diovmli ICam ^rljonl SItbtrarg SEP z z im^ LAW LIBRARY KD 3934J2r" "'"""™»1' "-tbrary Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/cletails/cu31924021839976 LEGISLATIVE METHODS AND FORMS SIJi COURTENAY ILBERT LONDON HENRY FROWDE, M.A. PUBLISHES TO THE HNIVERSITY OF OXFORD STEVENS & SONS, LIMITED LEGISLATIVE METHODS AND FORMS BY SIR COURTENAY JLBERT, K.C.S.I., CLE. PARLIAMENTARY CODNSEL TO THE TREASURY SOMETIME MEMBER OF THE COUNCIL OF THE GOVERNOR-GENERAL OF INDIA AUTHOR OF 'THE GOVERNMENT OF INDIA' OXFORD AT THE CLARENDON PRESS LONDON AND NEW YORK: HENRY FROWDE ALSO SOLD BY STEVENS & SONS, LIMITED, 119 & 120 CHANCERY LANE, LONDON 1 90 1 OXFORD PRINTED AT THE CLARENDON PRESS BY HORACE HART, M.A. PRINTER TO THE UNIVERSITY PREFACE The contents of this volume are based on memoranda and other papers written at various times on subjects connected with my official work. Such value as they may possess arises from their representing more than thirty years' ex- perience in the preparation of legislative measures both in England and in India. I have endeavoured to avoid subjects which have been already treated of by other writers, and to confine myself to matters about which I can speak from personal knowledge, and therefore with some degree of con- fidence and authority. In dealing with my subject-matter, I have, of course, considered myself bound by rules of official reticence, but, notwithstanding the restrictions thus imposed, I cannot help thinking that the book may be useful and interesting both to the practical legislator and to the student of political institutions. Chapters I and X might even detain the eye of the general reader. Chapter I is an attempt to trace, in broad historical out- line, the relations between the common or customary law of this country and its enacted or statute law, and to com- pare them with the relations existing between customary law and statute law in France and Germany. Chapter II describes the contents of the English Statute Book. The greater part of these two chapters has appeared as articles in the Journal of the Society of Comparative Legislation. Chapter III deals with what I have called subordinate vi PREFACE legislation, that is to say, that part of the law which is enacted, not directly by the supreme legislature, but under delegated powers — an important region, which has as yet been imperfectly explored. I have compared English tradi- tion and practice in the delegation of legislative powers with the tradition and practice of continental countries. Chapter IV is a retrospective summary of the attempts which, during the last three centuries and a half, have been made to improve the form of the English statute law. A study of these attempts and of their results may exercise a sobering, but perhaps also an educative, influence on the reformer. This chapter is based on a minute which I wrote in 1892, and which was published as a Parliamentary Paper in 1893. Chapter V describes the mode in which Grovernment legis- lative measures are prepared in England. Chapter VI is a very short account of those matters relating to the passage of a public Bill through Parliament which have to be borne in mind by a Parliamentary drafts- man and those for whom he acts. Chapter VTI is substantially a plea for prosecuting, in a more vigorous and systematic manner than heretofore, the unattractive but useful work of rearranging and consolidating the contents of the English Statute Book. It reproduces with some modifications an article which appeared in the Quarterly Review. Chapter VIII deals with the well-worn subject of codi- fication, restates briefly the familiar arguments for and against that process, and describes what has been actually done towards codifying' the laws of different countries, and the mode in which, and the circumstances under which, the work has been done. I have thought myself justified in deahng at some length with Anglo-Indian codification, because its history does not seem to be generally known, and the facts relating to it are not easily accessible in a collected form. For valuable assistance in describing the PREFACE vii course of continental codification, I am much indebted to Dr. E. Schuster, of Lincoln's Inn. Portions of this chapter have already appeared in the Encyclopaedia of English Law and in the Law Quarterly Review. Chapter IX summarizes what I have been able to find out about the methods of legislation in the various British colonies, and is based on the extremely interesting replies which have been received to the queries addressed to the colonies by the Colonial Office at the instance of the Society of Comparative Legislation, and which have been published in the Journal of that Society. Chapter X is to some extent a generalization from the contents of preceding chapters, and endeavoxu'S to describe and explain some of the most characteristic features of English parliamentary legislation. Chapter XI, if it wished to be ambitious, might describe itself as a short treatise on nomography, but really consists of practical notes which I have made from time to time for the guidance of myself and of those who have worked with or under me in the preparation of legislative measures. Chapter XII is also of a severely practical character, and consists of forms which may have to be used by a parlia- mentary draftsman, and of notes explaining some features of that complex and elaborate administrative system in which he is apt to find so many pitfalls. The memoranda on which these two chapters are based have for some time been in private circulation, and copies of them were, a few years ago, sent by the Colonial Office to the Governments of the several British Colonies for the assistance of their official draftsmen. It is impossible for me to acknowledge in detail my in- debtedness to numerous friends. Chapters XI and XII were originally prepared as a supplement to the useful little treatise on ' Practical Legislation,' which was written many years ago by Lord Thring, my early instructor in the art of draftsmanship, but which has long been out of print. I am Viii PREFACE reminded at every page of what I owe to my old and dear friend, the late Sir Henry Jenkyns, with whom it was my privilege to work officially for twelve years, and unofficially for a much longer period, and whose intimate acquaintance with the principles and details of English legislation and administration has never been surpassed. I have been permitted to see in proof some of the chapters of Mr. Bryce's forthcoming Studies in History and Juris- prudence. He has dealt with some of the subjects on which I have touched, but from a different point of view, and with an abundance of knowledge and a felicity of expression and illustration which I can only envy and cannot emulate. I am indebted to Mr. F. W. Gardiner for the Index and Tables of Statutes and Cases. C. P. ILBEET. 3, Whitehall Gakdens. February, 1901. CONTENTS CHAPTER I COMMON LAW AND STATUTE LAW Rivalry between common law and statute law The growth of the common law Characteristics of English law Its continuity and uniformity National, in what senses Early statute law Petitions to the King in Parliament . Divergence of Parliamentary and judicial The authority of precedent A comparison with France . Ordinances of Louis XIV and Louis XV Colbert and D'Aguesseau . Registration of Ordinances by ' Parlement ' A ' Bed of Justice ' . . . . The ' Parlement ' of Paris .... Customary law in France .... Reconciliation of conflicting customs . The impulse to codification in France Development of law in Germany law-making 12 15 CHAPTEE II THE ENGLISH STATUTE BOOK Meaning of ' statute ' . Statutes of the Realm Scottish statutes ..... Irish statutes Editions of statutes at large for period since 17 13 Chitty's Statutes of Practical Utility Statutes Revised (first edition) .... Statutes Revised (second edition) Utility of Statutes Revised 23 23 23 24 24 24 25 CONTENTS Irish Statutes Revised .... Projected edition of Scottish Statutes Revised Annual volumes of Public General Statutes Classification of statutes .... Distinction betvpeen Public and Private Acts Distinction between Public and Private Bills Provisional Order Confirmation Bills Public Acts of a local character . Chronological Table and Index of Acts Lists of Local and Private Acts . PAGE 26 26 26 27 28 33 33 33 35 CHAPTER III .Subordinate Legislation 36 CHAPTER IV STAGES IN THE IMPROVEMENT OP THE ENGLISH STATUTE LAW Object of chapter .... Proposals under King Edward VI Proceedings under Queen Elizabeth . Proposals under King James I Lord Bacon's proposals of 1616 . Proceedings under the Commonwealth Proceedings after Restoration Reports of 1796 Improvement in classification of Acts Resolutions of 1800 .... Resolution of Public Records Commission, 1806 Resolutions of 1816 Sir Robert Peel's Criminal Law Amendment Acts Statute Law Commission of 1833 Sir Henry Seton's Reports of 1836 Statute Law Commission of 1845 Further steps for codification of criminal law . Lord Cranworth's proposals of 1853 . Statute Law Board of 1843 Statute Law Commission of 1854 ....... sc Statute Law Revision Act of 1856 en Select Committee of 1857 -8 Criticisms in Parliament on proceedings of Statute Law Commis- sioners ........ Proceedings in 1859 ...... Publication of Register of Public General Acts . Steps taken by Sir Richard Bethel! in i860 Statute Law Revision Act of 1861 go Criminal Law Consolidation Acts of i86i 60 Statute Law Revision Act of 1863 5o Other expurgatory Acts 62 43 43 43 45 45 46 47 47 49 50 50 50 51 51 52 52 53 53 S3 58 59 59 59 CONTENTS Preparation of Index to and Chronological Table of Statutes Alteration in classification and editions of the statutes . Appointment of Statute Law Committee in 1868 Publication of Chronological Table and Index to Statutes Publication of first edition of Revised Statutes . Arrangement for extension of first Revised Edition . Successive editions of Chronological Table and Index Establishment of Parliamentary Counsel's office Select Committee of 1875 .... . . Improvement in drafting of Bills . ... Reports on civil procedure and courts .... Mr. Wright's report, 1877, on criminal law and procedure Criminal Code Bills of 1878-83 Second edition of Revised Statutes Statute Law Revision Bills of 1887 and 1888 Interpretation Act, 1889 .... Statute Law Revision Bill of 1889 Select Committee of 1890 . Statute Law Revision Acts of 1890 ... Statute Law Revision Act of 1891 Establishment of Joint Committee for consideration of Statute Law Revision Bills . .... Recent Consolidation Acts . ... Procedure for passing Consolidation Bills in 1894 DifSculties experienced in 1896 .... Suspension of work of consolidation . Short Titles Acts of 1893 and 1896 Summary of results 63 64 64 66 66 66 66 67 67 68 69 69 69 70 70 71 71 71 72 72 72 72 73 74 75 75 ,6 CHAPTEE V PEEPABATION OF ACTS Preparation of early Acts Legislation in the Tudor period Share of judges in preparation of Bills after Restoration . Lawyers' Acts ...-•••■• Eighteenth-century legislation Mr. Pitt's 'Parliamentary Counsel' ... Change in nature of ministerial responsibility for legislation Appointment of Home OfBce Counsel Establishment of Parliamentary Counsel's Office in 1869 . Object of scheme of 1869 Staff of Parliamentary Counsel's Office Gradual abolition of departmental draftsmen . Practice as to instructions for Government Bills Procedure on receipt of instructions Work of draftsman after introduction of Bill into Parliament Scotch and Irish Bills ... • ■ • Private members' Bills . • • • • 77 77 78 79 80 80 82 83 84 85 85 86 86 87 89 90 90 xu CONTENTS Hybrid Bills ... ... Private Bills . .... Provisional Order Bills Other duties of Parliamentary Counsel's Office . Advising on questions affecting legislation Statutory rules and orders Statute law revision and consolidation Results of establishment of Parliamentary Counsel's Office Economy Control over Government legislation . Improvement in form of statutes Suggestions for extension of duties of Office PAGE 91 93 92 93 93 94 95 95 95 96 96 96 CHAPTEE VI PASSAGE OF BILLS THROUGH PARLIAMENT Eight of initiating legislation Mode of introduction . Stages in progress of Bill . Classes of committees . Authentication of Acts Note A — Initiation of legislation in France and Germany Note B — Legislative procedure in France 98 99 lOI 104 105 106 108 CHAPTEE VII CONSOLIDATION OP STATUTES Meaning of consolidation . Difficulties of consolidation Change of language . Changes of law and circumstances Differences of style . Ambiguities and obscurities Consolidation means rewriting . Consolidation Acts not popular . Progress made in consolidation . Work to be done Need of support from public opinion Is consolidation worth the trouble it involves ? Possible improvements in machinery for consolidation III III III iia 112 iia iia 113 114 "5 116 116 118 CHAPTER VIII CODIFICATION Bentham's definition of codification Saviguy on codification Eesults of Bentham's work 122 123 124 CONTENTS xiu Results of Savigny's work j^g Fate of codification in England j2_ Codification in India ^ Codification in British colonies i-- Codification in the United States ," ISS Codification on the Continent j,. General conclusions j_„ Advantages of codification j ,„ Difficulties in way of codification i5o Case for dealing with criminal law jga CHAPTEE IX INDIAN AND COLONIAL LEGtISLATION I. Common Law as the Basis or Statute Law. General principles i6- India _■ i6^ Channel Islands i68 British colonies generally igg French law in Canada and elsewhere i68 Spanish law igo Eoman-Dutoh law 160 Malta i-o Cyprus 170 Laws applicable to particular races and creeds 170 India . 170 Ceylon 170 Straits 171 Hong Kong 171 African colonies ........... 173 Australasia 17a II. Statute Law. Materials of which statute law of British possessions is com Legislative powers of Imperial Parliament Effect of severance of one possession from another Survivals of foreign enacted law Illustrations The Indian Statute Book Canadian statute law . Australasian statute law Jamaica Rudimentary forms of legislation III. Methods or Leoislation. I. Pr^aration of Bills. India Self-governing colonies Canada 17s 173 173 173 174 174 176 177 178 178 179 180 180 PAGE i8o i8o xiv CONTENTS Newfoundland New South Wales „. . . ... i8i Victoria .....-•••■ Queensland South Australia ...•••••••• Western Australia ... 102 Crown colonies ' 2. PuUication of BiUs, India ... 185 Self-governing colonies '°5 Crown colonies .....•••••• '°5 3. Stages 0/ BiUs. India 185 Colonies .......-•••• 186 4. References on Points of Form ........ 186 5. Uniformity of Style 186 6. Legislative Sessions. India 186 Self-governing colonies 186 Crown colonies 187 •7. Numbering and Short Titles of Laws 187 8. Private Bill Legislation. Self-governing colonies 188 India i8g Crown colonies 189 9. Explanatory Statements 190 IV. Publication of Statutes. I. Current Legislation. India 190 Self-governing colonies 191 Canada 191 Victoria ............ 191 South Australia 191 Crown colonies ........... 19a Variations in size of volumes of colonial statutes .... 193 2. Collective and Revised Editions. India 193 Self-governing colonies 194 Canada ............ 194 Victoria 195 New Zealand ig6 Crown colonies ....... ... 197 3. Indexing. Suggestions for uniformity of indexing 198 Existing indexes in India and elsewhere 198 CONTENTS v. CONSOLIDATIOH AND CoDIFIOATIOK. CoUective Editmns of Colonial Acts XV PAGE 202 CHAPTEK X PARLIAMENT AS A LEGISLATIVE MACHINE Napoleon on legislatures .... Napoleonic theory and English practice . Leading characteristics of English legislation . Parliament mainly concerned with administrative law Control of Executive Government over legislation . Distrust of official discretion Comparison with other legislatures United States legislation . Continental legislation Colonial legislation Anglo-Indian legislation . Causes of defective form of Acts of Parliament The progress of a Bill through the House . Should legislation be delegated to experts ? Advantages of existing system . Systematic consolidation would remove many defects 208 208 S09 209 213 219 222 222 222 224 225 229 230 231 233 235 CHAPTEE XI FOKM AND AKBANGEMENT OF STATUTES General principles of statutory drafting 237 Preliminary work .......... 242 Arrangement 244 Marginal notes 246 Clauses ... 246 Sentences ... 247 Language 247 Penalties and other sanctions 248 Expenses 250 Rules of interpretation 250 Imperative and directory regulations 251 Transitional arrangements 251 Consolidation Bills 251 Referential legislation (in the wider sense) 254 Amending legislation ..... .... 256 Referential legislation (in the narrower sense) 259 Schedules, rules, and forms 266 Title 268 Preamble 269 Formal and saving clauses 270 xvi CONTENTS CHAPTEE XII STATUTOKY FOBMS Tttle. PAGE Forms 271 Enacting Formula. Forms 272 FoEMAi- Clauses. Forms, Short title 272 Construction of Act 273 Provision for embodying amending Act in principal Act . . . 374 Extent of Act 275 Application of Act by Order in Council (colonies) .... 276 Application of Act by Order in Council (foreign countries) . . 277 Application of Act to British possessions ...... 277 Commencement of Act . . 277 Appointed day 278 Duration of Act 279 Repeal of enactments in schedule 279 Repeal of enactments on rules coming into operation . . . 280 Power to repeal or vary Acts in schedule 280 Definitions. Explanatory Note 281 Central Authokities. Preliminary Note . . . , 281 Forms. Staff and remuneration and expenses 283 Style and seal of Board 283 Transfer of officers 284 Central Finance. Preliminary Note 284 Exchequer and Consolidated Fund 284 Exchequer and Audit Departments Act, 1866 285 Comptroller an Auditor-General 285 Payments into Exchequer 28=; Consolidated Fund 286 Consolidated Fund charges and annual supply charges . . . 286 Consolidated Fund charges 286 Charge for public debt 286 Heads of public debt ^gg Permanent funded debt 286 Funded debt of terminable annuities 287 CONTENTS xvii PAGE War loan 287 Floating or unfunded debt 287 Exchequer bills and Exchequer bonds 287 Treasury bills a88 ■^ Charge for management of National Debt 288 Sinking Fund Act, 1875 288 Old Sinking Fund 288 Permanent annual charge for the National Debt .... 289 New Sinking Fund 290 Supply of money for Consolidated Fund charges .... 290 Procedure for authorizing expenditure of money required to meet Supply charges 291 Resolution in Committee of Supply 291 Eesolution in Committee of Ways and Meaas 291 Consolidated Fund Acts 291 Issue of credit by Comptroller and Auditor-General . . . .291 Issue by Treasury 29a Appropriation Act .......... 292 Paymaster-General 293 Audit and reference to Public Accounts Committee .... 293 General characteristics of system 293 Appropriations in aid .......... 294 Special accounts ........... 294 Iiocal Taxation Account ......... 294 Cattle Pleuro-pneumonia Account for Great Britain . . . 295 General Lighthouse Fund 295 Naval Defence Account 296 Loans from public money 296 Loans by Public Works Loan Commissioners ..... 296 Interest on loans 296 Terms for repayment 297 Security for loan 297 Local Loans Fund 297 Annual Public Works Loans Acts . 298 Farms. Power for Public Works Loan Commissioners to lend . . . 299 Money to be applied as appropriation in aid 300 Local AtjthobitieS amd Local Finance. Preliminary Note 300 Forms. Expenses of [district council] 304 Application of receipts by [district council] 305 Application of capital money 3o5 Power of county council to borrow 3o6 Power of borough council to borrow 3°^ Power of district council to borrow 306 Power of [ ] to borrow 3o6 Proceedings in case of default of local authority .... 307 ILBERT. " xviii CONTENTS Pkovisional Ordeks and Schemes. Preliminary Note PAGE 308 Forms. Confirmation of provisional order by Parliament . . . • 30° Confirmation of scheme by Parliament or Order in Council . . 3°9 Oedeks in Cotjkcil, Rules, Regulations, and By-laws. Preliminary Note ......•••• 3^° Farms. Power for His Majesty to make Orders in Council Power for King in Council to make regulations Draft of Order to be laid before Parliament Power to make rules Rules to be laid before Parliament Rules to be subject to disallowance by Parliament Draft of rules to be laid before Parliament Power of local authority to make by-laws . By-laws 311 312 312 313 313 313 314 314 315 Acquisition of Land. Preliminary Note 317 Forms. Power to purchase land ......... 320 Machinery for purchase of land 321 Legal Pkoceedings. Preliminary Note 322 Forms. Expenses of indictments 324 Summary prosecution of offences 324 Exemption of occupier from fine on proof of another being actual offender . 324 Compensation for damage caused by offence 325 Imprisonment for wilful act or neglect endangering life or limb . 325 FoKM, Service, Inspection, and Evidence or Documents. Forw£. Form of notices, &c -26 Service of notices, &c 32g Inspection of documents 037 Execution of instruments by head of department .... 328 Evidence of register -28 Gazette to be evidence ••..... oaS Proof of document by certified copy, &c 320 Computation of Time. Forms. Computation of time .... .„„ 329 CONTENTS xix Savino Clauses. Preliminary Note PAGE Forms. Saving for rules of equity and common law Powers of Act cumulative Repeal of local Acts Saving for powers of [Charity Commissioners, &e.] Saving for power to proceed under other law . Saving of civil remedy ..... Saving of obligation to make discovery 330 330 331 331 331 33r 331 Special Authorities. Preliminary Note 031 Forms. Powers of Commissioners (judicial) 303 Penalty for false swearing 300 Power to appear by counsel ...,..., 3=0 Indemnity to vritnesses 303 APPENDIX I EEPEAi TABLES AND SCHEDULES PAET I. COHPAKISOH OF EUACTMENIS EePEALED WITH BiLL . . 335 PART II. — Enactmebts Repealed ....... 335 APPENDIX II INTEKPKETATION ACT, 1 889 Me-enaciment of existing Rules. Rules as to gender and number ........ 336 Application of penal Acts to bodies corporate 337 Meanings of certain words in Acts since 1850 337 Meaning of ' county ' in past Acts 338 Meaning of ' parish ' . . . - . 338 Meaning of ' county court '......... 338 Meaning of ' sheriff clerk,' &e. in Scotch Acts 339 Sections to be substantive enactments ...... 339 Acts to be public Acts 339 Amendment or repeal of Acts in same session 339 Effect of repeal in Acts passed since 1850 339 Neu> General Rules of Construction. Of&cial definitions in past and future Acts 339 Judicial definitions in past and future Acts 342 Meaning of ' rules of court ' 345 ba XX CONTENTS PAGE Meaning of boi-ough 345 Meaning of guardians and union 34° Definitions relating to elections 347 Geographical and colonial definitions in future Acts . • • 347 Meaning of ' person ' in future Acts .....■• 349 Meaning of ' writing ' in past and future Acts 349 Meaning of ' statutory declaration ' in past and future Acts . • 349 Meaning of ' financial year ' in future Acts 349 Definition of Lands Clauses Acts 35° Meaning of Irish Valuation Acts 35° Meaning of ' ordnance map ' 35° Meaning of service by post 35 1 Meaning of ' committed for trial ' 351 Meanings of 'sheriff,' 'felony,' and 'misdemeanour' in future Scotch Acts 351 Meaning of 'county court' in future Irish Acts .... 35a References to the Crown 352 Construction of statutory rules, &o 352 Construction of provisions as to exercise of powers and duties . . 352 Provisions as to offences under two or more laws .... 353 Measurement of distances 354 Citation of Acts 354 ' Commencement ' 355 Exercise of statutory powers between passing and commencement of Act 355 Effect of repeal in future Acts 356 APPENDIX III ET7LES PUBLICATION ACT, 1 893 Notice of and representation respecting certain draft rules . . 359 Provisional rules in certain eases 360 Printing, numbering, and sale of statutory rules .... 360 Definitions ............ 361 Short title 361 Regulations made by the Treasury with the concurrence of the Lord Chancellor and the Speaker of the House of Commons in pursuance of the Rules Publication Act, 1893 .... 361 TABLE OF STATUTES^ Acts of Parliament (Commencement), 1793 (33 Geo. III. c. 13), 277. Admiralty (Signal Stations), 1815 (55 Geo. III. c. 128), 320. Agricultural Rates, 1896 (59 & 60 Viet. c. 16), 279, 314. Allotments, 1887 (50 & 51 Vict. c. 48), 305, 318, 320. Appropriation Acts (annual), 292, 293. Arbitration, 1889 (52 & 53 Vict. c. 49), 262. Army (44 & 45 Vict. c. 58), 94, 114, 259. Army (Annual), 1885 (48 Vict. c. 8), 259, 275. — 114. Artificers and Apprentices, 1562 (5 Eliz. c. 4), 44, 47. Australian Courts, 1828 (9 Geo. IV. c. 83), 177. Ballot, 1872 (35 & 36 Vict. c. 33), 264. Bank, 1892 (55 & 56 Vict. c. 48), 287, 28a Bankruptcy, 1883 (46 & 47 Vict. c. 52), 294. Belfast Commission, 1886 (50 Vict. c. 4), 332. Bills of Exchange, 1882 (45 & 46 Vict. c. 61), 129, 201, 202, 330. Board of Agriculture, 1889 (52 & 53 Vict. c. 30), 282, 283, 284, 312, 314. 328. Education, 1899 (62 & 63 Vict. c. 33), 282, 283, 284, 328, 340. British Columbia Loan, 1892 (55 & 56 Vict. c. 52), 299. Settlements, 1887 (50 & 51 Vict. c. 54), 173. Canada (Ontario Boundary), 1889 (52 & 53 Vict. c. 28), 269. Cemeteries Clauses, 1847 (10 & 11 Vict. c. 65), 323, Chancery Funds, ,1872 (35 & 36 Vict. c. 44), 73. Clauses Consolidation Acts, 1845, 9^, 261, 262. Coast Guard Service, 1856 (19 & 20 Vict. c. 83), 320. Coinage Acts, 114. 1832 (2 Will. IV. c. 34), 51. Colonial Loans, 1899 (62 & 63 Vict. c. 36), 298, 299. Colonial Prisoners Removal, 1867 (32 & 33 Vict. c. 10), 276. ; — 1884 (47 & 48 Vict. c. 31), 276. Probates, 1892 (55 & 56 Viot. c. 6), 276, 277, 349. Solicitors, 1900 (63 & 64 Vict. c. 14), 276, 277. Commissioners for Oaths Acts, 114. ' A few of the Statutes are designated by their popular names ; in certain other cases, the short title, while indicating the character of the Act, is without any statutory authority. xxii TABLE OF STATUTES Commons, 1899 (62 & 63 Vict. c. 30), 305, 306, 314. Companies, 1862 (25 & 26 Vict. c. 89), 351. Clauses Consolidation, 1845 (8 & 9 Vict. c. 16), 261. Clauses Consolidation (Scotland), 1845 {8 & 9 Vict. c. 17), 261. Consolidated Fund (No. 2), 1896 (59 & 60 Vict. c. 7), 289. Fund Acts, 291, 292, 293. Consular Salaries and Fees, 1891 (54 & 55 Vict. c. 36), 342. Contagious Diseases (Animals), 1878 (41 & 42 Vict. c. 74), 330, 359. (Pleuro-Pneumonia), 1890 (53 & 54 Vict. c. 14), 295. 1892 (55 & 56 Vict. c. 47), 29s, 359. -. 1893 (56 & 57 Vict. c. 43), 295. Copyhold Acts, 114. Coroners Acts, 114. County Courts, 1846 (9 & 10 Vict. c. 95), 338. '■ 1888 (51 & 52 Vict. 0. 43), 338. Acts, 42, 114. County Officers and Courts (Ireland), 1877 (4° & 4^ Vict. c. 56), 352. Criminal Evidence, 1898 (61 & 62 Vict. c. 36), 255. Law, 1826 (7 Geo. IV. c. 64), 51, 323. 1827 (7 & 8 Geo. IV. c. 28), 51, 337. (Ireland), 1828 (9 Geo. IV. c. 54), 337. Amendment, 1867 (30 & 31 Vict. c. 35), 323. 1885 (48 & 49 Vict. c. 69), 324. Consolidation Acts, 1861 (24 & 25 Vict. cc. 94-100), 60, 323. Procedure (Scotland), 1887 (50 & 51 Vict. c. 35), 163. Crown Lands, 1810 (50 Geo. III. c. 65), 341. 1829 (10 Geo. IV. c. 50), 341. 1832 (2 & 3 Will. IV. c. 1), 341. 1851 (14 & 15 Vict. c. 42), 341. Customs Acts, 1825 (6 Geo. IV. cc. 104-115), 50. Consolidation, 1876 (39 & 40 Vict. c. 36), 114. and Excise, 1787 (27 Geo. III. c. 13), 286. '■ and Inland Revenue, 1879 (42 & 43 Vict. c. 21), 275. 1890 (53 & 54 Vict. c. 8), 270, 295. Defence, 1842 (5 & 6 Vict. c. 94), 320. Diseases of Animals, 1894 (57 & 58 Vict. c. 57), 295, 307. of Animals Acts, 114. District Auditors, 1879 (42 Vict. c. 6), 303. Divided Parishes, &c., 1876 (39 & 40 Vict. c. 61), 310. Documentary Evidence, 1868 (31 & 32 Vict. c. 37), 312, 328, 329. 1882 (45 & 46 Vict. c. 9), 312, 329. 1895 (58 & 59 Vict. c. 9), 328. Ecclesiastical Titles, 1851 (14 & 15 Vict. c. 60), 60. Educational Endowments (Ireland), 1885 (48 & 49 Vict. c. 78), 310. TABLE OF STATUTES xxiii Electric Lighting, i88a (45 & 46 Vict. c. 56), 309. Clauses, 1899 (62 & 63 Vict. c. 19), 92, 93, 261. Elementary Education, 1870 (33 & 34 Vict. c. 75), 265, 327, 354. 1876 (39 & 40 Vict. c. 79), 325. Acts, 42. Evidence, 1851 (14 & 15 Vict. c. 99), 328. Exchequer and Audit Departments, 1866 (29 & 30 Vict. c. 39), 285, 286, 289, 290, 291. Bills and Bonds, 1866 (29 & 30 Vict. c. 25), 287, 288. Expiring Laws Continuance Act (annual), 264. Explosives, 1875 (38 & 39 Vict. c. 17), 73, 317, 323, 325, 326, 331, 351. Explosive Substances, 1883 (46 & 47 Vict. c. 3), 276. Extradition, 1870 (33 & 34 Vict. c. 52), 276, 277. Factors Acts, 114. Factory and Workshop, 1878 (41 & 42 Vict. c. 16), 325. Finance, 1894 (57 & 58 Vict. c. 30), 295, 296. 1897 (60 & 61 Vict. c. 24), 259. 1899 (62 & 63 Vict. c. 9), 299. 1900 (63 & 64 Vict. c. 7), 287, 290. Fines and Recoveries, 1833 (3 & 4 Will. IV. c. 74), 80. Fisheries Amendment, 1884 (47 & 48 Vict. c. 26), 273. (Oyster, Crab, and Lobster), 1877 (40 & 41 Vict. c. 42), 310. Foreign Enlistment, 1870 (33 & 34 Vict. c. 90), 278. Jurisdiction, 1890 (53 & 54 Vict. c. 37), 280. Jurisdiction Acts, 42, 114. — — Marriage, 1892 (55 & 56 Vict. c. 23), 311, 312. Marriage Acts, 1 14. Forfeiture, 1870 (33 & 34 Vict. c. 23), 323. Forgery, 1830 (i Will. IV. c. 66), 51. Friendly Societies, 1887 (50 & 51 Vict. c. 56), 259, 275. Acts, 114. Fugitive Otfenders, 1881 (44 & 45 Vict. c. 69), 276. ' Gilbert's Act,' 82. Government of India, 1833 (3 & 4 Will. IV. c. 85), 129, 175. 1853 (16 & 17 Vict. c. 95), 130. 1858 (21 & 22 Vict. c. 106), 131, 282. 1870 (33 Vict. c. 3), 175, 194. Acts, 116. Grand Jury Cess (Dublin), 1851 (14 & 15 Vict. c. 65), 323. Great Seal, 1562 (5 Eliz. c. 18), 340. Greek Loan, 1898 (61 & 62 Vict. c. 4), 299. Highways, 1835 (5 & 6 Will. IV. c. 50), 320. ' Hobhouse's Act,' 82. Housing of the Working Classes, 1890 (53 & 54 Vict. c. 70), 253, 265, 300, 302, 308, 310, 318, 331. Acts, 114. xxiv TABLE OF STATUTES Indian Councils, 1861 (24 & 25 Vict. c. 67), 131, I75- High Courts, 1861 (24 & 25 Vict. c. 104), 131. Indictable Offences, 1848 (11 & 12 Vict. c. 42), 351. Inebriates, 1899 (62 & 63 Vict. c. 35), 324. Infectious Diseases (Notification), 1889 (52 & 53 Vict. c. 72), 331. International Copyright, 1886 (49 & 50 Vict. c. 33), 276. Interpretation, 1889 (52 & 53 Vict. c. 63), 28, 71, 114. 186, 248, 273, 275, 277, 278, 280, 281, 282, 311, 312, 322, 327, 330, 336-357- 359- of Terms, 1837 (7 WiU. IV. & i Vict. c. 39), 339. Irish Education, 1892 (55 & 56 Vict. c. 42), 321, 325. ■ 1893 (56 & 57 Vict. o. 41), 321. Presbyterian Church, 1871 (34 & 35 Vict. c. 24), 31. Jamaica Act, 1866 (29 & 30 Vict. c. 12), 178. ' Jervis's Act,' 261. Judicature Act, 42. Justice, New South Wales, 1823 (4 Geo. IV. c. 96), 178. Justices' Clerks, 1877 (40 & 41 Vict. c. 43), 322. Labourers (Ireland), 1883 (46 & 47 Vict. c. 60), 310, 321. 1885 (48 & 49 Vict. c. 77), 320, 321. 1886 (49 & 50 Vict. c. 59), 320. Land Transfer, 1875 (38 & 39 Vict. c. 87), 331. Lands Clauses Consolidation Acts Amendment, i860 (23 & 24 Viet. c. 106), 350. Lands Clauses Acts, 262, 317, 318, 319. 1845 (8 & 9 Vict. c. 18), 261, 350. (Scotland), 1845 (8 & 9 Vict. c. 19), 261, 350. Larceny, 1827 (7 & 8 Geo. IV. c. 29), 51. 1861 (24 & 25 Vict. c. 96), 163. Licensing, 1872 (35 & 36 Vict. o. 94), 73. Light Railways, 1896 (59 & 60 Vict. c. 48), 298, 318, 320, 321. Local Government, 1888 (51 & 52 Vict. c. 41), 246, 263, 264, 278, 294, 300-304, 310, 314, 319-321, 330, 338, 350. 1894 (56 &57 Vict. c. 73), 264, 265, 278, 300-304, 308, 318, 320, 327, 330. Acts, 115, 251, 263. Board, 1871 (34 & 35 Vict. c. 70), 282. (Boundaries), 1887 (50 & 51 Vict. c. 61), 332. ' (Ireland), 1898 (61 & 62 Vict. c. 37), 94, 264, 265, 266, 279, 295- (Scotland), 1889 (52 & 53 Vict. c. 50), 295. Loans, 1875 (38 & 39 Vict. c. 83), 303. Taxation (Customs and Excise), 1890 (53 & 54 Vict. c. 60), 295, 3or. ' Locke King's Acts,' 257. Locomotives, 1898 (61 & 62 Vict. c. 29), 314, 325. London Building, 1894 (57 & 58 Vict. c. ccxiii), 30. TABLE OF STATUTES xxv London Coal Duties Abolition, 1889 (52 & 53 Vict. c. 17), 269. County Council Electors Qualification, 1900 (63 & 64 Vict. c. 29), . 216. Government, 1899 (62 & 63 Vict. c. 14), 251, 264, 279, 301, 303, 306, 310, 312, 314, 321, 346. 'Lord Brougham's Act' (13 & 14 Vict. c. 21), 37, 68, 186, 336-339, 354- Lunacy, 1890 (53 & 54 Vict. c. 5), 42. Acts, 114. Mail Ships, 1891 (54 & 55 Vict. c. 31), 277, 311. Malicious Injuries to Property, 1827 (7 & 8 Geo. IV. c. 30), 51. Management of Taxes Acts, 114. Margarine, 1887 (50 & 51 Vict. c. 29), 325. •Marriage, 1891 (54 & 55 Vict. c. 74), 94. Mauritius Hurricane Loan, 1892 (55 & 56 Vict. c. 49), 299. Medical, 1885 (49 & 50 Vict. c. 48), 276, 329. Merchandise Marks, 1887 (50 & 51 Vict. c. 28), 325. Merchant Shipping, 1894 (57 & 58 Vict. c. 60), 73, 121, 276, 297, 323. Acts, 42, 114. (Colonial), 1869 (32 & 33 Vict. c. 11), 276. (Life Saving Appliances), 1888 (51 & 52 Vict. c. 24), 332. (Mercantile Marine Fund), 1898 (61 & 62 Vict. c. 44), 295, 312. Metropolis Management, 1855 (18 & 19 Vict. c. 120), 30. Amendment, 1862 (25 & 26 Vict. c. 102), 320. Water, 1899 (62 & 63 Vict. c. 7), 243. Metropolitan Board Commission, 1888 (51 & 52 Vict. c. 6), 332, 334. Board of Works (Loans), 1869 (32 & 33 Vict. c. 102), 73. Inner Circle, 1874 (37 & 38 Vict. c. cxcix), 318. Open Spaces, 1881 (44 & 45 Vict. o. 34), 260. Police, 1886 (49 Vict. c. 22), 319. Poor, 1867 (30 & 31 Vict. c. 6), 320. Michaelangelo Taylor's Act of 1810 (50 Geo. III. c. Ixxv), 30. Act of 1817 (57 Geo. III. c. xxix), 320. Military Lands, 1892 (55 & 56 Vict. c. 43), 93, 297, 306, 318, 319, 321. 1897 (60 & 61 Vict. c. 6), 297. 1900 (63 & 64 Vict. c. 56), 321. Tramways, 1887 (50 & 51 Vict. c. 65), 320. Works, 1897 (60 & 61 Vict. c. 7), 289. Mnitia, 1882 (45 & 46 Vict. c. 49), 341. Acts, 114. MiUbank Prison (Military Offenders), 1869 (32 & 33 Vict. c. 95), 175- Mortmain Acts, 114. Municipal Corporations, 1882 (45 & 46 Vict. c. 50), 246, 254, 263, 300-304, 306, 310, 314, 315, 317, 320, 322, 330. 345. 346. Acts, 114, 263. (Ireland), 1840 (3 & 4 Vict. c. 108), 346. Mutiny Acts (annual), 94, 114. xxvi TABLE OF STATUTES National Debt, 1889 (52 & 53 Vict. c. 6), 287, 289. Acts, 114. (Conversion of Bonds), 1892 (55 & 56 Vict. c. 26), 287, 290. (Conversion of Stock), 1884 (47 & 48 Vict. c. 23), 287, 290. Conversion, 1888 (51 & 52 Vict. c. 2), 287, 290. and Local Loans, 1887 (50 & 51 Vict. c. 16), 287-289, 296-299. Redemption, 1889 (52 & 53 Vict. c. 4), 287, 288. ■'Naturalization, 1870 (33 & 34 Vict. c. 14), 73. Naval Defence, 1889 (52 & 53 Vict. c. 8), 296. Discipline, 1884 (47 & 48 Vict. c. 39), 259, 275. Works, 1896 (59 & 60 Vict. c. 6), 299. Offences against the Person, 1828. (9 Geo. IV. c. 31), 51. Open Spaces, 1887 (50 & 51 Vict. c. 32), 260. Partnership, 1890 (53 & 54 Vict. c. 39), 128, 201, 202, 330. Patent Acts, 42. Patents, Designs, and Trade Marks, 1883 (46 & 47 Vict. c. 57), 276. 1850 (51 & 52 Vict. c. 50), 275. Paymaster-General, 1889 (52 & 53 Vict. c. 53), 293. Pensions (Colonial Service), 1887 (50 & 51 Vict. c. 13), 282. Commutation, 1870 (33 & 34 Vict. c. loi), 275. Petty Sessions (Ireland), 1851 (14 & 15 Vict. c. 93), 343. Police, 1890 (53 & 54 Vict. c. 45), 295. Poor Law, 1889 (52 & 53 Vict. c. 56), 304. 1897 (60 & 61 Vict. c. 29), 304. Amendment, 1834 (4 & 5 Will. IV. c. 76), 346. 1886 (29 & 30 Vict. c. 113), 338. Poor Relief (Ireland), 1838 (i & 2 Vict. c. 56), 347. Post OfiSce Acts, 116. (Land), 1881 (44 & 45 Vict. c. 20), 319, -r (Protection), 1884 (47 & 48 Vict. 0. 76), 324, 328. Sites, 1900 (63 & 64 Vict. c. covi), 215. Poynings' Act (10 Hen. VII. c. 22, I), 34. Prevention of Cruelty to Children, 1894 (57 & 58 Vict. c. 41), 324. Prison, 1865 (28 & 29 Vict. c. 126), 320. 1898 (61 & 62 Vict. c. 41), 280, 314, 330. Probate Duties (Scotland and Ireland), 1888 (51 & 52 Vict. c. 60), 295- Proclamations by the Crown, 1539 (31 Hen. VIII. c. 8), 36. Public Accounts and Charges, 1891 (54 & 55 Vict. c. 24), 285, 288, 293 294, 299. Authorities Protection, 1893 (56 & 57 Vict. c. 17), 115. Buildings Expenses, 1898 (61 & 62 Vict. c. 5), 289, 299 Health, 1875 (38 & 39 Vict. c. 55), 249, 262, 300-310, 314, 315, 317- 319, 321-323. 330, 358. 1890 (53 & 54 Vict. c. 59), 32, 92, 304, 314, 317. Acts, 114, 262, 263, 265, 304. TABLE OF STATUTES xxvii Public Health (London), 1891 (54 & 55 Vict. c. 76), 253, 265, 308, 315, 326, 327, 331. ■■ Libraries Acts, 114. Offices Fees, 1879 (42 & 43 Viot. c. 58), 283. Revenue and Consolidated Fund Charges, 1854 (17 & 18 Vict. c. 94), 291. Schools, 1868 (31 & 32 Vict. c. 118), 332. Works Loans, 1875 {38 & 39 Vict. c. 89), 296, 297, 299. 1879 (42 & 43 Vict. c. 77), 296. 1882 (45 & 46 Vict. c. 62), 299. 1889 (52 & 53 Vict. c. 71), 288. 1890 (53 & 54 Vict. c. 50), 298. 1892 (55 & 56 Vict. c. 61), 296. 1896 (59 & 60 Vict. c. 42), 296, 298. 1897 (60 & 61 Viot. c. 51), 296, 297, 298. 1898 (61 & 62 Vict. c. 54), 297, 298. 1899 (62 & 63 Vict. c. 31), 298. (Ireland), 1877 (40 & 41 Vict. c. 27), 296, 297. Purchase of Land (Ireland), 1891 (54 & 55 Vict. 0, 48), 94, 283, 287. Railway and Canal Traffic, 1888 (51 & 52 Vict. c. 25), 332. Railways (Ireland), 1851 (14 & 15 Vict. c. 70), 350. i860 (23 & 24 Vict. c. 97), 350. 1864 (27 & 28 Vict. c. 71), 350. Clauses, 1845 (8 & 9 Vict. c. 20), 261, 323. (Scotland), 1845 (8 & 9 Vict. c. 33), 261. Traverse, 1868 (31 & 32 Vict. c. 70), 350. Real Estate Charges, 1854 (17 & 18 Vict. c. 113), 257. 1867 (30 & 31 Vict. c. 69), 257. 1877 (40 & 41 Vict. c. 34), 257. Registration (Ireland), 1898 (61 & 62 Vict. c. 2), 265. Remedies against the Hundred, 1827 (7 & 8 Geo. IV. c. 31), 51. Repeal of Obsolete Statutes, 1856 (19 & 20 Vict. c. 64), 57. Representation of the People, 1832 (2 & 3 Will. IV. c. 45), 210, 211, 212. Royal Niger Company, 1899 (62 & 63 Vict. c. 43), 299. Rules Publication, 1893 (56 & 57 Vict. c. 66), 41, 310, 311, 312, 314, 358-363. Russian Dutch Loan, 1891 (54 & 55 Vict. c. 26), 299. Sale of Food and Drugs, 1875 (38 & 39 Vict. c. 63), 325. 1899 (62 & 63 Vict. 0. 51), 308, 326. Groods, 1893 (56 & 57 Vict. c. 71), 129, 201, 202. Salmon and Freshwater Fisheries Acts, 332. Savings Banks, 1891 (54 & 55 Vict. c. 21), 332. Sea Fisheries, 1883 (46 & 47 Vict. c. 22), 278, 325. Seal Fishery, 1891 (54 & 55 Vict. c. 19), 265. 1893 (56 & 57 Vict. c. 23), 265. 1894 (57 & 58 Vict. c. 2), 265. xxviii TABLE OF STATUTES Sequestration, 1871 (34 & 35 Vict. c. 45), 62. Settled Land Acts, 1882-1890, 33. Shannon, 1885 (48 & 49 Vict. c. 41), 310. Sheriffs Acts, 114. Short Titles, 1892 (55 & 56 Vict. c. 10), 75, 115, 272. 1896 (59 & 60 Vict. c. 14), 76, 115, 272, 274. Sinking Fund, 1875 (38 & 39 Vict. c. 45), 288, 289, 290. Slave Trade Acts, 114. Small Holdings, 1892 (55 & 56 Vict. c. 31), 300, 306, 322. Acquisition, 1899 (62 & 63 Vict. c. 44), 305, 306. Special Commission, 1888 (51 & 52 Vict. c. 35), 332. Stamps and Stamp Duties Acts, 114. Statute of Distributions, 80. Law Revision, 1861 (24 & 25 Vict. c. loi), 60, 62. 1863 (26 & 27 Vict. c. 125), 62. 1887 (50 & 51 Vict. c. 59), 70. 1888 (51 & 52 Vict. c. 3), 70. 1888 (No. 2) (51 & 52 Vict. c. 57), 70. 1890 (53 & 54 Vict. c. 33), 72. 1890 (No. 2) 53 & 54 Vict. 0. 51), 72. (Ireland), 1872 (35 & 36 Vict. c. 98), 34. and Civil Procedure, 1881 (44 & 45 Vict. c. 59), 62. 1883 (46 & 47 Vict. c. 49), 62. of Merton (20 Hen. Ill), 21. of Waste (20 Edw. I), 4. Statutes of 1433 (11 Hen. VI), 272. (Definition of Time), 1880 (43 & 44 Vict. c. 9), 330. Statutory Declarations, 1835 (5 "^ 6 Will. IV. c. 62), 349. Summary Jurisdiction, 1848 (11 & 12 Vict. c. 43), 261, 262, 322, 343. 1857 (20 & 21 Vict. c. 43), 323. 1879 (42 & 43 Vict. c. 49), 262, 322, 323, 343. 1884 (47 & 48 Vict. c. 43), 62. Acts, 262, 327. (Scotland), 1864 (27 & 28 Vict. c. 53), 343. Superannuation, 1859 (22 Vict. c. 26), 282. Supplemental War Loan, 1900 (63 & 64 Vict. c. 61), 287, 299. Supreme Court of Judicature, 1875 (38 & 39 Vict. c. 77), 282, 313. Acts, 115. (Ireland), 1877 (40 & 41 Vict. c. 57), 343. Survey (Great Britain) Acts, 350. (Ireland) Acts, 350. Technical Instruction, 1889 (52 & 53 Vict. c. 76), 301. 1891 (54 & 55 Vict. c. 4), 295, 301. Telegraph, 1892 (55 & 56 Vict. c. 59), 299. Thames Conservancy, 1894 (57 & 58 Vict. c. clxxxvii), 31. Embankment, 1862 (25 & 26 Vict. c. 93), 30. Tithe, 1891 (54 & 55 Vict. c. 8), 313. TABLE OF STATUTES xxix Titles to Land (Scotland), 1869 (32 & 33 Vict. c. 116), 275. Tramways, 1870 (33 & 34 Vict. c. 78), 309, 320. Treasons, Felonies, &c. (Repeal of Statutes), 1547 (i Edw. VI. c. 12), 36. Treasury Bills, 1877 (40 & 41 Vict. c. 2), 287, 288, 290. 1899 (63 Vict. c. 2, sess. 2 of 1899), 288. Instruments (Signature), 1849 (12 & 13 Vict. c. 89), 340. Truck Amendment, 1887 (50 & 51 Vict. c. 46), 325. Trustees Acts, 114. Turbary (Ireland), 1891 (54 & 55 Vict. c. 45), 300. Uganda Railway, 1896 (59 & 60 Vict. c. 38), 299. Universities of Oxford and Cambridge, 1877 (40 & 41 Vict. c. 48), 33a- Vagabonds, 1535 (27 Hen. VIII. c. 25), 78. Vexatious Indictments, 1859 (22 & 23 Vict. c. 17), 323. Wales and Berwick, 1746 (20 Geo. II. c. 42), 47, 275. War Loan, 1900 (63 & 64 Vict. c. 2), 287, 290, 299. Weights and Measures, 1889 (52 & 53 Vict. c. 21), 259, 331. Acts, 114. « Workmen's Compensation, 1897 (6° & 61 Vict. c. 37), 267. 1900 (63 & 64 Vict. c. 22), 216. TABLE OF CASES AsMon-under-Lyne Corporation v. Pugh, 279. Attorney-General v. G. E. Bailway Co., loi. V. Lamplugh, 268. Basket v. University of Cambridge, 48. Bellencontre, In re, 163. Beresford-Hope v. Lady Sandhurst, 337. Boulter v. Kent Justices, 344. Cambrian Railway Company's Scheme, In re, 248. Campbell v. Hall, 173. Charlton v. Ling, 337. Choa Choon Neo v. Spottiswoode, 171. Corporation of Portsmouth v. Smith, 281. Fielding v. Morley Corporation, 269. Gara v. Ciantar, 170. Hammersmith &o. Railway Co. v. Brand, 245. Heston and Isleworth Urban Council v. Grant, 357. Hopkins v. Mayor of Swansea, 315. Inglis V. Robertson, 246. Kruse v. Johnson, 314. Ong Chang Neo v. Yeap Cheah Neo, 171. Pasmore ». Oswaldtwistle Urban Council, 249. Pharmaceutical Society v. London and Provincial Supply Association, 337- Pound V. Plumstead Board of Works, 281. Powell V. Kempton Park Racecourse Co., 269. Pratt, Ex parte, 248. R. ». Jameson, 275. R. 0. Leicester Union, 308. R. V. Local Government Board, 245. Republic of Costa Rica v. Erlanger, 357. Roberts v. Potts, 357. TABLE OF CASES xxxi States of Jersey, In re, 275. Sutton V. Sutton, loi. Thomas v. Butters, 314. Tithe Act, 1891, In re, Roberts v. Potts, 357. Union Steamship Co. of New Zealand v. Melbourne Harbour Trust Commissioners, 245. White V. Morley, 314. Young V. Adams, 251. LEGISLATIVE METHODS AND FORMS CHAPTER I COMMON LAW AND STATUTE LAW The modem Englisli lawyer is apt to regard common law Ch. I. and statute law as hereditary foes. ' My Lady Common Rivalry- Law/ he would be inclined to say, 'regards with iealousy b^*'*^®®'' ' J ' o J J Common the rival who arrests and distorts her development, who plants Law and ugly and inartistic patches on her vesture, who trespasses Law. gradually and irresistibly on her domain.^ But the historian knows that the antagonism between these two branches or forms of the law is not so absolute as is thus suggested, that they are necessary complements of each other, that their rela- tions are those of co-operation rather than of opposition, and that this co-operation has probably been nowhere so complete as in our own country. The common law of a nation is part of the national life. The It is one aspect of the national life, of which other aspects ff the ' are language and religion. It is based on custom, on the Common custom of such groups as the family, the tribe, the manor, or the borough. As the groups coalesce the disparate customs become uniform. They are assimilated to each other by the contact of different groups, by the exigencies of commercial intercourse, by the influence of judicial decisions, and finally by the direct action of the legislature. These customs are observed in primitive times because they 2 LEGISLATIVE METHODS AND FORMS Ch. I. exist, without asking why or wherefore. It is safer to stand on the ancient ways. As man has acted in the past so he should act in the future. It is enough to know that if he does not, evils, supernatural and social, of an indefinite, and therefore of an alarming, character will probably await him. Should a question arise as to what action ought to be taken in a particular case, the knowledge is to be sought from an elder, from a chief, from a priest, or from a member of some other privileged class. It is he who can pronounce the doom or unravel the mysteries of procedure. He is, in the language of early Iceland, the ' sayer of the law.' The notion of enacted law, of law as a command, laid down by a secular 'sovereign,' and backed by physical force, is of later date. The early lawgiver ' found ' or ' declared,' i-ather than made, the law. He brought it down from Sinai. He reduced to writing, and revealed to the lay and profane public, what had previously been matter of esoteric knowledge. Cliarac- Among the causes which have produced the characteristic teristics of Englisli features of English law, as compared with the law of France Law. or Germany, three are prominent — the continuity of legisla- tion, the representative character of the legislative body, the strength of the central government. Its con- The English parliamentary mill has steadily and unceas- and uni- ingly ground out Acts of Parliament for more than six ormi y. }iuji(jj.g(j years — a period of continuous and unbroken legisla- tion to which no European country can show any parallel. During the whole of this period the legislature has, through its constitution, been kept in touch with the feelings, wishes, prejudices, needs, of the people at large. Our law has been made for us, not by a monarch's edicts, not by an official or a privileged class, but by elected representatives of the people. The most despotic of our kings — perhaps these more than others— have always given a popular character to their laws. Henry VIII may have said in his heart, 'Regia voluntas suprema lex/ but he took care not to say it aloud. He called the tune, but he did not ofEer to play a solo. The COMMON LAW AND STATUTE LAW 3 most arbitrary of his enactments were made by the authority Ch. I. of Lords and Commons, in Parliament assembled. And the law thus made has had effect throughout the realm. The strong hands of the first William and the second Henry welded England into a State, compact and centralized to an extent not reached in any other European country before the present century. The king's writ ran throughout the whole of the land. The king's judges visited all the chief towns. Liberties, franchises, and immunities there doubtless were, but the extent to which they derogated from the central authority was as nothing compared with the rights and powers of lords and cities on the Continent. Any important case could be brought up into the king's court. Thus the uniform and regular law administered by the royal courts gradually advanced upon and superseded the diversities and irregu- larities of local customs, leaving only a few manorial and burghal customs here and there as traces of the rank luxuri- ance of the earlier jungle. The process was, however, one of recognizing, cultivating, and developing, rather than of killing or driving out, local usages ; and the body of law so formed is thoroughly national in its character, and has proved to be eminently capable of growth and expansion. It is national in two senses : that of being home-grown National, ... T • 1^" what and home-made, and that of being m its application general senses. and not confined to particular localities, classes of persons, or groups of transactions. The grammar and groundwork of English law, as of the English language, have always remained English, although the law has freely absorbed and assimilated foreign elements. And the strength, compactness, and unity of the State have impressed uniformity on, and given generality of application to, the law. Where there are already several bodies of law struggling with each other for existence, the recognition of another does not present the appearance of an anomaly, or materially increase the incon- veniences of the existing state of things. But where a single national body of law holds the field the case is different. B a 4 LEGISLATIVE METHODS AND FORMS Ch. I. The law merchant, as developed by Lord Mansfield, with his special juries, has become part and parcel of the common law, and has not remained a thing apart. The canon law may be binding on clergymen by virtue of their ordination promises, but it does not, as such, bind the lay-folk; whilst the law of the land binds clergy and laity alike. There is no administrative law, and there are no special administrative courts, for the exclusive use of Government oflBcials. The legality of their proceedings is tested by the ordinary law and courts of the land. Even the privilege of peers has become a matter more of antiquarian curiosity than of practical importance. Early The early chapters of the English Statute Book present Law. some features of archaic legislation. They often declare rather than enact. They combine general enactments or declarations with particular decisions. ' The great virtue,' as has been well said by Mr. Jenks ^, ' of the English parlia- mentary scheme was that it enabled the exponents of all the customs of the nation to meet together and explain their grievances. If we glance at the roll of the English Parlia- ment we shall find that the great bulk of the petitions which are presented during the first two hundred years of its exis- tence are complaints of the breach of old customs, or requests for the confirmation of new customs, which evil-disposed persons will not observe. These petitions, we know, were the basis of the parliamentary legislation of the period. What is this but that Parliament was a law-declaring rather than a law-making body?' Of the combination of general with special remedies the Statute of Waste (ao Edward I) supplies a good illustration. It begins with a long story showing how Gawin Butler, having impleaded Walter de Hopton of waste made by him in certain lands, of which Gawin was tenant for life, died before obtaining judgement; how his brother and heir, William, who was under age and a ward of the king, impleaded Walter for the same waste; how ' Law and Politics, p. 63. COMMON LAW AND STATUTE LAW 5 Walter came before Gilbert Thornton and his companions Ch. I. assigned to hear the king^s pleas, and said that he ought not to answer William for waste made in the time of another; and how the justices differed in opinion. Thereupon the king, in his fixll Parliament, by his common council {de communi consilio) ^ proceeds to ordain that all heirs may have an action by writ of waste done in the time of their ancestors, and the king himself commands Gilbert Thornton and his companions to proceed and give judgement accordingly. The king is acting partly in his legislative capacity, partly in his judicial capacity, as having power to review and control the proceed- ings of the justices assigned to hear the pleas, and partly as guardian of an infant heir. Bentham has accustomed us to draw a broad distinction Petitions between statute law and judge-made law. But in a ease like King in that of William Butler the two forms of law obviously tend j^g'^i^' to slide into each other. And both forms of law were at that time practically made by the same persons. The king listened to the petitions which were presented to him in Parliament — petitions not unlike in their general character to the cahiers of grievances which, as revivals of ancient forms, preceded the French Revolution — and then, having considered the matter, with the help of his sages in the law, either did nothing or, through their agency, devised an appropriate remedy which might or might not correspond to the petition. It was not until the comparative decline of royal power under the Lancastrian dynasty that Parliament asserted its right of dictating the terms on which the laws for which it asked should be made, and marked the change in the character of legislation by making a significant addition to the legisla- tive formula. Henceforth laws are expressed to be made, not ^ ' It is important to remember that in the Middle Ages no distinc- tion was or could be drawn between " council " and " counsel " ; both are consilium ' (Maitland, ' Introduction ' to Memoranda de Parlidmento, p. Ixvii). Professor Haitian d's 'Introduction' to this volume of the Rolls' Series, which relates to the Parliament of 1305, contains the best description of the proceedings in an early English parliament. 6 LEGISLATIVE METHODS AND FORMS Ch. I. merely with the advice and consent, but hy the authority, of Parliament. Diver- As the legislative and judicial authorities became distinct parHa-"^ from each other, so statute law and common law tended to nientary fl^^ \^ separate channels. The legislation of the first and -^ 1 1 -xi judicial Edward, moulded by his judges, is largely concerned with makiii". private rights and the corresponding remedies, and settled the main lines on which English law, both public and private, was to proceed. But though Parliament never renounced or placed limits to its omnipotence, yet the later volumes of the Statute Book are far more concerned with public or administrative than with private law. Nine-tenths of each annual volume of statutes -"^ are concerned with what may be called administrative law ; and an analysis of the contents of the general Acts during the last four centuries would probably show a somewhat similar proportion. On the other hand, at least nine-tenths of the leading rules which make up the law of contract and tort are common law, and their origin and development are to be found in the pages of the Year Books and the Law Reports, and not of the Statute Book. But the intervention of the legislature in the domain of private law, though sparing and unsystematic, has been continuous. When the development of common law rules has failed to keep pace with changes in social and economical conditions, when a too servile adherence to precedents has forced those rules into a wrong groove, the legislature has never shrunk from stepping in and bringing the rules into conformity with the national will and national requirements. And the supremacy of Parliament has been unquestioned. The highest courts of justice in England have never claimed, like the parlements in France, the right to register, and for that purpose to review, the enactments of the legislature. There has been a natural tendency on the part of the judges to place a narrow construction on enactments which appeared ' i.e. of the public general Acts. COMMON LAW AND STATUTE LAW 7 to them to conflict with what they have regarded as f anda- Ch. i. mental principles of common law, to round off their angles, to adapt them to their environment by means of ingenious and sometimes far-fetched glosses; and the process has occasionally been carried to such an unwarrantable extent as to justify the expression of driving a coach and four through Acts of Parliament. But the action of the courts is to be judged in the light, not of a few petulant or captious criticisms by individual judges, but of their general course of conduct; and they have as a rule loyally adhered to their function of being, not critics of the legislature, but inter- preters of the law. If the most prominent feature of English legislation has The been its continuity, the most prominent feature of English ^f p^g"g*7 judge-made law has been the binding force of precedent, •i^'i*- This feature is a direct consequence of the centralized char- acter given to English constitutions by strong Norman and Angevin kings. The authority of the king, through his courts at Westminster, has for centuries been asserted effectively over all other courts in the kingdom. There has been nothing in England answering to the twelve provincial parlements of France, each claiming co-ordinate jurisdiction with ^eparlement of Paris, each having its ovin jurisprudence. If there is a question what the common law is, the practice and usage of Westminster has supplied the test. Under such a centralized and hierarchical system it is easier to assess the comparative weights of judicial precedents, and to recognize and strengthen their authority, than in a country with many judicial centres. The effect has been to enrich the substance of English law at the expense of its form. There is no body of law with so great a wealth of judicial precedents, drawn, not from imaginary cases, but from the facts of actual life, none in which there is so good a chance of finding a rule precisely fitting the case for which guidance is wanted. One feels as one studies it that it is the product, not of schoolmen or professors, but of hard-headed business men grappling with 8 LEGISLATIVE METHODS AND FORMS Ch. I. tough problems o£ actual life. On the other hand, this very ' ■ wealth of precedent, and the concrete form in which legal rules are presented, is apt to exercise a cramping influence on the legal mind. The knowledge that industrious search will probably unearth in time a case precisely in point produces a disinclination to rely on, or to recognize the importance of, principle. A legal textbook is apt to be an exhaustive but uncritical collection of decided cases. The advocate or the judge, when embarking on the sea of legal argument, is apt to grope his way round from headland to headland, instead of steering across by compass. Rules painfully built up by the competition of conflicting analogies, though more certain in their application, are less easy to express than rules deduced from general principles. Hence, though the leading principles of English law are easy and clear to the trained lawyer, the knowledge of law is more of an esoteric science in England than in the countries of written codes. A com- Useful light may be thrown on the characteristic features parison with of English law by a glance at the main stages in the develop- ment of law in such a country as Prance. The France of the old regime never developed a representative legislature, never established a Supreme Court for the whole country, never achieved unity of law. The States General came into existence at about the same time as the Enslish Parliament, a time at which representative institutions were breaking out all over Europe. But their development was arrested. Their activity was intermittent ; their representation of the country was incomplete ; they never became a true legislature. They did not sit continuously. They were only called together on occasions of emergency. For more than a century and a half (1614 — 1789) they were never summoned at all. They only represented the royal bailiwicks. In the States General of the fourteenth century Burgundy, Provence, and Brittany do not figure. In their functions with respect to legislation they stopped short at the earliest stage of the Enghsh France. COMMON LAW AND STATUTE LAW g Parliament. The king wanted money ; the people had Ch. I. grievances. They met and struck a bargain, in pursuance of which certain grievances were redressed and certain financial aids were granted. But if legislation was required, it was the king who made the law. The elected members of the States General were shackled by a mandat imperatif; they were limited agents, having no powers beyond those specifically entrusted to them by their constituents. Thus they could not shape the laws for which they asked. The power of making laws remained with the Crown, and was exercised by means of Ordinances [Ordonnances), which were drawn up by the king^'s chancellor. As the king^s will was not directly associated with or supported by the national will, the power of legislation was less freely exercised, and the laws made carried with them less authority, than in a country with a representative legislature. Nevertheless, the general Ordinances of the fourteenth to the seventeenth centuries were numerous, and some of them were of great importance ^. They were usually, but not always, made after sittings of the States General, and with reference to the doleances and cahiers presented at those sittings. The series begins with the Ordinance of Philip ' le Long' in 131 8. Other Ordinances followed in the troublous times of John and Charles VI. The great Ordinance of Montil les Tours, in the reign of Charles VII, embodied the programme of reforms which the Crown desired to effect at the close of the Hundred Years' War. The fifteenth century closed with two great Ordinances, based on the grievances presented by the States General df 1484, the Ordinance of July, 1493, ^°^ that of March, 1498 (Ordinance of Blois). The reign of Francis I was marked by the great Ordinance of Villers- Cotterets (1539). Then came the Ordinances which are associated with the name of the Chancellor L'Hopital, and of which the three most important, Orleans (1560), Roussillon (1563), and MouHns (1566), arose out of the sittings of * See Esmein, Cours l^lementaire d'Histoire du Droit Franfais, pp. 780, &c. lO LEGISLATIVE METHODS AND FORMS Ch. I. the States General at Orleans in 1560. The States General of 1576 led up to a new Ordinance of Blois in 1579. The series was closed by the Ordinance of 1629, drawn up by the Chancellor Michel de Marillac, and based on the grievances presented by the States General of 1614 and on the sugges- tions made by the subsequent assemblies of ' notables.-" These Ordinances dealt, among other things, with such subjects as the celebration of marriages (1579, 1629), the registration of births, deaths, and marriages (1539, 1579, 1639), the law of evidence (1566), the registration of gifts (i539j '^5^^)> and the limitation of entails (subsiiiuiiotis fidei-commissairen) (1560, 1566). But their most important work was in con- nexion with the procedure of the courts. They fixed the essential lines of civil and criminal procedure, and com- pletely transformed the character of criminal procedure, substituting for the accusatory, oral, formal, and public procedure of the feudal courts the inquisitorial, written, informal, and secret procedure of the Roman and canon law. This change was principally effected by the Ordinances of 1498 and 1539. Ordi- The Ordinances of Louis XIV and Louis XV are of Louis XIV * different character from those just described. The Ordi- and nances of the fourteenth to the seventeenth centuries answer Louis XV. to our amending Acts. The Ordinances of Louis XIV and Louis XV are codes. They were framed by learned com- missions. They presented in a complete, systematic, and detailed form the whole of a particular branch of the law. They extended to the whole of the country. They were the immediate predecessors of the existing French codes, and to a great extent they suggested the form and supplied the material of these codes. Colbert The Ordinances of Louis XIV and of Louis XV are D' Agues- associated with the names of a great financier and a great lawyer. The former were due to the suggestion of Colbert ; the latter were framed under the direction of the Chancellor D'Aguesseau. The most important of Colbert's Ordinances seau. COMMON LAW AND STATUTE LAW II were four in number: (i) that of 1667, containing a code Ch. i. of civil procedure ; (2) that of 1670, regulating criminal procedure; (3) the Ordonnance du Commerce of 1673, supple- mented by the Ordonnance de la Marine of 1681, and forming together a code of commerce for land and sea; (4) the Ordinance of 1669, constituting a code of forest law. The Chancellor D'Aguesseau aimed at nothing short of a complete code of French laWj but was unable to produce more than four fragments of the gigantic work which he had contem- plated. These were: (i) the Ordinance of 1731 on gifts; (a) that of 1735 on wills ; (3) that of 1747 on family settle- ments {substitiitions jidei-commissaires) ; (4) that of 1737 on forgery^. The first three of these Ordinances have been to a great extent embodied in the Code Civil ; the fourth has passed almost in its entirety into the existing codes of civil and criminal procedure. The Code du Commerce practically consists of Colbert's Ordonnances du Commerce and de la Marine, and this accounts for that code being to a great extent out of date and unsuited to modern commercial requirements. It has been said above that the Trench Ordinances, being Eegistra- based merely on the royal prerogative, did not carry with o°Ji-° them the same kind of authority as Acts of the English nances by Parliament. They required, as a condition of their validity, ment." registration by the judicial bodies called parlements. This registration was probably intended to be merely a mode of promulgation; but the parlement claimed, as incidental to it, the right of criticism and a discretionary power to refuse registration. And in the absence of any popular control over legislation, these claims obtained a certain amount of popular support. If the parlement persistently refused to register, the proper A ' Bed of ,,.,,, Justice.' move in the constitutional game was that the king snoula hold a ' bed of justice.' This meant that, by appearing in ' The subject dealt with by the Ordinance -was rather more compre- hensive. The title was Concernant le faux principal et le fawc incident et la reconnaissance des eeritures et signatures en matiere eriminelle. 12 LEGISLATIVE METHODS AND FORMS Ch. L person in his court, he superseded the action of his deputies, ~~~ and took upon himself the personal responsibility of requiring registration. But even then the courts had large powers of nuUifying an Ordinance by evading its provisions or even declining to give them effect. Michel de Marillac's Ordi- nance of 1639, which, though embodying useful reforms, did not meet with judicial approval, and was contemptuously christened the Code Michaud, was nullified in this manner. Under the strong rule of Louis XIV the powers of the parlemmt with respect to registration were taken away by a royal declaration. But they were revived in the Regency, and during that time and after the majority of Louis XV gave rise to frequent conflicts. A famous refusal to register in 1770 led to Maupeou's coup d'etat. The recalcitrant magistrates were deposed and exiled, and the parlement of Paris was suppressed. It was revived by Louis XVI, asserted its rights by vetoing Turgot's reforms in 1776, and had to be overridden by the holding of a ' bed of justice.-" Further conflicts followed. The last 'bed of justice' was held in 1788, and was followed by the summoning of the General Assembly, which ushered in the Revolution and swept away the old rigime. The ' Par- The parlement of Paris was developed out of the king's Paris. council in much the same way as the royal courts at West- minster. But it differed from them in two respects. On the one hand it continued, as we have seen, to claim a share of legislative authority for centuries after a definite line of distinction had been drawn between legislative and judicial functions in England. On the other hand, its judicial authority did not extend to the whole kingdom. It did not succeed in establishing supremacy over the provinces which the Capetian kings gradually added to their original royal domains. The seignorial jurisdictions of these provinces gradually crystallized into twelve provincial parlements ^. ' Toulouse, Grrenoble, Bordeaux, Dijon, Eouen, Aix, Bretagne, Pau, Metz, B63an9on, Douai, Nancy. COMMON LAW AND STATUTE LAW 13 Each of these parlements was sovereign in its own sphere and Ch. I. independent o£ the parlement of Paris; and each developed a jurisprudence of its own. Thus the chief factor which made for unity of law in England, the all-pervading influence of the courts at Westminster, was absent in France. The personal laws of the several Teutonic tribes had become Cus- territorial customs, which remained separate, although they Law in fell into two main groups, corresponding with the regions *^''^"'^'>- which became known as the pays de coutumes and the pays de droit earit, and were bounded approximately by the line separating the northern dialects of the langue d'o'il from the southern dialects of the langue d'oa^. In the pays de droit ecrit, which had been more completely and perma- nently Romanized, Roman law continued to be the common law, and in the course of the last three centuries of the old regime overwhelmed and destroyed the local customs which had grown up in particular places. The only branch of law which it did not succeed in displacing was the feudal law of rights relating to land. In the pays de coutumes, where Teutonic influences were stronger, the common law was custom. But it was a common law with great gaps, which had to be supplied from Roman law. Thus the law of contract was practically Roman. And under the influence of the jurists the principles of Roman law leavened the whole lump. The difiiculty of ascertaining the customary law, and the practical inconvenience which ensued, led to a general demand for an authoritative version. The French kings of the fifteenth and sixteenth centuries, particularly Charles VIII and Louis XII, made vigorous and systematic efforts to meet this demand. The course ordinarily adopted was this. The principal royal judge of the province was instructed to prepare a preliminary draft, with the aid of his subordinate judges and magistrates. Commissioners — two, three, or four in number — -were then appointed, and proceeded to hold what we should now call a local inquiry, at which representatives 1 Esmein, p. 718. 14 LEGISLATIVE METHODS AND FORMS Ch. I. of the three ' estates '—clergy, nobility, and commons — were present, and at which the articles of the draft were fully discussed. Articles on which there was a general agreement were at once promulgated by the commissioners in the name of the king. Points of difficulty were reserved for decision by the local parlement, and the full text, when finally settled, was formally registered by the parlement. In this way the customs of all the provinces had, by the end of the sixteenth century, been reduced to a written and authoritative form. Recon- The great work of digesting and promulgating local of con- customs exercised an important influence on the subsequent cu*'t'^ development of French law. In the first place, the methodical comparison of conflicting customs, the attempt to discover the common principles which underlay them, the systematic grouping and arrangement of the customs when found, supplied an intellectual gymnastic of the most valuable kind, and trained up generations of lawyers and jurists who were imbued with the principles required for successful codification. In the next place the customs thus formulated, though pur- porting to be, and being substantially, a reproduction and declaration of existing customs, yet were promulgated by, and to some extent derived their binding force from, the royal authority, and thus prepared the national mind for the exercise of a systematic control by the supreme legislative authority over the domain of private law ^. Thus the com- missions of the sixteenth century paved the way for the partial codification of the eighteenth and the complete codifi- cation of the nineteenth century. When the Convention and the first Napoleon took up their task of codification they ^ The so-called EtaUissements de Saint Louis supply a curious illustra- tion of the way in which royal authority was sometimes erroneously attached to a compilation of local customs. They were long believed to have been enacted by Louis IX, but they are now recognized as being the work of a private compiler, who wrote a little before 1272. Their contents are taken partly from a reglementmsiie for the provosti-y of Paris, partly from a custumal of Anjou and Maine, partly from an ancient custumal of Orleans {VDsctge d'Orlmois). See Viollet, ttahUssemmts de Saint Louis. COMMON LAW AND STATUTE LAW 15 found the ground prepared, the general lines of the edifice Ch. I. laid down, some portions of the building completed, and, ~~ above all, architects trained by generations of experience. Curiously enough, the only chapter of the new codes which had not come into even partial existence was the law of crimes. For the Penal Code there was no French precedent. Of the causes which made for codification in France at the The beginning of this century, the most important were probably t^co^ir three. In the first place, a strong sense of the practical evils fication in which arose from diversity of laws, coupled with a passionate desire for national unity. In the next place, the continuous efforts of many successive generations of statesmen and lawyers, all tending in the same direction, all aiming, consciously or unconsciously, at the same ideal. And lastly, the fact that the common law of part of the country was wholly, that of the other part largely, based on law which had already been systematized. The textbook of the obscure but immortal law-coach Gaius has supplied the ground plan for all modern European codes. In Germany, the history of law takes a different course ^. Develop- The political development of mediaeval Germany was blighted j^^jn by the shadow of the Roman Empire, and thwarted by the Ctermany. rivalry of the Pope. Germany had never had a common law. Each of the nations who were brought under the Frankish Empire had a law of its own, which was partially reduced to writing in the Leges Barharorum. There was a Salic law, a law of the Ribuarians, a law of the Ala- manni, a law of the Bavarians, a law of the Frisians, a law of the Saxons, and a law ' of the Angles and Werings, that is to say, of the Thuringians.^ A strong central legisla- ture or a strong central judicature might have welded the ' See Biunner'a essay on the Historical Foundations of German Law in Holtzendorff'a Encyclopddie dor Bechtswissenschaft ; Siegel, Deutsche EechtsgeschicMe, 3rd ed., Berlin, 1895 j the chapter on 'Legislation in Germany ' in Mr. Herbert Fisher's Mediaeval Empire ; and an interesting article by Dr. Schuster on ' The German Civil Code ' in the Law Quarterly Beview for January, 1896. l6 LEGISLATIVE METHODS AND FORMS Ch. L materials at its disposal into a common law for the Empire. " But neither of these existed in mediaeval Germany. The earliest 'Land-peaces' which supplied imperfect substitutes for criminal law, were treaties rather than laws. The ' Land- peaces ' of Frederick Barbarossa, and Frederick II's Peace of Mainz (1235) were real laws, but they never obtained general assent or observance. When the WeistHmer, the cases decided in the more important courts, came to be recorded, there was no central court into which they could be with- drawn, or which could mould them into unity. The disinte- grating influences of particularism prevailed, and Germany fell to pieces, legally as well as politically. By the side of, and stronger than, the weak Imperial law, there were laws for particular territories, places, and classes. There were territorial laws and town laws ; there were also manorial laws and ministerial laws, each with their separate courts. Eike von Repkow's Sachsenspiegel, or Mirror of Saxon Law (1330), attained great popularity in the fourteenth century, and, under a misconception like that applied to the ^tablisse- menis cle St. Louis, was attributed to Imperial authority. Under happier auspices, this attempt to unify Saxon law might have formed the basis of an attempt to unify German law on national lines. But its seed fell on barren ground. Beside the waning influence of the German law was the waxing influence of the Roman law. The introduction of Roman law into Germany was not the arbitrary act of any sovereign, but was one of the effects of the revival of classical learning. It was, however, materially aided by two causes. One was the political union of Germany and Northern Italy, which sent German students to the Italian universities, and brought them back imbued with the principles of Roman law. The other was the feeling that the German Emperor was the successor of the Roman Caesars, and that the fundamental law of his empire ought to be the law of Rome. The ' reception ' of Roman law as the common law of Germany is generally dated from the constitution of the COMMON LAW AND STATUTE LAW 17 Imperial Chamber Court [Reichskammergericht) in 1495. This Ch. 1. court was to be composed of judges^ of whom at least one-half were to be learned lawyers, i. e. lawyers learned in Roman law. The court was to adjudge ' according to the laws of the empire and the comfiaon law/ but with due regard to the customs and statutes of the territories; and the law of the empire and the common law was to consist of — 1. Roman law as it was to be found in Justinian's compilations ; 2. Canon law as laid down in the Corpus luris Canonici ; and 3. The Lombard lilri feudorum. Charles V emulated the legislation of his Hohenstauffen predecessors by promulgating his Constitutio Criminalis Caro- lina (i53!2), the well-known C. C. C, which has exercised a permanent influence on German criminal law. But this was the last expiring effort of Imperial legislation before German unity was finally shattered by the Thirty Years' War. When the movement for codification reached Germany in the latter half of the eighteenth century, it was by the governments of the several German States that it was taken up. Frederick II led the way by preparing, with the help of his Chancellor Cocceji and others, the draft of a genei-al Prussian code, which became law in 1794, under the title of Allgemeines Landreeht fur die Preussischen Staaten, and was followed by a Procedure Code in 1795. Austria had made some attempts to codify the law of crimes and procedure under Maria Theresa and Joseph II, and passed a partial Criminal Code in 1803 and a Civil Code in 1811. The tide of Napoleonic invasion brought the French codes into the Rhenish provinces, where they obtained a permanent footing. Thibaut (18 14) preached to Germans the duty of codifying their law on French lines, but Savigny, in his powerful counterblast, pointed out (and exaggerated) the imperfections of the French codes, and told his countrymen bluntly that l8 LEGISLATIVE METHODS AND FORMS Ch. I. they had not yet acquired either the knowledge of legal principles, or the experience, or the terminology, requisite for successful codification \ German codification slumbered until 1848, when it was awakened by the revival of the desire for national unity. A general law of bills of exchange {WecAsel- ordtiung) was discussed by representatives of all the German States, and promulgated as a law of the short-lived empire which followed the events of 1848. It was either confirmed or introduced as a separate State law by most of the German States between 1848 and 1850. In a similar way, the German Commercial Code was passed as a State law by most of the individual States, including Austria, between 1863 and 1866. During the same period Saxony codified its own law. The events of 1866 and of 1870 gave a powerful impulse to German codification. In 1871, the Bills of Exchange Code and the Commercial Code were re-enacted as Imperial laws. A Criminal Code which in 1870 had been passed for the North German Confederation also became a law of the Empire. Codes of Civil and Criminal Procedure, a code organizing the Courts throughout Germany on a uniform system, and establishing a Supreme Court of Appeal at Leipzig, and the Bankruptcy Code, came into force in 1879. Among the matters also dealt with by Imperial legislation were the laws relating to marriage and registration, to copy- right, and to patents and trade marks. But as to matters not regulated by Imperial legislation, the local law is still applic- able. 'Speaking broadly,' wrote Dr. Schuster in 1896, 'it may be stated that out of a population of 482 millions, 18 millions are governed by the Prussian code, 14 millions by the German common law, which remains the modernized law of Justinian, ']\ millions by French law, '2\ millions by Saxon law, and half a million by Scandinavian law. There are therefore six general systems of law, but only two out of these, the system of the French and that of the Saxon code, are exclusive systems ; the other systems are broken into by ' See below, p. 123. COMMON LAW AND STATUTE LAW 19 local laws and customs. . . . The result is that in every ease Ch. I. which arises in Germany^ the following questions must be asked : Is there any Imperial statute ? Is there any local modern statute? Is the subject affected by older legisla- tion ? What local law governs it ? ^ It was the confusion and the practical difBculties arising from this multiplicity and diversity of laws that gave force to the demand for the general Civil Codcj which has formed the coping-stone of German codification. The first Com- mission for preparing a draft Civil Code for the German Empire was appointed on July 2, 1874, and submitted its draft to the Imperial Chancellor towards the end of 1887. A second Commission was appointed in April, 1891^ and completed its work in June, 1895. On the basis of this second draft, a third draft was prepared by the Federal Council and submitted to the Reichstag at the beginning of 1896, and after being discussed and amended was passed into law on August 18, 1896. The Code came into operation on January i, 1900. It will have been seen that the impulses to codification in Germany were substantially the same as in France, but that, owing to a variety of causes, those impulses produced their effects at a later date. C 2 CHAPTER II THE ENGLISH STATUTE BOOK Ch. II. What is the English Statute Book ? What are its ■~ contents? Where are they to be found? How are they arranged? What facilities are there for ascertaining the enactments which have been made on a given subject, and the extent to which they are in force? The object of this chapter is to supply an answer to these questions. Meaning The word ' Statute •" is in ordinary English usage treated as '"statute." equivalent to Act of Parliament, and the EngHsh Statute Book might therefore be expected to include all Acts passed by the Parliament of England, or, since the union with Scotland and Ireland respectively, by the Parliament of the United Kingdom. But the Statute Book includes certain enactments which are not, in the strictest sense, Acts of Parliament, and excludes certain enactments which are. When Parliament was first taking shape as a legislative body, laws were made, not by the King, Lords, and Commons in Parliament assembled, but by the king, with the counsel and assent of the great men of the realm ; and the legislation of the reign of Henry III, and most of that of Edward I, was the work of assemblies to which the Commons were not summoned. The line between Royal Ordinances and Acts of Parliament is not easy to draw in the first stages of Parliamentary legislation, and some of the most important among the early enactments in the English Statute Book, including the Statute ' Quia Emptores,'' would not comply with the tests applied to a modern Act of Parliament. On THE ENGLISH STATUTE BOOK 21 the other hand, the ordinary editions of the ' Statutes at Ch. II. Large ^ ' exclude numerous Acts of Parliament as heing either local or private. The line between general and local, public and private, Acts has been drawn variously at different times, and will be referred to hereafter. For the present, the Statute Book will be treated as including only the public general statutes. The first edition of the English Statutes which was at Statutes once authoritative and collective was that commonly known Realm, as the Statutes of the Realm. The Parliament of 1800 (the Parliament which passed the Act of Union with Ireland) devoted much attention to the condition of the public records, and a Select Committee of the House of Commons presented a report on this subject on July 4, 1800. One of the conclusions arrived at in this report was that it was highly expedient for the honour of the nation and the benefit of all His Majesty's subjects that a complete and authoritative edition of all the statutes should be published. The report of the committee was followed by an address to the Crown, which led to the appointment of the first Record Com- missioners. The Commissioners at their first sitting resolved, 'That a complete, and authentic collection of the Statutes of the realm be prepared, including every law, as well those repealed or expired as those now in force, with a chronological list of them, and tables of their principal matters.' This resolution led to the preparation of the edition entitled, Statutes of the Realm, printed hy command of His Majesty King George III, in pursuance of an address from the House of Commons of Great Britain, from original records and authentic manuscripts. This edition is in nine folio volumes, of which the first was published in 1810, and the last in i8aa, and contains the statutes from Henry Ill's Provisions of Merton (1235-6) to the last year of the reign of Queen Anne (1713). Prefixed to these statutes, in the first volume, • Thia phrase appears to occur first in one of the Elizabethan editions of the statutes, that by Barker. 22 LEGISLATIVE METHODS AND FORMS Ch. IL a-re prints of certain ' charters of liberties/ including Magna Charta^ and an elaborate introduction, which, though superseded on some points by later researches, contains a large amount of interesting and valuable information on the history and condition of the English Statute Law. The introduction gives an account of the former printed collections, translations, and abridgements of the statutes, and describes the various plans which had been proposed for an authentic publication, or for a revision, of the statutes. Then, after a reference to the Charters, it describes the matters inserted in the collection of the statutes, their arrangement, the sources from which they were taken, and the methods adopted in searching for, transcribing, collating, noting, and printing the text of the statutes. The editors found much difficulty in determining what ought to be considered as statutes; and the conclusion at which they ultimately arrived was to include in their edition 'all such instruments as have been inserted in any general collection of statutes printed previously to the edition by Hawkins' (published 1735)5 'with the addition only of such matters of a public nature, purporting to be statutes, as were first introduced by him or by subsequent editors, and of such other new matters of the like nature as could be taken from sources of authority not to be controverted— namely. Statute Rolls, Inrollments of Acts, Exemplifications, Transcripts by Writ, and original Acts.' Hence the first volume contains not only royal enactments which are not, strictly speaking. Acts of Parlia- ment, but sundry documents, of which both the authenticity and the claim to be considered as enactments at all are open to much doubt 1. The Acts down to 1489, when the old practice of making up the Statute Roll ceased, are printed in double columns, one column containing the original Latin or Norman-French, the other the English translation, except 'See e.g. the remarks on the so-called Statute 'De Officio CoronatorU,' 4 Edw. I, in Pottock and Maitland, bk. II, chap, ix, par. 4 ; and Gross, Introdmiion to Select Coroners' RoUs (Selden Society), p. 35. THE ENGLISH STATUTE BOOK 23 that for the session of 1488-9 (4 Hen. VII) both columns Ch. Ii. are in English, one printed from the Parliamentary Roll, the other from a different version contained in a book formerly kept in the Court of Exchequer at Westminster. The edition was supplemented by two index volumes. The first of these, which was published in 1824, and was called an alphabetical index, contains an alphabetical list of the subjects dealt with by the statutes comprised in the nine volumes, giving, in connexion with each subject, a short reference to the enact- ments dealing with it. The other, which was published in 1828, though called a chronological index, also proceeds on the basis of an alphabetical list of subjects, but gives under each subject-heading a list in chronological order of the enactments relating to it. It is really an expanded version of the alphabetical index. In pursuance of a resolution passed by the Record Com- Scottish mission in 1807, a folio edition of the Scottish Statutes was prepared on lines resembling the English edition of the Statutes of the Realm. In order to give further time for consideration of the difficulties connected with the earlier statutes, it was arranged that the first volume should be postponed. Accordingly, vols. 2 to 1 1 , containing the statutes from 1424 to 1707, the date of the union with England, were brought out in the years 18 14 to 1824, whilst the first volume, containing documents of earlier date, did not appear until 1844. The Record Commission did not bring out any edition of Irisli the Irish statutes, but an edition of them in twenty folio volumes had been previously printed by the King's Printer- General in Ireland, in pursuance of an order made by Lord Halifax in 1762, when he was Lord- Lieutenant of Ireland. For the period since the reign of Queen Anne no collective Editions edition of the English Statutes, containing repealed as well at Large as unrepealed matter, has been published by authority. Of ^?^' P'*"° The price of each volume of the Annual Statutes in the edition published by authority is 3s. The statutes published by the Council of Law Reporting are also printed in the same form by the Stationery Office. - See below, pp. 49, 64. THE ENGLISH STATUTE BOOK 27 The three groups are distinguished by different modes of Ch. II. numbering. Public General Acts have their chapters in Arabic characters (63 & 63 Vict., No. 10) ; Local Acts in small Roman numerals (6a & 6^ Vict., No. x) ; Private Acts (if printed) in italicized Arabic figures (6a & 63 Vict., No. 10). The Local Acts of each session, including those which, though passed as public Acts, are treated as local, and on that ground excluded from the category of Public General Acts, are printed sessionally in separate volumes. Owing to their bulk and number, the local Acts of each session cannot usually be in- eluded in a single volume. Private Acts are not always printed; but a list of those passed in each session will be found in the ' Table of the Local and Private Acts arranged in Classes,' under the heading ' Personal Affairs.'' The term ' Private Act ' in its narrowest sense means an Distine- Act belonging to the third of the groups mentioned above, between Acts of this class are passed for purely personal objects, such ^^^^^ as the extension of powers to deal with land subject to a Private particular settlement, and each of them contains a provision that it is not to be deemed public. They are now few in number, the necessity for most of them having been super- seded by general legislation, such as that which has extended the powers of tenants for life to deal with land. In ordinary usage, however, the term ' Private Act ' is often employed in a wider sense, as including all measures introduced as private Bills. The former distinction merely affects the mode of promulgation and the arrangement of the contents of the Statute Book 1. A public Bill when passed may eventually be promulgated and printed as a local Act. But the distinction between public and private Bills is, as will be seen hereafter, much more important. Every local Act is a public general Act. Before 1851 an enactment to this effect was contained in each local Act ; but these special enactments were superseded in 1851 by a pro- vision in Lord Brougham's Act 2, which is now embodied in ' See below, p. 48. » 13 & H Vict. c. ai. 28 LEGISLATIVE METHODS AND FORMS Ch. XL the Interpretation Act, 1889 ^ Before 1798 the only dis- tinetion in the Statute Book was between public and private Acts. The latter class included not only Acts of a personal character, such as Estate Acts, Divorce Acts, and Naturalization Acts, but also certain Acts which would be now treated as local — e. g. Drainage Acts and Inelosure Acts. But the great majority of the Acts now classed as local were then included among the public Acts. From 1798 to 1868 the Acts printed in the Statute Book were divided into public general Acts and local and personal Acts, according as they originated as public or private Bills. But since 1868, Acts which originate as public Bills, but are of a local character, are not promul- gated as public Acts, and are printed among the local Acts. Distinc- The distinction between public and private Bills is, as has between been said, much more important. A private Bill is a measure Public for tlie interest of some person or class of persons, whether an Private individual, a coi-poration, or the inhabitants of a county, town, parish, or other locality, and originates on the petition of the person or persons interested. A public Bill is introduced as a measure of public policy in which the whole community is interested, and originates on the motion of some member of the House in which the Bill is introduced. The object of a private Bill is, in fact, to obtain a privi- legium 2, — that is to say, an exception from the general law, or a provision for something which cannot be obtained by means of the general law, whether that general law is con- tained in a statute or is Common Law. Private and public Bills differ not merely in the mode of origination, but in the mode of procedure for passing them. In the case of a private Bill the rules of the Standing Orders of the two Houses as to the giving of certain notices and the ' 52 & 53 Vict. 0. 63, 3. 9. See below, p. 339. " As to the origin and early history of private Bills, see the interesting evidence given by Sir Francis Palgrave before the Select Committee on Public Petitions in 1833 (H. C. Papers, 1833, vol. xii. p. 171). THE ENGLISH STATUTE BOOK 29 deposit of Bills before a certain date must be complied with, ch. II. in order that all persons may have notice if their private interests are affected. Each Bill is considered by a Select Committee of each House, who hear the promoters and opponents by counsel, consider their private interests, and determine, in a quasi-judicial capacity, whether the promoters of the Bill have justified their request for a privilegium, and whether private interests are properly protected. The officers of the House and the different Government departments watch private Bills from the point of view of the public interest, and call the attention of the Select Committee to matters affecting that interest. The House of Commons also appoint annually a special committee on Police and Sanitary Regulation Bills, for the purpose of guarding against the insertion of enactments inconsistent with the general law. Subject to these provisions for the protection of public interests, the proceedings on a private Bill resemble more closely private litigation between the parties interested than a discussion on questions of public policy, though, as each Bill has to go through the same stages in the whole House as a public Bill, there is an opportunity for members to raise at those stages questions of public policy in respect of the Bill. Public Bills are considered mainly from the side of public policy. But when a public Bill affects private interests in such a manner that if it were a private Bill the Standing Orders would require notices to be given, it is called a hybrid Bill, and the practice is to refer the Bill to the examiners of Standing Orders like a private Bill, and to make the Bill proceed in nearly the same way as if it were a private Bill. For instance, it is considered by a select committee in a quasi- judicial capacity, and counsel are heard for and against it. Bills relating to Crown property must, if promoted by the Crown, be dealt with in this way, because the Crown cannot petition Parliament. 