New Zealand Times. MONDAY, JULY 20, 1874.

New Zealand Times, Volume XXIX, Issue 4159, 20 July 1874, Page 2

New Zealand Times. MONDAY, JULY 20, 187 4.

One of the subjects that have received considerable attention from the Government during the recess has been the desirability of a codification of some of the unwieldy laws cumbering the New Zealand Statute Book. With this object the Premier brought the matter under the consideration of the Chief Justice, Sir G. A. Arney, who lost no time in com muni eating with his learned colleagues. The result was that a memorandum of an exceedingly able and exhaustive nature was prepared by Mr. Justice Johnstonone embodying the views of himself and his brother judges —and forwarded to the Government, by whom it was, after being “perused with much interest,” approved, and the suggestion in it was requested to be carried into effect. .This was that a consolidation of the Acts respecting the constitution, jurisdiction and procedure of the Supreme Court should be drafted by Mr. Justice Johnston, after which it could be submitted to the other judges, probably then revised by competent draftsmen, then placed in the hands of Ministers, who if they should think well, could have a Bill framed thereon, and subsequently introduced into the Legislature. Obviously, it would be no use for any other than a strong Government to attempt to grapple with a subject of such very great importance. As each individual member of both branches of the Legislature would have the opportunity of proposing fynendments that if carried might be totally opposed to the spirit of the Bill, it would be necessary for the Government havingchargeof it, tohaveanabsolute majority, the leading members of whicli had previously seen the Bill and approved its provisions. Even under such favorable circumstances the work would necessarily be one that would occupy many years. All that Mr. Justice Johnston proposes to do is to codify the laws relating to the proceedings of the Supreme Court. Other branches of the law would require to be separately dealt with. And as the Chief Justice pointed out, there are extensive reforms of the nature referred to undertaken in England, which it would be unwise to anticipate. The Statute laws of England passed before 1840 are in force in this Colony, as far as they are applicable, and if the Imperial authorities intend to codify important, branches of them at an early date, so far the work will be unnecessary in this Colony. Meanwhile there is abundance of material in our own Statute Book to absorb the energies of the law reformers. The memorandum of the Judge sets forth what he considers may be attempted, and what he is convinced should not be. The idea, ho says, of a code which those who run may read, is a delusion. Neither the Pandects of Justinian, nor the five codes of Napoleon 1., are so easy of comprehension that persons may safely conduct their own legal business without professional assistance. In this moat thoughtful persons will agree. The truth conveyed has been made proverbial in the well-known epigram that the man who is his own lawyer has a fool for his client. It was pithily expressed by that eminent Scotch Judge, Lord Neavos, when he said, “There would never be wanting men and women who would make their own bargains in their own words, and who would write their own wills, with the usual beneficial results to the profession.” It is a common error, akin to the above, to suppose that the codes attempted have succeeded in all instances in simplifying or curtailing the statute laws. The com ments on them soon became law libraries of magnitude. Then there is the common delusion that laws might be made more clear and intelligible by the use of popular language and the avoidance of legal phrases. To this the Judge alludes. It is within the knowledge of all educated men that the meanings of many words in every-day use are constantly on the change—that what some words meant twenty years ago and what they imply to-day are widely different. Therefore to avoid certain phrases and words, the meanings of which should bo defined, is an impossibility in the task of framing

a law that shall impress upon the minds of individuals the exact intent of the Legislature. No doubt the popular belief in the “needless tautology, involution, complexity, and prolixity in the structure of sentences in many Acts” is justified to an extent; and if the learned Judge should draft an Act that he should recommend, as clearly, as concisely, and as forcibly as he has worded his memorandum, he will have rendered no common service. However successful he may be, we see that he starts with a very clear idea of what it is desirable to avoid. "We now give an outline of what he ■Lopes to accomplish. His idea was that existing difficulties, objections, and deficiencies, in statute law and procedure, within the reach of present remedy, should be grappled with. The first step towards this is the natural one of ascertaining what real grievances and mischiefs are to be traced, and whether they are remediable. But even if the Acts be codified and consolidated, with the view •of ameliorating causes of complaint, it is to be expected that the codification would require amendment from time to time, and probably at an early date. Nor would mere consolidation bo sufficient. The text of many statutes would have to be condensed, and a respect to the spirit of legislation would necessitate the greatest precision in the choice of language. In the judge’s opinion, whilst the work was progressing some substantial amendments ought to be inserted. But throughout all there should be used words the meaning of wliich .could be definitely ascertained and stated. He quotes Bentham that as “ life, liberty, property, honor, everything width is dear to us, depends upon the choice of words, the words of the law ought to be weighed like diamonds.” All technical terms should be defined in the body of the laws. Mr. Justice Johnston’s own work will only relate to one branch of the law, and for others he thinks a permanent commission would be desirable, for the purpose of securing uniformity, and incorporating new Acts of the Legislature. But before this should be appointed, he would wait the result of experiments either made or to be made. In any case the work would have to be that of one man, inasmuch as a picture is the work of one artist. After a draft had been made, it might bo revised by competent men, the Judges, the law authorities of the Government, and various draftsman, but the language ultimately employed should be that of the original draftsmen. Doubtless, without this, the draft might contain clauses which would • appear to read differently, and it would have a patchwork character. Before concluding, the learned Judge, with a pardonableaffectionforlawsandlaw courts, took occasion to point out that all the grievances charged to these institutions were not their exclusive property. Law costs are fixed on litigants in consequence of “laxity and rashness in pleading, entailing applications in Chambers for amendments and such expenses, ‘ 1 when clearly attributable to the negligence or unskilfulness of practitioners should be made payable by them, and not by their clients.” One of the causes of unnecessary cost and delay is the “ reluctance of practitioners to demur to pleadings obviously insufficient in law. The heavy costs of preparing for trial, of the trial itself, and of proceedings after it, possibly including a new trial, all proving futile in the end, are not unfrequently incurred in cases where an early discussion of the legal merits on demurrer would have settled the whole matter at a comparatively trifling expense.” The judges should, he thinks, have power to remedy this evil by forcing “parties to raise the real question of law involved in a dispute; and especially to order an argument in Court, or at Chambers, as to the validity of pleadings not demurred to, before settling issues of fact to be decided at a trial.” Whatever may be the remedy, the public, which has almost abandoned the Supreme Court as a remedy in civil cases, will consider that one is needed, and will bo glad to see that the matter has had the serious attention of the Government.