LEGISLATIVE METHODS
AND FORMS
SIR COURTENAY ILBERT
LONDON
HENRY FROWDE, M.A.
PUBLISHER TO THE UNIVERSITY OF OXFORD
STEVENS & SONS, LIMITED
LEGISLATIVE METHODS
AND FORMS
BY
SIR COURTENAY.LBERT, K.C.S.I., CI.E.
A Mt
PARLIAMENTARY COUNSEL TO THE TREASURY
SOMETIME MEMBER OF THE COUNCIL OF THE GOVERNOR-GENERAL OF INDIA
AUTHOR OF ' THE GOVERNMENT OF INDIA '
LONDON AND NEW YORK: HENRY FROWDE
ALSO SOLD BY
STEVENS & SONS, LIMITED, 119 & 120 CHANCERY LANE, LONDON
IQOI
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 mofle in which Government 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 Revieiv.
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
dealing 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 vtf
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 Encyclopedia of English Law
and in the Law Quarterly Eeview.
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 endeavours 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 XTT 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 XTT
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 GARDENS.
February, 1901.
CONTENTS
CHAPTEE I
COMMON LAW AND STATUTE LAW
PACK
Rivalry between common law and statute law i
The growth of the common law i
Characteristics of English law 2
Its continuity and uniformity . . . . . - . a
National, in what senses 3
Early statute law 4
Petitions to the King in Parliament 5
Divergence of Parliamentary and judicial law-making ... 6
The authority of precedent . 7
A comparison with France 8
Ordinances of Louis XIV and Louis XV .10
Colbert and D'Aguesseau 10
Registration of Ordinances by ' Par.lement ' n
A ' Bed of Justice ' 1 1
The ' Parlement ' of Paris ia
Customary law in France 13
Reconciliation of conflicting customs 14
The impulse to codification in France 15
Development of law in Germany 15
CHAPTER n
THE ENGLISH STATUTE BOOK
Meaning of ' statute ' 20
Statutes of the Realm 21
Scottish statutes. 23
Irish statutes 23
Editions of statutes at large for period since 1713 . . . 23
Chitty's Statutes of Practical Utility 24
Statutes Revised (first edition) 24
Statutes Revised (second edition) 24
Utility of Statutes Revised 25
x CONTENTS
PAGE
Irish Statutes Revised 25
Projected edition of Scottish Statutes Revised 26
Annual volumes of Public General Statutes 26
Classification of statutes 26
Distinction between Public and Private Acts 27
Distinction between Public and Private Bills 28
Provisional Order Confirmation Bills -33
Public Acts of a local character ........ 33
Chronological Table and Index of Acts ...... 33
Lists of Local and Private Acts ........ 35
CHAPTER III
SUBORDINATE LEGISLATION . . 36
CHAPTER IV
STAGES IN THE IMPROVEMENT OF THE ENGLISH STATUTE LAW
Object of chapter .......... 43
Proposals under King Edward VI 43
Proceedings under Queen Elizabeth 43
Proposals under King James I . . . . . . . .45
Lord Bacon's proposals of 1616 ........ 45
Proceedings under the Commonwealth 46
Proceedings after Restoration 47
Reports of 1796 47
Improvement in classification of Acts 49
Resolutions of 1800 .......... 50
Resolution of Public Records Commission, 1806 .... 50
Resolutions of 1816 50
Sir Robert Peel's Criminal Law Amendment Acts . . . .51
Statute Law Commission of 1833 51
Sir Henry Seton's Reports of 1836 52
Statute Law Commission of 1845 52
Further steps for codification of criminal law 53
Lord Cran worth's proposals of 1853 53
Statute Law Board of 1843 53
Statute Law Commission of 1854 55
Statute Law Revision Act of 1856 57
Select Committee of 1857 58
Criticisms in Parliament on proceedings of Statute Law Commis-
sioners 58
Proceedings in 1859 59
Publication of Register of Public General Acts 59
Steps taken by Sir Richard Bethell in 1860 . . . . . 59
Statute Law Revision Act of 1861 .60
Criminal Law Consolidation Acts of 1861 60
Statute Law Revision Act of 1863 60
Other expurgatory Acts 6a
CONTENTS xi
PACK
Preparation of Index to and Chronological Table of Statutes . . 63
Alteration in classification and editions of the statutes ... 64
Appointment of Statute Law Committee in 1868 .... 64
Publication of Chronological Table and Index to Statutes . . 66
Publication of first edition of Revised Statutes 66
Arrangement for extension of first Revised Edition .... 66
Successive editions of Chronological Table and Index ... 66
Establishment of Parliamentary Counsel's office .... 67
Select Committee of 1875 6?
Improvement in drafting of Bills 68
Reports on civil procedure and courts 69
Mr. Wright's report, 1877, on criminal law and procedure . . 69
Criminal Code Bills of 1878-83 69
Second edition of Revised Statutes 70
Statute Law Revision Bills of 1887 and 1888 70
Interpretation Act, 1889 71
Statute Law Revision Bill of 1889 71
Select Committee of 1890 71
Statute Law Revision Acts of 1890 72
Statute Law Revision Act of 1891 72
Establishment of Joint Committee for consideration of Statute Law
Revision Bills . 72
Recent Consolidation Acts 72
Procedure for passing Consolidation Bills in 1894 .... 73
Difficulties experienced in 1896 ........ 74
Suspension of work of consolidation ....... 75
Short Titles Acts of 1892 and 1896 75
Summary of results 76
CHAPTEE V
PREPARATION OF ACTS
Preparation of early Acts 77
Legislation in the Tudor period ........ 77
Share of judges in preparation of Bills after Restoration ... 78
Lawyers' Acts ........... 79
Eighteenth-century legislation 80
Mr. Pitt's ' Parliamentary Counsel' 80
Change in nature of ministerial responsibility for legislation . . 82
Appointment of Home Office Counsel 83
Establishment of Parliamentary Counsel's Office in 1869 . . 84
Object of scheme of 1869 ......... 85
Staff of Parliamentary Counsel's Office 85
Gradual abolition of departmental draftsmen 86
Practice as to instructions for Government Bills .... 86
Procedure on receipt of instructions 87
Work of draftsman after introduction of Bill into Parliament . . 89
Scotch and Irish Bills .... 4 .... 90
Private members' Bills ......... 90
xii CONTENTS
PAGE
Hybrid Bills 91
Private Bills 92
Provisional Order Bills 92
Other duties of Parliamentary Counsel's Office . . . . -93
Advising on questions affecting legislation 93
Statutory rules and orders 94
Statute law revision and consolidation 95
Results of establishment of Parliamentary Counsel's Office . . 95
Economy 95
Control over Government legislation ....... 96
Improvement in form of statutes 96
Suggestions for extension of duties of Office 96
CHAPTER VI
PASSAGE OF BILLS THROUGH PARLIAMENT
Right of initiating legislation 98
Mode of introduction 99
Stages in progress of Bill 101
Classes of committees 104
Authentication of Acts 105
NOTE A — Initiation of legislation in France and Germany . . 106
NOTE B — Legislative procedure in France 108
CHAPTEE VII
CONSOLIDATION OF STATUTES
Meaning of consolidation in
Difficulties of consolidation . • in
Change of language in
Changes of law and circumstances 112
Differences of style . . . . . . . . . .112
Ambiguities and obscurities 112
Consolidation means rewriting 112
Consolidation Acts not popular 113
Progress made in consolidation 114
Work to be done 115
Need of support from public opinion 1 16
Is consolidation worth the trouble it involves ? . . . .116
Possible improvements in machinery for consolidation . . . n8
CHAPTEE VIII
CODIFICATION
Bentham's definition of codification 122
Savigny on codification 123
Results of Bentham's work 124
CONTENTS xui
PAGE
Results of Savigny's work 126
Fate of codification in England . 127
Codification in India 129
Codification in British colonies 155
Codification in the United States 155
Codification on the Continent 157
General conclusions .......... 159
Advantages of codification 159
Difficulties in way of codification 160
Case for dealing with criminal law 162
CHAPTEE IX
INDIAN AND COLONIAL LEGISLATION
I. COMMON LAW AS THE BASTS OF STATUTE LAW.
General principles . ........ 167
India 167
Channel Islands 168
British colonies generally . . . . . . . . 168
French law in Canada and elsewhere 168
Spanish law 169
Roman-Dutch law 169
Malta 170
Cyprus 170
Laws applicable to particular races and creeds 170
India 170
Ceylon 170
Straits 171
Hong Kong 171
African colonies 172
Australasia 172
EL STATUTE LAW.
Materials of which statute law of British possessions is composed . 172
Legislative powers of Imperial Parliament 173
Effect of severance of one possession from another . . * . 173
Survivals of foreign enacted law . . . . . . -173
Illustrations 174
The Indian Statute Book 174
Canadian statute law 176
Australasian statute law 177
Jamaica 178
Rudimentary forms of legislation 178
m. METHODS OF LEGISLATION.
i. Preparation of Bills.
India 179
Self-governing colonies • • .180
Canada 180
xiv CONTENTS
PAGE
Newfoundland 180
New South Wales 180
Victoria 181
Queensland . • . . . 181
South Australia 181
Western Australia 182
Crown colonies 182
2. Publication of Sills.
India . 185
Self-governing colonies . . . . . . . . .185
Crown colonies 185
3. Stages of Bills.
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 Bin Legislation.
Self-governing colonies 188
India 189
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 192
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 196
Crown colonies 197
3. Indexing.
Suggestions for uniformity of indexing 198
Existing indexes in India and elsewhere 198
CONTENTS xv
V. CONSOLIDATION AHD CODIFICATION.
PACK
Collective Editions of Colonial Acts 202
CHAPTEK X
PARLIAMENT AS A LEGISLATIVE MACHINE
Napoleon on legislatures 208
Napoleonic theory and English practice 208
Leading characteristics of English legislation 209
Parliament mainly concerned with administrative law . . . 209
Control of Executive Government over legislation . . . .213
Distrust of official discretion 219
Comparison with other legislatures 222
United States legislation . . 222
Continental legislation 222
Colonial legislation 224
Anglo-Indian legislation 225
Causes of defective form of Acts of Parliament 229
The progress of a Bill through the House 230
Should legislation be delegated to experts ? 23 r
Advantages of existing system 233
Systematic consolidation would remove many defects . . . 235
CHAPTEK XI
FORM AND ARRANGEMENT 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
CHAPTEK XII
STATUTORY FORMS
TITLE.
PAGS
Forms 271
ENACTING FORMULA.
Forms 273
FORMAL CLAUSES.
Forms,
Short title 272
Construction of Act . . . 273
Provision for embodying amending Act in principal Act . . . 274
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 AUTHORITIES.
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 285
Consolidated Fund 286
Consolidated Fund charges and annual supply charges . . . 286
Consolidated Fund charges 286
Charge for public debt 286
Heads of public debt 286
Permanent funded debt 286
Funded debt of terminable annuities 287
CONTENTS xvii
PACK
War loan 287
Floating or unfunded debt 287
Exchequer bills and Exchequer bonds 287
Treasury bills 288
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
Resolution in Committee of Ways and Means 291
Consolidated Fund Acts 291
Issue of credit by Comptroller and Auditor-General .... 291
Issue by Treasury 293
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
Local 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
Forms,
Power for Public Works Loan Commissioners to lend . . . 299
Money to be applied as appropriation in aid 300
LOCAL AUTHORITIES AKD LOCAL FISAHCE.
Preliminary Note 300
Forms.
Expenses of [district council] 304
Application of receipts by [district council] 305
Application of capital money 305
Power of county council to borrow ....... 306
Power of borough council to borrow 306
Power of district council to borrow 306
Power of [ ] to borrow 306
Proceedings in case of default of local authority . . . . 307
ILBERT. u
xviii CONTENTS
PROVISIONAL ORDERS AKD SCHEMES.
PAGE
Preliminary Note 308
Forms.
Confirmation of provisional order by Parliament .... 308
Confirmation of scheme by Parliament or Order in Council . . 309
ORDERS IN COUNCIL, RULES, REGULATIONS, AND BY-LAWS.
Preliminary Note 310
Forms.
Power for His Majesty to make Orders in Council . . . .. 31 1
Power for King in Council to make regulations .... 312
Draft of Order to be laid before Parliament 312
Power to make rules 313
Rules to be laid before Parliament 313
Rules to be subject to disallowance by Parliament .... 313
Draft of rules to be laid before Parliament 314
Power of local authority to make by-laws 314
By-laws 315
ACQUISITION OF LAND.
Preliminary Note , . . 317
Forms.
Power to purchase land 320
Machinery for purchase of land ........ 321
LEGAL PROCEEDINGS.
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
FORM, SERVICE, INSPECTION, AND EVIDENCE OF DOCUMENTS.
Forms.
Form of notices, Ac 326
Service of notices, &c 326
Inspection of documents 327
Execution of instruments by head of department .... 328
Evidence of register 328
Gazette to be evidence 328
Proof of document by certified copy, &c 329
COMPUTATION OF TIME.
Forms.
Computation of time 329
CONTENTS xix
SAVING C LA USES .
PAG*
Preliminary Note 030
Forms.
Saving for rules of equity and common law 330
Powers of Act cumulative . . . 330
Repeal of local Acts 331
Saving for powers of [Charity Commissioners, &c.] .... 331
Saving for power to proceed under other law 331
Saving of civil remedy ......... 331
Saving of obligation to make discovery 331
SPECIAL AUTHORITIES.
Preliminary Note 33!
Forms.
Powers of Commissioners (judicial) 332
Penalty for false swearing 333
Power to appear by counsel 333
Indemnity to witnesses 333
APPENDIX I
REPEAL TABLES AND SCHEDULES
PART I. — COMPARISON OF ENACTMENTS REPEALED WITH BILL . . 335
PART II. — ENACTMENTS REPEALED • 335
APPENDIX II
INTERPRETATION ACT, I
Re-enactment of existing Bales.
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,' Ac. 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
New General Rules of Construction.
Official 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 borough 345
Meaning of guardians and union ....... 346
Definitions relating to elections 347
Geographical and colonial definitions in future Acts . . . 347
Meaning of ' person ' in future Acts 349
Meaning «f ' 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 350
Meaning of Irish Valuation Acts 350
Meaning of • ordnance map '...«.... 350
Meaning of service by post 351
Meaning of ' committed for trial ' . 351
Meanings of 'sheriff,' 'felony,' and 'misdemeanour' in future
Scotch Acts 35 1
Meaning of ' county court ' in future Irish Acts .... 352
References to the Crown 352
Construction of statutory rules, &c 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
RULES PUBLICATION ACT, 1893
Notice of and representation respecting certain draft rules . . 359
Provisional rules in certain cases 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 STATUTES1
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 Viet. c. 48), 305, 318, 320.
Appropriation Acts (annual), 292, 293.
Arbitration, 1889 (52 & 53 Viet. c. 49), 262.
Army (44 & 45 Viet. c. 58), 94, 114, 259.
Army (Annual), 1885 (48 Viet. 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 Viet. c. 33), 264.
Bank, 1892 (55 & 56 Viet. c. 48), 287, 288.
Bankruptcy, 1883 (46 & 47 Viet. c. 52), 294.
Belfast Commission, 1886 (50 Viet. c. 4), 332.
Bills of Exchange, 1882 (45 & 46 Viet. c. 61), 129, 201, 202, 330.
Board of Agriculture, 1889 (52 & 53 Viet. c. 30), 282, 283, 284, 312,
314, 328-
Education, 1899 (62 & 63 Viet. c. 33), 282, 283. 284, 328, 340.
British Columbia Loan, 1892 (55 & 56 Viet. c. 52), 299.
— Settlements, 1887 (50 & 51 Viet. c. 54), 173.
Canada (Ontario Boundary), 1889 (52 & 53 Viet. c. 28), 269.
Cemeteries Clauses, 1847 (10 & u Viet. c. 65), 323.
Chancery Funds, 1872 (35 & 36 Viet. c. 44), 73.
Clauses Consolidation Acts, 1845, 92- 2^1' 2^2-
Coast Guard Service, 1856 (19 & 20 Viet. c. 83), 320.
Coinage Acts, 114.
1832 (2 Will. IV. c. 34), 51.
Colonial Loans. 1899 (62 & 63 Viet. c. 36). 298, 299.
Colonial Prisoners Removal, 1867 (32 & 33 Viet. c. 10), 276.
1884 (47 & 48 Viet, c. 31), 276.
Probates, 1892 (55 & 56 Viet. c. 6), 276, 277, 349.
Solicitors, 1900 (63 & 64 Viet. c. 14), 276, 277.
Commissioners for Oaths Acts, 114.
1 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 Viet. c. 30), 305, 306, 314.
Companies, 1862 (25 & 26 Viet. c. 89), 351.
Clauses Consolidation, 1845 (8 & 9 Viet. c. 16), 261.
Clauses Consolidation (Scotland), 1845 (8 & 9 Viet. c. 17), 261.
Consolidated Fund (No. 2), 1896 (59 & 60 Viet. c. 7), 289.
Fund Acts, 291, 292, 293.
Consular Salaries and Fees, 1891 (54 & 55 Viet. c. 36), 342.
Contagious Diseases (Animals), 1878 (41 & 42 Viet. c. 74), 330.
359-
(Pleuro-Pneumonia), 1890 (53 & 54 Viet. c. 14), 295.
1892 (55 & 56 Viet. c. 47), 295, 359.
1893 (56 & 57 Viet. c. 43), 295.
Copyhold Acts, 114.
Coroners Acts, 114.
County Courts, 1846 (9 & 10 Viet. c. 95), 338.
!888 (51 & 52 Viet. c. 43), 338.
Acts, 42, 114.
County Officers and Courts (Ireland), 1877 (4° & 41 Viet. c. 56),
352-
Criminal Evidence, 1898 (61 & 62 Viet. 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 Viet. c. 35), 323.
1885 (48 & 49 Viet. c. 69), 324:
Consolidation Acts, 1861 (24 & 25 Viet. cc. 94-100), 60, 323.
Procedure (Scotland), 1887 (50 & 51 Viet. 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. i), 341.
1851 (14 & 15 Viet. c. 42), 341.
Customs Acts, 1825 (6 Geo. IV. cc. 104-115), 50.
Consolidation, 1876 (39 & 40 Viet. c. 36), 114.
and Excise, 1787 (27 Geo. III. c. 13), 286.
and Inland Revenue, 1879 (42 & 43 Viet. c. 21), 275.
1890 (53 & 54 Viet. c. 8), 270, 295.
Defence, 1842 (5 & 6 Viet. c. 94), 320.
Diseases of Animals, 1894 (57 & 58 Viet. c. 57), 295, 307.
of Animals Acts, 114.
District Auditors, 1879 (42 Viet. c. 6), 303.
Divided Parishes, &c., 1876 (39 & 40 Viet. c. 61), 310.
Documentary Evidence, 1868 (31 & 32 Viet. c. 37), 312, 328, 329.
- 1882 (45 & 46 Viet. c. 9), 312, 329.
1895 (58 & 59 Viet. c. 9), 328.
Ecclesiastical Titles, 1851 (14 & 15 Viet. c. 60), 60.
Educational Endowments (Ireland), 1885 (48 & 49 Viet. c. 78), 310.
TABLE OF STATUTES xxiii
Electric Lighting, 1882 (45 & 46 Viet. c. 56), 309.
Clauses, 1899 (62 & 63 Yict. c. 19), 92, 93, 261.
Elementary Education, 1870 (33 & 34 Viet. c. 75), 265. 327, 354.
1876 (39 & 40 Viet. c. 79), 325.
Acts, 42.
Evidence, 1851 (14 & 15 Viet. c. 99), 328.
Exchequer and Audit Departments, 1866 (29 & 30 Viet. c. 39), 285,
286, 289, 290, 291.
- Bills and Bonds, 1866 (29 & 30 Viet. c. 25), 287, 288.
Expiring Laws Continuance Act (annual), 264.
Explosives, 1875 (38 & 39 Viet. c. 17), 73, 317, 323, 325, 326, 331, 351.
Explosive Substances, 1883 (46 & 47 Viet. c. 3), 276.
Extradition, 1870 (33 & 34 Viet. c. 52), 276, 277.
Factors Acts, 114.
Factory and Workshop, 1878 (41 & 42 Viet. c. 16), 325.
Finance, 1894 (57 & 58 Viet. c. 30), 295, 296.
1897 (60 & 61 Viet. c. 24), 259.
1899 (62 & 63 Viet. c. 9), 299.
1900 (63 & 64 Viet. c. 7), 287, 290.
Fines and Recoveries, 1833 (3 & 4 Will. IV. c. 74), 80.
Fisheries Amendment, 1884 (47 & 48 Viet. c. 26), 273.
(Oyster, Crab, and Lobster), 1877 (40 & 41 Viet. c. 42), 310.
Foreign Enlistment, 1870 (33 & 34 Viet. c. 90), 278.
Jurisdiction, 1890 (53 & 54 Viet. c. 37), 280.
Jurisdiction Acts, 42, 114.
Marriage, 1892 (55 & 56 .Viet. c. 23), 311, 312.
Marriage Acts, 114.
Forfeiture, 1870 (33 & 34 Viet. c. 23), 323.
Forgery, 1830 (i Will. IV. c. 66), 51.
Friendly Societies, 1887 (50 & 51 Viet. c. 56), 259, 275.
Acts, 114.
Fugitive Offenders, 1881 (44 & 45 Viet. c. 69), 276.
' Gilbert's Act,1 82.
Government of India, 1833 (3 & 4 Will. IV. c. 85), 129, 175.
1853 (16 & 17 Viet. c. 95), 130.
1858 (21 & 22 Viet. c. 106), 131, 282.
1870 (33 Viet. c. 3), 175, 194.
Acts, 1 1 6.
Grand Jury Cess (Dublin), 1851 (14 & 15 Viet. c. 65), 323.
Great Seal, 1562 (5 Eliz. c. 18), 340.
Greek Loan, 1898 (61 & 62 Viet. c. 4), 299.
Highways, 1835 (5 & 6 Will. IV. c. 50), 320.
4 Hobhouse's Act,' 82.
Housing of the Working Classes, 1890 (53 & 54 Viet. c. 70), 253, 265,
300, 302, 308, 310, 318, 331.
Acts, 114.
xxiv TABLE OF STATUTES
Indian Councils, 1861 (24 & 25 Viet. c. 67), 131, 175.
High Courts, 1861 (24 & 25 Viet. c. 104), 131.
Indictable Offences, 1848 (n & 12 Viet. c. 42), 351.
Inebriates, 1899 (^2 & 63 Viet. c. 35), 324.
Infectious Diseases (Notification), 1889 (52 & 53 Viet. c. 72), 331.
International Copyright, 1886 (49 & 50 Viet. c. 33), 276.
Interpretation, 1889 (52 & 53 Viet. c. 63), 28, 71, 114, 186, 248, 273,
275. 277> 278> 28°^ 28l> 282> 31*, 3I2> 322» 327» 33°, 336-357, 359-
of Terms, 1837 (7 Will. IV. & i Viet. c. 39), 339.
