The mechanics of law making

Preface

THIS volume contains the Carpentier Lectures delivered by me in October, 1913, subject to some prunings, and with the addition of matter for the delivery of which time did not suffice. I have reproduced freely passages previously published in my Legislative Methods and Forms, and elsewhere, but where I have borrowed without acknowledgment,

the borrowing has been from myself.

C. P. I.

Contents

I. THE LEGISLATURE AND THE DRAFTSMAN

PAGE

English and American legislation compared. The British Parliament a sovereign, the American Congress a non-sovereign body. Government legislation in England. Complaints of desultory legislation in England. The draftsman a government official. Qualifications of a good draftsman. Illustration of a drafting dilemma. Eligibility of women under County Councils Act .... 1

II The Reform Of The English Statute Book

I REFERRED in the preceding chapter to the difficulties experienced by English legislators and draftsmen in threading their way through the mazes of the English statute law. It is probable that your legislators and draftsmen have to encounter similar difficulties. Perhaps, therefore, it may be worth while to tell you something about the steps which we have taken in England, with more or less success, to make our statute law more accessible, more intelligible, a little easier to explore.

There are two main questions which I shall ask you to consider : —

1. What attempts have been made in England to improve the form of our statute book, of our general body of statute law, how far have those attempts been carried, and how far have they been successful?

2. What attempts have been made to improve the form of our current legislation, and what measure of success have they obtained ?

In order to answer the first of these questions, I must "make a short excursion into history. But my retrospect must be brief, for I am merely summarising what I have described at greater length elsewhere.1

The condition of the English statute book engaged the attention of the Crown and of the legislature at an early date of English parliamentary history. I will go as far back

1 Legislative Methods and Forms. Oxford. 1901. 24 as the year 1551. In that year King Edward VI, then a boy of fourteen, and a very precocious youth, wrote as follows in his Discourse on the Reformation of Abuses: " I have shewed 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 understand 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."

Now let me pass on to the reign of Queen Elizabeth. During her reign Sir Nicholas Bacon (father of the great Francis Bacon), when Lord Keeper, drew up a scheme for reducing, ordering, and printing the statutes of the realm. 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 abridgement of the statutes. Item, where one part of one Acte standeth in force and another part abrogated, there shall be no more printed, but that that standeth in force. The doeing of thse things maie be committed to the persons hereunder written, if it shall so please Her Majestie and Her Counsell, and daye wolde be given to the committees until the first daie 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 of " divers cross and cuffing statutes, and some so penned that they may be taken in divers, yea, contrary senses"; adding "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 no man can be free) which do 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 commission was appointed in the following year, and a MS. in the British Museum is probably the fruit of its labours.1 It contains a list of the statutes from 3 Edw. I to 2 Jas. I which had been repealed or had expired, and suggestions for further repeals and changes.

In 1616 Sir Francis Bacon, then Attorney-general to King James the First, submitted to the King a proposition " touching the compiling and amendment of the laws of England."

" The work to be done," according to this proposition, " consisteth of two parts, the digest or recompiling of the common laws, and that of the statutes.

"For the reforming and recompiling of the statute law, it consisteth of four parts.

" 1. The Government to discharge the books of those statutes whereas" (#w. 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 by Parliament.

" 2. 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 reasonable 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 Finch, Noye, Hackwell, and others. The best way to carry out the work would be to have commissioners appointed by the two Houses."

In the time of the Commonwealth two committees, which included such distinguished men as Bulstrode Whitelocke, Sir Matthew Hale, and Ashley Cooper (afterwards the great Lord Shaftesbury), were appointed with instructions " 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 people." But no tangible results appear to have been achieved.

After the Restoration, the subject was again inquired into by Lord Nottingham and others, but nothing was done, and the question appears to have slumbered until the end of the eighteenth century.

England underwent great changes in the eighteenth century. Walpole and his successors built up that half unconsciously designed but subtly framed system of government to which Walter Bagehot has given the name of the Cabinet system. Wesley revitalised religious life. The industrial revolution radically altered the economic features of English society. Lord Mansfield, with the help of his special juries, systematised and gave form to the rules of English commercial law. But the eighteenth century, though it gave birth to your constitution, was not an age of great legislation in England. It was, with very few exceptions, not marked by any statutes of great legal or constitutional importance. Many things slumbered in Parliament, and among them projects for improving the English statute book.

