THE REVISION OF THE STATUTES.

Otago Witness, Issue 621, 24 October 1863, Page 7

THE REVISION OF THE STATUTES.

(From the S aturday Review.) The Bill which lias been read a second time in tlu House of Lords, for the repeal of unnecessary enactmfnts, isi's"lf an argument iv favor of the reform which it 13 designed to introduce that scarcely needed the Chancellor's elorjuenea to enforce it. Pages upon pages of statues wliu'h after the most careful examination are found to be mere ineumbrances on the Statute-book, tell their own story of confusion and disorder. Some thousands of enactment?, uttely without value lor nny existing purpose, form a mass of dead law which could not have remained entangled with the real operative law i.f the land but for an amount of sluggUh apathy, on the part both of lawyers and statesmen, which is to be paralleled in no other country in the world. The history of the riso and fall of legal enactments which is embodied in the schedule to this Act is a curious and by 110 means a useless Ftmly for those who are anxious to prevent the mischief, which ia now costing so much effort in the i-nre, from being renewed and perpetrattd by the continually increasing activity of the Legislature.

t The dissolution of the human body is said by physiologists to be always brought about by one of two ultimate processes. The death of a statute may, it seems, take place in a greater variety of ways. Six of these mo ies are specified in the introductory note by which the Bill is prefaced, and every defunct statute enumerated in the schedule is duly classed under one of these heaf'e of mortality. Some laws simply die oj dd age. Parsed for a temporary purpose * and a limited time, (hey silently drop out of existence, leaving their dry homes to cumber the Statute-book, The multitude sf Continuance Acts— introduced, from time to time, to keep in force some enactment which was originally made temporary as a tenative measure, or with vefeience to a passing occasion— all belong to this class, and no one. we imagine, will complain that their useless remains are about to be cast out from the fellowship of living law. Another foim of dissolution is vfry nearly analogous to that which we ha^e j ust roticsd. Fome special emergency ha 3, perhaps called for legislative action to meet a transient difficulty, but one to which no precise limit of time could be assigned. Many such Act 3 have been passed, in t?nn>, as permanent enactments; and wh^n the occasion has passed away, and the law is spent, it remains nominally in f< rce to provide for circumstaunes whieli ran never rfcur. The illustration given by the draughtsmen of 'he Bill will convey a clenivr notion of this cla<-s of dead statutes than any definition. In ri.e reitcn of Henry V., Wales wasiu a stite of disorder consequent on a suppressed rebellion, and the national faste for litigation seems to have shown itself in a ho*t of actions to recover damiges for injuries inflicted in the course of the rebellion. Parliament probably seldom did a wiser thicg thai wheu it paswd an Act to prohibit actions " for injuries sustaine.l in the late rebellion; but the prohibition was indefinite in its duration, and now, after the lapsa of centuries, every lawyer duly purchases a copy of an enactment by which Welshmen are deprived of the privilege of seeking legal redress for injuries surf'ered in the days of Henry of Mon mouth. If this is a genuine sample, the spent statutes may well be allowed to pass away ia the company of those which have more formally expired according to the express conditions of their existence. 7 he third class whioh is enumerated ought to convey a wholesome warning to our legislators. When it is intended to consign an old law to destruction, it is of the last importance that the fact should be known. If a statute is a nuis tnce, and deserves summary execution, the name of the culprit, and the sentence ot death or mutilation passed upon if, ought always to be specified with than the rule of moileni legislation, and this pernicious habit may be traced back to a very respectable antiquity. Some branch of law is intended to be remodelled. Parliament has no one to inform it what the existing law is ; so the new Aact is passed, and any clashing with the earlier policy 13 supposed to be avoided by the indolent contrivance of repealing '♦all Acts inconaUt nt with this Act," or "all Acts" on the specified subject. The consequence cf t'.is irregular slaughter is that no one can tell without infinite trouble which of" the old statutes are to be counted among the victims, and the Statute-book accordingly became full of enactmeuts of which few persons could say with, certainty whether they were dead or alive. These indiscriminately repealed stati?t°s fo,m a large portion of the schedule of the new Bill, and it will be an immense relief, both to lawyers and those who have to consult lawyeis, to find the majority of these doubtful exigences subjectei to a sort of post mortem examination, and pronounced veritably dead. This is one of the most valuable operations of the Chancellor's Bill. But it should not be forgotten that such wholesale lepealiug c]aus«g as we have referred to have become more and move frequent as the complexity of the law increased. No retrospective Act will toui-h thi< growing mischief, which can only bfi dealt with by the establishment of a department whose duty it shill be to ascertain what the law is, and to mould eveiy new statute with referenoe to it. One of the primary rule 3of such a depaitment would undoubtedly be, never to allow any Btatutes to be repealed without distinctly specifying, by chapter and section, the scope of the repealing clause. Another irregular mode of decease'to which statute law is subj*ct is still more common, and more embarrassing in its effects. The same ignorance or indolence whioh tempts legislators to introduce sweeping repealing: clauses often lesds them to omit such clauses altogether, and to leave their new enactments iuferentiallv or virtually to obliterate the old rules on the subject, by introducing inconsistent provisions in their stead. Two bodies cannot occupy the same space, neither can two incompatible statutes be in force at tue same time with reference to the same subject. Accordingly, another largo mass of laws has been fairly shouldered out of existence by the force of inconrisfcint enactments which have occupied the same ground. This process of course supplies an lntoretting occupation for the acumen of the Bench, and Icadu perhaps to more em! arrassment than any other ot (he many forms of carelessness which are inoulged in by our law-makeis. One of the most costly htigaiiond of recent times -that relating to She Briti-h .Bank— arose out of a doubt which had this origin. Parliament had passed an Act providing for the- winuing-up of insolvent companies by a process of bankruptcy. The Act had never been applied, and w.\b probably forgotten when, a year or two later, a new mode of winding up such undertakings in the OoHHof Chancery was estn Wished. When the British Bank collapsed, a fearful struggle ensued between rival administrators under these two different and scarcely compatible processes, and vast sums of money were spent in settling the knotty question, whether the second statute had or had not virtually repealed the fust. In this particular instance, the Legislature has _ since interposed ; but many similar doubts (fruitful in costs and admirable as an exercise of forensic skill) still rem.ain to testify to tha uncouscious mischitf which slovenly legislators can effe A Of course matters of real doubt are untouched by the piesent revision, which has been jealously limited to cases which did not admit of serious question. It is something, however, to get rid of all the statutes wiiich can be safely described a3 virtually repealed, and for the rest we must wait until consolidation and rearrangement follow the preliminary expurgation which ha 9 first to be completed. A precisely analogous ela«3 of defunct statutes may be traced to a very similar defect in our methods of legislation, Again and again old law has been reenacted in company with some new provisions, and Parliament has spared itself the trouble of sweeping away by an express repeil the enactments which it tou3 superseded. This practice has furnished another Ion? list of subjects for the operation of the revising process which ia now being applied, and again we must insist that the practice should be abandoned for tbe future if the ev^ now in process of removal is not to grow afresh with every Parliamentary Session. Qne g^are consideration naturally augfteste fyjeif