Irish Education, 1892 (55 & 56 Viet. c. 42), 321, 325.
1893 (56 & 57 Viet. c. 41), 321.
Presbyterian Church, 1871 (34 & 35 Viet. c. 24), 31.
Jamaica Act, 1866 (29 & 30 Viet. 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 Viet. c. 43), 322.
Labourers (Ireland), 1883 (46 & 47 Viet. c. 60), 310, 321.
1885 (48 & 49 Viet. c. 77), 320, 321.
1886 (49 & 50 Viet. c. 59), 320.
Land Transfer, 1875 (38 & 39 Viet. c. 87), 331.
Lands Clauses Consolidation Acts Amendment, 1860 (23 & 24 Viet.
c. 106), 350.
Lands Clauses Acts, 262, 317, 318, 319.
1845 (8 & 9 Viet. c. 18), 261, 350.
(Scotland), 1845 (8 & 9 Viet. c. 19), 261, 350.
Larceny, 1827 (7 & 8 Geo. IV. c. 29), 51.
1861 (24 & 25 Viet. c. 96), 163.
Licensing, 1872 (35 & 36 Viet. c. 94), 73.
Light Railways, 1896 (59 & 60 Viet. c. 48), 298, 318, 320, 321.
Local Government, 1888 (51 & 52 Viet. c. 41), 246, 263, 264, 278, 294,
300-304, 310, 314, 319-321, 330, 338, 350.
- 1894 (56 &57 Viet. c. 73), 264, 265, 278, 300-304, 308, 318,
320, 327, 330.
Acts, 115, 251, 263.
Board, 1871 (34 & 35 Viet. c. 70), 282.
(Boundaries), 1887 (50 & 51 Viet. c. 61), 332.
(Ireland), 1898 (61 & 62 Viet. c. 37), 94, 264, 265, 266, 279,
295-
(Scotland), 1889 (52 & 53 Viet. c. 50), 295.
Loans, 1875 (38 & 39 Viet. c. 83), 303.
Taxation (Customs and Excise), 1890 (53 & 54 Viet. c. 60), 295,
301.
' Locke King's Acts,' 257.
Locomotives, 1898 (61 & 62 Viet. c. 29), 314, 325.
London Building, 1894 (57 & 58 Viet. c. ccxiii), 30.
TABLE OF STATUTES xxv
London Coal Duties Abolition, 1889 (52 & 53 Viet. c. 17), 269.
County Council Electors Qualification, 1900 (63 & 64 Viet. c. 29 ),
216.
Government, 1899 (62 & 63 Viet. c. 14), 251, 264, 279, 301, 303,
306, 310, 312, 314, 321, 346.
' Lord Brougham's Act ' (13 & 14 Viet. c. 21), 27, 68, 186, 336-339,
354-
Lunacy, 1890 (53 & 54 Viet. c. 5), 42.
Acts, 114.
Mail Ships, 1891 (54 & 55 Viet. 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 Viet. c. 29), 325.
Marriage, 1891 (54 & 55 Viet. c. 74), 94.
Mauritius Hurricane Loan, 1892 (55 & 56 Viet. c. 49), 299.
Medical, 1885 (49 & 50 Viet. c. 48), 276, 329.
Merchandise Marks, 1887 (50 & 51 Viet. c. 28), 325.
Merchant Shipping, 1894 157 & 58 Viet. c. 60), 73, 121, 276, 297. 323.
Acts, 42, 114.
(Colonial), 1869 (32 & 33 Viet. c. n), 276.
(Life Saving Appliances), 1888 (51 & 52 Viet. c. 24), 332.
(Mercantile Marine Fund), 1898 (61 & 62 Viet. c. 44), 295.
312.
Metropolis Management, 1855 (18 & 19 Viet. c. 120), 30.
Amendment, 1862 (25 & 26 Viet. c. 102), 320.
Water, 1899 (62 & 63 Viet. c. 7), 243.
Metropolitan Board Commission, 1888 (51 & 52 Viet. c. 6), 332, 334.
Board of Works (Loans), 1869 (32 & 33 Viet. c. 102), 73.
Inner Circle, 1874 (37 & 38 Viet. c. cxcix), 318.
Open Spaces, 1881 (44 & 45 Viet. c. 34), 260.
Police, 1886 (49 Viet. c. 22), 319.
Poor, 1867 (30 & 31 Viet. 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 Viet. c. 43), 93, 297, 306, 318, 319, 321.
1897 (60 & 61 Viet. c. 6), 297.
1900 (63 & 64 Viet. c. 56), 321.
Tramways, 1887 (50 & 51 Viet. c. 65), 320.
Works, 1897 (6° & 61 Viet. c. 7), 289.
Militia, 1882 (45 & 46 Viet. c. 49), 341.
Acts, 114.
Millbank Prison (Military Offenders), 1869 (32 & 33 Viet. c. 95), 175.
Mortmain Acts, 114.
Municipal Corporations, 1882 (45 & 46 Viet. c. 50), 246, 254, 263.
300-304, 306, 310, 314, 315, 317, 320, 322, 330, 345, 346.
Acts, 114, 263.
(Ireland). 1840 (3*4 Viet. c. 108), 346.
Mutiny Acts (annual), 94, 114.
xxvi TABLE OF STATUTES
National Debt, 1889 (52 & 53 Viet. c. 6), 287, 289.
Acts, 114.
(Conversion of Bonds), 1892 (55 & 56 Viet. c. 26), 287, 290.
(Conversion of Stock), 1884 (47 & 48 Viet. c. 23), 287, 290.
Conversion, 1888 (51 & 52 Viet. c. 2), 287, 290.
and Local Loans, 1887 (50 & 51 Viet. c. 16), 287-289, 296-299.
— Redemption, 1889 (52 & 53 Viet. c. 4), 287, 288.
Naturalization, 1870 (33 & 34 Viet. c. 14), 73.
Naval Defence, 1889 (52 & 53 Viet. c. 8), 296.
Discipline, 1884 (47 & 48 Viet. c. 39), 259, 275.
Works, 1896 (59 & 60 Viet. c. 6), 299.
Offences against the Person, 1828 (9 Geo. IV. c. 31), 51.
Open Spaces, 1887 (50 & 51 Viet. c. 32), 260.
Partnership, 1890 (53 & 54 Viet. c. 39), 128, 201, 202, 330.
Patent Acts, 42.
Patents, Designs, and Trade Marks, 1883 (46 & 47 Viet. c. 57), 276.
1850 (51 & 52 Viet. c. 50), 275.
Paymaster- General, 1889 (52 & 53 Viet. c. 53), 293.
Pensions (Colonial Service), 1887 (50 & 51 Viet. c. 13), 282.
Commutation, 1870 (33 & 34 Viet. c. 101), 275.
Petty Sessions (Ireland), 1851 (14 & 15 Viet. c. 93), 343.
Police, 1890 (53 & 54 Viet. c. 45), 295.
Poor Law, 1889 (52 & 53 Viet. c. 56), 304.
1897 (60 & 61 Viet. c. 29), 304.
— Amendment, 1834 (4 & 5 Will. IV. c. 76), 346.
1886 (29 & 30 Viet. c. 113), 338.
Poor Relief (Ireland), 1838 (i & 2 Viet. c. 56), 347.
Post Office Acts, 116.
(Land), 1881 (44 & 45 Viet. c. 20), 319.
(Protection), 1884 (47 & 48 Viet. c. 76), 324, 328.
Sites, 1900 (63 & 64 Viet. c. ccvi), 215.
Poynings' Act (10 Hen. VII. c. 22, I), 34.
Prevention of Cruelty to Children, 1894 (57 & 58 Viet. c. 41), 324.
Prison, 1865 (28 & 29 Viet. c. 126), 320.
- 1898 (61 & 62 Viet. c. 41), 280, 314, 330.
Probate Duties (Scotland and Ireland), 1888 (51 & 52 Viet. c. 60),
295-
Proclamations by the Crown, 1539 (31 Hen. VIII. c. 8), 36.
Public Accounts and Charges, 1891 (54 & 55 Viet. c. 24), 285, 288, 293,
294, 299.
Authorities Protection, 1893 (56 & 57 Viet. c. 17), 115.
— Buildings Expenses, 1898 (61 & 62 Viet. c. 5), 289, 299.
- Health, 1875 (38 & 39 Viet. c. 55), 249, 262, 300-310, 314, 315,
317. V9, 32i-323. 330. 358.
1890 (53 & 54 Viet. c. 59), 32, 92, 304, 314, 317.
Acts, 114, 262, 263, 265, 304.
TABLE OF STATUTES xxvii
Public Health (London), 1891 (54 & 55 Yict. c. 76). 253, 265, 308, 315.
326. 327, 331-
Libraries Acts, 114.
Offices Fees, 1879 (42 & 43 Viet. c. 58), 283.
Revenue and Consolidated Fund Charges, 1854 (17 & 18 Viet.
c. 94), 291.
Schools. 1868 (31 & 32 Viet. c. 118), 332.
Works Loans, 1875 (38 & 39 Viet. c. 89), 296, 297, 299.
1879 (42 & 43 Viet. c. 77), 296.
1882 (45 & 46 Viet. c. 62), 299.
1889 (52 & 53 Viet. c. 71), 288.
1890 (53 & 54 Viet. c. 50), 298.
1892 (55 & 56 Viet. c. 61), 296.
1896 (59 & 60 Viet. c. 42), 296, 298.
1897 (60 & 61 Viet. c. 51), 296, 297, 298.
1898 (61 & 62 Viet. c. 54), 297, 298.
1899 (62 & 63 Viet. c. 31), 298.
(Ireland), 1877 (4° & 41 Viet. c- 27), 296, 297.
Purchase of Land (Ireland), 1891 (54 & 55 Viet. c. 48), 94, 283, 287.
Railway and Canal Traffic, 1888 (51 & 52 Viet. c. 25), 332.
Railways (Ireland), 1851 (14 & 15 Viet. c. 70), 350.
1860 (23 & 24 Viet. c. 97), 350.
1864 (27 & 28 Viet. c. 71), 350.
Clauses, 1845 (8 & 9 Viet. c. 20), 261, 323.
(Scotland), 1845 (8 & 9 Viet. c. 33), 261.
Traverse, 1868 (31 & 32 Viet. c. 70), 350.
Real Estate Charges, 1854 (17 & 18 Viet. c. 113), 257.
1867 (30 & 31 Viet. c. 69), 257.
1877 (40 & 4i Viet. c. 34), 257.
Registration (Ireland), 1898 (61 & 62 Viet. c. 2), 265.
Remedies against the Hundred, 1827 (7 & 8 Geo. IV. c. 31), 51.
Repeal of Obsolete Statutes, 1856 (19 & 20 Viet. c. 64), 57.
Representation of the People, 1832 (2 & 3 Will. IV. c. 45), 210. 211,
212.
Royal Niger Company, 1899 (62 & 63 Viet. c. 43), 299.
Rules Publication, 1893 (56 & 57 Viet. c. 66), 41, 310, 311, 312, 314,
358-363.
Russian Dutch Loan, 1891 (54 & 55 Viet. c. 26), 299.
Sale of Food and Drugs, 1875 (38 & 39 Viet. c. 63), 325.
1899 (62 & 63 Viet. c. 51), 308, 326.
Goods, 1893 (56 & 57 Viet. c. 71), 129, 201, 202.
Salmon and Freshwater Fisheries Acts, 332.
Savings Banks, 1891 (54 & 55 Viet. c. 21), 332.
Sea Fisheries, 1883 (46 & 47 Viet. c. 22), 278, 325.
Seal Fishery, 1891 (54 & 55 Viet. c. 19), 265.
1893 (56 & 57 Viet. c. 23), 265.
1894 (57 & 58 Viet. c. 2), 265.
xxviii TABLE OF STATUTES
Sequestration, 1871 (34 & 35 Viet. c. 45), 62.
Settled Land Acts, 1882-1890, 33.
Shannon, 1885 (48 & 49 Viet. c. 41), 310.
Sheriffs Acts, 114.
Short Titles, 1892 (55 & 56 Viet. c. 10), 75, 115, 272.
1896 (59 & 60 Viet. c. 14), 76, 115, 272, 274.
Sinking Fund, 1875 (38 & 39 Viet. c. 45), 288, 289, 290.
Slave Trade Acts, 114.
Small Holdings, 1892 (55 & 56 Viet. c. 31), 300, 306, 322.
Acquisition, 1899 (62 & 63 Viet. c. 44), 305, 306.
Special Commission, 1888 (51 & 52 Viet. c. 35), 332.
Stamps and Stamp Duties Acts, 114.
Statute of Distributions, 80.
Law Revision, 1861 (24 & 25 Viet. c. 101), 60, 62.
1863 (26 & 27 Viet. c. 125), 62.
1887 (50 & 51 Viet. c. 59), 70.
1888 (51 & 52 Viet. c. 3), 70.
1888 (No. 2) (51 & 52 Viet. c. 57), 70.
1890 (53 & 54 Viet. c. 33), 72.
X89o (No. 2) 53 & 54 Viet. c. 51), 72.
(Ireland), 1872 (35 & 36 Viet. c. 98), 34.
and Civil Procedure, 1881 (44 & 45 Viet. c. 59), 62.
1883 (46 & 47 Viet. c. 49), 62.
of Merton (20 Hen. Ill), 21.
of Waste (20 Edw. I), 4.
Statutes of 1433 (n Hen. VI), 272.
(Definition of Time), 1880 (43 & 44 Viet. c. 9), 330.
Statutory Declarations, 1835 (5 & 6 Will. IV. c. 62), 349.
Summary Jurisdiction, 1848 (n & 12 Viet. c. 43), 261, 262, 322, 343.
1857 (20 & 21 Viet. c. 43), 323.
1879 (42 & 43 Viet. c. 49), 262, 322, 323, 343.
1884 (47 & 48 Viet. c. 43), 62.
Acts, 262, 327.
(Scotland), 1864 (27 & 28 Viet. c. 53), 343.
Superannuation, 1859 (22 Viet. c. 26), 282.
Supplemental War Loan, 1900 (63 & 64 Viet. c. 61), 287, 299.
Supreme Court of Judicature, 1875 (3^ & 39 Viet. c- 77)> ^2> 3J3-
Acts, 115.
(Ireland), 1877 (40 & 41 Viet. c. 57), 343.
Survey (Great Britain) Acts, 350.
(Ireland) Acts, 350.
Technical Instruction, 1889 (52 & 53 Viet. c. 76), 301.
1891 (54 & 55 Viet. c. 4), 295, 301.
Telegraph, 1892 (55 & 56 Viet. c. 59), 299.
Thames Conservancy, 1894 (57 & 58 Viet. c. clxxxvii), 31.
Embankment, 1862 (25 & 26 Viet. c. 93), 30.
Tithe, 1891 (54 & 55 Viet. c. 8), 313-
TABLE OF STATUTES xxix
Titles to Land (Scotland), 1869 (32 & 33 Viet. c. 116), 275.
Tramways, 1870 (33 & 34 Viet. c. 78), 309, 320.
Treasons, Felonies, &c. (Repeal of Statutes), 1547 (J Edw. VI.
c. 12), 36.
Treasury Bills, 1877 (40 & 41 Viet. c. 2), 287, 288, 290.
1899 (63 Viet. c. 2, sess. 2 of 1899), 288.
Instruments (Signature), 1849 (I2 & J3 Viet. c. 89), 340.
Truck Amendment, 1887 (50 & 51 Viet. c. 46), 325.
Trustees Acts, 114.
Turbary (Ireland), 1891 (54 & 55 Viet. c. 45), 300.
Uganda Railway, 1896 (59 & 60 Viet. c. 38), 299.
Universities of Oxford and Cambridge, 1877 (4° & 41 Viet. c. 48),
332.
Vagabonds, 1535 (27 Hen. VIII. c. 25), 78.
Vexatious Indictments, 1859 (22 & 23 Viet. c. 17), 323.
Wales and Berwick, 1746 (20 Geo. II. c. 42), 47, 275.
War Loan, 1900 (63 & 64 Viet. c. 2), 287, 290, 299.
Weights and Measures, 1889 (52 & 53 Viet. c. 21), 259, 331.
Acts, 114.
Workmen's Compensation, 1897 (6° & 61 Viet. c. 37), 267.
1900 (63 & 64 Viet. c. 22), 216.
TABLE OF CASES
Ashton-under-Lyne Corporation v. Pugh, 279.
Attorney-General v. G. E. Railway Co., 101.
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 &c. 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 v. Oswaldtwistle Urban Council, 249.
Pharmaceutical Society ». 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. v. Jameson, 275.
R. v. 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 r. Sutton, 101.
Thomas v. Sutterg, 314.
Tithe Act, 1891, In re, Roberts t>. Potts, 357.
Union Steamship Co. of New Zealand v. Melbourne Harbour Trust
Commissioners, 245.
White v. Morley, 314.
Young v. Adams, 251.
CHAPTER I
COMMON LAW AND STATUTE LAW
THE modern English lawyer is apt to regard common law CH. I.
and statute law as hereditary foes. ' My Lady Common Rivaby
Law/ he would be inclined to say, ' regards with jealousy
the rival who arrests and distorts her development, who plants Law and
Statute
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 Of the
are language and religion. It is based on custom, on the
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 oiight 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/ rather 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
English features of English law, as compared with the law of France
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
11 y' hundred 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 offer 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,
in what
and home-made, and that of being in 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 2
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 officials. 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 featui'es 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 l, ' 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 (20 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
1 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 full Parliament, by his common council (de commnni
consilio) T 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 case like King in
that of William Butler the two forms of law obviously tend
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 cahier*
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
1 ' It is important to remember that in the Middle Ages no distinc-
tion was or could be drawn between u council " and " counsel " ; both
are consilium ' (Maitland, ' Introduction ' to Memoranda de Parliamenio,
p. Ixvii). Professor Maitland's 'Introduction' to this volume of the
Bolls' 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 by the authority, of
Parliament.
Diver- As the legislative and judicial authorities became distinct
parHa-0 from each other, so statute law and common law tended to
mentary flow {n separate channels. The legislation of the first
and
judicial Edward, moulded by his judges, is largely concerned with
making 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 1 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
1 i. e. of the public general Acts.
COMMON LAW AND STATUTE LAW 7
to them to conflict with what they have regarded as funda- 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
judge-made law has been the binding force of precedent. dent-
This feature is a direct consequence of the centralized char-
acter given to English constitutions by strong Xorman 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
parlemente of France, each claiming co-ordinate jurisdiction
with the parlement of Paris, each having its own 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 of 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 France. 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 English 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 English
COMMON LAW AND STATUTE LAW 9
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 imperaiif\
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 l. They were usually, but not always, made after
sittings of the States General, and with reference to the
floleance* and cahiers presented at those sittings. The series
begins with the Ordinance of Philip 'le Long' in 1318.
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 o'f 1484, the Ordinance of July, 1493, an(^
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 Moulins (1566), arose out of the sittings of
1 See Esmein, Cours Elementaire cTHistoire du Droit Franfais, pp. 780, &c.
10 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, 1629), the law
of evidence (1566), the registration of gifts (1539, 1566),
and the limitation of entails (substitutions fidei-commissairex)
(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 a different character from those just described. The Ordi-
•Jnd. 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
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 Qrdonnance du Commerce of 1673, suPP^e~
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 law, 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;
(2) that of 1735 on wills ; (3) that of 1747 on family settle-
ments (substitutions fidti-commMgaires) ; (4) that of 1737 on
forgery1. 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 French Ordinances, being Registra-
based merely on the royal prerogative, did not carry with 0^1.°
them the same kind of authority as Acts of the English 1^?cfs by
Parliament. They required, as a condition of their validity, ment."
registration by the judicial bodies called parlement*. 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
move in the constitutional game was that the king should
hold a 'bed of justice/ This meant that, by appearing in
1 The subject dealt with by the Ordinance was rather more compre-
hensive. The title was Concernant le faux principal et le faux incident et la
reconnaissance des ecritures et signatures en matiere criminelle.
12 LEGISLATIVE METHODS AND FORMS
CH. I. 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
nullifying an Ordinance by evading its provisions or even
declining to give them effect. Michel de Marillac's Ordi-
nance of 1629, 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
parlement 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 regime.
The ' Par- The parlement of Paris was developed out of the king's
lement of .
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 1.
1 Toulouse, Grenoble, Bordeaux, Dijon, Rouen, Aix, Bretagne, Pau,
Metz, Besanfon, Douai, Nancy.
COMMON LAW AND STATUTE LAW 13
Each of these parlemenfo was sovereign in its own sphere and CH. I.
independent of 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 Cu»-
territorial customs, which remained separate, although they LaW in
fell into two main groups, corresponding with the regions France-
which became known as the pays de coutumes and the pays
de droit ecrit, and were bounded approximately by the line
separating the northern dialects of the langue ffvil from
the southern dialects of the langue cFocl. 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 continues, 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 difficulty 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
ciliation ,
of con- customs exercised an important influence on the subsequent
customs 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
1 The so-called Etablissements 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 reghment made for the provostry of Paris,
partly from a custumal of Anjou and Maine, partly from an ancient
custumal of Orleans (L' Usage d'Orlenois). See Viollot, fitaUissemmts 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
three. In the first place, a strong sense of the practical evils fiction 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 jaw in
by the shadow of the Roman Empire, and thwarted by the Germany-
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 Lege* Barbaroru.m. 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
1 See Brunner's essay on the Historical Foundations of German Law
in HoltzendorfFs Encydopddie der Reehtswissenschqft ; Siegel, Deutsche
Rechtsgeschichte, 3rd ed.. Berlin. 1895; 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
Review for January, 1896.
l6 LEGISLATIVE METHODS AND FORMS
OH. I. 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 WcixtMmer, 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 Sacksenspiegel, or Mirror of Saxon Law
(1230), attained great popularity in the fourteenth century,
and, under a misconception like that applied to the Etablute*
ments de 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 (ReicJtskammergericht) in 1495. This CH. I.
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 common 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 luru Canoniti •
and
3. The Lombard lilri feudorum.
Charles Y emulated the legislation of his Hohenstauffen
predecessors by promulgating his Cowtitutio Criminalis Caro-
lina (1532), 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 general
Prussian code, which became law in 1794, under the title
of Allgemeine* Landrecht fiir die Preu*si*cJien Staafen, 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 (1814) 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 l. 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 (Wechsel-
ordnung] 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 1862 and
1866. During the same period Saxony codified its own law.
The events of j 866 and of 1 870 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 42! millions,
1 8 millions are governed by the Prussian code, 14 millions by
the German common law, which remains the modernized law
of Justinian, 7! 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
1 See below, p. 123.
COMMON LAW AND STATUTE LAW 19
local laws and customs. . . . The result is that in every case CH-
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 difficulties arising
from this multiplicity and diversity of laws that gave force
to the demand for the general Civil Code, 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
of
'Statute/ equivalent to Act of Parliament, and the English 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 l ' exclude numerous Acts of Parliament as being 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 by 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 1822,
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,
1 This phrase appears to occur first in one of the Elizabethan editions
of the statutes, that by Barker.