It was not until near the end of the century that interest in the subject was revived. In 1796 two reports, presented by committees of the House of Commons, called attention to the unsatisfactory condition of the statute book, and led to an improvement in the classification of statutes, and to the distinction now recognised by us between public general Acts, local and personal Acts, and private Acts. On this distinction I shall have to touch later on.

The Parliament of 1800 (the Parliament which passed the union with Ireland) passed resolutions which led to the appointment of the First Commission on Public Records, and it was under the authority of this Commission that was prepared the edition of the statutes known as the " Statutes of the Realm." This edition, in nine great folio volumes, is the most authoritative edition of the English statutes down to the end of the reign of Queen Anne, and the elaborate introduction to it, though its learning is now a little out of date, contains a mass of interesting information on the history and condition of the English statute law.

In the 'twenties' of the last century Sir Robert Peel did a good deal towards improving both the form and the substance of the English statutory criminal law.

Then came the Reform Act of 1832, and the influence of Jeremy Bentham, perhaps the greatest of law reformers, at once made itself felt in the reformed parliament.

In 1833, when Lord Brougham was Lord Chancellor, a royal commission was appointed with instructions : —

(1) 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 expedient to combine 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 of England.

John Austin, the well-known writer on jurisprudence, was appointed a member of the Commission. But he did not find the work congenial, and he soon resigned. The Commission presented seven reports, and were engaged on the eighth when they were dissolved in 1845.

They were succeeded by another commission which was appointed in 1845 and made seven reports, the last of which appeared in 1849. Then came Lord Cranworth's Board for the revision of the statute law, a Board which was constituted in the first instance as a temporary and experimental body, and which, after making three reports, was superseded by a Statute Law Commission of 1854, consisting of Lord

Cranworth himself and some of the most distinguished lawyers of the time.

I will not weary you with the details of the work done by these Commissions and this Board. Their reports are full of learning, and contain many valuable suggestions, some of which have borne useful fruit. But in course of time considerable dissatisfaction was expressed, both in Parliament and in public, with the nature of their work, and with their rate of progress. It was complained that they wrote too much, cost too much, and did too little or, at all events, that the tangible results of their work were very small. And so they came to an end.

The truth appears to be that these learned bodies were too ambitious; they aimed at too many things; they did not realise how little it was humanly possible to achieve within a limited time; they did not form a sufficiently clear conception of the mode in which, and the machinery by which, the several branches of the work proposed by them should be carried out, or of the relative importance and urgency of those branches. But, as I have said, the labours of the Commissions were not unfruitful. It gradually became clear, and largely through their inquiries and recommendations, that there were several distinct, but related, lines along which the work of improving the form of the law should be carried out, that the work to be performed on each of these lines would be difficult and laborious, would require patient, plodding, unobtrusive labour, would take much time, and ought not to be scamped.

These different lines or branches of work may be described under five heads : 1. Indexing, 2. Expurgation, 3. Revision, 4. Consolidation of Statute Law, and 5. Codification. This last branch of work, codification, stood in a different category from the others, as being, if desirable, rather an ideal to be aimed at than a programme likely to be realised, at all events, in the near future. I say, "if desirable," because there were and are lawyers of great eminence who consider codification of the common law, at least on any large or comprehensive scale, not only impracticable, but inexpedient. But as to the practicability and expediency of the other branches of work, those branches which are more directly concerned with statute law, there was not, and is not, any substantial difference of opinion.

Then, first, of indexing. Let no one despise, I hope no one does despise, the work of the indexer, drudgery though it is. It often does for us what was done for the world by those obscure but indefatigable grammarians of the latter middle ages of whom one has been immortalised by Robert Browning. Every reader knows that a good index is one of the best labour-saving appliances that can be found. The work of registering and then of indexing the vast tangled mass of English statutes occupied several generations of industrious workers, performing their laborious work under the supervision of successive commissions and committees. And it is to their labour that is due the very complete chronological table and index of the statutes which is now published annually under the direction of our Statute Law Committee. I have said table and index, for the work consists of two parts. The first part is a chronological table of all public general statutes since the beginning of the parliamentary period, showing which have been repealed in whole or in part. The second part is an alphabetical index to the contents of the statute book, arranged according to subjects.