30 LEGISLATIVE METHODS AND FORMS Ch. II. The boundary line between public Bills and private Bills, and between the private interests which require a public Bill to be treated as a hybrid Bill and those which do not, is very narrow, and has fluctuated from time to time. Bills relating to particular localities only are, as a rule, treated as private Bills. But a Sunday Closing Bill for Wales and another for Cornwall were held to be rightly introduced as public Bills. Measures relating to the whole of London are frequently, perhaps usually, dealt with as public Bills, 'the large area, the number of parishes, the vast population, and the variety of interests concerned constituting them measures of public policy rather than of local interest ^.' But the practice has not been uniform. The Metropolis Management Act, 1855, which was a public Act, gave certain powers to the Metro- politan Board of Works to borrow money. Other powers of borrowing money were given to that Board, partly by public Acts, like the Thames Embankment Act, 1862, partly by local Acts, dealing with local improvements. In 1869 a general Act regulated the Board^s power of borrowing, and from that date till 1888 their powers of borrowing were given annually by a public Act. In 1889 the Standing Orders were altered, and the London County Council now have an annual Bill enabling them to borrow money. In most towns the buildings and streets are regulated partly by local Acts and partly by the Public Health Acts. In London they have been regulated partly by local Acts — e.g. the Acts relating to the city, or Michaelangelo Taylor's Act ^. But in 1844, and subsequently, they have been regulated by public Acts. In the session of 1 894 a measure for consolidating the building law in London outside the city was introduced and passed as a private Bill, which became law as the London Building Act, 1894^- The Thames Conservancy was constituted partly by local Acts, partly by public Acts. In 1894 a Bill repealing all ' May's Parliamentary Practice, loth ed., p. 634. 2 50 Geo. III. u. Ixxv. ' 57 & 58 Viot. c. cexiii. THE ENGLISH STATUTE BOOK 31 these Acts and reconstituting the Conservancy was passed as Ch. II. a private Bill, and became a local Act ^. The general rule that where legislation deals with one particular locality only it ought to proceed by way of private Bill, is based on the view that the locality is entitled to be heard quasi- judicially on the provisions of the enactment. For this reason it is unusual to insert in a public Bill a clause dealing with a particular locality. Where, however, special provision for a particular locality has to be made, the rule is sometimes evaded by not naming the locality, but so stating the circumstances that the provision can only apply to the particular locality in question. In some cases private Bills have been defeated by a reso- lution of the House that they ought to be dealt with as public Bills. Instances are supplied by the Manchester Education Bill, 1854, the Liverpool Licensing Bill, 1865, and the Keble College Bill, 1888. The Presbyterian Church of Ireland Bill, 1871, was introduced as a private Bill, but was withdrawn in consequence of an objection that the matter ought to be dealt with by public legislation ; and a public Bill, which became law as the Irish Presbyterian Church Act, 1871^ took its place. A consideration of the different precedents and varying practice shows that the boundary line between public and private Bills depends not merely on whether the Bill comes within the Standing Orders relating to private Bills, or does or does not affect a particular locality only, but also on ques- tions of policy, on the circumstances and political questions of the time, and on the general character of the Bill. On the one hand, it would not be right that a measure required by the general public interest on general grounds of public policy should not be passed merely because it is objected to by particular persons or localities whom it would affect. On the other hand, it would not be right that a particular person or locality should be allowed to obtain any privilegium incon- ' 57 & 58 Vict. c. clxxxvii. ^ 34 & 35 Vict. u. 24. 32 LEGISLATIVE METHODS AND FORMS Ch. II. sistent with what is considered at the time to be true public policy. In some cases it may be convenient that a municipality should be authorized by private Bill to try a particular ex- periment which is not inconsistent with general public policy. If the experiment is successful, it may be afterwards adopted as a matter of general legislation. Again, there may be cases where the general law will not meet the circumstances of a particular locality. Thus, a law suitable to the great majority of towns may be found inapplicable to the large populations of such places as Liverpool or Glasgow. It seems therefore impossible to lay down a hard and fast rule as to the subjects which should and which should not be dealt with by private Bills. Certain principles should be observed, such as that a private Bill should not, except for very strong reasons, deal with certain subjects, including the public revenue, the administration of justice, or the consti- tution or election of local governing bodies. But the boundary line will vary, and ought to vary, from time to time. Cir- cumstances and the requirements of localities change. Old needs pass away and new needs arise. If experiments by private Bills had not been allowed, some of our public legis- lation would not have taken place. Of course these experi- ments ought to be carefully watched, and probably there ought to be some special machinery, such as the Select Committee now appointed annually by the House of Commons on Police and Sanitary Regulation Bills, for the purpose of determining the cases in which they should be allowed. As has been said above, experiments in private legislation have often led to public legislation. A good instance is supplied by the Public Health Acts Amendment Act, 1890', which enables any sanitary authority to adopt various enact- ments which had been frequently embodied in measures intro- duced as private Bills. A very large number of matters which used to be dealt with by private legislation can now be dealt with under the ' 53 & 54 Vict. u. 59. THE ENGLISH STATUTE BOOK 33 general law. Thus^ the Divorce and Naturalization Acts, Ch. II. which were so common in the last century, are now super- seded in most cases by general enactments. Most of the Estate Acts have been made unnecessary by such Acts as the Settled Land Acts, i88a to 1890. Amendments of the general company law have removed the necessity for much special legislation about companies, and many matters for which private Bills were formerly required can now be dealt with by the machinery of Provisional Orders. The Bills to confirm the numerous Provisional Orders now Pro- made, under statutory authority, by the Local Government order^ Board, the Board of Trade, and other Government depart- *^°"^^^5- ' ^ tion Bills. ments, are introduced as public Bills by the Minister in charge of the department which made the order, are referred to the examiners for consideration, and if any of the orders scheduled to a Bill for confirmation is opposed, the Bill is treated as a private Bill for the purpose of investigation in committee ^. Acts to confirm Provisional Orders, and other Acts which. Public though introduced as public Bills, are considered to be of a jogai local character, are, as a rule, included in the group of local character. Acts, but distinguished by having the letter ' P ' prefixed to their number in the group. To this class belong the Acts which are occasionally passed to remove doubts as to the validity of marriages celebrated in particular places of worship. A chronological table and index of the statutes is published Chrono- annually under the direction of the Statute Law Committee. Table and In its latest form this work consists of two volumes, which J^^^^ °^ are arranged for combined use. The first volume contains a chronological table of all the statutes, showing total or partial repeals ; the second contains an index to the subject- matter of the statutes in force. The chronological table is based on the edition of the Record Commission, known as the Statutes of the Realm, as far as that edition extends — namely, to the end of the reign of Queen Anne (1713)- Thence- ' standing Orders, House of Commons ; Clifford, vol. i p. 270. ILBBKT D 34 LEGISLATIVE METHODS AND FORMS Ch. II. forward it follows Ruff head's edition (by Serjeant Runnington, 1786), so far as it extends — namely, to the end of the session 25 Geo. Ill, 1785. From that date, it is believed, all editions are alike. The following extract from the preface to the fifteenth edition shows the principle on which particular classes of statutes have been included in or excluded from the chronological table : — ' The chronological table covers the whole period between the passing of the earliest statute of the Parliament of England (1235) and the end of the fifth session of the Twenty-sixth Parliament of the United Kingdom of Great Britain and Ireland — namely, the session 62 & 63 Vict., 1899. Ante-Union Acts of the Parliaments of Scotland and Ireland are not comprised in the table. Acts of the Parliament of England extended to Ireland by Poynings' Act, 10 Hen. VII. c. 22 (I), are, in relation to Ireland, treated as Ante- Union Acts of the Parliament of Ireland, with the exception that the repeals of such enactments by the Statute Law Revision (Ireland) Act, 1872, are noted. ' The chronological table comprises all Acts printed in the Statutes of the Realm, and after the end of that edition all Acts printed by the King's or Queen's Printers as public or as public general. ' Many of these Acts, however, cannot be regarded as public Acts, affecting the community generally, being in their nature special or private Acts, relating to particular persons or places or to private concerns. Acts of this kind are distinguished by the italic entries Local, Personal, Private, in the second column of the table (except in a few cases in which they are shown to be not in force); and the table does not profess to show repeals ajffecting these Acts. Further means of reference to the pro- visions of these Acts is afforded by the indexes to the local and personal Acts compiled by order of the Select Committee on the Library of the House of Lords, which cover the period 18 10 to 1887, and by the classified lists of local Acts annexed to the annual volumes of the statutes. The second volume of the chronological table gives, as regards all Acts of a public nature, wholly or partly in force, the titles of subject-matters under which they are to be found in the 'Index to the Statutes in Force'; and as regards Acts spent or repealed, gives in italic type either the short title of the repealed Act or a general indica- tion of its subject-matter.' The index is framed in accordance with instructions pre- pared by Lord Thring in 1876. It is followed by a series of appendices containing references to various Acts, mainly of THE ENGLISH STATUTE BOOK 35 a local character, which were printed among the public or Ch. II. public general Acts, but which, for various reasons, it has been considered undesirable to index in detail. Local and private Acts have not been indexed in the same Lists of manner or to the same extent as public general Acts. Until Private 1798 local Acts were not numbered or printed separately from general Acts. It is estimated that the number of Acts of a local, personal, or private character passed before the present century is upwards of 11,000, and that upwards of a 1,000 Acts of a similar character have been passed during the present century. In 1867 an index, or rather a classified list, of statutes passed between 1801 and 1865, was published by order of the House of Lords, but is now out of print. It was divided into two parts, the first containing public general Acts, and the second local and private Acts, The second part was supplemented by additional volumes published in 1878 and 1890. But this index has now been superseded by a classified list of all the local and private Acts (including Provisional Orders confirmed by Local Acts) from 1801 to 1899, which was prepared under the direction of the Statute Law Committee, and was published in 1900. D 3 CHAPTER III SUBORDINATE LEGISLATION Ch. III. In the earlier stages of Parliamentary legislation, the border line between laws made by the Crown in the exercise of the Royal prerogative and laws made by Parliament with the assent of the Crown, between Charters, Ordinances and Orders in Council on the one hand, and Acts of Parliament on the other, was not definitely drawn ^. In the year i539^ Henry VIII made a bold and interesting attempt to take the power of legislating by proclamation, an attempt which, if it had been successfully maintained, would have introduced the system of ' administrative law ' prevailing in Continental countries. But his Statute of Proclamations was repealed in the reign of Edward VI ^, and in 1610* a protest of the judges ' established the modern doctrine that royal proclama- tions have in no sense the force of law j they serve to call the attention of the public to the law, but they cannot of them- selves impose upon any man any legal obligation or duty not imposed by Act of Parliaments.^ Thus it was gradually recognized that a law made by the authority of Parliament could not be altered except by the same authority. And, as '■ See Introduction to Statutes 0/ the Realm, pp. xxxi, xxxii ; Stubbs, il. 615-619. 2 31 Henry VIII. 0. 8. See Stubbs, ii. 619 ; Anson, i. a6o. ° By I Edw. VI. e. 12, o. 4. • Coke, Beports, xii. 74 ; Gardiner, History of England, ii. 104. » Dicey, Law qf the Constitution, p. 51. Mr. Dicey notes that Lord Chatham's proclamation of 1766 prohibiting the exportation of wheat was probably the last attempt of the Crown to make law by force of proclamation. SUBORDINATE LEGISLATION 37 the number of Acts and of the subjects with which they Ch- HI- dealt increased, the legislative sphere of the royal prerogative was proportionately diminished, and has now been reduced within very narrow dimensions^. On the other handj the increasing complexity of modem administration, and the increasing difficulty of passing compli- cated measures through the ordeal of parliamentary discussion, . has led to an increase in the practice of delegating legislative powers to executive authorities. 'When an English or an American legislator drafts a statute,' says Mr. Lowell in his interesting book on Govern- ments and Parties in Continental Europe'^, 'he tries to cover all questions that can possibly arise. He goes into details and describes minutely the operation of the Act, in order that every conceivable case may be expressly and distinctly pro- vided for. He does this because there is no one who has power to remedy defects that may subsequently appear. If the law is vague or obscure, it can receive an authoritative interpretation only from the courts by the slow process of litigation. If it is incomplete, it must remain so until amended by a subsequent enactment.^ This description, so far as it relates to English Acts, is less accurate than it would have been some years ago. The tendency of modern parliamentary legislation in England has been in the direction of placing in the body of an Act merely a few broad general rules or statements of principles, and relegating details either to schedules or to statutory rules. A schedule is merely part of an Act, and, unless it is made alterable by executive authority, the question whether a pro- vision or set of provisions should appear in the body of an Act or in a schedule is a question of form and parliamentary 1 Certain Orders in Council and Regulations, such as the King's Regulations with respect to the Army and Navy, are still made in the exercise of the royal prerogative and not under any statutory authority. The Crown has also power to legislate by Order in Council for a newly conquered country. See Dicey, Law of the Constitution, p. 51- « i. 44- 38 LEGISLATIVE METHODS AND FORMS Ch. III. practice, and will be dealt with as such in Chapter XI, which relates to the form and arrangement o£ Acts. But the question whether a particular rule ought to be embodied in an Act or left to be made by a subordinate authority, the question whether, to what extent, and under what safeguards and restrictions, the exercise of legislative power should be delegated, is a question of principle. In Continental countries, as is well known, the delegation of legislative powers is far more extensively exercised than in England or in English-speaking countries. In France, statutes are often couched in general terms and enunciate a principle which the executive is to carry out in detail. ' Sometimes the President of the Republic is expressly given power to make regulations, but even without any special authority he has a general power to make them for the purpose of completing the statutes, by virtue of his general duty to execute the law ^.' Power to make similar regulations is often conferred on ministers or prefects, and on mayors. The regulations thus made are described in France as secondary legislation. The President's ordinances are called decrets, and the regulations issued by other officials are distinguished as arretes. In Italy the power of the executive officials to make regula- tions is even more extensively used. The constitution declares that 'the king makes the decrees and regulations necessary for the execution of the laws without suspending their observ- ance or dispensing with them.' But the interpretation put upon this provision is so broad that the Government is practically allowed to suspend a law subject to responsibility to Parliament, and even to make temporary laws which are submitted to Parliament later. And Parliament uses very freely the power of delegating legislative power to the Ministers. ' In the case of the recent Criminal Code, for example, the final text was never submitted to the Chambers ' See Lowell, i. 45, and the authorities there quoted. SUBORDINATE LEGISLATION 39 at allj but, after the subject had been sufficiently debated, the Ch. ill. Government was authorized to make a complete draft of the code, and then to enact it by royal decrees, harmonizing it with itself and with other statutes, and taking into account the views expressed by the Chambers. The same was true of the electoral law of 1883, of the recent laws an local government and on the Council of State, and of many other enactments^.'' Without express power for the purpose, the ministers, prefects, syndics, or other officials are in the habit of making decrees on subjects of minor importance. Such extensive delegation of legislative powers would not be tolerated in England. 'Every Anglo-Saxon feels that a power so indefinite ' (as that of making regulations) ' is in its nature arbitrary, and ought not to be extended any farther than is absolutely necessary ^.' Englishmen have a deep-seated distrust of official discretion, a deep-seated scepticism about bureaucratic wisdom. The ordinary Englishman, as repre- sented by the average member of Parliament, would find much difficulty in assenting to the proposition laid down by an eminent author that ' the substance no less than the form of the law would, it is probable, be a good deal improved if the executive government of England could, like that of France, by means of decrees, ordinances, or proclamations having the force of law, work out the detailed application of the general principles embodied in the Acts of the legislature '^' If his liberty of action is to be subjected to restraint, he prefers that the restraint should be imposed by laws which have been made after public discussion in a representative assembly. He will readily admit that the application of a different principle is in accordance with the habits and traditions of Conti- nental countries, and is necessary in countries like India, but he dislikes its application at home. Therefore, although he acknowledges the impossibility of providing for every detail ' Lowell, i. 165. " Lowell, i. 44. ' Dicey, Law of the Constitution, p. 50. 40 LEGISLATIVE METHODS AND FORMS Ch. III. in an Act of Parliament, and the consequent necessity of leaving minor matters to be regulated by statutory rules or by executive discretion, he scrutinizes with a jealous eye provisions which delegate the power to make such rules, or which leave room for the exercise of such discretion, and insists that they should be carefully expressed and hmited, and be hedged round with due safeguards against abuse. It may indeed be said that this jealousy is a survival from an older state of things, and that in a country like modern England public opinion is the most effectual, and is usually a sufficient, safeguard against any serious abuse of statutory powers. It may also be doubted whether the control of Parhament over the details of legisla- tion and administration is less effective in the present day than it was in days when Acts of Parliament were more minute in their provisions. For instance, a reference to Hansard will show that within comparatively recent times the number of the members who took part in a legislative debate, and the number of the amendments moved, was far smaller than it is now, and that there was a much greater readiness to take long and complicated measures on trust, and to accept them without examination of details. These considerations are of weight, and supply a sound argument for justifying the modern practice of delegating power to legislate on matters of minor importance. It is indeed the increased vigilance and intelligence of members and their constituents which has increased the difficulty of passing legislative measures through Parliament, and has rendered necessary the adoption of various expedients for shortening and simplifying their form, expedients of which the delegation of legislative powers is among the most legitimate. But, unless the temper of Parliament should materially change, attempts to give delegated powers in unduly wide terms, or to extend them beyond matters of minor importance, or to strain their exercise, would produce a reaction which would have a mischievous and embarrassing effect on the form of parliamentary legislation. If, however, the delegation of legislative powers is kept within SUBORDINATE LEGISLATION 41 due limits and accompanied by due safeguards, it facilitates Ch. III. both discussion and administration. It facilitates discussion because it concentrates attention on the main questions, and prevents waste of time on minor and subordinate issues. It facilitates administration because every administrative change is in the nature of an experiment. The precise mode in which the change will work out, the exact means by which its object can best be effected, cannot be determined with certainty beforehand, and consequently the machinery must be made elastic. This elasticity can best be given by allowing the details to be worked out on the general lines laid down by the supreme legislature, either by statutory rules or by official practice, subject to the check of public opinion and questions in Parliament. As has been said, public opinion is, in a country like modern England, a very powerful safeguard against any serious abuse of statutory powers. But Parliament not unfrequently re- serves to itself some kind of control over the powers which it has delegated ^. The rules and orders made under those powers are often required to be laid before both Houses of Parliament. Sometimes there is an express power of disallowance by resolution of either House. Sometimes a draft of the rules or orders is required to be laid before Parliament, and they are not to come into operation until a specified period has elapsed after they have been so laid. But this last requirement would often involve serious and inconvenient delay. Perhaps the most practical of the statutory safeguards against hasty and in- sufficiently considered legislation under delegated powers is the obligation imposed by the Rules Publication Act, 1893^, to publish a preliminary draft for criticism. This obligation applies, subject to some very important exceptions, to all rules which are required by statute to be laid before Parliament. It is naturally distasteful to Government departments, and is unnecessary and may be inexpedient in the case of rules which merely affect the internal arrangements of a department. ' See p. 310. ^ 56 & 57 Vict. c. 66, printed below, p. 358. 42 LEGISLATIVE METHODS AND FORMS Ch. III. But in this case a statutory power to make rules is rarely required. When the rules affect any important class or section of the public, the obligation corresponds to the conditions usually attached to the making of local by-laws, and may be justified on the same grounds. The objection that the law embodied in statutory rules is less known and less easy to find than the law embodied in Acts of Parliament was, until recently, substantial and serious. But under arrangements which came into force in 1890 the statutory rules of each year are now published in a form cor- responding to that of the annual statutes ; an index to them, in a form corresponding to the index to the statutes, is periodically revised and published ; and the rules of the years preceding 1890 have been collected and published under the title of The Statutory Rules and Orders Revised, in a form re- sembling that of the Revised "Statutes. The volumes thus published illustrate the extent and im- portance of the legislation effected under delegated powers. For instance, the volume containing the Statutory Rules and Orders for 1890 runs to nearly 1,100 pages, and contains (among other things) a set of bankruptcy rules, a set of rules for Civil Bill Courts in Ireland, a set of rules for the winding up of companies, the revised code under the Elementary Education Acts, important Orders in Council under the Foreign Jurisdiction Acts, a long set of rules under the Lunacy Act, 1890, and sundry rules under the Patent Acts and Merchant Shipping Acts. Under the Judicature Acts and the County Court Acts the duty of framing what in other countries would be called codes of civil procedure has devolved on subordinate legislative authorities, known as Rules Committees, and con- sisting of judges and other officials and representatives of the legal profession. CHAPTEE IV STAGES IN THE IMPROVEMENT OF THE ENGLISH STATUTE LAW The existing condition of the English Statute Book has Ch. IV. been described in Chapter II. The object of the retro- obiect of spect embodied in the present chapter is to give some account '^^^P^^'^- of the attempts which have been made in the past to improve the form of the EngHsh Statute Law. How far have these attempts been successful, how far abortive? The experience of the past may throw some useful light in the direction in which attempts at improvement are likely to succeed in the future. In the year 1551 that precocious monarch King Edward VI, Proposals then a boy of fourteen, wrote as follows in his Discourse on King Ed- tAe Beformation of Abuses : ' I have showed my opinion ^^''^ heretofore what statutes I think most necessary to be enacted this Session. Nevertheless, I would 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 under- stand them; which thing shall much help to advance the profit of the Commonwealth^.^ But this, observes Bishop Burnet ^, was too great a design to be set on foot or finished under an infant king. The subject of the consolidation and expurgation of the Proceed- statutes was brought forward from time to time in the reign Queen Eizabeth, ' Literary Remains of Edward VI, ii. 486. See Burnet, History of Beforma- tion, ii. 272. ' History of Eeformation, ii. 181. 44 LEGISLATIVE METHODS AND FORMS Ch. IV. of Queen Elizabeth ^. The Statute of Labourers of 1552 " " (5 Eliz. c. 4) is one of the earliest examples of Consolidation Acts, and its preamble expresses in the language of the time the reasons which made consolidation expedient. ' Althoughe there remayne and stands in force pntly a greate nomber of Actes and Statutes concerning the reteyning departing wages and orders of Apprentices Servantes and Labourers, as well in Husbandrye as in divers other Artes Misteries and occu- pacons, yet ptly for thimperfeccon and contrarietie that ys founde and doo appeare in sundrye of the sayde Lawes, and for the "varyetie and nomber of them, and chiefly for that the wages and allowances lymytted and rated in many of the sayd Statutes, are in dyvers places to small and not answerable to this tyme, re- specting thadvancement of Pryses of all things belonging to the sayd Servantes and Labourers, the said Lawes cannot conveniently without the greate greefe and burden of the poore Labourer and hired man, bee put in good and due execution : And as the sayd severall Actes and Statutes were at the time of the making of them thought to be very good and beneficiall for the Comon wealthe of this Realms as dyvers of them yet are. So yf the substance of as many of the said Lawes as are meet to bee con- tinued shalbe digested and reduced into one sole Lawe and Statute, & in the same an uniforme Order prescrybed and lymitted concerning the Wages and other Orders for Apprentises Servauntes and Laborers, there ys good hope that yt will come to passe that the same Lawe, beyng duly executed, should banishe Idlenes advance Husbandrye and yeelde unto the hired pson bothe in the tyme of scarsitee and in the tyme of plentye a convenient pro- porcon of Wages.' Sir Nicholas Bacon, when Lord Keeper^ 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 are to remain in case as they be. Item, that all the Acts be digested into titles and printed according to the abridgment of the statutes. Item, where part of one Aete standeth in force and another part abrogated, there shall be no more printed, but that that standeth in force. The doeing of these 1 Dewes'sJoumais, pp. 3^5, 46g,^^3, 553,622; latrodnotioa io Statutes qf the Realm, p. xxvi. Sir Francis Bacon took part in some of these discussions. IMPROVEMENT OF THE STATUTE LAW 45 things male be committed to the persons hereunder written^ if Ch. IV. it shall so please Her Majestie and her Counsellj and daye wolde be given to the committees until the first dale 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 ^.' King James I, in a speech from the throne (1609)^, spoke Proposals 11 Tl nftl* of ' divers cross and cuffing statutes, and some so penned that ^ing they may be taken in divers, yea, contrary senses ' ; adding J^"^®^ '■■ ' and therefore would I wish both these statutes and reports, as well in the Parliament as common law, to be once maturely reviewed and reconciled ; and that not only 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 not man can be free) which dos not now agree with the condition of this our time, might likewise be 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 com- mission 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 Edw. I to 3 Jas. I which had been repealed or had expired, and suggestions for further repeals and changes. In 1 6 16, Sir Francis Bacon, then Attorney- General to Lord King James the First, submitted to the king a proposition pTOpoaals ' touching the compiling and amendment of the laws of °^ ^^'^• England */ ' The work to be done,' according to this proposition, ' con- sisteth of two parts, the digest or recompiling of the common laws, and that of the statutes.' ^ MS. Harl. 249 ; Introd. to Statutes of the Realm, p. xxvi. ' Works of James I, Loudon, 1606, p. 534. ' MS. Harl. 244 ; Introd. to Statutes of the Realm, p- xxvi. ' Bacon's Letters and Life, by Spedding, vi. 57. See also Bacon's Works (Spedding), v. 99 ; vii. 14. 46 LEGISLATIVE METHODS AND FORMS Ch. IV. ' For the reforming and recompiling of the statute law it consisteth of four parts. ' I. The Government to discharge the books of those statutes whereas^ {qu. wherein) 'the case by alteration of time is vanished, as Lombards, Jews, Gauls, halfpence, &c. Those may, nevertheless, remain in the libraries for antiquities, but no reprinting of them. The like of statutes long since expired and clearly repealed ; for if the repeal be doubtful, it must be so propounded to Parliament. ' 3. The next is to repeal all statutes which are sleeping and not of use, but yet snaring and in force. In some of those it will perhaps be requisite to substitute some more reason- able law instead of them, agreeable to the time ; in others a simple repeal may suffice. ' 3. The third, that the grievousness of the penalty in many statutes may be mitigated, though the ordinance stand. '4. The last is the reducing of convenient statutes heaped one upon another to one clear and uniform law.' Of the last part, he said, much had been done by Lord Hobart, himself, Serjeant Finch, Heneage Pinch, Noye, Hackwell, and others. The best way to carry out the work would be to have commissioners appointed by the two Houses. Proceed- During the time of the Commonwealth a strong desire was the^'^° ^"^ manifested to make every practical reform of the law, and Common- among other things a consolidation of the statutes was not wealth. . forgotten. Two committees on the subject were appointed, among the members of whom were Sir Bulstrode Whitelocke, Sir Matthew Hale, and Ashley Cooper, afterwards Lord Shaftesbury. The instructions were ' 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 clearer understanding of the peopled' But no tangible results appear to have been achieved. ' Commons' Journals, vi. 427. IMPROVEMENT OF THE STATUTE LAW 47 After the Restoration, the subject was again inquired into Ch. IV. by Lord Nottingham and others, but nothing was done, and p , the question appears to have slumbered until the end of the i^gs after Eestora- eighteenth century 1. tion. In 1796 two interesting reports were presented by com- Reports mittees of the House of Commons on temporary laws and the promulgation of the statutes ^. The first report refers to the proceedings of former committees on temporary laws ; to proposals for the revision of the statutes ; to former Consolidation Acts such as Queen Elizabeth's Act for the regulation of artificers (5 Eliz. c. 4), and the Acts of George III relating to the navy, gunpowder, highways, militia, and the Custom House ; and to the meaning and classes of obsolete statutes, expired Acts, and temporary Acts. It gives instances of Acts suffered to expire by mistake, of discordant statutes (the ' divers cross and cuflSng statutes ' of King James I), and of hotch-potch Acts. With respect to the last class, it remarks that they have been discontinued of late years, but that the Statute Book abounds with them. For instance, in 30 Geo. II. c. 4a, for explaining the Window Tax Act, was to be found a section (3) that all existing and future statutes which mentioned England should also extend to Wales and Berwick-upon-Tweed, though not particularly named ; after which, s. 4 reverts to the Window Tax again ^. The report on the promulgation of the statutes lays down the requisites with which every Bill ought to be introduced into Parliament, and refers to the importance of punctuation, and to the desirability of numbering sections, of adding marginal notes, and of stating more precisely the duration of statutes and the date at which they are to come into ' Introd. to Statutes of the Realm, p. xxvii. ' Reports of Committees of House of Commons, xiv. 34, 119. Extracts from these reports are printed in an appendix to a report presented by- Mr. Bellenden Ker to the Lord Chancellor on August 12, 1853. ' It may be observed that s. 3 is the sole surviving provision of this statute. 48 LEGISLATIVE METHODS AND FORMS Ch.IV. operation. With respect to promulgation, the committee remark that, ' the only mode in which the statutes are now promulgated is the publication of them by the Queen's Printer. Your committee have not been able to discover at what precise period of time the statutes of the realm were first printed by public authority, but it appears that the ancient mode of promulgating them by the sheriff's proclama- tion fell into disuse very soon after the introduction of the art of printing.' The report also gives some curious instances of errors of typography and punctuation, and refers to the difference between public and private Acts. It appears from the first report that all the Acts of each session, whether public or private ^ were entered on the Statute Roll in a single continuous series, but that as printed by the King's Printer they were divided into two sets, public and private, each with separate numbers. Consequently, the numbers denoting the chapters on the Statute Roll did not correspond to the numbers denoting the chapters on the King's Printer's copies^. It also appeared that the numerical marks prefixed in print to each chapter, and the figures prefixed to each clause by way of section, as well as the marginal abstract of each clause, and the punctuation, were wholly the work of the King's Printer, and rested on his private authority. The second report pointed out that in the annual volume of the statutes, the Acts which were political, and legally speaking of a public and general nature, bore a very small proportion to the whole mass ^, that the local Acts respecting ' It was in the year 1539 (31 Henry VIII) that the distinction between public and private Acts was, for the first time, stated on the enrolment in Chancery. Introd. to Statutes of the Realm, p. xxxiii. " As to the origin, early history, duties and privileges of the King's Printer, see Basket \. University of Cambridge (1758), Blackstone, i. 105. " The following note is appended to the report : — ' PUBLIC AND PRIVATE ACTS :— I. In Legal LANOUAGtE.— (i) Acts are deemed to be Public and General Acts, which the judges will take notice of without pleading, viz. Acts concerning the King, the Queen, IMPROVEMENT OF THE STATUTE LAW 49 drainag'e, bridges, churclies, canals, &c., which by special Cn. IV. clauses and by particular usage were declared to be public, filled more than double the space occupied by the first and more important class, and that this excess was the more striking as the Road Acts were not included in the estimate of the local Acts, not being printed with the rest of the statutes. These reports led to an improvement in the classification of Improve- Acts. In conformity with joint resolutions passed by the dassifioa- two Houses of Parliament in 1796 ^, statutes passed in 1798 }°f and subsequent sessions were divided into three classes : — (i) Public General Acts; (3) Local and Personal Acts de- clared public and to be judicially noticed ; (3) Private and Personal Acts. Acts of the third class were not ordered to and the Prince ; those concerning all Prelates, Nobles, and great Officers ; those concerning the whole Spirituality ; and those which concern all Officers in general, such as all Sheriffs, &c. — ^Acts concerning trade in general, or any specific trade. — Acts concerning all persons generally, though it be a special or particular thing, such as a Statute concerning Assizes, or Woods in Forests, Chases, &c. ComyrCs Dig. tit. Parliament (R. 6). (2) Private Acts are those which concern only a particular species, or thing, or person, of which the judges will not take notice without pleading them, viz. Acts relating to the Bishops only ; Acts for toleration of Dissenters ; Acts relating to any particular place or town, or to divers particular Towns, or to one or divers particular Counties, or to the Colleges only in the Universities. Comyn's Big. tit. Parliament (R. 7). (3) In a General Act there may be a Private clause, ibid. ; and a Private Act, if recognized by a Public Act, must afterwai-ds be noticed by the courts as such. 2 Term. Bep. 569. 'II. In PAKLiAMEHTAEr IiAKGTJAGE. — (i) The distinction between Public and Private Bills stands upon different grounds as to fees. — All Bills whatever, from which private persons, corporations, &c. derive benefit, are subject to the payment of fees, and such Bills are in this respect denominated Private Bills. — Instances of Bills within this description are enumerated in the second volume of Mr. Hassell's Precedents of Pro- ceedings in the House of Commons, edit. 1796, p. 268, &c. — (2) In Parlia- mentary Language, another sort of distinction is also used ; and some Acts are called Public General Acts ; others Public Local Acts, viz. Church Acts, Canal Acts, &o. To this class might also be added some Acts which, though Public are merely Personal, viz. Acts of Attainder, and Patent Acts, &o. ; and others are called Private Acts ; of which latter class, some are local, viz. Inclosure Acts, &c., and some Personal, viz. such as relate to Names, Estates, Divorces, &c.' ' Commons' Journals, lii. 45. ILBEHT -E 5° LEGISLATIVE METHODS AND FORMS Ch. IV. Resolu- tions of 1800. Resolu- tion of Public Records Commis- sion, 1806, Resolu- tions of 1816. be printed. By the resolutions of 1796 the King's Printer was directed to class the public general statutes and the public local and personal statutes of each session in separate volumes, to number the chapters of each class separately, and also to print one general title to each volume, together with a general table of all the Acts passed in each session. In the year 1814 another change of classification was made by the division of all statutes after that date into four classes : — (i) Public General Acts; (2) Local and Personal Acts de- clared to be public and to be judicially noticed j (3) Private Acts printed by the King's Printer, copies of which may be given in evidence ; and (4) Private Acts not so printed. Resolutions passed by the Parliament of 1800 led, as has been said above ^, to the appointment of the first Commission on Public Kecords and to the preparation, under their 'autho- rity, of the edition known as The Statutes of the Realm. In 1806 the Commission on Public Records passed a reso- lution that Francis Hargreaves, Esquire, should be requested to consider and report on the best mode of reducing the statute law into a smaller compass and more systematic form, and of revising and amending the same in whole or in part. Mr. Hargreaves wrote a memorial, which appears to have become the foundation of the resolutions subsequently passed by the Houses of Parliament. In 1 816 both Houses of Parliament passed resolutions that a digest of the statutes should be made, and that an eminent lawyer with twenty clerks under him should be commissioned to do the work, which they unanimously declared ' very ex- pedient to be done.' Nothing appears to have come of this, except a partial consolidation from time to time of certain subjects. For instance, the Acts relating to the slave trade, and to the excise and customs^, and some criminal enactments, were consolidated. P. 21. ^ In 1825, 452 Acts relating to the customs were repealed and replaced by 12 Acts (,6 Geo. IV. oc. 104-115). IMPROVEMENT OF THE STATUTE LAW 51 In the year 1836 Sir Robert Peel began a series of Acts Ch. IV. which consolidated and amended portions of the then existing gj^ Kobert criminal law. The first of these was 7 Geo. IV. c. 64 ^i8a6), Peel's ' ^ V y Criminal which related to procedure. In 1827 four other Acts were Law passed, 7 & 8 Geo. IV. c. 38 (miscellaneous subjects), 7 & 8 j^^^ ' Geo. IV. c. 29 (larceny and cognate offences), 7 & 8 Geo. IV. -*^''*^- c. 30 (malicious injuries to property), 7 & 8 Geo. IV. c. 31 (remedies against the hundred). In 1828, 9 Geo. IV. c. 31 (offences against the person), was passed. In the same year and in the year 1829 were passed Acts which applied the statutes above mentioned to Ireland, with modifications. In 1830 was passed a Forgery Act (i Will. IV. c. 66), which was not, however, extended to Ireland. In 183 a was passed a Coinage Act (2 Will. IV. c. 34). In 1833, when Lord Brougham was Lord Chancellor, statute a Royal Commission was appointed, with instructions — Commis- (i) To digest into one statute all the statutes and ^""^ "^ enactments touching crimes and the trial and punishment thereof, and also to digest into one other statute all the provisions of the common or unwritten law touching the same ; (2) To inquire and report how far it might be ex- pedient to combine both those statutes into one body of the criminal law; and (3) Generally to inquire and report how far it might be expedient to consolidate the other branches of the existing law for England ^■ The Commissioners were paid. The first Commissioners were Messrs. Amos, John Austin, Bellenden Ker, Starkie, and Wightman. Mr. D. Jardine was afterwards appointed in the place of Mr. Austin^. They presented a general ' It is interesting to note that Macaulay's Commission for digesting and codifying the law of India was appointed at about the same time as Brougham's Commission. It lingered on for many years after Macaulay's return from India, but its chief achievement was the Indian Penal Code, which, though drawn by Macaulay, did not become law till i860. ' Mr. Austin did not find the work congenial and he resigned. See p. 11 of Mrs. Austin's preface to Austin's Jurisprudence (E. Campbell's edition). £ 2 52 LEGISLATIVE METHODS AND FORMS C«. IV. report on the statute law in 1835 ^ and seven reports on the criminal law at intervals down .to 1843. According to Mr, Greaves '^, these reports contain a ' vast mass of most valuable information, together with many observations on the different parts of the criminal law, which are well de- serving consideration by any one who may turn his attention to the importance of that branch of the law/ The Com- missioners were engaged on an eighth report when they were dissolved at the beginning of the year 1 845. Sir Henry In 1 836, Sir Henry Seton submitted to a Committee of Eeporta the House of Commons some learned and interesting notes of 1836. pjj^ ^^ statute law and a list of statutes showing how far they were in force or not. This list is of importance as the basis on which the subsequent expurgatory lists and the earlier Statute Law Revision Acts were framed. Statute At the beginning of the session of 1845 Lord Brougham mission of introduced a Bill embodying the digest prepared by the ^^■♦s- Commission of 1833^ but the Bill was withdrawn on an undertaking by Lord Lyndhurst that a second Commission should be appointed to revise it. Hence in 1845 a second Commission was issued to Sir Edward Ryan, and Messrs. Starkie, Ker, Amos, and Richards, instructing them to com- plete the unfinished report of the previous Commissioners, to consider the previous reports and the alterations therein suggested, and the expediency of consolidating into one or more statute or statutes the whole or any part or parts of the criminal law, written or unwritten, and to prepare a Bill or Bills for the purpose. This Commission made six reports, including the unfinished report of their predecessors, and appended to their report of March 30, 1848, a draft of a Bill containing 'An entire Digest of the written and unwritten Law relating to the Definition of Crimes and Punishments.' On June 6, 1846, Lord Brougham introduced in the House of Lords the Bill so prepared, but it was not proceeded with. ' Parliamentary Papers, 1835, xxxv. 361. ' Preface to Criminal Law Acts, p. xv. IMPROVEMENT OF THE STATUTE LAW 53 On July 3, 1849, the Commissioners made a report on Ch. iv. procedure. This was their last work. In the autumn of 1852, Lord St. Leonards (then Lord Further Chancellor) directed Mr. Lonsdale and Mr. Greaves to pre- codifica- pare Bills for the codification of the criminal law. Their *^?" ?^ , '■ criminal directions were specific. They were to prepare each Bill law. from the reports of the Criminal Law Commissioners, and each Bill was to incorporate both the statute and common law relating to the offences contained in it. On these in- structions an Offences against the Person Bill was prepared and introduced by Lord St. Leonards in 1853, and referred to a Select Committee of the House of Lords. In the early part of 1 853, Lord Derby's Government went out of ofiice, and Lord Cranworth succeeded Lord St. Leonards as Lord Chancellor. Messrs. Lonsdale and Greaves were, however, instructed by him to proceed with the Bills which they had been preparing for Lord St. Leonards, and accordingly they prepared a Larceny BiU and also Bills relating to burglary, malicious injuries, forgery, piracy, coin, public peace, and trade and commerce. The Offences against tho Person Bill and the Larceny Bill were considered by the judges, but neither these nor the other Bills were introduced in 1854, and the attempt to codify the criminal law was for the time abandoned ^- At the beginning of the session of 1 853, Lord Cranworth Lord announced his intention of devoting himself systematically -worth's to the improvement of the statute law, and sketched out an ^f ° 8°s?^' ambitious programme which he hoped might eventually result in. a ' Code Victoria ^.' For the purpose of carrying out this work. Lord Cran- statute worth appointed a Board for the Revision of the Statute BoTrd of Law, consisting of Mr. Bellenden Ker, as Commissioner, with '^43- ' In reply to a circular letter from Lord Cranworth, the judges expressed strong opinions against codification of the criminal law. Parliamentary Papers, 1854, liii. 391. ' Hansard, 124, p. 4. 54 LEGISLATIVE METHODS AND FORMS Ch. IV. Messrs. Coode, Chisholme Anstey, Brickdale, and Rogers, as sub-commissioners. The Board was constituted in tte first instance as a temporary and experimental body. The objects indicated by Lord Cranworth as those at which the Board should aim appear to have been — (i) The revision o£ the Statute Book by the expurgation of defunct Acts ; and (cs) The consolidation of statutes in actual operation. It soon became apparent that there was great divergence of opinion between the members of the Board as to their mode and order of proceeding. Mr. Chisholm Anstey was in favour of beginning with expurgation. Mr. Bellenden Ker was in favour of beginning with consolidation, and doubted the expediency or practicability of what would now be called Statute Law Revision Bills. The Board presented three reports, in August, 1853, January, 1854, and May, 1854^. The first report consisted mainly of papers by the sub-commissioners. Mr. Coode had prepared some papers on consolidation which, though somewhat lengthy and pedantic, contained useful practical suggestions. Messrs. Anstey and Rogers submitted a classi- fication of existing statutes and an expurgatory list of defunct statutes. Mr. Brickdale submitted some specimens of various forms of digest, taking as his subject the law of distress. In a second report, Mr. Ker argued at much length against the policy of what is now called statute law revision. ' So far from its being,' he said, 'any part of the duty of the legislature to pass a declaratory statute as to expu-ed and defunct Acts, such a measure would at best be nugatory, and perhaps mischievous. Besides,' he argued, ' such a statute, with its thousands of entries, would be impossible to pass.' What he recommended was the preparation of a number of Consolidation Bills. In his third report he maintained the same line of argu- ' Parliamentary Papers, 1854, xxiv. 154, 363, 407. IMPROVEMENT OF THE STATUTE LAW 55 ment, and expressed his opinion that the most useful Ch. IV. ' employment for a permanent Statute Law Board would be:— (i) The gradual consolidation or rewriting of the statute law; (3) Preparing or settling Bills for the Government and such other parties as should choose to apply for them, and reporting on Bills referred to them j (3) Watching Bills in their progress through the two Houses, and reporting on alterations which might appear to make the enactments inconsistent with themselves or with other branches of the law. Appended to this report were papers by Mr. Anstey, Mr. Brickdale, and Mr. Rogers. Mr. Anstey argued strongly in favour of a general expurgatory Bill as a natural pre- liminary to the work of consolidating the statute law. He also submitted drafts of BUls to consolidate the enactments relating to the National Debt and the Consolidated Fund (as parts of a general Statute of Finance), of Bills to con- solidate enactments relating to certain public officers and to public salaries and pensions, and of a Bill for the interpreta- tion of enactments. Mr. Brickdale submitted, as specimens of the mode of rewriting the statute law recommended by Mr. Ker, drafts of Bills concerning wills and apportionment. He also sub- mitted a paper containing considerations on the propriety of extending the principles of the Consolidated Clauses Acts, interpretation clauses, and similar expedients for obtaining brevity or uniformity in Acts of Parliament. Mr. Rogers submitted the draft of a proposed ' Labour Act,' to consolidate the enactments relating to employers and workmen. On August 39, 1854, the temporary Statute Law Board Statute was superseded by a Statute Law Commission consisting mi^ion'^f of Lord Cranworth (Chancellor), Lord Lyndhurst, Lord ^^5*- Brougham, Lord Wrottesley, Lord Campbell (Lord Chief 5^ LEGISLATIVE METHODS AND FORMS Ch. IV. Justice), Sir John Jervis (C.J. of C.P.), Sir P. Pollock (Chief Baron), Baron Parke, Mr. Moncrieff (Lord Advocate), Mr. Spencer Walpole, Mr. Joseph Napier, Vice-Chancellor Page Wood, Sir A. Cockburn (Attorney-General), Sir R. Bethell (Solicitor-General), Mr. Brewster (Attorney-General for Ireland), Mr. Keogh (Solicitor- General for Ireland), Mr. James Crawford (Solicitor-General for Scotland), and Mr. Bellenden Ker. Mr. Walter Coulson, Lord Wensleydale, Sir Pitzroy Kelly ^, and others were subsequently added to the Commission. Mr. Bellenden Ker was the only paid member of this Commission. Mr. Brickdale was the Secretary. The Commissioners of 1854 presented four reports, in August, 1854, in March, 1856, in June, 1857, and in February, 1 859 ^. In their first report they stated that a number of Consolidation Bills, more or less complete, had been prepared under their direction, and they submitted some general considerations on the subject of consolidation. They concluded their report by observing, with respect to current legislation, that 'perhaps nothing satisfactory towards the improvement of future legislation can be effected until either a board or some other persons are appointed, whose duty it ' shall be either to prepare or revise and report upon all Bills before they are brought into Parliament, and to watch them during their progress through the two Houses, either as ofiicers of the Lord Chancellor or of some other Minister> or as officers of the two Houses of Parliament.' The second report recommended the adoption of two plans : — • In 1856 Sir Fitzroy Kelly, on introducing a Consolidation Bill which had been prepared under the directions of this Commission, offered to superintend a consolidation of the whole Statute Book, and expressed an opinion that the work might be accomplished in two years. Sir A. Cock- burn and Sir R. Bethell questioned his authority to speak on behalf of the Commission, and expressed dissent from his views. Hansard, 141, p. 1084. ^ See Parliamentary Papers, 1855, xv. 829; 1856, xviii. 861; 1857, xxi. 203 ; Session 2, xii. 211 1859, Session a, xiii, part i, i. IMPROVEMENT OF THE STATUTE LAW 57 (i) The appointment of an officer or board to revise and Ch. IV. improve current legislation ; and (2) The adaptation of a system of classification to the public general statutes. In the third report the Commissioners stated that they had given instructions for the preparation of a classification of statutes and a register of statutes showing how far each statute was in force. The fourth report stated that the register and classification had been completed from the time of the union with Ireland to the end of the session of 1858. The Commissioners also said that they thought it probable, from^ the data furnished by the register, that the whole of the existing statute law might be usefully consolidated into 300 or 400 statutes ; that they had already before them upwards of 90 consolidating Bills prepared under their direction, but that as these had been prepared before the register had been completed some of them might require further consideration. They added that the time in which the whole work might be completed must depend on the number of draftsmen employed, but assuming, as their experience enabled them to do, that ten or twelve gentlemen might be constantly employed, they thought it fair to anticipate that the whole of the work might be completed in about two years. And if at the end of that time they were able to present to Her Majesty the whole of the statutes coming under the class of general laws, filling only about three volumes, but comprising all or nearly all of the statutes of a general nature now scattered through forty volumes, they ventured to think that their labours would not be wholly useless. This appears to have been the last report of the Commissioners, and there is no further record of their labours. The first Statute Law Revision Act, that of 1856 (19 & ao Statute . n \ n LawEe- Vict. c. 64), was based on the recommendations of the Com- vision Act missioners of 1854. This measure, which during its progress ° ^ 5 • through Parliament was known as the Sleeping Statutes Bill, sioners. 58 LEGISLATIVE METHODS AND FORMS Ch. IV. passed through the House of Commons without comment, and very little was said about it in the House of Lords ^. The Act repealed lao obsolete statutes. Select In 1857 a Select Committee was appointed to consider so See of *°uch of the second report of the Commissioners of 1854 as 1857- related to the proposition therein made for the adoption of means to improve the manner and language of current legis- lation. The Committee took evidence from Messrs. Coulsop, Richards, Ker, and Coode, but their proceedings were inter- rupted by the dissolution of Parliament before they had time to make a report. Criticisms Considerable dissatisfaction was expressed from time to ment on" ^™® ^^ Parliament and elsewhere at the small amount of proceed- ^ork accomplished by the successive Statute Law Com- ings of _ _ '^ "^ _ Statute missions as compared with the large amount of public money Commis- which they had expended. Mr, Locke King made himself the principal mouthpiece of this dissatisfaction ^. He was of opinion that the Committee of 1853 ^^^ *^® Commission of 1854 had proceeded in the wrong order, and he agreed with Mr. Anstey in thinking that the Commission ought to have begun with statute law revision, and have left consolidation for a later stage. He declared that not less than ^35,000 had been expended by the Commission of 1833, and that not a single Bill had been drawn by it ; that the Commission of 1845 had spent an additional sum of .s^" 12,500, making a total of .^47,500 expended by the two bodies, besides a further sum of .^1,680 spent on drafting sundry Bills. Then came the Board of 1853 and the Commission of 1854, which, according to him, were equally costly and equally barren. He accordingly moved for an address praying Her Majesty to dispense with the Statute Law Commissioners. The motion was not assented to by the Government, but Lord John Eussell admitted that Mr. Locke King had very good grounds for asking what was the use of the Com- mission. ' Hans., 14a, p. 1895. ' Hans., 146, p. 774 (July a, 1857). IMPROVEMENT OF THE STATUTE LAW 59 On the eve of the dissolution which took place in April, Ch. IV 1859, Sir Fitzroy Kelly, then Attorney-General, introduced p , a series of Bills to consolidate the criminal law which had been ings i" 1859. prepared under the direction of the Statute Law Commission. Soon after the beginning of the next session Mr. Whiteside moved for leave to re-introduce these Bills, and a debate ensued in which the Attorney- General (Sir Richard Bethell), Sir Fitzroy Kelly, and others took part. Sir Fitzroy Kelly said that ■ a plan had been proposed to the Commission which had been to a considerable extent acted upon, and in accordance with which ninety-three Bills were then ready, or nearly ready, which would consolidate the whole of the criminal statute law, the whole of the mercantile statute law, and the whole of the real property statute law.' Sir Richard Bethell expressed doubts as to the expediency of longer continuing the Commission^. On July 18 of the same year. Lord Cran worth, when presenting Bills for consolidating the law relating to mar- riages, registration, bills of exchange, executors and adminis- trators, and aliens, called attention to the fourth report of the Commission, and recapitulated the work which it had done since its appointment by him in 1854. He recommended that some barrister of eminence should be placed at the head of it, and thought that the statutes might be consolidated in two years. But Lord Campbell, who was then Lord Chancellor, declined to continue the existence of the Com- mission ^. The Register of Public General Acts, which had been pre- Publica- pared under the direction of the Commission by Mr. Archer, gggister Mr. F. S. Reilly, and Mr. A. J. Wood, was published in of Public pursuance of an order of the House of Lords dated July 5, Acts. 1 859. It consists of two volumes, and extends from 1 800 to the end of 1858. On February 17, i860, Sir Richard Bethell, then Attorney- steps Genera], told the House of Commons that he had engaged *^ ®" ^^ ' Hans., 154, p. 483. ' Hans., 154, p. 1370. 6o ■ LEGISLATIVE METHODS AND FORMS Ch. IV. two gentlemen to work on the obsolete Acts ; that he intended Sir to expurgate the Statute Book of all Acts which, though not B'ti"^!? expressly repealed, were not actually in force; and that he in i860, proposed to work backwards from the present time. When the expurgation was accomplished an edition of the actual living law would be published, arranged under appropriate heads. The gentlemen so engaged were Mr. Reilly (after- wards Sir Francis Reilly, K.C.M.a.) and Mr. A. J. Wood'. Statute The measure for statute law revision prepared by Messrs. Law Ke- ;g^gjiiy. ^nd Wood was introduced in 1861 by Lord Campbell, ofi86i. as Lord Chancellor, and became law as the Statute Law Revision Act of that year (24 & 35 Vict. c. loi). It was framed on the basis of the Register of Statutes to which reference has previously been made. The Bill was criticized by Lord Chelmsford and others as involving an undue delega- tion of legislative powers to the draftsman ^, and in the House of Commons was made an occasion for proposing the repeal of the Ecclesiastical Titles Act ^. But, on the whole, it seems to have passed both Houses without material difficulty. It cleared away 900 obsolete Acts belonging to the period between 1770 and 1853. Criminal In the same year, 1861, were passed the seven Criminal soMation -'-'^^ Consolidation Acts (24 & 25 Vict. cc. 94-100), which Act3 of had been prepared mainly by Mr. Greaves, on the basis of the reports of the Statute Law Commissioners of 1833 and 1849. Statute In 1S63 Lord Westbury, as Lord Chancellor, introduced TrsTon Act *^^ statute Law Revision Bill of that year (which, like the of 1863. Bill of 1 861, was framed by Messrs. Reilly and Wood), and took the opportunity of making a notable speech, in which he reviewed the history of previous attempts for the improve- ment of the statute law, and explained the principles on which the Bill of 1863 was framed*. 'What he proposed,' he said, 'was that the Statute Book should be revised and ' Hans., 156, p. 1238. » Hans., 161, p. 1057. ' Hans., 164, p. 1795. • Hans., 171, p. 775. . IMPROVEMENT OF THE STATUTE LAW 6l expurgated — weeding away all those enactments that are no Ch. IV. longer in force, and arranging and classifying what is left under proper heads, bringing the dispersed statutes together, eliminating jarring and discordant provisions, and thus getting a harmonious whole instead of a chaos of incon- sistent and contradictory enactments/ He explained that, with this object, the whole of the statute roll from 30 Edward III down to nearly the end of the eighteenth century had been examined and revised. ' The statutes that were weeded out might,' he said, ' be described as those which are no longer applicable to the modern state of society, enactments which have become wholly obsolete, enactments which have been repealed by obscure or indirect processes, but which until extirpated from the Statute Book would be constantly the cause of uncertainty. An endeavour had been made to apply a remedy to this state of things. The task was one of great difficulty and delicacy. The reason for every alteration would be found in the schedule given opposite to the de- scription of the enactment to which it had been applied. This had been done in order that the work might be accom- plished with something like that certainty and assurance of safety with which works of the kind ought always to be accompanied. When the Statute Book had been cleared of superfluous and unnecessary matter by the process which he described, he hoped to prepare a digest ^ of the whole law, both common and statute.^ In the House of Commons the Bill of 1863 was taken charge of by Sir Roundeir Palmer, then Solicitor- General. ' With this view a Eoyal Commission was issued in the autumn of 1866 to Lords Cranworth, Westbury, and Cairns, Sir T. P. Wilde, Mr. Lowe, Vice-chancellor Wood, Sir George Bower, Sir E. Palmer, Sir John Shaw Lefevre, Sir T. E. May, Mr. Daniel, Mr. Thring, and Mr. Reilly, to ' inquire into the expediency of a digest of law, and the best means of accomplishing that object, and of othei-wise exhibiting in a compendious and accessible form the law as embodied in judicial decisions.' The Commission issued their first and only report on May 13, 1867. They employed certain barristers to prepare specimen digests, but the speci- mens prepared were not considered satisfactory, and no further steps were taken to continue the work. 62 LEGISLATIVE METHODS AND FORMS Ch. IV. It met with a good deal of opposition, principally from Mr. Pope Hennessy and Mr. Ayrton, but was warmly sup- ported by Sir Hugh Cairns, who remarked ' that he believed that the whole effect of the scheme, of which this Bill was a part, would be to reduce the Statute Book from forty-three to somewhere about eight volumes, and that for his own part he could not conceive a more desirable operation. The framers of the Bill deserved the confidence of the House. They were remarkable for accuracy and intelligence, and it was highly to their credit that, whereas about 5^50,000 had been expended on Statute Law Commissions, the work which led to the Act passed in 1861 and to the compilation of the Bill of 1 863 had been done for j£'3,ooo or af 4,000 ^. The Bill of 1863 became law as the Statute Law Revision Act of that year (26 & 27 Vict. c. 125) and expurgated the Statute Book from the twentieth year of Henry the Third to the first year of James the Second. It has been taken as the model of all subsequent Statute Law Revision Acts, and in particular contains the elaborate and extensive saving clause embodied in each of those Acts ". Other ex- In some cases it was found that numerous enactments Acts.'' °'^ might be repealed, although they did not come within the narrow lines laid down for the Statute Law Revision Acts. For instance, the Promissory Oaths Act, 1871 (34 & ^^ Vict. c. 45), and the Summary Jurisdiction (Repeal) Act of 1884 (47 & 48 Vict. c. 43), were introduced by the Government of the day as Bills containing substantive enactments, and although consisting almost entirely of repeals, they repealed laws which might possibly operate although substantially superseded by recent enactments. Another instance is sup- plied by the Statute Law Revision and Civil Procedure Acts of 1 881 and 1883 (44 & 45 Vict. c. 59 j 46 & 47 Vict. c. 49). ^ Hansard, 172, p. 1207. ' Each Statute Law Revision Bill contains a note explanatory of the terms used in it to express the reasons for repealing the enactments contained in it, namely 'expired,' 'spent,' 'repealed in general terms,' ' virtually repealed,' ' superseded,' and ' obsolete.' IMPROVEMENT OF THE STATUTE LAW 63 In 1867 Lord Cairns, then Lord Justice, submitted to Ch. iv. Lord Chancellor Chelmsford a confidential memorandum, t> ' Prepara- suggesting the desirability of an Index to the Statutes, and tio" of Index to of a Chronological Table of the Statutes, ' with a column and showing also which had been repealed and by what Acts, logical" and showing also subsequent Acts containing important af*!'®. °^ amendments and alterations of such as are not repealed/ The memorandum suggested that the works should be re- vised throughout after each session of Parliament, and should be made and kept up under the authority of the Houses of Parliament, and that the edition for each year should be brought out as soon after the end of the session as the alterations in the print could be made^- Lord Chelmsford referred the memorandum and other matters relating to the form and mode of publication of the statutes to Sir John Shaw Lefevre, Sir T. Erskine May, Mr. Thring, and Mr. Reilly^, requesting their opinion as to the best means of carrying out the suggestions in it. Their report, dated May 3, 1867, expressed concurrence with Lord Cairns' memorandum. They especially appreciJited the ad- vantages which would result from the index and table being kept up regularly and circulated at the end of each session, and considered that the works should be sent yearly to the judges, magistrates, and others. They further made pro- posals as to framing of the index and chronological table, referring particularly to Mr. Wood's work on the statutes, and to the materials in his possession '*. Lord Chancellor Chelmsford, on May aS, 1867, in intro- ' The memorandum had annexed to it specimens of the proposed Index and Chronological Table. The Index was suggested by a paper written by Mr. Thring in 1863, and brought to the attention of Lord Cairns by Mr. Keilly, who appears to have assisted Lord Cairns in the preparation of the memorandum. 2 Sir J. Shaw Lefevre was Clerk of the Parliaments, Sir T. E. May was Clerk of the House of Commons, Mr. Thring (afterwards Lord Thring) was Counsel to the Home Office. ' The report also made recommendations for improving the classifica- tion of the statutes. See above, pp. 26, 49, and below, p. 64. 64 LEGISLATIVE METHODS AND FORMS Ch. IV. Alteration in classi- fication and edi- tions of the statutes. Appoint- ment of Statute Law Com- mittee in 1868. ducing the Statute Law Eevision Bill of that year, explained to the House of Lords the views of the Government on these matters, and on October 29, 1867, wrote to the Home Secretary, stating that Sir John Shaw Lefevre and his colleagues had reported that Mr. Wood would prepare the Chronological Table, and that Mr. H. Jenkyns^ had agreed to undertake the compilation of the Index to the Statutes under the superintendence of Mr. Wood, and also under the supervision of Sir John Shaw Lefevre and his colleagues ^. The report of Sir John Shaw Lefevre and his colleagues, after showing that the statutes were published in six different forms, all printed by the Queen's Printers, made recommenda- tions as to the editions which should be published, and also recommended : — (1) That each Act should be printed and issued separately in an octavo form ; (2) That at the commencement of each Act an arrange- ment of clauses should be prefixed, and that this arrangement and the marginal notes should be carefully revised by competent authority; (3) That the Acts confirming Provisional Orders, or relating to particular harbours or other works which are for various reasons passed as public Bills, should be classed with the local and personal Acts ; (4) That a classified list of Acts should be placed at the beginning of each volume of the statutes of the year, in addition to a chronological list, and also two tables showing the effect of the year's legislation. The alteration in the classification of statutes suggested by this report was carried into effect in 1868, when the existing classification was adopted ^- In 1868 Sir J. Shaw Lefevre submitted a memorandum to the Lord Chancellor (Lord Cairns), suggesting that the final ' Afterwards Sir Henry Jenkyns, K.C.B., Parliamentaiy Counsel to the Treasury. ^ See Pari. Papers, 1870, No. 116. a gee above, p. 26. IMPROVEMENT OF THE STATUTE LAW 65 step should be taken to give the public the full benefit of the Ch. IV. work of statute law revision by the preparation and pub- lication of an edition of the statutes containing those Acts only which are in force ^. Lord Cairns forwarded the memo- randum to the Home Secretary approving of the suggestion, and requesting him to move the Treasury to make the neces- sary arrangements, and said, that if the Treasury concurred, he proposed to entrust the superintendence of the preparaj^oa and publication of the edition to Sir J. Shaw Lefevre, and the other gentlemen associated with him in the superintendence of the Chronological Table and Index to the Statutes, and to add to them Mr. Rickards, the Speaker^'s counsel, who had for some time past acted as editor of the current volume of Acts of Parliament on behalf of the Queen's Printers \ On July 9, 1868, Lord Chancellor Cairns wrote a letter to Sir John Shaw Lefevre, saying that he had under considera- tion the subject of a revised edition of the statutes, a work the expediency of which had been three times affirmed by Parlia- ment in the preambles of the Statute Law Revision Acts. Those Acts had removed any difficulties which would have obstructed the application of the Statute Book to the process of expurgation. He had therefore, with the concurrence of the Treasury, determined that an edition of the statutes should be prepared and published, containing, as far as might be, only such Acts as were in force. He proposed to nominate a committee to make the necessary arrangements and to superintend the execution of the work ^. The first committee consisted of the gentlemen named above. In this manner was formed the committee which, under the name of the Statute Law Committee, has continued to the present time to super- intend Statute Law Revision and sundry matters connected with the statutes, and also the publication of the Chrono- logical Table and Index and the new edition of the statutes. * Pari. Papers, 1870, No. 116, p. 10. 2 This letter is printed at the beginning of vol. i. of the first edition of the Statutes Revised. 66 LEGISLATIVE METHODS AND FORMS Ch. IV. Publica- tion of Chrono- logical Table and Index to Statutes. Publica- tion of first edi- tion of Revised Statutes. Arrange- ment for extension of first Eevised Kdition. Succes- sive edi- tions of Chrono- logical Table and Index. The members of the committee are unpaid, and they employ- as their secretary an officer of the House of Lords. The Lord Chancellor, who is represented on the committee by his permanent secretary, may be regarded as the official mouth- piece of the committee in Parliament. In January, 1870, was published the first edition of the Chronological Table and Index of the Statutes, brought down to the end of the session of 1869. The Table was framed by Mr. A. J. Wood principally from materials connected with the work of Statute Law Revision. The Index was framed by Mr. Henry Jenkyns, with the assistance of Mr. C. W. Chute, and was based on an independent study of the statutes them- selves, with some help from the Index to the Record Edition of the Statutes down to the end of Queen Anne ^. The first volume of the Revised Edition of the Statutes was published in the same year, 1870^, and the edition was completed in accordance with the original design in August, 1878, by the publication of the fifteenth volume, comprising the statutes of the year 1868, which was the last year to which the revision had been carried. In 1878 arrangements were made for continuing the expur- gation of the statutes by means of Statute Law Revision Bills for ten years more, namely to the end of the session of 1878, and for the publication of the Revised Statutes for the same period^- Under these circumstances were produced three volumes comprising the statutes from 1868 to 1878. The last of these volumes was published in 1885. Editions of the Chronological Table and Index of the Statutes have been periodically published, under the successive editorships of Mr. W. L. Selfe, Mr. G. A. R. FitzGerald, ' Pari. Papers, 1870, No. 116. ^ As to its form see Pari. Papers, 1870, No. n6, p. 16. The first volume was edited by Mr. A. J. Wood. The subsequent volumes were edited by Mr. (afterwards Sir G.) Rickards. The Statute Law Revision Bills for the period were prepared by Mr. A. J. Wood. " The Statute Law Revision Bills were framed as before by Mr. A. J. Wood, but the editing of the volumes was entrusted to Mr. G. A. R Fitz- Gerald. Pari. Papers, 1877, No. 288. IMPROVEMENT OF THE STATUTE LAW 67 and Mr. Pulling. In 1877 Sir H. Thring, the Parliamentary Ch. IV. Counsel to the Treasury, drew up instructions for the improve- ment of the Index, and several barristers were employed to revise and recast different titles in accordance with those instructions. The Chronological Table, as originally framed, contained only entries against each Act of subsequent Acts which repealed any portion of it. The Table has, in successive editions, been improved by adding entries which show, with reference to each Act, the particular portions repealed, and also the subsequent amending or applying Acts. In 1869 an important step was taken towards the improve- Establish- ment of the form of current legislation by the establishment Parlia- of the office of Parliamentary Counsel to the Treasury 1. g'^'^^jj^^'f^ Mr. Thring (now Lord Thring), who was then Parliamentary office. Counsel to the Home Office, was appointed to fill the new post, and Mr. Henry Jenkyns, who succeeded him on his retirement in 1886, was appointed his assistant. In 1875 a Select Committee of the House of Commons was Select Com- appomted to consider whether any and what means could mittee of be adopted to improve the manner and language of current ^ '^' legislation. The committee referred to the Revised Edition of the Statutes and the Chronological Table and Index which had been prepared under the supervision of the Statute Law Committee, and to the better style of drafting which had been recently introduced in Acts of Parliament, as well with regard to the arrangement of the clauses and the subdivision of the Bill into distinct parts, as also with regard to the language used, which, in simplicity and clearness, was far superior to the ' verbose and obscure ' language of former enactments. The objections which might still be charged against the style and structure of public Acts of Parliament would, they said, be found to arise from four causes : — (i) From the mode in which the Bill is itself prepared and the extent to which it varies or deals with previous statutes; ' See below, p. 84. F 2, 68 LEGISLATIVE METHODS AND FORMS Ch. IV. (a) From the uncertainty which often arises from incon- sistent and ill-considered amendments ; (3) From the want of consolidation where groups of statutes on similar subjects are left in a state of perplexity ; (4) From the absence of any better classification of statutes. They then referred to the establishment of the Parlia- mentary CounseFs Office, and to the system under which the work of that office was conducted, and said that, assuming that this system was maintained, there was reason to believe that most of the objections to current legislation in the four particulars above adverted to might be met and obviated. They suggested certain minor amendments, such as the pre- paration of model clauses, the framing of a general Act on the principle of the Act known as Lord Brougham's Act^, and certain modifications in the procedure in Committee. As to consolidation, the conclusions at which they arrived were : — (i) That, as a general rule, it is unadvisable to attempt consolidation where the law is still in a state of flux; (a) That amendments in the existing statutes should either precede consolidation, or be included in the Consolidating Bill in different type ; (3) That where all the clauses of a ConsoHdation Bill cannot be got through before the prorogation, the Bill should be suspended to the ensuing session, and taken up at the point which it had reached in the previous session. They thought it would be well worthy of consideration whether in any future edition of the Revised Statutes some classification of the statutes should not be adopted. Improve- It should be stated here that the credit for ' the better style drafting of drafting' referred to by the Select Committee of 1875 is of Bills. ^ 13 & 14 Vict. 0. 21. Effect has been given to this suggestion by the passing of the Interpretation Act, 1889. IMPROVEMENT OF THE STATUTE LAW 69 due mainly to Lord Thring. In 1854^ when drafting the Ch. IV. Merchant Shipping Act of that year, he introduced the modern plan of breaking up an Act into parts, and sections into subordinate paragraphs or sub-sections. His 'Instruc- tions to Draftsmen,' which were published as a pamphlet by the Stationery Office in 1877^, have been very generally followed, and have tended materially to improve the style and arrangement of statutes. Soon after the Judicature Acts came into operation, the Reports Statute Law Committee took* into consideration the question procedure how far previous enactments were superseded by them or '*"'^ , '■ 1. J courts. might be superseded by rules of court made under them. Accordingly they iastructed Mr. Arthur Wilson " to prepare a report on the subject, and in 1878 he submitted to the committee a report on the statutes relating to civil procedure and courts ^. The. work begun by him was afterwards con- tinued by Mr. Chalmers * and the present vsriter, and resulted in the passing of the Statute Law Revision and Civil Procedure Acts of 1881 and 1883, and in the framing of a large number of rules of court which took the place of previous enactments relating to procedure. In 1877 Mr. R. S. (now Mr. Justice) Wright, in pursuance Mr. of a request from the Statute Law Committee, submitted report, " a valuable report ^ on the statutes relating to criminal law ^^^'j^"j and procedure, and a scheme for their consolidation and sim- law and , procedure. plification. But further progress on the nnes thus suggested was stopped by the introduction of the Criminal Code Bill prepared about the same time by Sir James Stephen. In 1878 Sir John Holker, as Attorney- General, introduced Criminal _ . , Code a Bill for codifying the criminal law and procedure, which Bills of ' Under the title Practiced Legislation ; or, the Composition and Language of Acts of Parliament. This pamphlet is now out of print. ' Afterwards Judge of the High Court of Calcutta, and now Legal Adviser to the India OfBee. ' Pari. Papers, 1878, Ixiii. * Now Assistant Parliamentary Counsel to the Treasury. ■■ House of Lords, 178, 1878. 70 LEGISLATIVE METHODS AND FORMS Ch. IV. had been prepared by Sir James Stephen^. The Bill was read a second time ^, and withdrawn. It was then referred to a Royal Commission consisting of Mr. Justice Blackburn, Mr. Justice Lush, Mr. Justice Barry, and Sir James Stephen, with Mr. Cowie as secretary ^. The Bill as revised by the commission was reintroduced by Sir John Holker on April 3, 1879 *, b*^* ^^t^'' having been read a second time, on May 5 ^, was withdrawn on July 14, It was reintroduced at the beginning of the session of 1880, and was read a second time and referred to a Select Committee^. But further proceedings on the Bill were stopped by the dissolution of Parliament. In 1883 Sir Henry James, as Attorney- General, reintroduced so much of the Bill of 1880 as related to procedure. This Bill was read a second time on April la, 1 883 ', after a good deal of opposition, and was referred to the Standing Committee on Law, where its progress was finally stopped after discussion of some of the earlier clauses *. Second In 1 886 the Statute Law Committee took steps for Eevised bringing out a second and cheaper edition of the Revised Statutes, statutes, of which the first volume was published in 1888 ^. Statute The Statute Law Revision Bills introduced and passed vision'^ i'^ 1887 and 1888 were framed for the purpose of enabling ^88 ^''^d ^^^ °®^ edition to be brought out. In considering the 1888. revision of the statutes with reference to this new edition it was found that many pages of space might be saved by omitting portions of titles and also enacting words (Be it enacted, &c.). The Bill of 1888 went further than the previous Acts, in so far as it omitted these unnecessary words, but in other respects it followed the principles previously adopted. ' Hans., 239, p. 1936 (May 14, 1878). ° Hans., 240, p. 1671 (June 17, 1878). ' Hans., 241, p. 950. * Hans., 245, p. 310. ' Hans., 245, p. 1750. 8 Hans., 250, p. 1236. ' Hans., 278, p. 90. 8 ggg below, p. 128. ' See above, p. 24. The first three volumes were edited by Mr. G. A. R. FitzGerald, the subsequent volumes by Mr. Albert Gray and Mr. Theobald. IMPROVEMENT OF THE STATUTE LAW 71 The Interpretation Actj 1889 (5a & ^^ Vict. c. 6^), ch. IV. generalized several definitions which had been of frequent j , occurrence in Acts of Parliament. It also laid down certain tatiou Act, 1889. general rules of construction. It thus tended to shorten and make more uniform the language of enactments. So far as it was retrospective it enabled the Statute Law Revision Bills to strike out of former Acts numerous definitions, and also various expressions, such as ' the Commissioners of Her Majesty's ■" before the word ' Treasury ' and the words ' heirs and successors ' after reference to the Sovereign. All the Statute Law Revision Bills which were introduced Statute between 1863 and 1889 passed both Houses of Parliament jje^^joj^ without any opposition. But the Bill introduced in 1889 was ^^^ °^ opposed on the ground that enactments of the present reign ought not to be repealed without the authority of a Select Committee of the House of Commons, and was dropped in the last week of the session. The Bill had been framed on the same lines as the Act of 1888, except that it also repealed certain expressions made unnecessary by the passing of the Interpretation Act, 1889. The Bill was reintroduced in the session of 1890, and Select on reaching the House of Commons was referred to a Select m'ittee of Committee, who in their report said that ' they desire to ^^^ express their sense of the great caution and accuracy with which the Bill has been prepared, and their opinion that the Statute Law Committee and its assistants have fully justified the confidence which has been shown in them by both Houses of Parliament. ' In examining the statutes in order to consider the verbal amendments proposed, your committee came to the conclusion that the process of revision might be safely made much more extensive and valuable by the repeal of such of the preambles of these Acts as, having regard to the provisions of the third section of this Bill, were not required for the purpose of explaining or interpreting the Acts to which they were prefixed, and were not of any such historical interest and 72 LEGISLATIVE METHODS AND FORMS . Ch. IV. importance as to make it desirable that they should be reprinted in future and revised editions of the statutes/ Statute The report of the Select Committee of the House of vfaron ^ Commons was adopted by the House of Lords after careful Acts of consideration of the subject by some of the leading legal 1890. members, and a consultation with the Statute Law Committee, with the result that the two Statute Law Revision Acts of 1890 were framed so as to authorize, not the repeal, but the omission from future editions, of certain preambles, and the addition of words indicating where necessary the character of the preamble. Statute A further Statute Law Revision Bill, framed on the same vision principles as the preceding Acts, was introduced and passed in Act of 1 891, but the second reading was opposed, and the opposition was only withdrawn on the First Lord of the Treasury under- taking that the later portions of the Bill should be dropped, and that the subject of statute law revision should be considered by a Joint Committee in the ensuing session. The Bill was referred to a Select Committee, who reported to the House the whole Bill, including the later portions, and ultimately the whole Bill was allowed to pass. Establish- It was, however, thought prudent to strengthen the ment of j r» • ^ Joint guarantees tor accuracy m Statute Law Revision Bills by Com- mittee for con- a special Joint Committee of the two Houses of Parliament- sideration arranging that every Bill of this kind should be referred to a special Joint Committee of the two Houses of I of Statute This procedure was first adopted in the year 1893. vision Numerous Consolidation Acts have been passed in recent Bills. years, especially since the establishment of the Statute Law Recent _ Consoli- Committee m 1868, and of the office of the Parliamentary Acts!" Counsel to the Treasury in 1869. Most of them were initiated by the Statute Law Committee, who have from time to time submitted to the Lord Chancellor memoranda on the subject of consolidation ', and were prepared either in ' Some of these have been published as Parliamentary papers. See e.g. Pari. Papers, 1875, 157; 1877 (House of Lords) 117; 1878 (House of Lords) 19, (House of Commons) 45. IMPROVEMENT OF THE STATUTE LAW 73 the office of the Parliamentary Counsel, or by draftsmen Ch. IV. acting under instructions from, and on the responsibility of that office. Since the establishment of the office, opportunity has frequently been taken, on any amendment of the law, to consolidate various enactments relating to that particular branch of law. For example, on an amendment of the Naturalization Acts in 1870, all the previous Acts were consolidated. So again, in 1869, the enactments relating to the borrowing by the Metropolitan Board of Works were consolidated in the Board of Works Loans Act of that year (3a & 33 Vict. c. 10a), and a similar course was taken in the ease of the Chancery Funds Act of 187a, the Licensing Act, 187 a, and the Explosives Act, 1875. When a Joint Committee of the two Houses was set up Procedure for the consideration of Statute Law Revision Bills, it was iag^o^- determined to refer Consolidation Bills to the same Committee, solidation Bills in and the results were, on the whole, very successful. The 1894. Committee of 1894 examined and passed' four Consolidation Bills, three of them of great importance and magnitude, including the gigantic Merchant Shipping Bill, with its seven hundred and forty-eight clauses and twenty-two schedules. The result of their labours was accepted by the two Houses, and the Bills became law, their passage through the House of Commons being much facilitated by a ruling from the chair that amendments of substance are out of order in a measure professing by its title to be mere consolidation. The report of the Committee on the Merchant Shipping- Bill explains clearly the principles on which they proceeded. The Committee express an opinion that the Bill ' reproduces the existing enactments with such alterations only as are required for uniformity of expression and adaptation to existing law and practice, and does not embody any substantial amendment of the law.' They state that they had in some instances removed ambiguities, made consequential alterations, corrected obvious mistakes, and struck out obsolete matter. They had heard representatives of the ship owners and seamen, and 74 LEGISLATIVE METHODS AND FORMS Ch. IV. carefully considered the views expressed by them as to the effect of the consolidating measure on their several interests. In point of fact the Committee performed their duty in the most careful and exhaustive manner. They required every departure from the existing text of the law to be explained and justified, every ease in which the removal of an ambiguity or inconsistency seemed desirable to be sub- mitted for express decision. Difficul- Sundry Consolidation Bills were introduced in 1895, but perienced were all nipped in the bud by the early dissolution of Parlia- in i8g6. jjjgjjt^ The work was resumed in the session of 1896, but the results were disappointing. A measure for consolidating the enactments relating to friendly societies became law, thanks to the active support of the representatives of the principal societies. But another measure which had cost much valuable time and labour was sacrificed to opposition " in the House of Commons. The Acts relating to the administration of the Post Ofiice have not been consolidated since 1837. In their present form they constitute a compli- cated piece of patchwork, representing legislation which extended over the whole of the late reign. A BUI for consolidating these enactments into a single measure of ninety-three sections had been prepared, and was introduced into the House of Lords at the beginning of the session of 1896. After second reading it was referred to the Joint Committee on Consolidation Bills, and there underwent a careful and minute examination. As revised by the committee it was passed by the House of Lords and sent down to the House of Commons ; but on its arrival it was dropped, on the ground that the Post Office Acts required amendments of substance, and that no measure of consolidation would be satisfactory which did not embody these amendments. At the end of the session there was no time to argue the matter out, and the Bill had to be dropped, much to the regret of the Lord Chancellor (Lord Halsbury) and of his predecessor in office, Lord Herschell, IMPROVEMENT OF THE STATUTE LAW 75 both o£ whom pointed out in forcible language that if Ch. IV. Consolidation Bills were to meet with opposition unless they embodied amendments as well as consolidation, all prospects of proceeding with the important work of consolidating the statute law of England had disappeared ^- The fears thus expressed have, up to the present time^ Suspen- been unfortunately realized. The Post OfSce Consolidation ^"rij^of Bill was again introduced in 1897, was again passed through ^°°?