22 LEGISLATIVE METHODS AND FORMS
CH. II. are 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
1 735)> '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 doubt1. 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
1 See e.g. the remarks on the so-called Statute 'De Officio Coronatoris,'
4 Edw. I, in Pollock and Maitland, bk. II, chap, ix, par. 4 ; and Gross,
Introduction to Select Coroners' Rolls (Selden Society), p. 25.
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
Statute* of Ike 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 1814 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 Irish
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 1 762, when he was Lord- Lieutenant of Ireland.
For the period since the reign of Queen Anne no collective Editions
• i j ii of Statutes
edition of the English Statutes, containing repealed as well at Large
as unrepealed matter, has been published by authority. Of s
the editions brought out by private enterprise in the
eighteenth century, the most important were those by
LEGISLATIVE METHODS AND FORMS
OH. II.
Chitty's
Statutes of
Practical
Utility.
Statutes
Revised
(first
edition).
Statutes
Revised
(second
edition).
Serjeant Hawkins (1734-5) and by Mr. Ruffhead (1762-4).
These editions were regularly continued by subsequent
volumes, and as they were printed from the King's Printers'
copies of the statutes their contents for the period since 1707
may be relied on as accurate ; but they omit Statutes which
are treated as of minor or transitory importance. King's
Printers' copies of the nineteenth -century statutes have been
published in many forms, and an octavo edition of the Acts
of each session is now published by the Stationery Office
within a reasonable time after the end of the session.
The edition most commonly used by practising lawyers
is Chitty's Statutes of Practical Utility. In this edition all
the statutes which the profession are considered likely to
want are printed with short notes, and are grouped under
subjects which are alphabetically arranged. The latest
edition, by J. M. Lely, is in thirteen octavo volumes, and is
brought down to the end of 1895. A supplemental volume
is published every year.
The object of the Statute Law Revision Acts, which have
been passed from 1861 onwards, has been to purge away dead
matter from the Statute Book, and thus to facilitate the
preparation of an edition of the statutes which should contain
only such Acts as are in force. After three of these Acts had
been passed, Lord Chancellor Cairns, in 1868, took active
steps for the preparation of such an edition by the appoint-
ment of a Statute Law Committee to superintend the
execution of the work. The result was the first revised
edition of the statutes, the first volume of which appeared
in 1870, and which was carried in a series of eighteen quarto
volumes down to the end of 1 878.
A second edition of the Revised Statutes was begun in
1886, and is carried, in sixteen octavo volumes, down to
the end of that year. This edition is handier in form, and
cheaper, than its predecessor1, embodies the effect of later
Revision Acts, and contains in each volume not only a chrono-
1 The price of each volume is ^s. 6d.
THE ENGLISH STATUTE BOOK 25
logical list of the Acts passed in the period covered by the CH. II.
volume, showing how far they have been repealed, but also
a full index to the enactments printed in the volume.
As the utility of these revised editions has been questioned, utility of
it may be worth while to illustrate by a few figures the amount Revised!
of cost and labour which they save. The first edition of the
Revised Statutes substituted eighteen volumes for one hundred
and eighteen l. The new edition contains, in five volumes,
the enactments down to the beginning of the present reign,
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, it may be added, was
not specially designed to meet. The judge who has to 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 nave 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 surely an im-
mense advantage to have an edition of the statutes which
contains only living law, which is comprised within a reason-
able compass, and which maybe purchased for a reasonable price.
A revised edition of the Ante-Union Irish Statutes, from Irish
1710 to 1800, comprised in a single quarto volume, correspond- Revised3
ing in form to the first revised edition of the English Statutes,
1 'After omission of repealed and expired statutes to a vast amount,
the present price of the last edition of the statutes exceeds the average
income of any individual of the labouring classes in England ' (Bentham,
Works, by Bowring, vol. iii. p. 239).
26
LEGISLATIVE METHODS AND FORMS
CH. II.
Projected
edition of
Scottish
Statutes
Revised.
Annual
Volumes
of Public
General
Statutes.
Classifica-
tion of
Statutes.
was brought out under the authority of the Irish Government
in 1888.
A revised edition of the Ante-Union Scottish Statutes is in
course of preparation.
The year 1886 was selected as the termination of the period
for the Revised Statutes, because the existing- edition of the
Annual Statutes begins with the following year. Down to
the year 1887 the Annual Statutes were printed and published
in different forms and at different prices. But, as from the
beginning of 1887, one authoritative edition only of the
statutes is published annually l. in an octavo volume, at a
cheaper price than formerly, and is edited by an officer paid
by the Treasury. Each volume contains an index to the
public general Acts of the session to which it relates, and five
tables, namely :
1. A table of the titles of the public general Acts passed
during the session, arranged in the order in which they were
passed ;
2. A table of the titles of the public Acts of a local
character passed during the session which are placed among
the local Acts ;
3. A table of the titles of the local and private Acts passed
during the session ;
4. A table showing the effect of the year's legislation on
public general Acts ; and
5. A table of the local and private Acts arranged in classes.
The system of classification on which these tables are based
dates from the year i8682. Under this system the Acts of
each session are classified in three groups, each separately
numbered :
1 . Public General Acts.
2. Local Acts.
3. Private Acts.
1 The price of each volume of the Annual Statutes in the edition
published by authority is 3*. The statutes published by the Council of
Law Reporting are also printed in the same form by the Stationery Office.
y 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 (62 & 63 Viet., No. 10) ; Local Acts in
small Roman numerals (62 & 63 Viet., No. x); Private Acts
(if printed) in italicized Arabic figures (62 & 63 Viet., 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-
cluded 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 Distinc-
Act belonging to the third of the groups mentioned above,
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 *. 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
1 See below, p. 48. * 13 & 14 Viet. c. ai.
28
LEGISLATIVE METHODS AND FORMS
Distinc-
tion
between
Public
and
Private
Bills.
CH. II. the Interpretation Act, I8891. Before 1798 the only dis-
tinction 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 Inclosure 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.
The distinction between public and private Bills is, as has
been said, much more important. A private Bill is a measure
for the interest of some person or class of persons, whether an
individual, a corporation, 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
1 52 & 53 Viet. c. 63, s. 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 1832 (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 V 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 Act2.
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, i8943.
The Thames Conservancy was constituted partly by local
Acts, partly by public Acts. In 1894 a Bill repealing all
' May's Parliamentary Practice, roth ed., p. 634.
2 50 Geo. III. c. Ixxv. * 57 & 58 Viet. c. ccxiii.
THE ENGLISH STATUTE BOOK 31
these Acts and reconstituting the Conservancy was passed as CH. II.
a private Bill, and became a local Act l.
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 2 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-
1 57 & 58 Viet. c. clxxxvii. 2 34 & 35 Viet. c. 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 l,
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
1 53 & 54 "Vint. c. 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, 1882 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- y^^"
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 J.
Acts to confirm Provisional Orders, and other Acts which, Public
though introduced as public Bills, are considered to be of a i^al
local character, are, as a rule, included in the group of local character-
Acts, but distinguished by having the letter ' P y 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
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-
1 Standing Orders, House of Commons ; Clifford, vol. i p. 270.
ILBEKT D
34 LEGISLATIVE METHODS AND FORMS
CH. II. forward it follows Ruffhead'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 Viet., 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.
4 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
affecting 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 1810
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 c 3'
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 21, coo
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 2
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 drawn1. In the year I5392
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 VI3, and in 1610* a protest of the
. judges ( established the modern doctrine that royal proclama-
tions have in no sense the force of law ; 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 Parliament5/ 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
1 See Introduction to Statutes of the Realm, pp. xxxi, xxxii ; Stubbs, ii.
615-619.
2 31 Henry VIII. c. 8. See Stubbs, ii. 619 ; Anson, i. a6o.
8 By i Edw. VI. c. 12, s. 4.
* Coke, Reports, xii. 74 ; Gardiner, History of England, ii. 104.
8 Dicey, Law of 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. III.
dealt increased, the legislative sphere of the royal prerogative
was proportionately diminished, and has now been reduced
within very narrow dimensions1.
On the other hand, the increasing complexity of modern
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-
ment* and Parties in Continental Europe2, '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 of 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 V 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 decrees, 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
1 See Lowell, i. 45, and the authorities there quoted.
SUBORDINATE LEGISLATION 39
at all, but, after the subject had been sufficiently debated, the CH. III.
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 1882, of the recent laws on local
government and on the Council of State, and of many
other enactments V 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 2.' 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 V 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
1 Lowell, i. 165. * Lowell, i. 44.
3 Dicey, Law of the Constitution, p. 50.
40
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 limited, 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 Parliament 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 1. 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, i8932,
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.
1 See p. 310. 2 56 & 57 Viet. 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 tinder 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.
CHAPTER IV
STAGES IX 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- object of
spect embodied in the present chapter is to give some account cnaPter-
of the attempts which have been made in the past to improve
the form of the English 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-
the Reformation of Abuses : ' I have showed my opinion w
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 Commonwealth1/ But this, observes Bishop
Burnet 2, 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-
. . ings under
statutes was brought forward from time to time in the reign Queen
ELzabetk.
1 Literary Remains of Edvxird VI, ii. 486. See Burnet, History of Reforma-
tion, ii. 272.
3 History of Reformation, ii. 181.
44 LEGISLATIVE METHODS AND FORMS
CH. IV. of Queen Elizabeth 1. The Statute of Labourers of 1562
(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 stande in force pntly a greate
nornber 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
allouances 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 Acte 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's Journals, pp. 345, 469, 473, 553, 622 ; Introduction to Statutes. of the
Realm, p. xxvi. Sir Francis Bacon took part in some of these discussions.
IMPROVEMENT OF THE STATUTE LAW 45
things maie be committed to the persons hereunder written, if CH. IV.
it shall so please Her Majestic 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 Majestic to appoint V
King James I, in a speech from the throne (i6c>9)2, spoke Proposals
of ' divers cross and cuffing statutes, and some so penned that
they may be taken in divers, yea, contrary senses ' ; adding James L
1 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 labours3.
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 Lord
King James the First, submitted to the king a proposition p^p^is
1 touching the compiling and amendment of the laws of of l6r6-
England V
t 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/
1 MS. Harl. 249 ; Introd. to Statutes of the Realm, p. xxvi.
* Works of James I, London, 1606, p. 534.
3 MS. Harl. 244 ; Introd. to Statutes of the Realm, p. xxvi.
4 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.
( 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 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 Finch, 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
mgsu er manifeste(j ^0 make every practical reform of the law, and
Common- amon£ 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
people1/ But no tangible results appear to have been
achieved.
1 Commons' Journals, vi. 437.
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
the question appears to have slumbered until the end of
Restora-
eighteenth century1. 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 2. 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 cuffing
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 20 Geo. II. c. 42, 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 3.
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
1 Introd. to Statvies of the Realm, p. xxvii.
* .Report* 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.
3 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 private1, were entered on
the Statute Boll 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 copies2. 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 3, that the local Acts respecting
1 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.
2 As to the origin, early history, duties and privileges of the King's
Printer, see Basket v. University of Cambridge (1758), Blackstone, i. 105.
* The following note is appended to the report :—
' PUBLIC AND PRIVATE ACTS :— I. IN LEGAL LAHGUAGE.— (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
drainage, bridges, churches, canals, &c., which by special CH. 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 classifica-
two Houses of Parliament in 1796 l, statutes passed in 1798 "c
and subsequent sessions were divided into three classes : —
(i) Public General Acts; (2) 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. Comyns 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 Dig. 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 afterwards be noticed by the
courts as such. 2 Term. Rep. 569.
'II. IN PARLIAMENTARY LANGUAGE. — (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, &c. To this class might also be added some
Acts which, though Public are merely Personal, viz. Acts of Attainder,
and Patent Acts, &c. ; 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.'
1 Commons' Journals, lii. 45.
IT.RFPT
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 ; (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 1 800 led, as has
been said above 1, to the appointment of the first Commission
on Public Records 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 1816 both Houses of Parliament passed resolutions that
a digest of the statutes should be made, and that an eminent
lawyer wjth 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 customs2, and some criminal enactments,
were consolidated.
1 P. 21.
a In 1825, 452 Acts relating to the customs were repealed and replaced
by 12 Acts (6 Geo. IV. cc. 104-115).
IMPROVEMENT OF THE STATUTE LAW 51
In the year 1826 Sir Robert Peel began a series of Acts CH. IV.
which consolidated and amended portions of the then existing gir Rob€rt
criminal law. The first of these was 7 Geo. IV. c. 64 (1826), Peel's
' Criminal
which related to procedure. In 1827 four other Acts were Law
passed, 7 & 8 Geo. IV. c. 28 (miscellaneous subjects), 7 & 8 ment
Geo. IV. c. 29 (larceny and cognate offences), 7 & 8 Geo. IV. Acts-
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 1832 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-
(1) To digest into one statute all the statutes and S1°n of
x '
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 l.
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. Austin2. They presented a general
1 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 1860.
1 Mr. Austin did not find the work congenial and he resigned. Seep, n
of Mrs. Austin's preface to Austin's Jurisprudence (R. Campbell's edition).
E 2
52 LEGISLATIVE METHODS AND FORMS
OH. IV. report on the statute law in 1 835 l, and seven reports on the
criminal law at intervals down to 1843. According to
Mr. Greaves 2, 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 1836, Sir Henry Seton submitted to a Committee of
Reports the House of Commons some learned and interesting notes
>f 1836. on the 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
Of introduced a Bill embodying the digest prepared by the
mission
18451 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, 1 846, Lord Brougham introduced in the House
of Lords the Bill so prepared, but it was not proceeded with.
1 Parliamentary Papers, 1835, xxxv. 361.
8 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- codinca-
pare Bills for the codification of the criminal law. Their t|?n ?^al
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 office, 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 Bill 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 1 854, and the attempt to codify the criminal law was for
the time abandoned l.
At the beginning of the session of 1853, Lord Cranworth Lord
announced his intention of devoting himself systematically worth's
to the improvement of the statute law, and sketched out an
ambitious programme which he hoped might eventually
result in a ' Code Victoria V
For the purpose of carrying out this work, Lord Cran- statute
worth appointed a Board for the Revision of the Statute Board of
Law, consisting of Mr. Bellenden Ker, as Commissioner, with l8*3-
1 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.
3 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 the first
instance as a temporary and experimental body.
The objects indicated by Lord C ran worth as those at which
the Board should aim appear to have been —
(i) The revision of the Statute Book by the expurgation
of defunct Acts ; and
(3) 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, 1 854, and May, 1 854 l. 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 expired 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-
1 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:—
(1) The gradual consolidation or rewriting of the statute
law;
(2) 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 ;
(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 Bills 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 29, 1854, the temporary Statute Law Board Statute
was superseded by a Statute Law Commission consisting
of Lord Cranworth (Chancellor), Lord Lyndhurst, Lord l854-
Brougham, Lord Wrottesley, Lord Campbell (Lord Chief
56 LEGISLATIVE METHODS AND FORMS
CH. IV. Justice), Sir John Jervis (C. J. of C.P.), Sir F. 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 Fitzroy Kelly1, 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, i8592. 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 officers 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 : —
1 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.
8 See Parliamentary Papers, 1855, xv. 829 ; 1856, xviii. 861 ; 185^, xxi.
203 ; Session 2, xii. an 1859, Session 2, xiii, part i, i.
IMPROVEMENT OF THE STATUTE LAW 57
(1) 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 & 20 Statute
Viet. c. 64), was based on the recommendations of the Com- vision Act
missioners of 1854. This measure, which during its progress of l8s6*
through Parliament was known as the Sleeping Statutes Bill,
LEGISLATIVE METHODS AND FORMS
CH. IV.
Select
Com-
mittee of
1857-
Criticisms
in Parlia-
ment on
proceed-
ings of
Statute
Law
Commis-
sioners.
passed through the House of Commons without comment, and
very little was said about it in the House of Lords 1. The
Act repealed 120 obsolete statutes.
In 1857 a Select Committee was appointed to consider so
much of the second report of the Commissioners of 1854 as
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. Coulson,
Richards, Ker, and Coode, but their proceedings were inter-
rupted by the dissolution of Parliament before they had time
to make a report.
Considerable dissatisfaction was expressed from time to
time in Parliament and elsewhere at the small amount of
work accomplished by the successive Statute Law Com-
missions as compared with the large amount of public money
which they had expended. Mr. Locke King made himself
the principal mouthpiece of this dissatisfaction 2. He was of
opinion that the Committee of 1853 anc^ *^e 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 5^35,000
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 ^ 12,500, making a total
of ^"47,500 expended by the two bodies, besides a further
sum of j£i,68o 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 Russell admitted that Mr. Locke King had very
good grounds for asking what was the use of the Com-
mission.
1 Hans., 142, p. 1895. 3 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
a series of Bills to consolidate the criminal law which had been ings in
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 Commission1.
On July 1 8 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 2.
The Register of Public General Acts, which had been pre- Publica-
pared under the direction of the Commission by Mr. Archer, Ke^sfer
Mr. F. S. Reilly, and Mr. A. J. Wood, was published in of Public
General
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, 1860, Sir Richard Bethell, then Attorney- steps
General, told the House of Commons that he had engaged taken by
1 Hans., 154, p. 483. a Hans., 154, p. 1370.
60
LEGISLATIVE METHODS AND FORMS
Statute
vision Act
ofi86i.
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
Bethelf expressly repealed, were not actually in force; and that he
in 1860. 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.G.) and Mr. A. J. Wood1.
The measure for statute law revision prepared by Messrs.
-^e^7 an^ Wood was introduced in 1861 by Lord Campbell,
as Lord Chancellor, and became law as the Statute Law
Revision Act of that year (24 & 25 Viet. c. 101). 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 2, and in the House
of Commons was made an occasion for proposing the repeal of
the Ecclesiastical Titles Act 3. 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.
In the same year, 1861, were passed the seven Criminal
-^aw Consolidation Acts (24 & 25 Viet. cc. 94-100), which
had been prepared mainly by Mr. Greaves, on the basis of
the reports of the Statute Law Commissioners of 1833 and
1849.
Statute In ^63 Lord Westbury, as Lord Chancellor, introduced
Law Re- tne statute Law Revision Bill of that year (which, like the
vision Act
of 1863. Bill of 1861, 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 1 863 was framed 4. ' What he proposed/
he said, 'was that the Statute Book should be revised and
Criminal
Acts of
i 86 1 •
1 Hans., 156, p. 1238.
3 Hans., 164, p. 1795.
* Hans., 161, p. 1057.
* 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 20 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 Roundell Palmer, then Solicitor- General.
1 With this view a Royal 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 R. 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 otherwise 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 ^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 1863 had been done for ^"3,000 or ^"4,000 x.
The Bill of 1863 became law as the Statute Law Revision
Act of that year (26 & 27 Viet. 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 2.
other ex- In some cases it was found that numerous enactments
Acts? °ry mighfc 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 & 35 Viet.
c. 45), and the Summary Jurisdiction (Repeal) Act of 1884
(47 & 48 Viet. 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 1881 and 1883 (44 & 45 Viet. c. 59 ; 46 & 47 Viet. c. 49).
1 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, preoara.
suggesting: the desirability of an Index to the Statutes, and tion of
Index to
of a Chronological Table of the Statutes, ' with a column and
showing also which had been repealed and by what Acts,
and showing also subsequent Acts containing important
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 l.
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. Reilly2, 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 appreciated 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 possession3.
Lord Chancellor Chelmsford, on May 28, 1867, in intro-
1 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. Reilly, who appears to have assisted Lord Cairns in the preparation
of the memorandum.
* 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.
s 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 Revision 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. Jenkyns1 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 2.
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 adopted3.
In 1868 Sir J. Shaw Lefevre submitted a memorandum to
the Lord Chancellor (Lord Cairns), suggesting that the final
1 Afterwards Sir Henry Jenkyns, K.C.B., Parliamentary Counsel to
the Treasury.
a See Part. Papers, 1870, No. 116. 3 See 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 l. 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 preparation
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 2. 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.
1 Parl. Papers, 1870, No. 116, p. 10.
2 This letter is printed at the beginning of vol. L 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
Revised
Edition.
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 l.
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, t
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 3. 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,
1 Part. Papers, 1870, No. 116.
2 As to its form see Parl. Papers, 1870, No. 116, 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.
3 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. Parl. 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 pariia-
of the office of Parliamentary Counsel to the Treasury l.
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-
appointed to consider whether any and what means could mittee of
be adopted to improve the manner and language of current x 75"
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;
1 See below, p. 84.
p a
68 LEGISLATIVE METHODS AND FORMS
CH. IV. (2) 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. 4
They then referred to the establishment of the Parlia-
mentary Counsel's 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 Act1,
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 Consolidation 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 c the better style
drafting °^ drafting' referred to by the Select Committee of 1875 is
of Bills.
1 13 & 14 Viet. c. 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 J8771, 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 procu
how far previous enactments were superseded by them or and
might be superseded by rules of court made under them.
Accordingly they instructed Mr. Arthur Wilson 2 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 courts3. The work begun by him was afterwards con-
tinued by Mr. Chalmers 4 and the present writer, 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 3Ir.
of a request from the Statute Law Committee, submitted
a valuable report 5 on the statutes relating to criminal law l877» on
criminal
and procedure, and a scheme for their consolidation and sim- law and
plification. But further progress on the lines 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 Crinii
Oodc
a Bill for codifying the criminal law and procedure, which Bills of
1878-83.
1 Under the title Practical Legislation; or, the Composition and Language of
Acts of Parliament. This pamphlet is now out of print.
a Afterwards Judge of the High Court of Calcutta, and now Legal
Adviser to the India Office.
3 Part. Papers, 1878, briii.
4 Now Assistant Parliamentary Counsel to the Treasury.
5 House of Lords, 178, 1878.
70 LEGISLATIVE METHODS AND FORMS
CH. IV. had been prepared by Sir James Stephen l. The Bill was
read a second time 2, 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 secretary3. The Bill as revised by the
commission was reintroduced by Sir John Holker on April 3,
1879 *, but after having- been read a second time, on May 5 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 Committee6. 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 12,
1 883 7, 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 8.
Second In 1 886 the Statute Law Committee took steps for
Revised° bringing out a second and cheaper edition of the Revised
Statutes. Statutes, of which the first volume was published in 1888 9.
Statute The Statute Law Revision Bills introduced and passed
vision*3 in 1887 and 1888 were framed for the purpose of enabling
BR81S °f(i *kis new 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.
1 Hans., 239, p. 1936 (May 14, 1878).
2 Hans., 240, p. 1671 (June 17, 1878).
3 Hans., 241, p. 950. * Hans., 245, p. 310.
5 Hans., 245, p. 1750. • Hans., 250, p. 1236.
7 Hans., 278, p. 90. 8 See 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 Act, 1889 (52 & 53 Viet. c. 63), CH. IV.
generalized several definitions which had been of frequent j ,
occurrence in Acts of Parliament. It also laid down certain tation
Act 1880.