Concurrently with this work of registering and indexing, and to some extent by the same staff, has been carried on the work which I have described as expurgation. This has been effected by a series of Acts known as Statute Law Revision Acts. There have been about thirty-six of these Acts. The first of them was passed in 1861, the latest as recently as 1908, for the work requires to be supplemented as legislation advances. But the most notable of them all, and that which has been taken as a model for subsequent Acts of the same kind, was the Statute Law Revision Act of 1863, which was introduced by Lord Westbury in a remarkable speech reviewing the history of previous attempts for the improvement of the statute law, and explaining the principles on which his measure was founded. " What he proposed," he said, " was that the statute book should be revised and expurgated — weeding away all those enactments that are no 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 inconsistent and contradictory enactments." He explained that, with this object, the whole of the statute roll from 20 Edw. II 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 description of the enactment to which it had been applied. This had been done in order that the work might be accomplished 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."

All I need say about this projected digest is that a royal commission was appointed to consider its feasibility and that some specimen digests were prepared, but the specimens were not considered satisfactory, and the project, which was probably too ambitious for its time, was silently dropped. What, however, has been steadily carried on is the more modest work of clearing the statute book by means of statute law revision bills.

The task of preparing these statute law revision bills is, as Lord Westbury observed, one of great delicacy. Its performance, especially in relation to old enactments, requires much knowledge of antiquated law and procedure, much knowledge also of the circumstances of the time when the laws dealt with were passed, and of the objects which the legislature had in view in passing them. I speak with some experience on this subject, because, in conjunction with a friend of mine, I prepared the bills which repealed the enactments superseded by our Judicature Acts in the early seventies, and because I have been responsible for examining and checking the accuracy of several other statute law revision bills.

Under the rules laid down for the guidance of the draftsmen of these measures, specific reasons must be given to justify each separate repeal, and these reasons are stated in a column which is attached to the schedule of repeals during the passage of the measure through Parliament, but is struck out when it becomes law. The reasons must be specific, and general terms must be avoided. For instance, the term 'obsolete' is avoided, because under English law a statute is not, though under Scottish law it may be, abrogated by disuse. One has to pick one's way very gingerly, because great masses of case law have been built up on the language of particular enactments, and one runs the risk of sapping the foundations of some important legal principle. There are still on our statute book, even in its revised form, pages and pages of enactments — Statutes of Provisors and the like — intended to restrict or destroy the powers of the Pope within our island, enactments which we have been afraid to touch lest we should bring down upon our head the anathemas of ecclesiastical lawyers. The difficulties have been great, the risks have been serious, but the revisers have done their work very carefully and cautiously, and very few slips have been discovered.

The task of expurgating the statute law was followed by the task of editing it in a revised form, omitting all the matter cleared away by repeal. The result of this task is to be found in the edition called the Statutes Revised. Two editions of the English Statutes Revised have been published by the authority of the State. The second consists of twenty octavo volumes, which were first brought down to the end of the year 1878, and have since been brought down to the end of the year 1900, so that the edition covers the period concluded by the end of the last century and the end of Queen Victoria's reign. The question of bringing out another edition, omitting matter repealed or spent since the date of the edition to which I have referred, is at the present moment engaging the attention of the Statute Law Committee, a body about which I shall have to speak later on. In these editions the statutes or parts of statutes which remain unrepealed are arranged in chronological order. No attempt has been made to digest their contents or to group or arrange them under appropriate heads. The work of revision has therefore not been carried as far as it has been in some of your States.

Our Revised Statutes are not popular reading, nor do they belong to the class of books which, according to the bookseller, no gentleman's library should be without. And a professional lawyer generally prefers to use some edition of the particular statutes with which he is specially concerned. These circumstances may account for the fact that the publication of these revised editions by the British Stationery Office on behalf of the State is not a remunerative enterprise. But as their utility has been questioned, it may be worth while to illustrate by a few facts and figures the amount of cost and labour which they save. "After omission of repealed and expired statutes to a vast amount," wrote Bentham towards the beginning of the last century,1 "the present price of the last edition of the statutes exceeds the average income of any individual of the labouring classes in England."

The first edition of the Revised Statutes substituted eighteen volumes for one hundred and eighteen.