°l^" the Joint Committee of Lords and Commons^ but was again blocked in the House of Commons, on the ground, it is understood, that it was not, as it professed to be, a measure of consolidation ; and amid the press of current business no time could be found for discussing and meeting the objections thus raised. Neither the Post OflSce Bill nor any other measure of consolidation has been submitted to Parliament since 1897. It was doubtless felt that a body like the Joint Committee could not reasonably be asked to spend their time in examining the arid details of a Consolidation Bill if their labours were to be lightly set aside in the House of Commons, without any consideration for their care and good faith. Thus the work of consolidating the contents of the Statute Book, a work which has, under the direction and with the assistance of a succession of eminent Lord Chancellors, been carried on with more or less activity during the last thirty years, has for the present been suspended. According to modern practice, every Act of Parliament has. Short for facility of citation, a short title in addition to its formal j^^^^ ^f long title. When a Bill was introduced to amend existing ^^9^ and Acts the opportunity was often taken to give short titles to the Acts so amended. The Short Titles Act, 189a, gave short titles to all the more important of the statutes which either were without short titles or had been given short titles by subsequent Acts. The Act proved to be of much use not only in facilitating the reference to statutes, but by ' See Hansard, July 30, 1896. ^6 LEGISLATIVE METHODS AND FORMS Ch. IV. reducing the leng-tli and cost of legal documents which involve such reference. It has since been supplemented and superseded by the Short Titles Act, 1896 (59 & 60 Vict. c. 14), which gives short titles to all Public General Acts passed since the Union with Scotland and now in force. Summary It will have been seen that the plan for systematic improve- ment of the statute law initiated by Lord W^estbury, with the approval and sanction of Lord Cairns and Lord Selborne, involved a fourfold task — (i) Indexing, (2) Expurgation, (3) Republication, (4) Consolidation. The work of indexing has been placed on a satisfactory footing 1. The work of expurgation and republication has been carried down to a recent date, and is practically complete for the present. The work of consolidation has come to a standstill. ' See above, p. 33. CHAPTER V PREPARATION OP ACTS The earliest Acts of Parliament were drawn by one or Ch. V. more of the king's judges. They were ordinarily based on p . petitions presented in Parliament for the redress of griev- tion of anceSj and their language would of ten^ but not necessarily. Acts. follow the language of those petitions \ When judicial and legislative functions became more clearly distinguishedj and when Parliament, by substituting the system of legislafion by Bill for the system of legislation on petition, obtained the right to settle the terms in which a new law was to be framed, and established the principle that a Bill, when once introduced into Parliament, could not be altered except by the authority of Parliament, and that the Act based upon it must follow precisely the terms in which the Bill was passed by the two Houses, the judges ceased to be responsible for the framing of Acts of Parliament. From this time down to a very recent date there is much Legisla- obscurity about the mode in which Bills intended to become Tudor Acts were prepared. Henry VIII was an industrious P®'''°'^' monarch, and took an active part in the legislation of his reign. On one occasion he ' came in among the burgesses of the parliament, and delivered theym a bill, and bade theym look upon it, and waye it in conscience, for he would not, he saide, have theym passe on it nor on any other thing be- cause his grace giveth in the bill, but they to see yf it be for a common wele to his subjectes, and have an eye thither- ' See Introd. to Statutes of the Realm, xxxi, xxxii. 78 LEGISLATIVE METHODS AND FORMS Ch. V. wards. And on Wednesday next he will be there agayne to hear their mjndes. . . . This saide burges of the Parlia- mente^.' This description, apparently by an eye-witness, throws an interesting light on the relations of Henry to his Parliament. The measure can be identified as the Act of 1535-6 about Vagabonds (27 Hen. VIII. c. %S), but the passage quoted is clearly insufficient to support Froude's statement that this Act was ' the composition of Henry him- self, and the most finished which he has left to us ^.' It is probable that the most important Acts of the Tudor period were framed by committees of the Privy Council, such as the committee which was appointed in 1583 ' to consider what laws shall be established in this Parliament, and to name men that shall make the books thereof^.' Share of In the period after the Restoration, the judges, who at prepara" that time assisted the House of Lords, not only in their B°u°ft judicial but in their legislative business, and habitually Eestora- attended the sittings of the House for that purpose, appear to have been occasionally employed by the House as drafts- men of Bills or clauses. Sometimes the heads of a Bill were agreed to by the House, and a direction was given either to the judges generally or to particular judges to prepare a Bill. In other cases a judge would attend a Grand Com- mittee of the House as a kind of assessor, and do such drafting work as was required *. It is not clear how long this practice continued, but there is an interesting reference to it in a speech delivered by Lord Hardwicke in the House of Lords on the Militia Bill in 1756^- 'In old times,' he said, ' almost all the laws which were designed to be public * Letter of Thomas Dorset to the Mayor of Plymouth : Suppi-essim of Ok Monasteries (Camden Society), p. 38. 2 Froude, i. 69. See also p. 75: 'Of this expanded statute we have positive evidence, as I said, that Henry was himself the author.' ' Dasent, Acts of the Frivy Council, New Series, iv. 398. * For illustrations of this practice see 14th Report of the Bist. MSS. Commission, Appendix, Part vi, Nos. 567, 581, 608, 641, 667, 702 ; MSS. of the Rouse of Lords, New Series, 1693-1695, No. 930. ° Harris, Life of Lord Hardwicke, iii. 58. PREPARATION OF ACTS 79 ActSj and to continue as the standing laws of tliis Kingdom, Ch. V. were first moved for, drawn up, and passed in this House, where we have the learned judges always attending, and ready to give us their advice and assistance. From their know- ledge and experience they must be allowed to be best able to tell whether any grievance complained of proceeds from the non-execution of the laws in being, and whether it be of such a nature as may be redressed by a new law. In the former case, a new law must be always unnecessary, and in the latter it must be ridiculous. And when by the opinion and advice of the judges we find that neither of these is the case, we have their assistance whereby we are enabled to draw up a new law in such a manner as to render it effectual and easy to understand. This is the true reason why in former times we had very few laws passed in Parliament, and very seldom, if any, a posterior law explaining and amending a former.' There might be some diflBculty in identifjdng the golden age of legislation to which Lord Hardwicke thus refers, but the practice which he commends appears to have been continued at intervals until at least the middle of the eighteenth century. For instance, in 1758, on Lord Hard- wicke^s suggestion, certain petitions on a pending Habeas Corpus Bill were referred to the judges, with instructions to prepare another Bill to be submitted to the House at the commencement of the next session of Parliament '. The only surviving trace to be found at the present day of the old practice of referring Bills to be drawn or settled by judges is the Standing Order of the House of Lords under which an Estate Bill, that is to say, a Private Bill for enlarging the powers of dealing with an estate under a par- ticular famUy settlement, is referred to two judges for their opinion and report^. Some Acts dealing with specially legal topics appear, as Lawyers' might be expected, to have been drawn by eminent lawyers, ' Harris, Life of Lard Hardwicke, iii. 164, 166. ^ See May, Parliamentary Practiix, loth ed., p. 810. 8o LEGISLATIVE METHODS AND FORMS Ch. V. Thus, the Statute of Distributions is said to have been 'penned' by a distinguished civilian, Sir Leoline Jenkins, and, at a much later date, the Fines and Recoveries Act and other Acts arising out of the recommendations of the Eeal Property Law Commissions are known to have been drawn by the great conveyancer Mr. Christie. Many other statutes bear intrinsic evidence of having been the work of con- veyancers. Eigh- As to the mode in which the copious and ill-expressed century legislation of the eighteenth century was prepared, there is legisla- little evidence available. Much of it was the work of private tion, _ ^ _ members. Administrative measures introduced by a minister of the Crown may presumably have been drawn by some member of his official staff, or by some legal expert attached to, or working for, his department. Mr. Pitt's Towards the close of the century William Pitt appears to nientarv -^^^^ made some more definite and permanent arrangements Counsel.' for the preparation of measures for which he was respon- sible. Mr. William Harrison, who gave evidence before a Select Committee of the House of Commons in 1833^, described himself as then being Parliamentary Counsel to the Treasury, and said that his first connexion with drawing Acts of Parliament began before the Revolution in Prance, in consequence of Mr. Pitt intending to take up some very serious measures for the abolition of tithes, and a complete revision of the Poor Laws, and Mr. Lowndes, who then drew the Acts, requesting assistance. It was arranged that Mr. Harrison, who was then a special pleader under the Bar, was to work for nothing in assisting in drawing Acts of Parliament, on the understanding that he was to succeed to the office of Mr. Lowndes when the latter obtained an appointment as chairman of one of the boards. He worked a few years ' very hard ' without any salary. The measures of poor law^ and tithe were, he says, laid aside in conse- ' Reiiort (1833) on House of Commons' Officers and Fees, p. 163. ' Mr. Harrison was of course speaking from memory. The Poor Law PREPARATION OF ACTS 8l quence of the commeneement of the French War, and other Ch. V. matters requiring general attention. Mr. Harrison says that he drew the Tax Bills, beside all the Bills connected with raising men for the army and alterations of the militia law, and was unremunerated. When Mr. Lowndes was appointed Chairman to the Board of Taxes (Feb. 1798), Mr. Harrison succeeded him in accordance with the previous understanding. He was called to the Bar in 1800, but shortly afterwards was told by Mr. Perceval that in consequence of the pressure of public business he must not go on circuit. He said that his duties in 1833 were to draw or settle all the Bills that belong to Government in the Department of the Treasury, but that, though only called Parliamentary Counsel to the Treasury, he had drawn Bills for other departments. Thus he had drawn for the Foreign OflBee Bills for carrying treaties of peace into execution, for erection of Slave Courts abroad, and for other purposes. During the whole of the war he drew all the military Bills for the Colonial Office. He had drawn Militia Bills for the Home Office, and all the Church Bills for the Commissioners, and the Bills for the residence of the clergy, but not Sir R. PeeFs Criminal Law Acts, as he was not specially conversant with criminal law. He occasionally drew, but more often settled. Revenue Bills. He was then engaged in drawing ' the Bills relating to the Bank Charter, and the general Banking Bill.^ 'I receive the Minute of Instructions from the Chancellor of the Exchequer ; I put the Minute into heads, with details for revision and approbation, and then T prepare the Bill ; and I attend meetings with the Law Officers, at his house, in consultations, not legal, but official consultations.'' ' Bills have come to me from all departments of Government which have not a counsel of their own. They would not send me the Colonial Slavery Bill, for instance : the counsel to the projects were not wholly laid aside. In 1796 Pitt brought in a Poor Law Bill, which became the subject of severe animadversions by Bentham. ILBERT G 82 LEGISLATIVE METHODS AND FORMS Ch. V. office would of course take care of such a Bill ^.' Mr. Har- rison received a salary of j^x^ooo a year, which appears from the Treasury papers to have been charged to the grants for salaries and allowances of the officers of the two Houses of Parliament^. He also drew ^^'400 a year as Law Clerk to the War Office. Change in Very little appears to be remembered about Mr. Harrison minis- or his work, and it is probable that in giving evidence he terial re- exaggerated the duties and importance of his office. The Acts bility for which he said he drew are not masterpieces of draftsmanship. legisla- . . , , . . tion. But his evidence is of interest as illustrating the dawn of the sense of Government responsibility for Parliamentary legisla- tion. It must be borne in mind that the share of the Executive Government in, and their responsibility for, the work of current legislation, has enormously increased during recent years. Many measures which at the present day could not be carried except as Government measures, were, in the last century, and in the earlier part of this century, introduced and carried by private members. Thus, in the history of poor law legislation, 'Gilbert's Act' and ' Hobhouse's Act^ were private members' Acts. Sir Charles Wood, talking to Mr. Nassau Senior about the year 1855, is reported to have said^, 'When I was first in Parliament, twenty-seven years ago, the functions of the Government were chiefly executive. Changes in our laws were proposed by independent members, and carried, not as party questions, by their combined action on both sides. Now, when an independent member brings forward a subject it is not to propose himself a measure, but to call to it the attention of the Government. All the House joins in declaring that the present state of the law is abomin- able, and in requiring the Government to provide a remedy. ' Sir James Fitzjames Stephen tells us how his father, Sir James Stephen, as Under-Secretary for the Colonies, drew the Slave Trade Act, 1824 (5 Geo. IV. c. 113), Sisiory qf Criminal Law, iii. 256. See Leslie Stephen's Life o/Sir James Stephen, p. 47. ' Treasury Letter, September 15, 1835. ^ ' Mrs. Simpson, Many Memories of Many People, p. 223. PREPARATION OF ACTS 83 As soon as the Government has obeyed, and prepared one^ Ch. V. they all oppose it. Our defects as legislators, which is not our business, damage us as administrators, which u our business.' Mr. Harrison appears to have continued drawing Bills Appoint- till about 1837, when his office appears to have fallen into Home abeyance. At the beginning of the present reign, the Home 5^"^^ ^j Secretary was ordinarily responsible for initiating the most important legislative measures of the Government, and, as such, felt the need of more regular and systematic assistance in the preparation of Bills. Accordingly, in the year 1837, Mr. Drinkwater Bethune was appointed to a post in which he was charged with the duty of preparing Bills for Parliament under the directions of the Home Secretary. In 1848, Mr. Bethune became member of the Governor-General's Council at Calcutta, and was succeeded by Mr. Coulson, who was instructed to act under the directions of the Home Secretary in preparing Bills originating from any Department of the Government, and in revising and reporting on any Bills brought into either House of Parliament and referred to him by the Home Secretary for that purpose. In i860, Mr. Coulson was in his turn succeeded by Mr. Henry Thring, now Lord Thring. Mr. Thring appears to have drawn all the most important Cabinet measures of his time ; but it was found that as the number of Bills increased, different Departments employed independent counsel to draw their Bills, while other Bills were drawn by Departmental officers without legal aid. The result of this system, or want of system, was far from satisfactory. The cost was great ; for barristers employed ' by the job ' were entitled to charge fees on the scale customary in private Parliamentary practice. There was no security for uniformity of language, style, or arrangement, in laws which were intended to find their place in a common Statute Book. Nor was there any security for ■ uniformity of principle in measures for which the Government was collectively respon- sible. Different Departments introduced inconsistent Bills, and there was no adequate means by which the Prime G 3 84 LEGISLATIVE METHODS AND FORMS Ch. V. Minister, or the Cabinet as a whole, could exercise effective control over measures fathered by individual Ministers. And lastly, there vi^as no cheek on the financial consequences of legislation. There was nothing to prevent any Minister from introducing a Bill which would impose a heavy charge on the Treasury, and upset the Chancellor of the Exchequer's Budget calculations for the year. Establish- In 1 869, the acute and frugal mind of Mr. Lowe, then Parii -^ Chancellor of the Exchequer, was much impressed with the mentary defective nature of these arrangements. The remedy which Counsel's , . y^ • Office in he devised was the establishment of an Office which should be ^' responsible for the preparation of all Government Bills, and which should be subordinate to the Treasury, and thus brought into immediate relation, not only with the Chancellor of the Exchequer, but with the Eirst Lord of the Treasury, who was usually Prime Minister. The Ofiice was constituted by a Treasury Minute dated Eebruary 8, 1869^, and issued when Mr. Gladstone was First Lord of the Treasury and Mr. Lowe (afterwards Lord Sherbrooke) was Chancellor of the Exchequer. Mr. Thring was appointed head of the Office, with the title, revived for that purpose, of Parliamentary Counsel to the Treasury, and was given a permanent assistant, and a Treasury allowance for office expenses and for such outside legal assis- tance as he might require. The whole of the time of the Parliamentary Counsel and his assistant was to be given to the public, and they were not to engage in private practice. The Parliamentary Counsel was to settle all such Depart- mental Bills, and draw all such other Government Bills (except Scotch and Irish Bills) as he might be requii-ed by the Treasury to settle and draw. The instructions for the preparation of every Bill were to be in writing and sent by the Heads of the Departments to the Parliamentary Counsel ' The arrangements made under this Minute were to be in the first instance temporary and provisional, and were not to be made permanent until after two years' experience of their working. They were revised and made permanent by a Treasury Minute of January 31, 1871. There have been some subsequent Minutes making modifications of detail. PREPARATION OF ACTS 85 through the Treasury, to which latter Department he was to Ch. V. he considered responsible. On the requisition o£ the Treasury he was to advise on all cases arising on Bills or Acts drawn by hinij and to report in special cases referred to him by the Treasury on Bills brought in by private members. It was not to be part of his duty to write memoranda or schemes for Bills, or to attend Parliamentary Committees, unless under instructions from the Treasury. The object aimed at by Mr. Lowe in 1869 was, according Object of to the Select Committee of 1875^ 'to establish an ofBcial jgg department, at the head of which should be a Parliamentary Counsel of great experience, to whom all. the Government Departments in England should have a right to go, so that there should be some person directly responsible for all their Bills if anything went wrong. That responsibility was in- tended, of course, to be a constructive responsibility rather than the actual responsibility of the Parliamentary Counsel to draw every Bill himself ; for in dealing with so vast and multifarious a work as the drawing of Bills for every Depart- ment, it would be impracticable for any one man personally to undertake such a task, though he might and ought to be responsible for the draftsmen who were employed by him.'' The stafE of the Parliamentary Counsel's OflB.ce still remains Staff of practically the same as it was when the Office was first estab- ment'ai y lished in 1869. The permanent staff consists of the Parlia- qk °^^''^ mentary Counsel and the Assistant Parliamentary Counsel, with three shorthand writers, an oflBce-keeper, and an ofiice- boy, and these together run what may be called the legislative workshop. The amount allowed for payments to members of the Bar, working under the direction and on the responsibility of the Parliamentary Counsel, is usually estimated at an annual sum of .^1,500; but this amount is not always expended. Of the barristers employed, two at present attend regularly at the OflBce, doing such work as may be required of them. But their attendance is purely voluntary; they are ' See above, p. 67. 86 LEGISLATIVE METHODS AND FORMS Ch. V, under no permanent engagement ; they are paid by fees in accordance with the amount of work done by them ; and they have their own chambers^ and are at Hberty to take, and do take, outside work. Such other assistance as is required by the Parliamentary Counsel is given by members of the Bar practising at Lincoln's Inn or the Temple. During recent years, such assistance has been mainly required either for Consolidation Bills or for Bills with respect to which the advice of special experts is desirable. Uiadual When the Office was first established, the Departments of depM-t- which had been in the habit of preparing their own Bills mental through the agency of the salaried legal officers attached to men. them continued for a time to do so, seeking the aid of the Parliamentary Counsel when necessary. This practice was, however, gradually abandoned, and now all Government Bills, except Scotch and Irish Bills, and subject to a few other unimportant exceptions, are prepared by or under the re- sponsibility of the Parliamentary CounseFs Office ^. Practice At the beginning of November, there is usually a meeting structions °^ *^® Cabinet to consider the most important of the legis- for Gov- lative measures to be brought forward in the coming session ernment ° Bills. In order to be ready for these Bills, the Parliamentary Counsel's Office is usually opened on November i, after having been closed for the Parliamentary recess. He may, of course, have had a previous hint of the subjects likely to engage his attention, in case it should be necessary or convenient to consider them during the recess. Some time in the month of November the Parliamentary Clerk to the Treasury usually sends round a circular to the other Depart- ments, requesting them to inform the Treasury what Depart- 1 For Scotch and Irish Bills there are separate draftsmen. See below, p. 90. India Office Bills are still usually prepared by the legal adviser to the India Office. The Budget Bill and other Revenue Bills were, until recently, drawn by the officers of the Revenue Departments, but are now drawn in the Parliamentary Counsel's Office. The Appropriation Bill, and » few other Bills of a purely formal character, are still drawn outside the Parliamentary Counsel's Office. PREPARATION OF ACTS 87 mental Bills are likely to be required. All formal instructions Ch. V. for Government Bills are sent by the Treasury to the Parliamentary Counsel^ who is thus placed in the position of being draftsman to the Government, and not to any particular Department. The form of the instructions which he receives is usually as follows : — Treasury Chambers, igo . Sir, I am directed by the Lords Commissioners of His Majesty's Treasury to transmit to you herewith a copy of a Letter from the [Home Office] dated containing instructions for the preparation of a Bill to and I am to request that you will place yourself in communication with the \^IIome Office] with a view to drawing the same. I am, Sir, Your obedient Servant, A. B. The Parliamentary Counsel. It will be seen that the instructions thus given are of a Procedure general and indefinite character. They may or may not be oHnstriS- accompanied by more specific instructions from the Minister tions. or Department principally concerned, in the form either of a short note, or of reference to the report of a Commission or Committee, or of papers showing the circumstances which appear to render legislation expedient. The procedure adopted on receipt of the instructions will vary according to the character and importance of the measure. There will usually be a preliminary conference either with the Minister who is to take charge of the Bill, or with the permanent head of his Department, or with both. In the case of minor Depart- mental measures, the instructions first received may suffice for the immediate preparation of a draft much in the form in which it will be submitted to Parliament as a Bill. In the 88 LEGISLATIVE METHODS AND FORMS Ch. V. case of more important and elaborate measures, the stage of gestation is naturally longer. It is often necessary to prepare memoranda stating the existing law, tracing the history of previous legislative enactments or proposals, or raising the preliminary questions of principle which have to be settled. The first draft may take the form of a rough ' sketch ' or of ' heads of a Bill.-" The original draft, whether in the form of a Bill or otherwise, is gradually elaborated after repeated conferences with the Minister, and with those whom he takes into his confidence. A measure will often affect more than one of the Govern- ment Departments; and in those cases the Departments affected will have to be consulted. The responsibility for seeing that this is done rests, primarily, with the initiating Department ; but, as a matter of convenience, the necessary communications are often made by the draftsman. In par- ticular, the attention of the Treasury ought to be directed to any legislative proposal involving expenditure of public money; and the Parliamentary Counsel, as an officer of the Treasury, is charged with responsibility for seeing that this duty is not overlooked. When there is a conflict between the views of different Departments on a subject of legislation, the Parliamentary Counsel, from his neutral position, may often find it possible to suggest a mode of harmonizing them. And his general responsibility for all Government Bills enables him to guard against the risk of one Department bringing forward proposals inconsistent with those brought forward by another. When the draft of a Bill has been finally or approximately settled, it is usually circulated to all the members of the Cabinet for their information before introduction into Parlia- ment ; and the Parliamentary Counsel supplies the executive Department concerned with a sufficient number of copies for this circulation. So long as a Bill remains in the form of a draft, it can be altered and reprinted as often as convenience requires, and PREPARATION OF ACTS 89 the Parliamentary Counsel employs the services of the King's Ch. V. Printers for this purpose. But as soon as a Bill has been introduced and printed by order of Parliament, it passes out of his control. It can then only be altered by the authority of the House, and copies of the Bill, in its original or its amended form, can only be supplied in the same way as other Parliamentary documents. Of course, however, the labours of the draftsman do not Work of end at this stage. The publication of a Bill brings sug- after in- gestions for amendment, which may be forwarded by the of°Biif '*"^ Minister or Department for consideration. After the second '»*o ^^^'- liament. readmg, these suggestions take the form of amendments on the notice paper, which will have to be daily scrutinized. In anticipation of the Committee stage, the draftsman will often find it prudent to prepare, for the purpose of refreshing his own memory, and for the use of the Minister in charge, notes on the several clauses, explaining the origin and object of the proposals which they embody, referring to the precedents on which reliance can be placed, and noting the arguments which may be used or which may have to be met. As the Committee stage approaches, and when it has been reached, the amend- ments will be the subject of discussion with the Minister, and alterations or consequential amendments will have to be framed. If the Bill goes to a Committee of the whole House or to one of the Grand Committees, the draftsman may perhaps be expected to attend the debate, and give such assistance as he can in the way of framing or modifying amendments, or meeting points ^. Where a Bill is much amended in Committee, it will require minute examination after the Committee stage, for the purpose of seeing whether there are any errors to be corrected, inconsistencies to be removed, or consequential ' The arrangements of the House of Commons are not conveniently adapted for this pui-pose, as the seat usually occupied by the Parlia- mentary Counsel, and other permanent officials, is at the opposite end of the House to the Treasury Bench. The arrangements in Grand Committee are more convenient. go LEGISLATIVE METHODS AND FORMS Ch. V. alterations to be made ; and amendments will have to be framed for insertion at a later stage. Notes will also have to be written on various points ; and the literature which thus gathers round a Bill often attains to formidable dimen- sions. When a Bill of great importance is in progress, it requires the constant and unremitting attention of the Parliamentary Counsel, to the exclusion of all other work. At such times, he is compelled to delegate to the Assistant Parliamentary Counsel, with such other assistance as he can obtain, the responsibility for all Government Bills of minor importance. Scotch Under the Minute of 1869, Scotch and Irish Bills are Bills. excepted from the Government Bills for which the Parliamen- tary Counsel's Office is responsible. At present, Scotch Bills are drawn, as a rule, by the Secretary to the Lord Advocate, ordinary Irish Bills by the draftsman attached to the Irish Office. But all the more important Irish Bills, such as the Irish Church Bill of 1 869, the several Irish Land Bills, the Prevention of Crimes Bill, the Government of Ireland Bill of J 886, and the Local Government (Ireland) Bills of 189a and 1898, have been drawn in the Office of the Parliamentary Counsel. Their complexity, and the impor- tant political and financial questions raised by them, made the adoption of this course necessary. Bills affecting the Board of Works in Ireland are usually drawn or settled in the Parliamentary Counsel^s Office, because the Board are Treasury officers. In the case of English Bills applying to Scotland or Ireland, or both, the practice is to draw them in the Office of the Parliamentary Counsel, and to attach to them 'application clauses' which are left in blank, and of which the details are filled in by the Scotch or Irish draftsman. The Scotch and Irish draftsmen attend in London during the session, but at other times remain at Edinburgh or Dublin. Private The Minute of 1869 directed that the Parliamentary mem era Counsel should report in special cases referred to him by the Treasury on Bills brought in by private members. But at PREPARATION OF ACTS 91 present, except in the case of such references, the Parliamen- Ch. V. tary Counsel is in no way responsible for the preparation or criticism of such Bills. The special instructions are usually given in cases where the Grovernment, being favourably inclined to the principle of a private member's Bill, promises to facilitate its passing on condition of his accepting the Government amendments. No systematic supervision is exercised over private members' Bills. The Home Office was at one time supposed to exercise some kind of general supervision over them, but under the existing practice does not criticize any Bills except those relating to Home Office subjects. Each Government Department is in the habit of watching Bills specially affecting matters with which the Department is concerned, and this departmental criticism frequently stops the progress of mischievous Bills, or requires the insertion in them of necessary amendments. It is also the duty of the Parliamen- tary Clerk of the Treasury to call the attention of Depart- ments to Bills affecting them. And, finally, the Government often rely on the advice of the law officers of the Crown in considering whether any opposition should be offered to private members' Bills. In practice, most private members' Bills are, for some reason or other, ' blocked ' at some stage of their progress by some private member, and consequently there is much practical difficulty in getting a private member's Bill through, except by general consent. But it may happen, under existing arrangements, that a Bill, bad in substance or in form, or in both, slips through Parliament because it is not the duty or interest of any one in particular to stop or improve it. The only class of local and personal, or as they are Hybrid commonly called, private Bills, with which the Parliamentary ' ^' Counsel is concerned, are Government Hybrid Bills, that is to say, Bills introduced in the same manner as public general Bills, but being of the same character as ordinary local Bills ^. The ' See aboTe, p. 29. 92 LEGISLATIVE METHODS AND FORMS Ch. V. Private Bills. Pro- visional Order Bills. instructions for such Bills (which are few in number) are sent to the Office of the Parliamentary Counsel, but he always hands them over to some barrister conversant with private Bill legislation, and is only responsible for providing a competent draftsman, though he is sometimes requested by a Minister to exercise supervision over a particular Bill of this kind. With ordinary private Bills the Parliamentary Counsel has nothing to do, beyond advising occasionally on the form which should be assumed by a clause to protect the interests of the Treasury, or of some other public Department or public interest. Private Bills are watched by the Chairmen of the General Committees of the House of Lords and the House of Commons, with the assistance of their respective counsel and of the officers of the House. It is their duty to see that Standing Orders are complied with, that the Bills correspond more or less closely to the model Bills which have been prepared under their instructions, do not infringe general principles of legislation, and are not unjust or otherwise objectionable. The necessity of considering whether a private Bill infringes general principles of legislation indicates one point at which private touches public legis- lation. There is another. Where special provisions are of constant recurrence in private Acts, it is desirable that they should be generalized by a public Act, and made to apply to all future cases, either directly or by the machinery of incorporation in the special Act. The most notable instance of legislation of the latter class is supplied by the Clauses Consolidation Acts of 1 845, which were prepared by Mr. Booth of the Board of Trade, and which tended greatly to the brevity and uniformity of local Acts. Further steps in the same direction have been taken by the Public Health Act, 1890, and the Electric Lighting (Clauses) Act, 1899; and legislation of this kind might usefully be extended. Provisional Order Bills, though introduced by a Minister of the Crown on behalf of his Department, belong essentially PREPARATION OF ACTS 93 to the class of private Bills. A Provisional Order Bill is Ch. V. usually o£ a merely formal character. The substantial part is contained in the Orders which the Bill confirms. Those Orders are made by a Department after a local inquiry by their own officers, or after negotiations with the promoters and opponents. The Departments making them have officers who are familiar with the work, and who are accustomed to attend the committees on these Orders, and on Bills bearing on the same subjects as the Orders ^. Of course, as in the case of private Bills, steps may be taken with advantage towards generalizing the provisions, and giving more uni- formity to the language and arrangement, of the Provisional Orders ^. The main duties of the Parliamentary Counsel relate to Other current Parliamentary legislation. There are, however, three pariia- other classes of duties with which he is concerned : — Counsefs (i) Advising on questions affecting Parliamentary legis- Office, lation ; (3) Subordinate legislation, i. e. Orders in Council and Statutory Rules; (3) Statute Law Revision and Consolidation Bills. The Parliamentary Counsel is required by the Minute of Advising • • T.M1 » i 1 , on ques- 1869 to advise on all cases arismg on Bills or Acts drawn by tions him. The amount of work falling under this head is indefi- w^gia"^ nite, and its tendency is to increase. It is difficult to define t'on. or restrict the classes of cases which are, or may be, connected with legislatic&i, past, pending, or prospective. In such cases it is sometimes convenient for the Government to take the ' Instructions for the preparation of Orders authorizing the acquisition of land under the Military Lands Act, 1892, and of the necessary con- firming Bills, are usually sent to the Parliamentary Counsel's Office, and are dealt with like instructions for Hybrid Bills. But with ordinary Provisional Orders, such as those which are made in great numbers by the Local Government Board and the Board of Trade, the Parliamentary Counsel has nothing' to do. = The Electric Lighting (Clauses) Act, 1899, has fixed the form to be adopted, subject to necessary variations, by Electric Lighting Orders under the Acts which relate to Electric Lighting. 94 LEGISLATIVE METHODS AND FORMS Ch. V. advice o£ the Parliamentary Counsel instead of consulting the Law Officers of the Crown ; and the Parliamentary Counsel can often, from his knowledge of the history and intention of an enactment, give a clue to its true construction. For this reason, even where .questions are referred to the Law Officers, the case for their opinion has frequently to be settled by, and preliminary questions have to be discussed with, the Parliamentary Counsel. Statutory Under the Minute of 1869, it is part of the duty of the orders. Parliamentary Counsel to draw or settle all such Orders in Council as he may be instructed to draw or settle on special occasions. This is an exceptional, and not a general, duty, and the great bulk of Orders in Council are drawn outside the Office, by or under the instructions of the Departments by which they are initiated. Most of the statutory rules are drawn in the same way. But where an Order in Council or a set of statutory rules is of exceptional importance or diffi- culty, it is sometimes drawn in the office of the Parliamentary Counsel. For instance, the code of rules under the Army Act of 1881, which was part of the great scheme of consolidating the Mutiny Acts and the Articles of War, was drawn in that office, and probably could not have been drawn elsewhere. It is so important that rules framed under an Act should be framed on the same lines as the Act itself, and it is so difficult to frame those rules properly without being intimately conversant with the provisions of the Act and the objects aimed at by it, that the Parliamentary Counsel not unfre- quently finds himself involved in some kind of indirect responsibility for the proper framing of rules or orders under Acts drawn by him. Among recent instances of Orders and rules so drawn are the Orders in Council of 1888 and 1889, relating to the registration of voters. The rules under the Irish Land Act of 1891, the Order in Council under the Marriage Act of the same year, and the difficult and compli- cated Orders in Council under the Local Government (ireland) Act, 1898, were also drawn in this manner. Banking PREPARATION OF ACTS 95 Charters, and Orders in Councilj ordinances, and proclama- Ch. V. tions relating to currency in the United Kingdom and the Colonies, have also been frequently drawn in the Parliamentary . Counsel's office. The work of subordinate legislation has, however^ always been regarded as extraneous to the ordinary duties of the office, and has usually been done in what would otherwise be leisure time. Considerable progress has been made during the last thirty statute years with the work of indexing the statute law, repealing yjgjon" obsolete enactments, and consolidating scattered enactments. ^^^J^l'}' ° _ solidation. This work has been mainly done at the instance and on the responsibility of the Statute Law Committee^. But the Parliamentary Counsel has always been a member of that committee, and the consolidation work recommended by it, and to some extent the indexing and repeal, have been done by draftsmen working under his instructions. In fact, the task of indexing, expurgating, and rearranging the Statute Book has for many years practically constituted a second charge on the time of his office, and has occupied all the time that could be spared from attending to current legisla- tion, and advising on questions connected with that legislation. Owing to recent difficulties, the work of consolidation has practically come to a standstill for the present ; but there is no doubt that it ought to be resumed and carried on in a systematic manner. The objects aimed at by Mr. Lowe, when he established the Results of Parliamentary Counsel's office in 1869, appear to have been : — ment of (1) Economy: ^^^l'^- ^ ' •' ' mentary (a) Better control over Government legislation with respect Counsel's both to policy and to finance ; and (3) Improvement of the form of statutes. All these objects have been substantially attained. Under the old system, special fees on the scale of those Economy, paid to members of the Parliamentary Bar were paid to drafts- men for the preparation of Government measures, and often ' See p. 65. 96 LEGISLATIVE METHODS AND FORMS Ch. V. Control over Gov- ernment tion. Improve- ment in form of statutes. Sugges- tions for amounted to very large sums. Under the new system, the payment of such fees has practically ceased. The permanent staff of the Parliamentary CounseFs office has drawn all Government Bills with the assistance of a few outside counsel, employed and paid under the responsibility of the office. Notwithstanding the growth of Parliamentary legislation since 1869, the cost of drafting Government Bills has been reduced since that date. The control exercised by the Treasury and the Prime Minister has also been made more effectual. As instructions for all departmental Bills must come through the Treasury, it is no longer possible for the head of a department to initiate legislation without the knowledge or consent of the First Lord of the Treasury and the Chancellor of the Exchequer, one of whom is nearly always Leader of the House of Commons, nor to initiate without the knowledge of the Treasury legislation involving the expenditure of public money. Perhaps the chief advantage which has arisen from the institution of the Parliamentary Counsel^s office has been an improvement in the form of statutes. Acts of Parliament will always form the subject of adverse comments by the Bench, tlie Bar, and the public. But if the Statute Book of the present day is compared with the Statute Book of forty or fifty years ago, it is impossible to deny that the language of statutes has become more concise, uniform, and accurate, and that the arrangement of statutes has become more logical and consistent. The Select Committee of 1875 on Acts of Parliament expressly referred to ' the better style of drafting which has been recently introduced into Acts of Parliament, as well with regard to the arrangement of clauses and the subdivision of the Bill into distinct parts, as also with regard to the language used, which, in simplicity and clear- ness, is far superior to the " verbose and obscure language " of former enactments.' Suggestions have been made from time to time for en- larging the duties of the Parliamentary Counsel's office ia PREPARATION OF ACTS 97 the direction of systematizing the work of consolidatiouj Ch. v. extending central control over the preparation of Orders in extension Council and statutory rules, and supplying assistance f or, or °| q^*'®* exercising control over, the preparation of Bills introduced by private members. But most of these suggestions raise difficult administrative questions, and the adoption of any of them would involve an increase in the staff and expense of the office, and some further restriction on the personal respon- sibility of its head. CHAPTER VI PASSAGE OF BILLS THROUGH PARLIAMENT^ Ch. VI. The right of initiating legislation belongs to every member Eight of o£ Parliament ^. Any member of either House can introduce legisla-"^ a Bill, and no distinction is made in this respect between tion. members of the Executive Government and other members of the House ^- The number of Bills introduced each session by private members largely exceeds the number of Bills intro- duced on behalf of the Government. But a private member's Bill has usually much less chance of becoming law*. This is owing to the arrangements made for the business of the House. The normal arrangements are these. In the early part of each session, precedence is given to Government business on Mondays, Thursdays, and Fridays, Fridays being usually appropriated to Supply. Tuesdays are reserved for the discussion of motions of which private members have given notice, and Wednesdays are set apart for the discussion of private members^ Bills, in the order in which they appear on the notice paper. As the session advances, the Government sometimes appropriate the whole time of the House for the discussion of a Bill of special importance, and towards the end of the session the Government, after a ' massacre of the inno- ' For further information on the subject of this chapter, reference must be made to May's Parliamentary Practice, to Sir William Anson's Law and Custom of the Constitution, Part II, ' Parliament ' ; and, with respect to private Bills, to Clifford's History of Private Bill Legislation. The chapter relates only to public Bills, and to such points of procedure as the drafts- man of a Bill has to bear in mind. ^ But the introduction of a Bill touching the prerogative or the interests of the Crown requires the consent or recommendation of the Crown. ' Aa to the right of initiating legislation in France and Germany, see Note A at the end of this chapter. • See below, p. aig. PASSAGE OF BILLS THROUGH PARLIAMENT 99 cents/ that is to say^ after abandoning measures which it Ch. VI. despairs of being able to pass, takes the whole time of the House for its legislative and other business. Therefore the chance of a private member being able to pass a Bill depends on one of two things. He must either, by the chance of the ballot, obtain a first place for his Bill on some Wednesday at a reasonably early part of the session ; or he must so avoid or neutralize opposition to his Bill that it can pass through its several stages as an unopposed measure after the conclusion of the business which involves discussion. The mode of introduction ^ of a public Bill differs in the Mode of House of Lords and the House of Commons. tion. In the House of Lords a Bill is presented by any peer without notice, and is thereupon immediately read a first time. The usual practice is to present the Bill in a complete shape, so that it may be circulated to the peers immediately. But sometimes a Bill is presented in ' dummy,' and the circulation of the Bill is delayed and alterations are made in it after the dummy has been presented. In the House of Commons a public Bill can be only intro- duced on motion after notice given. If the Bill is a Money Bill, i. e. a Bill of which the main object is to grant money, it must originate in a Committee of the whole House ^. Notice must be given for the House to go into Committee for the purpose of originating the Bill. A resolution is then passed in Committee that it is expedient to grant the money, and to make such legislative provisions as are required for the purpose of the Bill. This resolution is framed by the officers of the House in the Public Bill Office after seeing the proposed Bill ; and care must be taken that the terms of the resolution are sufficiently wide to cover the whole of the Bill. ' As to legislative procedure in the American Congress, see Bryce's American Commonwealth, Part I, ch. xvi ; as to legislative procedure in France, see Note B at the end of this chapter. ' See Standing Order, 58. H a lOO LEGISLATIVE METHODS AND FORMS Ch. VI. Where a Bill is not a Money Bill, but any clause of the Bill involves a grant of public money, a resolution authorizing the grant must be passed by a Committee of the whole House, and adopted by the House on report before the House deals with the clause in Committee, and the Committee may be appointed and resolution moved at any time after second reading of the Bill. Where, therefore, a Bill authorizes the grant of pubhc money, it should be considered whether this is its main object or merely a subsidiary object. It must also be borne in mind that, under Standing Order 57, the House will not proceed on any motion for a grant or charge on the public revenue, whether payable out of the Consolidated Fund, or out of moneys provided by Parliament, unless recommended by the Crown. If a Bill is not a Money Bill, a notice of motion is given for leave to introduce it. This notice specifies the full title of the Bill, preceded by a short title for entry on the Orders of the Day. This short title is printed on the top of every page of the Bill, and is the name by which the Bill is entered in all proceedings of the House, but it need not be the same as the short title which, by the practice of the House of Lords, is now required to be enacted in the body of every BUI. When a member, on his motion, is ordered to bring in the Bill, he must present it. He obtains, usually from the Public Bill Office, a piece of paper called a ' dummy,' which he then presents, and the Bill is read a first time. The real Bill is afterwards handed to the officers of the House, either at the Table or at the Public Bill Office, for circulation. The Bill must be circulated in sufficient time before the date for its second reading ; but not unfrequently some days or even weeks elapse between the introduction of the Bill and its circulation to the House. Until a Bill is circulated, any change can be made in it which is not at variance either with the title or with any PASSAGE OF BILLS THROUGH PARLIAMENT lOI statement respecting the Bill made by the member upon its Ch. VI. introduction. When a Bill is once circulated, no change can be made in it except by way of amendment in Committee^ but if a mistake is discovered the order for the second reading of the Bill can be discharged and a new Bill introduced and circulated immediately. Italic headings and marginal notes do not form part of a Bill, and can at any time be altered by the officers of the House 1. Where a clause is altered in its passage through the House, care should be taken to make such consequential alterations of the marginal notes as are necessary. The officers of the House are responsible for the printing in italics of those portions of the Bill which have to be so printed, and for the proper printing on the back of the Bill of the names of the members by whom it is ' backed.' In the House of Commons the first stage in the progress Stages in of a public Bill is motion for leave to introduce. If leave ©f Bill, is granted the House orders that the Bill be prepared and brought in by the mover and seconder, other names being sometimes added by the House. The Bill may then be immediately presented. The questions, 'That the Bill be now read a first time,' and, ' That it be printed,' are put without amendment and debate, and an order is then made that it be read a second time on a day named. The second reading of a Bill is the stage at which the principle of the Bill ought to be discussed. An opponent may either move ' that the Bill be read a second time that day six [or three] months,' which shelves it for the session, or may meet the motion with a direct negative, which shelves it for a day, or may move, by way of amendment, resolutions which affirm an object or a principle contradictory to the purposes of the Bill. If the Bill is read a second time it may be referred either ' See A. 0. V. G. E. Bailway Co. (1879), 11 Ch. D. 460, and SiOton v. SuMon (i88a), aa Ch. D. at p. 513. I02 LEGISLATIVE METHODS AND FORMS Ch. VI. to a Committee of the whole House or to one of the Standing Committees which are now usually appointed for each session, or to a Select Committee. Where it is desired to introduce numerous amendments into a Bill it is sometimes convenient to move that it be committed pro forma, in which case it can be reprinted with the necessary amendments, and discussed in Committee in its amended form. On the motion to refer a Bill to a Committee, an instruc- tion to the Committee may be moved for the purpose of extending the scope of the Bill. This practice has been recently restricted by rulings of the Speaker. On May 5, 1893, the Speaker laid down the following ruUngs with reference to the instructions moved on the Government of Ireland Bill: — ' The principles which guide a limit in the system of instruc- tions on going into Committee may be thus stated : — First, an instruction must empower the Committee to do something -which the Committee is not otherwise empowered to do. Secondly, the purpose of the instruction must be supplementary and ancillary to the purpose of the Bill, and must fall within the general scope and framework of the Bill. Thirdly, it is irregular to introduce into a Bill, by an instruction to the Committee, a subject which should properly form the substance of a distinct measure, having regard to usage and the general practice of enacting distinct statutes for distinct branches of law.' Under Standing Order 35 of the House of Commons, in Committee on a Bill the preamble is to stand postponed until after the consideration of the clauses, without question put. In Committee, the clauses are discussed in the order in which they stand in the BUI, unless it is moved and resolved to postpone a clause or group of clauses. The amendments on each clause are discussed in consecutive order with reference to the parts of the clause to which they relate. When the Conunittee have agreed that particular words do or do not stand part of the clause, they cannot go back from this decision at the Committee stage. New clauses are introduced and discussed after the con- PASSAGE OF BILLS THROUGH PARLIAMENT 103 sideration of the Bill, as referred to the Committee, has been Ch. VI. concluded. When the discussion in Committee is finished, the Bill is reported to the House with the amendments made, and the next stage is the consideration of report. At this stage new clauses, of which notice stands on the notice paper, are brought up for discussion before amendments on existing clauses. Under Standing Order 41 of the House of Commons, no amendment may be proposed on the report stage which could not have been proposed in Committee without an instruction from the House. After the report stage, a motion may be made to recommit the Bill, either generally or with reference to a particular provision. A motion of this kind is sometimes made when it is desired to introduce a financial provision which could not have been introduced at the report stage. But motions to recommit are, for obvious reasons, not encouraged. Where it is desired to make exhaustive alterations in a Bill, the Bill is sometimes committed pro forma, in order that it may be reprinted, with a view to its discussion in the altered form. The next stage is the third reading. Under Standing Order 4a, no amendments, not being merely verbal, are to be made to any Bill on the third reading. The procedure in the House of Lords differs in some respects from the procedure in the House of Commons. In Committee, new clauses are discussed in the order in which they will stand in the Bill, and their discussion is not postponed until the existing clauses of the Bill have been disposed of. Under recent practice, a Bill, after having gone through a Committee, of the whole House, is referred to a Standing Committee unless this reference is expressly negatived. Greater latitude is allowed for amendments on the report stage and on the motion for third reading. Amendments may also be moved on the motion that the Bill do pass. Where a Bill originating in one House is amended in the I04 LEGISLATIVE METHODS AND FORMS Cn. VI. other House, a motion is made in the originating House, either that the amendments made in the other House be agreed to, or that they be disagreed to, or that they be amended. If the amendments are all agreed to, nothing further happens in Parliament, and the Bill is ripe for the Royal assent. If there is a disagreement or amendment, the Bill goes back to the second House for reconsideration of the points of difEerenee. If the disagreement continues, the originating House appoints a committee to draw up reasons for its disagreement. Formerly there was a conference between the two Houses, but this practice has been dis- continued for many years. Under the existing practice, the Bill goes backwards and forwards until an agreement is arrived at, or is found to be impracticable. In the latter case the Bill drops. Classes of Reference has been made above to the difEerent classes of mittees. committees to which a Bill may be referred. A Committee of the whole House consists of the House sitting in a less formal manner. The Speaker leaves the chair; his place as chairman is taken by the Chairman of Committees sitting at the table, and the mace is removed from the table. The existing system of Standing Committees began in 1883. Under the present practice two Standing Committees are appointed during each session, in pursuance of standing orders, for the consideration of such Bills relating to Law and Courts of Justice and Legal Procedure, and to Trade, Shipping, Manufactures, Agriculture, and Fishing, as may be committed to them. These Standing Committees, con- sisting of not less than sixty nor more than eighty members, are nominated by the Committee of Selection, who are in every case to regard the classes of Bills committed to the Committee, the composition of the House, and the qualifica- tions of the members selected. The Committee of Selection has the power of adding not more than fifteen members to a Standing Committee in respect of any Bill referred to it PASSAGE OF BILLS THROUGH PARLIAMENT 105 to serve on the Committee during the consideration of the Ch. VI. Bill, and of discharging members serving on the Committee, and of appointing others in substitution for those discharged. The Committee of Selection consists of the Chairman of the Standing Orders Committee, and of seven other members nominated by the House at the beginning of every session. The Chairman of each Standing Committee is appointed from a chairmen's panel nominated by the Committee of Selection. The quorum of a Standing Committee is twenty. The constitution of Select Committees of the House of Commons is regulated by Standing Orders. The normal number is fifteen, but a larger number may be appointed for special reasons. The mode of appointing the members varies. Sometimes the member in charge of a Bill suggests his committee, and leaves it to be appointed by the House. Not unfrequently the members of the Committee are nomi- nated either wholly or partly by the Committee of Selection. The Select Committee on a hybrid Bill, that is to say, on a Bill which though local in its character is for special reasons introduced as a public measure, is nominated partly by the House and partly by the Committee of Selection. The cases in which it is considered expedient to refer a Bill to a Select Committee instead of a Committee of the whole House or to one of the two Standing Committees are usually cases in which it is desirable to take evidence, and for that purpose to summon witnesses and call for papers. Under these circumstances, reference to a Select Committee usually involves delay. It will have been seen that a Bill when once introduced Authenti- into Parliament cannot be altered except by authority of ^<,ts_ Parliament. When a Bill has finally passed both Houses, the King's Printer sends to the House of Lords two copies of the Bill printed on vellum. These copies, after having been examined by the oflBcers of the House of Lords, are certified by the signature of the Clerk of the Parliaments as accurate copies of the Bill to which both Houses have agreed. Io6 LEGISLATIVE METHODS AND FORMS Ch VL and the Royal assent, when signified, is endorsed upon them. One of the copies is stored in the Victoria tower, and the other is deposited in the Record Office \ NOTE A INITIATION OF LEGISLATION IN FEANCE AND GERMANY France. The right of initiating legislation has varied much under the successive constitutions with which France has heen endowed during the last hundred years. The constitution of 1791 gave the representatives of the people the exclusive power of proposing a law. All that was reserved to the king was the power to indicate in each year the subjects which in his opinion ought to be taken into consideration by the Legislature in the course of the session. Under the constitution of the year III (1794) the Council of Five Hundred had the exclusive privilege of initiating and framing laws. The Directorate could invite the Council to take an object into consideration but could not submit the draft of a law. The Conseil des Anciens could not amend measures passed by the Council of Five Hundred. It could only accept or reject them en bloc. The constitution of the year VTII (1799) gave the right of initiating legislation to the Government exclusively. Under this constitution the Council of State was charged with the duty of preparing all laws, and every proposal for a law was supported by some member of that council. Thus the Council of State made all the laws of the First Empire. It acted through a legislative committee {section de legislation). Under the Constitution of 181 4 the king was to propose all laws, but the Chambers might petition (supplier) the king to propose, and might indicate the subject which in their opinion it ought to consider. This right was largely used under the Restoration. The petitions for legislation submitted by the Chambers were drawn up in the form of Bills (propositions de loi) and divided into clauses (articles). The Charter of 1830 expressly gave to the Chambers a right of initiating legislation concurrently with the Crown. ' As to the ancient practice of engrossing Bills and Acts, see Clifford, J^tvate Bill Legislation, pp. 317-332. PASSAGE OF BILLS THROUGH PARLIAMENT I07 The Revolution of 1848 inyested the National Assembly with Ch. VI. the full power of initiating laws, hut the representatives of the ■ executive authority were authorized to submit projects of law to the Assembly. Under Article 75 of the Constitution of 1848 the Council of State was to be consulted on all legislative proposals emanating from the Government and on all legislative proposals submitted to it by the Assembly. The functions of the Council were more fully defined by the law of March 3, 1849, under which i. The Council was to be consulted on all Government legisla- tive proposals, subject to certain exceptions (finance, military matters, treaties, matters of urgency) ; ii. The Council was, at the request of the Assembly, to advise on all legislative proposals, whether proceeding from the Government or not; iii. The Council was to prepare all Government Bills, and advise, at the request of the Government, on all other Bills. The Constitution of 1852 took away the right of initiating legislation from the Assembly and vested it exclusively in the Executive. Under this Constitution the Council of State played a very important part. It superseded the ministers in the task of preparing Bills and practically superseded the Assembly in the task of examining them. It was to draw up all projets de loi, and no amendment suggested by a commission of the legislative body could be adopted until it had received the approval of the Council. A decree of Feb. 3, 1861, slightly enlarged the powers of the so-called legislative body by enabling its commission to appoint three delegates to explain its reasons before the Council of State. Thus practically the assembly remained under the tutelage of the Council in matters of legislation throughout the Second Empire. All this disappeared with the Third Republic, which closely clipped the wings of the Council of State. Under the organic law of May 24, 1872, the Council is to advise on any Government Bill submitted to it by the Government and on any other propo- sition d'initiative parlementaire submitted to it by either of the two Houses. But there is no obligation to consult the Council, and the form and progress of a measure is in no way dependent on its approval. The Council of State still has a legislative committee {section de legislation). Many attempts have been made to give the Council of State a more active part in the preparation of laws, but they have all been found incompatible with the principles involved in the con- stitution of the Third Republic ^ ' See Pierre, Traite de Droit Politique, 59-61, 78-82. Dupriez, Les Ministres, &o., ii. 399-415- Io8 LEGISLATIVE METHODS AND FORMS Germany. C'H. VI. In the German empire the Reichstag has theoretically the right of initiating legislation, but by far the larger part of the statutes which it passes are prepared and first discussed by the Bundesrath. They are then sent to the Reichstag, and, if passed by that body, are again submitted to the Bundesrath for approyal before they are promulgated by the Emperor '. In Prussia the Landtag has the right to initiate legislation, but this right is not much used, and the bulk of the Bills that are introduced, and almost all those that are enacted, are proposed by the Government ^ NOTE B LEGISLATIVE PROCEDURE IN FEAKCE The characteristic feature of French legislative procedure is the system of bureaus. The successive stages of an English public Bill, whether introduced by a member of the Government or by a private member, are in the House of Commons as follows : (i) Motion for leave to introduce. (2) Order giving leave, followed immediately by introduction, first reading, and order to print. (3) Second reading. (4) Reference to a committee, which may be either (a) a committee of the whole House, (&) one of the two Standing Committees on Law and Commerce, or (c) a select com- mittee. (5) Consideration in committee. (6) Report by com- mittee to the House. (7) If the Bill has iDeen amended in committee, consideration of report. (8) Third reading. (9) Passing of the Bill. The normal procedure after second reading is reference to a committee of the whole House. When the House resolves itself into committee the Speaker leaves the chair, and his place is taken by the Chairman of Committees sitting at the table. The mace is removed and the procedure is somewhat less formal. In the House of Commons substantial amendments may be made in committee and on the consideration of report, but not at any subsequent stage. In the House of Lords substantial amendments may be made at any stage after second reading. The House of Lords has no standing committees on law and commerce, but after a Bill has passed through committee of the whole House it is ordinarily referred to a standing committee which meets once a week. The procedure in the French Chamber of Deputies is entirely different. A distinction is drawn between Government Bills, ' See Lowell, Qovemments and Parties in Continental Europe, i. 265. ' Ibid. i. S99. PASSAGE OF BILLS THROUGH PARLIAMENT 109 which are called projets, and private members' Bills, which are Ch. VI. called propositions. The latter are referred to a commission d'initiation, for the purpose of seeing whether they are regular in form. The next stage is reference to the bureaus. At the begin- ning of each session the Chamber, which consists of 576 members, is divided by lot into 1 1 bureaus. The four first bureaus have 53 members each, the others 52 each. Each bureau appoints a president and secretary. When a Bill is 'referred to the bureaus ' each bureau considers it separately, and then appoints a ' commissary ' to represent the views of the bureau. The ' com- missaries,' when united, constitute a ' commission ' or committee. In ordinary cases each bureau appoints a single commissary ; but the committee on the Budget Bill consists of 33 members; three appointed by each bureau. Each committee appoints a president and secretary, the latter being usually the junior member of the committee. They also choose a reporter {rapporteur), who is charged with the important duty of formulating the views of the committee and representing them to the House. The committees usually sit twice a week, on Wednesday and Friday. Their sittings are not public ; but the promoter of a Bill, if not a member of the commission to which it is referred, has a right of audience. The proceedings begin with a general discussion of the Bill. If the principle is approved, the articles or clauses are considered in detail, and may be amended. The proceedings terminate with the preparation and adoption of a report, which is not a mere formal document, but states fully the arguments for and against the proposals accepted. The report is presented to the House, and forms the basis of subsequent discussions on the Bill. In these discussions the ' reporter,' as representative of the committee, takes the leading part in supporting its conclusions. It is difficult for a foreigner to know how this procedure works in practice ; but two or three points naturally occur to any one familiar with English parliamentary procedure. ( i ) The details of a Bill are more likely to receive effective examination before a small committee of eleven than in a committee of the whole House. (2) The practice of submitting a reasoned report on each Bill supplies valuable information which we too often de- siderate in England. (3) The system is exposed to, and probably illustrates, the evils incidental to indirect elections. Each ' com- missary ' represents the majority of the bureau which appointed him. The report of the committee represents the views of the majority of the ' commissaries ' ; but it may well be that those views do not reflect, indeed they may materially differ from, the views of the majority of the whole House. (4) The promoter of a Bill, including the Government as promoter of Government measures, retains less control over it than under the English practice. The Finance Minister may see his budget completely transformed by the Budget Committee ; and we have often been puzzled in England by the conflict between the views of the no LEGISLATIVE METHODS AND FORMS Ch. VI. Budget Committee and the views of the Government, and have found a difficulty in reconciling this conflict with the respon- sibility of the Government for national finance. And, lastly, the spokesman of the measure, as it emerges from the committee, appears to be, not its original promoter, but the reporter of the committee to which it was referred ^. ' For a description of the French system see Pierre, Traiie de Droit Politique. Dupriez, Les Ministres dans les principaux pays d'Europe et d'Ameriqm, a. 384-386. For some instructive comments on the working of the com- mittee system in French legislation, see Lowell, Governments and Parties in Continental Europe, i. 11 i-i 17. See also his remarks on the committee system in Italy (p. 207), the German Empire (p. 255), and Prussia (p. 300). CHAPTER VII CONSOLIDATION OF STATUTES The term ' consolidation/ as applied to statute law, means Ch. VII. the combination in a single measure of enactments relating j, ~ to the same subject-matter, but scattered over different Acts. °^ <=«"- Ti. -n 1 1 P solidation. it Will have been seen from the retrospect embodied in Difficuj. Chapter IV, that, while the process of improving the statute tiesof con- 11 • I. 1 1 1 , soUdation. law by expurgation of the dead and republication of the living law, after having been carried on actively and con- tinuously for the last five-and-twenty years, is now prac- tically complete, the work of consolidation has, for the time being, come to a standstill. This is far from satisfactory. But it must be borne ia mind that consolidation is a much more difficult undertaking than expurgation and republica- tion. There is a common fallacy that the task of consoh- dating Acts of Parliament is mainly mechanical, and involves Kttle more than the use of paste and scissors. There can be no greater delusion. In the first place, it must be remembered that our statute Change of law extends over six centuries of the national life, and that ""S^^S®- every statute speaks with the language and bears the colour of its time. What would be the literary effect of placing in immediate juxtaposition sentences or fragments of sentences from Wyclif, Sir Thomas More, Bacon, Johnson, Macaulay ? Or conceive a line of soldiers consisting of the Black Prince's long-bowmen, Cromwell's buff-coated troops, the grenadier of the ' March to Finchley,' and Mr. Thomas Atkins, marching shoulder to shoulder. Such a literary jumble, such a motley 112 LEGISLATIVE METHODS AND FORMS Ch. VII. Changes of law and cir- cum- stances. Differ- ences of style. Ambigui- ties and obscuri- ties. Consoli- dation means re- writing. and ill-assorted array, would be produced by a congeries of extracts from Plantagenet, Tudor, Georgian, and Victorian statutes. Then, apart from considerations of language, every statute is framed with reference to, and presupposes the existence of, the law, the judicial and administrative institutions, and the social conditions, of its time. During the last fifty years, the leading judicial and administrative institutions of this country, have been completely remodelled. The consolidator who did not carry his work further back than the beginning of Queen Victoria's reign would have to deal with a time when there were no Supreme Court of Judicature, no County Courts, no Local Government Board, no County, District or Parish Councils; when in fact the ordinary machinery re- ferred to and implied in Acts of Parliament was wholly differ- ent. Nor can the consolidator afford to overlook the more subtle and elusive effects produced on the operation of a statute by changes in the rules of substantive law, in rules of procedure, or in social conditions. Again, enactments relating to the same subject-matter, even when belonging approximately to the same period, are not unfrequently drawn in different styles, and employ, in- tentionally or deliberately, different phrases to express the same thing ; and differences of this kind must be removed if ambiguity and inconsistency are to be avoided. Lastly, the comparison and recasting of different enact- ments are certain to bring to the surface obscurities and inconsistencies, some of which may have been made the subject of judicial or other comment, while others may have lurked unseen. It is difficult to justify the retention and stereotyping of these defects, and at the same time it is difficult to remove them without incurring the charge of altering, while professing to reproduce, the law. The upshot is that the work of consolidation requires in- timate acquaintance with past as well as with existing laws and institutions, involves the rewriting and not merely the CONSOLIDATION OF STATUTES II3 placing together of laws, the substitution of modern for Ch. Vli. antiquated language and machinery, the harmonizing of inconsistent enactments, and yet the performance of this work in such a way as to effect the minimum of change in expressions which have been made the subject of judicial decisions and on which a long course of practice has been based. The performance of such a task with the degree of accuracy properly required by Parliament requires minute examination and careful deliberation, and imposes a heavy burden, not merely on the draftsman, but on numerous mem- bers of the official administrative staff. And, whilst the preparation of Consolidation Acts is no Consoli- easy task, their introduction and passage through Parliament Acts not is apt to be attended with considerable difficulty. Statute ^°P"' law reform is one of those things which every one praises in the abstract, but about which, in its concrete form, no one is enthusiastic. No minister expects to obtain much credit from passing a measure of consolidation. Such measures are not eagerly demanded by the constituencies, and do not figure as items in any political programme. The permanent official, to whom a minister looks for advice, is often reluctant to alter the form of Acts with which he is familiar, and knows that the preparation of a Consohdation Bill may severely tax the time of himself and his subordinates. Hence a minister is naturally unwilling to introduce such a measure except on an assurance that it will pass unopposed, and will not en- croach on the scanty time available for proposals looming more largely in the public eye. And such an assurance cannot always be obtained. It is difficult to disabuse the average member of Parliament of the notion that the intro- duction of a Consolidation Bill affords a suitable opportunity for proposing amendments, to satisfy him that re-enactment does not mean approval or perpetuation of the existing law, or to convince him that attempts to combine substantial amendment with consolidation almost inevitably spell failure in both. ILBERT I 114 LEGISLATIVE METHODS AND FORMS Ch. VII. Yet, notwithstanding these difficulties and obstacles, reason- Progr^s ^ble progress has been made since 1869 with the consolida- made in tion of various branches o£ the statute law. Among the consoh- Tj J. J 1. dation. groups of enactments which have been consolidated may be mentioned those relating to the Coinage, the National Debt, Stamps and Stamp Duties, the Customs, the Management of Taxes, the Slave Trade, Public Health, Weights and Measures, the Militia, Sheriffs, Coroners, Mortmain^ County- Courts, Commissioners for Oaths, Factors, Lunacy, Foreign Jurisdiction, Foreign Marriages, the Housing of the Working Classes, Municipal Corporations, Public Libraries, Trustees, Copyhold, Diseases of Animals, Merchant Shipping, Friendly Societies. Most of these Acts have been drawn in pur^ suance of recommendations by the Statute Law Committee, and through the agency of the Parliamentary Counsel's Office. In some cases Parliamentary obstruction has been indirectly of use in suggesting and stimulating improvements in the form of the statute law. Thus the Army Act, which forms a standing code for the discipline of the army, but in accord- ance with constitutional usage is annually brought into force by a short Continuance Act, owes its origin to the difficulties which were experienced in passing through Parliament the old-fashioned, cumbrous, lengthy Mutiny Acts. Under the new system the annual Continuance Acts embody, in a brief and technical form, such amendments of the law as are from time to time found requisite, and provision is made for periodically reprinting the standing Army Act with these amendments. There are other recent Acts, owing their initiation to the Statute Law Committee, and fashioned in the Parliamentary Counsel's Office, which, though not falling precisely within the category of Consolidation Acts, serve the same useful purpose of shortening and simplifying the form of the statute law. The Interpretation Act of 1889 general- izes a number of definitions and rules of construction which had been in common use, and thus promotes uniformity of language, and supersedes a vast number of special clauses CONSOLIDATION OF STATUTES I15 and provisions. The Short Titles Act of 1893 facilitated the Ch. Vll. reference to statutes, and has proved to be of much use in reducing the length and cost of legal documents involving such reference. It has now been supplemented and super- seded by the Short Titles Act of 1896, which gives short titles to all Public General Acts passed since the Unic«i with Scotland. The Public Authorities Protection Act of 1894 substituted a short general provision for the various and often unsatisfactory devices by which Departments of the Government and other public authorities had previously sought protection against unscrupulous litigants. But if the amount already accomplished in the direction of Work to consolidation is not despicable, the amount which remains to be done is great indeed, and would suflSce to occupy for many years the spare time of the Statute Law Committee, the Parliamentary Counsel's Office, the Government Departments, and Parliament. The numerous groups of Acts which have to be administered by the newly constituted or remodelled local authorities — County Councils, District Councils, Parish Councils, Boards of Guardians — stand in urgent need of simplification. The provisions of the Poor Law are still embodied in a series of Acts beginning with the Statute of Elizabeth and extending over a period of three centuries. The law of Public Health for the country outside London, though consolidated in 1875, has been much amended since, and requires not only consolidation but adaptation to the new machinery through which it is to be administered. The law relating to highways is even more fragmentary and obsolete. Had these and kindred branches of the law been consolidated, the task of framing the recent Local Government Acts would have been infinitely easier, and their form would have been far more satisfactory. But, as is usual in such cases, consolida- tion waited for amendment and amendment waited for con- solidation. The enactments relating to the Supreme Court of Judicature are formidable in number and complication, but most of them could, without serious difficulty, be brought I a Il6 LEGISLATIVE METHODS AND FORMS Gh. VII. within the compass of a single Act. The law regulating some of the great public Departments, such as the Post Office, is ripe and over-ripe for consolidation. The Acts relating to the Government of India are more than forty in number, and some of them date from before the time of Warren Hastings. Need of What seems to be most needed is the formation of a body fnnn"'^ of public Opinion which will encourage and stimulate the public Government of the day in the introduction of Consolidation opinion. •' Bills, and the establishment of a practice under which Parlia- ment will accept and pass them with a reasonable guarantee of their accuracy. The success which until a year or two ago had attended recent experiments in improving the machinery for carrying such measures through Parliament seemed to supply favourable omens for their easier progress in the future. But, as has been seen from what has been said in Chapter IV, the hopes based on that success have been disappointed, and the work of consolidation has for the present been arrested. This is not a state of things which can be contemplated with satisfaction. Can any remedy be discovered ? Two things seem needed— first, such an expression of public opinion as would justify the Ministers of the Crown in undertaking a troublesome task ; and secondly/ a restoration of Parliamentary confidence in the work done under the authority of the Joint Committee of Lords and Commons. Is con- Is consolidation of the statute law worth the trouble that worth the i* involves ? This is a question which ought to be fairly and squarely met. There are some, including men entitled to speak with high authority, who would say that it is not. Doubtless the existing statutes are numerous, fragmentary, and ill-expressed. But with the expenditure of a reasonable amount of time and with the help of a decent index, it is always possible, they might say, to find what you want in the Statute Book. Consolidation in the form of verbal literal reproduction of existing enactments is, for the reasons trouble it involves? CONSOLIDATION OF STATUTES 1 17 referred to above, impracticable. Consolidation in any other Ch. VII. form involves the risk of altering the law in ways not desired or intended by the legislature. New language raises new questions and means new litigation. And then the apparent simplicity of a Consolidation Act is illusory. If a question of construction arises it is often necessary to look beyond the words of the existing Act and to consider the effect of previous enactments. So that the old search is still necessary, and there is added to it the difficulty of becoming familiar with another statute, novel in language and arrange- ment. This is the kind of answer which might not unnatur- ally be given by a judge who is accustomed to hear questions of statutory construction argued out by eminent counsel on either side, or by a leading barrister who has through long experience acquired familiarity with the intricacies of the Statute Book or of such part of it as he is most likely to want, who has at his disposal ' devils ' for hunting up out-of- the-way points, and who is apt to ignore the fact that the difficult questions with which they have to deal are rare and exceptional, and bear a very small proportion to the number of difficulties removed by consolidation. Whether it is the answer that would be given by the ' unlearned ' Member of Parliament who is expected to understand and discuss a Bill intelligible only by reference to a score of scattered enact- ments, by the busy police magistrate who has to compare half a dozen ' cuffing statutes ' before he can decide an apparently simple point, or by the member of or clerk to a local authority who finds that he cannot safely exercise his administrative powers without frequent tedious and costly references to counsel, is another question. It may be assumed that the conscientious legislator, the harried magistrate, and the worried official would prefer consolidation to chaos. Any- how, if it is considered safer and easier to go on adding a new volume each year to the statutes without taking any steps to reduce the bulk or simplify the contents of the existing mass of statute law, the Government must be content to turn Il8 LEGISLATIVE METHODS AND FORMS Ch. VIL a deaf ear to the public officials and private citizens who periodically relieve their feelings by describing the laws of England, in Cromwell's forcible language, as ' a tortuous and ungodly jumble/ They must be content also to hear the amending Bills, which they have to introduce from time to time in order to keep our complicated administrative machinery in gear, described as ' Chinese puzzles/ It is comparatively easy to amend a single Act. But when amendment of the law cannot be effected except by patching up several Acts, 'applying' or 'adapting^ several more, and appending, in schedules, lists or fragments of others, the result is apt to be distracting to the legislator, the administrator, and the private citizen. Yet such is the inevitable result of piling Act upon Act without any attempt to weld into shape any part of the chaotic heap. English laws, based as they are on an unrivalled store of legal and administrative experience, ought to supply models to our colonies and to foreign countries. But they are severely handicapped by their defective form. If they were better expressed and better arranged, they would be more readily and advantageously adopted or imitated by colonial legislatures. And if coun- tries like Japan look to France rather than to England for their models in legislation, it is not because the law of France is better in substance, but because it is better and more intel- ligible in form. Possible If it should be deemed discreditable to a great nation to lay mentsTn aside the task of simplifying the contents of its Statute Book, machinery j^ j^^„ j^g -5yortli while to consider whether there is not room for con- ■' solidation. for improvement in the machinery for effecting that task. Parliament, and every Member of Parliament, is entitled to a reasonable assurance that what professes to be consolidation -deserves that name and does not disguise and conceal altera- tions in the substance of the law. At the same time it is perfectly clear that Parhament cannot by its ordinary machinery, and through its ordinary committees, test the accuracy of an elaborate measure of consolidation. Some- CONSOLIDATION OF STATUTES I19 body must be trusted to do the work. In whom can this Ch. vil. trust be safely reposed? And what guarantees of fidelity and accuracy can reasonably be required ? It may be that an assurance by a responsible law ofiicer of the Crown that a measure is ' consolidation pure and simple ' would satisfy the House. But what does the phrase ' consolidation pure and simple ' imply ? It has been said above, and it cannot be repeated too often, that consolidation in the sense of verbal and literal reproduction is impracticable. The law has to be rewritten in modern language. The form must be changed in order that the substance may be retained. Existing statutes contain many provisions which, to use Lord West- bury's language, ' are no longer applicable to the modern state of society ' and have been ' repealed by obscure or indirect processes.^ Is the recognition of these changes and the adaptation of statutoiy language in these requirements to be treated as amendment of the law ? Even when the draftsman has done his work with the most scrupulous care, questions must almost always arise which he is unable to solve, and which demand the exercise of legislative discretion. There will usually be found, as has been remarked elsewhere, ' lacunae to be filled, obscurities to be removed, inconsistencies to be harmonized, and doubts to be resolved.'' In the case of Consolidation Bills which have come before the Joint Committee of Lords and Commons, the practice has been for the draftsman to state these questions fuUy in the form of notes, supplemented by such verbal information as may be required, and to leave with the Committee the responsibility of determining how they should be settled. The particular form of solution adopted has not always been the same. In some cases of obscurity or ambiguity it has been considered safer to 'consolidate the doubt.' In others the Committee have felt it to be their duty to save litigation by cutting the knot. When, as often happens, the existing practice is not consistent with the letter of the law, the question usually con- 120 LEGISLATIVE METHODS AND FORMS Ch. VII. sidered has been whether the matter related merely to the internal regulations o£ a Government Department or affected the rights and interests of the ontside public. In the former case, common sense seemed to point towards what might be described as the natural and legitimate development of the law and against express revival of regulations which experi- ence had proved to be unnecessary or inconvenient. But where outside rights or interests were concerned, the action of the Committee was strictly conservative, and great jealousy was shown of any suggestion that it might be convenient to smoothe away administrative difficulties by slight alterations to the law. It was always felt that to do this was the proper function of the legislature at large by means of amend- ing measures. Of course there is always room for argument as to where the line should be drawn between ' amendments of the law ' or ' alterations necessarily incidental to consolida- tion/ or ' adaptations to existing law and practice.' But if the work done by the Joint Committees is carefully examined, it will be seen that their tendency has been to take a very strict view as to the limits of their powers. If any one chooses to say that the procedure thus described is not consolidation, as he understands the term, he is perfectly justified in doing so. Only he must remember that con- solidation in the sense which he attaches to the term is not practicable. The House of Commons usually takes a common-sense view of these questions, and, if its opinion were fairly challenged, it would probably say that it was quite willing to give its Committees a reasonable discretion as to what they did and what they did not think consistent with consolidation, provided always that it had some means of testing the grounds on which the Committee proceeded. Such a means could easily be supplied. In the first place, definite instructions might be laid down as to the principles on which the Com- mittee are to proceed. These instructions would probably correspond more or less to the lines of the report presented CONSOLIDATION OF STATUTES 121 by the Joint Committee who settled the great Merchant Ch. Vll. Shipping Act of 1894. In the next place, the report pre- " sented by the Committee on each Consolidation Bill might be specific instead of general, might deal with each of the questions submitted to the Committee for solution, and might explain the reason for the particular solution adopted. This would involve a certain amount of trouble and delay, but the amount of additional trouble would be trifling as compared with that necessarily involved in the preparation of a Con- solidation Bill. The problem is how to reconcile the control which the House ought to exercise over its Committees with the pro- vision of facilities for passing measures which are not con- tentious but which may occasionally require a few words of explanation. Perhaps some slight amendment of the Stand- ing Orders might be required. It might be expedient to let measures of this kind be taken on one day in the week either at the time allowed for private Bills or after twelve o'clock. In every case of a Consolidation Bill a very short discussion would suffice to settle the question whether the Committee who had considered a Consolidation Bill had done their work properly or not. The problem does not seem difficult to solve, but until it is solved in some way or other the work of con- solidating the statute law must be indefinitely postponed. CHAPTER VIII CODIFICATION Ch. VIII. Bentham is responsible for the invention o£ the word ggj^] ' codification/ or at all events for its introduction into the tham's English language^. We are therefore bound to ask what of codi- meaning he himself attached to the term. The answer is to be found in his General View of a Complete Code of Laws ^■ The object of a code is that every one may consult the law of which he stands in need, in the least possible time ^. ' Citizen/ says the legislator, ' what is your condition ? Are you a father? Open the chapter " Of Fathers.'' Are you an agriculturist ? Consult the chapter " Of Agriculture.'' ' ' A complete digest, such is the first rule. Whatever is not in the code of laws ought not to be law *.' ' The great utility of a code of laws is to cause the debates of lawyers and the bad laws of former times to be forgotten '.' Its style should be characterized by force, harmony, and nobleness. ' With this view, the legislator might sprinkle here and there moral sentences, provided they were very short, and in accordance with the subject, and he would not do ill if he were to allow marks of his paternal tenderness to flow down upon his paper, as proof of the benevolence which guides his pen^.' 