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 Revision
without any opposition. But the Bill introduced in 1889 was B^of
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 mittee of
Committee, who in their report said that 'they desire to l89°-
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
LEGISLATIVE METHODS AND FORMS
CH. IV.
Statute
Law Re-
vision
Acts of
1890.
Statute
Law Re-
vision
Act of
1891.
Establish-
ment of
Joint
Com-
mittee
for con-
sideration
of Statute
Law Re-
vision
Bills.
Recent
Consoli-
dation
Acts.
importance as to make it desirable that they should be
reprinted in future and revised editions of the statutes/
The report of the Select Committee of the House of
Commons was adopted by the House of Lords after careful
consideration of the subject by some of the leading- legal
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.
A further Statute Law Revision Bill, framed on the same
principles as the preceding Acts, was introduced and passed in
1891, 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.
It was, however, thought prudent to strengthen the
guarantees for accuracy in Statute Law Revision Bills by
arranging that every Bill of this kind should be referred to
a special Joint Committee of the two Houses of Parliament.
This procedure was first adopted in the year 1892.
Numerous Consolidation Acts have been passed in recent
years, especially since the establishment of the Statute Law
Committee in 1868, and of the office of the Parliamentary
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 l, and were prepared either in
1 Some of these have been published as Parliamentary papers. See
e.g. Parl. 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 (32 & 33 Viet. c. 102), and a similar course was taken in
the case of the Chancery Funds Act of 1872, the Licensing
Act, 1872, 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 ^ *^
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 case 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-
m 1896. ment. 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 Office 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 Bill 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 of 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 disappeared1.
The fears thus expressed have, up to the present time, Suspen-
been unfortunately realized. The Post Office Consolidation
Bill was again introduced in 1897, was again passed through
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 Office 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
Titles
for facility of citation, a short title in addition to its formal Acts of
long title. When a Bill was introduced to amend existing l^g* and
Acts the opportunity was often taken to give short titles
to the Acts so amended. The Short Titles Act, 1892, 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
1 See Hansard, July 30, 1896.
76 LEGISLATIVE METHODS AND FORMS
CH. IV. reducing the length and cost of legal documents which
involve such reference. It has since been supplemented
and superseded by the Short Titles Act, 1896 (59 & 60
Viet. 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 Westbury, with
the approval and sanction of Lord Cairns and Lord Selborne,
involved a fourfold task — (i) Indexing, (2) Expurgation,
(3) Eepublication, (4) Consolidation. The work of indexing
has been placed on a satisfactory footing1. 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.
1 See above, p. 33.
CHAPTER V
PREPARATION OF 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
p, rt 1*1 V
ances, and their language would often, but not necessarily, Acts,
follow the language of those petitions l. When judicial and
legislative functions became more clearly distinguished, and
when Parliament, by substituting the system of legislation
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 Tudor1 ^
Acts were prepared. Henry VIII was an industrious
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-
1 See Introd. to Stahttes of the Realm, xxxj, xxxii.
78 LEGISLATIVE METHODS AND FORMS
CH. V. wards. And on Wednesday next he will be there agayne to
hear their myndes. . . . This saide burges of the Parlia-
menteV 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. 25), 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 V
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 thereof3.'
Share of In the period after the Restoration, the judges, who at
prepara- that time assisted the House of Lords, not only in their
Bin ft judicial but in their legislative business, and habitually
Restora- 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 4. 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 17565. ( In old times/ he
said, ' almost all the laws which were designed to be public
1 Letter of Thomas Dorset to the Mayor of Plymouth : Suppression of the
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.'
3 Dasent, Acts of the Privy Council, New Series, iv. 398.
4 For illustrations of this practice see i4th Report of the Hist. MSS.
Commission, Appendix, Part vi, Nos. 567, 581, 608, 641, 667, 702 ; MSS.
of the House of Lords, New Series, 1693-1695, No. 930.
* Harris, Life of Lord Hardwicke, iii. 58.
PREPARATION OF ACTS 79
Acts, and to continue as the standing laws of this 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 difficulty in identifying 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 Parliament1.
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 family settlement, is referred to two judges for their
opinion and report 2.
Some Acts dealing with specially legal topics appear, as Lawyers'
might be expected, to have been drawn by eminent lawyers.
1 Harris, Life of Lord Hardwicke, in. 164, 166.
2 See May, Parliamentary Practice, 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 Real
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
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
mentarv nave m^de 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 I8331,
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 France,
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 law2 and tithe were, he says, laid aside in conse-
1 Report (1833) on House of Commons' Officers and Fees, p. 163.
8 Mr. Harrison was of course speaking from memory. The Poor Law
PREPARATION OF ACTS 8l
quence of the commencement 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 Office 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. Peel's 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/ fl 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 I 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.
82 LEGISLATIVE METHODS AND FORMS
CH. V. office would of course take care of such a Bill1/ Mr. Har-
rison received a salary of s£i,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
Parliament2. 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
s "n i™ 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
said3, '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.
1 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), History of Criminal Law, iii. 256. See Leslie
Stephen's Life of 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 is 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 Couc*sei
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^
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 1 860,
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 a
84 LEGISLATIVE METHODS AND FORMS
Cn. V. Minister, or the Cabinet as a whole, could exercise effective
control over measures fathered by individual Ministers. And
lastly, there was no check 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 1869, the acute and frugal mind of Mr. Lowe, then
Portia- Chancellor of the Exchequer, was much impressed with the
mentary defective nature of these arrangements. The remedy which
Counsels
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 First Lord of the Treasury, who was
usually Prime Minister. The Office was constituted by a
Treasury Minute dated February 8, 1 869 *, 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 eng-age 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 required 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
1 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.
be considered responsible. On the requisition of the Treasury
he was to advise on all cases arising on Bills or Acts drawn
by him, 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 1 875 * ' to establish an official i^x"6
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 actxial 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 staff of the Parliamentary Counsel's Office still remains Staff of
Parlia-
practically the same as it was when the Office was first estab- mentarv
lished in 1869. The permanent staff consists of the Parlia-
mentary Counsel and the Assistant Parliamentary Counsel,
with three shorthand writers, an office-keeper, and an office-
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 Office, doing such work as may be required of
them. But their attendance is purely voluntary; they are
1 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 liberty 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.
Gradual When the Office was first established, the Departments
of depart- wnich ^a(i 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 Counsel's Office \
Practice At the beginning of November, there is usually a meeting
structions °^ ^e Cabinet to consider the most important of the legis-
for Gov- lative measures to be brought forward in the coming session.
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 a 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: —
TBEASUKY CHAMBERS.
190 .
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 [Home
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
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
j J/L • mi i i- (• T-«-ii i • draftsman
end at this stage. 1 he publication of a Bill brings sug- after in-
gestions for amendment, which may be forwarded by the 0^B°iflon
Minister or Department for consideration. After the second into Par"
... . liament.
reading, 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 l.
A\ here 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
1 The arrangements of the House of Commons are not conveniently
adapted for this purpose, 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.
QO 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 1869, the several Irish Land Bills, the
Prevention of Crimes Bill, the Government of Ireland Bill
of 1886, and the Local Government (Ireland) Bills of
1892 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
BUlsberS Counsel should report in special cases referred to him by the
Treasury on Bills brought in by private members. But at
PREPARATION OF ACTS QI
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 Government, 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
1 See above, p. 29.
92 LEGISLATIVE METHODS AND FORMS
CH. V. 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.
Private 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.
Pr°- Provisional Order Bills, though introduced by a Minister
visional
Order of the Crown on behalf of his Department, belong essentially
Bills.
93
to the class of private Bills. A Provisional Order Bill is CH. V.
usually of 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 l. 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 2.
The main duties of the Parliamentary Counsel relate to Other
current Parliamentary legislation. There are, however, three parlia-°
other classes of duties with which he is concerned : — mentary
Counsel a
(1) Advising on questions affecting Parliamentary legis- Office.
lation ;
(2) 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
1869 to advise on all cases arising on Bills or Acts drawn by ticns"6*
him. The amount of work falling under this head is indefi- fffe.c*ins
legisla-
nite, and its tendency is to increase. It is difficult to define tion-
or restrict the classes of cases which are, or may be, connected
with legislation, past, pending, or prospective. In such cases
it is sometimes convenient for the Government to take the
1 Instructions for the preparation of Orders authorizing the acquisition
of land under the Military Lands Act, 1893, 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.
3 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 of 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 Council, 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 "
obsolete enactments, and consolidating: scattered enactments. •"*,**?"
sol mat ion.
This work has been mainly done at the instance and on the
responsibility of the Statute Law Committee1. 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 Eesults of
Parliamentary Counsel's office in 1869, appear to have been : — ^e^t of "
(1) Economy: Parlia-
mentary
(2) 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
1 Seep. 65.
96 LEGISLATIVE METHODS AND FORMS
CH. V. amounted to very large sums. Under the new system, the
payment of such fees has practically ceased. The permanent
staff of the Parliamentary Counsel's 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.
Control rpne control exercised by the Treasury and the Prime
over Gov-
ernment Minister has also been made more effectual. As instructions
tion. f°r 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.
Improve- Perhaps the chief advantage which has arisen from the
form of institution of the Parliamentary Counsel's office has been
s atu es. an improvement in the form of statutes. Acts of Parliament
will always form the subject of adverse comments by the
Bench, the 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/
Sugges- Suggestions have been made from time to time for en-
tions or jargmg the duties of the Parliamentary Counsel's office in
PREPARATION OF ACTS 97
the direction of systematizing- the work of consolidation, CH. V.
extending central control over the preparation of Orders in extension
of duties
of Office.
Council and statutory rules, and supplying assistance for, or of dutiea
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 PARLIAMENT1
CH. VL — THE right of initiating legislation belongs to every member
of Parliament 2. Any member of either House can introduce
a Bill, and no distinction is made in this respect between
members of the Executive Government and other members of
the House 3. 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 law4. 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-
1 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.
* As to the right of initiating legislation in France and Germany, see
Note A at the end of this chapter.
* See below, p. 215.
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 l of a public Bill differs in the Mode of
TT f -r t TT « introduc-
House of Lords and the House or 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 2. 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.
1 As to legislative procedure in the American Congress, see Bryce's
American CammantctaUh, Part I, ch. xvi ; as to legislative procedure in
France, see Note B at the end of this chapter.
a See Standing Order, 58.
100 LEGISLATIVE METHODS AND FORMS
C'H. 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 public
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 Bill.
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 IOI
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
House1. "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 f backed.'
In the House of Commons the first stage in the progress Stages in
DrO2Tt?*»S
of a public Bill is motion for leave to introduce. If leave Of 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
1 See A. G. v. G. E. Railway Co. (1879), n Ch. D. 460, and Button v.
Button (,1882), 22 Ch. D. at p. 513.
102 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
rulings 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 Bill, 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 Committee 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 42, 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
104 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 difference. 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.
Reference has been made above to the different classes of
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
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 officers 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,
106 LEGISLATIVE METHODS AND FORMS
CH. VI. 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 l.
NOTE A
INITIATION OF LEGISLATION IN FRANCE AND GERMANY
France.
The right of initiating legislation has varied much under the
successive constitutions with which France has been 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 VIII (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 1814 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.
1 As to the ancient practice of engrossing Bills and Acts, see Clifford,
Private Bitt Legislation, pp. 317-332.
PASSAGE OF BILLS THROUGH PARLIAMENT 107
The Revolution of 1848 invested the National Assembly with CH. VI.
the full power of initiating laws, but 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, TraOe de Droit PoKtique, 59-61, 78-82. Dupriez, Les Mhustres,
&c., ii. 399-4I5-
I08 LEGISLATIVE METHODS AND FORMS
Germany.
CH. 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 approval 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 Government2.
NOTE B
LEGISLATIVE PROCEDURE IN FRANCE
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, (6) 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 been 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,
1 See Lowell, Governments and Parties in Continental Europe, i. 265.
a Ibid. i. 299.
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 memberSj 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
110 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 l.
1 For a description of the French system see Pierre, Traite de Droit
Politique. Dupriez, Les Ministres dans les principaux pays d'Europe et d'Amerique,
ii. 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. 111-117. See also his remarks on the committee system
in Italy (p. 207), the German Empire (p. 255), and Prussia (p. 300).
CHAPTER VH
CONSOLIDATION OF STATUTES
THE term ' consolidation/ as applied to statute law, means CH. VII.
the combination in a single measure of enactments relating Meanino.
to the same subject-matter, but scattered over different Acts. of™n~.
solidation.
It will have been seen from the retrospect embodied in Difficui_
Chapter IV, that, while the process of improving the statute ties of con-
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 in mind that consolidation is a much
more difficult undertaking than expurgation and republica-
tion. There is a common fallacy that the task of consoli-
dating Acts of Parliament is mainly mechanical, and involves
little 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 ansuase-
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. and ill-assorted array, would be produced by a congeries of
extracts from Plantagenet, Tudor, Georgian, and Victorian
statutes.
Changes Then, apart from considerations of language, every statute
of law
and cir- is framed with reference to, and presupposes the existence of,
stances ^ne ^aw> ^ne 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.
Differ- Again, enactments relating to the same subject-matter,
style. 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.
Ambigui- Lastly, the comparison and recasting of different enact-
obscuri- 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.
Conaoli- The upshot is that the work of consolidation requires in-
means re- timate acquaintance with past as well as with existing laws
writing. an(j mstitutions, involves the rewriting and not merely the
CONSOLIDATION OF STATUTES 113
placing together of laws, the substitution of modern for CH. VII.
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 popular'
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 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 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-
Progress a^^e progress has been made since 1869 with the consolida-
made in faon of various branches of the statute law. Among the
consoli-
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 CounseFs 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 CounseFs 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 115
and provisions. The Short Titles Act of 1892 facilitated the CH. VII.
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 Union 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
be done,
consolidation is not despicable, the amount which remains to
be done is great indeed, and would suffice 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 2
Il6 LEGISLATIVE METHODS AND FORMS
CH. 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
support PIT • • i • i
from oi public opinion which will encourage and stimulate the
opinion Government of the day in the introduction of Consolidation
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 ^ involves ? This is a question which ought to be fairly and
*« s(luarebr mek 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
CONSOLIDATION OF STATUTES 117
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 f 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. VII. 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
ments in aside the task of simplifying the contents of its Statute Book,
machinery ft mav ^e wort]1 while to consider whether there is not room
for con- *
soiidation. 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 Parliament cannot by its ordinary
machinery, and through its ordinary committees, test the
accuracy of an elaborate measure of consolidation. Some-
CONSOLIDATION OF STATUTES 119
body must be trusted to do the work. In whom can this CH. VII.
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 officer 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 statutory 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 fully 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 of a Government Department or affected
the rights and interests of the outside 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.VII.
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 of the word
Ben- ' codification/ or at all events for its introduction into the
jhcm-'f- English language x. "We are therefore bound to ask what
definition
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 z.
The object of a code is that every one may consult the law of
which he stands in need, in the least possible time 3. ' 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 V ( 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 V 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 pen6/ ( 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
1 Murray's Dictionary, s.v.
8 Published in French by Dumont, 1802, Bowling's edition, vol. iii.
P- 157.
3 p. 193. 4 p. 205. * p. 207. ' p. 208.
CODIFICATION 123
consult it at his need. It would be distinguished from all CH. VIII.
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 morals1/
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 V ' 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 V
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
siibtilitatem artis mult is part ibns mperat. 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, Tom Beruf imzerer Zeit fur
Gesetzgebung und RechtsioissenscTiaft, ' 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, Uber die Nothwendigkeit eines allgemeinen burgerliclien
1 Gp. cit., p. 209. * p. 210. * Ibid.
124 LEGISLATIVE METHODS AND FORMS
CH. VIII. Rechts fur Deutscklaiid, ' 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 defects1. 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 2.
Results 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
1 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 Encydopddie der Rechtswissen-
schaft.
CODIFICATION 125
formal defects of English law, and it is not an exaggeration CH. VIII.
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 1860, 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 familiar 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 without 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
codes, 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.
Lord Westbury, when Lord Chancellor, meditated a general En§land-
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 FitzJ.ames 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. vill. 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 I8791. 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
open 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 suffice 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 Viet. c. 39), which was drawn by Sir Frederick
1 See above, p. 70. The report, which was substantially Stephen's
work, presents an able statement of the case for codifying criminal law.
CODIFICATION 129
Pollock; the Bills of Exchange Act, 1882 (45 & 46 Viet. CH. vin.
c.6i), and the Sale of Goods Act, 1893 (56 & 57 Viet. c. 71).
both of which were drawn by Mr. Chalmers, afterwards Law
Member of the Council of the Governor-General of India1.
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-
codification, it seems worth while to trace somewhat fully 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 2. It was adopted by Parliament
on the renewal of the Indian Charter in 1833. The Charter
Act of 1833 3 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 Macaulay, 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,
1 Now Assistant Parliamentary Counsel to the Treasury.
2 Whitley Stokes, Anglo-Indian Codes, p. 10.
3 3 & 4 Will. IV. c. 85, s. 53-
1LBERT K
130 LEGISLATIVE METHODS AND FORMS
CH. VIII. Sir Barnes Peacock and others, and did not become law until
1860, 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 effecting, 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 I8531, 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 1853 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
1 16 & 17 Viet. c. 95.
CODIFICATION 131
already been announced to Parliament, and the Commissioners CH. VIII.
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 procedure1.
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 1860. 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* (24 & 25
Viet. c. 104), the old Supreme and S udder 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 Provinces2.
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 2, 1861, a third Indian Law Commission was
1 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 & aa Viet,
c. 1 06), and the Indian Legislative Councils had been remodelled by an
Act of 1861 (24 & 25 Viet 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 Council1, 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 fifth2 report
comprised rules of law on the subject of evidence, and
1 He took his seat towards the end of 1862, and retired at the end
of 1869, being succeeded by Sir James Stephen (then Mr. FitzJames
Stephen).
a 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. vili.
dated May 28, 1870, submitted a body of 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 11,
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 1867 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 overt1. The Select Committee objected to this
1 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 beneficial 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 ruffled 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 saying, —
' "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 1872.
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 1871) was passed in 1871. The Evidence
Bill was introduced and became law as Act I of 1872. 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, 1872, 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-procedure, 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;
(£) 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 ;
(g) 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 of
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 law 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 relief1.
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
1 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
1 '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 such a work will not only CH.
be useful in itself, but will form the best starting-point for
future plans of codification. We are also undertaking to super-
vise 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 of India, as
he had been during part of Sir James Stephen'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
1 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 Acts1, 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 1877).
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 3
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.
1 There are now six volumes of General Acts.
4 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 Burma Code has become the
Burma Code, and a thin volume contains the Code for British Beluchistan.
1 Dispatch of March 4, 1875.
CODIFICATION 141
The reply of the Government of India1 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 whatever 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 20, 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.
1 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 l. 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 law, 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 n, 1879,
Mr. Whitley Stokes, Mr. Justice Turner of Allahabad 2, and
Mr. Justice West 3 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 Office on the subject of
Indian codification, and had submitted memoranda expres-
sing their views.
Sir James Stephen's memorandum was dated July 2, 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 arrauge them scientifically should be laid
aside. He thought that the Indian Code should consist of
the following enactments : —
1 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.
2. 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 of 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 sufficient 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. VIIL
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 ;
(ff) 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 ;
(fi) That the law of wrongs should be codified ;
(/) 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 ;
(k) That preparation be made for a systematic chapter on
interpretation ;
(/) 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.VIIL Instruments Act (XXVI of 1881), the Indian Trusts Act
(II of 1882), the Transfer of Property Act (IV of 1883), and
the Indian Easements Act (Vof 1882).
But the four codifying1 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 annual 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 officials 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 office 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 country
CODIFICATION 147
as well as in India, view projects of codification with dislike CH VIII.
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, Poicfie
abbiamo il Papafo, 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
f assumed office in 1882 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 2
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 1872, 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 wrongs. Was such a law
really required? Would its passing confer any practical
benefits on the people of India? Both Sir James Stephen
CODIFICATION I-J9
and Sir Henry Maine had answered these questions in the C'H. VIII.
affirmative. 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
Keports, 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 Late
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. cases, 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 1882
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 l.
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 2.
1 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.
z 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 his 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 Numbers1,
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
1 Num. xxvii. i-n. 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 1 865 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 1872, and his Code in its turn has been superseded,
first by an Act of 1882 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 codifiers 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 codified1. Whether
the time has yet come for making a new departure by
attempting to codify native law is a question which most
1 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 British
respects in advance of the motherrcountry1. 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-
which was originally passed in 1808, five years after the ^J1 '
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 1824 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 1821 to draw a Code of Criminal
1 See below, p. 200.
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 J 833, about the time when Macaulay and his
brother Commissioners were setting about their task of framing
Codes for British India. Livingston's 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 157
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, Khode 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 l, France still retains the five Codifica-
Napoleonic Codes of 1803 to 1810, the Code Civil, Code t^e Con-
de Procedure Civile, Code de Commerce, Code d'Instruction tment
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 2.
The unificatioH of Germany gave a great impulse to the
codification of German law3. 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
1 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
Sfaaten, which was published in 1899. For Commercial Codes, see Bor-
chardt, Die geltenden Handelsgesetze des Erdballs, 5 vols., Berlin, 1884-1887,
with supplements going down to 1896. As to the law of Bills of Exchange,
see Borchardt, Vottstandige Sammlung der Wechselgesetee alter Lander, Berlin,
1871 ; Borchardt, Sammlung der seit dem Jahre 1871 piMizirten Wechsel-
gesetee, Berlin, 1883. Many of the more important Codes are to be found
in the useful Collection de Codes Strangers, published by the French Society
of Comparative Legislation.
1 See above, p. n. 3 See above, p. 18.
158 LEGISLATIVE METHODS AND FORMS
CH. VHI. which had previously been passed as State laws. Codes of
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 1. It has
a Criminal Code of 1852. 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 1872, 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.
1 See above, p. 17.
CODIFICATION 159
In Italy the political unification of the country led, as CH. Yin.
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, which was
passed in 1865, and came into force in 1866, a Commercial
Code, 1882, 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
argument against codification, namely, that it checks the tion-
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
160 LEGISLATIVE METHODS AND FORMS
CH. VIII. 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.
Difficul- On the other hand, we have learned to form a more modest
way of conception of what codification can effect, and to realize more
cpdifica- clearly the difficulties 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 Fame 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
1 Vol. xii. pp. 17-34 ; and see above, p. 18.
CODIFICATION l6l
motive does not exist in England. Our Norman, Angevin, CH. VIII.
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
162 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
W6ithing 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 Court 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
law1.
