrusted to the Commission, in whatever concerns the laws within the jurisdiction of our Legislature, but a codification.

This term requires explanation.

It is here used by extension of the terms "revision," "classification" and "consolidation," which, in our parliamentary and legal language, signify a compilation, or collection of laws already passed, classified in a new order, but preserving their textual sense, reduced to a

These suggestions will be made only in the next report.