'A code framed upon these principles would not require schools for its explanation, would not require casuists to unravel its subtleties. It would speak a language familiar to everybody; each one might ' Murray's Bictiomxry, s.v. ' Published in French by Dumont, i8oa, Bowring's edition, vol. iii. P- 157- ' p. 193. ' p. 205. ' p. 207. ° p. ao8. CODIFICATION 123 consult it at his need. It would be distinguished from all Ch. Vlll. other books by its greater simplicity and clearness. The father of a family, without assistance, might take it in his hand and teach it to his children, and give to the precepts of private morality the force and dignity of public morals^.' The code having been prepared, the introduction of all un- written law should be forbidden. Judges should not make new law. Commentaries, if written, should not be cited. ' If a judge or advocate thinks he sees an error or omission, let him certify his opinion to the Legislature, with the reasons of his opinion and the correction he would propose '';' ' Finally, once in a hundred years, let the laws be revised for the sake of changing such terms and expressions as by that time may have become obsolete^.' In short, the code was to be complete and self-sufficing, and was not to be developed, supplemented or modified except by legislative enactment. These views were characteristic of the age in which Bentham wrote. It was an age of great ideals. It underrated the difficulties of carrying them into execution. It overrated the powers of government. It broke violently with the past. It was deficient in the sense of the importance of history and of historical knowledge. It aimed at finality, and made in- sufficient allowance for the operation of natural growth and change. It forgot Bacon's maxim that subtilitas naturae subtilitatem artis multis partibus superat. It ignored or under- estimated differences caused by race, climate, religion, physical, social and economical conditions. If Bentham was the chief apostle of codification at the Savigny beginning of the present century, Savigny was its chief fication. opponent. His famous work, Yom Beruf unserer Zeit fur Gesetzgelung unA Rechtswissenschaft, ' On the Vocation of our Time for Codification and Jurisprudence,' was published in 1814 as a counterblast to Thibaut's pamphlet of the same year, tfber die Nothwendigkeit eines allgemeinen bUrgerlichen » Gp. cit., p. 209. " p. 210. ' Ibid. 124 LEGISLATIVE METHODS AND FORMS Ch. viil BecMs fiir DeutscMand, ' On the Necessity of a General Civil Code for Germany.' Both works were due to the revival of German patriotism, caused by the Napoleonic wars. Thibaut urged his countrymen to promote German unity by codifying and unifying their laws. Savigny warned them against hastily and inconsiderately following foreign models. Ac- cording to him, Germany did not yet possess either the scientific knowledge or the scientific terminology requisite for codification. Moreover, the models proposed for adoption were marred by serious defects. They had been hastily put together; their authors had only a superficial knowledge of the subjects with which they dealt ; they were full of blunders and defects^. Although Savigny's plea was primarily for delay, yet it is clear that he was opposed to codification on principle. His desire was that law should be gradually developed by the silent internal forces of national conscious- ness, with the least possible interference by the legislature. He would have abolished the hateful French codes in those parts of Germany into which they had been introduced. Where there were in existence national codes — as in Prussia and Austria — he would not abolish them, but he would, by means of scientific and especially of historical study, bring them back into close organic relation with the common law. Everywhere he would circumscribe the functions of the legislature in the field of private law, and would confine its activity, as far as possible, to the clearing up of doubts and the authoritative declaration of customs ^. Kesults Bentham and Savigny were both giants. To each of them tham's half his prayer was granted, whilst the other half has been ^^"^ ■ scattered to the winds. Bentham is the greatest of English law reformers. He fulminated even more against the practical than against the ' Savigny afterwards admitted that his criticisms on French juris- prudence were overcharged. Preface to second edition, 1828. '' See Dr. Behrend's Essay in Holtzendorff's Encyclopadie der Rechismssen- schaft. CODIFICATION I25 formal defects of English law, and it is not an exaggeration Ch. Vlll. to say that of the changes which have transformed both the substance and the administration of English law since his time the majority are due more or less directly to his sugges- tions. His efforts for improving the form of law have been less completely realized. ' Bentham,' wrote J. S. Mill in 1838, ' demonstrated the necessity and practicability of codification, or the conversion of all law into a written and systematically arranged code.' In truth, he demonstrated neither the one nor the other. What he did was to set up an ideal towards which legislation should tend, an ideal which has been materially modified by subsequent reflection and experience, but which has profoundly influenced the thought and action of lawyers and legislators since his time. He has not shown the necessity, but he has shown the utility, of codification. By his own unsuccessful experiments, he went far to demon- strate the impracticability of codification, in the sense which he attached to the term. We no longer believe either in the practicability or in the desirability of a code which shall be complete and self-sufficing, which shall absolve from the necessity of researches into the case law or statute law of the past, which shall preclude the judicial development of law in the future, and which shall provide a simple rule applicable to every case with which the practical man may have to deal. We know that legal rules and legal expressions cannot be severed from their roots in the past. We know that enacted law is most useful if confined to the statement of general principles, and that the more it descends into details, the more likely it is to commit blunders, to hamper action, and to cramp development. We know that the chief practical difficulty of the lawyer and the judge is not the apprehension of principles, but the application of principles to facts, and that the best constructed code cannot remove this difficulty. But we have also learned, and mainly through Bentham's teaching, that many of the difficulties of law are due to confusion of thought, to obscurity of expression, to want of orderly arrangement; 126 LEGISLATIVE METHODS AND FORMS Ch. VIII. and the lessons have borne fruit both in our Statute Book and in our legal textbooks. In one part of the British Empire Bentham has exercised a more direct influence on the form of legislation. James Mill was a devoted disciple of Bentham. He was examiner of Indian correspondence when Macaulay was sent out with instructions to draw up a code or codes for British India; and it is to the pen of James Mill that is attributed by- tradition the dispatch in which those instructions were em, phasized and developed. Macaulay's Penal Code, after a long slumber in pigeon-holes, and subsequent revision by experts, became law in i860, and was followed by the other well- known Indian codes. These codes have sometimes been unwisely praised. They are not, and do not profess to be, models of the kind of codes required or suitable for a country like England. But they are excellent examples of the kind of codes suitable for unprofessional judges and magistrates, and they illustrate the mode in which, and the extent to which, Bentham's principles can be applied to practical needs. Results of Savigny was the founder of historical jurisprudence. He work. was the first to insist on, and to illustrate by his writings and research, the importance of the historical treatment of law, and has thereby revolutionized the science of law. His services in this respect, both to his country and to the world at large, have been incalculable. But the practical question raised by the controversy between him and Thibaut has been answered, on the whole, in favour of the latter. Savigny exaggerated the theoretical defects in existing codes, and underrated their practical utility. He ignored Bentham^'s half-truth that 'he who has been least successful in the composition of a code has conferred an immense benefit.' He pushed too far the famihar argument that codification checks the natural growth of the law and arrests its development. He overrated the ability and willingness of what he called the ' national consciousness,' meaning thereby, practically, the legal profession, to effect legal reforms and adapt law to the CODIFICATION 127 requirements of the day witliout the assistance or compulsion Ch. VIII. of the legislature. And lastly, he underrated the forces which were making for codification in Germany. The German people were struggling towards national unity; national unity meant unity of law^ and unity of law could not be brought about without codification. The teachings of Savigny and the historical school have given Germans the knowledge and training requisite for the production of a scientific code; their warnings have not deterred Germany from following the path of codification. After many partial codeSj the year 1896 gave Germany the general civil code for which Thibaut asked in 1814. In Bentham''s own country codification has found less favour Fate of and made less progress than on the continent of Europe. tjon in " Lord Westbury, when Lord Chancellor, meditated a general England, digest of English law. With this view a Royal Commission was issued in the autumn of 1866 to Lords Cran worth, Westbury, and Cairns, Sir T. P. Wilde, Mr. Lowe, Vice- Chancellor Wood, Sir George Bowyer, Sir Roundell Palmer, Sir J. Shaw Lefevre, Sir T. E. May, Mr. Daniel, Mr. Thring, and Mr. Reilly ' to inquire into the expediency of a digest of law, and the best mode of accomplishing that object, and of otherwise exhibiting in a compendious and accessible form the law as embodied in judicial decisions.^ The Commission presented their first and only report on May 13, 1867. They employed certain barristers to prepare specimen digests, but the specimens prepared were not considered satisfactory, and no further steps were taken to continue the work. In the next decade, Sir James FitzJames Stephen, fresh from his codifying labours in India, where he had passed into law a Criminal Procedure Code, an Evidence Act, and a Contract Act, made vigorous endeavours to adapt his Indian models to English uses. He drew a Bill for codifying the English law of evidence, which was introduced into Parlia- ment, but did not advance beyond a first reading, and has never been published. His draft Code of Criminal Law 128 LEGISLATIVE METHODS AND FORMS Ch. VIII. and Procedure was a more ambitious project. After having been introduced into Parliament by Sir John Holker in 1878, it was referred for revision to a Commission consisting of the draftsman and three other judges, who presented their report and draft code in 1879 1 The part of the draft code which related to procedure was introduced as a Government measure in 1882, and was the first subject referred to the Grand Committee on Law which was set up experimentally in that year. After a few sittings, in which small progress was made, the Bill was abandoned. Some of the proposed changes of procedure, which, in disregard of tactical considerations, had been placed in the forefront of the measure, excited parliamentary opposition, and, from the point of view of technical accuracy, other provisions of the Bill were opfen to criticism. The failure of the measure gave a check to the cause of codification in England. It confirmed the in- disposition of Parliament to take codifying measures on trust, even when backed by the highest legal authorities. And it confirmed the doubt of experts whether the kind of codification which had been found suitable for India would also sufiice for England. But the drafts have produced results. If Stephen's Criminal Code failed to find a place in the English Statute Book, his digests of English Criminal Law and Criminal Procedure are, and seem likely to remain, the best guides to those subjects which can be obtained either by the English or by the foreign student. The term codification is sometimes employed loosely so as to include Consolidation of Statutes. But in its stricter and narrower sense it means an orderly and authoritative statement of the leading rules of law on a given subject, whether those rules are to be found in statute law or in common law. Of codifying measures in this narrower sense, three only have up to this date been passed by Parliament : the Partnership Act, 1890 (53 & 54 Vict. c. 39), which was drawn by Sir Frederick ' See above, p. 70. The report, which was substantially Stephen's work, presents an able statement of the case for codifying criminal law. CODIFICATION I29 Pollock; the Bills of Exchange Act, 1883 (45 & 46 Vict. Ch. Vlli. e. 61), and the Sale of Goods Act, 1893 (5^ ^ 57 ^i*'*- ^- 7^)' both of which were drawn by Mr. Chalmers, afterwards Law Member of the Council of the Governor- General of India 1. A Bill to codify the law of marine insurance, also drawn by Mr. Chalmers, was introduced more than once by Lord Her- schell, but has not yet become law. As India has been the most successful field of English Codifica- ,, , tion in codification, it seems worth while to trace somewhat lully the India, methods which have been adopted for carrying out the work of codification in that country, the stages by which it has been advanced, and the results which have been achieved. The scheme of giving to British India a complete and definite system of law probably originated in a correspondence which took place about 1829 between Sir Charles Metcalfe and the judges of Bengal ^. It was adopted by Parliament on the renewal of the Indian Charter in 1833. The Charter Act of 1 833 ^ provided for the appointment by the Governor- General in Council of a Law Commission to inquire into the jurisdiction, powers, and rules of the existing courts of justice and police establishments, and into the nature and operation of all laws prevailing in any part of British India ; and to make reports thereon, and suggest alterations; due regard being had to the distinction of castes, difference of religion, and the manners and opinions prevailing among different races and in different parts of the said territories. In pursuance of the powers thus conferred, the first Indian Law Commission was appointed in the year 1834. It con- sisted originally of Maeaulay, who was the first Legislative Councillor, and of three Civil Servants of the Company — one from each Presidency. After about two years this Com- mission published Macaulay's draft of the Indian Penal Code, which was subsequently revised by Mr. Drinkwater Bethune, ' Now Assistant Parliamentary Counsel to the Treasury. ' Whitley Stokes, An^lo-Indian Codes, p. 10. '' 3 & 4 Will. IV. c. 85, s. 53. ILBERT K 130 LEGISLATIVE METHODS AND FORMS Ch. VIII. Sir Barnes Peacock and others^ and did not become law until i860, long after the first Indian Law Commission had ceased to exist. The Commission seems to have lost much of its vitality after Macaulay's departure from India. It lingered on for many years^ published periodically bulky volumes of reports, but did not succeed in efEecting, or in inducing the Government to effect, any measure of codification, and was finally allowed to expire. The last of the Indian Charter Acts, that of 1853^, refers to the labours of the Commis- sioners by reciting that they 'have in a series of reports recommended extensive alterations in the judicial establish- ment, judicial procedure and laws, established and in force in India, and have set forth in detail the provisions which they have proposed to be established by law for giving effect to certain of their recommendations, and such reports have been transmitted from time to time to the Court of Directors, but on the greater part of such reports and recom- mendations no final decision has been had.'' Accordingly the Act of 1 853 provided for the appointment of a new Commission, which was instructed to make a diligent and full inquiry into, and to examine and consider, the recom- mendations of the previous Commissioners and the enactments proposed by them for the reform of the judicial establishments, judicial procedure and laws of India, and such other matters in relation to the reform of the said judicial establishments, judicial procedure and laws as might, by or with the sanction of the Commissioners for the affairs of India, be referred to them for their consideration. This second Commission was appointed on November 9, 1853. It consisted of eight members, including Sir John (afterwards Lord) Romilly, Sir John Jervis, Sir Edward Ryan, and Mr. Robert Lowe, afterwards Lord Sherbrooke. At the time of their appointment the intention of amalgamating the Queen's and Company's Courts in the Presidency towns of India (known as the Supreme and S udder Courts) had '■ 16 & 1 7 Vict. c. 95. CODIFICATION 131 already been announced to Parliament, and the Commissioners Ch. vill. were instructed to address themselves, in the first instance, to the consideration of the preliminary measures necessary for this purpose, in particular to the preparation of a simple and uniform code of procedure ^. The Commissioners sat in London till the middle of 1856 and presented four reports, in which they submitted a plan for the amalgamation of the Supreme and S udder Courts, and a uniform Code of Civil and Criminal Procedure, applicable both to the High Courts formed by that amalga- mation, and to the inferior courts of British India. They also adverted to the wants of India in respect of substantive civil law, and they submitted their views as to the best mode of supplying those wants. The recommendations of these Commissioners resulted in important legislation both in Parliament and in the Legisla- tive Council of India. Macaulay's Penal Code was taken up and revised, and was passed into law in i860. A Code of Civil Procedure was passed in 1859 and a Code of Criminal Procedure in 1861. By the Act of Parliament of 1861, 'for establishing High Courts of Judicature in India' (34 & 25 Vict. c. 104), the old Supreme and Sudder Courts at Calcutta, Madras and Bombay were amalgamated into the present Chartered High Courts, and provision was made for estab- lishing another High Court in the North- West Provinces ^- Thus by 1861 India had acquired a Penal Code and Codes of Civil and Criminal Procedure. The Procedure Codes were doubtless rough and capable of much improvement, but they constituted an enormous advance on the chaotic and incomplete regulations by which they had been preceded. On December a, 1861, a third Indian Law Commission was ' Letter from Board of Commissioners for affairs of India to India Law Commission, dated November 30, 1853. ' It will be remembered that in the meantime the Government of India had been transferred to the Crown by the Act of 1858 (21 & 22 Vict. c. 106), and the Indian Legislative Councils had -been remodelled by an Act of 1 86 1 (24 & 25 Vict. c. 67). K 2 132 LEGISLATIVE METHODS AND FORMS Ch. VIII. constituted, consisting in the first instance of Lord Romilly, Sir William Erie, Sir Edward Ryan, Mr. Robert Lowe (Lord Sherbrooke), the late Mr. Justice Willes, and Mr. Macleod. On the retirement of Lord Chief Justice Erie and Mr. Justice Willes their places were taken by Mr. W. M. James (after- wards Lord Justice James) and Mr. John Henderson, and on the death of Mr. Henderson he was succeeded by Mr. Lush, afterwards Lord Justice Lush. The instructions of the Com- missioners were to prepare, in accordance with the recom- mendation of the earlier Commissions, a body of substantive law for India, and to consider such other matters in relation to the reform of the laws of India as might be referred to them by the Secretary of State. The Commissioners presented their first report on June 23, 1863, and submitted by it a draft law of succession and inheritance applicable to various persons not professing the Hindu or the Mohammedan religion. By this time Sir Henry Maine (then Mr. Maine) had become Law Member of the Governor-General^s Council^, and the Bill framed by the Commissioners was carried through the Council by him, and became law under the title of the Indian Succession Act (Act X of 1865). By their second report, dated July 8, 1866, the Com- missioners submitted rules of law which they had prepared on the subjects of contracts in general, of the sale of movable property, of indemnity and guarantee, of bailments, of agency, and of partnership. By their third report, dated July 24, 1867, the Com- missioners submitted rules of law on the subjects of promissory notes, bills of exchange, and cheques. The fifth ^ report comprised rules of law on the subject of evidence, and ' He took hia seat towards the end of 1862, and retired at the end of 1869, being succeeded by Sir James Stephen (then Mr. FitzJames Stephen). " The fourth report, dated December 18, 1867, was written in answer to the Secretary of State with reference to certain objections which had been made to the second report. CODIFICATION 133 was presented on August 3, 1868. The sixth report, Ch. VIII. dated May 28, 1870, submitted a body o£ law designed to bring the rules which regulate the transmission of property between living persons into harmony with the rules affecting its devolution on death. A seventh report, dated June 1 1 , 1870, related to the revision of the Code of Criminal Procedure. In the meantime considerable friction had arisen between the Law Commissioners and the Government of India. The Succession Bill appears to have passed through the Indian Legislative Council without very serious difficulty. Possibly the fact that it did not apply to Hindus or Mohammedans or to Europeans domiciled out of India, and that the classes thus exempted from its operation included the bulk of those to whom a succession law would be a matter of practical interest, may have had something to do with the small amount of opposition which the measure encountered. But the Contract Bill touched much more closely the trading classes, both European and native, and had a more chequered fate. In the statement of objects and reasons by which it was accompanied on its introduction into the Legislative Council in 1 867 it was described as ' a body of contract law which leaves nothing to be desired, in point of simplicity and comprehensiveness, in respect of the essential equity of its provisions, and in respect of the perspicuity with which those provisions are set forth.' But in spite of these laudatory remarks the Select Committee to which the Bill was referred ventured to criticize and modify the proposals of the Commissioners with a freedom which that learned body resented. The controversy raged principally round a clause which provided in effect that a purchaser acting in good faith, and in the absence of suspicious circum- stances, might acquire a good title from any person in posses- sion of goods, in other words, that every place in India should be a market overt ^. The Select Committee objected to this ' This was clause 75 in the Bill as introduced. The corresponding section in the Act as passed appears to be s. 108. 134 LEGISLATIVE METHODS AND FORMS Ch. VIII. clause, the ground of objection being substantially that the provision would make British India an asylum for cattle stealers from the Native States. The Duke of Argyll, then Secretary of State for India, sided with the Commissioners, and expressed his views in terms which were objected to by the Government of India as derogatory to the independence of the Indian Legislature, and thus a difference of opinion about a technical point of law was elevated to the dignity of a grave constitutional controversy. The attitude of mind of the English Law Commissioners may be inferred from the concluding paragraphs of a letter which they addressed to the Duke of Argyll on July 2, 1870. After referring to the series of reports submitted by them they say,— ' No legislation founded on the recommendations of the Com- missioners contained in the reports of 1866, 1867, or 1868 has yet taken place, and, so far as we have any information, there is no prospect of any such legislation. ' The Commissioners felt themselves called upon nearly a year and a half ago to invite your Grace's attention to the manner in which their reports had been dealt with, as shown by papers which were officially communicated to them. They subsequently had reason to believe that, in consequence of instructions given by your Grace, a more satisfactory course would be followed in India. These expectations have not been realized ; and three bodies of law which relate to very important subjects, which cost the Commission much time and labour, and which have been in the hands of Government for four, three, and two years respec- tively, still remain a dead letter. ' Whatever may be the cause of this continued inaction, its existence defeats the hope which we entertained that we ■were laying the foundation of a system which, when completed, would be alike honourable to the English Government and beneiicial to the people of India. ' We therefore respectfully request that your Grace will, by accepting our resignation of office, release us from the position in which we are now placed.* This letter is signed by Edward Ryan, Robert Lowe, Robert Lush, and W. M. James. The Duke endeavoured to soothe the ruflBled feelings of the Commissioners, but in vain. They declined to withdraw their CODIFICATION 135 resignation^ and they wound up their last communication to Ch.VIII. the Secretary of State by sayings — ■ ' We must repeat that no information which has reached the Commissioners does in our opinion explain the inaction of the legislature to which we adverted in our former letter, and which we have been obliged to consider as systematic and persistent.' It ■will be remembered that the Law Member of the Government of India during the greater part of this period of ' continued/ ' systematic ' and ' persistent inaction. ' was no less eminent a person, and no less sincere an advocate of codification, than Sir Henry Maine. Thus expired in a huff the third of the Indian Law Com- missions. The Indian Government were allowed to take their own course with the Contract Bill, which, rather less than two years afterwards, and just before the expiration of Sir James Stephen's tenure of office, became law as Act IX of 187a. Sir James Stephen's short term of office was a period of great legislative activity, especially in the direction of codifying measures. An Act prescribing rules for the limita- tion of suits (IX of ] 871) was passed in 187 1. The Evidence Bill was introduced and became law as Act I of 187a. The Criminal Procedure Code was revised and re-enacted with extensive alterations. And finally the Contract Act was passed on the eve of Sir James Stephen's departure from India. On April 9, 187a, Sir James Stephen, in moving the final stage of this Bill, took the opportunity of reviewing the work which had been done up to that date in the policy of codification" initiated forty years before, and of expressing his opinion as to how much more legislation of the same character would be required before the codification of the law of British India could be said to be complete. With reference to codification, he divided the law into three parts : — I. Current Miscellaneous Legislation. II. Procedure. III. Substantive Law. 136 LEGISLATIVE METHODS AND FORMS 'Ch.VIII. By current legislation he meant such measures as were necessary to meet particular cases. All that could be done with a view to codifying matters of this kind was to have all the Acts relating to one subject consolidated into a single enactment. Much had been done in this direction by the various Consolidation Acts, and little more was, in his opinion, required. Under the head of Procedure he included the laws regula- ting the proceedings and powers of courts of justice, and the assessment and collection of the land revenue. As to the courts of justice, the two Codes of Civil and Criminal Pro- cedure, the Evidence Act, and the Limitation Act, had each reduced to a single enactment the subject of which they treated; but further legislation was needed to simplify the laws relating to the constitution and powers of the civil courts. As to revenue-pi'ocedure, the law had been to a great extent codified, but Acts for the North- West and Central Provinces were still required. Substantive law might, he considered, be resolved into the following main heads : — (a) Government ; (i) Criminal Law; (c) Laws relating to Inheritance ; (d) Laws relating to the Relations of Life — Husband and Wife, Parent and Child, Master and Servant, Guardian and Ward ; (e) Laws relating to Contract ; (/) Laws relating to Wrongs ; (ff) Laws relating to the enjoyment of land. As to Government, the law was contained principally in Acts of Parliament, and could only be altered by Parliament itself. The Criminal Law was codified in the Penal Code. The laws relating to inheritance were mostly native laws, which, for obvious reasons, could not be touched, though the Hindus might very possibly be thankful for an authoritative statement of their customs. So far as native law and English CODIFICATION 137 law did not extend, the Succession Act might be regarded Ch. VIII. as supplying a Code. The laws relating to the relations o£ life were in much the same state as laws relating to inherit- ance, being native customs, supplemented in some cases, overruled in others, by legislation. The Christian Marriage Acts might be consolidated ; but on other subjects belonging to this branch legislation must be slow and cautious. The laws relating to contract were being dealt with by the Contract Act. This did not profess to be a complete code of the law of contract, but would require to be supplemented by additional chapters. As to laws relating to wrongs, there was a very distinct and important gap in Indian legislation. A good law of torts would, Sir James Stephen thought, be a great blessing to India. The laws relating to the land were by far the most intricate and probably the most im- portant. The la.w of land revenue either was, or might soon be, put into a satisfactory shape. The law of landlord and tenant had been codified as to form by Acts for Bengal, Oudh, the Punjab, and Madras. The law regulating the rights of holders of land as between each other depended mainly on native custom ; and though recorded in settlement papers could probably not be codified for the present. The only part of this branch of the law on which it would be possible to legislate usefully was the law relating to ease- ments. A useful Act might be- passed on a branch of law which lay between substantive law and the law of procedure, and which might perhaps be called the law of relief ^ Sir James Stephen summarized his conclusions about the codification of the substantive law as follows : — ' As regards substantive law we shall have as much of it as will be wanted for a length of time if this Act ' (the Contract Act), ' a corresponding Act about Wrongs, an Act about Ease- ments, and an Act about Remedies, such as I have sketched out, are framed and passed into law.' In the spring of 1872 Sir James Stephen was succeeded as ' This was subsequently dealt with by Lord Hobhouse's Specific Relief Act (I of 1877). 138 LEGISLATIVE METHODS AND FORMS Ch. VIII. Law Member by Lord Hobhouse (then Mr. Arthur Hob- house). At this date considerable uneasiness had been caused both in England and in India by the rapidity and amount of recent Indian legislation, and Lord Hobhouse, on his departure for India, received strong hints that it would be desirable to slacken the pace of the legislative machine. His own observation and experience after arrival in India satisfied him of the prudence of this advice, and induced him to direct his energies to work which, if it attracted less public atten- tion than that of his immediate predecessor, was not less practically useful. The nature of the work done and pro- jected during the first three years of Lord Hobhouse's term of office may be gathered from a passage occurring in a dispatch addressed on July 5, 1875, by the Government of India to the Secretary of State : — 'Since the year 1872,' observes the dispatch, 'there has been very little codification in the sense in which we have above used the term ', unless the Code for the Criminal Procedure of the High Courts just passed, and that for the Police Courts of the Presidency towns, which we hope will soon be passed, may be considered such. On the other hand we have bestowed a great deal of attention on the consolidation of existing laws and the repeal of such as have become obsolete. Our object is to produce a new edition of Acts of Council which shall, as far as possible, represent the state of that portion of our law at the time of publication. We hope to publish in the course of the current year so much of this work as will comprise the general Acts, and the volumes containing the Provincial Acts and Regulations will follow in due course. We have put the Revenue and Rent laws of the North- Western Provinces into a more concise and methodical shape, not without considerable changes, both in substance and in procedure, the effect of which can hardly yet be seen. We are doing the same thing for Oudh, the Central Provinces, and British Burma. And we have also turned our attention to that great branch of law which consists of judicial decisions, and which, though not the subject of legislation, is so intimately connected with it as to come properly under the cognizance of our Legislative Department. We are endeavouring to prepare a Digest embodying the judicial law which has taken its place ' 'The expression in authoritative writings of law previously to be gathered from traditions and records of a much more flexible and less authoritative character.' CODIFICATION 139 in our system, and -we anticipate that sncli a work will not only Ch. VIII,, be useful in itself, but will form the best starting-point for future plans of codification. We are also undertaking to super- Tise reports of current decisions, and, if possible, to put them in a better shape ' . During this period Mr. Whitley Stokes was Secretary to the Legislative Department of the Government o£ India, as he had been during part of Sir James Stephens's and during almost the whole of Sir Henry Maine's term of office. It is impossible to exaggerate the debt of gratitude which is due from India to Mr. Stokes for his labours as Legislative Secretary. He was the draftsman of several of the most important measures passed by his chiefs, and^ above all, it is owing to the unflagging zeal and energy with which he carried on^ through a long series of years, the laborious and wearisome task of consolidation, that the Indian Statute Law has been reduced to its present compact and convenient form. The procedure described by Sir James Stephen as the con- solidation of current miscellaneous legislation involves the double process of repealing obsolete enactments^ and of re- enacting in an amended and simplified form enactments still in force. This double process was carried on with great activity during Lord Hobhouse's tenure of office, and its results were shortly afterwards embodied in the two volumes of English Statutes relating to India, the three volumes of general Indian Acts, and the ten volumes of Provincial Codes (Lower Provinces Codes, Bombay Code, Madras Code, Punjab Code, Oudh Code, Central Provinces Code, North- Western Provinces Code, Ajmere Code, Coorg Code, and British Burma Code) which embraced the whole of the unrepealed Indian Acts down to the date at which those volumes were pub- lished. Armed with the selection of English Acts applying to India, with the half-dozen volumes comprising the general ' A new series of authorized Indian Law Reports was about this date established on the model of the English Law Reports. 140 LEGISLATIVE METHODS AND FORMS Ch.VIII. Indian Aets^, and with the volume or volumes containing the Code for his own province 2, the Indian practitioner has almost all that he wants in the way of statute law, and possesses a law library which his English rivals may well envy. For the preparation of these volumes, and for the indispensable preliminary labour of expurgation and condensa- tion, India is mainly indebted to Mr. Whitley Stokes. Though the process of codification, as distinguished from consolidation, did not proceed with such rapidity in Lord Hobhouse's time as in that of his immediate predecessor, it was not suspended. He added to the collection of Codes a useful little Act, which deals with the branch of law de- scribed by Sir James Stephen as the law of relief and which became law as the Specific Relief Act (I of 1S77). In the meantime, however, the India Office pendulum, which had pointed to delay and caution in 1872, took a swing in the opposite direction after Lord Salisbury became Secretary of State in 1874. A draft Bill had been prepared for consolidating the Acts of Parliament relating to India, and the question whether it would be desirable to re-enact the section of the Indian Charter Act of 1853 which pro- vides for the appointment of an Indian Law Commission was found a convenient peg on which to hang a dispatch ^ expressing the views of the Secretary of State with respect to the general subject of Indian codification. Lord Salisbury by this dispatch directed the attention of the Government of India to the expediency of proceeding with and completing this work, and suggested that the task of preparing for the consideration of the Legislative Council the remaining branches of the Indian Code might be entrusted to a small body of eminent draftsmen selected for the purpose. ' There are now six volumes of General Acts. ^ All the Provincial 'Codes' have been revised within the last few years. The Bengal Code Is in two volumes, the Bombay Code in three ; all the others are single volumes. The British Bui-ma Code has become the Burma Code, and a thin volume contains the Code for British Beluchistan. ' Dispatch of March 4, 1873. CODIFICATION I4I The reply of the Government of India ^ pointed out the Ch. VIII. objections to a permanent Law Commission sitting and working in England. It urged that the Government of India should take on itself the responsibility of judging what new laws are wanted for India and when it is ex- pedient to discuss and pass them. It dwelt on the impor- tance of proceeding slowly and cautiously in the work of codification and on the risks and evils attending rapid legislation. As to the mode of proceeding, the conclusion of the Government of India was that v?hatever professional assistance they wanted should be obtained when required by the employment of competent persons for particular pieces of legislative work^ and that the best machinery would probably be a single draftsman in India either possessed of the requisite knowledge or working under those who have it. Lord Salisbury's answer will be found in a dispatch dated January no, 1876. It dismisses rather curtly a good many of the arguments and observations contained in the letter from the Government of India, assumes that the work of codification must be proceeded with, and wishes to be in- formed what branches of the law most need codifying, in what order they should be taken up, and whether the codifying Acts should be applied generally, or only to par- ticular parts of British India. In the same month, January, 1876, Lord Lytton succeeded Lord Northbrook as Viceroy of India. For a period of nearly a year and a half, that is to say, until after the expiration of Lord Hobhouse's term of office, no further public corre- spondence took place between the Secretary of State and the Government of India on the subject of codification. The Law Member and the Legislative Secretary contented them- selves with recording their several views on the subject, and depositing their minutes in the archives of the Legislative Department. Very interesting and characteristic minutes they are. I Letter of Government of India, dated July 5, 1875. 142 LEGISLATIVE METHODS AND FORMS Ch. VIII. But in the spring of 1877 the former Secretary became the Law Member, and in May of that year, very shortly after his accession to office, the Government of India sent its long delayed reply to Lord Salisbury's dispatch of January, 1876. It contained Mr. Whitley Stokes-" programme of work and plan of operations. After enumerating the branches of law which still required codification, it proceeded to indicate the order in which they should be taken up. First should come the three Bills which had been framed wholly or partly by the defunct Law Commission, namely the Transfer of Property Bill, the Negotiable Instruments Bill, and the Insurance Bill. Then the Guardian and Ward Act (XIII of 1874) might be extended to the whole of British India, and possibly to all the classes to which the Indian Succession Act applied, and the two subjects of parent and child and master and servant might be taken up. Alluvion and diluvion should next be dealt with, and then the law of easements and the law of boundaries. Then, but not till then, should be taken the subject of torts or actionable wrongs. When this had been dealt with, the outline of a complete Civil Code would be nearly filled in. There would remain the subjects of carriers (marine and inland), trusts, gifts, liens on movables and accession to movables. The order of dealing with these was unimportant. The task of arranging scientifically the various chapters of the Civil Code would then remain, and to the finished work there should be prefixed or subjoined a chapter on interpretation. The question whether the laws thus made should be applied to the population generally or only to particular classes was then discussed. An opinion was expressed that the work of codification should be carried out in India rather than in England, and the Secretary of State was requested to ask Sir Henry Thring (now Lord Thring) to select from his former pupils one willing to proceed to India, and competent to aid in the work. An attempt was made to give effect to this suggestion, but CODIFICATION 143 it appeared that no qualified person was willing to go out Ch. VIII. to India on the terms offered ^. Under the circumstances the Government of India reverted to their former proposal that a Commission should be appointed to complete the codification of the substantive laWj and to consider such other matters in relation to the Laws of India as might be referred to it by the Government, but that it should act in India under the instructions of the Governor-General in Council and report to the same authority. This proposal was assented to by the Secretary of State. Accordingly, under a notification dated February 11, 1879, Mr. Whitley Stokes, Mr. Justice Turner of Allahabad ^, and Mr. Justice West ^ of Bombay, were appointed Commissioners to inquire into and consider the provisions of six Bills which had already been prepared for codifying the law relating to negotiable instruments, to the transfer of property, to alluvion, to master and servant, to easements, and to trusts, to report on these Bills, and to make such suggestions as to the codification of the substantive law of British India as might seem desirable. In the meantime Sir Henry Maine and Sir James Stephen had been consulted by the India Ofiice on the subject of Indian codification, and had submitted memoranda expres- sing their views. Sir James Stephen's memorandum was dated July a, 1879. It criticized the programme embodied in the dispatch of May 10, 1877, and expressed an opinion that the general plan of operations should be to pass into law a certain number of the enactments referred to in that dispatch, but that the proposal to arrange them scientifically should be laid aside. He thought that the Indian Code should consist of the following enactments : — ' The present writer was asked to go out. = Now Sir Charles Turner, K.C.I.E. » Now Sir Raymond West, K.C.I.E. 144 LEGISLATIVE METHODS AND FORMS Ch. VIII. Substantive Law. 1. The Penal Code. a. The Law of Contract, enlarged by chapters on contracts relating to land, contracts relating to shipping, and contracts by negotiable instruments, and, if required, the contracts of service, carriage, and some others. 3. The Law of Torts or Actionable Wrongs. 4. The Indian Succession Act. Procedure. 5. The Code of Civil Procedure. 6. The Code of Criminal Procedure. 7. The Evidence Act. 8. The Limitation Act. 9. The Specific Relief Act. He would not attempt to make these Acts or any o£ them into a single body of law to be called the Indian Civil Code. He would, if necessary, add to their number ; but for many years to come would regard them as practically suflScient for the purpose for which codification is required, that purpose being in his opinion that of providing a body of law for the government of the country so expressed that it may be readily understood and administered by English and native Government servants without extrinsic help from English law libraries. He was also in favour of preparing a digest of Indian decisions. Sir Henry Maine's memorandum dwelt chiefly on the importance of codifying the Law of Torts. The Commissioners, to whom the six codifying Bills had been referred, presented their report on November 18, 1879. The report is long, and enters into disquisitions of a very general nature ; but the specific recommendations made by it are recapitulated at the end, and were as follows : — (a) That the process of codifying well-marked divisions of our substantive law should continue; CODIFICATION 145 [b) That the eventual combination of those divisions as Ch. VIII. parts of a single and general code should be borne in mind ; (c) That the English law should be made the basis in a great measure of the future codes, but that its materials should be recast rather than adopted without modification ; {d) That in recasting those materials^ due regard should be had to native habits and modes of thought ; that the form which those materials should assume should, as far as possible, resemble that of rules already accepted ; that, in other words, the propositions of the codes should be broad, simple, and readily intelligible ; (e) That uniformity in legislation should be aimed at, but that special and local customs should be treated con- siderately ; (/) That the existing law of persons should not be at present expanded by way of codification, save that the opera- tion of the European British Minors Act (XIII of 1874) should be extended ; [g) That the laws relating respectively to negotiable instru- ments, to the subjects dealt with by the Transfer of Property Bill, to trusts, to alluvion, to easements, and to master and servant, should be codified, and the Bills already prepared on those subjects be passed into law, subject to certain amendments ; (Ji) That the law of wrongs should be codified ; (i) That, concurrently with or after framing a law of wrongs, the laws relating to insurance, carriers, and lien should be codified ; {j ) That the legislature should then deal with the law of property in its whole extent ; {le) That preparation be made for a systematic chapter on interpretation ; [I) That the project of framing a digest of the decisions of Indian Courts should be abandoned. Of the six Bills reported on by the Commissioners of 1879 four were passed into law under the titles of the Negotiable 146 LEGISLATIVE METHODS AND FORMS Ch.VIII. Instruments Act (XXVI of 1881), the Indian Trusts Act (II of 1882), the Transfer of Property Act (IV of i88a), and the Indian Easements Act (Vof 1882). But the four codifying Acts represent only a small part of the legislation which took place under Mr. Whitley Stokes. Not to mention current legislation, various Consolidation Acts were passed, the Limitation Act was repealed and re- enacted in 1877, the Codes of Civil and Criminal Procedure were amended, and in the spring of 1882 it was thought advisable to repeal both of them, and supersede them by new Acts. The Acts passed in the first three months of 1882 would fill a volume at least equal in bulk to two of the average ann ual volumes of public general Acts of Parliament. The natural result of this activity was to revive, in an intenser form, the cry of over-legislation which had been raised ten years previously. Judges and other ofiicials com- plained that the whole of their time was absorbed in criticizing new Bills and learning new Acts. There was a widespread feeling that India was being made the subject of legislative experiments of questionable utility and of unquestionable cost, and Anglo-Indian and native journals were for once unanimous in their protests. Echoes of these remonstrances reached England, and Sir Henry Maine found it necessary to allay the agitation on the subject by a letter to the Times. It was under these circumstances that the present writer was appointed to the ofiice of Law Member of the Governor-General's Council in succession to Mr. Whitley Stokes. The hints which he received from the India Office before leaving England were to much the same effect as those which appear to have been given to Lord Hobhouse ten years before. And on arriving in India he was told from all quarters that the Legislative Department had recently been too much en evidence, and must content itself, at all events for the present, with assuming a more unobtrusive part. It must not be supposed that these expressions of opinion came only from the class or school who, in this countiy CODIFICATION 147 as well as in India, view projects of codification with dislike Ch. Vlli. and suspicion. On the contrary they were concurred in by such eminent advocates of codification as Sir Henry Maine and Sir James Stephen. So unanimous was the advice given to the new Law Member to hold his oars, that he might have been justified in exclaiming on taking office, Poiche ahbiamo il Tapato, godiamoci. But any such dreams of repose were not destined to be realized. His lines, as is well known, did not fall in quiet places. The measures in progress on his arrival in India touched delicate and dangerous questions, and involved legislation of the most complex and difficult character. Not to speak of more sensational topics, it became necessary to recast the system of local government in all the Indian Provinces, and to revise the relations of landlord and tenant in the majority of those provinces. The Bengal Tenancy Act alone, applying as it did to a province of sixty millions of people, occupied the greater part of two Calcutta Sessions, and the Law Member's bookshelves groaned under yards of folio volumes containing the official literature which had gathered round the subject. Enactments of a similar nature had to be passed for the Central Provinces, for Oudh, and for other parts of India. And in the year 1886 the annexation of Upper Burma necessitated the preparation of a general system of law and procedure for the newly acquired province. It became one of the first duties of the Law Member who assumed office in 1883 to take stock of what had been done up to that time in the matter of Indian codification, and to consider what steps should be taken for carrying on the work. This duty was discharged in a note written by him in July, 1882. Of the six codifying Bills which had been prepared by the last Indian Law Commission, four only had become law. The remaining two related respectively to the law of master and servant and to the law of alluvion and diluvion. The Master and Servant Bill had met with much opposition L a 148 LEGISLATIVE METHODS AND FORMS Ch. VIII. from various quarters, and was open to serious objections. The demand for it came from a class of European employers who were anxious to obtain a more summary power of punishing their servants for breach of duty. The penal clauses framed to satisfy these demands had been condemned in most emphatic terms by Sir James Stephen and other eminent authorities, and were based on principles which Parliament had, within the last few years, decisively rejected. The Government of India found it impossible to proceed with any measure containing such provisions. If the penal clauses had been eliminated from the measure, and it had been reduced to a simple statement of the rules which, in the absence of special agreement, regulate the relations of master and servant, these objections would have been re- moved. But it appeared that no one would care about the Bill in that shape. The Alluvion Bill dealt with a very difficult subject in a very technical way, and was not unfairly described as being unintelligible to any one who was not both a mathematician and a lawyer. It did not seem much wanted, and there seemed to be everywhere well-ascertained usages which were saved by the Bill. Accordingly both these Bills were laid aside. With respect to what remained in the field of codification, there were two rival programmes in existence, that sketched by Sir James Stephen in his speech of 1873, and repeated, with slight modifications, in his memorandum of 1879, and that put forward by the Indian Law Commissioners in the latter year. The former of these programmes was the less ambitious, but would commend itself to most minds as the more practical of the two. And on comparing it with the work done up to date, it appeared to have been in the main completed, with one important exception. That exception was the law of torts or actionable wrong's. Was such a law really required ? Would its passing confer any practical benefits on the people of India? Both Sir James Stephen CODIFICATION 149 and Sir Henry Maine had answered these questions in the Ch. VIII. aiRrmative. Mr. Stokes had at one time been inclined to postpone dealing with this particular subject until some other branches of the law had been disposed of, but the latest expression of opinion which he left on record was that, if the codification of substantive law was to be proceeded with, the law of torts should first be taken up. On the other hand. Lord Hobhouse had expressed doubts as to the practical utility of any such measure, and the question was how far these doubts were well founded. As to the legitimate object of codification in India Sir James Stephen's dictum might be accepted, that the object to be aimed at should be that of ' providing a body of law for the government of the country so expressed that it may be readily understood and administered both by English and by native Government servants without extrinsic help from English law-libraries.' And for the purpose of determining in what direction the work of codification could be most usefully carried on, there appeared to be applicable two or three humble and empirical tests. 1. What classes of cases, judging from the Indian Law Reports, afford the greatest material for litigation ? 2. Does the litigation in these classes of cases arise in the Presidency towns, where judges are aided by the arguments of counsel and a well-stocked library, or in the country, where judges have to decide as best they may without those aids ? 3. How far does the litigation arise from uncertainty of the law, and how far from difficulties inherent in the subject- matter ? 4. How far is it possible to declare the law without raising difficult and delicate questions ? The application of these tests to the law relating to torts supplied a strong case for codifying at all events some portions of that law. A handy little book called the Indian Case Law of Torts had recently been published by an Indian Judge of Small Cause Courts. It referred to nearly 500 reported 150 LEGISLATIVE METHODS AND FORMS Ch. VIII. casesj by far the greater number of which were to be found ' ' in the Indian Law Reports of recent date, and a considerable proportion of which appeared to be up-country cases. The rapid growth of so large a body of case-law was prima facie evidence that the law required codification. The suggestion made in the Law Member's note of 1883 was, not to attempt the codification of the whole law of torts — indeed it was doubtful whether the subject had sufficiently defined boundaries to admit of its forming a separate chapter in a theoretically complete Code — ^but to select such of the leading rules as experience showed to have been most frequently the subject of litigation, express them simply and clearly, arrange them on some intelligible prin- ciples, and take the opportunity of clearing up obscurities and amending defects in the existing law. There was reason to believe that an Act drawn on these lines, and being in fact simply an authoritative manual of certain rules which a country judge has constantly to apply, would be as useful and welcome an addition to his library as the Contract Act ^. No time was lost in setting about the preparation of a draft Bill on the subject of Torts or Civil Wrongs. In- structions to prepare such a draft were given by the Govern- ment of India, through the Secretary of State, to Sir Frederick Pollock, and several communications as to the arrangement and subject-matter of the draft passed between him and the Law Member in India. The work proved to be longer than either of them had anticipated at the outset, and though instalments reached India from time to time, the draft provisionally completed did not arrive until the autumn of 1886, when the Law Member then in office was on the point of returning to England. Under these circum- stances it was necessary to leave the draft to his successor ^. ' As to the mode of procedure, the suggestion was to employ in the first instance a draftsman working in England, under such conditions as would prevent the friction which had arisen between the Government of India and previous Law Commissions. " No attempt to proceed with it appears to have been since made. CODIFICATION 151 It will have been seen from the foregoing review that the Ch. VIII. most pressing Indian needs have been met by the framing of the Penal Code and the Codes of Civil and Criminal Procedure. These three Codes, which are by far the most important and widely used of all the Indian Codes, may be described as the outcome of the first two Indian Law Commissions. The third Commission set itself a more ambitious task, that of reducing to systematic form so much of the English rules of law as is applicable to Indian circumstances. Perhaps about as much has been done in that direction as can safely be attempted for the present. That at all events was the opinion of Sir James Stephen, the ablest and most consistent advocate of English codification. And Mr. Whitley Stokes himself admits that, ' with the exception of actionable wrongs ' (on which, as has been said, a draft has been prepared), ' every important branch of the substantive Civil law has been codified in India.' If the programme laid down by Sir James Stephen be compared with the work actually done, it will be seen that such chapters of law as, according to that programme, yet remain to be written, are very few and comparatively unimportant. The Contract Act has been supplemented by the Negotiable Instruments Act, and by the provisions of the Transfer of Property Act relating to sale, lease, and mortgage. It might be feasible to add chapters on such subjects as Insurance and Maritime Contracts, but it is questionable whether they are much needed, or would be much used. It may indeed be reasonably doubted — Sir James Stephen has himself expressed serious doubts — whether portions of the Transfer of Property Act and the whole of the Trusts Act and of the Easements Act do not go beyond the requirements of the situation. In considering this question the test of practical utility ought to be rigidly applied. Codification is an expensive process. If it is to be done well — and it is not worth doing badly — it must be done by experts whose time is valuable, and must be highly paid. The case is not as though the Indian Legis- lative Department had nothing to occupy itself with except 152 LEGISLATIVE METHODS AND FORMS Ch.VIII. codification. Even if it were to leave this work undone it would still remain the hardest worked of all the Indian departments. It could not do more without strengthening its staff or seeking extrinsic aid. India is a poor country. How far are we justified in compelling the Indian taxpayer to spend Indian money on objects for which we ourselves grudge expenditure? These considerations are suggested, not for the purpose of depreciating the admirable work done by Mr. Whitley Stokes and others, but as cautions to those who would force the pace. Before passing more new Codes it would be desirable to make sure that those already passed are working, and working well. It is easy enough to pass laws for India — the difficulty is in making them work. They are apt to remain for an indefinite time ' in the air,' and when they touch earth they sometimes operate in unexpected fashions. Mr. Stokes often refers to the paucity or absence of judicial decisions as a proof that a particular Act is working well. But this is a fallacious test. Judged by it, some of the Acts which have remained as dead letters on our English Statute Book would be master- pieces of legislation. Probably we do not realize in England the extent to which the sphere of operation of some of the Indian Codes is limited by exceptions — wise and necessary exceptions — of particular classes and territories. Take the Succession Act, for instance. The fourth section of this Act declares that — ' No person shall, by marriage, acquire any interest in the property of the person whom he or she marries, nor become in- capable of doing any act in respect of bis or her own property, which he or she could have done if unmarried.' If this enactment had been applied to England it would have produced far-reaching effects, and would probably have been the subject of countless judicial decisions. In India it has 'worked smoothly.' But if reference is made to Mr. Whitley Stokes' footnote on the section it will be found that the enactment 'does not operate upon the movable CODIFICATION 153 property of parties to a marriage where either of them has Ch. VIII. a non-Indian domicile, and the marriage takes place in India/ and that it ' does not apply to any marriage one or both of the parties to which professed, at the time of the marriage, the Hindu, Mohammedan, Buddhist, Sikh, or Jaina religion.'' 'With this exception,' continues the annotator, 'it declares the general lex loci of India/ The exception covers almost all the propertied classes in India. Even among the classes to which an Indian Act normally applies, a long time often elapses before its existence is realized. A curious illustration of this occurred shortly before the present writer left India. Some time in the year 1886 a deputation arrived from the Jews of Aden, asking that they might be exempted from the operation of the Indian Succession Act (X of 1865). That Act applied to the Jews of British India, a small class of persons. Aden is technically part of British India. Therefore the Act applied to the Jews of Aden. _But for some twenty years the Jews of Aden remained in blissful ignorance of its existence. At last a case raising a question of succession among Aden Jews found its way into the Civil Court at Aden. The judge looked up his law and found that the Succession Act regulated the case. His decision fluttered the community, and they asked that they might be restored to their old law. On inquiry what that law was, reference was made to a passage in the Book of Numbers ^, containing what may without profanity be called the ruling in Zelophehad's case. The text lays down the rule of suc- cession to be observed when an Israelite dies leaving daughters but no son. It was stated that the Jews of Yemen had been under this law for some thousands of years, that it gave them what they wanted, and that they would like to remain under it. Under these circumstances the Government of India stipulated for two conditions — first, for evidence of the " Num. xKvii. i-ii. The passage is of great interest in the history of the law of inheritance. It recognizes the right of the daughter, but not of the widow. The daughter must not marry out of the tribe. Num. xxxvi. 154 LEGISLATIVE METHODS AND FORMS Ch. VIII. particular customs of the Yemen Jews, and, secondly, for an assurance that any exemption granted to them should not be used as a precedent for granting a similar concession to the Jews of India generally. The stipulations were com- plied with by the production of evidence as to the laws and customs of Yemen Jews (very curious and interesting evidence it was), and by an undertaking from the leading Jews in British India that they would be content to remain under Anglo-Indian law. And the Jews of Aden were accordingly allowed to revert from Act X of 1865 to the Pentateuch. The process of revision of the Codes has been carried on with considerable activity, both in the way of amendments and in the more drastic form of repeal and re-enactment. The first Criminal Procedure Code was repealed by Sir James Stephen in 187a, and his Code in its turn has been superseded, first by an Act of 1883 and now by an Act of 1898. If Mr. Stokes' suggestions were to be adopted the Penal Code and the Contract Act would speedily share the same fate. It would seem as if Indian codiBers built, not with brass or stone, but with materials more nearly resembling the brick and stucco of Lower Bengal. Their structures soon show signs of weathering, and require to be patched or pulled down and rebuilt. It is not desirable to try the patience of judges and practitioners by too frequent a repetition of this process, but, even if it is applied on a moderate scale and at reasonable intervals, the necessary supervision of the Codes will always supply a good deal of work for the Indian Legislative Depart- ment. The present position of codification in India may be summarized as follows. The most pressing Indian needs were supplied by the Penal Code and the two Procedure Codes. Of the branches of English substantive law applicable to India all the most important have been codified^ Whether the time has yet come for making a new departure by attempting to codify native law is a question which most ' See the list of Indian Codes below, p. 200. CODIFICATION 155 authorities would answer in the negative. Meanwhile current Ch. VIII. legislation and the revision of the existing Codes require con- siderable and constant labour, and the staff of experts available for the purpose is limited and expensive. The British Colonies have not made such rapid progress Codifica- with codification as the Indian Empire, but are in some gi-itisii respects in advance of the mother-country^. Lower Canada Colonies. stands alone, or almost alone, in the possession of a Civil Code, which came into force in 1866, and is based on French law. Canada, New South Wales, Victoria, New Zealand, and Queensland have Criminal Codes. Some of the minor Crown Colonies have adopted with modifications the Penal Code which was prepared by Mr. Justice Wright for Jamaica, but which never came into force in that Colony. Ceylon and the Straits Settlements have adopted or adapted some of the Indian Codes; and one or two of the West Indian Colonies, such as Grenada, have been active in codification. A large number of the Colonies have adopted the three small English codifying Acts, the Partnership Act, the Bills of Exchange Act, and the Sale of Goods Act. The oldest American Code is the Civil Code of Louisiana, Codifica- whieh was originally passed in 1808, five years after the t{j°" ™ purchase of the province of Louisiana from the French, and United , ^ ^ States. IS based on the French law. The first section runs as follows : — ' That the work entitled " Digest of the civil laws now in force in the territory of New Orleans with alterations and amendments adapted to its present system of government " which work is divided &c. . . . and containing to wit &c. ... is hereby declared in force in this territory and shall therein have full execution.' An amended code was passed in 1834 and has since then been revised from time to time. Codification in the United States is mainly associated with the names of Edward Livingston and David Dudley Field. Livingston was appointed in iSax to draw a Code of Criminal ' See below, p. aoo. 156 LEGISLATIVE METHODS AND FORMS Ch.VIII. Law and Procedure for the State of Louisiana. It was substantially completed in 1824, and partially adopted by the State at that time, but was not published in a complete form till 1833, about the time when Macaulay and his brother Commissioners were setting about their task of framing Codes for British India. Livingstones Code has exercised great influence on the codification of criminal law in other parts of the world, especially in English-speaking countries. The State of New York, under its constitution as revised in 1846, appointed David Dudley Field with four others to be Commissioners for codifying the substantive and remedial law of the State. The Commissioners framed a Code of Civil Procedure, which was enacted by the State in 1848, and a Code of Criminal Procedure, which did not become law until 1881. Their Civil and Penal Codes were reported complete in 1865 and 1866. The Penal Code became law in 1882; the Civil Code twice passed the legislature, but was twice vetoed by the Executive, and is still in abeyance. The provisions of the Codes of Civil and Criminal Procedure appear to have been adopted with modifications in several of the States. The influence of Mr. Field's Civil Code is apparent in the Indian Contract Act of 1872, but it does not command as much admiration among lawyers as it did some thirty or forty years ago. California has a more complete system of codes than any other State. All the codes were passed in 1872 and came into force in 1873. They are (i) The Political Code (which contains the whole constitutional and administrative law, including local government law, and also a part dealing with 'the definition and sources of law; the common law; the publication and effect of the codes; and the express repeal of statutes'). (2) The Civil Code. (3) The Code of Civil Procedure (including the organization of the courts). (4) The Penal Code (containing a part dealing with criminal procedure and another part dealing with prison administration in addition to the part dealing with crimes and punishments). CODIFICATION I57 The Civil Code and Penal Code are based on the correspond- Ch. viii. ing New York Codes. Dakota has seven codes, passed in 1877. During recent years the efforts of law reformers in the United States have been directed less towards the codification of the laws of each State than towards the promotion of uniformity of legislation in the different States. In 1896 the national conference of State Commissioners on uniform legislation recommended for adoption by the various States a general Act relating to negotiable instruments. This Act was adopted by New York, Connecticut, Florida, and Colorado in 1897, by Virginia, Maryland, and Massachusetts in 1898, and by North Carolina, North Dakota, Oregon, Rhode Island, Tennessee, Utah, Washington, and Wisconsin in 1899. It was also adopted by the United States Congress in 1899 for the District of Columbia. On the continent of Europe ^, France still retains the five Codifica- Napoleonic Codes of 1803 to 1810, the Code Civil, Code the Con- de Procedure Civile, Code de Commerce, Code d'Instruction t'^i®"*- Criminelle, and Code Penal, though they have been much amended, and the provisions of some of them, especially of the Code de Commerce, are antiquated ^. The unification of Germany gave a great impulse to the codification of German law ^- In 1871 the Imperial Reichs- tag re-enacted for the Empire a Criminal Code which had been passed for the North German Confederation in 1870, and the Bills of Exchange Code and the Commercial Code ' For information as to the Criminal Codes of different countries, see Liszt, Das Strafrecht der Staaten Europas, Berlin, 1894, with supplementary- information in the second volume, Das Strafrecht der aussereuropaischen Staate>i, which was published in 1899. For Commercial Codes, see Bor- ahaxit, Die geUenden Sandelsgesetze des Erdballs, 5 vols., Berlin, 1884-1887, with supplements going down to 1896. As to the law of Bills of Exchange, see Borchardt, YoUstandige Sammlung der Wechselgesetse alter L&nder, BerKn, 1871 ; Borchardt, Sammlung der seit dem Jahre 1871 puUizirten Wechsel- gesetse, Berlin, 1883. Many of the more important Codes are to be found in the useful Collevtim de Codes Strangers, published by the French Society of Comparative Legislation. ' See above, p. 11. ' See above, p. 18. 158 LEGISLATIVE METHODS AND FORMS Ch. VIII. which had previously been passed as State laws. Codes o£ Civil and Criminal Procedure, the Code organizing the Imperial Court and the several State Courts, and the Bank- ruptcy Code, came into force in 1879. The edifice was crowned by the German Civil Code, which was passed in 1896, and came into force at the beginning of 1900. At the same date were brought into force revised versions of the Commercial Code, the Code of Civil Procedure, and the Bankruptcy Code. Austria is still under its Civil Code of 1 8 1 1 ■*. It has a Criminal Code of 185a. The Austrian Bills of Exchange Code(i 850), and Commercial Code (i 863), were almost identical with the corresponding German Codes enacted about the same time. The Commercial Code which each of the German States had previously enacted as State law was in 1869 made federal law for the North-German Confederation, and in 1871 was made federal law for the German Empire. This is the Code which is still used in Austria, but has since been amended for Germany. Austria has also a Code of Criminal Procedure of 1873, a Code of Civil Procedure of 1895, and Acts of 1896 for regulating the execution of civil process and the organization of the courts. Hungary has a Penal Code of 1870, a Commercial Code of 1875, a Bill of Exchange Code of 1876, and a Criminal Code of 1896. Switzerland has an admirable Law of Obligations (1883), and also a General Bankruptcy Law. It is understood that the Federal Legislature is engaged in the task of attempting to codify other branches of its law. Belgium is still governed by the French Civil Code, and has a Commercial Code of 187a, based on the French Code de Commerce. It has also a Penal Code of 1867. The Netherlands have a Commercial Code of 1838, and also a Civil Code, a Penal Code, and Codes of Civil and Criminal Procedure. The Penal Code came into force in 1886. ' See above, p. 17. CODIFICATION 159 In Italy the political unification of the country led, as Ch. VIII. in Germany, to a demand for unification of law and for consequent codification. It has a Code of Criminal Procedure, a Civil Code, and a Code of Civil Procedure, v^hich was passed in 1865, and came into force in 1866, a Commercial Code, 1 88a, and a Penal Code, of which the latest edition dates from 1889. Spain has a Penal Code of 1870, Codes of Civil and Criminal Procedure dating from 1881, a Commercial Code of 1885, and a Civil Code of 1890. Portugal has a Civil Code of 1867, a Penal Code of 1886, and a Commercial Code of 1888. The Scandinavian countries have codified various parts of the law, as also have Roumania and other smaller States. Egypt has a Civil Code, a Mercantile Code, a Maritime Code, a Criminal Code, and Codes relating to Civil and Criminal Procedure. It may be worth while to inquire in conclusion why codi- General fication has been less successful in England than elsewhere, sions. and to see what practical lessons may be drawn from the experiments and failures of the century which has elapsed since Bentham wrote. Some of those lessons have been summarized above. On Advan- the one hand, we have learned that the most familiar codlfica- argument against codification, namely, that it checks the *'°'^- natural growth of the law and hinders its free development, though it may apply to bad, does not apply to good codi- fication. No country has studied law, both historically and systematically, with more fruitful results than Germany. In no country has codification been more successful. Nor is there reason to apprehend that the German codes will arrest the progress of German law, whether in the form of judicial development or of legislative amendment. On the contrary, the scientific formulation of existing rules, provided the mis- take is not made of attempting to stereotype details, illustrates and brings into prominence their defects, and thus stimulates l6o LEGISLATIVE METHODS AND FORMS Ch. VIIL their judicial development, and suggests and facilitates legis- lative amendments. The chief reason why so many of the statutory amendments of the English common law have been unsatisfactory in form and in effect is that they necessarily take the form of exceptions from indefinite or imperfectly formulated rules. If the rules were formulated, their statutory modifications would fit more easily and naturally into the general system, instead of being awkward excrescences, which tend to embarrass the courts in their application and develop- ment of general principles, and are consequently regarded with jealousy and suspicion by the judges. Diffioul- On the other hand, we have learned to form a more modest way of conception of what codification can effect, and to realize more codifica- clearly the diflSculties which it involves, especially in countries which have already an advanced system of jurisprudence. Those difficulties are so serious as to deter any prudent legislature from attempting the task on a large scale, except under strong pressure from practical needs. In British India administrative exigencies led to the enactment of codes suitable to, and sufficient for, the requirements of the situa- tion. For African protectorates and places under consular jurisdiction similar exigencies have been met by more rudi- mentary codes framed under the authority of the Foreign Jurisdiction Acts. On the continent of Europe the requisite motive power for codification has been supplied by the strong impulses which have made for national unity, and by the practical inconveniences arising from the co-existence of different systems of law in a country under the ?ame political government. The gravity of those practical inconveniences in Germany is well illustrated by a paper contributed in 1896 by Dr. Schuster to the Law (Quarterly Review'^. In other words, the strongest motive power for codification on the Continent has been, not the desire to improve the form of the law, but the desire to make it more uniform by removing unnecessary and inconvenient local differences. But that ' Vol. xii. pp. 17-34 ; and see above, p. 18. CODIFICATION l6l motive does not exist in England. Our Norman, Angevin, Ch. Vlll. and Plantagenet sovereigns, the first William, the second Henry, the first Edward, by establishing a strong central government and strong central courts of justice, gave greater national and legal unity to England than was possessed by any continental State until the present century. Under the steady and continual pressure of the legislature and of the superior courts, local differences of customary law have been almost obliterated. The common law of England is the common law of Ireland also. It is true that the common law of Scotland is different, but most of the practical incon- veniences arising from the co-existence of two systems of law in the same island have been smoothed away by the gradual assimilation of various branches of law, especially of commercial law. The differences which remain are mostly in those branches of the law, such as the law of marriage and the law of real property, which are the most difficult to touch, and usually the last to yield to the levelling hand of the law reformer. In England, up to this time, the only effective demand for codification has proceeded from the commercial classes, and arises in the region of commercial law, where, owing to its cosmopolitan character, the need for the formulation of simple and generally intelligible rules, and for the removal of local differences, is more strongly felt than in other branches of the law. Professional lawyers, as a rule, take no interest in the question. Their indifference is largely due to the defective and haphazard system of English legal education, under which the student is usually left to pick up odd fragments of knowledge in court or in barristers' chambers, and is rarely compelled or urged to take any general or scientific view of the principles which he has to apply. What is needed to supply the motive power and the material for codification in England is the improvement of legal education, and the concomitant improvement of legal textbooks. If there is truth in Bentham's dictum, that ' he who has been least successful in the composition of a code ILBERT M l62 LEGISLATIVE METHODS AND FORMS Ch. VIII. has conferred an immense benefit/ it is more true that he who has written a good textbook has gone halfway towards framing a code. A good textbook has often been the foundation of a code^ and in the meantime is not a bad substitute. Case for Whilst it must be admitted that the motive force which wlth°^ makes for codification is less powerful in England than in criminal other countries^ it is impossible to view with satisfaction, or, indeed, without a certain degree of humiliation, the entire cessation during recent years of any effort to improve the form of English law, and the apathy with which that cessa- tion has been regarded. It may be that Fitzjames Stephen's draft Codes were framed on too ambitious a scale, and that their workmanship was deficient in accuracy and finish. But it is impossible to deny that he was -right in his view as to the branches of the English law to which the process of codification might with most advantage be applied. England has in substance, though not in name, a Code of Civil Pro- cedure in the rules of the Supreme Courb and of the County Courts, and the statutory provisions by which they are supple- mented and supported. But it has no Criminal Code, and no Code of Criminal Procedure, and the want of them pro- duces practical and substantial inconveniences. If we had them, we should not be constantly having to improvise, or to borrow from Anglo-Indian sources, the simple codes of crimi- nal law and procedure required for the administration of the uncivilized or semi-civilized countries from time to time placed under the authority or protection of the British Crown, and it would have been unnecessary to write a chapter in an official manual for the guidance of military officers in parts of the world where they have to administer British criminal law^- As to criminal procedure, if a complete code presents serious difficulties, it would be a great advantage were the legislature to do for England what it did for Scotland by the ' See chapter vii of the official Manual of Military Law. CODIFICATION 163 Criminal Procedure (Scotland) Act, 1887 ', and schedule a few Ch. viii. simple forms of charges which might be substituted for the cumbrous and proHx indictments required by existing practice. As to substantive criminal law, if codification of the law as a whole is considered too ambitious a task (though it is a task from which our self-governing colonies have not shrunk), there are particular chapters of the law which might with great advantage be recast and expressed in a simpler form. Some half-dozen sections could be made to embody the whole of the law relating to perjury and false statements, and to supersede the numerous special enactments by which the deficiencies of the existing law are supplied ^. A similar process could be applied to the law of forgery. The Larceny Act, 1 86 1, has been described by high authority^ as ' a thing of shreds and patches.' It is a clumsy, confused, and defective piece of legislation, through the interstices of which scoundrels escape, to the great discredit of om- law. In the year 1891 occurred an extradition case, in which it was clear that a man who was ' wanted ' in Prance had criminally misappropriated money, but there was great difficulty in bringing him within any of the specific provisions of the Larceny Act. In the course of his judgement. Wills J.* remarked : — ' I cannot help saying that I share a certain feeling of humilia- tion, which my learned brother has expressed, "when one is obliged to confess formally to a neighbouring country that a great part of the atrocious things which have been done by this man, if the evidence is to be relied upon, are not punishable by English law. It does seem an extraordinary thing that a man being entrusted with money by other people for investment, should be able to put it into his own pocket fraudulently and dishonestly, and yet commit no crime punishable by English law.' A few provisions, not difficult to draw, or, one would think, difficult to pass, would make the English law of theft 'simple, rational, and effective. • so & 51 Vict. c. 35. ' See the Perjury Bills of 1894 and 1895. ' Cave J., In re Belkncontre (1891), a Q. B. 122, at p. 137. * See In re Bellmcontre (supra), p. 141. M a CHAPTER IX INDIAN AND COLONIAL LEGISLATION Ch-. IX. The contents of this chapter are based largely on the replies^ to a series of questions which, in the year 1895, were, at the instance of the Society of Comparative Legislation, sent by the Colonial Office to the various Colonial Grovern- ments. The questions so sent were as follows : — I. Common Law as the Basis of Statute Law. 1 . What is the common law of the colony ? Under what cir- cumstances, and by whose authority, was it introduced ? 2. Is there any law applying exclusively to particular races or creeds ? II. Statute Law. 1. Of what does the statutory or enacted law of the colony consist ? To what extent is it embodied in charters, regulations. Orders in Council, Ordinances, or Acts ? 2. To what extent do the statutes of the United Kingdom operate in the colony by virtue of either — (a) Original extension of English law to the colony ; (6) Express provisions of any Order in Council or charter ; or (c) Express adoption by the legislature of colony ? 3. Is the statute law of any other colony in force in the colony ? (This may happen where one colony has been severed from another.) 4. Is any code or other body of enacted law of non-British origin in force in the colony ? * For the replies to these questions see the Journal of the Society 0/ Com- parative Legislation, vol. i. pp. 134-190, 358-385 ; vol. ii. pp. 258-298. New Series, vol. i. pp. 70-74, 296-301 ; vol. ii. pp. 86-117, 384-288. The replies are not quite complete, but they are sufficient to illustrate the systems prevailing in different parts of the Empire. Some of the results hare been summarized in an article on ' The Sources of the Law in the Colonies,' by Professor Harrison Moore. Journal, New Series, vol. ii. p. 276. INDIAN AND COLONIAL LEGISLATION 165 III. Methods of Legislation. 1. By whom are drafts of legislative measures prepared? Is Ch. IX. there any official draftsman ? If so, by whom is he appointed, to whom is he responsible, and what are his staff and duties ? Do his duties extend to measures introduced by private or non- official members of the legislative body ? 2. What is the constitution of the legislative chamber or chambers through which measures have to pass ? (A reference to statute law, or charter, or Order in Council, or to any recognized textbook will suffice.) If there are two chambers, may measures be introduced in either ' ? 3. Are draft measures published before introduction, or before any other stage ? If so, under what rules ? 4. Through what stages does a measure pass before it becomes law? 5. Is any opportunity afforded for referring measures, while in course of passage through the legislature, to any special officer or committee on points of form ? 6. Have any steps been taken to secure uniformity of language, style, or arrangement of statutes either by means of a measure corresponding to 'Brougham's' Act (13 & 14 Vict. c. 21), or to the Interpretation Act, 1889 (52 & 53 Vict. c. 63), or by official instructions or otherwise ? 7. Is there an annual session of the legislature? Are there any fix«d or customary periods of session ? 8. How are the Acts or Ordinances of the colony numbered or distinguished ? Are they numbered by reference to the calendar year, or to the regnal year, or in any other way ? Is it the practice to confer for convenience of citation a ' short title ' on each Act or Ordinance ? How long has this practice been fol- lowed ? 9. Are private Bills (if any) treated separately, and under different conditions from Public Bills ? On what principle is the line drawn between public and private Bills ? Are private Acts or Ordinances separately numbered ? 10. Does any practice exist of accompanying a measure on its introduction by an explanatory memorandum ? IV. Publication of Statutes. 1. In what manner and under what authority are statutes promulgated ? What evidence is accepted of a statute having been duly passed ? 2. In what form or forms, and under what authority, are statutes printed for publication ? » 3. Are the statutes of each session published in a collected form at the end of the session ? ' The answers to these questions are omitted, as involving too long « a discussion of the constitutional law of the colonies. l66 LEGISLATIVE METHODS AND FORMS Ch. IX, 4. Are the periodical volumes of statutes accompanied by (a) an index and table of contents, (6) a table showing the effect on previous legislation P 5. What collective editions (if any) of the statute law of the colony have been published, and whether by the Government or by private enterprise ? Are these or any of them periodical ? Do such editions comprise those Acts of the United Kingdom in force in the colony ? 6. Is there any edition of ' Selected Statutes ' corresponding to Chitty's ' Statutes of Public Utility ' ? 7. How are private Acts published? V. Revision of Statutes. 1 . Have any steps been taken for the revision and expurgation of the statute law, whether periodically or otherwise ? What machinery, if any, exists for this purpose ? 2. Is there any edition of 'Revised Statutes' showing those actually in force ? If so, under what authority is it prepared and published, and what is the date of the latest edition ? Is it published at periodical intervals, or how otherwise ? Are the contents arranged alphabetically, chronologically, or on any other principle ? VI. Indexing of Statute Law. Is there any general index to the statute law of the colony ? If so, on what principle is it arranged and after what interval is it revised ? Does it include both public and private Acts or Ordinances, and the statutes of the United Kingdom which are in force in the colony ? Is it accompanied by any tables showing how each statute has been dealt with ? What is the date of the latest edition ? VII. Consolidation and Codification. 1. What steps have been taken to consolidate the whole or particular parts of the statute law, or to codify any branches of the law ? 2. Does any machinery exist for this purpose ? Is the work now in progress ? 3. What 'codes ' are now in force in the colony ? When, and by whom, were they prepared, and on what materials were they based ? VIII. Subordinate Legislation. What official or other machinery exists for the preparation, passing, or promulgation o'f measures of subordinate legislation, such as rules or orders made by the Governor, or a minister or department under the express authority of statute or ordinance ? • Is there any, and what collection of, or index to, such subordinate measures ? INDIAN AND COLONIAL LEGISLATION 167 . I. Common Law as the Basis of Statute Law. , The general principle is that where a British colony is Ch. IX. established by settlement, that is to say, where British General subjects settle down in an unoccupied or uncivilized country, P"nciple3. they take with them so much of the English law as is suitable to the circumstances of their case, but that where a British colony is acquired by conquest or cession, the previous law remains, until, and except so far as, it is altered or superseded by legislation ^- In the great dependency of British India, English law is India, held to have been introduced into the three Presidency Towns of Calcutta, Madras, and Bombay, by the charters of the eighteenth century which established courts of justice for these towns. Outside the Presidency towns the East India Company, while exempting Englishmen from the jurisdiction of the local courts, endeavoured to administer native law to natives. Thus they applied the Mahomedan criminal law, which they found in force, and directed that in civil cases the personal law of the Hindu or the Mahomedan should be applied, as the case required. But it was soon found that portions of the Mahomedan criminal law could not be administered by civilized judges, and the Hindu and Mahomedan law relating to civil rights was on many points vague and defective. Hence both the criminal and the civil law applicable to natives of India were largely modified by legislation, and by the judicial application of English legal principles introduced under the general direction to observe ' justice, equity and good faith '^' The result is that both the local and the personal law of ' See Lord Mansfield's judgement in Caimphell v. Hall (1774); 20 State Trials, 304, and the curious preamble to the Declaratory Act passed for the Bahama Islands in 1799. Journal of the Society of Comparative Legislation, New Series, i. 296. '' On the application of English law to natives of India, see chapter v of the present writer's hook on the Government of India. i68 LEGISLATIVE METHODS AND FORMS Ch. IX. Channel Islands. British colonies generally. French law in Canada and else- where. the country have been to a great extent displaced by English law, much of which is formulated in the Anglo-Indian codes. The criminal law and the law of criminal and civil procedure are based wholly on English principles. So also, subject to some few exceptions, are the law of contract and the law of torts or civil wrongs. But within the domain of family law, including the greater part of the law of succession and inheritance, natives of India still retain their personal law, either modified or formulated, to some extent, by Anglo- Indian legislation. Hindus retain their law of marriage, of adoption, of the joint family, of partition, of succession. Mahomedans retain their law of marriage, of testamentary and intestate succession, and of Wakf or quasi-religious trusts. In the Madras Presidency the legislature have dealt with, and to some extent recognized, the curious system of poly- andry which prevails among the Naii's of Malabar^. The law relating to the tenure of land in the different provinces of India is represented by enactments which are based on and supplemented by local usage. In the Channel Islands, which are a fragment of the Duchy of Normandy, the common law is based on the ancient customs of the Duchy. In the great majority of the British colonies the common law is that of England, either brought by the colonists at the time of settlement, or introduced by subsequent legislation. In the province of Quebec the common law is that of France, not the law of the Napoleonic codes, but the earlier Coutumes de Faris as formulated and modified by the Orion- nances of Louis XIV and Louis XV. Commercial matters, however, are regulated not by French but by English law. Mauritius and the Seychelles were ceded by France to England at a time when the French Civil Code, Code of Civil Procedure and Commercial Code had, but the Penal Code had not, acquired the force of law in the islands, and ' See JourrmX of the Society of Comparative Legislation, ii. 146. INDIAN AND COLONIAL LEGISLATION 169 therefore the latter code is not, though the former codes to Ck. IX. some extent are, in force in those islands. St. Vincent, in the "West Indies, was formerly governed by the Coutume de Faris, and though most traces of French law have disappeared from the island, it is said that some old French arrets are still in force. In Trinidad and Tobago, though the common law is Spanish described as being that of England, there are said to be a few survivals of Spanish law. In Ceylon, in the South African colonies and in British Guiana, the common law is still Roman-Dutch, though extensively modified by English law. In Ceylon the Roman-Dutch law seems to survive only in Koman- a fragmentary condition. ' The continued existence,^ says i^-nr. Mr. L. B. Clarence ^, ' of remnants and traditions of this law in a decaying and semi-obsolete condition has been the parent of much unwholesome uncertainty Theories and rem- nants of procedure originally founded on Dutch institutions no longer extant still linger to hamper and confuse the administration of justice. Lawyers are largely educated from English textbooks, and few can read the Latin of the Roman-Dutch jurists. Yet, in spite of wholesale introduc- tions by statutes of English law, pure and simple, in various departments, various remnants of Roman-Dutch doctrine still lurk in all directions.' The Roman-Dutch criminal law is now superseded by a Penal Code of 1883 largely modelled on the India Penal Code. And, among other topics on which English law has been specifically introduced, are bills of exchange, shipping and maritime matters, partnerships, banking, principals and agents, carriers by land, fire- insurance, and evidence. In the Cape Colony the survival of Roman-Dutch law is more extensive. But a Cape Act of 1879 applied to the Cape English law in maritime cases and in cases relating to questions of fire, life and marine insurance and stoppage in ' See Journal of the Society qfComparatm Legislation, i. 231. 