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
1 See chapter vii of the official Manual of Military Law.
CODIFICATION 163
Criminal Procedure (Scotland) Act, 1887 1} and schedule a few CH. vill.
simple forms of charges which might be substituted for the
cumbrous and prolix 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 2. A similar
process could be applied to the law of forgery. The Larceny
Act, 1 86 1, has been described by high authority3 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 our law. In the year 1891
occurred an extradition case, in which it was clear that a man
who was ' wanted' in France had criminally misappropriated
money, but there was great difiiculty in bringing him within
any of the specific provisions of the Larceny Aet. In the
course of his judgement, Wills J.4 remarked : —
' I cannot help saying that I share a certain feeling of humilia-
tion, which my learned brother has expressed, *rhen 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.
1 50 & 51 Viet. c. 35.
1 See the Perjury Bills of 1894 and 1895.
3 Cave J., In re Bellencontre (1891), a Q. B. 122. at p. 137.
4 See In re Bellencontre (supra), p. 141.
M 2
CHAPTER IX
INDIAN AND COLONIAL LEGISLATION
'CH. IX. THE contents of this chapter are based largely on the
replies l to a series of questions which, in the year 1 895, were,
at the instance of the Society of Comparative Legislation,
sent by the Colonial Office to the various Colonial Govern-
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 ;
(b) 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 ?
1 For the replies to these questions see the Journal of Vie Society of 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, 284-288. 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 have
been summarized in an article on ' The Sources of the Law in the Colonies,'
b/ 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 Viet. c. 21), or to
the Interpretation Act, 1889 (52 & 53 Viet. c. 63), or by official
instructions or otherwise ?
7. Is there an annual session of the legislature? Are there
any fixed 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 ?
1 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 rolumes of statutes accompanied by (a)
an index and table of contentSj (b) a table showing the effect on
previous legislation ?
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 of 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, PrinclPle9
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 l>
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 V
The result is that both the local and the personal law of
1 See Lord Mansfield's judgement in Campbell \. Hatt (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 Y
of the present writer's book 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 Nairs of Malabar1. 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 Paris as formulated and modified by the Ordon-
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 Journal of the Society of Comparative Legislation, ii. 146.
INDIAN AND COLONIAL LEGISLATION 169
therefore the latter code is not, though the former codes to CH. IX.
some extent are, in force in those islands.
St. Vincent, in the West Indies, was formerly governed by
the Coutume de Paris, and though most traces of French law
have disappeared from the island, it is said that some old
French arretg are still in force.
In Trinidad and Tobago, though the common law is Spanish
lil\V
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 Roman-
a fragmentary condition. t The continued existence/ says i^.
Mr. L. B. Clarence l, ' 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
1 See Journal of the Society of Comparative 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 l.
In British Guiana, an Ordinance of 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 law, 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 I7842.
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 3.
Laws ap- When we come to consider laws applicable exclusively to
particular particular races or creeds, we find that British India supplies
the most conspicuous illustration of the regime of personal
India. 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
1 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 case of Oara v. Ciantar (1887),
L. R. 12 A. C. 557.
3 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 l. ( 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 2. 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 °ng'
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.
1 i. 227.
3 By Sir P. B. Maxwell, C. J., in Choa Choon Neo v. Spottiswoode, approved
by the Judicial Committee of the Privy Council in Ong Chang Neo v. leap
•Cheah 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.
Materials
of which
statute
law of
British
posses-
sions is
composed.
II. STATUTE LAW.
The statutory or enacted law of a British possession, be
it colony or dependency, consists of the enactments of the
local legislature, supplemented by certain Imperial enactments,
and, in some cases, of enacted law in force at the time of
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 173
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-
tivs
legislate for all parts of the King's dominions, but, in powers of
accordance with constitutional principles and practice, does
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 statute1, 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 is established 2. 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
may remain in force in the detached portion. Thus certain possession
J from
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 Survivals
in Mauritius and the Seychelles, and the Maltese codes in
Malta, portions of the enacted law are of foreign origin. law-
1 50 & 51 Viet. c. 54.
* Campbell v. Hall, so State Trials, 304 ; and 50 & 51 Viet. c. 54, s. 6.
T74
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 nature1. 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.
III. The old Bengal, Madras, and Bombay
regulations.
IV. Acts of the Govern or- General in
Council.
V. Regulations made by the Governor-
General in Council under the
Government of India Act, 1870.
VI. Ordinances made by the Governor-
General in Council.
VII. Acts of Local Legislative Councils.
/VIII. Statutory rules, &c., made in India
under the authority of English
legislation.
IX. Statutory rules, orders, regulations,
by-laws, and notifications made
under the authority of Indian legis-
lation.
X. Rules, laws, and regulations made
by the Governor- General or Go-
vernor-General in Council for 'non-
regulation provinces' before 1861,
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,
1 See the article by Mr. M. D. Chalmers in the Journal of the Society of
Comparative Legislation, ii. 299, and the present writer's Government of India,
p. 124.
Derivative legisla-
tion in India.
INDIAN AND COLONIAL LEGISLATION 175
(1) 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 Calcutta, 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, 1861 (24 & 25 Viet. c. 67). These Acts have in some
cases extra-territorial operation. Thus under an Act of
1869 (32 & 33 Viet. 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 Viet. 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 l, 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
law. 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 —
(1) Imperial Statutes extending to Canada ;
(2) Imperial Orders in Council made under such statutes
and extending to Canada ;
(3) Statutes of the Parliament 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 1 5,
1 See above, Ch. III.
INDIAN AND COLONIAL LEGISLATION 177
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. 25) 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 Viet. 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-
governing unfederated colony. Its statutory law is described law-
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; (2) 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 ;
178 LEGISLATIVE METHODS AND FORMS
CH. 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.
Jamaica. The constitution of Jamaica has undergone many vicissitudes,
and is now mainly regulated by an Order in Council of
May 19, 1884 l made in pursuance of a Jamaica Act of 1866
and the 'Jamaica Act' passed by the Imperial Parliament
in the same year (29 & 30 Viet. 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
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
1 Statutory Pules and Orders, Revised, iv. 290. See also the Orders in
Council of June ir, 1866, and October 3, 1895.
INDIAN AND COLONIAL LEGISLATION 179
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. 2, 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.
I. 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-General's 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 1.
1 See the present writer's Government of India, p. 181.
K 2
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
cokmiesT8 c°l°nies w^l 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
Law 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 practice bills are frequently drafted by
private members themselves.
New In New South Wales drafts of legislative measures are
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.
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 case 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 measure 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,
182 LEGISLATIVE METHODS AND FORMS
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.
Western 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.
Crown For the Crown colonies, the following illustrations may
colonies. „,
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 lie 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 Grown, 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-General 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-official members
of the Legislative Council.
In the Leeward Islands the Attorney-General and two assistants
are the official draftsmen of the Government Bills.
In St. Lucia the Attorney-General 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
2. Publication of Bills.
In British India, a Bill when introduced into the Legislative CH. IX.
Council is published in the Official Gazette, in English and India
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- felonies"
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 a, 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 : —
(1) 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.
1 See Government of India, pp. 330, 331.
l86 LEGISLATIVE METHODS AND FORMS
CH. IX. In most of the colonies a Bill passes through the same
Colonies s^ages 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. References 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 Viet. c. 21), commonly known as Brougham's
Act, now repealed and superseded by the Interpretation Act,
1889 (52 & 53 Viet. 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'18 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. Numbering and Short Title* of Law*.
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 (63 & 64 Viet. 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 1892, the practice has been to cite
an Act by the calendar year, ' c. 20 of the Statutes of 1894.'
In New South Wales, Queensland, and Western Australia,
Acts are distinguished by the regnal year and numbered (60
Viet. No. 24) *. In South Australia, from 1837 to 1844 the
1 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
^° em^ody 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 Parliament, a private Bill 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 sufficient 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 : —
(1) 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 affecting, by individual persons or cor-
porations, 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 (2 & 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
official 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 affected, 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'
190 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 CH. IX.
officials.
The system which prevails in the self-governing colonies Self-
may be illustrated by the returns which have been received C0i0nies.
from Canada 1, 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 (2) 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 each 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 i89O2. 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.
1 The replies from Canada relate only to Dominion Acts.
2 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
indez. 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 the voiumes of
statutes are, or were recently, printed in folio form, in South *y l01^
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 : —
1. An edition, in two volumes, of the Imperial statutes
applying to India.
2. 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 2, and containing (a) the
old Regulations so far as they are in force in that
province, (b) Acts passed for the province by the
1 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.
1 Bengal, Madras, Bombay, North Western Provinces and Oudh,
Punjab, Burma, Assam, Central Provinces, Ajmere, Coorg, and Baluchi-
stan.
ILBERT f)
194 LEGISLATIVE METHODS AND FORMS
CH. IX. Governor- General in Council, (c] Regulations made
under the Government of India Act, 1870 (33 Viet,
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.
Canada. 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 1898 (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 1 898.
In Newfoundland the whole statute law of the colony has
been twice consolidated, first in 1872, 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.
1890, 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 1 890 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 2
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.
>'ew New Zealand, by the Reprint of Statutes Act, 1895, pro-
vided for the appointment of Commissioners with directions
(1) To prepare and arrange for publication an edition
of the Public General Acts of the colony ;
(2) 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,
INDIAN AND COLONIAL LEGISLATION 197
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 ;
(b) 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 c<
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
LEGISLATIVE METHODS AND FORMS
OH. IX.
Sugges-
tions for
uniform-
ity of in-
dexing.
Existing
indexes in
India and
elsewhere.
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. Indexing.
The compilation of a general index to all the enactments
in force in the different 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. Eao-h 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
(2) 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.
The latest edition of the Index to the enactments relating
to India was published in 1897 under the direction of the
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 to 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 Governor- General's 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 l. 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
1882, 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. Four 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 1866,
and a Civil Procedure Code which came into force in 1867.
The Civil Code embodies the laws of Lower Canada (now
1 See Ch. VIII.
INDIAN AND COLONIAL LEGISLATION 2OI
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 E vidence 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. Hearn, 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 OF COLONIAL AcTS1.
The Laws of Antigua . . . from 20 Car. II, 1668 to 28 Viet., 1864.
... By Authority. London, 1865.
The Statute Law of the Bahamas ... in force to 38 Viet. c. 36
inclusive. . . . 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.
1 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 Viet. c. 4, A.D. 1886.
2 vols. Ottawa, 1887.
Acts of the Legislature of the Provinces now 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, 1652-1895. 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. From 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 Ffrench, 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. Compiled by Sir
W. Brandford Griffith, Chief Justice of the Gold Coast, late
Resident Magistrate for the Parish of St. Elizabeth. Jamaica,
second edition, 1900.
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 1681 to 1861 inclusive; with Appen-
dices and Index. By Authority. London, 1862.
The Consolidated Statutes of New Brunswick. By Authority.
Fredericton, 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. F., 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 effect 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.
206 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, 1811 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 F. F. Pinkett. . . . Enlarged and revised up to
April, 1893, ... by 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 Viet., 1882.
Alphabetically arranged, with Notes, by Frederick Stops.
Published by Authority. 4 vols., and Supplementary volume
to 52 Viet., 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),
1849-85. Bijeengebragt met breedvoerigen Bladiwijzer door
Fred Jeppe, en naauwkeurig herzien door J. G. Kotze,
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.
Buncombe, 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
OH. X.
Napoleon
on Legis-
latures.
Napo-
leonic
theory
and Eng-
lish
practice.
PARLIAMENT AS A LEGISLATIVE MACHINE
' No one/ Napoleon is reported to have said, ' can have
greater respect for the independence of the legislative power
than I : but 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 V
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
1 Quoted by Sir J. Seeley, Introduction to Political Science, p. 216, from
a letter addressed by Napoleon to Sieyes. 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 : — istics of
(1) The kind of laws with the making of which Parlia-
ment is mainly concerned are not the kind of tion-
laws about which jurists are in the habit of
speaking and writing.
(2) The Executive Government 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 ^{^ad**1
to be found in Justinian's Institutes, or in the Napoleonic ministra-
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/ Xow, 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
210 LEGISLATIVE METHODS AND FORMS
CH. X. Parliament. It lias 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 1832, 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 1832 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
Allworthy'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
P2
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 1832, 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 different degrees of intensity1,
the period since 1832, has been the building up piecemeal
1 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. Govem-
Legislation through a popular assembly has always been
a formidable problem. Mr. Bryce : has indicated the three tion-
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,
1 American CommanicealOi. part i, ch. XT.
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'Etat 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 any 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- CH. X.
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 ordinary1
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 small2,
1 A limited class of Government measures, mainly financial, are
exempted from the twelve o'clock rule.
2 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.
Royal Assent.
Session.
Total Bills
introduced.
Government.
Pnrate
Members'.
Govern-
ment.
Private
Members'.
1895, 1
first & second >
263
66
197
38
12
sessions J
1896
=56
65
191
44
16
1897
263
67
196
54
16
1898
259
65
194
49
i?
1899
224
53
171
37
16
1900
238*
66
172
49*
15
* Including the Post Office Sites Bill, which was introduced as a public
Bill, but is classed and numbered among the local Acts.
2l6 LEGISLATIVE METHODS AND FORMS
Ch. X. and of that proportion most, if not all, are materially
recast1.
The change which gave the Executive Government increased
control over, and increased responsibility for, Parliamentary
legislation, dates approximately from the Reform Act of 1832.
In the interesting remarks quoted on a previous page2, Sir
Charles Wood (the late Lord Halifax) contrasts the Parliament
of 1828 with the Parliament of 1855. In 1828, 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 1 855 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 1832.
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
consulted and conciliated ? What vested interests will be
affected ? What provisions of the numerous Acts of Parliament
bearing on the subject are to be applied, superseded, or borne
in mind? These, and numerous other questions of a like
1 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.
3 See p. 8a.
PARLIAMENT AS A LEGISLATIVE MACHINE 217
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 newspapers,
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 has
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 2 19
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 assume 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 l.
It will have been seen that two of the leading characteristics Distrust of
of English legislation are, first, that the legislature is con- discretion
cerned 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 Continental
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 CH. 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 case 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
authority1. 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.
Com-
parison
with
other
legisla-
tures.
United
States
legisla-
tion.
Conti-
nental
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.
In any comparison of the English Parliament with other
legislatures, the leading characteristics of English Parlia-
mentary legislation, to which reference has been made above,
must be carefully kept in view. Unless this is done, the
resemblances will be deceptive and the differences unintel-
ligible.
Of all such comparisons, the most instructive is perhaps
that with the legislature of the United States, because it
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.
For 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 iegisia-
Mr. Bryce, but many useful and suggestive remarks may be tlon>
found in Mr. Lowell's book on Government* and Parties in
Continental Europe 1. 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 laws2. 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 3, 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 4.
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
1 See the passages quoted in Ch. Ill above.
2 See Ch. Ill 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 francaises 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 generalenient 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 exeniple, dans les multiples
exemples d'applications. Mais il semble que les Assemblies
montrent aujourd'hui une tendance facheuse a s'imrniscer dans
une foule de details qu'il vaudrait mieux laisser a la prevoyance
du pouvoir executif V
Colonial The legislative methods of the English self-governing
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 circumstances. But they have
shown much more enterprise and courage 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 2. And some of their constructive legislation shows great
1 L. Dupriez, Les ministres dans les principaux pays d'Europe et d'Amerique,
«• 377-
2 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 iegisia-
legislatures. These legislatures are not popular but bureau- tlon-
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 Council 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
226 LEGISLATIVE METHODS AND FORMS
CH. 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
Governor-General's 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-officio 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 uncontroversial. 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 1872 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 discussed1.'
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. For instance, the
archives of the Parliamentary Counsel's 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
1 History of the Criminal Law of England, 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
228 LEGISLATIVE METHODS AND FORMS
CH. X. determined to give a measure a leading place in the Govern-
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 usually
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.
Commons1. 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
great measure directly due to the principles of the constitution Acts of
Parlia-
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 f 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
1 Memoirs of an Ex-Minister.
230 LEGISLATIVE METHODS AND FORMS
CH. X. product of 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
sTl^ii0 we^ 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 staff
and of the draftsman, to formulate reasons for their acceptance
or rejection, and to prepare replies to, or amendments for
meeting, the numerous points raised since the introduction of
the Bill. Letters and articles appear in the newspapers.
Questions are asked in the House. Correspondence pours in
from all parts of the country. The peculiar circumstances of
the parish of Ockley-cum-Withypool must surely have been
overlooked by the framers of the Bill. There is a local Act
which will require consideration. Above all there are the
vested interests. Journalists may write eloquent leaders,
members of Parliament may make sonorous speeches, about
the effect which the measure will have in promoting the
welfare or undermining the institutions of the country. But
to the parish beadle of Little Peddlington the question of
supreme importance is how it will affect his emoluments,
existing and prospective. It is with reference to them that
he studies the Parliamentary Debates, indites missives to his
representative, and organizes deputations to departments.
Every member of Parliament knows this beadle, under various
PARLIAMENT AS A LEGISLATIVE MACHINE 231
names. Questions of this kind occupy all the working time dr. x.
during- the interval between the second reading and Committee,
and during the progress of the Committee stage. Inside the
House the minister 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 ttf^lbe
measures through Parliament. And if so, the marvel perhaps delesated
. to ex-
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 Government fit for a high state of civilization 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 V
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 Roman 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
1 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, CH. 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-
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, perspicuous, consistent,
orderly, and luminous, and that their perspicuity is often
marred, the principle of their arrangement upset, their
consistency disturbed, 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 Parliamentary 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 ' wobbling/ 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 difficult 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 l.
1 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 difficulties 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 Bill is too technical Syste-
. • , ft' "i i T-I <• TI- -i ••!• .1 matic con-
to be intelligible. ± or one cause of unmtelligibility, the solidatiou
complexity of modern administration is to a great extent ^move
responsible. It is easier to understand or mend a spindle many
defects.
than the machinery 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 with 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 FORMS
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
MUCH legal literature has been devoted to the interpretation CH. XI.
of statute law l. The object of the writers of books on this Qenerai
subiect has been to collect such judicial decisions and other princiPle
of statu-
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 2.
It may be said that the rules of good drafting are simply
1 See e. g. Dwarris on Statutes. Sedgwick, Statutory and Constitutional
Law. Maxwell, Interpretation of Statutes. Hardcastle on the Construction of
Statute Laic (second edition by Craies, 1892). Wilberforce on Statute Law.
Stroud, Judicial Dictionary.
3 Bentham's Noinography (Works, by Bowring, vol. iiL 231) is fall 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 very 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 parliamentary 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. XL But the 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 insufficient, and considers how
the law should be changed in order to meet the requirements
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 drawn 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 Parliamentary Practice, and to the
Standing Orders of the two Houses of Parliament.
pre. Before beginning to prepare a Bill it is essential to
workEry master 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 1.
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
1 The Standing Orders were held to apply to the Bill which became
law as the Metropolis Water Act, 1899 (62 & 63 Viet. 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.
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
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
headings1. But excessive subdivision should be avoided.
J As to the effect of thus grouping clauses, see Hammersmith, &c., Railway
Co. v. Brand (1869), L. R 4 H. L. at pp. 216, 217 ; R. v. Local Government
Board (1882), L. R 10 Q. B. D. at p. 321 ; Union Steamship Company of Neio
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 the
subjects of the parts are so different that they might appro-
priately be embodied in separate Acts. The division of an
Act into parts may affect its construction by indicating the
scheme of arrangement1.
In the case of a long and complicated Act it is useful to
repeat the headings of parts and of groups of clauses at the
head of each page. See the Municipal Corporations Act, 1882
(45 & 46 Viet. c. 50), and the Local Government Act, 1888
(51 & 52 Viet. 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 be 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 A.ct, 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
1 See Inglis v. Robertson (1898), A. C. 616.
FORM AND ARRANGEMENT OF STATUTES 247
often no time to make the consequential alterations of refer- CH. XI.
ences.
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 expressio unius est exclu&io 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 difficulty, 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 sections1.
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 2.
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 purpose, as
a rule, 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
1 See re Cambrian Railway Company's Scheme, 3 Ch. 278, 293.
3 Exparte Pratt (1884), 12 C^. B. D. 340.
8 Printed below, p. 337.
FORM AND ARRANGEMENT OF STATUTES 249
we also declare " This shall be the consequence of your non- CH. XI.
compliance l." ' 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 2.
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
1 Black stone, Commentaries, i. 57.
3 See, e. g., s. 229 of the Public Health Act, 1875, 38 & 39 Viet. c. 55,
and consider the remarks in Pasmore v. OsicaldtwisHe Urban Council, A. C.
[1898] 387.
250 LEGISLATIVE METHODS AND FORMS
CH. XL knowledge, the ' scienter] ought to be an essential element of
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 Regard 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 251
8. The presumption that an Act of Parliament will not CH. XL
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 l.
12. The rule that a power conferred on a public authority
may be construed as a duty imposed on that authority
(f may ' = < shall').
It should be considered whether the regulations laid down impera-
in an Act will be construed as imperative or as merely directory. a^
Care must be taken not to frame the language in such a way directory
. J regula-
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, ments-
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 2.
Special considerations apply to Consolidation Bills 3. The Consoli-
object of a Consolidation Bill is to combine in a single measure
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.
1 See Young v. Adams, A. C. [1898] 469.
2 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.
3 See above, Ch. VII.
252 LEGISLATIVE METHODS AND FORMS
CH. XI. Literal reproduction often means substantial alteration. An
Act of 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 l.
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, 1 890, 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 difficulty in determining the boundary
lines of a Consolidation Bill, in saying what enactments it
1 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 kind
ought to be regarded as a chapter in an ideal code, and
considered in its relations to kindred branches of the law. It
should be considered, before a provision is inserted, whether it
might not find a more appropriate place in another chapter ;
and before a provision is omitted, where else it could be better
placed if kindred branches of the law were consolidated. But
theoretical considerations of this kind must often give way to
considerations of policy. It is frequently better to have
incomplete consolidation than no consolidation at all, and to
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.
Refer- Referential legislation, or legislation by reference, is a
legisla- favourite subject of invective with critics of parliamentary
(iiTthe procedure. But the phrase has more than one meaning, and
wider it 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 l.
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
1 As, e. g., where the 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 concise, 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 l. Until the new system has acquired
a comparatively final 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
1 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 (61 & 62 Viet. c. 36).
256 LEGISLATIVE METHODS AND FORMS
CH. XI. circumstances, coupled with an indifference to style and
finish, characteristic also of English art and English litera-
ture, are sufficient to explain the disorderly condition of the
Statute Book, which is so often made a subject of reproach by
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
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 dates1.
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
1 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 Viet,
c. 113% saved all rights existing before 1855. The second, passed in 1867
(30 & 31 Viet. c. 69), amended the first, but applied only in the case of
persons dying after 1867. The third, passed in 1877 (40 & 41 Viet. c. 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. XT. 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 l, 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 2. For these reasons the technical method of
amendment is hardly ever adopted in England except in the
case of non-contentious measures 3.
Under these circumstances, the ordinary mode of amending
1 In India a Bill is always accompanied by a printed ' Statement of
Objects and Reasons.'