The second edition contains in five volumes the enactments down to the beginning of Queen Victoria's reign, enactments which occupied seventy-seven volumes of the statutes at large.

There, are, indeed, two classes of persons whose needs the revised edition will not fully meet, and, I may point out, was not specially designed to meet. The judge who has to

» Works by Bowring, III, 239.

decide, the counsel who has to advise on, the construction of an obscure enactment frequently finds it necessary to refer to the language of Acts, sections, or words which have been repealed, either as dead law, by statute law revision Acts, or as superseded law, by amending, or consolidating Acts. To the historical student the law of the past is even more important than the law of the present. Both these classes of persons require an edition of the statutes containing everything that has been repealed, either by way of statute law revision or otherwise. But both these classes may derive material assistance from the notes and tables in the revised edition which show the reasons for each repeal or omission. And to the ordinary legislator, official, lawyer, or member of the public, it is an immense advantage to have an edition of the statutes which contains only living law, which is comprised within a reasonable compass, and which can be purchased for a reasonable price. Speaking from my experience as a government draftsman, I can confidently say that the existence of such an edition immensely facilitates his work.

Let me pass from the task of expurgating and revising, to that of consolidating, the statute law. The terms consolidation and codification are sometimes used as synonymous. But I think that there is some advantage in giving them distinct and separate meanings. By consolidation I mean the combination into a single statute of several statutes or parts of statutes dealing with the same subject. By codification I mean the reduction into a systematic form of the whole of the law, statute law or common law, relating to a given subject. Consolidation deals with statute law alone as interpreted and explained by judicial decisions. Codification deals both with common law and with statute law. In consolidating statute law you have to consider and reproduce, unless you determine to alter, the effect of judicial decisions. You also have to consider the reciprocal bearings of the statute law and of the rules of common law on which it is based, which it presupposes and which it may or may not vary. In codifying common law you have to incorporate rules which have already been reduced to statutory form.

Now about the advantages to be derived from the consolidation of statute law, there can be no question. What is more maddening to the professional lawyer, to the official, and to the ordinary citizen than to have to hunt for your law in a dozen, or it may be a score or more, of different statutes scattered over several volumes, or at the best several parts of some one inconveniently big volume, repeating, repealing, implying, qualifying, referring to each other? What is it that is responsible for the unintelligible form — I am speaking here mainly of English legislation — for the unintelligible form of so many of the bills introduced into our legislature, and especially for the abuses of referential legislation which are such a favourite topic of invective in England ? Surely it is the chaotic and fragmentary condition of our statute law which makes an amending Act a new and ugly patch on a complicated piece of patchwork. All this is universally admitted, and that is why we are all for consolidation — in the abstract. What many people are apt to overlook is the difficulty involved in the performance of that task. The tasks of expurgation and revision, to which I have referred, are difficult enough ; but the work of consolidation is still more difficult. As I have said before, the work required is not mechanical, and involves far more than the use of paste and scissors. Consider, for instance, the difficulties arising from the differences of language between statutes of different dates. Our statute law extends over seven centuries of the ^national life, and 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 and ill-assorted array, would be produced by a congeries of extracts from Plantagenet, Tudor, Georgian, and Victorian statutes. Your statute books do not go back so far as ours, and you have not much to do with Plantagenet and Tudor statutes. But I have quite recently been supervising an attempt to consolidate the Acts of Parliament which relate to the government of India, Acts which run back to the reign of George III, when your great republic was being shaped, and I have found great difficulty in modernizing the language and adapting to modern conditions, enactments which date from the time of Pitt and Fox, of Warren Hastings, and of the old East India Company.

I speak of adaptations to modern conditions, because, 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. The consolidator cannot afford to overlook the 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.

Even when enactments relating to the same subject-matter belong approximately to the same period, they are not unfrequently drawn in different styles ; and employ, intentionally 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 enactments 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 or 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 intimate acquaintance with past as well as with existing laws and institutions ; involves the rewriting, and not merely the placing together, of laws; the substitution of modern for 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 members of the official administrative staff.

Apart from the difficulty of preparing consolidation bills, there is great difficulty in getting them through Parliament. Statute law reform is one of those things which every one praises in the abstract, but about which, in its concrete from, no one is enthusiastic. No minister expects to obtain 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 consolidation 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 encroach 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 introduction 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.