170 LEGISLATIVE METHODS AND FORMS Ch. IX. transitu. And in many other respects the provisions and principles of Anglo-Dutch law have been much modified by legislation ^. In British Guiana, an Ordinance o£ the colony has declared English mercantile law to prevail. Malta. The common law of Malta is still that which was in force when the island became a British possession. It is based on Roman law^ modified by common laWj feudal law and custom, and was to some extent codified by the Grand Masters of the Order of St. John of Jerusalem, the most important code being the code Rohan of 1784^. Cyprus. In Cyprus, which is not a colony, the common law is that of the Ottoman Empire, based upon the Shari or Mahom- edan sacred law. The Cyprus Courts of Justice Order, 1882, provides for the application of Ottoman law to Ottoman subjects, and English law to British subjects ^- When we come to consider laws applicable exclusively to particular races or creeds, we find that British India supplies the most conspicuous illustration of the regime of personal law which prevailed so largely in Europe after the downfall of the Roman Empire. Hindus and Mahomedans are governed by their own laws in many matters, and separate laws have been enacted or recognized for Parsees, Buddhists, and others. Similar recognition of the laws or customs of particular races or creeds has been found necessary in several of the colonies. Ceylon. The extent to which European law has been applied to natives of Ceylon is described by Mr. L. B. Clarence, late judge of the Supreme Court of the island, in an interesting Laws ap- plicable to particular races and creeds. India. ' See the article by W. F. Craies on 'The Law of South Africa,' Journal of the Society of Comparative Legislation, New Series, vol. ii. p. 233. ' See the reports presented to Parliament in 1838 and 1839 by John Austin and George Cornewall Lewis, and the ease of Gara v. Oiantar (1887), L. R. la A. C. 557. ' Statutory Rules and Orders, Revised, iii. 436. See Articles 23-25 of the Order. INDIAN AND COLONIAL LEGISLATION 171 paper contributed by him to the Journal of the Society of Ch. IX. Comparative Legislation ^. ' Compared with India/ he says, ' there was less of ascertainable native law in the island when our rule began/ and ' upon the whole the administration in Ceylon has paid less attention than the Government of India to the remains of native law and usage/ Under Dutch rule a compilation of customary law, styled the Thesa- walamei, or Teswalamai, was made for the Tamils in the extreme north of the island. And under English rule, when the Kandyan country of the interior was annexed, a code of Kandyan customary law, under the name of ' Niti- nighanduva,' was compiled by native experts. But in the maritime districts native usage appears to have been almost entirely displaced by European law, and in the Kandyan country native custom appears to have been much modified by the action of the legislature and the courts. In matters relating to marriage, succession, and inheritance, Mahome- dans are governed by their own customs, as codified and promulgated by authority of the British Governor in 1806. In the Straits Settlements, where the law of England is Straits. the common law, it has been held to be subject, in its appli- cation to alien races established in the Settlements, to such modifications as are necessary to prevent it operating unjustly or oppressively ^- And the legislature of the Straits Settle- ments has passed special laws relating to the marriage of Hindoo widows, and the marriage, divorce, and intestate succession of Parsees. An Ordinance of Hong Kong recognizes the validity of Hong Chinese wills made in accordance with Chinese law and °^^' usage. In Labuan provision is made by Ordinance for the settlement of disputes concerning marriage, divorce, and probate matters between Mahomedans according to Maho- medan law or custom. ' i. 227. ' By Sir P. B. Maxwell, C. J., in Chaa Choon Neo v. Spottiswoode, approved 'by the Judicial Committee of the Priyy Council in Ong Chang Neo v. Yeap Vheah Neo. L. R. 6. P. C. 38. 172 LEGISLATIVE METHODS AND FORMS Ch. IX. African colonies. Austral- asia. Recognition of native customs is frequent in the African colonies. Thus Natal has enacted a Native Code embodying such of the customs in force as could be recognized by a civilized government. In the courts of the Cape Colony, native law is administered in native cases. In Lagos^ Gambia, and the Gold Coast there are directions that native laws and customs are to be observed 'where possible/ or ' so far as they are not repugnant to natural justice.' These laws and customs include the Mahomedan law in regions where there is a Mahomedan population, as in the protected territories adjoining the Gambia colony. The customs of the aboriginal natives of the Australasian continents and islands are mostly too rude for recognition by civilized courts, and the laws which have been passed in West Australia, New Guinea, Fiji, and elsewhere, for these races deal with them as constituting a special class, under special disabilities, and requiring special protection. II. Statute Law. Materials The statutory or enacted law of a British possession, be statute" ^^ colony or dependency, consists of the enactments of the law of local legislature, supplemented by certain Imperial enactments, posses- and, in some eases, of enacted law in force at the time of composed, conquest or cession. The laws passed by the legislatures of British India and of the self-governing colonies are called Acts. Those passed by the legislatures of Crown colonies are usually called Ordinances. The Imperial legis- lation consists either of Acts of Parliament, or of Orders of the King in Council, or of Charters, Letters Patent, Proclamations, or Instructions having the force of law. The Acts of Parliament locally in force are those brought by the settlers with them, or declared to be in force at a particular date by an Order in Council, Charter of Justice, Charter of Government, or local enactment, or extended subsequently to the possession by express terms or by 'necessary intendment., INDIAN AND COLONIAL LEGISLATION I73 Sometimes a Charter or Order in Council will declare all Ch. IX. English Acts in force at a particular date to be in force in the possession so far as they are applicable to local circum- stances. Sometimes it will enumerate specifically the English Acts which are to be locally in force. Sometimes a local enactment will apply specifically particular English Acts. More often it will copy English legislation by enacting similar provisions with adaptations suitable to local re- quirements. The Imperial Parliament has, theoretically, power to Legisla- legislate for all parts of the King's dominions, but, in powers of accordance with constitutional principles and practice, does p^'Sj""' not, as a rule, interfere with matters which are within the ment. competency of a local legislation. The matters with which it deals are, speaking broadly, matters of Imperial, as dis- tinguished from local, concern, and those matters are, in the case of the self-governing colonies, very few in number. For territories acquired by conquest or cession, and now, under statute^, for territories occupied by settlement, the King has power to legislate by Order in Council. But that power is held to cease, except so far as it is reserved, when a local legislature ie established ^. Hence Orders in Council of a later date are made either under a reserved power, or under a power conferred by an Imperial Act of Parliament extending to the possession. Where one British possession has been severed from, or Effect of carved out of, another, certain laws of the original possession of^e""^ may remain in force in the detached portion. Thus certain possession laws of New South Wales are in force in Victoria and another. Queensland, and certain British Indian enactments in the Straits Settlements. In a few instances, such as the French codes still in force Sm-vivais in Mauritius and the Seychelles, and the Maltese codes in enacted^" Malta, portions of the enacted law are of foreign origin. '*^- ' 50 & 51 Vict. c. S4. ' Campbell v. Sail, 20 State Trials, 304; and 50 & 51 Vict. 0. 54, s. 6, 174 LEGISLATIVE METHODS AND FORMS Ch. IX. Illustra- tions. The Indian Statute Book. English legislation. Indian legislation. In every case the direct enactments of the legislature will be found to be supplemented by rules or regulations made under statutory or other authority. These general statements may be illustrated by a few typical instances. The Indian Statute Book is of a complex nature i- The classes of enactments of which it is composed may be grouped as follows : — [ I. Acts of Parliament. II. Orders in Council made by the King in Council, in. The old Bengal, Madras, and Bombay regulations. IV. Acts of the Governor-General in Council. V. Regulations made by the Governor- General in Council under the Government of India Act, 1870. Ordinances made by the Governor- General in Council. Acts of Local Legislative Councils. Statutory rules, &c., made in India under the authority of English legislation. Statutory rules, orders, regulations, by-laws, and notifications made under the authority of Indian legis- lation. Rules, laws, and regulations made by the Governor- General or Go- vernor-General in Council for 'non- regulation provinces' before r86r, and confirmed by s. 25 of the Indian \ Council Act, 1861. The Acts of Parliament applying to India may be divided into three classes ; {a) Acts applying in terms to India, Derivative legisla- tion in India. VI. VII. VIIL IX. X. ' See the article by Mr. M. D. Chalmers in the Jmirnal of the Society 0/ Comparative Legislation, ii. 399, and the present writer's Government of India, p. 124. INDIAN AND COLONIAL LEGISLATION 175 (i) Acts applying in terms or by necessary implication to Ch. IX. the whole of the King's dominions, and (c) Acts applying only to Presidency towns. The last class consists of the Acts held to have been introduced by the charters of justice granted for Calcuttaj Madras, and Bombay. The few Orders in Council which are in force in India are Orders made under the authority of English Acts of Parliament, such as the Order in Council confirming the Extradition (India) Act, 1895 (IX of 1895). The Bengal, Madras, and Bombay regulations are the enactments passed by the legislatures of the three Presidencies before a legislature was established for the whole of British India by the Government of India Act, 1 833 (3 & 4 Will. IV. c. 85). Some of these regulations have been extended, with or without modifications, to other provinces, but most of them have now been repealed by subsequent Indian legislation. The Acts of the Governor-General in Council are Acts passed, either for the whole or for particular parts of British India, under the Act of 1833 as modified by subsequent enactments, of which the most important is the India Councils Act, 1 861 (24 & 35 Vict. e. 67). These Acts have in some cases extra-territorial operation. Thus under an Act of 1869 (3a & 33 Vict. c. 95) the Governor-General in Council can make laws for native Indian subjects anywhere, either within or without British India. The regulations made under the Government of India Act, 1870 (33 Vict. c. 3), must be distinguished from the old Bengal, Madras, and Bombay regulations, and are laws made by a more summary method for the less advanced parts of British India by the Governor-General in his executive, as distinguished from his legislative, Council. The Ordinances are temporary laws, made in cases of emergency by the Governor-General without either his executive or his legislative Council. The power of making these Ordinances is rarely exercised, and they may not remain in force for more than six months. 176 LEGISLATIVE METHODS AND FORMS Ch. IX. The Acts of the Local Councils are the enactments passed ■ by the legislative bodies which have been established for the provinces of Madras, Bombay, Bengal, the North- Western Provinces with Oudh, the Punjab, and Burma. The class of laws made under powers of derivative legisla- tion corresponds to the numerous statutory rules and orders which are made in the United Kingdom under the authority of Acts of Parliament 1, but the power of making such rules and orders is more freely exercised in India. Canadian The Dominion of Canada resembles British India in having Lw" * both a central legislature and local legislatures, but differs from it materially in being a self-governing colony with a responsible government of its own. Its statutory or enacted law is described by Mr. McCord, law clerk of the Canadian House of Commons, as consist- ing of — ( T ) Imperial Statutes extending to Canada ; (2) Imperial Orders in Council made under such statutes and extending to Canada ; (3) Statutes of the Parlia.ment of Canada, and, within each province, statutes of the legislature of that province ; (4) Orders of the Governor-General in Council, made under Dominion statutes, and, within each pro- vince, orders of the Lieutenant-Governor thereof in Council made under provincial statutes. Besides Imperial statutes made applicable ' by the express words or intendment thereof,' Imperial statutes operate in Canada, either by original extension of English law to the colony, so far as applicable to the circumstances therein, or by virtue of Orders in Council, to the extent authorized by the statutes under which they are made, by virtue of express adoption by the local legislature. Thus the first Act of the legislature of Upper Canada (now Ontario), in 1792, introduced the laws of England as they stood on October 15, • See above, Ch. IIL INDIAN AND COLONIAL LEGISLATION 1 77 1791, in all matters of controversy relative to property and Ch. IX. civil rights, and the English law of evidence. In the North- West Territories, the statute law of England of 1670, the date of the Hudson's Bay Company's Charter, was in force, as altered by dominion and territorial legislation, until February 15, 1887. But since that date, by virtue of the Dominion Act of 1886 (c. 35) the civil and criminal laws of England in force on July 15, 1870, the date on which the Territories became part of Canada, are now in force, subject to amendments by Imperial, dominion, and territorial legislation. In Manitoba, before July 15, 1870, when the province was constituted, the law of England as it stood in 1670 was the basis of the law. Then came an Act of the provincial legislature in 1874 which declared the law of England, as it stood on July 15, 1870, to be in force in matters of controversy relative to property and civil rights, and as to evidence and procedure. And finally, in 1888, the Dominion Parliament ' for removing doubts ' declared (by 51 Vict. c. 33) English law, as it stood on July 15, 1870, to be in force in Manitoba as to matters within the juris- diction of that Parliament, so far as that law was applicable to the province and was unaltered by Imperial or dominion legislation. A provincial Act of British Columbia, passed in 1871, declared the civil laws of England, as they existed on November 19, 1858, to be in force in the province so far as not from local circumstances applicable. New South Wales, as it existed on the eve of its absorption Austral- into a Federal system, may be taken as the type of a self- statute governing unfederated colony. Its statutory law is described '^^" as consisting of (i) English statutes existing at the time of the occupation of the colony so far as they were applicable to local circumstances ; (a) statutes in force within the realm of England at the passing of 9 Geo. IV. c. 83, so far as applicable ; (3) enactments of the Imperial Parliament extending to the colony, and any orders and regulations made thereunder and having the force of law in the colony ; lyS LEGISLATIVE METHODS AND FORMS Ca. IX. (4) statutes passed by the legislature of the colony and regula- tions and by-laws made thereunder; (5) the charter of justice made under the authority of 4 Geo. IV. c. 96 ; (6) Orders of the Queen (now King) in Council, either of an enacting or regulating character, such as the Order regulating appeals to the Queen (now King) in Council, or applying Imperial enactments, such as the orders under the Extradition Act. Victoria and Queensland have, besides their own enact- ments, certain ordinances and statutes passed for New South Wales before their severance from that colony. South Australia has sent to the Society of Comparative Legislation a long list of Imperial enactments which have been adopted by the local legislature. .Tamaica. The constitution of Jamaica has undergone many vicissitudes, and is now mainly regulated by an Order in Council of May 19, 1884 ^ made in pursuance of a Jamaica Act of 1866 and the ' Jamaica Act ' passed by the Imperial Parliament in the same year (29 & 30 Vict. c. 12). Its colonists brought with them the English Statute Law of 1655, so far as this law was applicable to the circumstances of the island. A local Act passed for the Bahamas in 1799 extended specifically 207 English statutes to the colony. Rudi- Rudimentary forms of legislation are to be found in forms of such places as the West African colonies, Labuan, and the legisla- Australasian islands. Thus in Sierra Leone the statutory law consists of local ordinances based on the existing law of England, with adaptation to local circumstances. Labuan is governed by Ordinances of the Governor made under the authority of Letters Patent. In Fiji the statutory law consists of (i) Ordinances passed by the Governor with the advice of his Legislative Council; (2) native regulations (applicable only to Fijians, and, in certain cases, to other Polynesians) passed by the Native Regulations Board and approved by the Legislative Council ; (3) Imperial statutes ' statutory Bules and Orders, Revised, iv. 290. See also the Orders in Council of June 11, 1866, and Ootober 3, 1895. INDIAN AND COLONIAL LEGISLATION I79 applying to the colony, and (4) Orders in Council. A Ch. IX. Supreme Court Ordinance (XIV of 1875) declared the English statutes that were in force at the time when the colony obtained a local legislature (Jan. 3, 1875) to be in force in the island so far as they were applicable to local circumstances. Numerous Ordinances have been passed adopting provisions of English Acts. In British Bechuanaland, before it was annexed to the Cape Colony^ the enacted law consisted of proclamations by the Governor. III. Methods of Legislation. 1. Preparation of Bills. The methods adopted for the preparation of legislative measures in British India and in the several British Colonies are various. The most carefully organized system is in India. In most colonies the Attorney-General takes a leading part in the preparation of Bills, and in some colonies official draftsmen are employed. The Legislative Department of the Government of India India, was, like the office of the Parliamentary Counsel in England, established in the year 1869, and is under the charge of the Law Member of the Governor-GeneraFs Council. All legislative measures introduced into the Governor-General's Council are drafted in the Legislative Department. Most of them are introduced into the Council by the Law Member himself, and he is, ex officio, chairman of the select committee to which, as a rule, every Bill is referred, so that he is able to keep effective control over the form of a Bill through all its stages. Every Bill is accomplished by a printed Statement of Objects and Reasons, prepared in the Legislative Depart- ment. That Department, like the Office of the Parliamentary Counsel in England, is charged with other duties besides the mere drafting of Bills ^. ' See the present writer's GmernmenX of India, p. 181. N 3 l8o LEGISLATIVE METHODS AND FORMS Ch. IX. The Bengal legislative council has an official draftsman of its own, but the other local legislatures of India depend for the drafting of their measures on their legal advisers with such assistance as it may be practicable to obtain from the Legislative Department of the Government of India. The following statements, taken from the replies to the questions circulated on behalf of the Society of Comparative Legislation, illustrate the systems adopted in various British Colonies. Self- The Dominion of Canada and some of the Australasian colonie^^ Colonies will supply illustrations of the procedure in the self- governing colonies. Canada. In the Dominion of Canada there is, for each house of the Canadian Parliament, a law clerk, an officer whose duties include those of a parliamentary counsel as well as those of a legislative draftsman. The law clerk of the Senate is appointed by that body. The law clerk of the Lower House, in which the great majority of measures are introduced, is also law clerk of the Government. He is appointed by Mr. Speaker, and has an assistant. The preparation of measures for private members is no part of his business. New- In Newfoundland there is an official draftsman, called the land ^^vr Clerk of the Legislature, appointed by and responsible to the Governor in Council. His duties are to draft all Bills introduced into both Houses of the Legislature, including private bills, but in jJractiee bills are frequently drafted by private members themselves. „ In New South Wales drafts of legislative measures are New ° South prepared by the members of Parliament introducing them, or by some person acting under their authority or by their direction. There are two official draftsmen, named Parlia- mentary draftsmen and appointed by the Governor with the advice of the Executive Council. They are in the department of the Attorney-General and responsible to him. Their duties are : — i . The preparation of Bills for the Ministers of the Crown. INDIAN AND COLONIAL LEGISLATION l8l 2. The preparation of Bills for private members on the Ch. IX. request of the Attorney-General. 3. Reporting to Ministers on the introduction of any Bill by a private member^ and on its passage from the Legislative Assembly to the Legislative Council. 4. Reporting to the Attorney-General at his request on all by-laws and regulations of public bodies submitted to him for his opinion or approval. 5. Reporting on any special matter submitted by any Minister to the parliamentary draftsmen. In Victoria measures for submission to Parliament are Victoria, prepared by the parliamentary draftsman under the directions of Ministers. The parliamentary draftsman is an officer of the public service appointed by the Governor in Council, and attached to the department of the Attorney-General, to whom he is directly responsible. His duties are to prepare all Government Bills and draft amendments thereto. He also, when desired, drafts Bills for private members, and, as a general rule, all such Bills, by whomsoever drafted, are examined by him, and, when necessary, specially submitted to the Attorney-General or the Premier for his consideration. In Queensland, drafts of legislative measures are prepared, Queens- in the ease of Government measures, under the direction of the department concerned, and usually by a member of the bar, under the supervision, if desired, of the Crown Law Office. Measures introduced by private members are usually prepared under their own direction, aid being occasionally given from the Crown Law Office. There is no permanent parliamentary draftsman. In South Australia the drafting of any important measui-e South introduced by the Government is usually entrusted to some "* "^^ '*' legal practitioner chosen either for his special knowledge of the law relating to the subject-matter of the measure, or for his ability as a draftsman. The lawyer so selected takes his instructions from the Minister having charge of the Bill, l82 LEGISLATIVE METHODS AND FORMS Western Australia, Crown colonies. Ch. IX. and receives information and suggestions from the permanent officials of the departments concerned. Measures are fre- quently drafted under the instructions of the responsible Ministers by the officials by whom the measures will be subsequently administered. There is no official draftsman. It is quite exceptional for a private member to receive any assistance in drafting any measure which he desires to introduce. In Western Australia drafts of legislative measures are prepared by various persons, the Attorney- General, a Minister, or a private member. There is now an official draftsman appointed by the Governor in Council on the recommendation of the Attorney-General, to whom he is responsible. He has no staff, and his duties are indeterminate ; they do not extend to measures introduced by private members. For the Crown colonies, the following illustrations may suffice : — In Fiji the drafts of legislative measures are generally prepared by the Attorney-General, there being no other official draftsman, though sometimes the various heads of departments, in more or less collaboration with the Attorney-General, may draft sub- ordinate measures of special legislation, referring to their own particular departments. Sometimes, however, the Governor may draft and introduce a measure upon a subject of which he has special cognisance. Fiji being a Crown Colony without any representative Government, the Governor practically initiates all legislation, and it is the duty of the Attorney-General to intro- duce each measure, with the exceptions above mentioned, so that practically there is little or no legislation introduced by the non- official or. private member. In British New Guinea drafts are prepared sometimes by the Lieutenant-Governor, sometimes by the Chief Judicial Officer. They are approved by the Governor of Queensland before they are submitted as Bills to the Legislative Council. Passing to the West African Colonies — in Gambia drafts of legislative measures are prepared by the only judicial and law officer in the colony, the chief magistrate. Private or non- official measures which, however, are very rare, must, under the rules of the Legislative Council, be prepared and printed at the expense of the parties interested. In the Gold Coast drafts of legislative measures are prepared by the Attorney-General and Solicitor-General. There is no official draftsman. INDIAN AND COLONIAL LEGISLATION 183 In Lagos the drafts are usually prepared by the King's Advo- Ch. IX. cate, but occasionally other officials draft measures appertaining to their own departments of Government. There is no official draftsman. In Sierra Leone Bills are prepared by the King's Advocate, who is the official draftsman. In the Bahamas (West Indies) there is no official draftsman. The Attorney-General, who is appointed by the Crown, and is ex officio a member of the Executive Council, drafts Government measures as well as those introduced by private members. He has no staff. The draft official measures are, before introduction in either of the legislative chambers, submitted to the Executive Council, whose constitution is governed by the Royal instructions issued to the Governor, and which consists entirely of official and nominated members. In Barbados there is no special officer charged with the draft- ing of Bills. In Bermuda drafts are prepared by the Attorney-General of Government legislative measures, and of any other measures which he considers it desirable to adopt. There is no other official drafts- man. The Attorney-General is appointed by the Crown, and has no official staff. His duties do not extend to measures intro- duced by private or non-official members of the legislature. Important measures originating with private members are usually brought in by a committee of the House of Assembly, or a joint committee of the Legislative Council and Assembly, appointed for the purpose, with leave to employ counsel, the expense being defrayed out of the public treasury. In Grenada drafts are prepared by the Attorney-General or by some other member of the Government. In British Guiana there is no special official draftsman. It is a part of the duties of the Attorney-General to draft and carry through the Legislative Chamber all Government measures. In practice these are almost co-extensive with measures of a public nature. A private or non-official member has the right, with the permission of the Governor, to introduce a Bill relating to a matter of public importance ; but this right is seldom or never exercised. In the case of a private Bill, the Attorney- Gteneral is expected to examine, and, if necessary, to revise it, in the interests both of the Government and of the Legislative Chamber. Where a measure deals with matters falling specially within the experi- ence of a public department or officer, the first draft is sometimes made by the department or officer, and then settled by the 'Attorney-General. In British Honduras the Attorney-General of the Colony drafts all Bills. He has no staff. In Jamaica, Government measures are drafted by the Attorney- General, but in the event of his being unable for any reason to do so the Clerk of the Legislative Council drafts them. Each has 184 LEGISLATIVE METHODS AND FORMS Ch. IX. a clerk, whose duties are entirely clerical. Their duties do not extend to measures introduced by private or non-oificial members of the Legislative Council. In the Leeward Islands the Attorney-General and two assistants are the oflcial draftsmen of the Government Bills. In St. Lucia the Attorney-Gieneral prepares drafts of legislative measures and is the only draftsman. Measures introduced by private or non-official members of the legislature are prepared by themselves or by counsel on their behalf. In St. Vincent drafts of legislative measures are prepared by the Attorney-General, who is appointed by the Crown. In Trinidad and Tobago drafts of legislative measures are prepared by the Attorney-General, who is the official draftsman, and is appointed by and responsible to the Crown. His duties do not extend to measures introduced by non-official members of the Legislative Body. In Gibraltar drafts of legislative measures are prepared by the Attorney- General of the Colony, who is the official draftsman appointed by the Secretary of State for the Colonies, and is re- sponsible to the Governor. His staff consists of one clerk. In Ceylon drafts of legislative measures are prepared by the Attorney-General. In Hong Kong drafts of legislative measures are prepared by the Attorney-General, who has no official draftsman or staff to assist him. His duties do not extend to measures introduced by private or non-official members of the Legislative Council, but such measures are in practice always referred to him for his report, and he suggests such amendments as he considers the Government ought to require. In Labuan drafts of legislative measures are prepared by the Governor. There is no official draftsman, and there has never been any law officer. In the Straits Settlements drafts of legislative measures are prepared by the Attorney-General. He is appointed by the Secretary of State and responsible to the Governor. He is allowed clerical assistance. He is an official member of the Legislative Council, and introduces and supports measures proposed by the Government. His duties do not extend to measures introduced by non-official members. In the Seychelles, a dependency of Mauritius, there is no official draftsman. There being no Attorney-General or other law officer of the Crown, the drafts of legislative measures are generally prepared by the judge, who is the only legal and official member of the Executive and Legislative Councils. In some in- stances drafts are prepared by the heads of departments which they specially concern, but in that case they are submitted to the judge for examination before introduction. Non-official members prepare their own drafts. INDIAN AND COLONIAL LEGISLATION 185 a. Publication of Bills. In British Indiaj a Bill when introduced into the Legislative Ch. IX. Council is published in the Official Gazette, in English and i^^^^ in the local vernacular, with a ' Statement of Objects and Reasons/ and a similar course is usually adopted after every subsequent stage of the Bill at which important amendments have been made. Thus a Bill as amended in committee is published with the report of the committee explaining the nature of, and reasons for, the amendments. The draft of a Bill is in some cases published, for the purpose of eliciting opinion, before its introduction into the Council. In the self-governing colonies the English practice is Self- adopted of printing a Bill, after first reading, and at subse- colonies, quent stages, as part of the proceedings of the House. In most, but not all, of the Crown colonies drafts of Crown Bills are published for general information in the local Official Gazette. 3. Stages of Bills. Under the rules for the conduct of legislative business in India, the Council of the Governor- General of India '^, when a Bill is introduced, or on some subsequent occasion, the member in charge of it is to make one or more of the following motions : — (i) That it be referred to a select committee; or (2) That it be taken into consideration by the Council, either at once or on some future day to be then mentioned ; or (3) That it be circulated for the purpose of eliciting opinion thereon. The usual course is to refer a Bill after introduction to a select committee. It is then considered in Council after it is returned by the committee, with or without amend- ments, and is passed, either with or without further amendments made in Council. ' See Qcmimmmt of India, pp. 330, 331. l86 LEGISLATIVE METHODS AND FORMS Ch. IX. In most of the colonies a Bill passes througli the same Colonies stages as in the British Parliament, introduction, first reading, second reading, reference to a committee, either select or of the whole House, third reading, and passing. But in some of the Crown colonies these stages are dispensed with or abbreviated. 4. TLeferences on Points of Form. There does not appear to be any machinery in any colony for referring a Bill on points of form to any particular officer or authority. In some cases it is said that the Attorney- General is responsible for a Bill being correct in point of form. But a popular legislature would object to any inter- ference by an official authority. 5. Uniformity of Style. Provision was made for uniformity of language by an Act of 1850 (13 & 14 Vict. c. 21), commonly tnown as Brougham's Act, now repealed and supei'seded by the Interpretation Act, 1889 (52 & 53 Vict. c. 63) Similar enactments are in force in British India (the General Clauses Act, 1897) and in most of the British colonies, and in some of the Crown colonies directions to observe uniformity in language, style and arrangement are embodied in the official Instructions to the Governor. 6. Legislative Sessions. India. In British India there are no regular sessions of the different legislatures, but the legislature meets when sum- moned for the transaction of business. The Governor- General's legislative council usually holds a weekly sitting during the Calcutta session, and meets at less regular intervals during the Simla session. It may, but in practice does not, sit elsewhere. Self- In the self-governing colonies the constitution usually colonies, requires a session of the legislature to be held once in each year, but the date and duration of the session is fixed by custom INDIAN AND COLONIAL LEGISLATION 187 and by the needs of the year. The Dominion Parliament of Ch. IX. Canada usually meets in January, February, or March, and the average length of the session has, since 1867, been about ninety days. In Victoria the Houses meet, as a rule, in May or June and prorogue before Christmas, but the session occasionally extends into the new year. In Queensland the legislature usually meets in May or June and sits till November or December. In South Australia the session is usually from the beginning of June till a few days before Christmas. In Western Australia it usually lasts from July to November. In the Crown colonies there are, as a rule, no regular Crown sessions, but the legislative body meets when summoned. Practice, convenience, or local rules, may however require periodical sittings at particular times of the year. In Ceylon, for instance, it is customary to open the session two or three months before the end of the year, and to close it shortly before the commencement of the next session. 7. Numlering and Short Titles of Laws. In British India, and in most, if not all, of the Crown colonies the enactments of each calendar year are numbered in a consecutive series (i, of 1900, &c.), but in some colonies the introduction of this practice is of recent date. Some of the self-governing colonies retain the cumbrous English practice of numbering by reference to the regnal year {6^ & 64 Vict. c. i, &c.), but the practice varies. Thus in the Parliament of the Dominion of Canada Acts of Parlia- ment are distinguished by the regnal year, and are numbered, but in drafting, since 189a, the practice has been to cite an Act by the calendar year, 'c. 0,0 of the Statutes of 1894.' In New South Wales, Queensland, and Western Australia, Acts are distinguished by the regnal year and numbered (60 Vict. No. 34) ^ In South Australia, from 1837 to 1844 the ' The Victorian statutes were consolidated in 1890, and the Victorian Interpretation Act (No. 1058) provides that the Acts of the Parliament of l88 LEGISLATIVE METHODS AND FORMS Ch. IX. Ordinances were numbered in a series by reference to each regnal year. From 1844 to 1874 there was a numbered series for each calendar year. Since 1875 public Acts have been numbered in Arabic figures in one continuous arith- metical series, beginning with No. i. Both the regnal and the calendar years are printed at the commencement of each Act. The practice of giving every law a short title for con- venience of citation prevails almost everywhere, and several colonies have passed laws corresponding to the English Short Titles Act, 1896, and conferring short titles on previous laws. 8. Private Bill Legislation. Self- The self-governing colonies appear to follow generally, and col^on^kis"^ to embody in the standing orders of their legislatures, the principles and practice of the British Parliament with respect to Private Bill legislation; but the modern English system of numbering local Acts separately, and embodying them in volumes distinct from those which contain the general Acts, does not seem to have been generally adopted. Thus, in the Canadian JParliament, a private BiU must pass through the same stages as a public Bill ; but, besides, public notice by advertisement must be given of the intention to introduce it, it must be based on petition, and it is referred to a select committee after its second reading. The distinc- tion observed in Canada between private and public Bills is, broadly stated, that the latter affect the general interests of the community or involve considerations of public policy. Private Acts are not numbered separately, but consecutively, after the public Acts of the Session. In the Australian colonies the procedure on private Bills is based upon and is practically identical with that of the British House of Victoria shall be numbered in regular arithmetical series, and that it shall be sufBcient to cite any such Act by the number alone, without setting out the title thereof, or the year of our Lord, or of the reign In which the Act is passed. INDIAN AND COLONIAL LEGISLATION 189 Commons. The returns from South Australia describe pri- Ch. ix. vate Bills as being those : — (i) Whose primary object is to promote the interests of individual persons or corporations rather than those of the community at large; or (2) Which authorize the taking compulsorily or pre- judicially afBectingj by individual persons or cor- porationSj of lands other than Crown lands ; or (3) Which authorize the granting of specific Crown Lands to an individual person, corporation, or local authority. Bills coming within the last two categories (3 & 3), if introduced by the Government, are not treated as private Bills, but must after the second reading be referred to a select committee of that House in which they originate. Up to the end of 1851, private Acts were numbered among the public Acts in the order in which they became law. Since that time they have not received numbers, and are for convenience grouped at the end of each year in the oiEcial volumes of Acts published. In British India there is no special provision for Private India. Bill legislation. Most of the matters dealt with by private Bills in England form the subject of executive action in India. For similar reasons Private Bill legislation is scanty in Crown the Crown colonies, and the information about this class of legislation is consequently meagre. In the Straits Settlements the instructions to the Governor direct that no private Ordinance shall be passed whereby the property of any private person may be afPected, without a saving of the rights of the Crown, or of all bodies public and corporate, and of other persons except such as are men- tioned in the Ordinance and those claiming by, from, or under them, and that the Governor shall not assent until proof is made before him that adequate and timely notifi- cation by public advertisement was made of the parties' igo LEGISLATIVE METHODS AND FORMS Ch. IX. intention to apply for the Ordinance. And a certificate under the Governor's hand is to be annexed to the Ordinance signifying that the assent is to be given. The Standing Orders of the local legislature also provide that any person whose interests may be affected by a Bill may apply by petition to the Council to be heard by himself or counsel, and to have witnesses examined on the subject of the Bill. Similar instructions and rules appear to be in force in some of the other Crown colonies, but in most of them it has not been found necessary to make any special provision on the subjects, or to provide for the separate numbering or publica- tion of local or private Acts, when passed. 9. Explanatory Statements. The practice of accompanying a Bill with an explanatory statement of objects and reasons, which is universal in British India, is followed in one or two of the Crown colonies, but does not appear to be common, although it may be adopted in exceptional cases. IV. Publication of Statutes. I. Current Legislation. India. In British India, every Act when passed is published in the Gazette of India, or in the local official Gazette, or in both, in English and in the local vernacular, and is also published separately in an octavo form by the Government Printers, and a copy so published is evidence of its contents. Regula- tions made under the Government of India Act, 1870, are published in a similar manner. At the beginning of each calendar year the Acts passed by the Governor-General in Council during the previous year are published in an octavo volume, with a table of contents and an index. The number of Acts passed by the local legislatures does not always justify the publication of a separate annual volume. Copies INDIAN AND COLONIAL LEGISLATION 191 of Acts and Regulations are distributed to judges and other Cji. IX. officials. The system which prevails in the self-governing colonies Self- may be illustrated by the returns which have been received colo^nie". from Canada ^, Victoria, and South Australia. In Canada, an Act comes into force on the day it is assented Canada, to in His Majesty^s name, unless some later date is provided in the Act. Evidence of an Act having been duly passed may be either (i) by the certificate of the Clerk of the Parliaments, who has the custody of the originals, or (a) by the imprint of the King^s Printer. Public Acts of general utility are printed in the Canada Gazette, by the King's Printer, by order of the Governor in Council, immediately after they have received the Royal assent. The Acts of each session are also printed in a collected form by the King's Printer at the end of each session ; one volume containing the public Acts, together with such Orders in Council and proclamations or other documents, and such Imperial Acts, as the Governor in Council directs ; the other volume con- taining the local and private Acts. Each volume is indexed and has a table of contents; and since 1892 the effects on previous legislation are shown. In Victoria the statutes of €ach session are published in one Victoria, volume at the end of that session. This volume is accom- panied by a table of contents, but not by an index or table showing the effect on previous legislation. It has, however, been the practice during the last few years to publish at the end of each sessional volume an alphabetical index to Acts passed since the consolidation of 1890 ^. This serves as a useful guide to amending legislation. The latest sessional volume also contains a chronological table of all the Victorian Acts, showing how they have been affected by subsequent legislation. In South Australia, under the Standing Orders of the South Australia. ' The replies from Canada relate only to Dominion Acts. ^ See below, p. 195. 192 LEGISLATIVE METHODS AND FORMS Ch. IX. respective chambers^ four copies of every Bill when it has finally passed both Houses are duly certified and verified by the President or Speaker and the clerk or other proper officer of the House in which it originated^ and presented to the Governor. The Governor affixes his assent to all the copies, and returns one copy to each House to be placed with its records, enrolls one copy in the Supreme Court, and transmits one copy to the Secretary of State for the Colonies. In practice, two extra copies are presented to the Governor, one of which is retained in his office, and the other sent as a duplicate to the Secretary of State for the Colonies. The certificate of the clerk, or other proper officer of the House, to the effect that the document to which it is attached is a true copy of any colonial law assented to by the Governor, is prima facie evidence of the truth of the copy, and that the Act has been properly passed and assented to. Acts purporting to be printed ' by authority by the Government printer ■" are never questioned. Both public and private Acts are printed separ- ately by the Government Printer ' by authority ' in demy quarto, in pica type, and are sold to the public at the uniform price of one shilling each. Occasionally, an Act is printed also in demy octavo size, in long primer type, for distribu- tion or for use in Government departments. The separately- printed public and private Acts are collected into volumes at the end of each session, and sold at the price of a shilling for each Act in the volume. These periodical volumes are accompanied by (i) an index of the Acts in alphabetical order of the subject-matter (given since 1879), and (2) a table of contents setting out the letter of the Acts in their numerical order. Crown In the Crown colonies Ordinances and other enactments are promulgated by publication in the Government Gazette, and separate copies are published and sold by the Govern- ment Printer. Provision is usually made for the deposit of verified and authenticated copies with certain public authori- ties, such as the Registrar of the Supreme Court. In some INDIAN AND COLONIAL LEGISLATION 193 cases the Ordinances of each year are printed in a collected Ch. IX. form after the end of that year, and the volume thus formed may or may not be accompanied by a table of contents or an index. In some colonies the amount and importance of the year's legislation is not sufficient to justify the publication of an annual volume, and one is not surprised to learn that in British New Guinea the Government printing staff and appliances are very limited. The shape in which the enactments of the different colonies Variations are published is not uniform. In New South Wales theyoiumeaof statutes are, or were recently, printed in folio form, in South ^j°\*"i'^^ Australia in demy quarto, in British Guiana in quarto, and in some of the West African colonies in foolscap sheets. It would be greatly for the convenience both of librarians and of those who have to consult and compare Colonial statutes if the Colonial Governments could agree upon some uniform style of publication, such as the octavo volumes in which the Acts of the Imperial Parliament are now contained ^. 2. Collective and Revised Editions, The statute law of British India is to be found mainly in India, three sets of volumes : — I. An edition, in two volumes, of the Imperial statutes applying to India. a. An edition, in six volumes, of the Acts of the Governor- General in Council, brought down to the end of 1898. 3. A set of local codes, one for each of the eleven provinces of British India ", and containing (a) the old Regulations so far as they are in force in that province, {b) Acts passed for the province by the ' See the note on the size of Colonial statutes at p. 187 of vol. ii (New Series) of the Journal of the Society of Comparative Legislation. ' Bengal, Madras, Bombay, North Western Provinces and Oudh, Punjab, Burma, Assam, Central Provinces, Ajmere, Coorg, and Baluchi- stan. ILBERT O T94 LEGISLATIVE METHODS AND FORMS Ch. IX. Governor-General in Council, (c) Regulations made under the Government of India Act, 1870 (33 Vict, c. 3), and applying to the province or some part of it, and (d) Acts of the local legislature, if any. All these volumes are periodically revised and brought up to date by the Legislative Department of the Government of India, but have to be supplemented by the Acts or Regula- tions passed since the date of the latest edition. They were preceded, and made possible, by a series of repealing and consolidating Acts, the most important of which were pre- pared and passed when Mr. Whitley Stokes was secretary of the Indian Legislative Department. Self- Much activity has been displayed, especially during recent colonies, years, both in the self-governing and in the Crown colonies, in the revision of the local statute law, and its presentation in a collective and convenient form. Canijda, The Revised Statutes of the Dominion of Canada were prepared by commissioners appointed by the Dominion Govern- ment, and came into force on March i, 1887. Their con- tents are arranged as follows : constitution and political rights ; executive government and public offices ; public depart- ments ; trade and commerce ; companies and corporations ; administration of justice. The whole of the statute law of the Dominion is to be found in these Revised Statutes, as supplemented and amended by the sessional volumes of subsequent date. Some of the Canadian provinces have recently been taking steps for the revision and consolidation of their statutes. Ontario brought a set of Revised Statutes into force in 1897. British Columbia passed a Revised Statutes Act in 1895 (c. 80) providing for the appointment of Commissioners to revise and consolidate the provincial laws of the province, and the statute law of England applicable to the province. All Acts and proclamations which had expired or had been repealed, and the schedules of repealing Acts, were to be omitted. The Commissioners were directed to revise and INDIAN AND COLONIAL LEGISLATION 195 alter the language ' so as to give better effect to the spirit Ch. IX. and meaning of the law/ and a comprehensive index was to be added. Acts of 1897 (c. 41) and 1898 (c. 40) make further provisions on the same subject. Nova Scotia passed an Act in 1 898 (No. 6) authorizing the appointment of Com- missioners to revise and consolidate the public Acts of the province in suitable form for presentation to the legislature by the end of the year. The Ordinances for the North West Territories were revised in 1898. In Newfoundland the whole statute law of the colony has been twice consolidated^ first in 187a, and since then in 1892. Each consolidation operated as a repeal of all previous and separate statutes. The whole of the Victorian statutes were consolidated in Victoria. 1 890, under the personal supervision of the late Chief Justice Higinbotham. A complete edition of the statute law of Victoria was then issued in seven volumes, of which the first five contained the consolidated Acts ; the sixth, Acts of a private character ; and the seventh, Acts of the Federal Council of Australasia, and Acts of the Imperial Parliament believed to be in force in Victoria. This edition was intended to form part of a scheme which was suggested to Parliament by the Council of the Judges, in their annual report in 1887, for the periodical consolidation and publication of the statutes. The suggestion was referred to a committee of both Houses, which in November, 1889, reported favourably to the project of consolidation, and recommended that a fresh consolidation and publication should take place every ten years. During the session of 1890 the whole of the consolidated Acts, which had been prepared by the late Chief Justice with the assis- tance of two members of the Bar, were passed into law. In the course of consolidation all matter clearly repealed (with the exception of some sections in the Constitutional Act) was omitted. In accordance with the suggestion of the Council of the Judges, notes upon decisions were made a feature of this publication. The consolidated Acts are o 3 . 196 LEGISLATIVE METHODS AND FORMS Ch. IX. arranged alphabetically and numbered consecutively. An explanatory paper and historical table of legislation are pre- fixed to the first volume. In New South "Wales a collection of public statutes was compiled in 1879 by Mr. Oliver^ then parliamentary draftsman to the Government, and was published by the authority of the Government. It is in three volumes, of which two contain the statutes in force at the time, arranged in alphabetical order, whilst the third volume contains a chronological table and index. A Statute Law Revision Act of 1898 (No. 28) removed some 600 obsolete enactments from the Statute Book. In Queensland an edition of the statute law was brought out by Messrs. Pain and Woodcock in 1889, at the expense and by the authority of the Government. The contents are arranged alphabetically as to subjects, and chronologically as to the statutes dealing with the same subject. A separate volume contains some of the more important Imperial statutes applying to the colony. In Western Australia a revised edition in chronological order of the laws in force, exclusive of those relating to appropriation and supply, with a chronological table, was edited by Mr. Justice J. C. H. James, of the local Supreme Court, and was published in 1896 under the authority of the Government. New New Zealand, by the Reprint of Statutes Act, 1895, pro- vided for the appointment of Commissioners with directions (i) To prepare and arrange for publication an edition of the Public General Acts of the colony ; (a) To revise, correct, arrange and consolidate these Acts, omitting all such enactments and parts thereof as are of a temporary or local and personal nature, or have expired, become repealed, or are spent ; and (3) To omit all formal and introductory words and all repealing enactments, and to make such alterations as are necessary to reconcile the contradictions, Ze^ilaiid. INDIAN AND COLONIAL LEGISLATION I97 supply the omissions^ and amend the imperfections Ch. ix. of the existing Acts. They were to report (a) The contradictions, omissions, and imperfections ap- pearing in the existing Acts, and the mode in which the Commissioners had dealt with them ; (5) The Acts which they thought should be repealed, with their reasons and recommendations as to any new enactment which they might think necessary ; (c) Acts or Bills of the Imperial Parliament which, from their general interest and importance, they might think should be adopted for the colony. In their reports they were to indicate new matter in different type from that showing the existing law on com- pletion of the revision, and, on consolidation of the Acts relating to any separate branch of the law, a copy was to be sent to the Governor, who might submit the report with the draft Acts to the legislature, for enactment if it thought fit. It will be seen that the powers entrusted to the New Zealand Commissioners for the revision and improvement of the statute law are much wider than any which were exercised by the authorities under whose directions Statute Law Revision Acts and editions of Revised Statutes have been prepared in England. No action has, however, as yet been taken under the New Zealand Act. The returns to the Society of Comparative Legislation Crown show that in a great many of the Crown colonies much <='''""'®^- labour has, during recent years, been bestowed on the revision of the local statute law. In Gibraltar the laws were, in 1 890, revised and re-enacted in a consolidated form ; but in most colonies revision has, as in England, taken the form of republication of existing Acts, with the omission of spent and obsolete matter, a process which is usually preceded by a good deal of work in the way of consolidation and repeal. The list appended to this chapter, for which I am indebted igS LEGISLATIVE METHODS AND FORMS Oh. IX. to the Librarian of the Colonial Office, will show the nature of the work which has been done in this direction, and may- be a useful guide to those who are in search of Colonial statutes. 3- Sugges- The compilation of a general index to all the enactments uniform- ^^ force in the difierent parts of the British Empire would ]\^ ?^^'^' be a work of enormous labour and doubtful utility. What seems desirable and practicable is that the statute law of each colony and dependency should be indexed on a common principle, and that the indexes should be periodically revised and brought up to date. Each annual volume of enactments might be accompanied by an alphabetical index and tables of the same nature as those attached to the annual volumes of English statutes. And there ought to be for each colony and dependency (i) a chronological table of enactments and (a) an alphabetical index, framed on the same lines as the chronological table and index now annually published in England under the directions of the Statute Law Committee. The table and index ought to be periodically revised. If this plan were adopted it would be comparatively easy to find out what statute law is in force on any given subject in any particular colony. A good deal has been done in this direction in different parts of the Empire, either under the authority of the Government or by private enterprise, but the systems adopted are different, and the returns re- ceived by the Society of Comparative Legislation showed that for some colonies there was no general index in existence. Existing The latest edition of the Index to the enactments relating ind^a^and *° India was published in 1897 under the direction of the elsewhere. Legislative Department of the Government of India, and is modelled on the lines of the English Chronological Table and Index. There is also an alphabetical index to the contents of the annual volumes of Acts of the Governor- General in Council. The Index to the enactments of New South Wales appears INDIAN AND COLONIAL LEGISLATION 199 to have been brought out by private enterprise. The fifth Ch. IX. volume of the 1890 edition of the Victorian Consolidated Statutes contains a complete index to the Consolidated Acts, arranged on the same principles as the index to an ordinary textbook. In Queensland there is an index to the volumes of statutes edited by Messrs. Pain and Woodcock under the authority of the Government. In Western Australia a general index to the statute law of the colony, arranged under alphabetical heads, is revised annually at the end of each Parliamentary session, and bound up with the volumes of statutes for the year. The work of revising this index is done gratuitously by Mr. Justice J. C. H. James, of the local Supreme Court. V. Consolidation and Codification. The Revised Statutes of Canada and such enactments as the Gibraltar Laws Ordinances of 1890 embody attempts to present the whole statute law of a colony in a collective form, arranged on some general plan. The importance of taking steps from time t© time to consolidate into a single Act the scattered enactments relating to a particular branch of law has been recognized, not only in British India, but in most of the colonies. In British India Mr. Whitley Stokes' tenure of office, first as secretary to the India Legislative Department, and then as Law Member of the Govemor-GeneraFs Council, was marked by the passing of a large number of consolidating Acts, which materially reduced the bulk and simplified the form of the Indian Statute Book. Much activity in the same direction has recently been displayed in some of the self-governing colonies. For instance, New South Wales recently appointed a committee to take steps for consolidating the statute law of the colony, and the large number of consolidating Acts which were passed by the colony in 1898 were doubtless the result of their labours. In Queensland- 200 LEGISLATIVE METHODS AND FORMS Ch. IX. twenty-nine consolidating Acts were prepared in 1869 under the supervision of Sir James Cockle, the Chief Justice, and the work of consolidation has been continued by the present Chief Justice, Sir Samuel Griffiths. Reference has been made already to the steps which were taken in New Zealand in 1895 for revising and consolidating the local statute law. Similar steps have been taken in many of the Crown colonies, either through the agency of Commissions or Committees, or at the instance or under the supervision of the Chief Justice or Law Officer. In codification, as distinguished from the less ambitious work of consolidation, British India, as is well known, takes the lead ^. The laws commonly known as the Indian Codes are the Penal Code, the Codes of Criminal and Civil Pro- cedure, the Evidence Act, the Contract Act, the Succession Act, the Specific Relief Act, the Negotiable Act, the Indian Trusts Act, the Transfer of Property Act, and the Councils Act. None of the self-governing or Crown Colonies can approach this record. But Canada has a Criminal Code of i88a, based on the English draft code of 1880, on Sir James Stephen's Digest of the Criminal Law, and on the Canadian Statutes. New South Wales has a Criminal Code of 1883, Victoria has a Crimes Act of 1890, New Zealand a Criminal Code Act of 1 893, and the Criminal Code framed for Queens- land mainly by Sir Samuel Griffiths came into force at the beginning of 1900. Pour of the Crown Colonies, St. Lucia, St. Vincent, British Honduras, and the Gold Coast, have adopted, with modifications, the Criminal Code which was prepared in 1877 by Mr. R. S. (now Mr. Justice) Wright for Jamaica, but which never became law in that island. Ceylon and the Straits Settlements have a Penal Code based on the Indian Penal Code. Quebec has two Codes, prepared by Commissioners, a Civil Code which came into force in 1 866, and a Civil Procedure Code which came into force in 1867. The Civil Code embodies the laws of Lower Canada (now ' See Ch. VIII. INDIAN AND COLONIAL LEGISLATION 20I Quebec) in civil matters, laws which were mainly the old Ch. IX. Coutume de Paris modified by provincial statutes or by the introduction of portions of English law. A former Canadian chief justice has endowed the island of St. Vincent with a Civil Code, based on the law of Upper Canada. Ceylon has a Penal Code, Codes of Civil and Criminal Procedure, and an Evidence Ordinance, based on the corresponding Indian Codes. The little island of Grenada in 1897 passed an Evidence Code, with illustrations after the Anglo-Indian fashion, a Criminal Code and a Code of Criminal Procedure. Several of the Crown colonies have what are substantially codes of procedure under some such title as a Supreme Court Ordinance. Mauritius and the Seychelles have a Mauritius Penal Code, in addition to the four French codes in force in the island. And finally a large number of the colonies have adopted some or all of the three codifying Acts which have been passed for England, the Partnership Act, the Bills of Exchange Act, and the Sale of Goods Act. Victoria at one time contemplated a very comprehensive scheme of codification, but seems to have subsequently abandoned it. Some years ago a general codification of the law of Victoria was prepared by Dr. Heam, Dean of the Faculty of Law in the University of Melbourne, and a member of the Legislative Council. In 1884 a Bill em- bodying the main features of this codification was passed by the Legislative Council, but subsequently lapsed. In 1887 the code was referred to a joint committee of the two Houses, which took the evidence of some of the judges and leading lawyers as to the advisability of adopting it. The late Chief Justice Higinbotham and Mr. Justice Webb, amongst others, expressed themselves as favourable to its adoption. In 1888 the Code was again referred to a select committee of the two Houses ; but although the Chief Justice again favoured its adoption, there was a large body of testimony the other way. The committee ultimately reported that the Bill contained too many inaccuracies to 202 LEGISLATIVE METHODS AND FORMS Ch. IX. be adopted in the form proposed, and they recommended its submission to the best available counsel for revision and correction. Since then nothing has been done in the direction of a general codification of the law, but the three English codifying Acts, mentioned above, have been adopted in the colony. Collective Editions oe Colonial Acts^ The Laws of Antigua . . . from 20 Car. II, 1668 to 28 Vict., 1864. ... By Authority. London, 1865. The Statute Law of the Bahamas ... in force to 38 Vict. c. 36 inclusiTe. ... By Sir G. C. Anderson, Knt., Attorney-General of the Colony. London, 1877. Laws of Barbados. By Authority. Revised and Consolidated by the Commissioners, 1667 to 1894. 3 vols, and Index vol. Barbados, 1893-94. Acts of the Legislature of the Islands of Bermuda, 1690 to 1883. Compiled, under the authority of the Legislature, by Reginald Gray, Esq. 2 vols. London, 1884. Index to ditto, from 1690 to 1896. No. 6. Prepared, under the authority of the Legislature, by Reginald Gray, Esq. London, 1896. British Bechuanaland Proclamations. Nos. 1 to 235 . . . and the more important Government Notices. Edited by D. Ward, M.A., LL.D., 1885 to 1895. 2 vols. Cape Town, 1893-95- Bechuanaland Protectorate. High Commissioners' Notices and Proclamations, 1888 to 1898. Cape Town. 2 vols., 1895-98. The Revised Statutes of British Columbia, 1897. . . . Published by Authority. 2 vols. Victoria, B. C, 1897. The Laws of British Guiana. A new and revised edition. . . . 5 vols., 1774-1895. Oxford, 1895. Consolidated Laws of the Colony of British Honduras. Printed by authority of the Government of British Honduras. London, 1887. A Collection of the Ordinances in force July 3, 1897, passed by the Legislative Council of British Honduras A. d. 1887-96 inclusive. "With an Index compiled by A. K. Young, B.A., Barrister-at-Law. London, 1897. The Laws and Ordinances of British New Guinea. Brisbane, 1898. Proclamations and Ordinances of British North Borneo. London, 1887. ' See above, pp. 197, 198. INDIAN AND COLONIAL LEGISLATION 203 North Borneo Government. Official Regulations. London, 1892. Ch. IX. British South Africa Company's Territory. See Rhodesia. " The Revised Statutes of Canada. Proclaimed and published under the authority of the Act 49 Vict. c. 4, a.d. 1886. 2 vols. Ottawa, 1887. Acts of the Legislature of the Provinces novr comprised in the Dominion and of Canada, which are of a public nature, and are not repealed by the Revised Statutes of Canada. Ottawa, 1887, The Consolidated Orders in Council of Canada. Under the autho- rity and direction of His Excellency the Governor in Council. By Harris H. Bligh, Q.C. Ottawa, 1889. The Dominion Law Index (1867-97). ... By Harris H. Bligh, Q.C., and Walter Todd. Second Edition. Toronto, 1898. Statutes of the Cape of Good Hope, 1 652-1 895. Published by authority of the Supreme Court. Edited by Hercules Ten- nant and Edgar Michael Jackson. 3 vols. Cape Town, 1895, and Index vol., 1652-1897. Cape Town, 1897. A revised edition of the Ordinances of the Government of Ceylon, 1799-1894. 3 vols. Colombo, 1894-95. Laws of the Island of Dominica, from 1763 to 1859. By Autho- rity. 2 vols. Dominica, 1858-60. Laws and Ordinances of the Falkland Islands. Prom the Settle- ment of the Colony to the year 1884. Ordinances of the Colony of Fiji, from September i, 1875 to December 31, 1878. Sydney, 1880. Ordinances of the Colony of the Gambia in force July 31, 1900, with an Appendix containing Rules, Orders in Council, &c. . . . Prepared ... by Alex. David Russell, Chief Magistrate of the Gambia. 2 vols. London, 1 900. The Consolidated Laws of Gibraltar. Compiled, under the authority of the Government, by Robert Pfrench, Sheriff, Esq. . . . Her Majesty's Attorney-General, Gibraltar. London, 1890. Ordinances of the Gold Coast Colony in force June, 1898, with Appendix . . . and an Index. Prepared ... by Sir William Brandford Griffith, Chief Justice of the Colony. 3 vols. London, 1898. The Laws of Grenada. [Prepared, under the authority of the Legislature, by Sir Joseph T. Hutchinson, Chief Justice of the Colony.] Published by Authority. London, 1897. The Ordinances of the Legislative Council of the Colony of Hong Kong commencing, with the year 1844. . . . Compiled for the Government of Hong Kong by A. J. Leach. ... By Authority. 4 vols. Hong Kong, 1890-91. 204 LEGISLATIVE METHODS AND FORMS Ch. IX. The Ordinances of the Legislative Council of the Colony of Hong ■ Kong. Concise Edition, from the year 1844 to the end of 1890. Compiled for the Government of Hong Kong by A. J. Leach, Barrister-at-Law. By Authority. 2 vols. Hong Kong, 1891-92. The Statutes and Laws of the Island of Jamaica. Revised Edition. By the Honourable C. Ribton Curran, Acting Chief Justice of Jamaica. 1681 to 1888. 12 vols. Jamaica, 1889. An Index to the Acts and Laws of Jamaica. Compileld by Sir W. Brandford Griffith, Chief Justice of the Gold Coast, late Resident Magistrate for the Parish of St. Elizabeth. Jamaica, second edition, 1 900. Ordinances, and Orders and Rules thereunder, in force in the Colony of Lagos on December 31, 1893. . . . Compiled, under the authority of the Government, by George Stallard, LL.B., Queen's Advocate, and E. H. Richards, District Com- missioner of Lagos. London, 1894. A guide to the Laws and Regulations of Malta, &c., with Index. Compiled by George Alfred Page, Notary Public and Solicitor. Malta, 1892. The Revised Statutes of Manitoba, being a consolidation of the Consolidated Statutes of Manitoba, with the subsequent Public General Acts of the Legislature of Manitoba, to and including those of 1891. Published by Authority. 2 vols. Winnipeg, 1892. The Laws of Mauritius Revised. By F. T. Piggott, Procureur and Advocate-General, and others. 3 vols. Port Louis, Mauritius, 1896-97. Natal Ordinances, Laws, and Proclamations, 1843-89. ... By Authority. 4 vols. Pietermaritzburg, 1879-90. The Laws of Nevis, from i68i to 1861 inclusive; with Appen- dices and Index. By Authority. London, 1862. The Consolidated Statutes of New Brunswick. By Authority. Predericton, 1877. The Consolidated Statutes of Newfoundland (Second Series). Being a consolidation of the Statute Law of the Colony, down to and including the first session of the Legislature in the year 1892. By Authority. St. John's, N. P., 1896. A collection of the Statutes of practical utility. Colonial and Imperial, in force in New South Wales : embracing the local legislation from the year 1824 to the date of publication. ... By Alexander Oliver, Esq., M.A., Parliamentary Drafts- man. 3 vols. Published by Authority. Sydney, 1879-81. The Statutes of New South Wales. ... A convenient Index to the Public General Acts of the Legislature of New South Wales in force on January i, 1892, showing the eifect of INDIAN AND COLONIAL LEGISLATION 205 legislation since the publication of ' Oliver's Statutes.' By Ch. IX. T. B. Clegg of Gray's Inn. Sydney, 1892. The Statutes of New Zealand, being the whole law of New Zealand, public and general, ... in force on January i, 1885. ... By Wilfred Badger. 2 vols. Christchurch, N. Z., 1885. Index to the Laws of New Zealand : general, local, and pro- vincial. Being tenth edition of ' Cumin's Index.' Brought down to the close of the Session of 1896. Edited by E. Y. Redward. Wellington, N. Z., 1897. The Consolidated Ordinances of the North- West Territories (Canada), 1898, . . . in force March 15, 1899. Regina, 1899. The Revised Statutes of Nova Scotia (Fifth Series). By Autho- rity. Halifax, 1884. The Revised Statutes of Ontario, 1897, being a consolidation of the Revised Statutes of Ontario, 1887, with the subsequent Public General Acts of the Legislature of Ontario. 2 vols. Toronto, 1897. Ordonnantie Boek van den Oranjevrijstaat, 1854-77. (Uitge- geven volgens Besluit van den Hooged. Volksraad dd. Mei 16, 1877.) Bloemfontein, 1877. The Laws of Perak. Orders in Council and Enactments passed by the State Council, 1877-96. Taiping, 1899. The Revised Statutes of the Province of Quebec. 2 vols. Quebec, 1888. Supplement to the Revised Statutes, Province of Quebec, 1888. Quebec, 1889. The Queensland Statutes. 5 vols. Edited by Alfred Pain and John L. Woodcock, B.A., Barristers- at-Law. Brisbane, 1889. Rhodesia. British South Africa Company's Territory. Procla- mations, Ordinances, Regulations, and Government Notices. 1894-96. Salisbury, Mashonaland, 1896. The Statutes of the Islands of St. Christopher and Anguilla. By Authority. London, 1857. Local Laws of the Island of St. Helena. . . By Authority. St. Helena, 1854. The Laws of St. Lucia. A new edition prepared under the authority of the Statute Laws (Revised Edition) Ordinance, 1887. [By Sir John W. Carrington, Chief Justice of the Colony.] Oxford, 1889. Laws of St. Vincent. By Authority. 2 vols. London, 1884. The Laws of Selangor, 1877-95. Orders in Council and Regula- tions, together with Rules made thereunder having the force of law. . . . Compiled by J. H. M. Robson. Kuala Lumpur, 1896. 2o6 LEGISLATIVE METHODS AND FORMS Ch. IX. A collection of the Regulations and Ordinances passed by the Board of Civil Commissioners and Legislative Council for the Seychelles Islands during the year 1872 to 1896. 3 vols, Ordinances of the Settlement of Sierra Leone, 18 ri to 1880. Compiled by Algernon Montague. Published by Authority. 6 vols. London, 1857-81. Chronological and Alphabetical Index of the Ordinances of Sierra Leone. By P. P. Pinkett. . . . Enlarged and revised up to April, 1893, • ■ • toy Arthur Sharwood, B.A. London, 1893. Acts and Ordinances of the Province of South Australia, from 7 William IV" to the close of the Session of Parliament, 1878. Prepared by the Clerk of the House of Assembly. 6 vols. Adelaide, 1879. Index to Public Acts and Ordinances of the Province of South Australia, brought up to the close of the Session of the Par- liament, 1893. ... By G. A. Castle and A. C. Thomas, of the Crown Solicitor's Office, Adelaide. Adelaide, 1894. The Acts and Ordinances of the Legislative Council of the Straits Settlements from April i, 1867, to March 7, 1898. Com- piled ... by Chas. G. Garrard, Assistant Registrar of the Supreme Court. 2 vols. London, 1898. Chronological Table and Index of the Acts and Ordinances in force in the Colony of the Straits Settlements. Second Edition, to the end of 1892. By J. W. N. Kyshe, Esq. By Authority. Singapore, 1893. Swazieland Government Committee Laws, 1891-92. Cape Town, 1893. Statutes of Tasmania, from 7 Geo. IV, 1826 to 46 Vict., 1882. Alphabetically arranged, with Notes, by Frederick Stops. Published by Authority. 4 vols., and Supplementary volume to 52 Vict., 1888. Tasmania, 1883-90. The Criminal and Civil Law of the Kingdom of Tonga. Codified and passed by the Legislative Assembly, sanctioned by His Majesty, and constituted the sole law of Tonga, on November 15, 1891, when all previous enactments were repealed. By Authority. Auckland, 1891. De Locale Wetten der Zuid Afrikaansche Republiek (Transvaal), 1 849-85. Bijeengebragt met breedvoerigen Bladiwijzer door Fred Jeppe, en naauwkeurig herzien door J. G. Kotz§, Hoofdregter. Pretoria, 1887. Laws of Trinidad (Revised Edition). Ordinances of the Council of Government from No. 10 of 1832 to No. 17 of 1882. By Authority. Revised and compiled . . . by G. L. Garcia, of the Inner Temple. 5 vols. London, 1883-84. Index to the Titles of the Ordinances in force (in Trinidad), 1832-88 (Second Edition). Compiled by Henry Fowler. Port-of-Spain, 1889. INDIAN AND COLONIAL LEGISLATION 207 Laws of the Turks and Caicos Islands. ... By the Hon. A. J. Ch. IX. Duncomhe, Esq., Chief Justice of the Presidency. i vol. By Authority. London, 1862. The Victorian Statutes. The Public and Private Acts of Victoria, also the Acts of the Federal Council of Australasia, and a selection of the Imperial Statutes in force in Victoria. 7 vols. Melbourne, 1890. The Statutes of Western Australia, 1832-95. Edited by J. C. H. James, of the Inner Temple, Commissioner of Land Titles for Western Australia. By Authority. 3 vols. London, 1896. Western Australia. Historical Table of the Statutes and an Alphabetical Index of their contents. ... By J. C. H. James, B.A. By Authority. London, 1896. CHAPTER X PARLIAMENT AS A LEGISLATIVE MACHINE Ch. X. Napoleon on Legis- latures. Napo- leonic theory and Eng- lish practice. ' No one/ Napoleon is reported to have said, ' can have greater respect for the independence of the legislative power than I : hut legislation does not mean finance, criticism of the administration, or ninety-nine out of the hundred things with which in England the Parliament occupies itself. The legislature should legislate, i.e. construct grand laws on scientific principles of jurisprudence, but it must respect the independence of the Executive as it desires its own indepen- dence to be respected. It must not criticize the Government, and, as its legislative labours are essentially of a scientific kind, there can be no reason why its debates should be reported ^.' It would be difficult to sum up more concisely the essential differences between a legislature as conceived by Napoleon, and the legislatures which exist in the United Kingdom and in the self-governing colonies. The English legislature was originally constituted, not for legislative, but for financial purposes. Its primary function was, not to make laws, but to grant supplies. Under the modern system, it indirectly appoints the Executive by limiting the selection of a Prime Minister to the persons who can command a majority in the popular House. It has the last word in finance. It criticizes and controls the Administration at every step. Its legisla- tive labours are not essentially of a scientific kind. It has ' Quoted by Sir J. Seeley, Introduction to Political Science, p. 216, from u. letter addressed by Napoleon to Sieyfes. I have been unable to find this letter, and I doubt whether it exists, but the quotation is an accurate summary of opinions which Napoleon is known to have expressed. PARLIAMENT AS A LEGISLATIVE MACHINE 209 never constructed, it never will construct, great codes. Its Ch. X. legislation is of a severely practical order. What it does, " what it has done for the last 600 years, is to remove dis- content, and to avert revolution, by making laws which adapt the political, administrative, and economical arrange- ments of the country to the requirements of the times. Its success in so doing is the test by which it should be tried. The characteristics of English legislation cannot be under- leading stood unless three points are carefully borne in mind : — • igyca of (i) The kind of laws with the making of which Parlia- f^^f^i^^ ment is mainly concerned are not the kind of tioii- laws about which jurists are in the habit of speaking and writing, (a) The Executive G-overnment of the United Kingdom exercises greater control over legislation than probably the Executive Government of any other country with popular institutions. (3) Englishmen prefer to be governed (if they must be governed) by fixed rules rather than by official discretion. When the authors of books on jurisprudence write about Parlia- law, when professional lawyers talk about law, the kind of mainly law about which they are usually thinking is that which is ^^^l^^ to be found in Justinian's Institutes, or in the Napoleonic ministra- . tive law. Codes, or in the new Civil Code of the German Empire, that is to say, the legal rules which relate to contracts and torts, to property, to family relations, to succession and inheritance, or else the law of crimes as it is to be found in a Penal Code. They would include also the law of procedure or 'adjective law,^ to use a Benthamic term, in accordance with which these substantive rules of law are administered by the courts. These branches of law make up what may perhaps be called 'lawyers' law.'' Now, as has been pointed out in Chapter I, no legislature in the world has asserted more continuously, more trenchantly, or more effectively, its supremacy over every branch of the law than the British 2IO LEGISLATIVE METHODS AND FORMS Ch. X. Parliament. It has indirectly altered the common law rules of contract, of tort, of property, of marriage, of inheritance. It has recast the law of crimes and criminal procedure, not artistically or completely — indeed, very much the reverse — but sufficiently to give effect in substance to almost all the reforms which Bentham was advocating a century ago. It has remodelled the constitution as well as the procedure of the courts. It has never hesitated to do these things. But at the same time it has never considered the doing of them to be its main function. The bulk of its members are not really interested in technical questions of law, and would always prefer to let the lawyers develop their rules and procedure in their own way. The substantial business of Parliament as a legislature is to keep the machinery of the State in working order. And the laws which are required for this purpose belong to the domain, not of private or of criminal, law, but of what is called on the Continent adminis- trative law. Take up a file of the public Bills for a session, or an annual volume of the public general statutes, and it will always confirm this statement. There will usually be a sprinkling of measures or proposed measures which, to use the language of legal journals, ' are of special interest to the legal profession,^ but the proportion which these bear to the whole mass of Acts and Bills will be extremely small. The bulk of the Statute Book of each year will usually consist of administrative regulations, relating to matters which lie outside the ordinary reading and practice of the barrister. This has probably always been a characteristic of English legislation, but it has been so in a marked degree during the period which has elapsed since the Reform Act of 1832. There have been three great constructive periods of English legislation — the Edwardian period, which laid the foundations of our political and judicial institutions ; the Tudor period, which came after the close of feudalism and at the beginning of the 'new monarchy,' which strove to give effect to the ideas of the Renascence and the Reformation, which dealt PARLIAMENT AS A LEGISLATIVE MACHINE 211 vigorously and unsparingly with the mediaeval church, and Ch. X. undertook the responsibility of discharging, through the secular State, functions which had previously been considered to belong to the domain of the Church ; and, lastly, the period which followed the Reform Act of 183a, the period in which Englishmen first began to realize the potentialities of the modern State, with its numerous, complex, and far-reaching functions, which began by remodelling the poor law and the municipal corporations, and which has completely transformed the administrative system of the United Kingdom. It is almost impossible to emphasize too strongly the enormous change which the Reform Act of 183 a introduced into the character of English legislation, or the complete contrast between the legislation which preceded and the legislation which followed that date. The eighteenth century and the first two decades of the nineteenth century were indeed prolific of legislation, though mostly of an ephemeral cha- racter. The Parliament of the eighteenth century passed many laws, which would now be classed as local Acts, for authorizing the construction of railways, canals, and bridges, and the enclosure of common lands, and was never tired of regulating, after its lights, the conditions of labour, the conduct of trades and industries (e.g. the manufacture of hats and buttons), and the relief of the poor. But it created no new institutions. The justice of the peace was the Alpha and the Omega of its simple system of local government, and most matters of rural importance could be settled in Squire AUworthy's justice-room. Take up a volume of the eighteenth-century statutes, and compare it with a volume of the Victorian period, and you will find yourself in a new world. In the eighteenth century there was no Local Government Board, no Board of Education, no Board of Agriculture, and the duties of the Board of Trade were almost nominal. Nor were there county councils, district councils, or parish councils. The municipalities were close, corrupt, irresponsible corporations, existing for the benefit of p a 212 LEGISLATIVE METHODS AND FORMS Ch. X. their members^ and not of the local public. The functions, both of the central and of the local authorities, were com- paratively few and simple. There were no railways, and no limited companies. Gas and electricity had not been utilized. Parliament concerned itself little or not at all with educational or sanitary questions, and factory legislation was a thing of the future. Industry was indeed regulated, but mainly in a paternal fashion by justices of the peace. In a great part of the country such local administration as was required was exercised by justices, and the numerous laws which were passed in the eighteenth century for conferring on them additional powers, though often intolerably prolix, were com- paratively simple. The shifting of the centre of political gravity after the Reform Act of 183 a, the enormous strides of scientific discovery, commercial enterprise, and industrial activity, the new problems presented by the massing of great numbers in towns and factories under artificial conditions, the awakened interest in the moral, mental, and material welfare of the working classes, involving demands for enlargement of the functions both of the central and of the local government — all these causes have materially altered the character and increased the volume of Victorian legislation. New authori- ties have been created with new duties, new powers, and new areas. And care has not always been taken to fit the new system into the old, or to harmonize with each other the functions of co-existing authorities. Hence the chaos of rates, areas, and authorities with which we are all familiar and which has not been abolished, though it has been to some extent reduced, by recent local government legislation. The net result of the legislative activity which has characterized, though with dijEerent degrees of intensity^, the period since 1832, has been the building up piecemeal ' Lord Palmerston's last Ministry (1859-66) was a period of exceptional barrenness in legislation ; Mr. Gladstone's first Ministry (1868-74) was a period of exceptional fertility. The former preceded, the latter followed, the Reform Act of 1867. PARLIAMENT AS A LEGISLATIVE MACHINE 213 of an administrative machine of great complexity^ which Ch. X. stands in as constant need of repair, renewal, reconstruction, and adaptation to new requirements as the plant of a modern factory. The legislation required for this purpose is enough, and more than enough, to absorb the whole legislative time of the House of Commons, and the problem of finding the requisite time for this class of legislation increases in difficulty every year, and taxes to the utmost, if it does not baffle, the ingenuity of those who are responsible for the arrangement of Parliamentary business. Now enactments of this kind belong to the sphere of administrative law. For lawyers^ law. Parliament has neither time nor taste. The second leading characteristic of English legislation is Control of the control exercised over it by the Executive Government. Govern- Legislation through a popular assembly has always been wi^*^^^"^ a formidable problem. Mr. Bryce ' has indicated the three ^io"- most important forms of solution which have been attempted. The Executive may present laws to the assembly for accep- tance or rejection. This was the method of the Roman republic. The legislative assembly may delegate the elabora- tion of the laws to committees of its own body. This is the American method and is also the method adopted by the legislatures of most Continental countries. The popular assembly may leave a large share in the initiative and in the shaping of its laws to those members of its own body who are members of the Executive Government. This is the English method. The Parliament of the present day has largely reverted in substance to the practice of the Parliament of the first Edwards, under which the king, by his Ministers, made the laws. In substance, but not in theory or form. Legislation cannot be initiated except by a member of Parliament, and every member of Parliament has a right to initiate legislation. When a Minister introduces a Bill, he does so, not as such, ' American Commonwealth, part i, ch. xv. 214 LEGISLATIVE METHODS AND FORMS Ch. X. but as a member of the House to which he belongs. There is no difference in form between a Bill introduced by a Minister and a Bill introduced by any other member. There is no body like the Scottish Lords of Articles, or the French Conseil d'lfitat under the Imperial regime, whose approval is required for a project of law. Nor will Parliament brook any outside interference with the shape of a legislative measure, either while the measure is before it, or after the measure has been passed. The Government of the day may disapprove of a measure which has been introduced, or may desire the passage of a measure of its own, but in either case it rests with Parliament to say whether the measure shall become law or not. And so with amendments. The Government may wish to make an amendment, or may object to an amendment which has been made, but it is for Parliament to determine whether the amendment should be made or should remain. And when the measure has passed both Houses, it cannot be altered in any way. To cure the most obvious blun- der or oversight fresh Parliamentary legislation is required. But though the Executive Government cannot determine whether any legislative measure should or should not be introduced, or should or should not be passed, it has, through its control over the business arrangements of the House, much to say as to the chances of a.ny given measure becoming law. And though it cannot dictate the ultimate form which a Bill is to assume, it can, by suggestion and persuasion, do much to determine that form. In the United States Congress the arrangement of business is said to rest largely with the Speaker. In the House of Commons it rests, subject to Standing Orders, with the political leader of the House, who represents the Executive Government. It is in consultation with him that the daily list of business is settled by the chief ' whip.' Under Stand- ing Orders the only time appropriated for private members' Bills is Wednesday afternoon. Tuesdays are reserved for private members' motions. On other days Government PARLIAMENT AS A LEGISLATIVE MACHINE 215 business takes precedence. When urgent Government busi- ness is in progress the Government usually appropriates Tuesdays, and it always appropriates Wednesdays also during the latter part of the session. After midnight no ordinary ^ Bill can be advanced a stage except by consent, and a single member's opposition, after that hour, suffices to block a Bill. Unless a private member's Bill is of a character so simple and uncontroversial as to meet with no objection from any quarter, his only chance of getting it read a second time depends on his securing, by ballot, an early place on some Wednesday. Unless that Wednesday falls early in the session, the probability of the Bill making further progress is small. If the measure meets with general support the Government may be induced to favour it by giving it a place on a Govern- ment day. But, in that case, it usually puts the promoter ' on terms ' by requiring him to make such amendments in the form and substance of the Bill as will make it conform to the views of the Government. Thus, although private mem- bers' Bills largely outnumber Government Bills, the proportion of them which become law is, by comparison, extremely small^, ' A limited class of Government measures, mainly financial, are exempted from the twelve o'clock rule. ' The proportion in recent years is shown by the following figures. These figures refer to the House of Commons only, but include Bills brought from the Lords, whether or not proceeded with in the House of Commons. The number of Bills which, having been introduced in the House of Lords, do not reach the Commons, is not large enough to affect the general result. Ch. X. Session. Total Bills introduced. Government. Private Members'. Boyal Assent. Govern- ment. Private Members'. 