1 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. *
3 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. XJ.
amendment proposed to be made. This is the commonest
mode, and for parliamentary purposes is the most convenient,
because tinder 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 l.
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 amended2.
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 3. 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 Referen-
referential in the sense that it is unintelligible without iationg'
reference to other enactments. But bv referential legislation (m the
• narrower
1 For instance, the amendments made by ss. 16-19 °f *ne Weights and ^
Measures Act, 1889 (52 4; 53 Viet. 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 k 48 Viet. c. 39, s. a),
the Friendly Societies Act, 1887 (50 4 51 Viet c. 56, a, 7), and the
Finance Act, 1897 (60 & 61 Viet. c. 24, B. 3).
* See 47 & 48 Viet. c. 39, ^8 Viet. c. 8, and below, p, 375.
S 2
260 LEGISLATIVE METHODS AND FORMS
CH. 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 l.
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 will often be
required for places under an exceptional form of government,
such as London. From 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
1 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 Viet.
c. 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 Viet. c. 32). The result is a singularly difficult complex of
enactments.
FORM AND ARRANGEMENT OF STATUTES 261
most conspicuous case of such Acts is supplied by the Clauses CH. XI.
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
Acts, 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 construction of
railways l. 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 (n & 12 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-
1 The Companies Clauses Consolidation Act, 1845 (8 & 9 Viet. c. i6>,
the Companies Clauses Consolidation (Scotland) Act, 1845 (Q & 9 Viet,
c. 17), the Lands Clauses Consolidation Act, 1845 V8 & 9 Viet. c. 18), the
Lands Clauses Consolidation (Scotland) Act. 1845 (8 & 9 Viet. c. ig\
the Railways Clauses Consolidation Act, 1845 (8 & 9 Viet. c. 20), the
Railways Clauses Consolidation (Scotland) Act, 1845 (8 & g Viet. 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 (62 and 63 Viet. c. 19 .
262 LEGISLATIVE METHODS AND FORMS
CH. XI. siderable length, provisions as to the procedure to be observed.
The Act of 1848 generalized 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 1 848 as subsequently amended.
The Summary Jurisdiction Act, 1879 (42 & 43 Viet. 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 (53 & 53 Viet. 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. But 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 Viet. c. 55, s. 176), and by other Acts1.
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
1 See below, p. 317.
FORM AND ARRANGEMENT OF STATUTES 263
other hand it must be remembered that the officers of the CH. XI.
local authorities who have 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 difficulty.
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 difficulty. 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, 1872 l, 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.
1 The Ballot Act, 1872, is still, after the lapse of more than a quarter
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 misleading2. 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 case 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 £he
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 adaptations3.
1 For examples, see the Housing of the Working Classes Act, 1890
53 & 54 Viet. c. 70) ; the Public Health (London) Act, 1891 ,54 & 55
Viet. c. 76 1 ; the Seal Fishery Acts, 1891, 1893, and 1894 (54 & 55 Viet,
c. 19 ; 56 & 57 Viet. c. 23 ; 57 & 58 Viet. c. 2).
* Thus the sections of the Public Health Acts relating to London
which were scheduled to the Housing of the Working Classes Act. 1890.
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.
3 See the Elementary Education Act, 1870 (33 & 34 Viet. c. 75, s. 37),
the Local Government Act, 1894 (56 & 57 Viet. c. 70, s. 48), the Regis-
tration (Ireland^ Act, 1898 (61 & 62 Viet. c. 2), the Local Government
^Ireland) Act. 1898 (61 & 62 Viet. 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 1. 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.
1 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
roles, 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 J, 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 Parliament 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 in 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 will 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 III. 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 officers of the House are responsible for seeing that
1 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. XI.
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 l.
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 preamble2.
1 See Poicett v. Kempton Park Racecourse Co. [1897], a Q. B. 289 ; Fielding
v. Morley Corporation [1899], i Ch. i.
3 See, e. g., the London Coal Duties Abolition Act, 1889 (52 & 53 Viet.
c. 17) and the Canada (Ontario Boundary) Act, 1889 (53 & 53 Viet. c. 28).
270 LEGISLATIVE METHODS AND FORMS
CH. XI. A formal preamble is sometimes convenient for the purpose
of introducing and explaining a phrase which is to be used in
the course of the Bill, 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.1 '
Formal The formal and saving clauses of a Bill are, according to
saving recent practice, usually placed at the end of a Bill. There
clauses. afe severa]^ 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.
1 See, e. g., 53 & 54 Viet. c. 8.
CHAPTER XII
STATUTORY FORMS
DRAFTSMEN 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 he 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 lines 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.
Forms.
[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. e. 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 (n Hen. VI), and became general at the
beginning of the reign of Henry VII. [See Stubbs, Const. Hist.
ii. 591, Anson, Law and Custom of the Constitution, i. 214-217.]
FOKMAL 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 1 8 and 19 ] \or and may be cited with
the Acts].
According to modern practice the House of Lords requires every 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 Viet. c. 14), which super-
sedes and supplements the previous Act of 1892 (55 & 56 Viet,
c. 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 CH. XII.
some earlier Acts), which had not been previously given 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 be convenient to add to the short title the words
' and may be cited •with 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
Viet. 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 Viet. 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 margin. 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 —
1. To secure that expressions having a particular meaning in
the amended Act shall have the same meaning in the amend-
ing Act :
2. 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,
18 , 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. a (i) of the Short Titles Act,
1896.
Provision . — (A.) (i) Every enactment and word of this Act which
bodying *s expressed to be substituted for or added to any portion of
Amtennimg the 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 f 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
1 See Hardcastle on Statutory Law, second edition, pp. 147 sqq.
STATUTORY FORMS 275
this Act, take effect subject to the additions, omissions, and CH. xn.
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
Viet. c. 39), and Form B. by s. 18 of the Friendly Societies Act, 1887
(50 & 51 Viet. c. 56), and s. 27 of the Patents, Designs, and Trade Marks
Act, 1888 (51 & 52 Viet. c. 50). These forms should not be 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 Viet,
c. 116); s. i of the Pensions Commutation Act, 1870 (33 & 34 Viet. c.
101) ; s. 14 of the Customs and Inland Revenue Act, 1879 (42 k 43 Viet.
c. ai) ; and s. 8 of the Army (Annual) Act, 1885 (48 Viet. 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 R. 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, 1890, included in the expression
'British Islands' (Interpretation Act, 1889, s. r8 (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.
Registration in the Royal Courts is the proper mode of promulgatins
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.
Applica-
tion of
Act by
Order in
Council
(Colo-
nies').
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 Viet. c. ii. s. 4), now superseded by the Merchant Shipping
Act, 1894, the Colonial Prisoners' Removal Act, 1869 (32 & 33 Viet,
c. 10), the Extradition Act, 1870 (33 & 34 Viet. c. 52), the Fugitive
Offenders Act, 1881 (44 & 45 Viet. c. 69, s. 32), and the Colonial
Prisoners' Removal Act, 1884 (47 £ 48 Viet. c. 31).
. 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 Viet. c. 57,
s. 104), Medical Act, 1886 (49 & 50 Viet. c. 48, s. 17), Colonial
Probates Act, 1892 (55 & 56 Viet. c. 6, s. i), Colonial Solicitors
Act, 1900 (63 & 64 Viet. c. 14, s. 2) ; and for the converse, see
International Copyright Act, 1886 (49 & 50 Viet. 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 Viet. 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. Xll.
Interpretation Act, 1889, this clause may sometimes be necessary for
India, Canada, or Australia. See Colonial Probates Act, 1892 (55 & 56
Viet. c. 6, s. 4). For a slightly different form see Colonial Solicitors
Act, 1900 (63 & 64 Viet. c. 14, s. 5).
— (i) Where His Majesty the King has made a con- Applioa-
v ' . tion of
vention with a foreign State respecting Act by
Order in
Council
it shall be lawful for His Maiesty in Council to order that (Foreign
Coun-
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 con- Appik-a-
vention with a foreign State, apply this Act, subject to any ^"k.
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 Viet c. 31). The British posses-
sions scheduled to the Act are the self-governing colonies. See also the
Extradition Act, 1870 (33 & 34 Viet. c. 52, ss. 17, 18).
. (A.) — This Act shall [except as in this Act otherwise Com-
specially provided] come into operation on the day ment of
of . Act-
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
OH. XII. *793 was that every Act, not expressing the contrary, was to be
. 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 Viet,
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, 1670 (33 & 34 Viet. 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 Viet. 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
[ y- the purposes of this Act shall [in each county] be [fhe first
day of April 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 with 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 Viet. c. 41, a. 109), Local
Government Act, 1894 (56 & 57 Viet. c. 73, s. 84), Local Government
STATUTORY FORMS 279
Ireland) Act, 1898 (61 & 62 Viet. c. 37, s. 124), and London Govern- CH. XII.
ment Act, 1899 (62 & 63 Viet. c. 14, s. 33). The adoption of some such
form as this will often be convenient where different 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 Jntndred 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 Viet. c. 16), the duration of which was
limited during its passage through the House.
. The Acts mentioned in the schedule to this Repeal of
A.ct are hereby repealed to the extent specified in the third ments in
column of that schedule. schedule.
[Provided that —
(1) 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
(2) 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-under-Lyne Corporation v. Pugh [1898], i Q. B. 45.
An enactment should not be included in the schedule of repeals
280 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 Viet. c. 63). More extensive savings will
be 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
o schedule to this Act shall be repealed to the extent mentioned
into in that schedule.
operation.
See 61 & 62 Viet. c. 41, s. 15 (a) (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
e rev°ked or varied by His Majesty by Order in Council.
in
schedule. See Foreign Jurisdiction Act, 1890 (53 & 54 Viet. c. 37, s. 17;. This is
a strong power which would not often be given.
STATUTORY FORMS 281
DEFINITIONS.
Explaiiatory Note.
Most of the definitions in common use before 1889 have now been 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 ordinary 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. K. 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 subsidiary
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 —
(1) 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 & 22 Viet. c. 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 Viet. c. 33, s. i) superseding the
Education Department (see Interp. Act, s. 12 (6)) ;
(7) The Board of Trade (see Interp. Act, s. 12 (8) ) ;
(8) The Local Government Board (see 34 & 35 Viet. c. 70) ) ;
(9) The Board of Agriculture (seo 52 & 53 Viet. c. 30)) ;
(10) The Postmaster-General (see Interp. Act, s. 12 (n)) ;
(n) 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 A 35 Viet. c. 70), the Board of Agri-
culture (52 & 53 Viet. c. 30), or the Board of Education (62 & 63 Viet.
c- 33)- I* 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 Viet. 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 Viet. c. 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 Viet. 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 usxially 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 Viet. c. 48, s. 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 Viet. 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 Viet. 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.
(2) There shall be paid out of money provided by 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 Parliament.
See 52 & 53 Viet. c. 30, s. 5, and 62 & 63 Viet. 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.
(2) 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 duty
transferred to the [Board of Agriculture] by or in pursuance
284 LEGISLATIVE METHODS AND FORMS
CH. xil. 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, s. 6 ; 62 & 63 Viet. c. 33, s. 7.
Transfer • — (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.
(2) 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 Viet. 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
and Con- national payments are made out of the Exchequer, which is in
fact the til1 into and out of wnich 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. XII.
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, ch^q?e]i-t
is regulated by the Exchequer and Audit Departments Act, 1866 ^par£. '
(29 & 30 Viet. 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 Viet. 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- a™d ei
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
office held during pleasure under the Crown or under any officer
appointed by the Crown. They are not capable, while holding
their office, 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 c"e(luer-
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. n 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 1 900 ; 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 2§ per cent. Consolidated Stock (1903) created under the CH. XII.
National Debt (Conversion) Act, 1888 (51 & 52 Viet. c. 2),
and the National Debt Redemption Act, 1889 (52 & 53 ^ded
T T • i \ Q. f O v .
Viet. c. 4, s. 5);
The 2% per cent. Annuities (1905) created under the National
Debt (Conversion of Stock) Act, 1884 (47 & 48 Viet. c. 23) ;
The 2 J 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 Viet. c. 16,
s. 6) ; and
The guaranteed land stock created under the Purchase of Land
(Ireland) Act, 1891 (54 & 55 Viet. 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
(55 & 56 Viet. c. 48), and the charge in favour of the National
Debt Commissioners created by the National Debt (Conversion of
Bonds") Act, 1892 (55 & 56 Viet. 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 debt °f
the principal debt being comprised in the annuity. The pay- *®™'
ments on account of the capital of terminable annuities were nuities.
suspended for a year by the Finance Act, 1900 (63 & 64 Arict. c. 7,
s. 17).
ILT. The special War Loan authorized to be raised under the War
War Loan Acts of 1900 (63 & 64 Viet. cc. 2, 61), was raised in Loan-
part by a new capital stock called War Stock and by the issue
of bonds called War Bonds, each bearing interest at the rate of
2f per cent, per annum, and each to be redeemed on April 5, 1910.
IV. The floating or unfunded debt consists of short loans which
are usually raised by the issue of Exchequer bonds, Exchequer
bills, or Treasury bills.
The issue of Exchequer bills and Exchequer bonds is regulated Floating
by the Exchequer Bills and Bonds Act, 1866(29 & 30 Viet. c. 25), J™]^
as amended by 40 & 41 Viet. c. 2, and 52 & 53 Viet. c. 6, s. 5. <jebt.
Exchequer bills are prepared and made out at the Bank of EX_
England in such method and form, with coupons for interest for chequer
such term not exceeding five years from their date, and under bills and
such regulations as the Treasury think most safe and convenient
(29 & 30 Viet. c. 25, s. 3). The authority for their issue from
the Bank is a Treasury warrant countersigned by the Comptroller
and Auditor-General (s. 6). The principal of the debt which
they represent and the interest thereon is charged on and payable
out of the Consolidated Fund or the growing produce thereof
(s. 7). Exchequer bills have practically fallen into disuse.
Most of the provisions applying to Exchequer bills are applied
also to Exchequer bonds by 29 & 30 Viet. c. 25, s. 6, but the
principal and interest of Exchequer bonds are not charged on
the Consolidated Fund except under a special direction (see e. g.
63 & 64 Viet. c. 2, s. 3, c. 6 1, s. i).
288
LEGISLATIVE METHODS AND FORMS
CH. XII.
Treasury
hills.
Charge
for man-
agement
of Na-
tional
Debt.
Sinking
Fund Act,
1875-
Old Sink-
ing Fund.
Treasury bills are regulated by the Treasury Bills Act, 1887
(40 & 41 Viet. c. 2). A Treasury bill is to be in the form
prescribed by Treasury regulations, and is to be a bill for the
payment of the principal sum named therein in the manner and
at the date therein mentioned, so that the date be not more than
twelve months from the date of the bill. Interest is to be pay-
able in respect of a Treasury bill at such rate and in such manner
as the Treasury direct (s. 4). Treasury bills are to be issued by
the Bank of England under the authority of a warrant from the
Treasury countersigned by the Comptroller and Auditor-General
(s. 8). All money raised by the issue of a Treasury bill is to be
paid into the Exchequer. The principal money of and interest
on any Treasury bill is to be charged on and payable out of the
Consolidated Fund or the growing produce thereof (s. 5).
Under s. 6 the Treasury may issue Exchequer bills or Treasury
bills in lieu of bills paid off during the same financial year.
The money raised by these bills and bonds is borrowed from
the Bank of England, the National Debt Commissioners, and
other persons willing to lend (52 & 53 Viet. c. 4, s. 6).
For an instance of a power to borrow by means of Treasury
Bills, see the Treasury Bills Act, 1899, Session 2.
The Bank of England are by their Acts and charters prohibited
from lending to the Government unless authorized to do so, and
therefore a special authority must in some cases be given. It is
always given by the Consolidated Fund Acts of each session. They
have a general authority to lend on the security of Exchequer
bills or bonds (29 & 30 Viet. c. 25, s. 30), and of Treasury bills
(40 & 41 Viet. c. 2, s. 13). But loans of this kind are now
obsolete, being replaced by the deficiency advances referred to
above, and by the Ways and Means advances referred to below.
The National Debt Commissioners also require special authority
to lend out of the funds which they hold on account of the Post
Office and other savings banks. They will not lend except on a
guarantee from the Consolidated Fund, which however may be
only a secondary security (see 52 & 53 Viet. c. 71, s. 8 ; 54 & 55
Viet. c. 24, s. 4 (3)).
The National Debt is managed by the Banks of England and
Ireland, and the annual charge for its management is now regu-
lated by s. 4 of the Bank Act, 1892 (55 & 56 Viet. c. 48).
The payments on account of the interest and principal of the
National Debt are now regulated by Sir Stafford Northcote's
Sinking Fund Act of 1875 (38 & 39 Viet. c. 45), as amended by the
National Debt and Local Loans Act, 1887 (50 & 51 Viet. c. 16).
Under s. 4 of the Act of 1875 the Treasury are required to
prepare within fifteen days after the expiration of every financial
year an account of the public income and expenditure of the United
Kingdom, showing the surplus of income or the excess of expen-
diture during that year. If it appears from the account for any
financial year that there is a surplus of income above expenditure
STATUTORY FORMS 289
for that year, the Treasury are required in the course of the next CH. XII.
financial year to cause the amount of this surplus to be issued
out of the Consolidated Fund or the growing produce thereof to
the National Debt Commissioners, to be applied by them in pur-
chasing, redeeming, or paying off the National Debt. The amount
of this surplus is called the Old Sinking Fund. It -was made
applicable in 1897 to the expenses of certain military works
(60 & 6 1 Viet. c. 7, s. 3), and in 1898 to the provision of certain
public buildings (61 & 62 Viet. c. 5).
Section i of the Act of 1875 directs that a specified annual Penna-
sum, described as the permanent annual charge for the National nent
Debt, is to be charged on and issued out of the Consolidated ^^
Fund at such times and in such manner as may be required for for the
paying the charges payable thereout, and subject thereto as the National
Treasury may from time to time direct, so that the whole amount Debt,
thereof be issued in each financial year. The amount of the
permanent annual charge was fixed by the Act of 1875 at
£28,000,000, was increased to £28,800,000 in 1880, but has been
since reduced by Acts of 1887 (50 & 51 Viet. c. 16, s. 2), 1889
(52 & 53 ^ ict. c. 6, s. i), and 1899 (62 & 63 Viet. c. 9, s. 16)
to £23,000,000.
Under s. 2 of the National Debt and Local Loans Act, 1887
(50 & 51 Viet. c. 1 6), which superseded s. 2 of the Sinking Fund
Act, 1875, there are to be payable as part of the permanent
annual charge for the National Debt: —
(a) all such perpetual and terminable annuities, and the
interest on all such exchequer bonds and other debts
as are specified in Part I of the First Schedule to the
Act; and
(b) all interest on advances made by the Bank of England or
the Bank of Ireland in pursuance of s. 12 of the
Exchequer and Audit Departments Act, 1866 ; and
(c) the interest on all loans borrowed under any Act on
account of ways and means ; and
(d) the annual amounts payable for the time being to the
Bank of England and Bank of Ireland for the manage-
ment of, or expenses connected with, the National Debt,
or any part thereof.
But there are not to be payable as part of the permanent
charge of the National Debt —
(a) the deferred annuities, or the interest on the Exchequer
bonds, specified in Part IE of the First Schedule to
the Act ; or
(b) any annuities or the interest on any Exchequer bonds,
Exchequer bills, Treasury bills, or other loans, created,
issued, or borrowed under any Act passed after the passing
of the Act of 1887, which does not direct the same to
be payable as part of the permanent annual charge.
Where, therefore, the interest on any debt is to be paid
290 LEGISLATIVE METHODS AND FORMS
CH. XII. out of the permanent annual charge there is a specific enact-
ment to this effect. Thus the dividends on the new consols
created since 1875 are expressly required to be paid out of the
permanent annual charge (see 47 & 48 Viet. c. 23, s. i ; 51 & 52
Viet. c. 2, s. 2 (5). See also 40 & 41 Viet. c. 2, s. 12 (Treasury
Bills), and 55 & 56 Viet. c. 26, s. i (Conversion of Exchequer
Bonds)). But the principal and interest and other sums charged
in respect of the War Loan of 1900 are not to be payable as part
of the permanent annual charge (63 & 64 Viet. c. 2, s. 3).
New Under s. 3 of the Sinking Fund Act, 1875 (as amended by 40
Sinking & 41 Viet. c. 2, s. 7), such portion of the permanent annual charge
Fund. as jg jn any financial year not required for the purpose of paying
the annual charges directed by the Act to be paid thereout, is to be
issued by the National Debt Commissioners and applied by them
in redemption of annuities, perpetual or terminable, charged on
the Consolidated Fund and Exchequer bonds and Treasury and
Exchequer bills, but is not to be applied in paying off any
advances made by the Banks of England or of Ireland in pur-
suance of s. 12 of the Exchequer and Audit Act, 1866, or in
paying off any loan borrowed under any Act to meet ways and
means. This surplus over the permanent annual charge is de-
scribed as the New Sinking Fund. Its payment has been more
than once suspended, e.g. by the Finance Act, 1900 (63 & 64
Viet. c. 7, s. 16).
Under ss. 7 and 8 of the Act of 1875 accounts of the Old and
New Sinking Funds are to be kept and published.
Supply of The mode of supplying money to meet Consolidated Fund
money charges is regulated by s. 13 of the Exchequer and Audit De-
i-j^j partinents Act, 1866. Under that section the Comptroller and
solidated ^ ,., ~ , , . ,, m ,, . r ....
Fund Auditor-General is to grant to the Treasury on their requisitions
charges, authorizing the same, if satisfied of the correctness thereof,
credits on the Exchequer accounts at the Banks of England or
Ireland, or on the growing balances thereof, not exceeding the
amount of the charge in the quarterly account of the income and
charge of the Consolidated Fund remaining unpaid. The Comp-
troller and Auditor-General is also to grant from time to time
to the Treasury on similar requisitions supplemental credits for
services payable under any Act out of the growing produce of
the Consolidated Fund and not included in the quarterly account.
The issues or transfers of moneys required from time to time
by the various principal accountants to enable them to make
the payments entrusted to them are to be made out of these
credits on orders issued to the Banks signed by a Secretary to
the Treasury, or in his absence by an officer appointed by the
Treasury for the purpose, and each of these orders is to set forth
the service for which the issue is authorized.
A daily account of all issues or transfers made from the
Exchequer accounts in pursuance of these orders is to be trans-
mitted by the Banks to the Comptroller and Auditor-General.
