STATUTE-MAKING AND CODIFICATION.
Br one of those absurdities which we, sensible people l patiently endure, called " fictions of the law," every subject is presumed to know the law of his country ; yet the statute-book is so vast and so fluctuating that those whose whole life is devoted to the special study cannot by any possibility keep up with the increase of statutes. The bulk of the statute-book, therefore, is one of the heaviest of our practical grievances. Now there are few in- stance of weakness in conduct more pitiable than the endurance of an evil which only demands an adequate exercise of will for its termination. But how still more pitiable the condition of the wretched being, who, deploring his misery, with his eyes open, yet by his own act continues to aggravate it! Precisely the condition of Parliament. Nay, worse ; for the very act of in- creasing this notorious and deplorable evil constitutes half the drudgery of the legislator, and the other half is caused by the consequences of what has been done before.
The labour of the session is no pretended or exaggerated fact. In the season just closed, the House of Commons sat for 121 days; the average time of its sittings each day was 7 hours and 38 minutes. Those sittings, too, occurred, for the most part, late in the day ; and, for all Mr. Brotherton's success, 711 hours were after midnight. The number of divisions on public bills was 115; whereof 19 occurred after midnight. No small amount of toil is indicated by these figures ; yet how large a pro- portion of that fatigue goes to waste ! Again, last session the number of bills introduced was 165; of those which received the Royal assent, 119 ; gone to waste, 46; to say nothing of the bills passed which will be nugatory, or will render others so. But the actual time spent in the House only represents a portion of the legislator's toil : much of time and labour also is expended on the preparation of bills; and here again the toil is incalculably aggravated by the multiplicity and confusion of what has gone before. So numberless are the statutes and their provisions, and so impossible is it totompass any complete or definite idea of their total or mutual bearing, that the framers of a new statute find it impossible to tell what the effect of their new addition will be upon the whole, what the effect of the whole on their new statute : • it may be inoperative, it may repeal or restore what is wholly be- yond their contemplation. They hope to produce certain results; they toil to secure those results ; but there is no certainty—it is hit or miss. A dead set is made at the framers of bills by all sorts of people, from peers to paupers, from the judges to suitors : but we suspect that a considerable part of the blame is undeserved ; it is less that the bill-makers are negligent, than that their task, of keeping order and knowing what they are about in the thicket, is impracticable. Just now it is said as an objection, that law- yers are too much concerned in the framing of bills : which ' might, with a simple statute-book, be a sound objection; but with our complicated heap of statutes, what sort of order is likely to be introduced, if the additions to the statutes are to be constructed by persons ignorant of what is already in the beep t Endeavours have been made to palliate the evil by dint of "consolidation," whether in the shape of bills bearing that de- signation, or by introducing whole statutes into bills through incorporating-clauses. But the success in this direction has been equivocal ; indeed, the practice has introduced fresh elements of confusion. A single clause may incorporate with the new bill hundreds of other clauses ; and the legislator is not merely re-
citing clauses which are already on the statute-book, but is, as it were, extending them to a new part of that immense fabric. But they are not bodily before him, and he cannot carry them in his mind; and thus, in reality, to the heap of statutes about which he knows so little, he is adding a heap of clauses about which also he knows nothing.
The notion of reducing the statutes to a code—or even re- ducing the criminal law, which it is so very desirable to compress
into an intelligible compass—seems too good to be feasible. First, the immensity of the labour, the very complexity of the thing to be simplified, makes one despond. Then the lawyers
raise " difficulties" as numberless as flies in summer or the
clauses of a session. A code, it is said, would not adapt itself to the changing circumstances of different epochs, nor be enriched by precedents, &c. So, while a code is the thing desired, we are yearly toiling away like bargemen to get farther in among the detested rocks and shallows of " bills."
It does not follow, however, that all the advantages of a system of "bills" need be abandoned in accepting the aid of a code. The two systems are not incompatible, even in an identical de- partment of law. There might be a code subject to revision periodically, once in so many years; the revision to be effected on the authority of bills passed in the intervals. The existence of such a code would be a good in itself; but it would also render the framing of the supplementary bills a far easier task than it is now : it is evident that a code, properly classified, would
form such a compact and comprehensible body, that the framer of a bill would be able to know the future context of his sta-
tute, and would be able to make it fit with the nicest pre- cision. In applying the law, the lawyer's researches would be limited to the code, and to the bills accruing in the interval since the last revision. Portions of bills as they are now framed would be superseded—interpretation-clauses, for instance ; for the code would have its own set interpretations. Consolidation-bills and clauses would be needless. All questions of repealed or non- repealed statutes would be set at rest for ever. Yet experience, arguments at the bar, precedents, would become available for improving the code, for adapting it to altered times or extending
it to new circumstances. With such a combination of- code and bills it would be quite possible to make every bill so simple
that it should have but one main object—it would in fact be a bill authorizing at a certain period a specific alteration of the code. Of course, before the actual revision of the code, in penal cases, a defendant would have the option of pleading that code in bar of any statute ; because one advantage of a code is its fixed and intelligible character. But there would be no similar reason for withholding the operation of all enabling provisions. And in all cases the floating statute would constitute the best and most au- thoritative notice of the intended alteration. There seems indeed no obvious reason why most of the advantages anticipated from
a code should not be combined with the advantages of legislation by bills : the one uniform staple would introduce order and har- mony into the changeable portion of the law ; we should have the advantages both of fixity and of change, without the chaos which now results from endless tinkering in a body of laws so vast and confused that, as a whole, it is probably, nay most certainly, known to no living soul.
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