1895, first & second V sessions ] 1896 1897 1898 1899 1900 263 256 263 259 2S4 238* 66 6S 67 65 53 66 197 191 196 194 171 172 38 44 54 49 37 49* 12 16 16 17 16 15 * Including the Post OfBce Sites Bill, which was introduced as a public Bill, but is classed and numbered among the local Acta. 2l6 LEGISLATIVE METHODS AND FORMS Ch. X. and of that proportion most, if not all, are materially recast ^. The change which gave the Executive Government increased control over, and increased responsibility for, Parliamentary legislation, dates approximately from the Reform Act of 1833. In the interesting remarks quoted on a previous page^. Sir Charles Wood (the late Lord Halifax) contrasts the Parliament of i8a8 with the Parliament of 1 855. In 1838, the functions of the Government were chiefly executive, and alterations of the law were ' proposed by independent members, and carried, not as party questions, by their combined action on both sides/ It was not the business of the Executive Government to initiate legislation. The Speech from the Throne did not embody a Government programme of legislation for the session. In 1855 the responsibility for initiating legislation was thrown on the Government. The private member of Parliament knew, as he knows now, that no important legis- lative measure could be carried unless initiated or aided by the Government, and he had learnt that of the two alter- natives, initiation or aid, the former was the preferable and the more likely to be effective. Among the causes of this change, the most important is probably the increased complexity of legislation since 1833. Under modern conditions the drafting of a Bill which aims at any administrative reform usually requires more expert knowledge than a private member of Parliament can command. What authorities, central or local, should be charged with the new duties ? What staff is available for the purpose ? How is the money to be found? What departments must be considted and conciliated? What vested interests will be affected ? What provisions of the numerous Acts of Parliament bearing on the subject are to be apphed, superseded, or borne in mind? These, and numerous other questions of a like ' A comparison of either the Workmen's Compensation Act, 1900, or the London County Council Electors Qualification Act, 1900, with the Bill on which it was founded, will illustrate this statement. " See p. 82. PARLIAMENT AS A LEGISLATIVE MACHINE 21 7 nature, beset and often baffle the private member in his Ch. X. attempts at legislation. And, as legislation has become more complex, so Parliament and the public have become more critical. Bills are nowa- days reproduced, summarized, and criticized by new^spapers, are made the subject of comment by professional, industrial, and philanthropic associations, are studied by constituents, and therefore cannot be disregarded by members. Even when a private member's Bill secures the favour or escapes the vigilance of a Government department, he is fortunate indeed if the provisions are such as to commend themselves to the views of all his brother members and of those whom they represent. And a single local objection usually secures oppo- sition in Parliament. In most Parliaments there is some member who undertakes the vexatious, but sometimes useful, functions of objector-general, and who opposes the passage of every Bill until its provisions have been explained and justified to his satisfaction. If the increased vigilance of Parliament and the public has checked legislation by private members, it has also augmented the difficulties of Government legislation, and materially affected the form which that legislation has assumed. A generation or two ago a minister would satisfy himself, or accept the assurance of his department, that his Bill contained the necessary provisions, would explain his scheme in Parlia- ment, and would leave form and details very much to the draftsman. The number of members who took an active part in the discussions in committee was not large : the amend- ments moved were not numerous. Under these circumstances the length of a Bill was of no great importance. It might contain details which, although not necessary, were usual, and might be useful. In the present day a minister demands before all things that his Bill should be short. Clear it ought to be : short it must be. The more words it contains the more pegs it offers for amendments. This demand for brevity has produced evils, but has made for good on the whole. On 2l8 LEGISLATIVE METHODS AND FORMS Ch. X. the one hand it has compelled resort to illegitimate devices, such as unwarrantable extensions of the method of legislation by reference, a method which all Oppositions denounce, and which all Governments adopt. On the other hand it has pruned away the prolixity and tautology which Parliamentary draftsmen had inherited or copied from conveyancers, and ha^ emphasized the distinction between matters which must be regulated by Parliament itself, and matters which may be left to departmental or local regulations, or to the exercise of individual discretion. On the question where that line should be drawn there will be much difference of opinion, but that it can be drawn, and should be drawn, all will admit. Nor will it be denied that the minute details in which many earlier Acts abounded conduced neither to the intelligibility of the law nor to the facility of administration. Indeed, many of those provisions were only made workable by being ignored in practice. One important result of the new responsibility of the Government for Parliamentary legislation, and of the increased complexity of that legislation, has been the creation of special machinery for the preparation of Government measures. As long ago as 1837, the Home Office, then the principal source of administrative legislation, felt the need of a special office for the drafting of Bills for the conduct of which it was to be responsible. The Home Office Counsel was soon utilized by other departments, and in 1869 the extension of his sphere of action was recognized and confirmed by his conversion into the Parliamentary Counsel, with duties and responsibilities no longer departmental but general. The Parliamentary Counsel is not an officer of the legislative body. He is not appointed by nor responsible to either House of Parliament. Nor are his services available to any private member of Parliament, except under express instructions from the Executive Government. He is appointed by the First Lord of the Treasury, who usually represents the Executive Government in the House of Commons, and he is attached to PARLIAMENT AS A LEGISLATIVE MACHINE 219 the Treasury in its character of central department of the Ch. X. administration. Although he acts for all the departments, he does so only on instructions received through the Treasury. His central and neutral position enables him to discover and direct attention to inconsistent or overlapping legislative proposals, and to suggest modes in which the conflicting views of different departments as to the form which legislation should assiune may be reconciled or harmonized. Like his pre- decessor the Home Office Counsel, he is not merely a draftsman, but is expected to give advice, when requested, on any matter involving, or likely to involve, legislation. But of course his responsibility, like that of other permanent officials, does not extend to any action or inaction which may ensue on the advice given. For this, the minister concerned is alone responsible. The Parliamentary Counsel's office is the result of the ex- ceptional relation which exists between the Executive Govern- ment and the legislature in England, and accordingly it has no precise analogue in any other country, though the need for some such institution seems beginning to be felt in the self- governing colonies ^. It will have been seen that two of the leading characteristics Distrust of of English legislation are, first, that the legislature is con- discretion cemed more with the making and mending of administrative regulations than with the formulation of ' lawyers' law ' ; and secondly, that in the exercise of its functions it is largely led, and virtually controlled, by the executive power. The third characteristic is closely connected with the first two. Seeing that the matters with which the English legislature is con- cerned are mainly matters of administration, it may be asked — a statesman of the Napoleonic type would certainly ask — Why should the legislature concern itself with all these matters at all ? They belong to the sphere of the executive, not of the legislative, authority. If the legislature must interfere, why should it not content itself with laying down 1 See Ch. IX. 220 LEGISLATIVE METHODS AND FORMS Ch. X. a few broad, general principles, and leaving the details to be worked out, as they can and should be worked out, by the executive authorities, central or local? The answer to this question has been indicated in Chapter III. Rightly or wrongly. Englishmen have an instinctive distrust of official discretion, an instinctive scepticism about bureaucratic wisdom, and they have carried this feeling with them into the United States and the British Colonies. They are ready enough, they are often embarrassingly eager, to confer new powers on the executive authority, central or local. But they like to determine for themselves how those powers are to be exercised. They like to see, in black and white, the rules by which their liberty of action is restrained, and to have an effective share in the making of those rules. And they insist on the meaning of those rules being deter- mined, not by administrative authorities, nor by any special tribunal, but by the ordinary law courts of the country. This is the peculiarity which constitutes the most marked distinction between British and American legislation on the one hand, and Continental legislation on the other, and which makes the framework and arrangement of an English statute such an incomprehensible puzzle to the ordinary Contiaental student of laws. It is quite true that English legislation has recently shown a tendency to assimilate to Continental methods, not indeed in the reference to exceptional tribunals of questions as to the meaning of legislative enactments, but in the avoidance of unnecessary details. The modern English statute is couched in more general terms, descends less into minute details, and leaves a wider range for subordinate legislation and a wider scope for official discretion in the execution and development of the law, than its predecessor of forty or fifty years ago. This tendency makes for perspicuity as well as brevity, and therefore for improvement in the form of the law. But it must not be exaggerated or abused. The instinctive English distrust of official discretion and jealousy of encroachments by PARLIAMENT AS A LEGISLATIVE MACHINE 221 the executive on the sphere of the legislature, still exist, and Cii. X. unless the temper of Parliament should materially change, will continue to exist, and to be an important factor in the form of Parliamentary legislation. If any minister doubts their existence, let him yield to the temptation of asking for power to exercise departmental discretion, or to make depart- mental rules, in terms wider and more unrestricted than the circumstances of the ease may require. He is pretty sure to receive from his own side hints, friendly but unmistakable, that powers of this kind can only be obtained by general consent, and that if opposition is threatened from any quarter, he will do well to draw in his horns and be more modest in his drafts on the confidence of the House. Opposition may often be averted by prudent limitation of the powers asked for, either by specifying more minutely the purposes for which they are to be exercised, or by submitting their exercise to the approval of Parliament. And care should be taken that the control thus reserved is real and not illusory. The practice under which schemes and rules requiring Parlia- mentary approval are brought on for discussion after midnight makes Parliament more reluctant than it would otherwise be to concede to the executive the power of making such schemes and rules. And finally, it must be remembered that Parliament, whilst casting on the executive the responsibility for the initiation and framing of its more important legislative measures, and delegating to the executive, under due limitations, the power of supplementing these measures by subordinate rules, yet jealously reserves to the ordinary courts of the country the exclusive right and power of interpreting all enactments, whether made directly by Parliament, or under powers delegated to an executive authority \ Therefore, not only Acts of Parliament, but 1 A department sometimes asks for and obtains power to decide ques- tions arising out of its rules, but this power is rarely granted, and would not be construed as ousting the right of the law courts to determine what is and what is not the law. 222 LEGISLATIVE METHODS AND FORMS Ch. X. rules made under statutory powers, ought to be expressed with such technical accuracy and precision as will enable them to face the ordeal of judicial interpretation. Com- In any comparison of the English Parliament with other ^arisou legislatures, the leading characteristics of English Parlia- j*^.®j mentary legislation, to which reference has been made above, tures. must be carefully kept in view. Unless this is done, the resemblances will be deceptive and the differences unintel- ligible. United Of all such comparisons, the most instructive is perhaps legisla- that with the legislature of the United States, because it tiou. shows how a people starting with the same habits, traditions, and modes of thought as our own, may, by making a cardinal point of a different constitutional principle, the severance of executive and legislative authority, arrive at curiously different results. This comparison has been drawn with such ampli- tude of knowledge and such fullness of detail by Mr. Bryce in his American Commonwealth, that it is unnecessary to do more than refer to his chapters on ' Committees of Congress ' and ' Congressional Legislation ' in that work. For present purposes, it must suffice to remind the reader that the chief point of resemblance between English and American legisla- tion is the desire to be governed by fixed written rules, and to leave as little scope as possible to official discretion, and the consequent minuteness of detail into which legislation descends ; whilst the chief point of difference is the absence in the United States of control by the Executive over the preparation or initiation of legislative measures or their passage through the legislature, and the large powers which are delegated to committees on the Continental plan. In form and arrangement there is a strong family resemblance between English and American enactments, but in point of draftsmanship we have probably nothing to learn from the United States, where the preparation of legislative measures is usually the work of amateurs. Conti- jiqj. a, comparison of English legislative methods with the PARLIAMENT AS A LEGISLATIVE MACHINE 223 methods of Continental legislatures there is no guide who Ch. X. writes with the same authority and fullness of knowledge as legisia- Mr. Bryce, but many useful and suggestive remarks may be ^'■°^' found in Mr. Lowell's book on Governments and Parties in Continental Europe ■*- The comparison is less instructive than that with the United States, because^ although Continental legislatures have borrowed some rules and practices from the ' mother of Parliaments/ their procedure is usually based on and adapted to different constitutional habits and traditions. In particular, the Executive has, at all events in France and Italy, less control over the initiation and shaping of laws; the elaboration of laws is extensively delegated to bureaus or committees ; and far greater latitude is allowed to the administrative authorities both in the execution and in the interpretation of laws^. In comparing the form of English with that of Continental enactments it would not be fair to compare or contrast the administrative measures which occupy the greater part of the English Statute Book with any of the great Continental Codes. These Codes represent a kind of legislation which Parliament has not attempted except in one or two cases which prove the rule ^, which it certainly is not qualified to perform, and which in Continental countries is substantially performed by a committee or commission of experts. But credit is due to legislatures which, having recognized the need of legislation of this kind, can appreciate good work when done, and can adopt it without more than a reasonable amount of criticism. To such credit many of the Continental legislatures, especially the legislature of the new German Empire, are entitled in a very high degree *. A fairer comparison is with the administrative measures which form the staple of current legislation, both in England and on the Continent. The Frenchman's innate respect for his language, his appreciation of form, precision, and logical ' See the passages quoted in Ch. Ill above. 2 See Ch. HI and notes A and B to Ch. VI. ^ See above, p. 128. * As to Continental codification, see above, pp. 15, 17, 157. 224 LEGISLATIVE METHODS AND FORMS Ch. X. arrangement, display themselves in legislation as well as in ■ other forms of composition^ and a well-drawn French law is a model of its kind. To an English eye, the German sentence often seems clumsy, and the Italian flaccid, but on such points a foreigner is ill qualified to judge. As has been observed above, Continental laws usually leave to executive regulations and official discretion a much greater latitude than would be consonant with English constitutional principles. But it is interesting to note that in this respect recent laws show a tendency to assimilation. English laws have become more general and concise : foreign laws have begun to enter into greater detail. At the same time, according to some compe- tent critics, French legislation has recently lost some of the lucidity and precision by which it was once characterized. ' Les lois franjaises se distinguent par la clarte et par la concision de leurs textes. Ces qualites tiennent en partie a la nettete et a la precision de la langue. En outre, le legislateur s'attache generalement a mettre en lumiere et a poser dans la loi les principes ; il ne s'embarrasse pas autant que les Parle- ments anglais et americains, par exemple, dans les multiples examples d'applications. Mais il semble que les Assemblees montrent aujourd'hui une tendance facheuse a s'immiscer dans une foule de details qu'il vaudrait mieux laisser k la prevoyance du pouvoir executif .' Colonial The legislative methods of the English self-governing tiaa! ''' Colonies are closely modelled on English precedents, and, both in their processes and in their results, present the same general features as their English prototypes. Many Colonies have adopted wholesale English Acts of Parliament with the necessary adaptations to local cii'cumstances. But they have shown much more enterprise and corn-age than the mother- country in recognizing and meeting the need for improvement of the form of their statute law, and have carried much further the useful work of consolidating and codifying their law ^. And some of their constructive legislation shows great ' L. Dupriez, Les ministres dans les pnncipaux pays d'Burope et d'Ammgv£, "■ 377- ^ See Ch. IX above. PARLIAMENT AS A LEGISLATIVE MACHINE 225 ingenuity and originality. The Australian Commonwealth Ch. X. Act, which, though passed into law by the English Parlia- ment, was drafted by an Australian Convention, and bears the Australian mint-mark in every sentence and line, is a piece of work of which any legislature might justly be proud. On wholly different lines from those of Colonial legislation Anglo- are framed the constitution and practice of the British-Indian logjsia- legislatures. These legislatures are not popular but bureau- '^°"- cratic, and the Governor- General's Legislative Council is perhaps as good a specimen of a bureaucratic legislature as can be found. The work, like that of American and Continental legislatures, is done in committee. The debates in the Legis- lative CouncU are apt to be formal, unreal, and soporific. The rule which requires members to keep their seats while speaking, and which used to be known as ' the rule for the suppression of Sir Barnes Peacock,' is destructive not only of rhetoric but of animation, and is productive of long written discourses. The committees resemble the departmental com- mittees of permanent officials to which drafts of Government Bills are often referred in England, and their discussions are useful and practical. The members are usually masters of the subjects with which they deal, and it is not their fault if the point of view taken is apt to be too exclusively official. The case of the intelligent, capable, and public-minded administrator is effectively presented, but one would like to hear more of what could be said by those on whom the law is to operate. The classes whose rights and interests are affected are very numerous, very diverse, very far off, and very inarticulate, and one has to rely much on paper evidence. But the work is excellent of its kind. Anglo-Indian Acts are sometimes held up as a model for English legislation. The Anglo-Indian Codes, especially the Penal Code, have great and undeniable merits. Most of them were framed to meet a pressing need, and they have sufficed, on the whole, for the- purposes for which they are required. But some of them, the Procedure Codes in ILBERT Q 226 LEGISLATIVE METHODS AND FORMS Oh. X. particular^ show a good deal of rough workmanship, and if they were tried by the English standard it is doubtful how far they would stand the test. The Law Member of the Govemor-GeneraFs Council, who is responsible for the form of laws passed by that Council, enjoys many advantages in comparison with an English minister in charge of a bill. His laws are easier to draw, and easier to pass through the legislature. They are easier to draw, because the Indian administrative system is simpler than the English, and because the political and social conditions of the country allow and require a much greater elasticity of administration and there- fore a greater generality of statement in the law. They are easier to pass, because they come before a small body, and are referred to a still smaller select committee, of which the Law Member is ex-ofRcio chairman, and over the proceedings in which he exercises a preponderating control, so that, as far as form and arrangement is concerned, he is master of the situation from the first stage of a Bill to the last. To a member of Parliament the structure of an average Indian Act would appear too loose on the one hand and too technical on the other. He is accustomed to more precise directions as to the mode in which, and the conditions under which, a power is to be exercised ; he is more jealous and suspicious of executive discretion. An Indian amending Act is usually framed on the plan of inserting or substituting particular words or sentences in the amended Act. This method is very convenient to those who have to note up amendments in their Statute Book, but makes a Bill unintel- ligible to those who have not before them either the text of the previous Acts, or a full commentary, such as is usually supplied by the ' Statement of Objects and Reasons,' and is extremely embarrassing for purposes of discussion and amend- ment, especially in a numerous assembly. It could therefore only be adopted in England with reference to measures which are practically uneontroversial. The searching criticism to which an English measure is usually subjected in its PARLIAMENT AS A LEGISLATIVE MACHINE 227 passage through Parliament^ though often embarrassing, is Ch. x, also often useful and suggestive, and is much more thorough than any which accompanies an Indian Bill. The Indian legislator has much more difficulty in discovering how his proposed law will operate, or whether it will operate at all. The difference, in fact, is between legislation by experts, with the minute but incomplete knowledge that experts possess^ and legislation by a popular assembly. Sir James Stephen has given an interesting description of the mode in which the Indian Code of Criminal Procedure Bill of 187a was discussed and settled by the Select Committee to which it was referred. After passing a well- deserved eulogium on 'the wonderfully minute and exact acquaintance with every detail of the system displayed by the civilian members of the Committee,'' he concludes by saying, ' I do not believe that one Act of Parliament in fifty is considered with anything approaching to the care, or discussed with anything approaching to the mastery of the subject with which Indian Acts are considered and discussed^.' If Sir James Stephen had been more familiar with the preliminary stages of English Acts of Parliament, it is probable that he would have qualified this statement. The amount of thought, time, and labour which is bestowed on the preparation of the more important Government measures in England before they emerge to the public view is not fully realized. Measures such as those which have recently trans- formed the system of local government in the several parts of the United Kingdom are the result of months', or even years', preliminary elaboration in the closet. Eor instance, the archives of the Parliamentary CounseFs office show that the Local Government Act, 1888, was the outcome of labour which had extended over at least ten years 2. When it has been ' History of the Criminal Law ofEnglcmd, iii. 346. ' As far back as October, 1852, Disraeli submitted to the Cabinet a suggestion for making county rates managed by a more popular Board (Malmesbury, Memoirs of an Ex-Minister). Before 1888, Bills for this Q a 228 LEGISLATIVE METHODS AND FORMS C'H. X. determined to give a measure a leading place in the Govem- ment programme of legislation for the session, and to press it seriously forward, its preparation imposes a heavy tax on the time of the draftsman and of the other officials concerned. The measure will often be referred to a Committee of the Cabinet, who will assist the minister in charge in considering questions of principle. The first crude sketch will be gradually elaborated. There will be daily conferences with the minister or with the permanent head of his department, or with both. There will be interviews and correspondence with experts in various branches of the subject with which the measure deals. Notes will have to be written tracing the history of previous legislation or attempts at legislation, and explaining the reasons for and effect of the several proposals embodied in the draft Bill, and stating the arguments which may be advanced for and against them, and these will soon grow into a formidable literature of commentaries. Each conference may involve a recasting and reprinting of the draft Bill, and successive editions will appear with bewildering rapidity. It was currently reported at the time that the edition of the Irish Land Bill of 1881, which was laid on the table of the House of Commons, was the twenty-second. I have not verified this statement, but there is no intrinsic improbability in it. The alterations may be such as to revolutionize completely the character of a measure. Cabinet secrets are, as a rule, well kept, and the transformations which occur in the embryonic development of a Government measure are known only to a chosen few. But in some cases ministerial indiscretion has lifted the veil. Lord Malmesbury has given us an amusing description of the circumstances under which the Reform Bill of February, 1867, commonly known as the Ten Minutes Bill, was hatched in the afternoon of the day on which the provisions of an earlier and wholly different Bill purpose were from time to time laid before Parliament, but usuaUy under circumstances which showed that there was no serious intention of proceeding with them. PARLIAMENT AS A LEGISLATIVE MACHINE 229 were to have been explained by Mr. Disraeli in the House of Ch. X. Commons ^. The labour involved in the preparation and revision of a leading Government measure, both at the earlier ' underground ' stage before it has been introduced, and during the subsequent discussions in Committee^ is of the severest kind, has to be performed under great pressure of time, and at the same time has to be very thorough and minute. I have been responsible for the preparation and introduction of many leading Anglo-Indian Acts, including the Bengal Tenancy Act of 1885, which was perhaps as complicated a measure as ever engaged the attention of the Indian legislature ; and I can say with confidence that the time and labour which their preparation and revision involved, and the thoroughness with which they were discussed, bear no comparison to the time, labour, and conscientious care bestowed on the preparation, discussion, and revision of such English measures as those which have recently recast the system of local government in the United Kingdom. In judging English Acts of Parliament it must be remem- Causes of bered that the defects with which they are chargeable are in ^^^^ ^J® great measure directly due to the principles of the constitution ^'=*^.°^ under which they are framed. In the first place, an ordinary ment. Act of Parliament is essentially a creature of compromise. In point of form, it is a compromise between the terms of art demanded by the lawyer and the popular language required by the layman. If the former finds such a term as ' land ' loose and slipshod, to the latter ' hereditament ■" is pedantic and unintelligible. The result is that the layman usually finds his satisfaction in the text, and the lawyer has to be consoled with a definition. In point of arrangement, an Act is a compromise between the order most convenient for de- bating a Bill and the order most convenient for administering an Act. In point of substance, a Bill as it enters Parliament may be, and as it emerges frequently is, a compromise between divergent views. It is the work of many minds, and the ' Memoirs of an Ex-Minister. 230 LEGISLATIVE METHODS AND FORMS €h. X. product o£ many hands. Now compromise and co-operation are admirable things in politics, but they do not always tend to clearness or accuracy of style, logical arrangement, or consistency, in literary composition. The pro- Those who are familiar with Parliamentary procedure are rBUi°^ well aware of the difficulties with which the promoter of any through important measure has necessarily to contend. The measure House. may have gone through a long period of gestation before its introduction to Parliament. Information and opinions on diffe- rent points will have been confidentially obtained from various quarters ; the provisions of the measure will have assumed many varying forms ; and the alternatives will have been carefully discussed and compared. Yet, in spite of these precautions, as soon as the measure has been printed and circulated, swarms of amendments will begin to settle down on the notice paper, like clouds of mosquitoes. The minister in charge of the Bill has to scrutinize all these, with the help of his permanent stafi and of the draftsman, to formulate reasons for their acceptance or rejection, and to prepare replies to, or amendments foi meeting, the numerous points raised since the introduction ol the Bill. Letters and articles appear in the newspapers Questions are asked in the House. Correspondence pours ir from all parts of the country. The peculiar circumstances oi the parish of Ockley-cum-Withypool must surely have beer overlooked by the framers of the Bill. There is a local Ad which will require consideration. Above all there are the vested interests. Journalists may write eloquent leaders, members of Parliament may make sonorous speeches, aboul the effect which the measure will have in promoting th( welfare or undermining the institutions of the country. Bd to the parish beadle of Little Peddlington the question o\ supreme importance is how it will affect his emoluments existing and prospective. It is with reference to them thai he studies the Parliamentary Debates, indites missives to hif representative, and organizes deputations to departments Every member of Parliament knows this beadle, under varioui PARLIAMENT AS A LEGISLATIVE MACHINE 23I names. Questions of this kind occupy all the working time Cir. X. during the interval between the second reading and Committee, and during the progress o£ the Committee stage. Inside the House the minisiter is battling with amendments, some from enemies, anxious to make the Bill unworkable or to reduce its operations to a minimum, others from indiscreet friends. Amendments are often framed hastily without reference to grammar, logic, consistency, or intelligibility. They are apt to be crowded in at the beginning of each clause or sentence, with the view of obtaining precedence in discussion. The language of a law ought to be precise, accurate, and consistent, but the atmosphere of a crowded or heated assembly is not conducive to nicety or accuracy of expression. Decisions often have to be taken on the spur of the moment, and in view of the possibility of a snap division. At last the amendments are cleared off the paper ; the new clauses, often raising the same questions, are disposed of ; and the much buffeted craft, with tattered sails, the deck encumbered with wreckage, and with several ugly leaks in her hold, labours heavily into a temporary harbour of refuge. There is a short interval for the necessary repairs, and then the struggle begins again at the report stage. There may or may not be a sufficient opportunity for making such formal amendments as are necessary to make the measure decently consistent and intel- ligible. If not they must be left for the House of Lords. It will hardly be said that this is an unfair description of Should the common experience of those who have to pilot important tion be measures through Parliament. And if so, the marvel perhaps delegated is not that the drafting of such measures is open to criticism, perts ? but that it is not much more defective than it is. An obvious criticism on the existing procedure for legislation, one which is easily made and often heard, is that the fault is due to the clumsy and ignorant interference of Parliament. ' Leave the drafting of laws to experts, and the grumbles of the legal profession and of the public would cease.' In support of this view the high authority of John Stuart Mill might be cited. 232 LEGISLATIVE METHODS AND FORMS Ch. X. 'Any GoYernment fit for a high state of ciTilization would have as one of its fundamental elements a small body, not exceeding in number the members of a Cabinet, who should act as a Commission of Legislation, having for its appointed office to make the laws. If the laws of this country were, as surely they will soon be, revised and put into a connected form, the Commission of Codification by which this is effected should remain as a permanent institution, to watch over the work, protect it from deterioration, and make further improvements as often as required. No one would wish that this body should have of itself any power of enacting laws ; the Commission would only embody the element of intelligence in their construction ; Parliament would represent that of will. No measure would become a law until expressly sanctioned by Parliament, and Parliament, or either House, would have the power not only of rejecting but of sending back a Bill to the Commission for reconsideration or improvement. Either House might also exer- cise its initiative by referring any subject to the Commission with directions to prepare a law. The Commission, of course, would have no power of refusing its instrumentality to any legislation which the country desired. Instructions, concurred in by both Houses, to draw up a Bill which should effect a par- ticular purpose, would be imperative on the Commissioners, unless they preferred to resign their office. Once framed, how- ever, Parliament should have no power to alter the measure, but solely to pass or reject it ; or, if partially disapproved of, remit it to the Commission for reconsideration. The Commissioners should be appointed by the Crown, but should hold their offices for a time certain, say five years, unless removed on an address from the two Houses of Parliament, grounded either on personal misconduct (as in the case of judges), or on refusal to draw up a Bill in obedience to the demands of Parliament \' The substantial suggestion, it will be seen, was that Parliament should abdicate its function of amending Bills, and should confine itself to the simple question whether a particular Bill presented to it ought or ought not to pass, the question now decided at the second reading stage. For this method of legislation there is a historical precedent. It was the method adopted under the Rohian republic. The magis- trate submitted his proposal of law to the comitia, and that body voted ' aye ' or ' no ' on the question whether it should or should not become law. But this plebiscitary method of ^ Representative Government, ch. v, ' Of the proper functions of represen- tative bodies.' PARLIAMENT AS A LEGISLATIVE MACHINE 233 legislation presupposes laws of extreme simplicity and brevity, C h. x . and a suggestion that a modern popular assembly should abstain from all criticism of the details of a measure sub- mitted to it for approval hardly falls within the range of practical politics. Popular legislation has its defects, but it has its advantages Advan- tages of also, and in the English view the advantages preponderate, existing It is true that the provisions of a Bill as introduced into system. Parliament ought to be, and often are, perspicuouSj consistent, orderly, and luminous, and that their perspicuity is often marred, the principle of their arrangement upset, their consistency distiurbed, by amendments in Committee. On the other hand, the substantial improvements which are effected often do more than atone for any deterioration in form. The searching ordeal to which Bills are exposed in their passage through Parliament frequently brings out de- fects and omissions against which the most skilful draftsman could not be expected to provide, which the most omniscient official could not be expected to foresee. And the opportunities which the existing procedure and practice afford for the avoidance of ill-considered, ill-drawn, or inconsistent amendments, and for the removal of formal defects, are greater than are realized by those who are not familiar with ParKamentary habits. At first sight nothing would seem more preposterous than to submit a complicated draft for criticism and correction to a miscellaneous assembly of 670 persons. But if the member in charge of a Bill is a minister with a compact and strong following at his back, and if he has the qualities which command the confidence and respect of the House, he can retain control over both the form and the substance of his Bill through all the vicissitudes of a long discussion in Committee. It is true that the qualities required for the successful steering of a complicated and controversial Bill through Committee, are qualities of a very high order. They include tact, readiness, resourcefulness, firmness, and, above 234 LEGISLATIVE METHODS AND FORMS Ch. X. all, patience and good temper. The slightest appearance of dictation, the slightest loss of temper, will often set the House aflame. But if the minister can be conciliatory without 'wobbhng,' can distinguish between amendments which are fatal to his scheme and those which are not, can by a happy and timely suggestion indicate the way out of a confusing discussion, and can suppress his own impatience until it is shared by the Committee, he can, without going to a division, often persuade his critics either to withdraw, or to modify, or to postpone their amendments, or, at the worst, make his assent to their acceptance subject to further con- sideration at a later stage of the Bill. Qualities of this kind are not rare among English statesmen, and are developed by Parliamentary training. Those who have been in the habit of attending legislative discussions, whether in Committee of the whole House or in any of the Grand Committees, cannot fail to have been struck by their display, and to have been also impressed by the good sense, good temper, and readiness to adopt compromises and accept reasonable assurances which char- acterize a Committee, except when it has got ' out of hand.' The ' report ' stage of a Bill supplies an opportunity for setting right things which have gone wrong in Committee. Sometimes, however, a heated discussion has been compromised by a provision or phrase, which may be obscurely or inartisti- cally expressed, but difiicult or practically impossible to amend. Instances have been known in which a difficulty has, for tactical reasons, been deliberately shirked, or in which an obscurity or ambiguity has been allowed to remain for fear of exciting a prolonged debate. Occasionally the only alternative is between passing a measure in an unsatisfactory form and sacrificing it for the session, with the prospect of delaying indefinitely a useful reform. These are among the most frequent causes of the blemishes which call down judicial animadversions ^. ' The doubt about the eligibility of women to seats on county councils is a case in point. PARLIAMENT AS A LEGISLATIVE MACHINE 235 Amendments which cannot be made at the report stage can Ch. X. often be made in the House of Lords, which thus discharges to some extent the functions of a revising authority. Heroic suggestions for improvement of legislative procedure will not be looked for here. Much has been done towards facilitating the discussion, and simplifying and shortening the form of Bills, by separating principles from details, and leaving the latter to be regulated by statutory rules or orders. The success of experiments in this direction depends upon two things : upon their not being carried too far, and upon the provision of adequate opportunity for criticizing the exercise of delegated legislative authority. 'Article I. Stray dogs are prohibited. Article II. The Minister of the Interior is charged with the execution of this decree.' A harassed President of the Board of Agriculture might sometimes regard with envy the simplicity of this form of legislation, though he might have forebodings of diflBculties in filling up and negotiating his blank cheque should he obtain it. But he would know that it would be useless to ask for it. And where the legislature delegates to Government departments in more limited terms powers of making rules which affect outside interests, provisions for preliminary criticism of the drafts, such as are embodied in the Rules Publication Act of 1893, though sometimes productive of delay and in- convenience, are a salutary check on hasty and improvident legislation. Complaint is often made that a modern BiU is too technical Syste- to be intelligible. For one cause of unintelligibility, the solidation complexity of modern administration is to a great extent ^^oy^ responsible. It is easier to understand or mend a spindle i^any ,,.!,.» defects. than the machmery of a cotton mill. But there is another obstacle in the way of drawing Acts in a simple form, which is removable, and which it rests vsrith the legislature to remove. An amending Bill which has to refer to some half- dozen previous enactments on the same subject can hardly be simple in form or easy to understand. But if the task 236 LEGISLATIVE METHODS AND FORM5 Ch. X. of consolidating Acts is neglected or deferred, this is the form which many amending Bills must inevitably assume. And Parliament is not likely to make effective progress with consolidation unless it devises some standing machinery for the purpose, delegates the task to a Committee or some similar body, and accepts reasonable assurances from competent and responsible authorities that the work of that body is properly done. CHAPTER XI FORM AND ARRANGEMENT OF STATUTES Mtjch legal literature has been devoted to the interpretation Ch. XI. of statute law *. The object of the writers of books on this general subject has been to collect such judicial decisions and other piine»pie» authorities, and to formulate such rules and principles, as tory may assist the courts and legal practitioners in determining the meanings which ought to be attached to obscure or ill- expressed enactments. Books of this kind are useful to the draftsman of an Act of Parliament as showing the meaning which the courts may be expected to attach to particular expressions, and the canons of construction which the courts will observe, and also as illustrating the pitfalls which the draftsman should avoid, and the consequences which the use of loose or inaccurate language may entail. But they are concerned rather with the pathology or nosology of statutory drafting than with its laws of health. They illustrate bad drafting; they do not, except indirectly, lay down rules for good drafting. On the latter branch of the subject compara- tively little has been written ^. It may be said that the rules of good drafting are simply ' See e. g. Dwarris on Statutes. Sedgwick, Statutory and Constitutional Law, Maxwell, Interpretation of Statutes. Hardoastle on the Construction of Statute Law (second edition by Craies, 1892). Wilberforoe on Statute Law. Stroud, Judicial Dictionary. ' Bentham's Nomography (Works, by Bowring, vol. iii. 231) is full of acute and suggestive criticisms on ' the general depravity of the style of English Statutes,' but the 'Equity Dispatch Court Bill' (ib. 319), in which he attempted to reduce his theories to practice, is a veiy extra- ordinary production. A more practical attempt to apply Bentham's 238 LEGISLATIVE METHODS AND FORMS Ch. XI. the rules of literary composition, as applied to cases where precision of language is required, and that accordingly any one who is competent to draw in apt and precise terms a conveyance, a commercial contract, or a pleading, is com- petent to draw an Act of Parliament. But this is obviously a superficial view. Just as an excellent conveyancer may be a very poor pleader, and vice versa, so an accomplished and experienced conveyancer or pleader may find himself quite at sea if called upon to draw a parliamentary statute. Both the subject-matter and the mode of treating the subject-matter are different. The ordinary training and practice of the Inns of Court require to be largely supplemented for the purpose of parliamentary drafting. What is essential to a sound lawyer, as distinguished from a skilful advocate, is a know- ledge of the principles of that branch of the law which he practises. But the branches of law with which a practising barrister is ordinarily required to be conversant are those which relate to civil disputes, or to commercial transactions, or to the disposition of property, or to crime. He need not be familiar, as a rule he is not familiar, with administrative law. It is true that the growing complexity of the English administrative system, and the number and importance of the legal or semi-legal questions which arise in the course of central and local administration by public authorities, are gradually breeding up a class of lawyers who devote them- selves specially to this branch of learning, or to some one or more of its ramifications, and that among these are to be found first-rate authorities on such topics as municipal, sanitary, railway, or highway law. But even these are usually specialists, and do not find it necessary to take any general or comprehensive view of the English administrative principles was made by Mr. Arthur Symonds in the ' Papers relative to the Drawing of Acts of Parliament, and to the means of ensuring uniformity thereof, in language, in form, in arrangement, and in matter,' which were laid before the House of Commons in 1838. Lord Thring's Practical Legislation (now out of print) was based on his unrivalled experience as a draftsman. FORM AND ARRANGEMENT OF STATUTES 239 system as a whole, or of the relation of its different parts to Ch. XI. each other. Now the branch of law with which Acts of Parliament are concerned is pre-eminently that which relates to the administrative duties and powers of public authorities. If the contents of the public Statute Book are analysed, it will be found that the proportion of its enactments which alter rules or principles of the common law is very small, and that the object of by far the greater part of them is to make some alteration in the administrative machinery of the country. Some improvement of administrative machinery is suggested, and among the questions which the framer of the proposed measure will have to consider are — What powers and duties already exist for the purpose contemplated ? By whom are they exercised or performed ? What is the appropriate local authority? What is the appropriate central authority? What should be the relations between them? What kind and degree of interference with public or private rights, either by the local or by the central authority, will be tolerated by public opinion ? How is the money to be found ? How is the change to be introduced so as to cause the least interference with existing rights and interests, the least friction with existing machinery ? These are questions which a practising lawyer does not often have to consider, but which arise in the preparation of almost every public legislative measure. It is true that many of them are questions rather for the legislator than for the draftsman. But they are questions on which the draftsman will often be expected to advise, and on which the knowledge he has acquired will often enable him to give useful advice. Nor are the rules and traditions of conveyancing applicable, without serious modifications, to parHamentary drafting. The framer of even the most complicated settlement has to provide for a limited number of cases or contingencies, which he can enumerate exhaustively, and for which it is sometimes desir- able that he should make specific rather than general provision. 240 LEGISLATIVE METHODS AND FORMS Ch, XI. But tlie framer of an Act of Parliament has to lay down rules which are to be in force for an indefinite time, and to be applicable to conditions and circumstances of which the existing range and variety are of formidable complexity, and the modifications of which in the future are impossible to predict. Practice in the preparation of such instruments as the articles of association of a company is of greater value than practice in ordinary conveyancing, but even here the range and variety of circumstances which have to be con- templated is obviously much narrower than in the case of a general law. If a parliamentary draftsman is to do his work well, he must be something more than a mere drafts- man. He must have constructive imagination, the power to visualize things in the concrete, and to foresee whether and how a paper scheme will work out in practice. Again, the draftsman of an Act of Parliament has to prepare a document which has to be considered and possibly modified by a large number of persons, over which he can only exercise a very imperfect control after it leaves his hands, and the provisions of which may have to be settled on the spur of the moment and in the heat of debate. If its several parts are too tightly dovetailed together, if it is so constructed that a modification of one part necessarily involves numerous modifications of other parts, an amend- ment made in the course of debate may throw it hopelessly out of gear. For these reasons, the parliamentary draftsman is obliged, by the conditions of his craft, to employ a generality of expression, and to give his framework an elas- ticity of construction, which would shock the conveyancer. Then, between the point of view of the lawyer and the point of view of the legislator there is a material difference. The lawyer proceeds on the basis of the existing law. He endeavours to ascertain what that law is, and to apply it to the facts. The legislator proceeds on the view that the existing law is defective or insuSicient, and considers how the law should be changed in order to meet the requirements FORM AND ARRANGEMENT OF STATUTES 241 of the case. It is often difficult for the trained lawyer to Ch. XI. change his accustomed point of view, and consider, not merely what the law is, but what it ought to be. Lastly, the draftsman of a public Act of Parliament has to be guided by rules, not only of logic, but of rhetoric. A Bill for such an Act may be regarded from two points of view. From one point of view it is a future law. From another point of view it is a proposal submitted for the favourable consideration of a popular assembly. And the two points of view are not always consistent. The mode of expression and arrangement which is most suitable to officials who have to administer the law, or to lawyers who have to explain the law, is not always that which is most suitable to the minister or other member of Parliament who has to pass the law. Lord Thring's aphorism, ■■ that Bills are made to pass, as razors are made to sell,' expresses an important half-truth. The minister in charge of a Bill will often insist, and wisely insist, on departure from logical arrangement with reference to exigencies of discussion. He will have considered how he intends to present his proposals to Parliament, and to defend them before the public, and will wish to have his Bill so arranged and expressed as to make it a suitable text for his speech. If the measure is at all complicated, he will desire to have its leading principles embodied in the opening clause or clauses, so that when the first fence is cleared the remainder of the course may be comparatively easy. In settling the order of the following clauses, he will consider what kind of opposition, and from what quarter, they are likely to evoke. He will deprecate unnecessary length, and will often wish to have his measure so drd.wn that it can be contained in a single clause or appear on a single page. He will prefer a few long clauses to many short ones, bearing in mind that each clause has, as a rule, to be separately put in Committee. His theoretical objections to legislation by reference will often yield to considerations of brevity. He will eschew technical terms, except where they are clearly 242 LEGISLATIVE METHODS AND FORMS Ch. XI. necessary, remembering that his proposals will have to be expounded to, and understood by, an assembly of laymen. He will bear in mind that members of Parliament, like other Englishmen, have a great respect for precedents, and will prefer a form of expression borrowed from, or having an analogy in, another Act of Parliament. And he will have learnt that there are certain provisions and expressions at which Parliament instinctively shies, others which it readily accepts. The draftsman has, of course, to bear in mind all these considerations. Indeed it may be said, with- out disrespect, that he has to study the idiosyncrasies of Parliament much as a nisi prius barrister has to study the idiosyncrasies of a common jury. The notes and hints embodied in this chapter were put together with special reference to public Bills. For private Bills the forms periodically prepared by the Chairman of Committees (Model Bills and Clauses) are indispensable, and Clifford's Private Bill Legislation should be consulted. For the procedure, both on public and on private Bills, reference should be made to May's Tarliamentary Practice, and to the Standing Orders of the two Houses of Parliament. Pre- Before beginning to prepare a Bill it is essential to work^'^'*' ™^ster the subject-matter. Where a doubtful question of construction arises, the courts are entitled to consider the previous law and practice, the mischief or defects which the law was intended to remove, and the nature of the remedy proposed. So, before devising a remedy, it is needful to know the existing law and practice, and to have a clear conception of the mischief or defects for which the remedy is required. The law is to be found in Acts of Parliament, in judicial decisions, and in legal textbooks. The practice, that is to say the way in which the law actually works, is less easily learnt. Information may often be obtained from blue books, from debates in Parliament, and from similar sources, but is not always available in a written form. It must often be FORM AND ARRANGEMENT OF STATUTES 243 derived from personal experience, or supplied by persons Ch. XI. having such experience. The defects which the proposed legislation is intended to remedy are usually to be gathered from parliamentary and other discussions and from reports of Royal Commissions or Parliamentary Committees. It should be considered with respect to each proposed enact- ment whether parliamentary legislation is really required^ and whether the object might not be attained by administrative regulations or by subordinate legislation, such as Orders in Council or statutory rules, and sometimes, whether, if legisla- tion is required, it should not be embodied in a local Act. It may also have to be considered whether a Bill is of such a nature that the Standing Orders applicable to private Bills will apply to it ^. For the purpose of studying the Acts, the most convenient plan is to obtain and fasten together King's Printer's copies of the several Acts, and then to strike out those portions which have been repealed by subsequent legislation, adding marginal notes to show how they have been repealed. Lists of relevant judicial decisions, arranged in chrono- logical order, and showing the point decided in each case, will often be useful. So also will be a short bibliography of the blue books, text- books, &c., bearing on the subject of the measure. It will save much trouble if the results of the information collected are embodied in a memorandum. Several documents of this kind may be required. It may be necessary to trace historically the course of previous legislation, and of discus- sions in Parliament and elsewhere, and to show how the existing statute law has been interpreted by judicial decisions ' The Standing Orders were held to apply to the Bill which became law as the Metropolis Water Act, 1899 (62 & 63 Vict. c. 7), but the Standing Orders Committee waived compliance with the Orders as to preliminary notices. Standing Orders were also held to apply to the Military Manoeuvres Bill, 1900, and in this case the Committee declined to waive compliance. E % 244 LEGISLATIVE METHODS AND FORMS Ch. XI. and has been construed in practice. A memorandum stating the leading features of the proposed legislation^ and raising clearly the questions of principle to be decided, will usually be required. This will be useful for discussions preceding the introduction of the Bill and also as a brief for the speech required on introduction or second reading. In the case of a Government measure, a shorter memorandum, dealing only with the main points, may be required for the use of the Cabinet, and a still shorter memorandum may in some cases be prefixed with advantage to the Bill as introduced. The officers of Parliament, especially of the House of Commons, impose limits on the length of a memorandum of this kind, and object to the introduction into it of argumentative matter. Information of a more detailed kind should be embodied in the notes on the several clauses, and in preparing these notes care should be taken to quote fully, and to give precise references to, the enactments bearing on the subject- matter of each clause, and to supply such other particulars as may be required for discussion in committee or in the preliminary conferences. The information should be given in such a form as to be available for immediate use, and without reference to books or other documents. A statement in a tabular form or otherwise of the authorities who will be charged with the execution of the law, and of their powers and duties, will often be of great value. When the measure is complex there should be, in the first instance, a ' scheme ' or ' heads of a Bill ' such as can be subsequently elaborated into clauses. Arrange- The arrangement of a Bill has to be considered both from the parliamentary and from the administrative point of view. If the Bill is a fighting Bill the arrangement is of great political importance. The Bill should be so framed that the main issues which its proposals raise are disentangled from subordinate issues, are placed in the forefront of the measure, and are arranged in such manner as to facilitate discussion in Committee. Where the decision of an issue raised by one ment. FORM AND ARRANGEMENT OF STATUTES 245 clause depends on the decision of an issue raised by another Ch. XI. clause, the latter clause must come first. Care should also be taken that one clause does not raise incidentally an issue which can be more conveniently discussed in connexion with a later clause. Subordinate matters should be dealt with in later parts of the Bill. Matters of detail should be relegated to schedules or left to be provided for by rules. So far as parliamentary exigencies will admit, the subject- matter of a Bill should be arranged with reference to adminis- trative convenience; in other words, its arrangement should be orderly and logical. Normal and general provisions should be placed first. Special, exceptional, and local provisions should be placed towards the end. Thus, a Bill applying to the whole of the United Kingdom should be framed with reference to English circumstances, and the necessary adaptations to Scotland and Ireland should be made by special clauses or groups of clauses towards the end of the Bill. In the same way special clauses should provide for places like London, which require special treatment, and for special classes of persons, such as infants, married women, lunatics, and limited owners. Temporary and transitional provisions should be placed at the end of the Bill, because when they are spent they can be repealed without making gaps in the main body of the Act. As a general rule, it is convenient to lay down first the rules of law to be observed, and then to state the authorities by which they are to be administered and the procedure to be followed in administering them. The framework of a Bill may be made more intelligible by dividing it into parts and by grouping clauses under italic headings^. But excessive subdivision should be avoided. ' As to the effect of thus grouping clauses, see Hammersmith, Ac, Rattway Co. V. Brand (1869), L. R. 4 H. L. at pp. 216, 217 ; B. v. Local Government Board (1882), L. R. 10 Q. B. D. at p. 321 ; Union Steamship Company of New Zealand v. Melbourne Harbour Trust Commissioners (1884), L. R. 9 App. Cas. at p. 369- 246 LEGISLATIVE METHODS AND FORMS Ch. XI. As a rule a Bill should not be divided into parts unless tb subjects of the parts are so different that they might appro priately be embodied in separate Acts. The division of ai Act into parts may affect its construction by indicating th< scheme of arrangement ^. In the case of a long and complicated Act it is useful tc repeat the headings of parts and of groups of clauses at th( head of each page. See the Municipal Corporations Act, i88q (45 & 46 Vict. c. 50), and the Local Government Act, i88i: (51 & 5a Vict. c. 41). The printer will, if so directed, prefix to the Bill an ' arrange- ment of clauses' made up from the marginal notes. This table should be studied for the purpose of testing the con- venience and logical sequence of the arrangement adopted. Marginal Attention should be paid to the framing of marginal notes. A marginal note should b^ short and distinctive. It should be general and usually in a substantival form, and should describe, but not attempt to summarize, the contents of the clause to which it relates. For instance, a marginal note should run : ' Power of [local authority] to, &c.,' and not ' Local authority may, &c.^ Clauses. The marginal note often supplies a useful test of the question whether a subject should be dealt with in one or more clauses. If the marginal note cannot be made short without being vague, or distinctive without being long, the presumption is that more clauses than one are required. A long and complex clause should be cut up into- sub- sections. When a Bill has passed into law it becomes an Act, and its clauses become sections. They should be referred to as sections in the Bill. Reference to another clause of the same Bill by its number should, if possible, be avoided. The numbering of the clauses is always liable to be altered at the last moment by the addition, omission, or shifting of clauses, and there is ' See Inglis v. Robertson (1898), A. C. 616. FORM AND ARRANGEMENT OF STATUTES 247 often no time to make the consequential alterations of refer- Oh. xr. enees. Each sentence should be as short and simple as possible. Sentences. The rules to be laid down will be either general or special, and either absolute or qualified. Where a rule is to apply only to a particular case or set of circumstances, it is usually most convenient to state the case or set of circumstances first and let the rule follow. But where the rule is to apply to several cases or sets of circum- stances, it is often convenient to state the rule first and enumerate the cases afterwards. Where the rule is to be subject to qualifications, exceptions, or restrictions, these should follow the statement of the rule. But it is often convenient to prefix to the rule words indicating that it is to be so qualified. Enumeration of particulars should be avoided. It is almost impossible to make the enumeration exhaustive, and accidental omission may be construed as implying deliberate exclusion, in accordance with the maxim expi-essio unius est excktsio alterius. Each rule should be stated in general terms, but so far as practicable its application to particular cases should be tested for the purpose of seeing how it will work in each case. The language of a Bill should be precise, but not too Language. technical. An Act of Parliament has to be interpreted, in cases of diflaculty, by legal experts, but it must be passed by laymen, be administered by laymen, and operate on laymen. Therefore it should be expressed in language intelligible by the lay folk. In some cases the compromise between popular and technical language may be effected by means of a definition. But definitions are dangerous and should be sparingly used. More words should not be used than are necessary to make the meaning clear. Every superfluous word may raise a debate in Parliament, and a discussion in court. Different words should not be used to express the same thing. 248 LEGISLATIVE METHODS AND FORMS Ch. XI. The same words should not be used with different meanings. The future conditional ('if he shall') should be avoided. The future ' shall ' is apt to be confused with the imperative. The words ' herein/ ' herein-before/ and ' herein-after/ are ambiguous. They may mean in this Act, or in this section, or in this group of sections ''-. It is common in Acts of Parliament to use 'such' as a demonstrative^ equivalent to 'the' or 'that.' But this de- parture from the English of ordinary life seems unnecessary, and often causes confusion where the expression ' such . . as ' has to be used in the same context. It is also common to use the expression ' the same ' when referring to an antecedent or to antecedents. But this form of expression would be considered clumsy or archaic in ordinary English, and, as used in Acts of Parliament, not infrequently slurs over a looseness of reference. An Act of Parliament should be treated as always speaking. The idea on which this rule is based is, according to Lord Bowen, that a code on some particular subject is being con- structed, and so, when the present tense is used, it is used, not in relation to time, but as the present tense of logic ^- An Act of Parliament is intended to confer rights and im- pose duties. It should be made clear on whom the rights are conferred and the duties are imposed. For this pm-pose, as a i-ule, the active form (' may do ' or ' shall do ') should be used, and the passive form (' may be done ' or ' shall be done ') should be avoided. Lastly, the provisions of the Interpretation Act, 1889', must be carefully borne in mind. Penalties A right or duty is incomplete without what is commonly other called a sanction, that is to say, the evil which may attend sanctions, a violation of the right or a breach of the duty. 'For it is but lost labour to say "Do this, or avoid that," unless ' See re Cambrian Railway Company's Scheme, 3 Ch. 278, 293, ^ Ex parte Pratt (1884), 12 q. B. D. 340. ' Printed below, p. 337. FORM AND ARRANGEMENT OF STATUTES 249 we also declare " This shall he the consequence of your non- Ch. XI. compliance ^." ' The sanction may be either civil or criminal, or both. Where a civil sanction only is required the courts will usually have power to apply the appropriate remedy, without express words. And the enactment should be so ex- pressed as to give the right, not the remedy, to say that a person may do a particular thing, not that he may bring a particular action or obtain from the court a particular order. In some cases, however, it may be necessary to enlarge the jurisdiction of a court, such as a county court, for the purpose of bringing the enforcement of a right or duty within that jurisdiction. And in other cases it may be necessary to devise or specify a particular form of remedy. But in such cases the details of procedure should be left to be regulated by rules of court. The rules as to the criminal sanction are different. If it is proposed by a Bill to make an Act penal, then the criminal sanction should be imposed expressly by the Bill, for it is not desirable to rely on the doctrine that any breach of an Act of Parliament is a misdemeanour. Nor is it satis- factory to enact in express terms merely that the breach shall be a misdemeanour. For at common law a misdemeanour can be punished by unlimited fine or imprisonment, but the im- prisonment cannot be accompanied by hard labour. Where a duty is imposed on a public authority, it should be considered whether the duty is to be enforceable by the intervention of a superior administrative authority, such as a Government department, or by mandamus, or by both ^. Care must be taken that the penalties imposed are sufficient but not excessive. The temptation to include several different offences in the same clause or to impose the same penalty for them should be avoided, unless it is clear that they are of the like nature and gravity. In some cases, for instance, guilty ' Blackstone, Commentaries, i. 57. '' See, e. g., s. 229 of the Public Health Act, 1875, 38 & 39 Viot. 0. 55, and consider the remarks in Pasmare v. OswaldtwisUe Urban Council, A. C, [1898] 387. 250 LEGISLATIVE METHODS AND FORMS Ch. XI. knowledge^ the ' scienter,^ ought to be an essential element ol an offence ; in other cases not. Expenses. Where the administration of a measure will require new staff or additional expenditure, care must be taken that due provision is made for these purposes. Rules of Eegard should be had to the general rules for the interpre- tation."^ ' tation of statutes, as laid down in the ordinary textbooks. Among the most important of these are — 1. The rule that an Act must be read as a whole. There- fore the language of one section may affect the con- struction of another. 2. The rule that an Act may be interpreted by reference to other Acts dealing with the same or a similar subject matter. Hence the language of those Acts must be studied. The meaning attached to a particular expres- sion in one Act, either by definition or by judicial decision, may be attached to it in another. And varia- tion of language may be construed as indicating change of intention. 3; The general rule that special provisions will control general provisions. 4. The similar rule that where particular words are followed by general words (horse, cow, or other animal), the generality of the latter will be limited by reference to the former (' Eiusdem generis ' rule). 5. The general rule, subject to important exceptions, that a guilty mind is an essential element in a breach of a criminal or penal law. It should, therefore, be con- sidered whether the words ' wilfully ' or ' knowingly ' should be inserted, and whether, if not inserted, they would be implied, unless expressly negatived. 6. The presumption that the legislature does not intend any alteration in the rules or principles of the common law beyond what it expressly declares. 7. The presumption against an intention to oust or limit the jurisdiction of the superior courts. FORM AND ARRANGEMENT OF STATUTES 25I 8. The presumption that an Act of Parliament will not Ch. XI. operate beyond the United Kingdom. 9. The presumption against any intention to contravene a rule of international law. 10. The rule that the Crown is not bound by an enactment unless specially named. 11. The presumption against the retrospective operation of a statute, subject to an exception as to enactments which affect only the practice and procedure of the courts ^. 13. The rule that a power conferred on a public authority may be construed as a duty imposed on that authority ('may'='shair). It should be considered whether the regulations laid down impera- in an Act will be construed as imperative or as merely directory. ^^^ Care must be taken not to frame the language in such a way directory as to make non-compliance with unessential requirements in- tions. validate the proceedings. Special heed should be paid to the transitional arrangements Transi- consequential on the passing of an Act. It must be considered arrange- how the new law will affect existing officers, rights, liabilities, ""^ii'^- and proceedings, and such provisions must be inserted as are necessary for adapting the old state of things to the new. In some cases it may be necessary to confer on a central or local authority a power to make the necessary adaptations ^. Special considerations apply to Consolidation Bills ^. The Consoli- object of a Consolidation Bill is to combine in a single measure ^1]°^ enactments relating to the same subject-matter, but scattered over different Acts, and thus to improve the form, without altering the substance, of the law. For this purpose mere paste and scissors consolidation seldom suffices. Its result would be, in many cases, alteration of meaning. It also tends to prolixity and ambiguity. ' See Young v. Adams, A. C. [i8g8] 469. ' The recent Local Government Acts and the London Government Act, 1899, will supply illustrations of the kind of provisions which are needed where new authorities take the place of existing authorities. s See above, Ch. VII. 252 LEGISLATIVE METHODS AND FORMS Ch. XI. Literal reproduction often means substantial alteration. An Act o£ Parliament speaks with reference to the time at which and the circumstances under which it is passed. The language of three hundred or even of fifty years ago would often have an entirely different meaning if reproduced in an Act of the present day. The mere collocation of enactments of different dates alters the sense. The enactments to be reproduced are often unduly prolix, and even where that is not so, the net result of a long series of amendments of the law can frequently be summed up very briefly. The language of different Acts, even when they relate to the same subject-matter, is often not uniform. The same expressions are differently defined, and are given different meanings by the context. Hence alteration of language is necessary for the sake of clearness and consistency. For all these reasons the work of consolidation can seldom be effected mechanically. The law has to be rewritten in such a form as to preserve its substance whilst altering its form. But care should be taken to preserve the material language unless there is any special reason for altering it, and specially to preserve, if and as far as possible, expressions on which a judicial construction has been placed or which have acquired a particular signification in practice. It is, however, rarely possible to reproduce existing statute law without some slight alteration of substance. Ambiguities and inconsistencies have to be removed ; modern machinery has to be substituted for machinery which has become obsolete or inconvenient. Alterations of this kind may properly be described as necessarily incidental to the process of consolidation ; and, if their nature is fully and fairly explained, objection will probably not be raised on the ground that the measure goes beyond the proper scope of consolida- tion. Every consolidation Bill should, therefore, be accom- panied by a memorandum and notes on clauses showing what alterations of this kind are made by the Bill. FORM AND ARRANGEMENT OF STATUTES 253 In order to make sure that the existing enactments have Ch. XI. been fully reproduced, and that nothing has been overlooked, a reference to each section reproduced should be given on the margin of each reproducing clause, and there should also be a separate table of the enactments repealed and superseded, showing where each repealed section is reproduced, or if it has not been reproduced, on what ground it has been omitted. There will thus be a double check on the accuracy of the consolidation. The marginal reference will show whence the new law is derived ; the table of comparison will show how the existing law is accounted for ^. Consolidation should not, as a general rule, be combined ■with substantial amendment of the law. Where a Bill aims both at consolidation and at amendment it is practically im- possible to confine in Parliament proposals for amendment to the new provisions as distinguished from those provisions which are merely reproductions of existing law. The whole Bill becomes open to criticism and amendment in committee, and if the subject is in the least degree contentious the chances of passing it are very small. Where amendment of substance as well as of form is needed, one of three courses may be adopted. An amending Bill may be introduced and, when passed, followed by a Consolidation Bill. Or, when the provisions of the amending Bill are past the committee stage, they may be embodied in a consolidation Bill. This course was adopted with the Housing of the Working Classes Act, 1890, and the Public Health (London) Act, 1891, but is attended by a good many risks. Or, lastly, it may be more expedient to make consolidation precede Substantial amendment, an assurance being given that re- enactment of the existing law is not in any way to prejudice or preclude future amendments. The fact is that simplification of the form of the law facilitates amendments of substance. There will often be difiiculty in determining the boundary lines of a Consolidation Bill, in saying what enactments it ' See the form of table in Appendix I to Ch. XII. 254 LEGISLATIVE METHODS AND FORMS Ch. XI. should or it should not reproduce. Each Bill of this kiac ought to be regarded as a chapter in an ideal code, an( considered in its relations to kindred branches of the law. I should be considered, before a provision is insertedj whether ii might not find a more appropriate place in another chapter and before a provision is omitted, where else it could be bettei placed if kindred branches of the law were consolidated. Bu1 theoretical considerations of this kind must often give way tc considerations of policy. It is frequently better to have incomplete consolidation than no consolidation at all, and tc avoid enactments which it would be dangerous under existing circumstances to touch. The headings of the Index to the Statutes will often suggest what enactments should be combined in a single Consolidation Bill. It will be convenient to have a separate table showing what enactments, though related to the subject- matter of the Bill, are left outstanding, and for what reasons they are so left. Eefer- Referential legislation, or legislation by reference, is a legisla- favourite subject of invective with critics of parliamentary (inthe procedure. But the phrase has more than one meaning, and ^^^er H, may be worth while to consider the different senses in sense). ... which it is employed. In its widest sense it includes any reference in one statute to the contents of another. In a narrower sense it means the application, not by express re- enactment, but by reference, of the provisions of one statute to the purposes of another ^. All legislation is obviously referential in the widest sense. No statute is completely intelligible as an isolated enactment. Every statute is a chapter, or a fragment of a chapter, of a body of law. It involves references, express or implied, to the rules of the common law, and to the provisions of other statutes bearing on the same subject. If the leading rules of ' As, e. g., where tlie provisions of the Municipal Corporations Act with respect to municipal elections are applied to county council elec- tions. FORM AND ARRANGEMENT OF STATUTES 255 the common law were codified, that is to say, expressed in Ch. XI. a coneisCj orderly, and authoritative form ; if the provisions of the statute law were consolidated, that is to say, if the statutory provisions on each subject were collected and arranged in a single Act ; the outside knowledge required for the interpretation and application of particular Acts would be more easily acquired. But under existing conditions the complete effect of a short and apparently simple enactment often cannot be grasped without a careful search through textbooks and the Statute Book. The conservative character of English legislation increases the difficulty of the task. The English legal and administrative system resembles an ancient and venerable building, which has been often repaired, altered and enlarged, but has never been pulled down and rebuilt. There has been no revolutionary break with the past. When a new departure is resolved upon, it is usually made in a cautious and experimental fashion. The adoption of the experiment is made permissive in the first instance, or its application is con- fined to a limited area, to a particular trade or occupation, or to a restricted set of circumstances. The new rules are patched and altered as defects appear, the area of experiment is gradually enlarged, and it is not until the new law has been tested by adequate experience that its application is made general or compulsory ^. Until the new system has acquired a comparatively fioal form, until the difficulties raised by its introduction have subsided or been overcome, until it has been generally accepted as part of the settled law of the country, there is a natural indisposition to stir burning questions by proposing to repeal the existing enactments and fuse them into a new and comprehensive Act. And it must be ad- mitted that the task of consolidation is often postponed after these grounds for delay have ceased to operate. These ' Consider, for instance, the course of legislation with respect to public health, factories, and education, and the enactments which preceded and led up to the change in the law of evidence made by the Criminal Evidence Act, 1898 (6i & 62 Vict. c. 36). 256 LEGISLATIVE METHODS AND FORMS Ch. XI. circumstances, coupled with an indifference to style anc finish, characteristic also of English art and English litera. ture, are sufiicient to explain the disorderly condition of th( Statute Book, which is so often made a subject of reproach bj legislators and judges as well as by scientific writers on the law. But whilst the justice of their criticisms may be admitted, it must be borne in mind that the national charac- teristics which are responsible for these defects have much to do with the vitality and the efficacy of English institutions. Amend- It follows that the English legislator rarely, if ever, finds ins Igsis- lation. himself in a position to inscribe a brand-new law on a blank sheet of paper. The utmost that he can usually aim at is to remove some blemish from, or to alter or add to some provisions of, an existing law or institution ; in other words, to pass an amending Act. And the best mode of framing an amending Act, so as to be intelligible both to those who have to pass it and to those who have to observe and administer it, is often a problem of considerable difficulty. From the point of view of administration the most con- venient plan is to repeal the old law, and re-enact it with the necessary modifications. But the law to be amended is often contained in more than one Act, and experience has shown that attempts to combine consolidation with substantial amendment are rarely successful. Even where there is only one Act that need be amended, a proposal to repeal the whole Act for the purpose of making a single amendment, or two or three amendments of minor importance, is open to many objections. It gives the proposed legislation an appearance of being more important and more extensive in its scope than it really is, and the prudent legislator will usually prefer to minimize rather than magnify his proposals. It obscures, and distracts the attention of the legislature from, the imme- diate point or points in issue. It throws the whole law into the crucible, exposes to amendment, not merely the particular provisions which the introducer of the Bill desires to alter, but all other provisions of the law which appear to be in any FORM AND ARRANGEMENT OF STATUTES 257 way open to criticism, and consequently multiplies the points Ch. XI. of attack and the obstacles to progress in Committee. The proposal to repeal and re-enact, not the whole of an Act, but merely a particular section of an Act, is often open to similar objections from a parliamentary point of view. For the section may embody a principle, or may contain provisions, which the introducer of the Bill does not desire to question, but which cannot escape criticism if the whole section is proposed for repeal. In some cases also the law embodied in the new enact- ment is intended to apply only to events and transactions happening after a particular date, leaving events and transac- tions happening before that date to be governed by the old law, and in such cases, if the old law is repealed, it is often not easy to express the precise operation of the law with respect to occurrences at different dates 1. For all or some of these reasons the promoter of an amending measure usually has to content himself with altering the form or substance of existing sections, or adding sections to an existing Act. If, for any of these reasons, the method of repeal or re- enactment is not adopted, the next most convenient course, from the point of view of administration, is to express the amendments in a technical form, like notices of amendments to Bills in Parliament, or like errata or addenda in books> that is to say, in the form of directions to strike out particular words or sentences from an enactment, and to add others. This is the form frequently adopted by the Indian legislature. It has considerable advantages. It enables ' For instance, the series of Acts known as Locke King's Acts deal with, the liability of personalty of deceased person to pay the debts charged on his realty. The first Act, passed in 1854 (17 & 18 Vict. c. 113), saved all rights existing before 1855. The second, passed in 1867 (30 & 31 Vict. c. 69), amended the first, but applied only in the case of persons dying after 1867. The third, passed in 1877 (40 & 41 Vict. e. 34), applied only in the case of persons dying after 1877. If each Act had repealed its predecessor it would have been difficult to express the law which it left unaffected. 258 LEGISLATIVE METHODS AND FORMS Ch. XI. a clerk to note up, almost mechanically, the alterations in the statute law, by simply striking out or writing in the necessary words. Thanks to this method of amendment, the Legislative Department of the Government of India is able to issue periodically revised editions of the most important Indian Acts, which embody the amendments up to date, and thus, for many purposes, take the place of repealing and consolidating Acts. The substitution is not completely satisfactory, partly because it is always necessary to bear in mind the date from which the new enactments incorporated in the old law began to operate, and partly because, for this and other reasons, if a case on the amended Act comes into court, the judge or magistrate often finds it necessary to inspect the original Acts instead of relying on the reprint. But for purposes of practical administration such reprints are of great convenience. On the other hand, from the parliamentary point of view, an amending Bill drawn in the technical form adopted by the Indian legislature is open to serious objections. In the first place it is absolutely unintelligible without the text of the enactments which it is proposed to amend, and even if these objections can be removed by means of an explanatory memorandum ^, a Bill thus drawn is, as any one who has watched attempts to amend parliamentary amendments will readily understand, extremely difficult to amend, and thus presents unreasonable obstacles to legitimate discussion in Committee ^. For these reasons the technical method of amendment is hardly ever adopted in England except in the case of non-contentious measures ^. Under these circumstances, the ordinaiy mode of amending ' In India a Bill is always accompanied by a printed ' Statement of Objects and Reasons.' ' In India the details of every Bill are, as a rule, settled by a small Select Committee, and, in the case of the Governor- General's Council, the law member of Council, who is always the Chairman of the Select Committee, has a very free hand in moulding the shape of amendments. ' For instances, see below, pp. 274, 275. FORM AND ARRANGEMENT OF STATUTES 259 an Act is to state in the amending Bill the effect of the Ch- xi. amendment proposed to be made. This is the commonest mode, and for parliamentary purposes is the most convenient, because under it every member of Parliament who knows anything of the subject, learns at once the nature of the amendment proposed. And in some cases, where the amend- ment virtually overrides a large portion of the existing enactment, it is practically the only possible method ^. There are cases in which it may be possible to combine what may be called the popular and the technical mode of amendment, by stating at the beginning of a clause the substance of the amendment proposed to be made, and adding, in a separate subsection or otherwise, technical amendments, which make the requisite alterations in the language of the enactment amended^. Where the technical mode of amendment has been adopted, it has sometimes been accompanied by a direction to print the amended Act with the necessary alterations, so that a King's Printer's copy of the Act as amended may be given in evidence. This has been done in the case of the Naval Discipline Act and the Army Act ^. If this form of amend- ment should be adopted on a large scale, it would probably be necessary to appoint a Parliamentary Committee, or some similar authority, to supervise the printing of the amended Act, since questions might possibly arise as to the precise mode in which effect should be given to the directions for printing. It will have been seen that all amending legislation is Refeien- referential in the sense that it is unintelligible without jatjon^'^' reference to other enactments. But by referential legislation ^^° ^^^ •' ° narrow ' For instance, the amendments made by ss. 16-19 of the Weights and ' Measures Act, 1889 (52 & 53 Vict. c. 21), overrode a number of existing enactments, and could not have been made by means of detailed amend- ments. " See, e. g., the Naval Discipline Act, 1884 (47 & 48 Vict. c. 39, s. 2), the Friendly Societies Act, 1887 (50 & 51 Vict. c. 56, s. 7), and the Finance Act, 1897 (60 & 61 Vict. c. 24; s. 3). ^ See 47 & 48 Vict. c. 39, 48 Vict. u. 8, and belovf, p. 275. S 3 narrower 26o LEGISLATIVE METHODS AND FORMS Oh. XI. in the narrower sense is meant legislation of which the object is, not to amend an existing enactment, but to apply its provisions to a new set of circumstances ^. There are two cases in which this mode of legislation is clearly legitimate and appropriate. The first case is where the general provisions of one Act are, by later provisions of the same Act, ' adapted ■" to special areas or special circumstances. The commonest case of such adaptation is that of Acts extending not merely to England, but also to Scotland or Ireland, or both. The method usually adopted in these cases is to frame the Bill with reference to English circumstances, and then to place towards the end of the Bill a clause or clauses 'applying' or 'adapting' the provisions, with the necessary modifications, to the circum- stances of Scotland or Ireland. These adapting clauses are usually left to be settled by the draftsmen attached to the Scotch and Irish offices. Similar adaptations wiU often be required for places under an exceptional form of government, such as London. Prom the parliamentary point of view this mode of legislation presents obvious advantages by removing complications and exceptions from the main clauses, and from, the administrative point of view it is not open to the objection of necessitating reference to the contents of another Act. In some cases, however, the number and complexity of modifica- tions required to make an English Act applicable to Scotch or Irish circumstances may raise a presumption in favour of separate legislation. The second case is that of Acts which are drawn for the express purpose of being applied to other enactments. The ' The line between these two classes of legislation is often difficult to draw, as in the case of enactments which are applied, in the first instance, to a limited class of cases, but of which the scope is afterwards extended. Thus, the Metropolitan Open Spaces Act, 1881 (44 & 45 Vict. <;. 34), was intended for the regulation and preservation of disused burial grounds and other open spaces in London. Its provisions were subse- quently extended to the regulation of similar open spaces in the country (50 & 51 Vict. 0. 3a). The result is a singularly difficult complex of enactments. FORM AND ARRANGEMENT OF STATUTES 261 most conspicuous ease of such Acts is supplied by the Clauses Ch. xr. Consolidation Acts of 1845. The development of railway and joint-stock enterprises in the third and fourth decades of the nineteenth century gave rise to a vast number of private ActSj each containing provisions closely resembling, and often copied from, each other. With the view of reducing the length of these Acts and of securing greater uniformity in their provisions, Mr. Booth, when counsel to the Speaker of the House of Commons, drew a set of Acts ' for the purpose of consolidating in one Act certain provisions usually con- tained in ' the special Acts relating to the formation of companies, the taking of land, and the constiniction of railways ^. These Acts have no independent legislative force of their own, but are statutory 'common forms/ required, either by the terms of the Act itself, or by the Standing Orders of Parliament, to be ' incorporated ' in future Acts. They have been of great use in securing uniformity in private Bill legislation, and in saving the time of Parliament. But it would probably have been better if they had been enacted in the form of substantive law, with provisions for allowing their modification by special legislation in proper cases. The Summary Jurisdiction Act, 1848 (11 & i a Viet. c. 43), commonly known as Jervis^s Act, is another instance of an Act intended to supersede, and prevent the repetition of, corresponding provisions in particular Acts. The statutes of the eighteenth, and of the first half of the nineteenth, century frequently gave magistrates in petty sessions jurisdiction over minor offences, and when they did so, set out, often at con- '■ The Companieg Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 16), the Companies Clauses Consolidation (Scotland) Act, 1845 (8 & 9 Vict, c. 17), the Lands Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 18), the Lands Clauses Consolidation (Scotland) Act, 1845 (8 & 9 Vict. c. 19), the Railways Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 20), the Railways Clauses Consolidation (Scotland) Act, i8/)5 (8 & 9 Vict. c. 33). The system has been subsequently extended to the subjects of Towns Improvements, Police, Waterworks, Gasworks, Harbours, Docks and Piers, Markets and Fairs, Cemeteries, Commissioners and Electric Light- ing (6a and 63 Vict. c. 19). 