STATUTORY FORMS 291
The payment of money required to meet Supply charges is CH. XI I.
authorized by resolutions in the Committee of Supply and in the
Committee of Ways and Means. Procedure
' The Committee of Supply controls the public expenditure by fc>r.autho~
considering the grants of money that will be required for the I^jfture
army, navy, and civil services of the current year, upon the Of money
estimates of that expenditure prepared by the Ministers of the required
Crown. The Committee of Ways and Means provides the public *° meet
income raised by the imposition of annual taxation, and votes C^™JS
the resolutions that authorize the issue out of the Consolidated
Fund of the sums required to meet the grants voted by the
Committee of Supply V
A resolution of the Committee of Supply, when reported and Eesolu-
agreed to by the House, sanctions the expenditure described in tion in
the resolution. The form of a resolution in supply is : ' Resolved ^^ of
that a sum not exceeding be granted to His Majesty Supply,
[to complete the sum necessary] to defray the charge which will
come in course of payment during the year ending on the 3 1 st
day of March 19 2 for .' The words in brackets are
inserted if a sum has already been voted on account.
But the expenditure authorized by a resolution of the Com- Resolu-
mittee of Supply cannot proceed until money has been provided tion in
to meet it, and this is done by a resolution in Committee of ,QU?ee Of
Ways and Means, which may not propose an amount in excess of Ways and
the expenditure voted in supply. The form of a resolution in Means,
the Committee of Ways and Means is : ' Kesolved that towards
making good the supply granted to His Majesty for the service
of the year ending the 3ist day of March 19 ,. the sum of
be granted out of the Consolidated Fund of the
United Kingdom.'
This resolution having been passed, reported to the House,, and Consoli-
agreed to, the next step is to get the money out of the Consoli- dated
dated Fund, which can only be done by an Act of Parliament, * T
and is in practice done by Acts called Consolidated Fund Acts,
as supplemented by the annual Appropriation Act.
Several Consolidated Fund Acts (preceded by the Ways and
Means resolutions) are generally required in the course of a
session to provide for the Votes in Supply as they gradually pass
the Committee. Each Act authorizes the Bank to advance on
the application of the Treasury, to the amount covered by the
Act, the sums required for the public service in respect of any
services voted in the same session. These advances are called
Ways and Means advances.
As soon as the Ways and Means have thus been provided by Issue of
Parliament, the next step is to obtain from the Comptroller and credit by
1 May's Parliamentary Practice, tenth edition, p. 554.
* The financial year has ended with the 3ist of March since 1854 (see
17 & 18 Viet. c. 94, s. 2).
292
LEGISLATIVE METHODS AND FORMS
CH. XII.
Comp-
troller
and
Auditor-
General.
Issue by
Treasury.
Appro-
priation
Act.
Auditor-General a credit for the amount required to be issued
under s. 15 of the Exchequer and Audit Departments Act, 1866
(29 & 30 Viet. c. 39). This section runs as follows : —
'When any ways and means shall have been granted by Par-
liament to make good the supplies granted to Her Majesty by
any Act of Parliament or resolution of the House of Commons,
the Comptroller and Auditor-General shall grant to the Treasury,
on their requisition authorizing the same, a credit or credits on
the Exchequer accounts at the Bank of England and Bank of
Ireland, or on the growing balances thereof, not exceeding in
the whole the amount of the ways and means so granted. Out of
the credits so granted to the Treasury issues shall be made to
principal accountants from time to time on orders issued to the
said Banks, signed by one of the secretaries of the Treasury,
or in their absence by such officer or officers as the Treasury may
from time to time appoint to that duty; and the services or
votes on account of which the issues may be authorized shall be
set forth in such orders : Provided always, that the issues for
Army and Navy services shall be made under the general heads
of " Army " and " Navy " respectively.
' A daily account of all issues made from the Exchequer accounts
in pursuance of such orders shall be transmitted by the said
Banks to the Comptroller and Auditor-General.'
To make supply available the royal signature is required to
an order authorizing the Treasury to make the necessary issues
out of the credits granted. This is regulated by s. 14 of the
Exchequer and Audit Departments Act, 1866, which is as fol-
lows : —
'When any sum or sums of money shall have been granted to
Her Majesty by a resolution of the House of Commons, or by an
Act of Parliament, to defray expenses for any specified public
services, it shall be lawful for Her Majesty from time to time, by
her Royal Order under the Royal Sign Manual, countersigned by
the Treasury, to authorize and require the Treasury to issue, out
of the credits to be granted to them on the Exchequer accounts
as hereinafter provided, the sums which may be required from
time to time to defray such expenses, not exceeding the amount
of the sums so voted or granted.'
When all the supply of the session has been voted, an Appro-
priation Act is passed providing the balance of ways and means
required for the session, and appropriating in detail the various
sums voted out of the Consolidated Fund to the different purposes
specified in the resolutions passed in Committee of Supply as
agreed to by the House. The Act includes all the supply
voted in the session for the service of whatever year may be
intended.
Each of the annual Appropriation Acts supplements the Con-
solidated Fund Acts by authorizing the Treasury to issue out of
the Consolidated Fund the balance of the supply grants and
STATUTORY FORMS 293
apply it towards making good the supply granted for the service CH. XII.
of the specified financial year, and to borrow by means of
Ways and Means advances on the credit of this balance any sum
or sums of equal or less amount in the whole. The money
so borrowed is to be repaid by the Treasury with interest not
exceeding 5 per cent, per annum out of the growing produce
of the Consolidated Fund at any period not later than the next
succeeding quarter to that in which the money was borrowed.
Any money so borrowed is to be placed to the credit of the
Exchequer, and to form part of the Consolidated Fund, and be
available in any manner in which that fund is available.
The Act then goes on to appropriate the grants of the year by
declaring that all sums granted by the Appropriation Act and
by the other Consolidated Fund Acts of the year (which are
specified in a schedule to the Act) out of the Consolidated Fund
towards making good the supply granted to His Majesty, amount-
ing in the aggregate to the sum appearing by that schedule, are
appropriated and to be deemed to be appropriated as from the
date of the passing of the first of the Consolidated Fund Acts
for the purposes and services expressed in another schedule.
By s. 2 of the Public Accounts and Charges Act, 1891 (54 & 55
Viet. c. 24), which is a permanent enactment supplementing the
Annual Appropriation Acts, it is declared that where an Act
authorizes any sum to be issued out of the Consolidated Fund
towards making good the supply granted for the service of
any year, every sum issued in pursuance of that Act is to be
applied towards making good the supply so granted at the time
of the issue.
Payments out of the Exchequer are made through the Pay- Pay-
master-General. The office of Paymaster-General still exists, master-
but no salary is attached to it, and by an Act of 1889 (52
& 53 Viet. c. 53), power was given to transfer its functions to
the Banks of England and Ireland. This power has not been
exercised.
The system is so worked that at the end of each financial year
the unexpended balances on any appropriation account are re-
payable to the Exchequer, and go either in relief of the expendi-
ture of a subsequent year or to swell the Old Sinking Fund.
The departments entrusted writh the expenditure of public Audit and
money render appropriation accounts to the Comptroller and reference
Auditor-General. He examines the accounts and reports upon ^.^^
them to the House of Commons in the February of each year, com-
The House then refers his reports to the Public Accounts Com- mitt*-e.
mittee — a committee appointed under a Standing Order — which
examines them and calls attention to any want of corre-
spondence between votes and payments or other irregularity
which may appear from the reports.
Among the leading characteristics of the system above de- General
scribed are — character-
294
LEGISLATIVE METHODS AND FORMS
CH. XII.
istics of
system.
Appro-
priations
in aid.
Special
accounts.
Local
taxation
account.
(1) Payment of all receipts and expenditure into and out of
one general account ; and
(2) Annual surrender of unexpended balances.
But the simplicity of this system has been affected by the
practice of appropriations in aid and by the creation under
recent Acts of special accounts.
By s. 2 of the Public Accounts and Charges Act, 1891 (54
& 55 Viet. c. 24), which sanctioned a practice previously in
existence, all money directed by or in pursuance of any Act, or
by the Treasury, to be applied as an appropriation in aid of
money provided by Parliament for any purpose is to be deemed
money provided by Parliament for that purpose, and is, without
being paid into the Exchequer, to be applied, audited, and dealt
with accordingly, and so far as it is not in fact so applied is to
be paid into the Exchequer. Schedule B to the Appropriation
Act now shows appropriations in aid in a separate column.
Under the same section, where any fee, penalty, proceeds of
sale, or other money of the nature of an extra receipt, is by
virtue of any Act or otherwise payable into the Exchequer, the
Treasury may, by a minute to be laid before Parliament, direct
that the whole or any specified part thereof shall be applied as
an appropriation in aid of money provided by Parliament for the
service mentioned in the minute.
Appropriations in aid may therefore be applied for purposes
of authorized public expenditure without being passed through
the national till. For an example of an enactment expressly
authorizing an appropriation in aid, see 46 & 47 Viet. c. 52, s. 77.
The most important of the special accounts is the Local Taxa-
tion Account created under the Local Government Act, 1888
(51 & 52 Viet. c. 41).
Under ss. 20 & 21 of the Local Government Act, 1888, the
Commissioners of Inland Revenue are required to pay into the
Bank of England to a special account called the Local Taxation
Account, instead of to the general account of the Exchequer, the
proceeds of the duties collected by the Commissioners in the
several administrative counties of England and Wales on certain
licences referred to in the Act as local taxation licences, and to
pay into the same account a proportion of the proceeds of the
sums collected by them in respect of the probate duties. The
sums paid into this account are paid over to county councils.
Under s. 27 of the same Act the accounts of the receipts and
expenditure of the Local Taxation Account are to be audited as
a public account by the Comptroller and Auditor-General, and
if in any financial year the moneys standing to the Local
Taxation Account are insufficient to meet the payments which
ought, in the opinion of the Local Government Board, to be made
out of it, that Board may borrow temporarily, on the security of
the account, such sums as may be required for meeting the
deficiency.
STATUTORY FORMS 295
Similar Local Taxation Accounts are created for Scotland and CH. XII.
Ireland, under the Probate Duties (Scotland and Ireland) Act,
1888 (51 & 52 Viet. c. 60), amended as to Ireland by the
Local Government (Ireland) Act, 1898 (61 & 62 Viet. c. 37, ss. 48,
58). See also as to the Local Taxation Account for Scotland,
ss. 19-24 of the Local Government (Scotland) Act, 1889 (52 & 53
Viet. c. 50).
S. 19 of the Finance Act, 1894 (57 & 58 Viet. c. 30), substi-
tuted a share of the estate duty for a corresponding share of the
probate duties.
Under s. 7 of the Customs and Inland Revenue Act, 1890
(53 & 54 Viet. c. 8), certain duties in respect of spirits and beer,
called the Local Taxation (Customs and Excise) duties, are to
be carried to the several local taxation accounts, and their
application is regulated by a later Act of the same session, the
Local Taxation (Customs and Excise) Act, 1890 (53 & 54 Viet,
c. 60), and by the Police Act, 1890, and the Technical Instruction
Act, 1891.
Under s. 15 of the Diseases of Animals Act, 1894 (57 & 58 Cattle
Viet. c. 57), which supersedes provisions previously contained in Pleuro-
53 & 54 Viet. c. 14, 55 & 56 Viet. c. 47, and 56 & 57 Viet. c. 43, ^^
a separate account, called the Cattle Pleuro-Pneujnonia Account Account
of Great Britain, is required to be kept at the Bank of England, for Great
and there are to be paid to this account — Britain.
(a) Such moneys not exceeding 140,000?. in any one year, as
may be provided by Parliament towards defraying the costs
incurred by the Board of Agriculture in the execution in
Great Britain of the provisions relating to the slaughter of
cattle, animals, or swine on account of pleuro-pneumonia,
foot-and-mouth disease, or swine fever; and
(b) All sums received by the Board of Agriculture on the sale
of the carcasses of cattle, animals, or swine slaughtered
under those provisions after deducting any amounts payable
to the owners.
If in any financial year the money standing to the account is
insufficient to defray the expenses of the execution of those
provisions in Great Britain, the Local Government Board and
the Secretary for Scotland are required to pay out of the Local
Taxation Account and the Local Taxation (Scotland) Account
respectively, to the Cattle Pleuro-Pneumonia Account for Great
Britain, in the proportions provided by the Act, such additional
sums as may be certified by the Board of Agriculture for de-
fraying those expenses.
There are separate provisions as to Ireland in s. 73.
Until recently the Mercantile Marine Fund constituted another General
special fund of great importance, which included many items o
receipt and expenditure connected with merchant shipping. But,
under the Merchant Shipping (Mercantile Marine Fund) Act,
1898 (61 & 62 Viet. c. 44), this has now been superseded by the
296
LEGISLATIVE METHODS AND FORMS
CH. XII.
Naval
Defence
Account.
Loans
from
public
money.
Loans by
Public
Works
Loan
Commis-
sioners.
Interest
on loans.
General Lighthouse Fund, which includes only receipts and
expenses specially relating to lighthouses, buoys, and beacons.
Another special account, but of a temporary character, was
created under the Naval Defence Act, 1889 (52 & 53 Viet. c. 8),
but was closed by the Finance Act, 1894 (57 & 58 Viet. c. 30,
s. 41).
In preceding paragraphs the State has been considered in its
borrowing capacity. But the State also lends money from public
funds for the purpose of works of public improvement. Its
proceedings in this capacity are regulated mainly by the Public
Works Loans Act, 1875 (38 & 39 Viet. c. 89), the Public Works
Loans (Ireland) Act, 1877 (40 & 41 Viet. c. 27), and the National
Debt and Local Loans Act, 1887 (50 & 51 Viet. c. 16).
The Public Works Loans Act, 1875, establishes a body of
Commissioners, styled the Public Works Loan Commissioners,
whose functions are to supervise loans from public money for
public purposes.
S. 9 gives a general authority to the Commissioners to make
loans for the purpose of any works mentioned in the First
Schedule to the Act (as extended by 59 & 60 Viet. c. 42, s. 2)
to any person having power under an Act of Parliament or
otherwise to borrow for such a purpose. In considering the
propriety of granting a loan, the Commissioners are to have
regard to the sufficiency of the security for its repayment, and,
subject to the provisions of any special Act, are to determine
whether the work for which the loan is asked would be such
a benefit to the public as to justify a loan out of the public
money, having regard to the amount of money placed at their
disposal by Parliament.
Every loan granted under the Act is to bear interest at a rate
not less than the rate authorized by the Act, or, if no rate is so
authorized, not less than 5 per cent, per annum. This minimum
rate was by 55 & 56 Viet. c. 61, s. 2, reduced to 4 per cent, as
to loans granted after the passing of that enactment, and has
been further reduced by the Public Works Loans Act, 1897
(60 & 61 Viet. c. 51, s. i).
S. 2 of the Public Works Loans Act, 1879 (42 & 43 Viet.
c. 77), directs that where a loan is granted by the Public Works
Loan Commissioners or by the Commissioners of Public Works in
Ireland, and the rate of interest for the loan, fixed by the special
Act which authorizes the Commissioners to grant the loan, is a
special rate not less than 5 per cent, (as to loans since June 28,
1892, 4 per cent., 55 & 56 Viet. c. 61, s. 2), the loan shall, not-
withstanding anything in the special Act, bear interest at a rate
not less than the rate in the special Act, and such other rate as
may be necessary in the judgement of the Treasury, in order to
enable the loans to be made without loss to the Exchequer.
S. i of the Public Works Loans Act, 1897 (60 & 61 Viet,
c. 51), enacts that 'The rates of interest at which loans may be
STATUTORY FORMS 297
made out of the Local Loans Fund on the security of local rates CH. XII.
may be fixed by the Treasury from time to time, having regard
to the duration of the loan, and shall be such rates not less than
two and three-quarters per cent, per annum as in the opinion
of the Treasury are sufficient to enable such loans to be made
without loss to the Local Loans Fund/ By s. 1 1 of the same Act
the same provision is applied to certain loans under the Military
Lands Act, 1892 and 1897, and s. 663 of the Merchant Shipping
Act, 1894. The Act of 1897 repealed several enactments fixing
special rates of interest on loans under previous Acts.
S. ii of the Public Works Loans Act, 1875, as amended by Terms for
s. 5 of the Public Works Loans Act, 1898 (61 & 62 Viet. c. 54), repay-
directs that every loan granted under the Act is to be made ment-
repayable by instalments in the form of an annuity or otherwise
within a period from the date of the actual advance of the loan,
not exceeding the period authorized by the special Act relating
to the loan, or, if no period is so authorized, not exceeding thirty
years. The same section gives power to extend the period for
repayment under special circumstances.
The Commissioners before advancing money are to take security Security
for repayment of the loan with interest. The security is to be for loan-
that authorized by the special Act relating to the loan, or, if
none is so authorized, of a mortgage of property or a rate, or
of both property and a rate, and of personal security, unless the
Commissioners think personal security can be dispensed with.
Under s. 18, where a loan is granted by the Commissioners on
the security of a mortgage of any property, whether with or
without any other security, the property is to be charged with
payment to the use of the Crown of the loan with interest as
mentioned in the mortgage in priority, save so far as otherwise
specified, over every other debt, mortgage, or charge, except any
loan due to any creditor not assenting to such priority which has
been advanced in good faith before the loan advanced by the
Commissioners and secured by a mortgage of the property
executed to a person who is entitled as a bona fide creditor
to the repayment thereof with interest.
Powers for realizing their security are given to the Com-
missioners by other provisions of the Act of 1875.
Under the Public Works Loans (Ireland) Act, 1877 (40 & 41
Viet. c. 27), the Commissioners of Public Works in Ireland have,
for the purpose of loans in Ireland, powers similar to those
exerciseable by the Public Works Loan Commissioners for loans
in Great Britain.
The National Debt and Local Loans Act, 1887 (50 & 51 Viet. Local
c. 1 6), constituted a Local Loans Fund, under the control of the Loans
National Debt Commissioners, out of which those Commissioners
advance money for the purpose of loans by the Public Works
Loan Commissioners, the Fishery Board for Scotland, the Com-
missioners of Public Works in Ireland, or by the Irish Land
298
LEGISLATIVE METHODS AND FORMS
CH. XII. Commissioners, or for the purpose of similar loans by the
Treasury (ss. 6, 7) (all which loans are in the Act called local
loans). The same Act, by s. 8, authorized the creation of a
special class of stock, called local loans stock, for the purpose of
advances in accordance with the Act. The rate of interest on,
and date of redemption of, the stock may now be fixed by the
Treasury under the Public Works Loans Act, 1897 (60 & 61 Viet,
c. 51, s. 2).
S. ii of the Act of 1887 directed that an annual sum of
130,000^. should be paid out of the Local Loans Fund and
carried to a separate fund, called the Restitution Fund, to be
applied towards restitution of losses to the Exchequer through
the non-payment of local loans, but this annual payment was
abolished by the Public Works Loans Act, 1897, which made
new provisions as to the application of any surplus on the
income account of the Local Loans Fund (60 & 61 Viet. c. 51,
s. 4).
S. 15 of the Act of 1887, as amended by the Act of 1897,
directs that where the whole or any part of the principal of any
local loan is, by reason of the same not being likely to be
recovered, directed by Parliament to be written off from the
account of assets of the Local Loans Fund, the amount of the
principal is to be treated as a loss to the Exchequer ; but it is
declared that nothing in the section is to alter the liability of
any person or body corporate to pay the principal or interest of
any local loan or any part thereof. Any amount so directed
to be written off is to be paid to the National Debt Com-
missioners out of moneys provided by Parliament, and any sum
afterwards recovered, whether for principal or interest, in respect
of the amount so written off is to be paid into the Exchequer.
The provisions of the National Debt and Local Loans Act,
1887, have been applied to certain colonial loans by the Colonial
Loans Act, 1899 (62 & 63 Viet. c. 36).
A Public Works Loans Act is passed in each year for autho-
rizing the National Debt Commissioners to issue, in accordance
with the National Debt and Local Loans Act, 1887, such sums as
may be required for the purpose of loans by the Public Works
Loan Commissioners, the Commissioners of Public Works in
Ireland, or the Fishery Board for Scotland, or of similar local
loans. These Acts often contain provisions for writing off bad
debts from the account of assets of the Local Loans Fund in
accordance with s. 15 of the Act of 1887, or for cancelling such
debts altogether (see, e.g., 53 & 54 Viet. c. 50, ss. 3, 4 ; 59 & 60
Viet. c. 42, ss. 4, 5; 60 & 61 Viet. c. 51, ss. 7, 9; 61 & 62 Viet,
c. 54, s. 2 ; 62 & 63 Viet. c. 31, s. 2).
By the Light Railways Act, 1896 (59 & 60 Viet. c. 48, ss. 4,
5, 6), the Treasury were empowered to grant loans and make
special advances for the purposes of light railways without the
intervention of the Public Works Loan Commissioners, and to
Annual
Public
Works
Loans
Acts.
STATUTORY FORMS 299
borrow money for the purpose from the National Debt Com- CH. XII.
missioners. Loans are also granted to the Congested District
Commissioners for Scotland and the Congested District Board for
Ireland.
Forms.
For power to borrow for a term of ten years, but without any
provision for repayment, see the War Loan Acts of 1900 (63 & 64
Viet. cc. 2, 6r). For power to borrow by terminable annuities, see
the Telegraph Act, 1892 (55 & 56 Viet. c. 59, s. i). For power to
advance for special purposes mentioned in a achedule, see the
Naval Works Act, 1896 (59 & 60 Viet. c. 6), the Military Works
Act, 1897 (6° * 61 Viet. e. 7), and the Public Buildings Expenses
Act, 1898 (6 1 & 62 Viet. c. 5). See also the Uganda Railway Act,
1896 (59 & 60 Viet. c. 38), and the Royal Niger Company Act,
1899 (62 & *>3 Viet. c. 43. s. 2).
For power to convert funded debt into terminable annuities see the
Finance Act, 1899 (62 & 63 Viet. c. 9, s. 17).
For power to lend to a colony, see the British Columbia (Loan) Act,
1892 (55 & 56 Viet. c. 52). In this case the advance was made
by the Treasury. Under the Harbour of Colombo Loan Act, 1874
(37 & 38 Viet. c. 24), the advance was made by the Public
Works Loan Commissioners. The Colonial Loans Act, 1899
(62 & 63 Viet. c. 36) authorized the Treasury to lend money
to sundry Colonial Governments, and declared that these loans
were to be local loans within the meaning of the National
Debt and Local Loans Act, 1887. In all these cases careful
provisions were made for the protection of the lender, includ-
ing a provision that the validity of the charge on the colonial
revenues was not to be impaired by any colonial law.
For other borrowing powers, see Public Accounts and Charges Act,
1891 (54 & 55 Viet. c. 24, s. 4), Russian Dutch Loan Act, 1891
(54 & 55 Viet. c. 26).
For power to guarantee a loan by a charge on the Consolidated Fund
see the Mauritius Hurricane Loan Act, 1892 (55 & 56 Viet. c. 49),
s. 6 of the Public Works Loans Act, 1882 (45 & 46 Viet. c. 62),
and the Greek Loan Act, 1898 (61 & 62 Viet. c. 4).