when is proposed to repeal whole volumes of statutes at a single blow. How do we know that there has been no mistake that no essential statute has slipped into the Hst ? The best answer that can be given ia that which the House of Lords accepted from the mouth of the Chancellor. Tne work has beea carefully done by able men, and anxiously wati'hed by those under whose direction they have worked. It must be taken, in some measure, upon trust. But still it is competent to apply a test of considerable value. In oiuer to invite and facilitate criticism, the reasons for including each statute in the black list are briefly given iv the margin of the schedule, and it is competent for any one who has a special acquaintance with a particular branch of law to satisfy Winseh of the a curacy and judgment with which this part of the selection has been made. If there are blunders, some of them will sure'y be brought to 1 ghr, probably in lime to cure them in the first instauce, or, at any rate, by an amendment so soon as the error may be detected. Bnt, knowing how the work has been conducted, we do not anticipate any such necessity, and it is some evidence of the correctness of the present; schedule that a precisely similar expurgation of another portion of the Statute-book was effected some years aa,o by the labors of the same staff, and has not yet been charged with a siugle mistake. The Bill may therefore be passed without appreciable risk, an.l with the certainty of removing the greater part of the obstacles which have so long impe-led the digesting and consolidation of the Statute Law. When it is said that, after the passing of tliis measure, the whole Statute-book will have bfen cleared of worthless matter except for a single century, Id will be understood that a comparatively short pet iod of energetic work will complete the great nndert iking of the revision of the statute-law. It is true that this wi.l leave a still more formidable task to be performed in dealing with judge-macle law; but vrd tiusfc that there wil ha do delay in commencing the undertaking which Lord We3tbury has proposed. It is not always that Parliament is disposed to give much encouragement to reforms of this character. In another Session some more absirbing topic may divert men's minds from a subject so little exciting ai the revision of the law, and we may not always have a Chancellor able or willing to undertake anil to carry through a task of so much importance and difficulty. If the whole subject is not dealt with now, it" may be that some future Chancellor, a hundred years hence, will have to quote Lord Westbury's speech— as Lord Westbury has quoted Kis predecessor, Ea-on— with an expression of regret that so vivid a portraiture of the defects of the law should not have led to instant and energetic measures for its complete amendment. Whatever ingenious critics may suggest, the difficulty of purifying therepoits, though perhaps greater in degree, is not very different in kind from that which has been 30 nearly overcome in cleansing the statute-book. Both projec'.s_ ia their turn Lave been pronounced impracticable; and we hare no doubt the sweeping of the Augean stable was thought, equally hopeless by the contemporaries of Hercules. The revision of the law is the task of this generation] and, having Lord "Westbury for a leader, there is no reason why the enterprise should not be carried so far towards conaplation as to ensure its ultimate sue cess. This critical stage of progress has indeed almost been reached, so far as the statute law is concerned, and it is only the timidity which baffles all reform that will suggest a doubt as to the attainment of a like success in the yet more important part of the undertaking which still remains to be commenced. Years may elapse before the statutes shill be consolidated, or the law reduced to a consistent code ; but it will be a prrievous disappointment, to all who look for comprehensive reform, if the first energetic stride in this direction does not date from Lord Westbary's Chancellorship.