262 LEGISLATIVE METHODS AND FORMS Ch. XI. siderable length, provisions as to the procedure to be observed. The Act of 1848 generahzed these provisions and embodied them in a separate code, and since that time it has been sufficient, when giving magistrates jurisdiction over such offences, to refer to the provisions of the Summary Juris- diction Acts, i.e. the Act of 1848 as subsequently amended. The Summary Jurisdiction Act, 1879 (42, & 43 Vict. c. 49, s. 51) expressly authorizes the use of simple legislative forms for indicating where the provisions of the Summary Juris- dictions Acts are to apply. The Arbitration Act, 1889 (5a & ^^ Vict. c. 49), is another general procedure Act to which reference may be made with obvious propriety. Incorporation of the Clauses Acts, reference to the Summary Jurisdiction Acts or the Arbitration Act, are methods of legislation directly contemplated when those Acts were passed. A further step in ' referential legislation ■" is taken when an enactment is applied to circumstances different from those contemplated when it was passed. For instance, the Lands Clauses Acts were framed with special reference to railway companies and other bodies seeking power to take lands under the authority of local and general Acts for commercial purposes. Bat these provisions are applicable, with modifica- tions, to cases where a local authority takes land for public purposes under powers conferred by public general Acts, and they have been so applied, both by the Public Health Act, 1875 (38 & 39 Vict. c. 55, s. 176), and by other Acts^. Probably this method of legislation was the most convenient, not only from the parliamentary but from the administrative point of view. More doubtful is the propriety of applying the provisions of the Public Health Acts with respect to the taking of land to cases where land is to be taken by a local authority for purposes other than sanitary. This mode of legislation involves a double reference, first to the Public Health Acts, and then to the Lands Clauses Acts. On the ' See below, p. 317. FORM AND ARRANGEMENT OF STATUTES 263 other hand it must be remembered that the oflGicers of the Ch. XI. local authorities who haye to work these provisions are familiar with the procedure under the Public Health Acts, so that the double reference does not in practice involve much diflBculty. For similar reasons it is often convenient to apply by reference the provisions of the Public Health Acts with respect to the making and publication of by-laws, and this applica- tion does not involve a double reference. The case in which the method of referential legislation has been most extensively employed, and in which its employment has been most severely criticized, is probably that of the recent Local Government Acts. The problem with which the Local Government Act, 1888, had to deal was one of exceptional complexity and di£S.culty. The main objects aimed at were : first, to set up new elective bodies for counties, and secondly, to transfer to those bodies certain administrative functions exercised by other authorities. The transfer necessarily involved references to the several enact- ments under which the duties and powers to be transferred were exercised, and probably could not have been effected in any other manner. As to the constitution and election of these new bodies, the leading notion was to make them resemble as nearly as possible the councils of municipal boroughs. The law relating to the constitution and election of municipal councils had recently been reduced into a fairly compact and intelligible form by the passing of the Municipal Corporations Act, 1882 — a great measure of consolidation. A large number of persons throughout the country were familiar both with the contents and with the practical working of this law. Under these circumstances it was enacted that the municipal law should apply to county councils subject to certain modifications. This method of legislation possessed considerable advantages, both from the parliamentary and from the administrative point of view. It presented to Parliament a single issue, namely, whether the 264 LEGISLATIVE METHODS AND FORMS Ch. XI. municipal system should be adopted or not. If the municipal provisions had been repeated in the new Bill, they would have run to an inordinate length, every detail of them would have been open to discussion and amendment, and the result of the discussion would probably have been to introduce a large amount of variation, both in language and in substance, between the law applicable to borough councils and the law applicable to county councils, and thus to have destroyed that uniformity of law and procedure which so materially facilitates administration. Unfortunately the Municipal Corporations Act, 1882, is not, and could not at the time it was passed have been made, complete in itself. It involves a reference to other Acts, such as the Ballot Act, 187a ', which regulates the procedure at municipal elections. Therefore the applica- tion of the Municipal Corporations Act involved a further reference to other Acts. Moreover, the application of the new law to London, which had an exceptional administrative and judicial system of its own, involved serious and compli- cated modifications of the enactments to be applied. Similar considerations to those which influenced the framing of the Local Government Act, 1888, influenced also the framing of the Local Government Act, 1894, which set up parish and district councils, of the Local Government (Ireland) Act, 1898, which extended the English system to Ireland, and of the London Government Act, 1899, which substituted councils for vestries and district boards in London. It cannot be denied that in all these cases the method of legislation by reference has been strained beyond the limits which would be justifiable under ordinary circumstances. But probably every one who was concerned with the passing of those Acts would hold that no other method could have been adopted with any prospect of success. ' The Ballot Act, 1872, ia still, aftei- the lapse of more than a ctuartei of a century, a temporary Act, annually renewed by the Expiring Laws Continuance Act. But it could not be repealed or suspended without destroying a vast body of law which is dependent on its provisions. It is surely time that the Act should be made permanent. FORM AND ARRANGEMENT OF STATUTES 265 In some cases an attempt has been made to diminish the Ch. XI. inconveniences of referential legislation by scheduling to the Bill such provisions of any other Act as are incorporated by reference ^. This method^ apart from its adding to the length of the Act, is open to the objection that an amendment of the enactments applied may not extend to those enactments, so far as they are incorporated in the Act, and thus, the uniformity of procedure, which is an object of incorporation, is destroyed. If, on the other hand, the amendment does so extend, the schedule becomes misleading 2. Moreover, when the amendments to be applied have been modified by sub- sequent legislation, it may be practically impossible to set them out in a schedule. Where, as often happens, the enactments applied do not precisely fit the ease to which they are applied, different modes of making the necessary modifications have been adopted. The best way, if it is practicable, is to set out the specific modifications in the Act. In some cases a general declaration that the enactments are 'to apply with the necessary modifications ' or 'as if they were in terms made applicable to this Act' has been considered sufficient. In other cases it has been found necessary to delegate to a Government Department the power of making by rules the requisite modifications and adaptations^. ' For examples, see the Housing of the Working Classes Act, 1890 (S3 & 54 Vict. c. 70) ; the Public Health (London) Act, 1891 (54 & 55 Vict. u. 76) ; the Seal Fishery Acts, 1891, 1893, and 1894 (54 & 55 Vict, c. 19 ; 56 & 57 Vict. c. 23 ; 57 & 58 Vict. c. 2). ^ Thus the sections of the Public Health Acts relating to London which were scheduled to the Housing of the Working Classes Act, i8go, were repealed and re-enacted with modifications by the Public Health (London) Act, 1891, and that Act contained a provision (s. 142(7)), that where any such provision was referred to in any other Act that Act should be read as if the corresponding provisions of the Act of 1891 were referred to instead of the repealed provisions. Consequently the schedule to the Act of 1890 is apt to mislead. ^ See the Elementary Education Act, 1870 (33 & 34 Viet. c. 75, s. 37), the Local Government Act, 1894 (56 & 57 Vict. c. 70, ». 48), the Regis- tration (Ireland) Act, i8g8 (61 & 62 Vict. o. 2), the Local Government (Ireland) Act, 1898 (61 & 62 Vict. c. 37, ss. 98, 104, 105). The powers 266 LEGISLATIVE METHODS AND FORMS Ch. XI. It will have been seen that legislation by reference may assume different forms, and that it is difficult to lay down a hard-and-fast rule as to the cases in which and the extent to which the different forms may with propriety be employed. What the draftsman has to aim at in each case is as much simplicity and clearness as is consistent with parliamentary exigencies. And in justice to him it must be borne in mind that referential legislation rarely, if ever, saves him trouble. It would in most cases be the easiest course for him to set out the enactments to be adopted with such minor modifications as may be required for applying them to the circumstances contemplated by the Bill, instead of referring to those enact- ments and formulating the modifications which their appli- cation and incorporation require. The framing of such modifications requires extreme care, and is often a matter of great difficulty. Under the pressure of superior authority the draftsman labours to be brief. It is no marvel that he is sometimes obscure. The conclusion seems to be that the method of legislation by reference is in many cases unavoidable, but that where it has been adopted, the proper course is to throw the law, as soon as practicable, into a simpler and more intelligible form by passing a measure of consolidation. Schedules, The increasing complexity of modern administration, and and ' the increasing difficulty of passing complicated measures Forms. through the ordeal of parliamentary discussion, have led to a more extensive use of the machinery of schedules, and a more extensive exercise of the power of delegating legislative powers to executive authorities. The tendency of modern parliamentary legislation is to place in the body of an Act merely a few broad general rules or statements of principle, and to relegate all details either to schedules or to statutory rules ^. This tendency is liable to abuse, and in some recent given by ss. 104 and 105 of the Local Government (Ireland) Act are un- usually wide. ' See Ch. III. FORM AND ARRANGEMENT OF STATUTES 267 Acts, e.g., the Workmen's Compensation Act, 1897, the Ch. XI. proper line of division between matter which ought to be dealt with in the body of an Act and matter which may with propriety be relegated to a schedule, appears to have been, owing doubtless to parliamentary exigencies, imperfectly observed. But, if due limits are observed, the graduation and distribution of enactments which may be effected by means of schedules and statutory rules tends to facilitate both discussion in Parliament and subsequent administration. It facilitates discussion because it concentrates attention on the main question, and prevents waste of time on minor and subordinate issues. It facilitates administration, because every administrative change is in the nature of an experiment ; the precise mode in which it will work out, the exact means by which its objects can best be effected, cannot be determined with certainty beforehand, and consequently the machinery must be made elastic. This elasticity can best be given by allowing the details to be worked out on the general lines laid down by the supreme legislature, either by statutory rules, or by official practice subject to the check of public opinion and questions in Parliament. As to the precise mode in which the subject-matter of a statute should be distributed between the body of an Act and its schedules, as to the amount of discretion which can safely and properly be left to be exercised either by subordinate legislation or by executive action, no definite rules can be laid down. For the settlement of these questions in each parti- cular case there is need of much judgement, experience, and knowledge of the traditions and ways of Parliament. The minister or other member in charge of a Bill will have to feel his way, and be guided by the temper of the House or the Committee, at the particular moment, or with reference to the particular subject-matter in hand. An attempt to hide away controversial matter in a schedule is usually found to be bad policy. It must be remembered that a schedule is as much part of 268 LEGISLATIVE METHODS AND FORMS Ch. XI. an Act as the sections by which it is preceded ^ and in the absence of special provisions can only be altered in like manner. The plan has sometimes been adopted of making a schedule alterable by Order in Council or by statutory rules. But this plan is open to objection^ both on principle, because what Parliament has laid down Parhament alone should alter, and on grounds of practical convenience, because a repealing order or rule is more liable to be overlooked, and is less easy to find, than a repealing Act, and the retention of a schedule in the Statute Book after it has been repealed or superseded by some subordinate authority is apt to mislead. At a time when Acts of Parliament were much more minute and detailed in their provisions it was not unusual to schedule to an Act the forms to be observed ia its administra- tion. But this practice is rarely adopted now. Experience has shown that serious inconvenience may be caused by stereotyping details of this kind, and that they had better be left to be 'prescribed' by rules or settled by practice. But a draftsman will often find it useful to test the adequacy of his clauses and rules by considering what forms wiU be required for carrying them into effect. The limits within which, and conditions under which, legislative powers may and should be delegated to executive authorities, by means of a power to make statutory rules, have been considered in Chapter Til. The draftsman, in framing a clause which gives power to make rules, should consider, in consultation, if possible, with the authority which will have to exercise this power, what are the principal matters for which rules will be required, and frame his clause accordingly. It is not safe to trust to a general power of making rules ' for carrying into effect the provisions of this Act,^ though general words to that effect should be added, in order to cover any matters which may have been over- looked. Title. The oflScers of the House are responsible for seeing that ' See Attorney-General v. Lamplugh (1878), 3 Ex. D. 229. FORM AND ARRANGEMENT OF STATUTES 269 the provisions of a Bill are all comprised within the terms of Ch. xr. the title of the Bill. But an objection that they are not so comprised, may be taken by any member, and if the objection is allowed by the Speaker, the order for second reading must be discharged. As to what a title will include, see, among other things, the ruling of the Speaker, May 3, 1 894, on the effect of the words ' and for purposes consequential thereon.' In framing the title care must be taken to make it wide enough to cover all the provisions of the Bill, and at the same time not so wide as to allow of the proposal of amend- ments which are irrelevant to the real substance of the Bill. For although the fact that an amendment is within the title of the Bill does not prevent the Chairman in Committee from ruling the amendment out of order, it is less easy to propose amendments which are irrelevant or beyond the scope of the Bill if they are clearly excluded by the title. The title of an Act of Parliament now forms part of the Act, and since 1854 has been capable of amendment by the House. Consequently it may, like the preamble, be referred to as throwing light on the construction of the Act ^. As a rule a preamble is unnecessary in a public Bill. Preamble. Where the object is merely to describe briefly the reason for and the intended effect of the proposed legislation, that object can often be better obtained by prefixing a short explanatory memorandum to the Bill, Such a memorandum should state concisely the existing law, the reasons for amendment, and the effect of the proposed amendments. A local Bill must always have a preamble, the recitals in which must be proved. And when a public Bill resembles in character a local Bill, a preamble will usually be necessary. Where, for instance, an enactment deals with a special set of facts, it will usually be convenient to state those facts in a preamble^. ^ See Powell v. Kempton Park Racecourse Co. [1897], 2 Q. B. 289 ; Fielding V. Morley Corporation [1899], i Ch. i. " See, B. g., the London Coal Duties Abolition Act, 1889 (52 & 53 Vict, c. 17) and the Canada (Ontario Boundary) Act, 1889 (52 & 53 Vict. c. 28). 270 LEGISLATIVE METHODS AND FORMS Ch. XI. Formal and saving clauses. A formal preamble is sometimes conveuieat for the purpose of introducing and explaining a phrase which is to be used in the course of the Billj especially if the modern practice is followed of placing the definition clause near the end of the Bill, e.g., ' Whereas it is expedient to amend the Act (hereinafter referred to as the principal Act).' A Money Bill, i.e. a Bill of which the main object is to grant money, and which must therefore originate in a Com- mittee of the House of Commons, has a special form of preamble, beginning 'Most Gracious Sovereign, We, Your Majesty^s most dutiful and loyal subjects, &c.^ ' The formal and saving clauses of a Bill are, according to recent practice, usually placed at the end of a Bill. There are several advantages in this course. The House, when called upon to consider the Bill in Committee, proceeds at once to the substantive proposals of the measure, instead of having to pass or postpone formalities. The saving clauses and definitions cannot be properly settled until the substantive provisions have been settled, and therefore, even if they are placed at the beginning of the Bill, their discussion usually has to be postponed until the other clauses are passed. And if some of the formal clauses stand more conveniently at the end of the Bill, the others had better be placed in their neighbourhood. Under Standing Order 45 of the House of Commons the precise duration of every temporary law must be expressed in a distinct clause at the end of the Bill. ' See, B. g., 53 & 54 Vict. c. 8. CHAPTEE XII STATUTORY FORMS Deaftsmen of Acts of Parliament cannot, like conveyancers, Ch. XII. use common forms. If a draftsman inserts a clause or a provision in his Bill merely because lie has found it in some other Act and thinks it may be useful, he will certainly come to trouble. On the other hand Parliament has great respect for precedents, and the argument that a proposed provision follows the Hnes of an enactment which has been applied on a previous occasion to similar circumstances will always have great parliamentary weight. It is therefore as well for the draftsman to know what forms have been employed in circumstances which are likely to recur. But the forms printed in this chapter are mere specimens of forms which happen to have been adopted. They are incomplete, they are capable of improvement, they must not be followed blindly, and their applicability to each case must be carefully considered. The object of the notes is to supply information on points which have to be borne in mind in framing public general Acts of Parliament. They are intended to put draftsmen on the track of things they may want to know, and should be carefully verified by those who use them. In such a mass of minute detail it is almost impossible to avoid small slips and inaccuracies. Title. Vorrm. [Draft of] a Bill intituled an Act to amend, &c. This is the form of a House of Lords Bill. 272 LEGISLATIVE METHODS AND FORMS Ch. XII. [Draft of] a Bill to amend, &c. This is the form of a, House of Commons Bill. When a Bill is introduced ' in dummy,' i. «. before it is finally printed, there is handed to the clerk at the table a piece of paper containing the long title of the Bill and the description by which the Bill is to appear in the Notices and Votes. This description, which by the members and officers of the House is commonly called the short title, should be sufficiently distinctive, and should be identical with the italic heading at the top of each page of the Bill, but need not correspond exactly either to the long or to the short title enacted in the Bill. Enacting Formula. Forms. Be it [therefore] enacted by the King's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parlia- ment assembled, and by the authority of the same, as follows; The word ' therefore ' is only inserted where there is a preamble. The existing formula of enactment was gradually developed from a form which implied that legislative authority was vested in the King alone. The reference to the ' authority ' of the Lords and Commons is said to have appeared first in an Act of 1433 (11 Hen. VI), and became general at the beginning of the reign of Henry VII. [See Stubbs, Oonst. Hist, ii. 591, Anson, Law and Custom of the Constitution, i. 214-317.] Formal Clauses. Forms. Short . This Act may be cited as the Act, 1901, [and the principal Act and this Act may be cited together as the Acts 18 and 19 ] [o»" and may be cited with the Acts]. According to modern practice the House of Lords requires eveiy Act of Parliament to have, for facility of reference, a short title in addition to its formal long title. When a Bill has been intro- duced to amend existing Acts, the opportunity has often been taken to give short titles to the Acts amended. But now by the Short Titles Act, 1896 (59 & 60 Vict. c. 14), which super- sedes and supplements the previous Act of 1892 (55 & 56 Vict. 0. 10), short titles have been given to all the public general Acts STATUTORY FORMS 273 passed since the date of the union with Scotland (as well as to Oh. XI I. some earlier Acts), which had not been previously giyen short titles. The Act also gives collective titles to several groups of Acts, and declares that if a future Act is authorized to be cited with any of these groups, the group shall be construed as including it. In order to obtain the benefit of this provision it will often he convenient to add to the short title the words ' and may be cited vrith the Acts.' The short titles given by subsequent Acts, including the Short Titles Act, are noted in the second edition of the Revised Statutes, beginning at the fourth volume, and references to most of these titles will be found in the Index to the Statutes. If an Act has not a short title, it ought, strictly speaking, to be referred to as ' an Act of the session of the and years of [His present Majesty], chapter , intituled An Act, &c.' Where the whole of the session was in the same regnal year the words ' the session of ' can be omitted. Where an Act of a Session extending over two regnal years receives the royal assent before the end of the first regnal year it is often cited by reference to that year only (e. g., 41 Vict. c. 14), and is necessarily so cited until the second regnal year begins. But after that date it seems more correct to refer to it as an Act of the Session held in both regnal years. The omission of the title in the citation is authorized by s. 35 of the Interpretation Act, 1889 (52 & 53 Vict. c. 63), but may involve inconvenient consequences. There is then no clue to the subject-matter of the Act, and there is much risk of error in the event of the number of the chapter being misprinted. Where, in the body of an Act, another Act is referred to by its short title, a reference to the session and chapter should be inserted in the mai-gin. Otherwise it may be necessary to consult the Index to the Statutes of the year in order to find out the chapter referred to. Short titles should be short. The following is a, model to be avoided : 'The Fisheries (Oyster, Crab, and Lobster) Act (1877) Amendment Act, 1884.' . This Act shall [so far as is consistent with the tenor Construe- thereof] be construed as one with the [principal] Act. Act. The object of this clause is — I. To secure that expressions having a particular meaning in the amended Act shall have the same meaning in the amend- ing Act : :a. To secure that such expressions as ' this Act ' when used in the amended Act shall be construed as including the amend- ing Act. Where an Act is to be construed as one with another Act, care must be taken that the definitions in the one Act are 274 LEGISLATIVE METHODS AND FORMS Ch. XII. consistent with the definitions in the other, and, generally, that the language of the two Acts harmonizes. The provision as to construction should not be inserted without careful con- sideration of its effect. The courts usually construe Acts relating to the same subject-matter as if they were one Act ', with the necessary modifications, and this provision makes it difficult for the courts to import the necessary modifications. The 'short title' and 'construction' clauses are often com- bined, thus ' This Act may be cited as the Act, i8 , and [may be cited and] shall be construed as one with the Acts.' The addition of the words ' may be cited and ' will attract the operation of s. 2 (i) of the Short Titles Act, i8g6. Provision . — (A.) (i) Every enactment and word of this Act which bodyS'g is expressed to be substituted for or added to any portion of amending ^}^q principal Act, shall form part of the principal Act, in the principal place by this Act assigned to it ; and the principal Act, and all Acts, including this Act, which refer thereto, shall, after the commencement of and subject to the savings contained in this Act, be construed as if that enactment or word had been originally enacted in the principal Act in the place so assigned, and (where it is substituted for another enactment or word) had been so enacted in lieu of that enactment or word ; and the expression ' this Act ' as used in the principal Act [or this Act] shall be construed accordingly. (a) A copy of the principal Act, with every such [sub- stituted and added] enactment and word inserted in the place so assigned, and with the omission of the parts expressly repealed by this [or any other] Act, and with the sections and sub-sections renumbered in such manner as may be necessary in order to bring the same into conformity with this Act [or numbered in manner directed by this Act], shall be prepared and certified by the Clerk of the Parliaments, and deposited with the Rolls of Parliament, and the King's printer of Acts of Parliament shall print in accordance with the copy so certified all copies of the principal Act which are printed after the commencement of the Act. (B.) — (i) The principal Act shall, as from the passing of ' See Hardcastle on Statutory Law, second edition, pp. 147 sqq. STATUTORY FORMS 275 this Act, take effect subject to the additions, omissions, and Ch. XII. substitutions required by this Act. (2) Every [any] copy of the principal Act printed after the passing of this Act, by authority of His Majesty, shall [may] be printed with the additions, omissions, and substitu- tions required by this Act. Form A. is suggested by s. 7 of the Naval Discipline Act, 1884 (47 & 48 Vict. c. 39), and Form B. by 9. 18 of the Friendly Societies Act, 1887 (50 & 51 Vict. c. 56), and 3. 27 of the Patents, Designs, and Trade Marias Act, 1888 (51 & 52 Vict. c. 50). These forms should not he used except in special cases, and are only applicable where the amending Act is drawn in an extremely technical- form so as to make its language fit exactly into the Act which it amends. It is dangerous to adopt such a form ■where the amending Bill is likely to be the subject of discussion and amendment in Parliament. For similar forms, see s. 10 of the Titles to Land Consolidation (Scotland) Amendment Act, 1869 (32 & 33 Vict. u. 116); s. I of the Pensions Commutation Act, 1870 (33 & 34 Vict. c. loi) ; s. 14 of the Customs and Inland Revenue Act, 1879 (42 & 43 Vict. 0. 21) ; and s. 8 of the Army (Annual) Act, 1885 (48 Vict. c. 8). . (A.) This Act shall not extend to Scotland or Ireland. Extent of (B.) This Act shall extend to the Isle of Man and to the Channel Islands, and the Royal Courts of the Channel Islands shall register this Act accordingly. (C.) This Act shall extend to the whole of His Majesty's dominions. Where the local operation of an Act is not specially limited or extended, either by express words or by implication, it extends to the whole of the United Kingdom, but not to any place outside the United Kingdom. (See B. v. Jameson [1896], 2 Q. B.D., p. 430.) The Channel Islands and the Isle of Man do not form part of the United Kingdom, but are, in Acts passed since January i, i8go, included in the expression 'British Islands' (Interpretation Act, 1889, s. 18 (i)). By virtue of 20 Geo. II. c. 42, ' England,' in an Act of Parliament, includes ' the dominion of Wales and the town of Berwick-upon-Tweed.' But many Acts are expressly declared to extend to Wales as well as England, and it is never safe to use the expression 'This Act shall extend [or apply] to England only.' Berwick-upon-Tweed is now part of the county of Northumberland. Eegistration in the Koyal Courts is the proper mode of promulgating an Act affecting the Channel Islands. See In re States of Jersey (1853), 9 Moore P. C. 185 ; 8 State Trials N. S., p. 285. Parliament has power to make laws for any part of the King's dominions, but, as a, rule, does not legislate for matters within the powers of a local legislature. T 2 276 LEGISLATIVE METHODS AND FORMS Ch. XII. Parliament can legislate for offences committed by British subjects ■ outside the King's dominions, and has done so in such cases as offences at sea, treason, murder and manslaughter, forgery and perjury with reference to proceedings in British courts, bigamy, slave trade offences, and offences under the Explosive Substances Act, 1883. But, as the criminal jurisdiction of British courts is primarily territorial, it may be necessary in such cases to confer jurisdiction in express terms. In some cases it is necessary to pass an Act empowering a Colonial legislature to legislate, either for the purpose of enabling them to over- rule an Imperial Act, or for the purpose of giving the Colonial law effect outside the territorial limits of the Colony, or for both these purposes. For instances of this, see the Merchant Shipping (Colonial) Act, 1869 (32 & 33 Viot. c. II, s. 4), now superseded by the Merchant Shipping Act, 1894, the Colonial Prisoners' Eemoval Act, 1869 (32 & 33 Tict. c. 10), the Extradition Act, 1870 (33 & 34 Vict. c. 52), the Fugitive Offenders Act, 1881 (44 & 45 Vict. c. 69, s. 32), and the Colonial Prisoners' Eemoval Act, 1884 (47 & 48 Vict. c. 31). Applica- tion of Act by Order in Council (Colo- nies). . His Majesty the King may, on being satisfied that the legislature of any British possession has [ ], direct by Order in Council that this Act shall, subject to any exceptions and modifications specified in the Order, apply to that possession, and thereupon, while the Order is in force, this Act shall apply accordingly. See Patents, Designs, and Trade Marks Act, 1883 (46 & 47 Vict. c. 57, s. 104), Medical Act, i886 (49 & 50 Viet. c. 48, s. 17), Colonial Probates Act, 1892 (55 & 56 Vict. c. 6, s. i), Colonial Solicitors Act, 1900 (63 & 64 Vict. c. 14, d. 2) ; and for the converse, see International Copyright Act, 1886 (49 & 50 Vict. c. 33, s. 9). The object of these enactments is to give effect to arrangements entered into with the Colonies. For power to substitute a Colonial enactment for the corre- sponding provision of an Imperial Act see ss. 444, 736 of the Merchant Shipping Act, 1894 (57 & 58 Vict. c. 60); and for power to accept compliance with a requirement of foreign law as equivalent to compliance with a requirement of English law, see s, 445 of the same Act. . Where it appears to His Majesty in Council that the legislature of part of a British possession has power to make the provision requisite for bringing this Act into operation in that part, it shall be lawful for His Majesty, by Order in Council, to direct that this Act shall apply to that part as if it were a separate British possession, and thereupon, while the Order is in force, this Act shall apply accordingly. STATUTORY FORMS 277 Regard being had to the definition of British possession in s. 18 of the Ch. XII. Interpretation Act, 1889, this clause may sometimes be necessary for India, Canada, or Australia. See Colonial Probates Act, 1892 (55 & 56 Viet. e. 6, a. 4). For a slightly different form see Colonial Solicitors Act, 1900 (63 & 64 Vict. o. 14, o. 5). . — (i) Where His Majesty the King has made a con- Applica- vention with a foreign State respecting Act by Order in Council it shall be lawful for His Majesty in Council to order that (Foreign this Act shall, and this Act shall accordingly, subject to any tries). conditions, exceptions, and qualifications contained in the Order, apply, during the continuance of the Order, as regards that foreign State. (a) The Order shall recite or embody the terms of the con- vention, and may be varied or revoked by Order in Council, but shall not continue in force for any longer period than the convention. . An Order in Council may, for the purpose of a eon- Applica- vention with a foreign State, apply this Act, subject to any j^^^ ^^^ exceptions or modifications not inconsistent with the pro- British . . . posses- visions of this Act, to any British possession, and this Act sions. when so applied shall, subject to those exceptions and modifi- cations, and subject as in this section mentioned, have effect as if it were re-enacted with the substitution of that British possession for the United Kingdom. Provided that before it is applied to any British possession named in the Schedule to this Act the Government of that possession shall have adhered to the convention. See the Mail Ships Act, 1891 (54 & 55 Vict. u. 31). The British posses- sions scheduled to the Act are the self-goTerning colonies. See also the Extradition Act, 1870 (33 & 34 Viet. c. 5a, ss. 17, 18). . (A.) — This Act shall [except as in this Act otherwise Com- specially provided] come into operation on the day ^ent of of . -^^^- When the commencement of an Act is not directed to be from a specific time it comes into operation on the day on which it receives the Royal assent (33 Geo. III. c. 13). The rule before 278 LEGISLATIVE METHODS AND FORMS y^ XII, 1793 ■n'aa that every Act, not expressing the contrary, was to be IL. ' deemed to come into operation as from the first day of the session in which it was passed, because by a fiction of law the whole session was considered as one day. Under s. 36 of the Interpretation Act, 1889 (52 & 53 Tict. c. 63), when an Act passed after January i, 1890, is expressed to come into operation on a particular day, it is to be construed as coming into operation immediately on the expiration of the previous day. Under the same section, the expression ' commencement,' when used with reference to an Act, is to mean the time at which the Act comes into operation. As to the exercise of statutory powers during the interval between the passing and the commencement of an Act, see s. 37 of the same Act. . (B.) This Act shall come into force in the United Kingdom immediately on the passing thereof, and shall be proclaimed in every British possession by the governor thereof as soon as may be after he receives notice of this Act, and shall come into operation in that British possession on the day succeeding the proclamation, or on such later day as may be therein specified. See the Foreign Enlistment Act, 1870 (33 & 34 Vict. c. 90, s. 3). . (C.) This Act shall come into operation on such day as may be fixed by a notice in that behalf published in the London Gazette. See the Sea Fisheries Act, 1883 (46 & 47 Vict. c. 22, s. 29). For a special commencement clause, see the Army (Annual) Act of each year. Appoint- [Subject as in this Act mentioned] the appointed day for ed day. ^^^ purposes of this Act shall [in each county] be [ihe first day of Ajoril next after the passing thereof, or] such [other] day, [not less [more] than months earlier or later] as the [Local Government Board] may appoint either generally or vsrith reference to any particular provision of this Act, and different days may be appointed for different purposes and different provisions of this Act, whether contained in the same section or in different sections, or for different counties. See Local Government Act, 1888 (51 & 52 Vict. c. 41, s. 109), Local Government Act, 1894 (56 & 57 Vict. u. 73, h. 84), Local Government STATUTORY FORMS 279 (Ireland) Act, 1898 (61 & 6a Vict. u. 37, s. 124), and London Govern- Ch. XI I. ment Act, 1899 (62 & 63 Vict. c. 14, s. 33). The adoption of some such form as this will often be Convenient where diffei'ent provisions of an Act are to come into operation at different times, and consequently it is not practicable to select any single date for the commencement of the Act. . This Act shall continue in force until the thirty-first Duration day of December nineteen himdred and , and no longer. Where a temporary Act is passed it should usually be made to expire at the end of a calendar year. It will then, if renewal is re- quired, fit easily into the framework of the annual Expiring Laws Continuance Act. Under Standing Order XLV of the House of Commons, the precise duration of every temporary law must be expressed in a distinct clause at the end of the Bill. See however the Agricultural Rates Act, 1896 (59 & 60 Vict. c. 16), the duration of which was limited during its passage through the House. . The Acts mentioned in the schedule to this Repeal of Act are hereby repealed to the extent specified in the third ments in column of that schedule. schedule. [Provided that — (i) This repeal shall not affect the validity of any Order in Council, rule, by-law, warrant, licence, certificate, or document made, granted, or issued, or of any appointment made under any enactment hereby repealed ; and (3) Any instrument issued under any previous Act and referring to any Act or enactment hereby repealed shall be construed to refer to this Act, or to the corresponding enactment in this Act ; and (3) Where any enactment hereby repealed extends beyond England and Wales the repeal thereof shall not extend beyond England and Wales.] It is always desirable to repeal specifically, by a general clause towards the end of the Bill, those enactments which are superseded or virtually repealed by the Bill. As to how far general provisions will operate to repeal specific or local enact- ments, see Ashton-imder-Lyne Corporation v. Pugh [1898], i Q. B. 45, An enactment should not be included in the schedule of repeals 28o LEGISLATIVE METHODS AND FORMS Ch. XII. unless its repeal is consequential on something in the body of the Bill. If it is proposed to repeal an enactment without putting anything in its place, the repeal should be express and specific in the body of the Bill. If this rule were not observed, every repeal schedule would have to be carefully scrutinized in the House for the purpose of seeing whether some important change of the law was not lurking in its contents. The rule does not apply to Consolidation Bills, the object of which often is to repeal and expurgate obsolete enactments as well as to reproduce living law. But where it is proposed by a Consolida- tion Bill to treat an enactment as obsolete and repeal it accord- ingly without reproduction, the reasons for so treating it should be clearly stated in the memorandum or notes accompanying the Bill. For the ordinary form of a Repeal Schedule see Part II of Appendix I to this chapter. The ordinary savings by which repealing clauses were formerly qualified are now made unnecessary by s. 38 of the Interpreta- tion Act, 1889 (52 & 53 Vict. c. 63). More extensive savings will he found in the Statute Law Revision Acts, but these are so wide that they can hardly be treated as precedents. It may, however, sometimes be necessary to prevent the revival- of any jurisdiction or other right, and it will more often be useful to save the effect of documents issued, appointments made, &c., under a repealed enactment. And where it is proposed to repeal an enactment under which money has been borrowed, it is desirable to insert an express saving for securities granted or issued and still outstanding. Sub-sections (2) and (3) of the clause above are only appropriate to Consolidation Bills, and the necessity for them must in each case be carefully considered. Repeal of . As from the date at which the first rules made under ments on this Act come into operation the enactments specified in the coming Schedule to this Act shall be repealed to the extent mentioned into in that schedule. operation. See 61 & 62 Vict. c. 41, s. 15 (2) (Prison Act, 1898). This is an illustration of a repeal which is to take effect on the coming into force of rules intended to supersede existing statutory provisions. Where this form is used, care must be taken that the rules made supersede all the enactments in the schedule. Power to . The Acts mentioned in the schedule to this Act may va?y*Acts ^^ revoked or varied by His Majesty by Order in Council. in schedule. See Foreign Jurisdiction Act, 1890 (53 & 54 Vict. c. 37, s. 17). This is a strong power which would not often be given. statutory forms 281 Definitions. Explanatory Note. Most of the definitions in common use before 1889 have now heen Ch. XII. generalized and superseded by the Interpretation Act, 1889, which is printed as Appendix II to this chapter. Special definitions should be sparingly used, and only for the purpose of avoiding tedious repetitions, or of explaining terms which would be ambiguous without them. A definition is a very dangerous tool to use, especially if it gives a word a non-natural sense, i.e. makes it include something which is not included in its ordinai-y acceptation. Indeed, a word should never be defined in a non-natural sense. When a horse is defined to include a cow, the meaning really is that the provisions of the Act, or some of them, are to apply to a cow in like manner as they apply to a horse, and this should be so expressed. Nor should a, substantive enactment be disguised under the form of a definition. Where the expression defined occurs only in a single section, the definition should, as a rule, be in that section. Definitions of expressions occurring in more than one section should be grouped in a single section. It should be made clear whether the definition is intended to be explanatory, restrictive, or extensive. The expression ' shall mean ' is explanatory and prima facie restrictive. The expression ' shall include ' is extensive (see Corporation of Portsmouth v. Smith, L. R. 13 Q. B. 184; Pound V. Plumstead Board of Works, L. R. 7 Q. B. 194). Therefore the combination ' shall mean and include,' though not uncommon, should be avoided, as it raises a doubt whether the definition is intended to be restrictive or extensive. Definition sections should, as a rule, be placed towards the end of a Bill. But this rule only applies to what may be called subsidiaiy definitions. A substantial definition, which defines the scope and subject-matter of a measure should, as a rule, come at the beginning. An alphabetical list of definitions in public Acts since 1830 has been printed for the Parliamentary Counsel's office. Stroud's Judicial Dictionary contains a useful list of expressions which have been judicially inter- preted. Central Authorities. Preliminary Note. It is often necessary to specify in an Act the central and local authorities by which it is to be administered. The principal central authorities in England are — (i) The Lord Chancellor (see Interp. Act, s. 12 (i)) ; (2) The Treasury (see Interp. Act, s. 12 (2) ) ; (3) The five principal Secretaries of State, Home, Foreign, War, Colonies, and India. 282 LEGISLATIVE METHODS AND FORMS Ch. XII. The office of Secretary of State is a unit, though there are five officers. Hence any Secretary of State is capable of performing the functions of the Secretary of State, and consequently it is usual and proper to confer statutory powers in general terms on 'a Secretary of State' or 'the Secretary of State.' {See Interp. Act, s. 12 (3).) But in matters relating to India there are certain functions which ought to be exercised by the Secretary of State in Council of India as such {see 21 & sa Viet. u. 106, s. 22, &c.). (4) The Admiralty (see Interp. Act, s. 12 (4)) ; (5) The Privy Council (see Interp. Act, s. 12 (5)) ; (6) The Board of Education (62 & 63 Vict. c. 33, s. i) superseding the Education Department {see Interp. Act, b, 12 (6)); (7) The Board of Trade (see Interp. Act, s. 12 (8) ) ; (8) The Local Government Board (see 34 & 35 Vict. c. 70) ) ; (9) The Board of Agriculture {seo 52 & 53 Vict. c. 30)) ; (10) The Postmaster-General (see Interp. Act, s. 12 (11)) ; (11) The Commissioners of Woods (see Interp. Act, s. 12 (12)) ; (12) The Commissioners of Works (see Interp. Act, s. 12 (13)) ; (13) The .Charity Commissioners (see Interp. Act, s. 12 (14)) ; (14) The Ecclesiastical Commissioners (see Interp. Act, s. 12 (15)) ; . (15) The National Debt Commissioners (see Interp. Act, s. 12 (17)). It is sometimes necessary to create a new central department, such as the Local Government Board (34 y 35 Vict. c. 70), the Board of Agri- culture (52 & 53 Vict. c. 30), or the Board of Education (62 & 63 Vict. c. 33). It is more often necessary to impose additional duties on existing departments, and for that purpose to increase their staff. In each case it may be necessary to make statutory provision as to the duties and staff of the department, and as to their expenses and receipts. The staff of the department will usually hold during pleasure. It is most unusual to make a new office tenable during good behaviour, unless the duties attached to it are of a judicial character (as to judicial tenure of office see 38 & 39 Vict. c. 77, s. 5). The permanent staff will be part of the permanent Civil Service of the Crown, but it will usually be con- venient to take a power for employing persons temporarily as well as for making permanent appointments. By 50 & 51 Vict. u. 13, s. 8, the expressions ' permanent civil service of the State, of Her Majesty, and of the Crown,' are explained as being synonymous. Under s. 17 of the Superannuation Act, 1859 (22 Vict. c. 26), a person is not to be deemed, for the purpose of a pension, to have served in the permanent civil service of the State unless he — (a) holds his appointment directly from the Crown ; or (&) has been admitted into the civil service with a certificate from the Civil Service Commissioners. The number of the staff and their remuneration should be made subject to the control of the Treasury. The expenses of the department, including the remuneration of the staff, should usually be made payable out of moneys provided by Parlia- ment, i. e. out of the annual votes. To charge such expenses on the Consolidated Fund would withdraw them from the control of Parliament, and this is never done except in the case of judicial officers, or of persons STATUTORY FORMS 283 whom for special reasons it is considered expedient to place in the same Ch. XII. position as judicial officers (see 54 & 55 Vict. c. 48, d. 28 . The receipts of the department will usually take the form of fees, and will, without express enactment, be subject to the provisions of the Public Offices (Fees) Act, 1879 (42 & 43 Vict. c. 58), which applies (s. 7) to ' all fees, per-centages, and other sums payable in or to any officer of any public office or department the expenses of which are paid wholly or partly out of the Consolidated Fund or moneys provided by Par- liament.' If a new department is created it will be necessary to determine how the department is to be represented in Parliament, and whether the parliamentary representative is to require re-election on appointment (see 62 & 63 Vict. c. 33, s. 8). Forms. . — ( i) The [Board of Agriculture] may appoint a secretary Staff and and such officers and servants as the [Board] may, with the tion and sanction of the Treasury, determine. expenses. (3) There shall be paid out of money provided hy Parliament to the [President], the annual salary of two thousand pounds a year, and to the secretary, officers, and servants of the [Board] such salaries or remuneration as the Treasury may determine. (3) All expenses incurred by the [Board of Agriculture] in the execution of their duties under this Act, to such amount as may be sanctioned by the Treasury, shall be paid out of money provided by FarUament. See 52 & S3 Vict. c. 30, s. 5, and 62 & 63 Vict. c. 33, s. 6. Words which involve a grant of money, and therefore a special resolu- tion of the House, are always printed in italics. The officers of the House see to this. . — (i) The [Board of Agriculture] may sue and be sued. Style and and may for all purposes be described, by that name. Board. (a) The Board shall have an official seal which shall be officially and judicially noticed, and that seal shall be authenti- cated by the signature of the President or some member of the Board, or of the secretary, or some person authorized by the President of the Board to act on behalf of the secretary. (3) In the execution and discharge of any power or dutj'- transferred to the [Board of Agriculture] by or in pursuance 284 LEGISLATIVE METHODS AND FORMS Transfer of officer?. Ch. XII. of this Act, [the Board] shall adopt and use the style and seal of the [Board of Agriculture] and no other. See 52 & 53 Viet. c. 30, o. 6 ; 62 & 63 Vict. c. 33, s. 7. . — (i) There shall be transferred and attached to the [Board of Agriculture] such of the persons employed under the [Privy Council or any other Government department], in or about the execution of the powers and duties transferred by or in pursuance of this Act to the [Board of Agriculture] as the [Privy Council, or Government department], with the sanction of the Treasury, determine. (3) There shall be transferred and attached to the [Board of Agriculture] all persons employed under the [Land Com- missioners for England], (3) The [Board of Agriculture] may distribute the business of the Board amongst the several persons transferred thereto in pursuance of this Act in such manner as the Board may think right, and those officers shall perform such duties in relation to that business as may be directed by the Board. Provided that those persons shall, while they continue in office, be in no worse position as respects their tenure of office, salaries, or superannuation allowances, than they would have been in if this Act had not passed. (4) Any Order in Council made in pursuance of this Act which transfers any powers or duties to the [Board of Agri- culture] shall extend this section to the persons employed in or about the execution of those powers and duties. See 52 & 53 Vict. c. 30, s. 9. Central Finance. Preliminary Note. Ex- Speaking broadly, and subject to the qualifications mentioned chequer below, all national receipts are paid into the Exchequer, and all ""r i*^t"i' '^^tional payments are made out of the Exchequer, which is in Fund ^ ^**^* *^® ^^^ ^'^*° ^"^^ °^'' ^-^ ■which national payments are made. But in authorizing payments out a distinction is drawn between STATUTORY FORMS 285 payments to be made out of the Consolidated Fund, and pay- Ch. Xir. ments to be made out of moneys provided by Parliament. The former expression, or an expression to the like effect, is used with reference to payments which require no further authority than that of the statute under which they are made. The latter expression, ' moneys provided by Parliament,' is used with refer- ence to payments which require an annual vote. The procedure for payments into the Exchequer and payments Ex- out of the Consolidated Fund, so far as it depends on statute, "''^'^4®',.. is regulated by the Exchequer and Audit Departments Act, 1866 j)epart- (29 & 30 Vict. c. 39), by the Consolidated Fund Acts and Appro- ments priation Act of each session, and by s. 2 of the Public Accounts Act, 1866. and Charges Act, 1891 (54 & 55 Vict. c. 24), which generalizes and supplements some of the provisions of the annual Appro- priation Acts. These enactments regulate what used to be known as ' the course of the Exchequer.' Under s. 3 of the Exchequer and Audit Departments Act, 1866, Comp- the King is authorized to appoint a Comptroller and Auditor- *™^ "^ General and an Assistant Comptroller and Auditor. These officers Auditor- hold office during good behaviour, subject to removal by the General. Crown on an address from the two Houses of Parliament. They are not capable of holding their offices together with any other oifica held during pleasure under the Crown or under any officer appointed by the Crown. They are not capable, while holding their oifice, of being elected or sitting as members of the House of Commons, and neither of the offices can be held by a peer. Their salaries are fixed by statute and charged on the Con- solidated Fund. The intention obviously is to appoint officers who are to be independent both of Parliament and of the Execu- tive Government of the day. The double name of the Comptroller and Auditor-General indicates his dual functions. He controls the issues out of the Exchequer by taking care that nothing is issued without due authority. He subsequently audits the authorized expenditure, and satisfies himself that each payment was applied to the purpose to which it was appropriated. Under s. 10 of the Act the Commissioners of Customs and Payments Inland Revenue and the Postmaster-General are required, after into Ex- deduction of the payments for drawbacks, bounties of the nature <=^'"1"'^''. of drawbacks, repayments, and discounts, to cause the gross revenues of their respective departments to be paid in accord- ance with Treasury regulations to the account of His Majesty's Exchequer at the Banks of England and Ireland respectively. This provision covers the tax revenue proper, and also the postal and telegraph charges fixed by statute. The same section directs in general terms that all other public moneys payable to the Exchequer are to be paid to the same account. Accounts of all these payments are to be rendered to the Comptroller and Auditor- General daily in a form prescribed by the Treasury. 286 LEGISLATIVE METHODS AND FORMS Ch. XII. Consoli- dated Fund. Consoli- dated Fund charges and annual supply charges. Consoli- dated Fund charges. Charge for public debt. Heads of public debt. Perma- nent Under s. ii of the Act all moneys paid into the Bank of England and the Bank of Ireland on account of the Exchequer are to be considered as forming one general fund in the books of the Banks, and all orders directed by the Treasury to the Banks for issues out of the credits to be granted by the Comptroller and Auditor- General for the public service are to be satisfied out of this general fund. The Consolidated Fund was established by Pitt's Act of 1787 (27 Geo. III. c. 13). Before that date every separate head of receipt and the produce of every particular tax was specially appropriated by law to the discharge of a particular head of expenditure. But a similar consolidation had been previously effected of special funds appropriated to special debts. Under s. 12 of the Act of 1866 quarterly accounts of the income and charge of the Consolidated Fund are to be prepared, and if it appears from any such account that there is a deficiency in the Consolidated Fund, that is to say, that the balances at the close of a quarter are insufficient to meet the charges accruing up to the fifth day of the following month, being the date on which the interest on the National Debt is payable, the Comp- troller and Auditor-General is to certify the amount to the Bank of England or Ireland, who are thereupon authorized to make advances, which are to be repaid with interest out of the growing produce of the Consolidated Fund in the next succeeding quarter. The public expenditure is, as already explained, divided into two separate and distinct general heads, known respectively as the Consolidated Fund charges and the annual supply charges. The first head includes the more permanent charges which have been authorized by Parliament to be paid from time to time when due, the Treasury being responsible for the mode and date of payment. The second head comprises the charges annually granted by Parliament, and thus brought periodically under its immediate cognizance and control. Payments falling under the first head are described in statutory language as being made out of the Consolidated Fund. Payments falling under the second head are described as being made out of moneys provided by Parliament. The Consolidated Fund charges include the annual charges for the public debt, the Civil List, judicial salaries, and other pay- ments of a fixed and permanent character. The first Consolidated Fund charge is the permanent annual charge for the public debt. The public debt may be classified under four heads : — I. The permanent funded debt ; II. The funded debt of terminable annuities ; III. The temporary war loan of 1900; and IV. The unfunded or floating debt. I. The permanent funded debt includes the several Govern- ment Stocks of permanent annuities, which are at present — STATUTORY FORMS 287 The 2f per cent. Consolidated Stock (1903) created under the Ch. XII. National Debt (Conversion) Act, 1888 (51 & 52 Vict. c. 2), and the National Debt Redemption Act, 1889 (52 & 53 ^""^^^^ Vict. c. 4, s. ,15); The 2f per cent. Annuities (190,5) created under the National Debt (Conversion of Stock) Act, 1884 (47 & 48 Vict. c. 23) ; The 2 1 per cent. Annuities created under the last-mentioned Act ; The Local Loans 3 per cent, stock created under the National Debt and Local Loans Act, 1887 (50 & 51 Vict. c. 16, s. 6) ; and The guaranteed land stock created under the Purchase of Land (Ireland) Act, 1891 (54 & 55 Vict. c. 48, s. i). This head of debt also includes the debt to the Banks of Eng- land and Ireland, as to which see s. 5 of the Bank Act, 1892 ^65 & 56 Vict. c. 48), and the charge in favour of the National Debt Commissioners created by the National Debt (Conversion of Bonds^ Act, 1892 (,55 & 56 Vict. c. 26). II. The terminable annuity debt consists of annuities granted Funded either for life or for a fixed number of years, the repayment of ;. 29, 3. 6. As to the reasonableness of by-lawa, see Kruse y. Johnson [1898] 2 Q. B. 91 ; White v. Morley [1899] a Q. B. 34 ; Thomas v. Sutters [1900] i Ch. 10. The council of every municipal borough have power under s. 33 of the Municipal Corporations Act, 1882 (45 & 46 Vict. c. 50), to make by-laws ' for the good rule and govei'nment of the borough and for the prevention and suppression of nuisances not already punishable in a summary manner by virtue of any Act in force throughout the borough.' If these by-laws relate to nuisances within the meaning of the Public Health Acts, they require the approval of the Local Government Board, and must be published in manner requiied by the Public Health Act, 1875, ss. 182-188. In any other case they require the approval of the Home Office, and are subject to the provisions as to publication and othei matters contained in s. 3 of the Municipal Corporations Act, 1883. Under 3. 16 of the Local Govei-nment Act, 1888 (51 & 52 Vict. c. 41), a county council have the same power of making by-laws in relation tc their county or to any specified part or parts thereof as the council 01 a borough have of making by-laws in relation to their borough undei s. 23 of the Municipal Corporations Act, 1882 ; and s. 187 of the Publii Health Act, 1875, is to apply to such by-laws. But county by-laws ars not to he in force within a borough. The councils of metropolitan boroughi STATUTORY FORMS 315 have poTver to make by-laws under s. 5 (2) of the London Government Ch. XI T. Act, 1899 (62 & 63 Vict. V. 14), and Part II of the Second Schedule to that Act. They also have power as sanitary authorities to make by-laws under s. H4 of the Public Health (London) Act, 1891 (54 & 55 Vict. 0. 76). The councils of urban districts, not being boroughs, and of rural districts, have power to make by-laws under the Public Health Acts. There are many other statutoi-y provisions uiider which by-laws can be made. The procedure for making by-laws under the Municipal Corporations Act, 1882, differs somewhat from that under the Public Health Acts. A by-law under the Municipal Corporations Act cannot be made unless two-thirds of the whole number of the council are present, and cannot come into operation for at least forty days. A copy must be sent to the Secretary of State, and within forty days the King in Council may disallow the by-law or postpone the time of its commencement. No express provision is made for the punishment of continuing offences. Under sections 182-186 of the Public Health Act, 1875, provision is made for continuing offences, and by-laws do not take effect until they have been submitted to and confirmed by the Local Government Board. A month's notice of the proposed by-law must be given in the local papers, and by-laws when made must be hung up in the office of the local authority, and ratepayers on application are entitled to copies. ' A by-law,' says Lord Abinger, 'has the same effect within its limits, and with respect to the persons upon whom it lawfully operates, as an Act of Parliament has upon the subjects at large.' Hopkins v. Mayor of Swansea (1839) 4 M. & W. at page 640. . All by-la'ws made by [a county council] under this By-laws. Act shall be made subject and according to the provisions with respect to by-laws contained in sections one hundred and eighty-two to one hundred and eighty-six of the Public Health Act, 1875, [and set forth in the First Schedule to 38 & 39 this ActjJ and those sections shall apply in like manner as ■*''55' if the [county council] were a local authority within the meaning of that Act. See the Public Health (London) Act, 1891 (54 & 55 Vict. c. 76, s. 114). As a rule it is not desirable to schedule such well-known provisions as those of the Public Health Act. . — (i) The [local authority] may make by-laws for all or any of the following purposes ; that is to say, (a) («) 3l6 LEGISLATIVE METHODS AND FORMS Ch. XII. {2) By any by-laws made in pursuance of this section a fine may be imposed for the breach of any such by-law, but shall not exceed two pounds for any one ofEence, or in the case of a continuing offence one pound for every day during which the offence is continued, [and shall not be a minimum fine]. (3) A by-law made in pursuance of this section shall not be valid until it has been confirmed by a Secretary of State [or the Local Government Board], and shall not be so eon- firmed until the expiration of at least one month after public notice of the intention to apply for the confirmation has been given by the local authority in some newspaper circulating within the district to which the by-law relates, or by hand- bills, or otherwise in such manner as the confirming authority consider sufiicient. (4) During the month next preceding the application for confirmation of a by-law the local authority shall cause a printed copy of the by-law to be kept at their office in such manner as to be open during office hours to the inspection of all persons interested, without fee, and shall also supply printed copies thereof to any applicant on payment of a sum not exceeding sixpence for each copy. (5) The local authority shall supply copies of all by-laws made under this section, and for the time being in force, to any applicant on payment of a sum not exceeding sixpence for each copy. (6) The production of a copy of any by-law certified by a person purporting to be the clerk of the local authority to be a true copy, and to have been duly confirmed, shall be evidence of the by-law and of the due making and confirma- tion thereof. (7) Any offence against a by-law made in pursuance of this section may be prosecuted and any fine in respect thereof may be recovered in manner directed by the Summary Juris- diction Acts. (8) [If for a period of four months after the passing of this STATUTORY FORMS 317 Act the local authority fail in exercising the powers of making Ch. XII. by-laws given by this Act, the [Local Government Board] may, by order published in such manner as that Board may direct^ make such by-laws of their own motion, and all by- laws so made shall have the same effect and may be enforced in like manner as by-laws made by the local authority and duly confirmed by the [Local Government Board]. See the Explosives Act, 1875 (38 & 39 Viet. c. 17, as. 34-38), the Municipal Corporations Act, 1882 (45 & 46 Viet. c. 50, ss. 23, 24), and the Public Health Acts Amendment Act, i8go (53 & 54 Viet. c. 59, s. 13). This form, or a simpler form to the like effect, may be employed where it is not considered expedient to incorporate by reference or to schedule to the Act the provisions of the Public Health Act, 1875. AcqxjisiTioN OP Land. Preliminary Note. It is often necessary to give local authorities and other bodies power to acquire land, compulsorily or otherwise, for public purposes. The general law relating to the acquisition of land for public purposes is to be found in the Lands Clauses Acts and in the standing orders of the two Houses of Parliament. The standing orders relating to local Bills require the promoters of any such Bill which gives power to take compulsorily land or rights over land to give certain notices in the latter part of the year preceding the introduction of the Bill. Notice of the objects of the Bill must be published in each of. two successive weeks, in the months of October and November, or one of them, in the London Gazette and in some local newspaper. On or before December 15, applications in writing must be made to the owners and occupiers of the lauds required for the purposes of the Bill, and then a list must be drawn up showing which of the persons to whom applications are made assent, dissent, or are neuter. On or before November 30, plans of the lands required and a book of reference must be deposited at the Private Bill Office, and with clerks of the peace, parish clerks, and clerks of sanitary authorities. On or before December 21, prints of the proposed Bill must be deposited in the Private Bill Office. Parliament when passing a local Act which gives power to take land does not allow any material departure to be made from the general pro- visions of the Lands Clauses Acts. The most important modifications allowed in recent Acts have been the addition of a power to take ease- ments by agreement, the insertion of clauses relaxing in certain cases the requirement (by s. 92) to take the whole of any 'house or other building or manufactory ' if any part is touched, and the modification of the provisions as to compensation. 3i8 LEGISLATIVE METHODS AND FORMS Ch. XII. The relaxation of the requirement to take the whole of a building is — - usually accompanied by what are commonly called the under-pinning clauses, by which underground railway companies have been required to strengthen the foundations of houses near their lines '. The Metropolitan Inner Circle Act, 1874, contained provisions requiring ■proper compensation' to be made for structural injury arising from the working of the railway within three years after construction and for injury to trade by obstruction of access or decrease of traffic, whether temporary or permanent. Any landowner whose interests are affected by a local and personal Bill giving power to take land has a locus standi to appear and oppose the whole Bill. Provision has been made by sundry public general Acts for cheapening and otherwise improving the procedure under the Lands Clauses Acts in particular cases. Thus, under the Allotments Act, 1887 (50 & 51 Vict. v. 48, s. 3), any question of disputed compensation is to go to a single arbitrator instead of being determined by a jury. The same provision Vas applied by B. 9 (10) of the Local Government Act, 1894 (56 & 57 Vict. u. 73), to the taking of land under that Act. Similar provisions of a more elaborate nature are to be found in s. 41 of the Housing of the Working Classes Act, 1890 (53 & 54 Vict. c. 70). And under s. 20 of the Military Lands Act, 1892 (55 & 56 Vict. c. 43), the person or authority acquiring the land may require the compensation to be settled by arbitration instead of by a jury. See also s. 13 of the Light Railways Act, 1896 (59 & 60 Vict. c. 48). The Housing of the Working Classes Act, 1890, lays down certain rules as to the principles on which compensation is to be assessed, and expressly declares that no additional allowance is to be made in respect of com- pulsory purchase. There is the same provision as to compulsoiy purchase in s. 9 (10) of the Local Government Act, 1894. It will be borne in mind that this allowance rests, not on statute, but on custom. The necessity of making compensation in the first instance for the several interests affected instead of awarding a lump sum to be sub- sequently divided is a source of expense. Attempts have been made by some Acts to cheapen the procedure in this respect. See, e. g., s. 41 (6) of the Housing of the Working Classes Act, 1890. The Lands Clauses Acts were framed with special reference to railway companies and other bodies seeking power to take lands by local and personal Acts for commercial purposes, and their language requires adaptation to make it suitable to the case of local authorities or other similar bodies acting under public general Acts. Sections authorizing sanitary authorities, school boards, and other similar bodies to avail themselves of the provisions of the Lands Clauses Acts, are of frequent occurrence in general Acts of Parliament, but until recently the exercise of the compulsory powers under the Acts has usually been made subject ' See Clifford's History of Private Bill Legislatim, ii. 526, and clauses 8, 9, and 10, among the special clauses relating to the taking of lands in the Model Bills and Clauses issued by the Chairman of Committees of the House of Lords. STATUTORY FORMS 319 to conditions which ensure that the exercise of the power is brought Ch. XII. under the review of Parliament by means of a special Act. ' The machinery for this purpose has usually been as follows : — The local authority is required to publish and serve notices of the same kind as those required by the standing orders of Parliament, and usually at the same time of the year. The authority is then authorized to present ii petition to the Local Government Board or some other department of Government, specifying the lands required, the names of the owners and occupiers who have assented, dissented, or are neuter, and praying for an order authorizing the authority to put in force, with respect to the lands, the compulsory provisions of the Lands Clauses Acts. The Government department is thereupon authorized to hold a local inquiry, and, if satisfied with the result, makes a Provisional Order giving the requisite powers to the local authority, but the Provisional Order is not to be of any validity unless and until it has been confirmed by Parliament. The Bill confirming the Order is introduced by the department which sanctions the Order, and thus, if the Bill is unopposed, as is usually the case, the local authority is saved the heavy expenses incidental to the preparation and passing through Parliament of a special Act. See Public Health Act, 1875 (38 & 39 Vict. c. 55, ss. 175, 176). In some eases public departments have been given power to acquire land compulaorily, under the authority of a Provisional Order confirmed by Act of Parliament. Instances of provisions for this purpose will be found in the Post Office (Land) Act, 1881 (44 & 45 Vict. c. 20), the Metropolitan Police Act, 1886 (49 Vict. c. 22), and the Military Lands Act, 1892 (55 & 56 Vict. e. 43, o. 2). A public department does not gain any advantage in respect of fees by adopting this machinery, because it is in any case exempted from pay- ment of fees, but the requirements of the Act as to the service of notices and the like are usually more elastic than the requirements of standing orders in the case of ordinary local and personal Acts. The effect of requiring a special Act either to give powers for taking lands compulsorily, or to confirm such powers when given by a Pro- visional Order, is that it is left to Parliament to determine with reference to each particular case : — (i) Whether the public need justifies compulsory acquisition ; (2) Whether the particular lands proposed to be taken are those which ought to be taken ; and (3) Whether the proposed arrangements for compensating or prevent- ing unnecessary injury to private interests are adequate. Under the Public Health Act, 1875 (38 & 39 Vict. c. 55, ss. 175, 176), urban and rural sanitary authorities have power to acquire land either by agreement or by compulsion for the purposes of the Public Health Acts, and for that purpose to employ the Provisional Order machinery described above. S. 178 of the Public Health Act, 1875, gives power to the Duchy of Lancaster to sell land for the purposes of the Acts. Under s. 65 of the Local Government Act, 1888 (51 & 52 Vict. c. 41), a county council may acquire land, either by agreement, or by compul- sion, for the purpose of any of their powers and duties, and in accordance with the machinery provided by the Public Health Act, 1875. 320 LEGISLATIVE METHODS AND FORMS Ch. XII. Under s. 107 of the Municipal Corporations Act, i88a (45 & 46 Vict. u. 50), as amended by o. 72 of the Local Government Act, 1888, a municipal corporation may acquire land with the consent of the Local Government Board. But this provision does not give compulsory powers of purchase. The cases in which compulsory powers of taking land may he exercised without the authority either of a special Act or of Provisional Orders confirmed by a subsequent Act are not numerous, and are usually cases where the exact situation of the land to be acquired is defined by the circumstances of the case. To this class belong the power to take land for widening a highway under the Highway Act, 1835 (5 & 6 Will. IV. c. 50, s. 85), the power to take land for enlarging a prison under the Prison Act, 1865 (28 & 29 Vict. c. 126, b, 44) ; the power to take land for enlarging a workhouse under the Metropolitan Poor Act, 1867 (30 & 31 Vict. c. 6, ss. 52-54), and the powers exerciseahle by London vestries and district boards (now metropolitan borough councils) under Miehael- angelo Taylor's Act of 1817 (57 Geo. HI. c. xxix, ». 80), as extended by the Metropolis Management Act, 1862 (25 & 26 Vict. c. 102, ss. 72, 73). Exceptional powers of taking land compulsorily are given by the Admiralty (Signal Stations) Act, 1815 (55 Geo. III. c. 128), by the Defence Act, 1842 (5 & 6 Vict. c. 94, S3. 10, 18, 19), and by the Coast Guard Service Act, 1856 (19 & 20 Vict. c. 83). Under the Labourers (Ireland) Act, 1885 (48 & 49 Vict. c. 77), as amended by s. 12 of the Act of 1886 (49 & 50 Vict. c. 59), the Irish Local Government Board may by a Provisional Order empower a sanitary authority to take land compulsorily, subject only to an appeal to the Lord Lieutenant in Council, and without going to Parliament. By s. 3 of the Allotments Act, 1887 (50 & 51 Viet. c. 48), special adapta- tions of the Lands Clauses Acts are made for enabling sanitary authorities to acquire land for allotments. Objection has sometimes been taken to the Provisional Order machinery for acquiring land aa needlessly cumbrous, dilatory, and expensive, and by s. 9 of the Local Government Act, 1894 (56 & 57 Vict. c. 73), power was given to acquire land compulsorily for allotments and for parish purposes under the authority^ of an order of the county council confirmed by the Local Government Board. Under s. 10 of the same Act there is power to hire compulsorily for allotments under the like authority. A further extension was given to this principle by the Light Railways Act, 1896 (59 & 60 Vict. c. 48), under which land may be taken com- pulsorily under the authority of an order of the Board of Trade, without confirmation of the order by Parliament (see ss. 7, 10, 11, 12). Powers analogous to those of taking land are those of using roads for tramway purposes. See the Tramways Act of 1870 (33 & 34 Vict. u. 78), and the Military Tramways Act, 1887 (50 & 51 Vict. c. 65). Forms. Power to . — (a) A [local authority] may [with the consent of the land.^ ^^ Local Government Board] purchase such land as they may require for the execution of their duties. STATUTORY FORMS 321 (b) A [local authority] may, for the purposes and subject Ch. XII. to the provisions of this Act, acquire, purchase, take on lease, sell, or exchange any land, whether situate within or without their district. See Local Government Act, 1888, 51 & 5a Vict. u. 41, a. 65. (i) For the purpose of the purchase, taking on lease, or Machin- exchange of lands under this Act, sections one hundred and purchase seventy-six, one hundred and seventy-eight, two hundred and "g'f"*^' ninety-seven, and two hundred and ninety-eight of the Public Vi«t- ". 55- Health Act, 1875^ shall apply as if they were herein re-enacted and in terms made applicable to the purposes of this Act. (3) Sub-sections one and five of section eighty-seven of the Si & 52 ^ ' ^ •' Viet. c. 41. Local Government Act, 1888, shall apply to any of the pro- ceedings of the Local Government Board under or for the purposes of this section. See 51 & 52 Vict. c. 41, si. 65 ; 62 & 63 Vict. c. 14, s. 28. This clause gives power to take land, either by agreement, or compulsorily under the authority of a Provisional Order obtained in accordance with the pro- visions of the Public Health Act, 1875, and coniirmed by Parliament. Section 176 of the Public Health Act, 1875, regulates the notices to be given and other steps to be taken when application is made to the Local Government Board for a Provisional Order. S. 178 merely gives power to sell Duchy of Lancaster lands. Ss. 297 and 298 regulate the making of Provisional Orders. Sub-sections (i) and (5) of s. 87 of the Local Govern- ment Act, 1888, enable the Board to hold local inquiries, and provide for the expenses of those inquiries. For a form giving power to a public department to take land, see s. 2 of the Military Lands Act, 1892 (55 & 56 Vict. c. 43, as amended by 63 & 64 Vict. c. 56, a. 4). This form allows the notices to be served at any time of the year. A similar latitude as to time has been allowed in Ireland \fj 48 & 49 Vict. c. 77, s. 19 amending 46 & 47 Vict. e. 60, s. 7, and by 56 & 57 Vict. c. 41, B. I amending 55 & 56 Vict. c. 42. The Light Railways Act, 1896 (59 & 60 Vict. c. 48), while requiring applications to be advertised and notices to be served, leaves other details to be regulated by the Commissioners, and, as has been observed above, the order which authorizes the taking of the land does not require confirmation by Parliament. For the purpose of the purchase of land under this Act by a [ ] authority the Lands Clauses Acts shall be incorporated with this Act, except the provisions of those Acts with respect to the purchase and taking of land other- 322 LEGISLATIVE METHODS AND FORMS Ch. XII. wise than by agreement, and section one hundred and sevent eight of the PuhUe Health Act, 1875, shall apply as if tl [ ] authority were referred to therein. See Small Holdings Act, 189a, 55 & 56 Vict. e. 31, a. 3.— This clai] gives power to acquire land by agreement only, and incorporates t provisions of the Lands Clauses Acts with respect to persons und disability, &c. Legal Peocebdings, Preliminary Note. The courts to which it is ordinarily necessary to refer in Acts Parliament are — • For civil proceedings, the High Court and county courts ; For criminal proceedings, courts of assize (whicli are defined by s. 13 (. of the Interpretation Act, 1889, to include the Central Criminal Coui and courts of oyer and terminer, and gaol delivery), courts of quart( sessions (see s. 13 (14) of the Interpretation Act), and courts 1 summary jurisdiction, in other words petty sessions and stipendiai magistrates' courts, as to which see s. 13 (11) of the Interpretation Ac It is also sometimes necessary to utilize the civil jurisdiction whic before the establishment of county courts was extensively exercised I justices of the peace, and which is now regulated by ss. 6 and 35 of tl Summary Jurisdiction Act, 1879 (42 & 43 Vict. c. 49). Where the penalty imposed is a small fine, or a short term of impriso) ment, the jurisdiction is usually given to courts of summary jurisdictior For this purpose it is sufficient to use the expression ' shall be liable summary conviction.' See 42 & 43 Vict. c. 49, s. 51. If it is necessar to refer to a court of summary jurisdiction it must be remembered thi this expression, though defined for England and Ireland by s. 13 of tl Interpretation Act, 1889, is not so defined for Scotland, and will therefoi require a special definition if the Act extends to Scotland. See note s. 14 (11) of Interpretation Act below. The procedure in cases before courts of summary jurisdiction is regi lated by the Summary Jurisdiction Acts, of which the most importai are, as to England, the Summary Jurisdiction Act, 1848 (11 & 12 Vic c. 43), and the Summary Jurisdiction Act, 1879 (42 & 43 Vict. o. 49), s s- 13 (7) of the Interpretation Act, 1889. The scale of imprisonment for non-payment of a fine is regulated b a. 5 of the Summary Jurisdiction Act, 1879. Subject to any special directions in the Act under which a fine i imposed, a fine recovered before a court of summary jurisdiction ii if recovered before county justices, paid to the county treasurer, and : recovered before borough justices, paid to the borough treasurer, an applied in aid of the borough or county fund, as the case may be (see, s to counties, 11 & 12 Vict. c. 43, s. 31 ; and as to boroughs, 45 & 46 Vie u. so, s. 221). Justices' clerks have to account for fines recovered (si II & 12 Vict. c. 43, a. 31, and 40 & 41 Vict. c. 43, s. 6). STATUTORY FORMS 323 Many statutes contain special provisions as to the application of fines. ^^- ■^^^■ Thus, it is sometimes provided that some portion of a fine, usually not exceeding one-half, may be paid to the informer or prosecutor (see, e. g., 38 & 39 Vict. (;. 55 (Public Health Act, 1875), s- =54). Sometimes also some part of the fine is allowed to he paid as compensation to the person aggrieved, as in the ease of fines under the Merchant Shipping Acts, 1894 (57 & 58 Vict. u. 60, s. 699). Fines in respect of matters administered by a central department are usually required to be paid into the Exchequer (see, b. g., s. 699 of the Merchant Shipping Act, 1894 (57 & 58 Vict. c. 60), s. 96 of the Explosives Act, 1875 (38 & 39 Viet. c. 17)). In the case of matters administered by a local authority, the fine is usually paid to that authority (see, e. g., a. 254 of the Public Health Act, 1875, 38 & 39 Vict. e. 55). Fines under statutes regulating corporations established for public purposes are often payable to the corporation (see, e.g., ss. 84, 99, 103, 105, 116, 119 of the Railways Clauses Act, 1845, 8 & 9 Vict. c. 20, and ss. 58, 59 of the Cemeteries Clauses Act, 1847, 10 & 11 Vict. c. 65). Under s. 17 of the Summary Jurisdiction Act, 1879, a person charged before a court of summary jurisdiction vrith an offence for which he would be liable on conviction to more than three months' imprisonment, and which is not an assault, may claim to be tried by a jury. Under s. 19 of the same Act, a general right to appeal is given in all cases where a person is adjudged by a conviction or order of a court of summary jurisdiction to be imprisoned without the option of a fine (including imprisonment for non-compliance with a summary order, but excluding failure to comply with an order for the payment of money, the finding of sureties, entering into any recognizance, or giving any security), provided he did not plead guilty or admit the truth of the information or complaint. In many cases a right of appeal is given by the special Act. The procedure on appeal to quarter sessions is regulated by s. 31 of the Summaiy Jurisdiction Act, 1879. Under 20 & 21 Vict. c. 43 and s. 33 of the Act of 1879, there is an appeal by special case on points of law to the High Court. In some cases it may be necessary to make special provision as to the expenses of indictments. In felonies the court may order payment out of the local rate to the prosecutor and his witnesses of a reasonable sum for expenses, whatever the result of the trial may be, and even if no bill be found (7 Geo. IV. c. 64, ss. 22, 24, 25) ; also to the prisoner's witnesses who are bound over by the magistrate in misdemeanour, as well as felonies, 30 & 31 Vict. c. 35, s. 5. The provision as to the payment of the costs of prosecution extends to many misdemeanours (under 7 Geo. IV. c. 64, 3. 23, 14 & 15 Vict. c. 55, the Consolidation Acts of 1861, &c.). It is applied by s. 28 of the Summary Jurisdiction Act, 1879 (4^ *■ 43 Vict. c. 49), to cases where an indictable offence is dealt with summarily. In treason and felony the prisoner can be ordered to pay the costs of the prosecution (33 & 34 Vict. c. 23, s. 3). Where a bill of indictment is preferred under the Vexatious Indict-, ments Act, 1859 (22 & 23 Vict. c. 17), against a person who has not been detained in custody or bound over to answer the indictment and he is acquitted, the prosecutor may be ordered to pay the defendant's costs. 324 LEGISLATIVE METHODS AND FORMS Ch. XII. Expenses of indict- ments. Summary prosecu- tion of offences. Exemp- tion of occupier from fine on proof of another being actual offender. Forms. The expenses of any prosecution on indictment under this Act shall be payable as in cases of indictment for felony. See s. i8 of the Criminal Law Amendment Act, 1885 (48 & 49 "Vict. c. 69) ; s. 20 of the Prevention of Cruelty to Children Act, 1894 (57 & 58 Vict, t. 41) ; and s. i of the Inebriates Act, 1899 (62 & 63 Vict. o. 35). . Any offence under this Act which is punishable on summary conviction may be prosecuted, and any fine under this Act which is recoverable on summary conviction may be recovered — [a) In the Isle of Man before a high bailiff or two justices of the peace at the instance [of an officer of the post office or] of a constable in accordance with the law for the time being in force for regulating the exercise of summary jurisdiction by such bailiff or justices ; and (b) In the Channel Islands, or elsewhere than in the United Kingdom or the Isle of Man, before the court and in the manner provided by law, and if no provision is otherwise made by law, then at the instance of [any officer of the post office] before the court and in the manner before and in which the like offences and fines can be prosecuted and recovered. See 3. 12 of the Post Office (Protection) Act, 1884 (47 & 48 Vict. c. 76). But this clause will be unnecessary unless the Act extends beyond the United Kingdom. . — (1) Where an offence for which the occupier of is liable under this Act to a fine has in fact been committed by some agent, servant, workman, or other person, that agent, servant, workman, or other person shall be liable to the Uke fine as if he were the occupier. (2) Where the occupier is charged with any such offence he shall be entitled upon information duly laid by him to have any other person whom he charges as the actual offender brought before the court at the time appointed for hearing the charge; and if, after the commission of the offence STATUTORY FORMS 325 has been proved, the court is satisfied that the occupier of Ch. xii. the had used due diligence to enforce the execution of the Act, and that the other person had committed the offence in question without the occupier's knowledge, consent, or connivance, the other person shall be summarily convicted of the offence, and the occupier shall be exempt from any fine. (3) When it is made to appear to the satisfaction of an inspector, at the time of discovering the offence, that the occupier had used all due diligence to enforce the execution of this Act, and also by what person the offence had been committed, and also that it had been committed without the knowledge, consent, or connivance of the occupier and in contravention of his order, then the inspector shall proceed against the person whom he believes to be the actual offender in the first instance without first proceeding against the occupier. See ss. 86 and 87 of the Factory and Workshop Act, 1878 (41 & 43 Vict. c. 16) ; also s. 39 of the Elementary Education Act, 1876 (39 & 40 Vict. c. 79), s. 6 of the Irish Education Act, 1893 (55 & 56 Vict. c. 43), s. 87 of the Explosives Act, 1875 (38 & 39 Vict. c. 17), s. 5 of the Margarine Act, 1887 (50 & 51 Vict. c. 29), s. 12 of the Truck Amendment Act, 1887 (50 & 51 Vict. e. 46, s. 13), and s. 13 of the Locomotives Act, i8g8 (61 & 62 Vict, e. 39). For clause exempting from penalty, on proof that due care has heen taken, see also a. 6 of the Sale of Food and Drugs Act, 1875 (38 & 39 Vict. >;. 63), and s. 6 of the Merchandise Marks Act, 1887 (50 & 51 Vict. c. 28). . Where on the conviction of any person under this Act Compen- , . . , sation for for an offence it appears to the court that any injury to damage person or property has been caused by the offence, the court g^g^^gg ^ may by the conviction adjudge the person convicted to pay in addition to any fine a reasonable sum as compensation for the injury, and that sum may be recovered as a fine under this Act, and when recovered shall be paid to the person injured. See s. 15 of Sea Fisheries Act, 1883 (46 & 47 Vict. u. 22). . Where anv person is guilty of any offence which under Imprison- •' "^ ^ •' ■, , ■ T ■ ,^ ■ • ment for this Act is punishable by a fine, and which, m the opinion ^nful act of the court that tries the case, was reasonably calculated to °'' "«§'«<=* 326 LEGISLATIVE METHODS AND FORMS Ch. XII. endanger the safety of, or to cause serious personal injury to, ' any of the public [or the persons employed in or about inglSlor' ], or to cause a dangerous accident, and was ^'^"^' committed wilfully by the personal act, personal default, or personal negligence of the person accused, that person shall be liable, if the court is of opinion that a fine will not meet the circumstances of the case, to imprisoimient, with or with- out hard labour, for a period not exceeding sia; montks. See s. 79 of Explosiveg Act, 1875 (38 & 39 Vict. c. 17) ; and s. 17 of the Sale of Food and Drugs Act, 1899 (6a & 63 Vict. c. 51). FoEM, Service, Inspection, and Evidence of Documents. Forms. Form of • -^ notices and orders under this Act must be in notices, writing; and, where any notice, order, or document under this Act requires authentication by the [local authority], the signature thereof [by the clerk of the local authority] shall be sufficient authentication. See 54 & 55 Vict. c. 76, a. 127. The provision as t9 authentication is often unnecessary. Service of (i) -^^7 notice. Order, or other document required or notices, authorized to be served under this Act may be served either — (a) By delivering it [or a true copy of it] to the person on whom it is to be served ; or (6) By leaving it [or a true copy of it] at the usual or last known place of abode of that person ; or (c) By forwarding it [or a true copy of it] by post in a prepaid letter addressed to that person at his usual or last known place of abode ; or (d) If addressed to the owner or occupier of premises, by delivering it [or a true copy of it] to some person on the premises, or if there is no person on the premises STATUTORY FORMS 327 who can be so served, then by fixing it [or a true copy Ch. XII. of it] on some conspicuous part of the premises. (a) Any noticBj orderj or other document by this Act required or authorized to be [given to or] served on the owner or occupier of any premises may be addressed by the description of the 'owner' or 'occupier' of the premises (naming them), without further name or description. (3) Any notice required or authorized for the purpose of this Act to be served on [the council of a borough or other iu:ban district] shall be deemed to be duly served if in writing, delivered at or sent by post to the office of the council, addressed to that council, or to their clerk. See a. 128 of the Public Health (London) Act, 1891 (54 & 55 Vict. c. 76). As to servdce of documents by post, see s. 26 of Interpretation Act, 1889. The proTisions of the Summary Jurisdiction Acts as to service of summons should be borne in mind. See B. v. Mead [1898] I Q.B. no. . — (i) Any member of a [local authority], without Inspec- payment and any ratepayer [or other person interested], docu- on payment of a fee not exceeding one shilling, may at any ■"^°*3' reasonable time inspect the minute books and documents in the possession or under the control of the [local authority], and shall be entitled to obtain copies and extracts therefrom on payment of such fee not exceeding , as may be fixed by the [local authority]. (a) If any person, having the custody of any book or document — (a) obstructs any person authorized to inspect the same in making any inspection thereof which he is entitled to make under this section ; or (5) refuses to give copies or extracts to any person entitled to obtain the same under this section ; he shall, on summary conviction, be liable to a fine not exceeding two pounds. See oUso 33 & 34 Vict. c. 75, s. 87, and s. 58 (4), (5), of Local Government Act, 1894. 328 LEGISLATIVE METHODS AND FORMS Cii. XII. Execu- tion of instru- ments by head of depart- ment. Evidence of register. Gazette to be evidence. . — (i) Any instrument which is required to be executed by the [Postmaster-General], or to which he is a party, may be executed by any of the [secretaries of the Post Office] in the name of the [Postmaster- General], and, if so executed, shall be deemed to have been executed by the [Postmaster- General], and shall have effect accordingly. (a) Any instrument purporting to be executed by any of the [secretaries of the Post Office] in the name of the [Postmaster-General], shall, until the contrary is proved, be deemed to have been so executed without proof of the official character of the person appearing to have executed it. See Post Office (Protection) Act, 1884 (47 & 48 Vict. c. 76, ». 15) ; Board of Agriculture Act, 1889 (52 & 53 Vict. c. 30, s. 7) ; Board of Education Act, i8gg (62 & 63 Viet. c. 33, a. 7). . A register purporting to be kept in pursuance of this Act shall be deemed to be in the proper custody when in the custody of the registrar, and shall be of such a public nature as to be admissible in evidence for all matters entered therein on its mere production from that custody. By 14 & 15 Vict. e. 99, s. 14, it is pi'ovided that whenever any book or document is of such a public nature as to be admissible in evidence on its mere production from the proper custody, an examined copy or extract is admissible in evidence ; also a copy or extract purporting to be certified to be a true copy or extract by the officer having custody of the original ; the officer is required to furnish such certified copy or extract, and penalties are imposed for falsification and forgery. . The notification in the London Gazette of any order made [by a Secretary of State] in pursuance of this Act, shall be evidence that the order was made and came into operation in manner provided by this Act. This clause should be only applied to orders made by Government departments. The Documentary Evidence Act, 1868 (31 & 32 Vict, c 37), amended by the Board of Agriculture Act, 1889 (52 & 53 Vict. c. 30), and the Documentary Evidence Act, 1895 (58 & 59 Vict. c. 9) provides for evidence of the contents of orders made by certain Government depart- ments, but vrhere subseciuent conditions are required before the order comes into operation, e. g., the laying before Parliament or othervrise, it may sometimes be convenient to insert a clause making the production of some easily accessible document prima facie evidence of the perform- ance of the conditions of the Act^ STATUTORY FORMS 329 . — (A.) A list or document, or an order made by a [local Ch. XII. authority], may be proved by the production of a copy thereof, p^^^i pf certified to be a true copy by a person purporting to be the document clerk of the [local authority]. fied copy, (B.) The following copies of any orders made in pursuance of this Act shall be received in evidence ; that is to say : — (i) Any copy purporting to be printed by the King's printer of Acts of Parliament or by any other printer in pursuance of an authority given by the [aut/iority under Act] ; (3) Any copy of an order certified to be a true copy by the [clerk] of the laut/ioriiy], or by any other person appointed by the [^autAorityl either in addition to or in exclusion of the [clerk] to certify such orders. See Medical Act, 1886 (49 & 50 Vict. c. 48, s. 23). It is, strictly speaking, unnecessary to enact tKat copies purporting to be printed by the King's Printer shall be admissible in evidence. See 31 & 33 Vict. "• 37 ; 45 Vict. u. 9. Computation op Time. . In computing time for the purposes of this Act, unless Computa- the contrary intention appears, — ^^^^ (i) A period reckoned by days from the happening of an . event or the doing of an act or thing shall be deemed to be exclusive of the day on which the event happens or the act or thing is done ; (i) If the last day of the period is Sunday, Christmas Day, Good Friday, or a bank holiday (which days are in this section referred to as excluded days), the period shall include the next following day, not being an excluded day; (3) When any act or proceeding is directed or allowed to be done or taken on a certain day, then if that day happens to be an excluded day, the act or proceeding shall be considered as done or taken in due time if it 33° LEGISLATIVE METHODS AND FORMS Ch. XII. is done or taken on the next day afterwards^ not being an excluded day ; (4) When any act or proceeding is directed or allowed to be done or taken within any time not exceeding seven days, excluded days shall not be reckoned in the computation of the time. See 41 & 42 Vict. c. 74, s. 5, and 45 & 46 Viet. c. 50, o. 230 ; 56 & 57 Viet. c- 73i s. 73 ; 61 & 62 Vict. 0. 41, a. la. It must be borne in mind that the days observed in Scotland and Ireland as holidays differ from those obseryed in England. The general rule, apart from special enactment, is that Sundays are included in all computations of time, except when the time is limited to twenty-four hours, in which case the following day is allowed (Burn's Justice, Tit. Lord's Day). The Statutes (Definition of Time) Act, 1880 (43 & 44 Vict. c. 9), enacts that ' Whenever any expression of time occurs in any Act of Parliament, deed, or other legal instrument, the time referred shall, unless it is otherwise specifically stated, be held in the case of Great Britain to be mean^Greenwich time, and in the case of Ireland, mean Dublin time.' Saving for rules of equity and common law. Powers of Act cumu- lative, Saving Clauses. Freliminary Note. Saving clauses are usually of a special character. Ss. 122-5 of ^^ Local Government Act, 1888, indicate the kind of savings which are usually required when new local authorities are substituted for existing authorities. Forms. . The rules of equity and of common law applicable to [partnership] shall contiaue in force except so far as they are inconsistent with the express provisions of this Act. S«e s. 46 of the Partnership Act, 1890 (53 & 54 Vict. c. 39). This form of saving is specially appropriate to a codifying Act. For a similar form, see Bills of Exchange Act (45 & 46 Vict. c. 61, s. 97). A. — ^AU powers given by this Act shall be in addition to and not in derogation of any other powers conferred by Act of Parliament, law, or custom, and such other powers may be exercised in the same manner as if this Act had not passed. See 38 & 39 Vict. 0. 55, o. 341. For a general provision as to offences under two or more laws, see s. 33 of the Interpretation Act, i88g, in Appendix II below. B. — Where this Act is put in force in any district in STATUTORY FORMS 331 which there is a local Act for the like purpose as this Act, Ch. Xll. the enactments of the local Act so far as they relate to that „ , , •^ Repeal of purpose shall cease to be in operation, local Acts. See a. 14 of the Infectious Disease (Notification) Act, 1889 (52 &S3 Vict, c. 72). It must be considered in each case whether the general Act is to be cumulative or whether local Acts are to be repealed. In some cases it may be expedient to take power to X'epeal local Acts by Provisional Order (see s. 103 of the Explosives Act, 1875 (38 & 39 Vict. c. 17)). . Nothing in this Act shall be in derogation of any Saving for power otherwise vested in [the CommissionerSj &c.], and [the fcharfty Commissioners, feci may exercise for the purpose of this Act Commis- , . . . sioners; all powers otherwise vested in them in relation to [charities, &c.] &c.] respectively. See 53 & 54 Vict. c. 70, s. 91, and 54 & 55 Vict. e. 76, s. 138. . If the court before whom a person is charged with Saving for an ofEenee punishable by virtue of this Act thinks that proceed proceedings ought to be taken against him for the offence "thet'jaw under any other Act, or otherwise, the court may adjourn the ease to enable such proceedings to be taken. The object of this clause is to prevent collusive proceedings being taken for the minor offence. . A proceeding or conviction for any act declared by this Saving of Act to be a misdemeanour [punishable under this Act] shall remedy, not affect any civil remedy to which any person aggrieved by the act may be entitled. See 38 & 39 Vict. c. 87, 3. 102 j 52 & 53 Vict. c. 21, s. 33. . Nothing in this Act shall entitle any person to refuse Saving of to make a complete discovery or to answer any question or to make interrogatory in any civil proceeding, but no such discovery "discovery or answer shall be admissible in evidence against that person in any criminal proceeding under this Act. See 38 & 39 Vict. c. 87, s. 103. Special Authokities. Preliminary Note. It is sometimes necessary to create by statute a special authority. The authority may be either a permanent commission with judicial powers, 332 LEGISLATIVE METHODS AND FORMS Ch. XII. such as the Railway and Canal Commission (51 & 5a Viet. e. 25), or a temporary commission with judicial powers, such as the Belfast Commission (50 Vict. c. 4), the Commission to inquire into the Metro- politan Board of Works (51 Vict. >;. 6) or the Parnell Commission (51 & 52 Vict. c. 35), or a body having power to frame schemes or make statutes, such as the Commissioners for the Universities of Oxford, Cambridge, and Loudon (40 & 41 Viet. c. 48 ; 61 & 62 Vict. u. 63), the Public School Commissioners (31 & 32 Vict. 0. 118), or the various Boundary Commis- sioners {see, e.g., 50 & 51 Vict. u. 61), or a consultative committee, such as that appointed under the Merchant Shipping (Life Saving Appliances) Act, 1888 (51 & 52 Vict. c. 24), or an administrative body, such as the Inspection Committee appointed under the Savings Banks Act, 1891 (54 & 55 Vict. c. 21), or a board constituted wholly or partly by a popular election, such as the boards of conservators established under the Salmon and Freshwater Fisheries Acts. The powers given to the authority will vary according to the circum- stances of the case. It will ordinarily be necessary to provide a staff and funds, to determine the appointments or elections, qualifications, disqualifications, tenure of office, and remuneration (if any) of members of the authority, to fix or give powers of fixing the quorum, to regulate or give powers of regulating the procedure, to provide for filling vacancies, and to guard against invalidation of proceedings by reason of any accidental absence or omission to fill a vacancy. It is hardly necessary to say that a new authority should not be created where the work can be done by any existing authority, or by a joint committee of two or more existing authorities. Whereas a Commission has been issued by His Majesty, whereby (hereinafter referred to as the Commissioners), have been authorized and directed to inquire into and report upon And whereas powers for the efEeetual conducting of this inquiry cannot be conferred without the authority of Parha- ment : Be it therefore enacted, &c. : Powers of 1. — (i) The Commissioners shall have all such powers, sioners rights, and privileges as are vested in the High Court, or (ju icia ). jj^ ^jjy judge thereof, on the occasion of any action, in respect of the following matters : — STATUTORY FORMS 333 (i) the enforcing the attendance of witnesses and examining Ch. Xll. them on oath, aiRrmation, or otherwise ; (ii) the compelling the production of documents ; and (iii) the punishing pei-sons guilty of contempt ; and a summons signed hy one or more of the Commissioners may be substituted for, and shall be eq^uivalent to, any formal process capable of being issued in any action for enforcing the attendance of witnesses or compelling the production of documents. (3) A warrant of committal to prison issued for the purpose of enforcing the powers conferred by this section shall be signed by one or more of the Commissioners, and shall specify the prison to which the offender is to be committed, and shall not authorize the imprisonment of an offender for a period exceeding three months. a. Every person who. on examination on oath or affirmation Penalty before the Commissioners wilfully gives false evidence shall be g-^yearing. liable to the penalties for perjury. 3. The , and any persons Power to who may be so authorized by the Commissioners, may appear counsel, before the Commissioners by counsel or solicitor. 4. — (i) Every person examined as a witness in an inquiry Indem- before the Commissioners who, in the opinion of the Com- -vyitneases. missioners, makes a full and true disclosure touching all the matters in respect of which he is examined, shall be entitled to receive a certificate signed by the Commissioners stating that the witness has, on his examination, made a full and true disclosm-e as aforesaid. (a) If any civil or criminal proceeding is at any time there- after instituted against any such witness in respect of any matter touching which he has been so examined, the court having cognizance of the case shall, on proof of the certificate, stay the proceeding, and may in their discretion award to the witness such costs as he may be put to in or by reason of the proceeding. (3) Provided that no evidence taken under this Act shall 334 LEGISLATIVE METHODS AND FORMS Ch. XII. be admissible against any person in any civil or criminal proceeding, except in the case of a witness accused of having given false evidence before the Commissioners, or any of them. The preceding four clauses are taken from the Metropolitan Board (Commission) Act, 1888 (51 Vict. c. 6). In that case a Royal Commission had been appointed, and had to be given some of the coercive powers of a court of law. A Eoyal Commission has no power to require the attendance of witnesses or the production of documents. APPENDIX I EEPEAL TABLES AND SCHEDULES PART I. COMPAEISON OF ENACTMENTS BEPEALED WITH BILL^. Enactments repealed. Suhject-matter. Remarks. 20 & 21 Vict. c. 20I, s. I !> !> =■ 3 Short title . Definitions . [ Omitted as unnecessary. Reproduced by cl. 28. Virtually repealed by 56 & 57 Vict. c. 42, s. 3. The following enactments, though relating to the subject-matter of the Bill, have been left outstanding on the ground either that they cannot be conveniently detached from their context or that they can be more appropriately reproduced in another Bill. Table. Reasons far Omission from Consolidation Bill. PART II. ENACTMENTS REPEALED ^- Session and Chapter. Title or Short Title. Extent of Repeal. ' This table is useful in the ease of a Consolidation Bill, but of course is printed as a memorandum and not as part of the Bill. ' See s. 35 of the Interpretation Act, 1889, in Appendix II. APPENDIX IT INTERPRETATION ACT, 1 889 (52 & 53 Vict. e. 63). An Act for consolidating enactments relating to the Con- struction of Acts of Parliament and for further shortening the Language used in Acts of Parliament. [August 30, 1889.] The Interpretation Act, 1889, may be described as a Draftsman's Act. It supplies a kind of legislative dictionary, and its object is (i) to shorten the language of statutory enactments ; (2) to provide as far as possible for uniformity of expressions by giving prima facie definitions of several terms in common use ; (3) to state explicitly certain convenient rules of construction ; and (4) to guard against accidental omissions by importing into Acts certain common form provisions, which would otherwise have to be inserted expressly, and which might be overlooked. The Act supersedes and repeals Brougham's Act ( 13 & 14 Viet. c. 21), and adds several new provisions, some of which were suggested by the Indian General Clauses Act of 1887. In framing the Act it was thought desirable to group separately the provisions re-enacted from Brougham's Act, and those enacted for the first time in i88g. Acts of a similar character have been passed for British India, and for several of the British Colonies. References to the Queen will of course now be construed, where neces- sary, as references to the King. He-enactment of existing Rules. Rules as 1. — (i) In this Act and in every Act passed after the year and^" ei ^^^ thousand eight hundred and fifty, whether before or after the commencement of this Act, unless the contrary intention appears, — (a) words importing the masculine gender shall include females; and {Ij) words in the singular shall include the plural, and words in the plural shall include the singular. number. INTERPRETATION ACT, 1 889 337 (2) The same rules shall be observed in the constructioa of App. II. every enactment relating to an offence punishable on indict- ment or on summary conviction, when the enactment is contained in an Act passed in or before the year one thousand eight hundred and fifty. Sub-sectim (i) merely re-enacts a portion of s. 3 of Brougham's Act (13 & 14 Vict. u. 21). That Act was passed on June 10, 1850, and was expressed to commence and take effect from and immediately after the commencement of the then next session of Parliament. As to the effect of (i) (o) on the electoral rights of women, see Charlton v. Ling (1868), L. K. 4 C. P. 374, and Beresford-Hope v. Ladij Sandhurst (1889), 23 Q. B. D. 79. Sub-section (2) re-enacts provisions contained in an English Act of 1827 (7 & 8 Geo. IV. e. 28, s. 14) and an Irish Act of 182B (9 Greo. IV. c. 54, 3- 35)- 2. — (i) In the construction of every enactment relating to Applica* an offence punishable on indictment or on summary con- penal viction, whether contained in an Act passed before or after ^^^l^° the commencement of this Act, the expression ' person ' shall, corporate, unless the contrary intention appears, include a body corporate. (a) Where under any Act, whether passed before or after the commencement of this Act, any forfeiture or penalty is payable to a party aggrieved, it shall be payable to a body corporate in every case where that body is the party aggrieved. This section re-enacts provisions contained in the Acts of 1827 and 1828 referred to above. It will be remembered that the definition of 'person' in s. 19 is not retrospective. For a case where the word ' person ' was held not to include a corporation, see Pharmaceutical Society V. London and Provincial Supply Association (1880), 5 App. Cas., 857. 3. In every Act passed after the year one thousand eight Meanings hundred and fifty, whether before or after the commencement -(vords in of this Act, the following expressions shall, unless the contrary ^"'^ ^^'^'^^ intention appears, have the meanings hereby respectively assigned to them; namely, — The expression ' month ' shall mean calendar month : The expression 'land' shall include messuages, tenements, and hereditaments, houses, and buildings of any tenure : The expression ' oath ' and ' aflSdavit ' shall, in the case of persons for the time being allowed by law to affirm or ILBERT 2 338 INTERPRETATION ACT, 1889 Apr. II. Meaning of ' county ' in past Acts. Meaning of ' parish.' Meaning of ' county court.' 51 & 5a Vict. 0. 43. declare instead of swearing, include affirmation and declaration, and the expression ' swear •" shall, in the like ease, include affirm and declare. This section re-enacts the general deiinitions in Brougham's Act, with the exception of the definition of ' county,' which is dealt with by 3. 4. The definition of ' land ' involves repetitions and is not satisfactory, but it had to be retained for past Acts and it was not found very easy to improve for future Acts. Verbal corrections were made by the Act of 1889 in the definitions of 'oath' and 'affidavit.' These definitions do not seem to include a statutory declaration (see s. 21), which may be made by any person, without reference to his religious belief. 4. In every Act passed after the year one thousand eight hundred and fifty and before the commencement of this Act the expression 'county' shall, unless the contrary intention appears, be construed as including a county of a city and a county of a town. This section re-enacts a provision of Brougham's Act which must be retained for past Acts, but the application of which to future Acts is materially modified by the provisions of the Local Government Act, 1888. 5. In every Act passed after the year one thousand eight hundred and sixty-six, whether before or after the commence- ment of this Act, the expression ' parish ' shall, unless the contrary intention appears, mean, as respects England and Wales, a place for which a separate poor rate is or can be made, or for which a separate overseer is or can be appointed. This section re-enacts a provision contained in s. 18 of the Poor Law Amendment Act, 1866 (29 & 30 Vict. c. 113). 6. In this Act, and in every Act and Order of Council passed or made after the year one thousand eight hundred and forty-six, whether before or after the commencement of this Act, the expression 'county court' shall, unless the contrary intention appears, mean, as respects England and Wales, a court under the County Courts Act, 1888. This section re-enacts a provision in the County Courts Act, 1888 (51 & 5a Vict, u 43, s. 187), which was itself re-enacted from the County Courts Act of 1846. INTERPRETATION ACT, 1889 339 7. In every Act relating to Scotland, whether passed before App. II. or after the commencement of this Actj unless the contrary „ intention appears — of ' sheriff The expression ' sheriff clerk ' shall include steward clerk ; clerk,' &e. The expressions ' shire/ ' sheriffdom/ and ' county ' shall ^x.ctT " include any stewartry in Scotland. This section re-enacts a provision of a Scotch Act of 1837 (7 Will. IV and I Vict. c. 39). 8. Every section of an Act shall have effect as a sub- .Sections stantive enactment without introductory words. stantive This section is re-enacted from Brougham's Act. enac - ° ments. 9. Every Act passed after the year one thousand eight Acts to hundred and fifty, whether before or after the commencement ^cts. of this Act, shall be a public Act, and shall be judicially noticed as such, unless the contrary is expressly provided by the Act. This section is re-enacted from Brougham's Act. See above, pp. 27, 28. 10. Any Act may be altered, amended, or repealed in the Amend- £ Tj T i ment or same session or Ji'arliament. repeal of This section is re-enacted from Brougham's Act. Acts in same 11. — (i) "Where an Act passed after the year one thousand ^'^^^^°"- eight hundred and fifty, whether before or after the com- repeal mencement of this Act, repeals a repealing enactment, it passed^ shall not be construed as reviving any enactment previously ^^''<'® repealed, unless words are added reviving that enactment. (a) "Where an Act passed after the year one thousand eight hundred and fifty, whether before or after the commence- ment of this Act, repeals wholly or partially any former enactment and substitutes provisions for the enactment repealed, the repealed enactment shall remain in force until the substituted provisions come into operation. This section is re-enacted from Brougham's Act. As to the effect of repeals in later Acts, see s. 38. New General Rules of Construction. 13. In this Act, and in every other Act whether passed Official before or after the commencement of this Act, the following tUms^Lx z a 340 INTERPRETATION ACT, 1889 App. II. expressions shall, unless the contrary intention appears, have T , the meanings hereby respectively assigned to them, namely: — p&St 3,11 Cl future (i) The expression 'the Lord Chancellor shall, except when used with reference to Ireland only, mean the Lord High Chancellor of Great Britain for the time being, and when used with reference to Ireland only, shall mean the Lord Chancellor of Ireland for the time being. Under 5 Eliz. c. 18 the Lord Keeper of the Great Seal is the same • authority as the Lord Chancellor. (a) The expression ' the Treasury' shall mean the Lord High Treasurer for the time being or the Commissioners for the time being of Her Majesty's Treasury. Documents required by statute or otherwise to be signed by the Com- missioners of the Treasury, may be signed by any two or more of them (12 & 13 Vict. c. 89). (3) The expression ' Secretary of State ' shall mean one of Her Majesty's Principal Secretaries of State for the time being. (4) The expression 'the Admiralty' shall mean the Lord High Admiral of the United Kingdom for the time being, or the Commissioners for the time being for executing the office of Lord High Admiral of the United Kingdom. (5) The expression 'the Privy Council' shall, except when used with reference to Ireland only, mean the Lords and others for the time being of Her Majesty's Most Honourable Privy Council, and when used with reference to Ireland only shall mean the Privy Council of Ireland for the time being. (6) The expression ' the Education Department ' shall mean the Lords of the Committee for the time being of the Privy Council appointed for Education. The Education Department is now superseded by the Board of Educa- tion under 62 & 63 Vict. c. 33, s. i. (7) The expression 'the Scotch Education Department' shall mean the Lords of the Committee for the time being of the Privy Council appointed for Education in Scotland. (8) The expression 'the Board of Trade' shall mean the INTERPRETATION ACT, l88g 341 Lords of the Committee for the time being of the Privy App., II. Council appointed for the consideration of matters relating to trade and foreign plantations. (9) The expression ' Lord Lieutenant/ when used with reference to Ireland, shall mean the Lord Lieutenant of Ireland or other Chief Governors or Governor of Ireland for the time being. The officer popularly known in England as ' lord lieutenant' is properly designated 'lieutenant' of a county {see 45 & 46 Vict. c. 49, b. 29). (10) The expression ' Chief Secretary/ when used with reference to Ireland, shall mean the Chief Secretary to the Lord Lieutenant for the time being. (i i) The expression ' Postmaster-General ' shall mean Her Majesty's Postmaster- General for the time being. (la) The expression ' Commissioners of Woods ' or ' Com- missioners of Woods and Forests' shall mean the Commis- sioners of Her Majesty's Woods, Forests, and Land Revenues for the time being. The Commissioners were first appointed under 50 Geo. III. c. 65, and continued under the now operative Act, 10 Geo. IV. c. 50. By a & 3 Will. IV. c. X, they were reconstituted as the Commissioners of His Majesty's Woods, Forests, Land Revenues, Works, and Buildings, and took over the duties previously performed by the Surveyor-General of His Majesty's Works and Public Buildings. By 14 & 15 Vict. c. 4a the Commissioners of Works and Public Buildings were constituted, and the earlier division of powers was, except in some particulars, restored. (13) The expression 'Commissioners of Works' shall mean the Commissioners of Her Majesty's Works and Public Buildings for the time being. (14) The expression ' Charity Commissioners ' shall mean the Charity Commissioners for England and Wales for the time being. (15) The expression 'Ecclesiastical Commissioners' shall mean the Ecclesiastical Commissioners for England for the time being. (16) The expression 'Queen Anne's Bounty' shall mean the Governors of the Bounty of Queen Anne for the augmen- tation of the maintenance of the poor clergy. 342 INTERPRETATION ACT, 1889 App. II. Judicial defini- tions in past and future Acts. (17) The expression 'National Debt Commissioners' shall mean the Commissioners for the time being for the Reduction of the National Debt. (18) The expression 'the Bank of England' shall mean, as circumstances require, the Governor and Company of the Bank of England or the bank of the Governor and Company of the Bank of England. (19) The expression 'the Bank of Ireland' shall mean, as circumstances require, the Governor and Company of the Bank of Ireland, or the bank of the Governor and Company of the Bank of Ireland. (30) The expression ' consular officer ' shall include consul- general, consul, vice-consul, consular agent, and any person for the time authorized to discharge the duties of consul- general, consul, or vice-consul. A somewhat wider definition of ' consular officer ' is contained in s. 3 of the Consular Salaries and Pees Act, 1891 (54 & 55 Vict. c. 36). It will be observed that the definitions in this section are retrospective as well as prospective. 13. In this Act and in every other Act, whether passed before or after the commencement of this Act, the following expressions shall, unless the contrary intention appears, have the meanings hereby respectively assigned to them, namely : — (i) The expression ' Supreme Court,' when used with reference to England or Ireland, shall mean the Supreme Court of Judicature in England or Ireland, as the ease may be, or either branch thereof. (2) The expression ' Court of Appeal,' when used with reference to England or Ireland, shall mean Her Majesty's Court of Appeal in England or Ireland, as the ease may he. (3) The expression ' High Court,' when used with reference to England or Ireland, shall mean Her Majesty's High Court of Justice in England or Ireland, as the case may be. (4) The expression ' court of assize ' shall, as respects England, Wales, and Ireland, mean a court of assize, a court of oyer and terminer, and a court of gaol delivery, or any of INTERPRETATION ACT, 1889 343 them, and shall, as respects England and Wales, include the App. II. Central Criminal Court. (5) The expression 'assizes/ as respects England, Wales, and Ireland, shall mean the courts of assize usually held in every year, and shall include the sessions of the Central Criminal Court, but shall not include any court of assize held by virtue of any special commission, or, as respects Ireland, any court held by virtue of the powers conferred by section sixty-three of the Supreme Court of Judicature Act 40 & 41 n 1 1\ n Vict. C, ST. (Ireland), 1877. ^' (6) The expression 'the Summary Jurisdiction Act, 1848,' shall mean the Act of the session of the eleventh and twelfth years of the reign of Her present Majesty, chapter forty- three, intituled, 'An Act to facilitate the performance of the duties of justices of the peace out of sessions within England and Wales with respect to summary convictions and orders.'' (7) The expression 'the Summary Jurisdiction (England) Acts ' and the expression ' the Summary Jurisdiction (English) Acts^ shall respectively mean the Summary Jurisdiction Act, n & 12 1848, and the Summary Jurisdiction Act, 1879, and any Act, 42 & 43'^^ past or f uturCj amending those Acts or either of them. ^^°^- °- 49- (8) The expression 'the Summary Jurisdiction (Scotland) Acts ■" shall mean the Summary Jurisdiction (Scotland) Acts, ^^ & 28 1864 and 1881, and any Act, past or future, amending those ^l^i^^l^^' Acts or either of them. "Vict. 0. 33. (9) The expression ' the Summary Jurisdiction (Ireland) Acts ' shall mean, as respects the Dublin Metropolitan Police District, the Acts regulating the powers and duties of justices of the peace or of the police of that district, and as respects any other part of Ireland, the Petty Sessions (Ireland) Act, 14 & 15 1 85 1, and any Act, past or future, amending the same. (10) The expression ' the Summary Jurisdiction Acts ' when used in relation to England or Wales shall mean the Summary Jurisdiction (England) Acts, and when used in relation to Scotland the Summary Jurisdiction (Scotland) Acts, and 344 INTERPRETATION ACT, 1 889 App. II. when used in relation to Ireland the Summary Jurisdiction (Ireland) Acts. (11) The expression 'court of summary jurisdiction' shall mean any justice or justices of the peace, or other magistrate, by whatever name called, to whom jurisdiction is given by, or who is authorized to act under, the Summary Jurisdiction Acts, whether in England, Wales, or Ireland, and whether acting under the Summary Jurisdiction Acts or any of them, or under any other Act, or by virtue of his commission, or under the common law. Justices at a licensing meeting are not a court of summary juris- diction, Boulter v. Kent Justices [1897], A. C. 556. The definition of ' court of summary jurisdiction ' for Scotland was struck out during the passage of the Bill through the House of Lords, and consequently it is sometimes necessary to insert a special definition in enactments relating to Scotland, The form of definition commonly in use is — ' The expression " court of summary jurisdiction '' means the sheriff or any justice or justices of the peace, or any magistrate or magistrates, by whatever name called, having jurisdiction or authorized to act under the Summary Jurisdiction (Scotland) Acts.' Under s. 28 of the Interpretation Act, "sheriff" includes sheriff substitute. (la) The expression 'petty sessional court' shall, as respects England or Wales, mean a court of summary jurisdiction consisting of two or more justices when sitting in a petty sessional court-house, and shall include the Lord Mayor of the city of London, and any alderman of that city, and any metropolitan or borough police magistrate or other stipendiary magistrate when sitting in a court-house or place at which he is authorized by law to do alone any act authorized to be done by more than one justice of the peace. (13) The expression 'petty sessional court-house' shall, as respects England or Wales, mean a court-house or other place at which justices are accustomed to assemble for holding special or petty sessions, or which is for the time being appointed as a substitute for such a court-house or place, and where the justices are accustomed to assemble for either special or petty sessions at more than one court-house or place in a petty sessional division, shall mean any such court-house INTERPRETATION ACT, 1889 345 or place. The expression shall also include any court-house App. ir. or place at which the Lord Mayor of the city of London or any alderman of that city, or any metropolitan or borough police magistrate or other stipendiary magistrate is authorized by law to do alone any act authorized to be done by more than one justice of the peace. (14) The expression 'court of quarter sessions' shall mean the justices of any county, riding, parts, division, or liberty of a county, or of any county of a city, or county of a town, in general or quarter sessions assembled, and shall include the court of the recorder of a municipal borough having a separate court of quarter sessions. 14. In every Act passed after the commencemen"t of this Meaning Act, unless the contrary intention appears, the expression of court.' 'i-ules of court' when used in relation to any court shall mean rules made by the authority having for the time being power to make rules or orders regulating the practice and procedure of such court, and as regards Scotland shall include acts of adjournal and acts of sederunt. The power of the said authority to make rules of court as above defined shall include a power to make rules of court for the purpose of any Act passed after the commencement of this Act, and directing or authorizing anything to be done by rules of court. This section is not retrospective. 15. In this Act and in every Act passed after the com- Meaning mencement of this Act the following expressions shall, unless Soroush the contrary intention appears, have the meanings hereby respectively assigned to them, namely : — (i) The expression 'municipal borough' shall mean, as respects England and Wales, any place for the time being subject to the Municipal Corporations Act, 1883, and any 45 & 46 reference to the mayor, aldermen, and burgesses of a borough ' '^' ^°' shall include a reference to the mayor, aldermen, and citizens of a city, and any reference to the powers, duties, liabilities 346 INTERPRETATION ACT, 1889 App. II. or property of the council of a borough shall be construed " as a reference to the powers, duties, liabilities, or property of the mayor, aldermen, and burgesses of the borough acting by the council. (a) The expression 'municipal borough' shall mean, as respects Ireland, any place for the tibae being subject to the Act of the session of the third and fourth years of the reign of Her present Majesty, chapter one hundred and eight, intituled ' An Act for the regulation of municipal corporations in Ireland/ (3) The expression 'parliamentary borough' shall mean any borough, burgh, place or combination of places returning a member or members to serve in Parliament, and not being either a county or division of a county, or a university, or a combination of universities. (4) The expression ' borough ' vrhen used in relation to local government shall mean a municipal borough as above defined, and when used in relation to parliamentary elections or the registration of parliamentary electors shall mean a parliamentary borough as above defined. This section is not retrospective. The definition of borough will some- times require consideration with reference to the metropolitan boroughs under the London Government Act, 1899, which are not places subject to the provisions of the Municipal Corporations Act, 1882. Meaning 16. In this Act and in every Act passed after the com- dians and mencement of this Act the following expressions shall, unless the contrary intention appears, have the meanings hereby respectively assigned to them, namely : — (i) The expression ' board of guardians ' shall, as respects England and Wales, mean a board of guardians elected under 4*5 the Poor Law Amendment Act, 18^4, and the Acts amending Will. IV. . -^ c. 76. the same, and shall include a board of guardians or other body of persons performing under any local Act the like functions to a board of guardians under the Poor Law Amendment Act, 1834. (a) The expression 'poor law union' shall, as respects INTERPRETATION ACT, 1889 347 England and Wales, mean any parish or union of parishes App. II. for which there is a separate board of guardians. (3) The expression 'board of guardians' shall, as respects Ireland, mean a board of guardians elected under the Act of the session of the first and second years of the reign of Her present Majesty, chapter fifty-six, intituled ' An Act for the more effectual relief of the destitute poor in Ireland,' and the Acts amending the same, and shall include any body of persons appointed by the Local Government Board for Ireland to carry into execution the provisions of those Acts. (4) The expression ' poor law union ' shall, a^ respects Ireland, mean any townland or place or union, or townlands or places, for which there is a separate board of guardians. This section is not retrospective. 17. In every Act passed after the commencement of this Defini- Act, the following expressions shall, unless the contrary relating intention appears, have the meanings hereby respectively i°g^^°' assigned to them, namely : — (i) The expression 'parliamentary election' shall mean the election of a member or members to serve in Parliament for a county or division of a county, or parliamentary borough or division of a parliamentary borough, or for a university or combination of universities. (a) The expression 'parliamentary register of electors' shall mean a register of persons entitled to vote at any parliamentary election. (3) The expression 'local government register of electors' shall mean as respects an administrative county in England or Wales other than a county borough, the county register, and as respects a county borough or other municipal borough, the burgess roll. This section is not retrospective. It must be borne in mind that the register under sub-section (3) does not include parochial electors. 18. In this Act, and in every Act passed after the com- Geogra- mencement of this Act, the following expressions shall, and"* 348 INTERPRETATION ACT, 1889 App. II. unless the contrary intention appears, have the meanings l^Tl ^s'^^^y respectively assigned to them, namely : — defini- (i) The expression ' British Islands ' shall mean the United future Kingdom, the Channel Islands, and the Isle of Man. Acts. ^^ ijj^g expression ' British possession ' shall mean any part of Her Majesty's dominions exclusive of the United Kingdom, and where parts of such dominions are under both a central and a local legislature, all parts under the central legislature shall, for the purposes of this definition, be deemed to be one British possession. (3) The expression 'colony' shall mean any part of Her Majesty's dominions exclusive of the British Islands, and of British India, and where parts of such dominions are under both a central and a local legislature, all parts under the central legislature shall, for the purposes of this definition, be deemed to be one colony. (4) The expression ' British India ' shall mean all territories and places within Her Majesty's dominions which are for the time being governed by Her Majesty through the Governor- General of India or through any governor or other officer subordinate to the Governor-General of India. (5) The expression 'India' shall mean British India together with any territories of any native prince or chief under the suzerainty of Her Majesty exercised • through the Governor- General of India, or through any governor or other officer subordinate to the Governor-General of India. (6) The expression ' Governor ' shall, as respects Canada and India, mean the Governor-General, and include any person who for the time being has the powers of the Governor- General, and as respects any other British posses- sion, shall include the officer for the time being administering the government of that possession. (7) The expression ' colonial legislature ' and the expression ' legislature,' when used with reference to a British possession, shall respectively mean the authority, other than the Imperial INTERPRETATION ACT, l88g 349 Parliament or Her Majesty the Queen in Council, competent App. tl, to make laws for a British possession. This section is not retrospective. It is framed on the view that when powers are conferred on the legislature of a British possession having both a central legislature and a local legislature, or on the Government of a British possession having both a Governor-General and subordinate governors, as in the case of India, Canada, or Australia, the powers are usually intended to be exercised by the central legislature or by the Governor-General. "Where it is intended to confer by Act of Parliament power on a local legislature, or on a subordinate governor, special provision must be made in the Act. {See, e. g., 55 & 56 Vict. u. 6, s. 4.) 19. In this Act and in every Act passed after the com- Meaning mencement of this Act, the expression 'person^ shall, unless son' in the contrary intention appears, include any body of persons ^^J""® corporate or unincorporate. This section is not retrospective. See note on s. a above. 20. In this Act and in every other Act whether passed Mean- before or after the commencement of this Act, expressions < writing' referring to writing shall, unless the contrary intention I'l P''^* appears, be construed as including references to printing, future lithography, photography, and other modes of representing or reproducing words in a visible form. This section is retrospective. 21. In this Act, and in every other Act, whether passed Mean- before or after the commencement of this Act, the expression ^^fatutory ' statutory declaration ' shall, unless the contrary intention ^^<'^^^^- appears, mean a declaration made by virtue of the Statutory past and Declarations Act, 1835. Acts. This section is retrospective. Will IV 22. In this Act and in every Act passed after the com- ,' '. •' ^ Meaning mencement of this Act, the expression ' financial year ' shall, of ' finan- . . cial year ' unless the contrary intention appears, mean as respects any in future matters relating to the Consolidated Fund or moneys pro- " ^' vided by Parliament, or to the Exchequer, or to Imperial taxes or finance, the twelve months ending the thirty-first day of March. This section is not retrospective. By s. 73 of the Local Government 350 INTERPRETATION ACT, 1889 App, II. Act, 1888 (51 & 52 Viet. u. 41), the year ending the thirty-first day of March is made the 'local financial year' for the accounts of local authorities. 23. In any Act passed after the commencement of this Act, unless the contrary intention appears, — The expression ' Lands Clauses Acts ' shall mean — (ff) as respects England and Wales, the Lands Clauses Consolidation Act, 1845, the Lands Clauses Consolida- tion Acts Amendment Act, i860, the Lands Clauses Consolidation Act, 1869, and the Lands Clauses (Umpire) Act, 1883, and any Acts for the time being in force amending the same; and [b) as respects Scotland, the Lands Clauses Consolidation (Scotland) Act, 1845, and the Lands Clauses Con- solidation Acts Amendment Act, i860, and any Acts for the time being in force amending the same j and (c) as respects Ireland, the Lands Clauses Consolidation Act, 1845, the Lands Clauses Consolidation Acts Amendment Act, i860, the Railways Act (Ireland), 1851, the Railways Act (Ireland), i860, the Railways Act (Ireland), 1864, and the Railways Traverse Act, and any Acts for the time being in force amending the same. This section is not retrospective. Meaning 24. In any Act passed before or after the commencement Valuation o^ ^^^^ Act, the expression ' Irish Valuation Acts' shall mean Acts. ^jjg Acts relating to the valuation of rateable property in Ireland. This section is retrospectiye. Definition of Lands Clauses Acts. 8 & 9 Vict. .;. 18. 23 & 24 Vict. c. 106. 32 & 33 Vict. c. 18. 46 & 47 Vict. c. 15. 8 & 9 Vict, c. 19. 23 & 24 Vict.c.io6. 8 & 9 Vict. c. 18. 23 & 24 Vict. c. 97. 14 & 15 Vict. c. 70. 27 &; 28 Vict. c. 71. 31 & 32 Vict. c. 70. Meaning of ' Ord- nance map.' 25. In this Act and in every other Act, whether passed before or after the commencement of this Act, the expression 'ordnance map' shall, unless the contrary intention appears, mean a map made under the powers conferred by the Survey (Great Britain) Acts, 1841 to 1870, or by the Survey INTERPRETATION ACT, 1889 351 (Ireland) Acts, 1835 to 1870, and the Acts amending the App. Ii. same respectively. This section is retrospective. 26. Where an Act passed after the commencement of this Meaning Act authorizes or requires any document to be served by post, ^y post. whether the expression ' serve,' or the expression ' give ' or ' send,'' or any other expression is used, then, unless the contrary intention appears, the service shall be deemed to be effected by properly addressing, prepaying, and posting a letter containing the document, and unless the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post. This section in effect generalizes a provision as to service hy post which is to be found in Table A of the Companies Act, 1862, in s. 85 of the Explosive Substances Act, 1875 (38 & 39 Vict. c. 17), and in other Acts. The section is not retrospective. 27. In every Act passed after the" commencement of this Meaning Act, the expression ' committed for trial,'' used in relation to mitted for any person shall, unless the contrary intention appears, mean, *"* ' as respects England and Wales, committed to prison with the view of being tried before a judge and jury, whether the person is cominitted in pursuance of section twenty-two or of section twenty-five of the Indictable Offences Act, 1848, n & 12 or is committed by a court, judge, coroner, or other authority ^^ ' "' '^'^' having power to commit a person to any prison with a view to his trial, and shall include a person who is admitted to bail upon a recognizance to appear and take his trial before a judge and jury. This section is not retrospective. 28. In this Act and in every Act passed after the com- Meanings OT ^ri A"l*l fl mencement of this Act, unless the contrary intention < felony,' ' annparq and 'mis- appears— ^ demean- The expression ' sheriff ' shall, as respects Scotland, include our ' in . . future a sheriff substitute ; Scotch The expression 'felony' shall, as respects Scotland, mean a high crime and offence ; INTERPRETATION ACT, 1889 App. II. The expression 'misdemeanour' shall, as respects Scotland, ' mean an offence. This section is not retrospective. Meaning 29. In every Act passed after the commencement of this couri-^rn^ Act, unless the contrary intention appears, the expression Irish Acts '''ounty court' shall, as respects Ireland, mean a civil bill 40 & 41 court within the meaning of the County Officers and Courts '" • "'5 • (Ireland) Act, 1877. This section is not retrospective. Refer- 30. In this Act, and in every other Act, whether passed ences to , „ ill ^i r ">* the betore or atter the commencement of this Act, references to rown. ^^g Sovereign reigning at the time of the passing of the Act or to the Crown shall, unless the contrary intention appears, be construed as references to the Sovereign for the time being, and this Act shall be binding on the Crown. The declaration made by this section as to the effect of references to the Crown merely states what is probably the effect of existing enact- ments, but the occasional reference to ' Her Majesty, her heirs and successors,' seems to show that the point had not been considered free from doubt. Construe- 31. Where any Act, whether passed before or after the tion of statutory commencement of this Act, confers power to make, grant, or ru es, c. jgg^g g^jjy instrument, that is to say, any Order in Council, order, warrant, scheme, letters patent, rules, regulations, or by-laws, expressions used in the instrument, if it is made after the commencement of this Act, shall, unless the con- trary intention appears, have the same respective meanings as in the Act conferring the power. This section obviates the necessity for special definition clauses in many seta of statutory i-ules. It does not apply to rales made before January i, 1890, but it does apply to rules made after that date under Acts passed before that date. In framing rules under an Act it ia considered desirable to state expressly that the Interpretation Act docs apply. Construe- 82.— (i) Where an Act passed after the commencement of asto'ex"" *^^^ ^^^ confers a power or imposes a duty, then, unless the contrary intention appears, the power may be exercised and INTERPRETATION ACT, 1889 353 the duty shall be performed from time to time as occasion App. II. requires. . , ^ cise of The effect of this sub-section is to make the insertion of the words and duties 'from time to time' usually unnecessary. Those words were formerly inserted for the purpose of removing the application of the doctrine that a statutory power is exhausted by its first exercise unless its repetition is expressly authorized. The presumption on this point is now reversed. If it is intended that a statutory power should not be exercised recurrently this should be stated. (a) Where an. Act passed after the commencement of this Act confers a power or imposes a duty on the holder of an office, as such, then, unless the contrary intention appears, the power may be exercised and the duty shall be performed by the holder for the time being of the office. This sub-section obviates the necessity for using the expression ' for the time being ' in many cases. (3) Where an Act passed after the commencement of this Act confers a power to make any rules, regulations, or by- laws, the power shall, unless the contrary intention appears, be construed as including a power, exerciseable in the like manner and subject to the like consent and conditions, if any, to rescind, revoke, amend, or vary the rules, regulations, or by-laws. The effect of this sub-section is, that where a power is given to make rules, it is unnecessary to add an express power to alter, revoke, vary, or add to the rules when made. It will be observed that the sub-section does not apply to orders, such as Orders in Council, or to documents, such as warrants. 33. Where an act or omission constitutes an offence under Provisions two or more Acts, or both under an Act and at common law, offences whether any such Act was passed before or after the com- '^"'Jer two , or more mencement of this Act, the offender shall, unless the contrary laws. intention appears, be liable to be prosecuted and punished under either or any of those Acts or at common law, but shall not be liable to be punished twice for the same offence. This section generalizes a provision which had been of frequent occur- rence in modern general Acts of Parliament. iLBERT A a 354 INTERPRETATION ACT, 1889 App. II. 34. In the measurement of any distance for the purposes Measure- °^ ^^^ "'^^^ passed after the commencement of this Act, that meut of distance shall, unless the contrary intention appears, he measured in a straight line on a horizontal plane. The rule embodied in this section is probably the most convenient rule of measurement in the majority of cases. Where the intention is that a distance should be measured by the nearest practicable road, special words should be used (see, b. g., 33 & 34 "Vict. c. 75, s. 74). Citation of 35. — (i) In any Act, instrument, or document, an Act may be cited by reference to the short title, if any, of the Act, either with or without a reference to the chapter, or by refer- ence to the regnal year in which the Act was passed, and where there are more statutes or sessions than one in the same regnal year, by reference to the statute or the session, as the case may require, and where there are more chapters than one, by reference to the chapter, and any enactment may be cited by reference to the section or sub-section of the Act in which the enactment is contained. This sub-section re-enacts part of s. 3 of Brougham's Act in a. shorter form. (3) Where any Act passed after the commencement of this Act contains such reference as aforesaid, the reference shall, unless a contrary intention appears, be read as referring, in the case of statutes included in any revised edition of the statutes purporting to be printed by authority, to that edition, and in the case of statutes not so included, and passed before the reign of King George the First, to the edition prepared under the direction of the Record Commission ; and in other cases to the copies of the statutes purporting to be printed by the Queen's Printer, or under the superintendence or authority of Her Majesty's Stationery Office. This sub-section reproduces another part of s. 3 of Brougham's Act with the necessary modernizations. The proviso to s. 3 of Brougham's Act had not been observed, and was not i-eproduced by the Interpretation Act. (3) In any Act passed after the commencement of this Act a description or citation of a portion of another Act shall, INTERPRETATION ACT, l88g 355 unless the contrary intention appears, be construed as in- App. II. eluding the word, section, or other part mentioned or referred to as forming the beginning and as forming the end of the portion comprised in the description or citation. This sub-section reproduces a. direction which had been inserted in modern repealing schedules. 36. — (i) In this Act, and in every Act passed either before 'Com- or after the commencement .of this Act, the expression ' com- ment/ meneement,' when used with reference to an Act, shall mean the time at which the Act comes into operation. This sub-section generalizes a provision which, before the passing of the Act of 1889, it had been found necessary to insert in almost every Act. (q,) Where an Act passed after the commencement of this Act* or any Order in Council, order, warrant, scheme, letters patent, rules, regulations, or by-laws made, granted, or issued, Tinder a power conferred by any such Act, is expressed to come into operation on a particular day, the same shall be construed as coming into operation immediately on the expira- tion of the previous day. This sub-section probably does no more than aifirm the existing rule. But the use of the expression ' On and after the commencement of this Act,' and the fact that some Acts were expressed to commence, say, on January i whilst others were expressed to commence from and imme- diately after December 31, seemed to show that doubts might be enter- tained as to the precise moment at which an Act comes into operation. 37. Where an Act passed after the commencement of this Exercise ... . . . ,. , , . ofstatu- Act IS not to come mto operation immediately on the passing tory thereof, and confers power to make • any appointment, to between make, grant, or issue any instrument, that is to say, any passing Order in Council, order, warrant, scheme, letters patent, mence- rules, regulations, or by-laws, to give notices, to prescribe ^^^ forms, or to do any other thing for the purposes of the Act, that power may, unless the contrary intention appears, be exercised at any time after the passing of the Act, so far as may be necessary or expedient for the purpose of bringing the Act into operation at the date of the commencement A a 2 356 mTERPRETATION ACT, 1889 App. II. thereof, subject to this restriction, that any instrument made under the power shall not, unless the contrary intention appears in the Act, or the contrary is necessary for bringing the Act into operation, come into operation until the Act comes into operation. This section re-enacts in a general form a provision which it had been constantly found necessary to insert in modern Acts. Efiect of 38. — (i) Where this Act or any Act passed after the corn- repeal in jnencement of this Act repeals and re-enacts, with or without Acts. modification, any provisions of a former Act, references in any other Act to the provisions so repealed, shall, unless the contrary intention appears, be construed as references to the provisions so re-enacted. This sub-seotion does not apply to references in documents other than Acts. (a) Where this Act or any Act passed after the commence- ment of this Act repeals any other enactment, then, unless the contrary intention appears, the repeal shall not — (a) revive anything not in force or existing at the time at which the repeal takes effect j or {b) affect the previous operation of any enactment so re- pealed or anything duly done or suffered under any enactment so repealed; or (c) affect any right, privilege, obligation, or liability ac- quired, accrued, or incurred under any enactment so repealed; or {(!) affect any penalty, forfeiture, or punishment incurred in respect of any offence committed against any enact- ment so repealed ; or (e) affect any investigation, legal proceeding, or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment as afore- said ; and any such investigation, legal proceeding, or remedy may be instituted, continued, or enforced, and any such penalty, INTERPRETATION ACT, 1889 357 forfeiture, or punishment may be imposed, as if the repealing App. ii. Act had not passed. This section generalizes provisions which had become almost common forms in recent Acts. The common law rule was that a statute is not, in the absence of express words, to be construed reti-ospectively, but an alteration of procedure did not fall within this rule. See Republic of Costa Rica V. Erlanger (1873), h. E., 3 Ch. D. 69 ; Seston and Isleworth Urban Council V. Grant (1897), L. E., a Ch. D. 306 ; Young v. Adams A. G. [1898] 469. Special provisions as to the effect of repeal will still be required in particular cases. As to the effect of the savings embodied in this section see In re the Tithe Act, 1891, Roberts v. Potts L. R. [1894], i Q. B. D. 213. APPENDIX III RULES PUBLICATION ACT, 1893 (56 & 57 Viet. c. 66.) An Act for the publication of Statutory Rules. [aist December, 1893.] The object of the Rules Publication Act, 1893, is twofold— (i) to supply facilities for criticizing the drafts of i-ules proposed to be made under statutory authority, and (2) to improve the pi-ovisions for the publication of such rules when made. Section i gives effect to the first of these objects by providing machinery similar to that usually applied to the making of by-laws (see, e. g., as. 182 to 186 of the Public Health Act, 1875, 38 & 39 Vict. c. 55) ; but its applica- tion is limited. It applies to statutory rules (as defined by s. 4) made in pursuance of any Act of Parliament which directs the statutory rules to be laid before Parliament. But it does not apply to statutory rules if the rules or the draft thereof are or is required to be laid before Parliament for any period before the rules come into operation. In this case the laying before Parliament is supposed to supply a sufficient opportunity for criticism. Certain departmental rules are also expressly excluded from the operation of the section. And the section is declared not to apply to Scotland. Section 2 enables rules to be issued at once in cases of urgency without going through the probationary period required by s. i. But these rules are to be provisional only, and are to be superseded by rules made in accordance with the ordinary machinery. The object of s. 3 is to improve the system of publishing statutory rules, which, before the passing of this Act, were not always easy to find. The statutory rules and orders of each year are now published annually in volumes corresponding in size and character to the annual volumes of statutes. This arrangement was begun in 1890. The statutory rules and orders previous to 1890 are arranged in alphabetical order in a set of eight volumes, corresponding to the second edition of the Eevised Statutes. An Index to the statutory rules and orders was published for the first time in 1893, and is revised from time to time. Separate copies of statiitory rules and orders may be obtained on application to the King's Printers. RULES PUBLICATION ACT, 1893 359 1. — (i) At least forty days before making any statutory rules Apr. ill. to which this section applies, notice of the proposal to make „ , . . the rules, and of the place where copies of the draft rules may and reprc- be obtained, shall be published in the London Gazette. respecting (a) During those forty days any public body may obtain ^r^ft^'^ieg copies of such draft rules on payment of not exceeding three- pence per folio, and any representations or suggestions made in writing by a public body interested to the authority proposing to make the rules shall be taken into considera- tion by that authority before finally settling the rules ; and on the expiration of those forty days the rules may be made by the rule-making authority, either as originally drawn or as amended by such authority, and shall come into operation forthwith or at such time as may be prescribed in the rules. (3) Any enactment which provides that any statutory rules to which this section applies shall not come into operation for a specified period after they are made is hereby repealed, but this repeal shall not affect section thirty-seven of the Inter- 52 & 53 pretation Act, 1889. " ' "' ^' (4) The statutory rules to which this section applies are those made in pursuance of any Act of Parliament which directs the statutory rules to be laid before Parliament, but do not include any statutory rules if the same or a draft thereof are required to be laid before Parliament for any period before the rules come into operation, nor do they include rules made by the Local Government Board for England or Ireland, the Board of Trade, or the Revenue Departments, or by or for the purpose of the Post Office; nor rules made by the Board of Agriculture under the Contagious Diseases (Animals) Act, 1878, and the Acts 41 & 42 Vict. c. 74. amendmg the same. 55 & 56 (5) This section shall not apply to Scotland. ^'''*' "• ■*'■ (6) In the case of any rules which it is proposed shall extend to Ireland, publication in the DubHn Gazette of the notice required by this section shall be requisite in addition 360 RULES PUBLICATION ACT, 1893 App. III. to, or, if they extend to Ireland only, in lieu of, publication in the London Gazette. Provision- al rules in certain iiaaes. Printing, number- ing, and sale of statutory rules. 2. "Where a rule-making authority certifies that on account of urgency or any special reason any rule should come into immediate operation, it shall be lawful for such authority to make any such rules to come into operation forthwith as provisional rules, but such provisional rules shall only continue in force until rules have been made in accordance with the foregoing provisions of this Act. 3. — (1) All statutory rules made after the thirty-first day of December next after the passing of this Act shall forth- with after they are made be sent to the Queen's printer of Acts of Parliament, and shall, in accordance with regulations made by the Treasury, with the concurrence of the Lord Chancellor and the Speaker of the House of Commons, be numbered, and (save as provided by the regulations) printed, and sold by him. (3) Any statutory rules may, without prejudice to any other mode of citation, be cited by the number so given as above mentioned and the calendar year. (3) Where any statutory rules are required by any Act to be published or notified in the London, Edinburgh, or Dublin Gazette, a notice in the Gazette of the rules having been made, and of the place where copies of them can be purchased, shall be sufficient compliance with the said requirement. The object of this provision was to save expensfe. Under the old system unnecessary expense was caused by the obligation to print the rules in two forms, one suitable to the London Gazette, the other for separate publication. (4) Regulations under this section may provide for the different treatment of statutory rules which are of the nature of public Acts, and of those which are of the nature of local and personal or private Acts ; and may determine the classes of eases in which the exercise of a statutory power by any rule-making authority constitutes or does not constitute the RULES PUBLICATION ACT, 1893 361 making of a statutory rule within the meaning of this section, App. III. and may provide for the exemption from this section of any such classes. See these regulations below. (5) In the making of such regulations, each Government department concerned shall be consulted, and due regard had to the views of that department. 4. In this Act — Deiini- ' Statutory rules ' means rules, regulations, or by-laws "°"'- made under any Act of Parliament which (a) relate to any court in the United Kingdom, or to the procedure, practice, costs, or fees therein, or to any fees or matters applying generally throughout England, Scotland, or Ireland ; or (b) are made by Her Majesty in Council, the Judicial Committee, the Treasury, the Lord Chan- cellor of Great Britain, or the Lord Lieutenant or the Lord Chancellor of Ireland, or a Secretary of State, the Admiralty, the Board of Trade, the Local Govern- ment Board for England or Ireland, the Chief Secretary for Ireland, or any other Government Department. 'Rule-making authority' includes every authority authorized to make any statutory rules. 5. This Act may be cited as the Rules Publication Act, short o title. 1893. Regulations made by the Teeasuey with the concurrence of the LoKD Chancellor and the Speaker of the House of Commons in pursuance of the Rules Publication Act, 1893. Whereas by the Eules Publication Act, 1893, hereinafter referred to as 56 & 57 ' the Act,' regulations are authorized to be made by the Treasury, with "Vict. c. 66. the concurrence of the Lord Chancellor and the Speaker of the House of Commons, for such purposes in relation to Statutoi-y Rules as are therein mentioned. Now, therefore. We, the Lords Commissioners of Her Majesty's Treasury, in pursuance of the said Act, and of all other powers in that behalf, do 362 RULES PUBLICATION ACT, 1893 Ai'p. III. liereby, with the concurrence of the Lord Chancellor and of the Speaker of the House of Commons, make the following regulations : — 1. Every exercise of a statutory power hy a rule-making authority, which is of a legislative and not an executive character, shall be held to be a Statutory Eule within section three of the Act and these regulations. 2. An exercise of a statutory power which is confirmed only by a rule- making authority shall not be held to be a Statutory Rule within section three of the Act or these regulations. 3. Except as mentioned in Regulation 2, the volumes of Statutory Rules and Orders published by the Stationery Office in 1890, 1891, and 1892 shall form a practical guide for determining those exercises of statutory powers which should be treated as Statutory Rules within section three of the Act and these regulations. 4. A distinction shall be drawn between Statutory Rules which are general and those which are local and pi isonal. 5. The distinction shall follow, unless in exceptional circumstances, that adopted between public Acts and local and personal Acts of Parlia- ment. 6. All Statutory Rules when sent to the Queen's printer of Acts of Parliament, as required by the Act, shall be numbered consecutively as nearly as may be in the order in which they are received by the Queen's printer, and either with or without a second number for a particular class of rules. 7. The main series of numbers shall be a separate series for each calendar year, but Statutory Rules made in December in any year, and received by the Queen's printer of Acts of Parliam'ent within 14 days after the end of that year, may be numbered with the Statutory Rules of that year and included in the annual volume of that year. 8. All Statutory Rules shall be printed and sold unless, in the case of rules not required to be published in any Gazette, the rule-making authority declare that it is unnecessary to print and sell them, and such declaration is not overruled on a reference under Regulation 15. 9. Statutory Rules similar to public general Acts shall be printed in an annual volume, and that volume shall include a list of the statutory rules which are similar to local and personal Acts. 10. The rule-making authority, in sending any statutory rule to the Queen's printer of Acts of Parliament, shall state whether they consider the rule to be general or local and personal, and that statement shall be followed unless overruled on a reference under Regulation 15. 11. In the annual volume of Statutory Rules the general rules shall be published in a classified form, as in the volumes mentioned above in Regulation 3 which have been hitherto published. 12. Regulations 6 and 8 shall apply to temporary statutory rules, but if they have ceased to be in force at the time of the publication of the annual volume, or will so cease a short time afterwards, they shall not be included in that volume, unless the rule-making authority inform the Queen's printer of Acts of Parliament that they desire them to be so included. 13. The Treasury, with the concurrence of the Lord Chancellor and the Speaker of the House of Commons, may direct the exclusion from publication at length in any annual volume, of any rules which it seems RULES PUBLICATION ACT, 1893 363 to them unnecessary so to publish by reason of their annual or other App. III. periodical renewal ; as, for instance, the militia regulations, the volunteer regulations, or the education code. 14. Any statutory rule or class of statutory rules which, on the applica- tion of the rule-making authority, may be determined by the Treasury, with the concurrence of the Lord Chancellor and the Speaker of the House of Commons, to be confidential, shall be exempted from section three of the Act and from these regulations. 15. Any question which arises under Regulation 8 as to the printing and sale of Statutory Eules, or under Regulation 10 as to Statutory Rules being general or local and personal, or which arises on the application or interpretation of these regulations, shall be referred to the Treasury, and determined by them with the concurrence of the Lord Chancellor and the Speaker of the House of Commons. R. K. CAUSTON, W. McARTHUR, (Commissioners of Her Majesty's Treasury). I concur, HERSCHELL, C. I concur, ARTHUR W. PEEL, Speaker, August 9, 1894. INDEX Abinger, Lord, quoted, 315. Acts, Colonial, collective editions of, 202-207. Acts of Parliament, antiquity and continuity, 2 ; effect of judicial construction, 7 ; general descrip- tion, 20, 26-28, 35 ; classification, 21, 49, 64 ; preparation, 77-97, 227-229 ; judges as draftsmen, 77-79 > process of making, 98- 106, 230, 231 ; authentication, 105 ; causes of defective form, 229 ; general principles of draft- ing, 237-242 ; formal clauses in, 272-280 ; definitions in, 281 ; central authorities administer- ing, 281-283 ; legal proceedings under, 322-326. See also Table of Statutes, at pp. xxi-xxix. Aden, Jew^s of, under Hebrew law of succession, 153. Administrative law, 36, 209, 210, 219, 239. African Colonies, law in, 172. See also Crown Colonies. AUgemeines Landrecht fiir die Preussischen Staaten, 17. America, codification in, 155-157. Anne, Queen, 2r, 23, 33. Anson's Law and Custom of the Constitution referred to, 98. Anstey, Chisholm, work on consoli- dation of law, 54, 55. Appropriation Act, 292, 293. Appropriations in aid, 294. Australasia, legislation in, 172 ; statute law of, 177, 178 ; prepara- tion, publication, and stages of Bills, 180-182, 185, 186 ; sessions of legislature, 186, 187; number- ing, publication, and editions of statutes, 187, 188, 191-193, 19s- 197 ; private Bill legislation, 188, 189 ; codes, 200-202. Austrian Codes, 17, 158. B. Bacon, Sir Francis, proposed digest of law, 45. Bacon, Sir Nicholas, scheme for improvement of statute law, 44. Bahamas, law in, 178 ; preparation of Bills, 183. Bentham quoted or refen'ed to, 5, 25, 81, 122-127, i^ij 210, 237. Bermuda, preparation of Bills, 183. Bethune, Drinkwater, 83. Bills. See Private Bills ; Public Bills. Booth, Mr., 92, 261. Brickdale, Mr., drafts of Consolida- tion Bills, 54, 55. British Bechuanaland, law in, 179. — Columbia, law of, 177. — Guiana, law in, 170 ; prepara- tion of Bills, 183. — Honduras, preparation of Bills, 183 ; Criminal Code, 200. — New Guinea, preparation of Bills, 182. Brougham, Lord, Act, 27, 68, 336- 339 ; commission on statute law, 51 ; introduction of digest of law, 52. Bryce's American Commonwealth quoted or referred to, 99, 213, 222, 223. Burnet, Bishop, quoted, 43. By-laws by local authorities, 314- 317- C. Cairns, Lord Chancellor, referred to or quoted, 24, 62-66, 76. Californian Codes, 156, 157. Campbell, Lord Chancellor, 59. Canada, Criminal Code, 155, 200 ; French law, 155, 168 ; statute law, 176, 177 ; preparation, pub- lication, and stages of Bills, 180, 185, 186 ; sessions of legislature, 187 ; numbering, publication, and INDEX 365 editions of statutes, 187, 191, 194 ; private Bill legislation, 188. Canon law, 4, 17. Cape Colony, survival of Eoman- Dutch law, i6g, 170. Cattle Pleuro-Pneumonia account, 295- Ceylon, Indian Codes in, 155, 200, 201 ; survival of Eoman*I)uteh law, 169 ; application of European law, 170, 171 ; preparation of legislative measures, 184. Chalmers, M.D., 69, 129, 174. Channel Islands, law in, 168. Charles V of Germany, 17. Charles VI of France, 9. Charles VII of France, 9. Charles VIII of France, 13. Charters of liberties, 22. — having force of law, 172, 173. Chelmsford, Loi'd Chancellor, 63. Chitty's Statutes of Practical Utility, 24. Christie, Mr., 80. Chronological Table of Acts of Parliament, by whom suggested, 63 ; by whom framed, 66 ; sub- sequent editions, 66, 67. Clnrence, L. B., quoted, 169, 170, 171. Classification of Acts, present sys- tem, 26 ; improvement on former methods, 49, 64. Clauses, specimen, 271-335. — Consolidation Acts, 92. Clifford's Private Bill Legislation referred to, 98, 106, 242, 318. Cocceji, Chancellor, 17. Code Victoria projected, 53. Codes, American, 155-157. — Colonial, 155, 200, 201. — European, 157-159. — Indian, 131, 139, 151, 154, 160, 200, 225-227. — for protectorates, &c., 160, 162. Codification of the law, 53, 122- 163 ; Bentham's advocacy, 122- 126 ; Savigny's opposition, 123, 124, 126; codification in England, 127-129 ; in India, 129-155, 200 ; in British Colonies, 155, 200-202 ; in the United States, 155-157 ; in Europe, 157-159 ; advantages and difficulties, 159-162 ; sug- gested codification of criminal law, 162, 163. See also Austrian Codes ; French Codes ; German Codes ; Indian Codes ; Italian Codes. Colbert, 10. Colonies, Codification in the, 155, 199-202. Colonies, collective editions of Acts of, 202-207. — common law in, 168. — legislation in, 167-207, 224 ; supersession of Imperial enact- ments in, 276. Commission on Public Records. See Record Commission. Committee of Selection, 105. — of Supply, 291. — of Ways and Means, 291. Common law, i, 6, 161. Commonwealth, the, 46. Comparative Legislation. See So- ciety of Comparative Legislation. Comptroller and Auditor-General, 285, 290, 292, 293. Consolidated fund, payments out of, 285 ; charges on, 286 ; supply of money to, 290 ; Acts, 291, 293. Consolidation Acts, early example, 44 ; reference to, 47 ; Sir Robert Peel's, 51 ; criminal law, 60 ; numerous recent Acts, 72 ; Clauses Acts, 92. See also Consolidation of Statutes. — Bills, recommended by Bel- lenden Ker, 53 ; prepared by Commissioners, g6, 57, 59 ; by Lord Cranworth, 59 ; by K. S. Wright, 69 ; by parliamentary counsel office, 73, 86 ; reference to Joint Committee, 73-75 ; draft- ing of, 251-254 ; repeals in, 260. — in India and Colonies, 199, 200. — of statutes, projected under Commonwealth, 46 ; inquiries and report by Commissions, 51, 52, 56, 57 ; projects or suggestions, 54, 55, 68, 69 ; parliamentary and other difficulties, 74, 111-113 ; suspension of work, 75, 121 ; general view of, 111-121 ; pro- gress made, 114 ; work to be done, 115 ; arguments for and against, n6-ii8; suggested im- provements of machinery, 118- 121 ; desirability of, 236. Constitutio Criminalis Carolina, 17. Corpus luris Canonici, 17, Coulson, Mr., 83. Cranworth, Lord, attempts at im- provement of statute law, 53, 54, 59- Criminal Code Bill, 69. Cromwell on the laws of England, 118. Crown Colonies, codification in, 155 ; preparation of legislative measures, 182-185 ; legislative sessions, 187 ; private Bill legis- 366 INDEX lation, 189, 190 ; publication of enactments, 192, 193 ; revision and consolidation of local law, 197, 200 ; suggestions for index to enactments, 198 ; codes, soo, 201 ; collective editions of Acts, 202 207. Current legislation, form of, im- provement by Lord Thring, 67, 69 ; report of Select Committee on, 67, 68. Customary law, French, 13. Cyprus, common law of, 170. D. D'Aguesseau, 10. Definitions of expressions used in Acts. See Interpretation Act. Delegation of legislative powers, 36-42 ; in France and Italy, 37 ; in England, 39 ; parliamentary control, 41 ; instances of exercise of power, 42. See also Subordinate Legislation. Dicey's Law of the Constitution quoted, 36, 37, 39. Digest of statutes, ordered by Par- liament, 50 ; by Lord Brougham, 51 ; made by Commissions, 52, 61. Documents, authentication, service, &c., of, 326-329. Drafting of public Bills, 237-270. ' Dummy ' Bill, 99, 100, 272. Dupriez, L., quoted or referred to, 107, no, 224. E. Edward I, 4, 6, 20, 161. Edward VI, 36, 43. Egyptian Codes, 159. Eike von Repkow, 16. Elizabeth, Queen, 44. English law and legislation, charac- teristics, 2, 3, 20S-222. -y Statute Book. See Statute Book. Etablissements de Saint Louis, 14. Europe, continental, codification in, 157-159, 160 ; legislative methods in, 222-224. Exchequer and Audit Department, 285. — bills and bonds, 287. — payments into, 284, 285. Executive Government, control over legislation, 213-219 ; responsi- bility for initiation of legislation, 216. F. Field, David Dudley, work on codi- fication, 155, 156. Fiji, law in, 178, 179 ; preparation of legislative measures, 182. Finance, central, 284-299. FitzGerald, G. A. E., 66. Form and arrangement of statutes, 237-270. Forms of clauses. See Statutory forms. France, secondary legislation, 38 ; initiation of legislation, 106 ; legislative procedure, 108 ; codifi- cation, 157. Francis I, 9. Frederick Barbarossa, ' land-peaces,' 16. Frederick II, 16, 17. French Codes, 11, 15, 17, 157, 158. — law, 8-15. in British colonies, 168, 169. G. Gambia. See Crown Colonies. General lighthouse fund, 295, 296. German Codes, 17-19, 157-159- — Imperial Chamber Court, 17. — law, 15-19, 159. Germany, initiation of legislation, 108 ; codification, 157, 158. Gibraltar, preparation of draft Bills, 184 ; consolidation of law, 197. Gold Coast. See Crown Colonies. Greaves, Mr., quoted, 52 ; work on codification of criminal law, 53. Grenada. See Crown Colonies. Griffiths, Sir Samuel, 200. H. Halifax, Lord (Sir C. Wood), quoted or referred to, 83, 216. Hansard, referred to or quoted, 40, 53, 58-60, 62, 70, 75. Hardwicke, Lord, referred to or quoted, 78, 79. Hargreaves, Francis, memorial on revision of statute law, 50. Harrison, .William, appointment and duties as parliamentary counsel, 80-83. Hawkins' edition of statutes, 24. Henry II, 3, 161. Henry III, 20, 21. Henry VII, 272. Henry VIII, 2, 36, 77, 78. Hobhouse, Lord, work on consoli- dation of law in India, 138, 139, 149. INDEX 367 Holker, Sir John, 69, 70. Home Office counsel, 83, 218. Hong Kong, Ordinance of, 71 ; pre- paration of legislative measures, 184. House of Commons, Select Com- mittee on public records, 21 ; work of committees, 29 ; reports of Select Committees, 47-49, 67, 68, 71, 72 ; committees referred to, 58, 80, 85 ; passage of Bills, 98-106 ; committee of whole House, 99, 100, 102, 104 ; instruc- tions to committee, 102 ; Stand- ing Committees, 104 ; Committee of Selection, 105 ; constitution of Select Committees, 105 ; form of title of Commons' Bill, 273 ; Com- mittees of Supply and of Ways and Means, 291. House of Lords, Standing Order as to Estate Bills, 79 ; introduction of Bills, 99 ; procedure in Com- mittee, 103, 104 ; final action on Bills, 105 ; form of title of Lords' Bill, 271 ; require short titles to Acts, 272. Houses of Parliament, Joint Com- mittee, 72, 73, 121 ; passage of Bills, 98-106 ; settling of dis- agreements between, 104 ; first reference to ' authority ' of, 272 ; rules, orders, or drafts laid before, 310-314. Hungary, Codes in, 158. Hybrid Bills, 91. I. Ilbert, Sir Courtenay, report on civil procedure and courts, 69 ; appointment and work as law member in India, 146, 147, 150, 229 ; his ' Government of India ' referred to, 179, 185. Index to Acts of Parliament, in 1824, 23 ; to Statutes Eevised, 25 ; annual, 33 ; to local and private Acts, 35 ; index suggested, 63 ; compiled, 64 ; subsequent edi- tions, 66, 67 ; referred to, 273. — to Indian and Colonial enact- ments, 198, 199. India, history of codification in, 129-155- Indian Codes, 131, 139, 151, 154, 200, 225-227. — legislation, nature of law, 167, 168, 170 ; contents of Statute Book, 174-176 ; preparation of Bills by Legislative Department, 179, 180; publication and stages of progress of Bills, 185 ; sessions of legislature, 186 ; explanatorj- statements accompanying Bills, 190 ; publication and editions of statutes, 190, 193 ; constitution and practice of legislatures , 225- 227. Indian Law Commissions, first, 129 ; second, 130 ; third, 131-135 ; Commission of 1879, I43~i45- Interpretation Act, 1889, Lord Brougham's Act superseded by, 28 ; effect of, 71 ; to be remem- bered in drafting, 248 ; referred to, 273, 277, 278, 280-282, 311, 313, 322. with notes, 336-357 ; rules as to gender and number, 336 ; mean- ing of 'person, '337, 349; 'month,' 'land,' 'oath,' 337; 'affidavit,' ' swear,' 338 ; ' county,' 338, 339 ; 'parish,' 338; 'county court,' 333, 352 ; ' sheriff clerk,' ' shire,' ' sheriffdom,' 339 ; 'rules of court,' 34S ; 'borough,' 345, 346 ; 'guar- dians,' 'union,' 346, 347; 'writ- ing,' ' statutory declaration,' ' financial year,' 349 ; ' Lands Clauses Acts,' 'Irish Valuation Acts,' ' Ordnance map,' 350 ; ' service by post,' ' committed for trial,' 351; 'sheriff,' 'felony,' ' misdemeanour,' 351, 352 ; ' com- mencement,' 355 : official defini- tions, 339-342 ; judicial defini- tions, 342-345 ; words relating to elections, 347 ; geographical and colonial definitions, 347-349 ; references to Crown, 352 ; con- struction of statutory rules and provisions as to powers and duties, 352, 353 ; offences under two or more laws, 353 ; measure- ment of distances, 354 ; citation of Acts, 354 ; interval between passing and commencement of Act, 355, 356 ; effect of repeal in future Acts, 356, 357. Irish Bills, 90. — common law, 161. — statutes, 23, 25. Italian Codes, 159. Italy, delegation of legislative powers, 38. J. Jamaica, Penal Code for, not adopted, 155 ; law of, 178 ; pre- paration of Bills, 183, 184. 368 James I, 45- James, Sir Henry, no. Tamea, Mr. Justice J. C. H.-, ^9°. ^yy Jenks- Law and Politics quoted, 4- Tankins, Sir Leolme, 8o. Jenkyns, Sir Henry, compiler of rndex to statutes, 64, 66; appoint- ments in parliamentary counsel office, 67. „ . , „ Jews of Aden, Mosaic law of succes- sion, 153- John of France, 9. Joint Committee. See Houses of Parliament. Joseph II, 17. Judges as draftsmen of Acts, 77-79. — Estate Bills referred to, 79. Justinian, 17, 209. K. Kelly, Sir Fitzroy, 56, 59. Ker, Bellenden, work and opinions on consolidation of law, 53-55. King's Printer, 24, 48, 274, 360, 36a. King's Regulations, 37. Labuan, Ordinances, 171, 178 ; pre- paration of drafts, 184. Lagos. See Crown Colonies. Land, compulsory acquisition of, 317-322. Leeward Islands. See Crown Colonies. Legal proceedings under Acts of Parliament, 322-326. Leges Barbai'orum, 15. Legislation, characteristics of Eng- lish, 208-222 ; J. S. Mill's sug- gested Commission, 232; advan- tages of existing system, 233, 234 ; referential, 254-256, 259- 266 ; amending, 256-259. See also Current legislation. — in India and Colonies, 164-207, 224-227. — for ceded, &c., ierritori^, 37, 173. — in continental Europe, 223, 224. ■ — in United States, 222. libri feudorum, 17. Livingston, Edward, influence on codification, 156. Local Acts and Bills, 26-28, 49, 50, =269, 317. In.Iox to, 35. — authorities, 300, 301. — finance, 30a, 308. — loans fund, 297. — taxation account, 294 Lombard libri feudorum, 17. Lonsdale, Mr., work on codification of criminal law, 53. Louis IX, 14. Louis XII, 13. Louis XIV, 10, 12, 168. Louis XV, 10, 12, 168. Louis XVI, 12. Louisiana Civil and Criminal Codes, 155, 156. Lowell's Governments and Parties in Continental Europe quoted, 37, 38, 39, 108, no, 223. Lowndes, Mr., 80, 81. M. Macaulay's Indian Penal Code, 129, 131- Mahomedan law in British posses- sions, 167, 168, 170, 171, 172. Maine, Sir Henry, referred to, 132, 13s, 143, 144, 146, 147, 149- Maitland, Professor, quoted, 5. Malmesbury, Lord, Memoirs of an Ex-Minister, referred to, 227-229. Malta, common law of, 170. Manitoba, law of, 177. Maria Theresa, 17. Mauritius, common law of, 168, 169 ; Penal Code, 201. May's Parliamentary Practice re- ferred to, 98, 242, 291, 308. Merchant Shipping Bill, 73, 74. Mill, James, 126. Mill, John Stuart, quoted or referred to, 125, 231, 232. Mirror of Saxon Law, 16. Money Bill, 99, 270. Moneys provided by Parliament, 286. N. Napoleon I referred to or quoted, 14, 208 ; codes, 157. National debt, description, 286, 287 ; charge for management, 288; sinking funds and annual charge, 288-290. Naval Defence Account, 296, Netherlands, codes in, 158. Newfoundland, drafting of Bills, 180; consolidation of law, 195. New South Wales, Criminal Code, 155, 200; statutory law, 177; preparation of Bills, 180, 181 ; numbering, form, and edition of statutes, 187, 193, 196; index to statutes, 198; consolidation of law, 199. INDEX 369 New York, Civil and Penal Codes, 156. New Zealand, Criminal Code, 155, 200; revision of statute law, 196, 197. North- West territories, law in, 177. Norway, codification in, 159. 0. Orders in Council, under Eoyal prerogative, 36, 37 ; sometimes drawn by parliamentary counsel, 94, 95 ; a form of legislation, 172, 173 ; application under statutory authority to India, 175 ; to colonies, 176, 178, 179 ; forms of clauses authorizing, 276, 277, 311, 312. Ordinances, French, g-12. — Indian, 175. — in Crown colonies, 172, 178, 179. Parliament as a legislative machine, 208-236. See also House of Com- mons ; House of Lords ; Houses of Parliament. Parliamentai-y counsel office, estab- lishment, 67, 68, 84 ; work on consolidation of law, 73 ; Mr. Pitt's parliamentary counsel, 80 ; appointment of Mr. Thring, 84 ; duties, 84, 85, 93, 94, 218, 219 ; staff, 85 ; procedure, 86-89 i re- sults of establishment, 95, 96 ; suggestions for extension, 96, 97 ; relations to Government and legislature, 218, 219. Parliaments, French, registration of Ordinances by, 11. Parliament of Paris, 12. Paymaster-General, 293. Peel, Sir Robert, Criminal Law Amendment Acts, 51. Personal Acts. See Private Acts. Philip le Long, 9. Pitt, William, appointment of a parliamentary counsel, 80. Pollock, Sir Frederick, 128, 150. Portugal, codes in, 159. Precedents, judicial, 7 ; legislative, 242, Private Acts, 27, 48-50. See also Acts of Parliament. — Bills, 28-33, 49, 9a, 242, 317- in colonies, 188-190. — members' Bills, 90, 91, 98, 99. Procedure, civil and criminal, re- ports on, 69. Promulgation of the statutes, re- port of committee, 47, 48. Protectorates, codes for, 160, 162. Provisional Orders, 33, 35, 308, 320, 321. — Order Bills, 92. Prussian Code, 17. Public Accounts Committee, 293. — Acts, 27, 48-50. See also Acts of Parliament. — Bills in England, distinguishing characteristics, 28-33, 49 i pre- paration at different periods, 77- 80 ; by Mr. Harrison, 80-83 i ty parliamentary counsel, 84-86 ; in- structions for, 86 ; preparation of draft, 87, 216-219, 227-229 ; subsequent labours of draftsman, 89, 90 ; introduction into Parlia- ment, 99-101 ; subsequent stages of progress, 101-106, 233, 234 ; technicality of modern Bills, 235 ; general principles of drafting, 237-242 ; details of drafting, 242- 270 ; title and short title, 269, 271-273 ; preamble, 269, 272 ; forms of clauses adapted to, 271- 835- in India, preparation by Legis- lative Department, 179, 180 ; publication and stages of pro- gress, 185. in colonies, preparation, pub- lication, and stages of progress, 180-186. — Bill Office, 100. — debt. See National Debt. — Works Loan Commissioners, loans by, 296, 297. — Works Loans Act (annual), 298. Pulling, A., 67. Q- Quebec, common law in, 168 ; codes, 200, 201. Queen's Printer. See King's Printer. Queensland, Criminal Code, 155, 200; statutory law, 178; draft- ing of Bills, 181 ; legislative session, 187 ; numbering and edition of statutes, 187, 196 ; index to statutes, 199 ; consoli- dating Acts, 199, 200. Quia Emptores Statute, 20. R. Record Commission, 21, 23, 50. Register of public general Acts, 59. B Ol^ Regulations. See Orders in Council. — Indian, 174, 175. — under Rules Publication Act, 1893, 361-363. Eeichskammergericht, 17. Reilly, Sir Francis, 59, 60, 62. Repeals, rules for and savings in, 279, 280. Repkow, Eike von, 16. Reports of House of Commons com- mittees, on edition of statutes, 21 ; on temporary laws, 47, 48 ; on promulgation of the statutes, 47, 48 ; on manner and language of current legislation, 67, 68 ; on Statute Law Revision Bill, 71, 72. Revised Statutes, 24-26, 66, 70. Roman-Dutch law in Ceylon and Cape Colony, 169. Roman law in France, 13. in Germany, 16, 17. Royal Commissions on digest of law, 51, 56, 61, 70, 127. — prerogative, 36, 37. Euffhead's edition of statutes, 24, 34- Rules. See Statutoiy rules. — Committees, 42. — Publication Act, 1893, with notes, 358-363 ; notice of and representation respecting rules, 359 ) provisional rules, 360 ; regulations as to printing, num- bering, and sale, 360-363. referred to, 41, 235, 310. S. Saohseuspiegel. 16. St. Leonards, Lord, directions for codification of criminal law, 53. St. Lucia, preparation of draft Bills, 184 ; Criminal Code, 200. St. Vincent, French law in, 169 ; preparation of draft Bills, 184 ; Criminal Code, 200. Salisbury, Lord, on Indian codifica- tion, 140, 141. Savigny quoted or referred to, 17, 123, 124, ia6, 127. Schedules, use of, 266-268. Schemes, confirmation of, 308. Schuster, Dr., quoted or referred to, 18, 160. Scottish Bills, 90. — common law, 161. — statutes, 23, 26. Select Committees. See House of Commons. Selfe, W. L., 66. Seton, Sir Henry, report on statute law, 52. Seychelles, common law in, 168, 169 ; preparation of legislative measures, 184 ; Penal Code, 201. Shaw Lefevre, Sir John, 64, 65. Sherbrooke, Lord (R. Lowe), 84, 85, 95- Short Titles Acts, 75, 76, 272-274. Sierra Leone Ordinances, 178 ; preparation of, 183. Sleeping Statutes Bill, 57. Society of Comparative Legislation, questions by, sent to colonies, 164-166 ; Journal of, referred to, 167-170, 193. South Australia, drafting of Bills, 181, 182 ; session of legislature, 187 ; numbering, publication, and form of statutes, 188, 191, 192, 193 ; private legislation, i8g. Spanish Codes, 159. Special commissions, clauses for creation of, 331-334. Standing Committees, 103-105. — Orders of Houses of Parliament referred to, 100, loa, 103, 105, 121, 214, 242, 243, 270, 279, 313, 317- States-G-eneral, 8-10. Statute Book, contents, 4, 6, 21 ; editions, 21-26 ; index, 23, 25, 33 ; expurgation of, 65. colonial, 197, 198, 202-207. Indian, 174. — law. 4, 6 ; improvement of, 43- 76. in British possessions, 17a, 176-178, 193-198. — Law Board, 53-55- Commissions, instructions to, and reports of Commission of 1833, 51-53 ; reports of Commis- sion of 1854, 55-57 ; criticisms on and dissolution of Commis- sion, 58, 59. Committee, appointment by Lord Cairns, 24, 65 ; preparation of revised editions of statutes, 24, 70 ; steps taken for revision of law and procedure, 69, 70, 72 ; preparation of indexes, 35, 65. Revision Acts or Bills, 57, 60- 62, 64, 66, 70-72, 93 ; in Colonies, 194-198. Statute of Distributions, 80. — of Labourers, 44. — of Proclamations, 36. — of Waste, 4. — roll, 22, 48. INDEX 371 Statutes. See Acts of Parliament ; Kevised Statutes. — form and arrangement of, 237- 270. — interpretation of, 250, 251. — at Large, 21. — of the Kealm, 21, 23, 34, 50. Statutoiy forms, use of, 268, 271 ; specimens of and notes on, 271- 335 ; title of Act, 271 ; enacting formula, 272 ; short title, 272 ; construction, 273 ; embodiment in principal Act, 274 ; extent, 275 ; application to colonies, 276 ; to foreign countries, 277 ; to British possessions, 277 ; com- mencement, 277 ; 'appointed day,' 278 ; duration, 279 ; repeal, 279 ; repeal on operation of rules, 280 ; repeal or variation, 280 ; appoint- ment of staif, 283; style of Board, 283 ; transfer of ofScers, 284 ; loans by Public Works Loan Commissioners, 299 ; appropria- tion in aid, 300 ; expenses of authority, 304 ; receipts, 305 ; capital money, 305 ; borrowing by local authorities, 306; pro- ceedings on default of authority, 307 ; confirmation of provisional order, 308 ; of scheme, 309; Orders in Council, 311 ; regulations by Queen in Council, 312 ; power to make rules, 313 ; laying Order, rules, or draft before Parliament, 312-314 ; by-laws by local au- thority, 314-316; purchase of land by local authority, 320- 322 ; prosecution of offences, 324 ; substitution of actual offender for person proceeded against, 324 ; compensation for damage, 325 ; imprisonment for act en- dangering life, 325 ; form, ser- vice, inspection, and evidence of documents, 326-329 ; computa- tion of time, 329 ; various saving clauses, 330-331 ; powers of special Commission, 332-334 ; repeal tables, &c., 335. — rules and orders, parliamen- tary control over, 4 1 ; annual publication, 42 ; frequently drawn by the parliamentary counsel, 93, 94 ; value of, 267 ; proper restric- tions on, 310; mode of laying before Parliament, 311 ; form of clauses relating to, 313, 314, 352 ; rales to which Eules Publication Act applies, 358. annual or revised volumes referred to, 4a, 170, 178, 310, 3S8. Statutory rules and orders, Indian, 174, 176. Publication Act, 358-363. Stephen, Sir James, labours on codification in England, 69, 70, 127, 128, 162 ; in India, i35-i37j 143, 144, 148, 149) i5i> 162; quoted, 227. Stokes, Whitley, value of labours on Indian law, 139 ; proposals for further codification, 141, 142 ; referred to or quoted, 146, 151, 152, 199. Straits Settlements, law of, 171 ; preparation of draft Bills, 184 ; private legislation, 189, 190 ; Penal Code, 200. Stroud's Judicial Dictionary, 281. Subordinate legislation, 36-42, 93, 95, 220, 221, 233. Sweden, codification in, 159. Switzerland, codification in, 158, Temporary laws, report of com- mittee, 47, 48. Thibaut, quoted or referred to, 17, 123, 124, 126, 127. Thring, Lord, originator of present index to statutes, 34, 63 ; and of improved style of drafting Acts, 68, 69 ; appointment as parlia- mentary counsel, 67, 83 ; referred to or quoted, 142, 241. Time, computation of, in law, 330. Tobago, common law in, 169 ; pre- paration of draft Bills, 184. Treasury, instructions by, to par- liamentary counsel, 87 ; issues by, 292 ; regulations by, under Eules Publication Act, 361-363. — bills, 288. Trinidad, common law in, 169 ; preparation of draft Bills, 184. U. United States, codification, 155- 157 ; legislation, 222. Victoria, codification in, 155, 200, 202 ; statutory law, 178 ; draft- ing of Bills, 181 ; publication of statutes, 191 ; session of legis- lature, 187]; publication and editions of statutes, 191, 195 ; index to consolidated Acts, 199. i/' •J.i.^ L^S:j,£\. w. Weistiimer, i6. West African colonies. See Crown Colonies. — Indies. See Crown Colonies. Westbury, Lord Chancellor (Sir E. BetheU), 59, 60, 127. Western Australia, preparation of legislative measures, 182 ; legis- lative session, 187 ; numbering of Acts, 187 ; revised edition of statutes, 196 ; index to statutes, 199. William I, l, 361. Wills, Mr. Justice, on defects in English criminal law, 163. 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