. — (i) The Public Works Loan Commissioners may in Power for
manner provided by the Public Works Loans Act, 1875, lend Works
any money which may be borrowed by a [local authority] for
the purposes of this Act. sioners to
(a) Every loan by the Public Works Loan Commissioners 3g & '
under this Act [shall be repaid within a period not exceeding Vict- c- 89-
fifty years and] shall bear such rate of interest, not less than
per cent, per annum, as the Treasury may authorize as
300 LEGISLATIVE METHODS AND FORMS
CH. XII. being in their opinion sufficient to enable the loan to be made
without loss to the Local Loans Fund.
See 55 & 56 Viet. c. 31, s. 19, and 53 & 54 Viet. c. 70, s. 83. If the loan
is on the security of local rates or for the purposes mentioned in
s. ii of the Public Works Loans Act, 1897 (60 & 61 Viet. c. 51),
a reference to the rate of interest is made unnecessary by a. i of
that Act.
Money . The amount of the [purchase money and costs] shall be
plied as defrayed as part of the expenses of the [Land Commission],
appropria- an^ a]j sums received by the [Land Commission] in respect of
.aid. [bogs] purchased in pursuance of this section shall, if directed
by the Treasury, be applied as an appropriation in aid of
money provided by Parliament for the expenses of the [Land
Commission], and, so far as not so directed, shall be paid into
the Exchequer.
See 54 & 55 Viet. c. 45, s. i.
LOCAL AUTHORITIES AND LOCAL FINANCE.
Preliminary Note.
Under the system established by the Local Government Acts of 1888
and 1894 (51 & 52 Viet. c. 41, 56 & 57 Viet. c. 73), the principal local
authorities in England are county councils, district councils, and parish
councils, to which must be added councils of county boroughs, as occupy-
ing a somewhat anomalous position.
District councils are either urban or rural.
Urban district councils are either borough councils (other than the
councils of county boroughs) or the successors of local boards or improve-
ment commissioners, and thus, together with county boroughs, corre-
spond to, and take the place of, the urban sanitary authorities under
the Public Health Act, 1875.
All boroughs outside London, whether county boroughs or not, are
governed by the Municipal Corporations Act, 1882 (45 & 46 Viet. c. 50),
but the council of a county borough is, for the purposes of the Local
Government Acts of 1888 & 1894, co-ordinated with, and not subordinated
to, the council of the county in which it is geographically situate (see
the definitions of 'county' and 'county council' in s. 75 of the Act of 1894).
The council of a county borough (as to which see ss. 31 and following
of Local Government Act, 1888) is not a district council, and its district
is not a county district within the meaning of s. 21 of the Local Govern-
ment Act, 1894 (see s. 35 of that Act).
Consequently it is usually necessary to determine expressly in each,
STATUTORY FORMS 301
case whether county boroughs are to be co-ordinated with county CH. XII.
councils or with district councils.
Rural district councils take the place of the rural sanitary authorities
under the Public Health Act, 1875 (see ss. 21 and 24 of Local Government
Act, 1894).
There must be a parish council for every rural parish (i. e. a parish in
a rural district) with a population of 300 or upwards, and there may be
one for any rural parish having a population of 100 or upwards. Where
there is no parish council the parish meeting is, or may be, given most
of the powers of the parish council (see s. 19 of Local Government Act,
1894).
There are no parish councils or parish meetings for parishes in urban
districts.
The arrangements of the Act of 1894 as to district councils did not
extend to London, where their place was taken by the vestries and
district boards under the Metropolis Management Acts, now superseded
by the metropolitan borough councils under the London Government
Act, 1899 (62 & 63 Viet. c. 14). It must be borne in mind that the
provisions as to ordinary boroughs, i.e. powers under the Municipal
Corporations Act, 1882, do not apply, or only partially apply, to the
metropolitan boroughs in London (see 62 & 63 Viet. c. 14, s. 31).
Metropolitan borough councils outside the City, and the Corporation
of the City acting through the Common Council within the City, are the
sanitary authorities in London.
The authorities for highways are the councils of county boroughs and
of urban and rural district councils, except that the county council has
powers with respect to ' main roads ' outside a county borough. In
London the councils of the metropolitan boroughs take the place of
district councils for highway purposes.
The arrangements for the administration of the poor law and of
education have not been fitted into the system of counties and county
districts established under the Local Government Acts of 1888 and 1894.
A poor law union, which is the area under a board of guardians,
may comprise the whole or part of one or more urban districts as well as
a rural district, but in that case the individual guardians elected for
parishes within so much of the union as is comprised in a rural district
are identical with the district councillors (see s. 24 of Local Government
Act, 1894).
The only public authorities for supplying elementary education are
school boards. Where these do not exist school attendance committees
have certain powers of compelling attendance at school. The area of
a school board is a ' school district.'
The councils of counties, county boroughs, and urban districts have also
powers of supplying technical instruction under the Technical Instruction
Acts, 1889 and 1891 (52 & 53 Viet. c. 76 ; 54 & 55 Viet. c. 4). The councils
of counties and county boroughs have similar powers under s. i of the
Local Taxation (Customs and Excise) Act, 1890 (53 A; 54 Viet. c. 60).
It has sometimes been found convenient to define, by reference to
a schedule, the local authorities which are to administer the Act, the
areas within which they are to exercise their powers, and the rate or
other fund out of which their expenses are to be defrayed. (See, e. g., the
302 LEGISLATIVE METHODS AND FORMS
CH. XII. Housing of the W rking Classes Act, 1890 (53 & 54 Viet. c. 70, ss. 54, 92,
and First Schedule).)
The ordinary expenses of local authorities are defrayed out of their
local funds or rates.
The expenses of a county council are paid out of the county fund,
which is raised or supplemented by means of county contributions levied
on the basis of the poor rate (see 51 & 52 Viet. c. 41, s. 68). Their pay-
ments are distinguished as payments for general county purposes and
payments for special county purposes. The expression 'general county
purposes ' means all purposes declared by any Act to be general county
purposes, and all purposes for contribution to which the county council
are for the time being authorized by law to assess the whole area of their
administrative county. The expression ' special county purposes ' means
any purposes from contribution to which any portion of a county is for
the time being exempt, and includes any purposes where the expenditure
involved is by law restricted to a hundred, division, or other limited
part of the county. Any costs incurred for a general county purpose are
general expenses, and all costs incurred by the county council in the
execution of their duties which are not by law made special expenses are
to be general expenses. The expressions, ' general county account ' and
' special county account,' are defined on the same principles.
The ordinary expenses of a borough council, including the council of
a county borough, are paid out of the borough fund, representing the
income of the borough property as supplemented by the borough rate.
The borough rate is, subject to local variations, levied on the same basis
as the poor rate (see the Municipal Corporations Act, 1882, 45 & 46 Viet,
c. 50, ss. 139-149). The expenses of a borough council as a sanitary
authority are, subject to the provisions of Local Acts, paid out of the
general district rate.
The expenses of an urban district council, not being the council of
a borough, are (save in the exceptional cases mentioned in s. 207 of the
Public Health Act, 1875) defrayed out of the district fund and general
district rate (see a. 28 of Local Government Act, 1894). The general
district rate is levied on the same basis as the poor rate, subject to
certain exceptions and qualifications, of which the most important is
that certain lands, such as agricultural lands, market gardens, railway
lines, and canals, are assessed only at a fourth of their net annual value
(see 38 & 39 Viet. c. 55, ss. 207-212).
The expenses of a rural district council are now regulated by s. 29 of
the Local Government Act. 1894 (56 & 57 Viet. c. 73), the provisions
of which are general and are not confined to expenses under the Act.
The expenses are divided into general expenses and special expenses.
The general expenses are payable out of a common fund to be raised out
of the poor rate of the parishes in the district according to the
rateable value of each contributory place as defined by the Public Health
Act, 1875. Special expenses are a separate charge on each contributory
place. The contributions to special expenses are raised by means of
a rate levied and assessed on the same basis as the poor rate, but subject
to the same partial exemptions in the case of agricultural lands,
market gardens, railway lines, and canals, as in the case of the general
district rate (see 38 & 39 Viet. c. 55, ss. 229 and 230). Under s. 29 of the
STATUTORY FORMS 303
Local Government Act, 1894, the Local Government Board may, however, CH. XIL
direct that any special expenses incurred under that Act be raised in like
manner as general expenses, i.e. without the exemptions.
The expenses of a metropolitan borough council are paid out of a
general rate which is assessed, made, collected, and levied as if it were
the poor rate 62 & 63 Viet. c. 14, s. 10).
The expenses of a parish council or parish meeting are paid out of the
poor rate (see s. n of Local Government Act, 1894).
Under s. 58 of the Local Government Act, 1894, the accounts of urban
district councils other than borough councils, of rural district councils,
of parish councils, and of parish meetings for parishes without parish
councils, are audited by district auditors, appointed by the Local Govern-
ment Board under the District Auditors Act, 1879 (42 Viet. c. 6). Under
s. 71 of the Local Government Act, 1888 (51 & 52 Viet. 0.41), the accounts
of county councils are audited in like manner.
The accounts of borough councils outside London are audited by
borough auditors, under ss. 25 and 27 of the Municipal Corporations
Act, 1882, but returns of their receipts and expenditure have to be sent
annually to the Local Government Board (see 45 & 46 Viet. e. 50, s. 28).
The accounts of metropolitan borough councils are audited like the
accounts of county councils (62 & 63 Viet. c. 14, s. 14).
The accounts of borough councils outside London, rural district
councils, guardians, and overseers, are made up half-yearly, but those
of county councils, metropolitan borough councils, urban district councils
other than borough councils, parish councils, and parish meetings are
made up yearly (see s. 58 of the Local Government Act, 1894).
Under s. 69 of the Local Government Act, 1888, a county council may,
with the consent of the Local Government Board, borrow on the security
of the county fund and of any revenues of the council, or of either such
fund or revenues or any part of the revenues, such sums as may be
required for the following purposes or any of them : —
(a) For consolidating the debts of the county ; and
(6) For purchasing any land or building any building which the council
are authorized by any Act to purchase or build ; and
(c) For any permanent work or other thing which the county council
are authorized to execute or do, and the cost of which ought, in
the opinion of the Local Government Board, to be spread over
a term of years ; and
(d) For making advances in aid of emigration ; and
(e} For any purpose for which the county council are authorized by
any Act to borrow.
Money so borrowed must be repaid within thirty years.
Where the county council are authorized to borrow, they may raise
the money either as one loan or as several loans, and either by stock
issued in accordance with the regulations of the Local Government
Board under the Local Government Act, 1888 (see s. 70 of that Act), or by
debentures or annuity certificates under the Local Loans Act, 1875
(38 & 39 Viet. c. 83% and the Acts amending the same, or, if special
reasons exist for so borrowing, by mortgage in accordance with ss. 236
and 237 of the Public Health Act, 1875 (38 & 39 Viet. c. 55).
Under s. 106 of the Municipal Corporations Act, 1882 (45 & 46 Viet.
304 LEGISLATIVE METHODS AND FORMS
CH. XII. c. 50), as amended by s. 72 of the Local Government Act, 1888 (51 & 52
Viet. c. 41), a borough council may, with the approval of the Local
Government Board, borrow at interest on the security of any corporate
land or of any land proposed to be purchased by the council under the
former Act, or of the borough fund or borough rate, or of all or any of
those securities, such sums as the council think requisite for the purchase
of land or for the building of any building which the council are by the
Municipal Corporations Act authorized to build.
Under ss. 112 and 113 of the Municipal Corporations Act, 1882, as
amended by s. 72 of the Local Government Act, 1888, where the Local
Government Board approve of a mortgage under the former Act, they
may impose conditions as to repayment of money borrowed and (amongst
other things) require provision to be made for a sinking fund.
The Public Health Acts enable any sanitary authority, and therefore
any district council, to borrow on the credit of the rates, subject to
regulations as to a sinking fund and otherwise, prescribe a form of
mortgage, provide for a register of mortgages, and for the transfer
of mortgages, and enable the mortgagee to obtain the appointment of
a receiver (see 38 & 39 Viet. c. 55, ss. 233-243).
Under s. 52 of the Public Health Act Amendment Act, 1890 (53 & 54
Viet. c. 59), an urban sanitary authority, and therefore now an urban
district council, having power to borrow money may borrow money by
the creation of stock.
Loans for poor law purposes are mainly regulated by s. 2 of the Poor
Law Act, 1889 (52 & 53 Viet. c. 56), as amended by s. i of the Poor Law
Act, 1897 (60 & 61 Viet. c. 29).
Under s. 12 of the Local Government Act, 1894, a parish council may,
for certain purposes, borrow on the security of the poor rate and other
revenue of the council, in like manner as a district council can borrow
under the Public Health Act, but within more narrowly restricted
limits.
Other modes of borrowing are provided by the Companies Clauses Acts
and the Commissioners Clauses Acts.
The annual report of the Local Government Board contains useful
information about local administration and finance.
Forms.
Expenses • The expenses incurred by the council of an urban dis-
°oun HI ^r*c^ [*n ^ne execution of the additional powers conferred on
the council by this Act] shall, subject to the provisions of this
Act, be defrayed in a borough out of the borough fund or rate,
and in any other case out of the district fund and general
district rate, or other fund applicable towards defraying the
expenses of the execution of the Public Health Act, 1875.
This form follows s. 28 of the Local Government Act, 1894, the applica-
tion of which is not general, as in the case of s. 29, but is confined
STATUTORY FORMS 305
to the additional powers conferred by the Act. As s. 29, which CH. XII.
relates to rural district councils, is general in its application, no
special provision will usually be required for the expenses of
those councils.
For other provisions as to the expenses of district councils, see s. 1 1
of the Commons Act, 1899 62 & 63 Viet. c. 30), and s. 9 (3) of
the Small Dwellings Acquisition Act, 1899 (62 & 63 Viet. c. 44).
It must be remembered that the councils of county boroughs are
not district councils.
. — (i) The receipts of a [district council] under this Act Applica-
on account of [ ] shall be applied [in receipts
meeting current expenditure and subject thereto] in discharg- .
ing, either by way of a sinking fund, or otherwise, the debts council].
and liabilities of the council in respect of [
], or in [ ] under this Act, and any
surplus remaining may be applied for any purpose for which
capital money may be applied, and which is approved by the
Local Government Board
[(2) The receipts of the [district council] in respect of
] shall be applied in aid of the expenses
incurred by them in respect of [ ], and so far
as they are not required for the payment of those expenses,
shall be applied in aid of their general [or special] expenses
[as the case may be].
[(3) Provided that all receipts of a district council in
pursuance of this Act, shall, in the case of a rural district, be
credited to or applied for the benefit of the parish for which
the land was purchased.]
This clause is suggested by provisions in s. 10 of the Allotments Act,
1887 (50 & 51 Viet. c. 48). If the expenditure under the Act
is made a charge on the whole of a rural district, and not on
particular parishes, the reference to special expenses and the
proviso should be omitted. The reference to parishes may need
explanation with reference to contributory places within the
meaning of s. 229 of the Public Health Act, 1875. See s. 14 of
the Allotments Act, 1887.
. Any capital money received by a [county council] in Applica-
payment or discharge of purchase money for land sold by ^"j^f
them, or in repayment of an advance made by them, shall be money.
306 LEGISLATIVE METHODS AND FORMS
CH. XII. applied with the sanction of the Local Government Board,
either in repayment of debt or for any other purpose for
which capital money may be applied [under this Act].
See s. 19 (4) of Small Holdings Act, 1892 (55 & 56 Viet. c. 31), s. 6 (5) of
the London Government Act, 1899 (62 & 63 Viet. c. 14), and s. 9 (8) of the
Small Dwellings Acquisition Act, 1899 (62 & 63 Viet. c. 44).
Power of • A county council may borrow money for the purposes
council to °^ ^is Act in accordance with the Local Government Act,
borrow. 1888, or, if the council of a county borough, with the Public
Health Act, 1875 [except that any money so borrowed shall,
notwithstanding anything in either of those Acts, be repaid
within such period not exceeding fifty years, as the council,
with the consent of the Local Government Board, determine
in each case].
See s. 19 of the Small Holdings Act, 1892 (55 & 56 Viet. c. 31). The
words in square brackets would negative the requirement to repay within
thirty years. For a form applying to county, county borough, and district
councils, see s. 29 of the Small Dwellings Acquisition Act, 1899 (62 & 63
Viet. c. 44).
Power of . The council of a borough may borrow for the purposes
council to °f this Act in like manner as they may borrow for the purposes
borrow. of the pubiic Health Act, 1 875, and the provisions of that Act
shall apply accordingly, but the money shall be borrowed on
the security of the borough fund or borough rate.
See s. 6 of the Military Lands Act, 1892 (55 & 56 Viet. c. 43). This form
applies the machinery of the Public Health Act, 1875, but makes the
security that authorized by the Municipal Corporations Act, 1882. In
many cases the borrowing powers given by the latter Act will suffice.
Power of . A district council may for the purposes of this Act
council to borrow money in like manner and subject to the like con-
borrow, ditions as they may borrow for defraying expenses incurred
in the execution of the Public Health Acts, and those Acts
shall apply accordingly.
See 8. it of the Commons Act, 1899 (62 & 63 Viet. c. 30).
Power of . A [ ] may for any of the following
j to purposes, that is to say —
borrow.
STATUTORY FORMS 307
borrow, with the consent of [ CH. XII.
], money in like manner and subject to the
like conditions as a local authority may borrow for defraying
expenses incurred in the execution of the Public Health Acts,
and sections two hundred and thirty-three, two hundred and
thirty-four, and two hundred and thirty-six to two hundred
and thirty-nine of the Public Health Act, 1875, shall apply
accordingly, except that the money shall be borrowed on the
security of and of the whole or part of the
revenues of the
A form like this may occasionally be useful for cases where existing
borrowing powers do not suffice.
. — (i) "Where a local authority fail to execute or enforce Proceed-
any of the provisions of this Act, or of an order of the [Board case of
of Agriculture], the Board may by order empower a person Hf/!^1*
therein named to execute and enforce those provisions, or authority,
to procure the execution and enforcement thereof.
(2) The expenses incurred under any such order or in
respect of any such default by or on behalf of the Board
[including compensation for ], shall
be expenses of the local authority, and the treasurer or other
proper officer of the local authority shall pay the amount
of such expenses to the Board on demand, and in default of
payment a person appointed by the Board to sue in that
behalf, may recover the amount of such expenses, with costs,
from the local authority.
(3) For the purposes of this section an order of the Board
shall be conclusive in respect of any default, amount of
expenses, or other matter therein stated or appearing.
(4) The provisions of this section shall be without prejudice
to the right or power of the Board, or any other authority, or
any person, to take any other proceedings for requiring a local
authority to execute or enforce any of the provisions of this
Act, or of an order of the Board.
This form follows s. 34 of the Diseases of Animal^ Act, 1894 (57 & 58
Viet. c. 57). For other provisions empowering a central authority to take
X 2
308 LEGI'SLATIVE METHODS AND FORMS
CH. XII. proceedings on default of a local authority see ss. 63-65 of the Elementary
Education Act, 1870 (33 & 34 Viet. c. 75) ; ss. 299-301 of the Public
Health Act, 1875 (38 & 39 Viet. c. 55) ; s. 101 of the Public Health
(London) Act, 1891 (54 & 55 Viet. c. 76) ; s. 3 of the Sale of Food and
Drugs Act, 1899 (62 & 63 Viet. c. 51). For proceedings by county council
on default of district council see s. 16 of the Local Government Act, 1894
(56 & 57 Viet. c. 73), of sanitary authority, see s. 45 of the Housing of the
Working Classes Act, 1890 (53 & 54 Viet. c. 70), and s. 100 of the Public
Health (London) Act, 1891 (54 & 55 Viet. c. 76). As to the remedy by
mandamus, see Reg. v. Leicester Union [1899], 2 Q. B. 632.
PROVISIONAL ORDERS AND SCHEMES.
Preliminary Note.
The object of a Provisional Order is to provide a means of obtaining
Parliamentary sanction for the execution of works, or the carrying out of
administrative arrangements, which are incidental to the administration
of an Act, but for which the authority of a special Act would ordinarily
be required. The machinery of Provisional Orders is most frequently
applied for authorizing the acquisition of land by central or local
authorities (see below under 'Acquisition of Land'). But this machinery,
or the similar machinery of a scheme, is also employed in other cases
where the carrying into effect of a public general Act involves inter-
ference with private or public rights. In such cases the central authority
concerned makes inquiries and hears objections, and then schedules the
Provisional Order or scheme, either alone or with other orders or schemes,
to a confirming Bill, and procures the introduction of the confirming
Bill into Parliament. Unless the Bill is opposed the adoption of this
procedure obviates the expenses of appearing before a Parliamentary
Committee, and the payment of the fees which are required in the case
of local and personal Acts. There are also cases in which a local authority
may make an order which requires confirmation by the central authority,
but not by Parliament unless opposed. For a list of Acts under which
Provisional Orders may be made, see May's Parliamentary Practice (tenth
edition), c. xxvi.
Forms.
Confirmu- • — 0) The [Board of Trade] may submit a Bill to
rovf- Parliament for confirming any provisional order made by
«ioiial them in pursuance of this Act, and the order when so con-
Parlia- firmed, with any modifications made therein by Parliament,
shall have full effect, but shall be of no force unless and until
it is so confirmed.
(2) If, while the Bill is pending in either House of Parlia-
ment, a petition is presented against any order proposed to be
STATUTORY FORMS 309
confirmed thereby, the Bill, so far as it relates to the order, CH. xil.
may be referred to a Select Committee, and the petitioner
shall be allowed to appear and oppose it as in the case of
private Bills.
(3) Any Act confirming any provisional order made in
pursuance of this Act may, on the application of
be repealed,
altered, or amended by any subsequent provisional order made
under this Act and confirmed by Parliament.
See Public Health Act, 1875 (38 & 39 Viet. c. 55, s. 297), and Electric
Lighting Act, 1882 (45 & 46 Viet. c. 56, s. 4) ; and for more detailed
procedure see Tramways Act. 1870 (33 & 34 Viet. c. 78, ss. 4, &c.).
. — (i) A scheme under this Act when settled [or ap- Connrma-
proved] by shall be published in the London Gazette, scheme by
and shall not be of any effect unless confirmed as in this ^^^
section mentioned. Order in
(a) Where, within one month after the publication of the
scheme in the London Gazette, a petition against it by any
local authority affected thereby, or by not less than
has been received by \the authority settling
or approving the scheme\ and is not withdrawn, the scheme
shall require the confirmation of Parliament, and \the authority
settling or approving the %cheme\ may, if they think fit, submit
it to Parliament for confirmation ; but otherwise, at any time
after the expiration of the said month, or after the withdrawal
of any petition that has been presented, \the authority settling
or approving the %cheme\ may, if they think fit, submit the
scheme for confirmation, either to Parliament or to His
Majesty in Council, and in the latter case it shall be lawful
for His Majesty to confirm the scheme by Order in Council.
(3) If, while a Bill confirming any scheme under this Act
is pending in either House of Parliament, a petition is pre-
sented against the scheme, the Bill [so far as it relates to
that scheme] may be referred to a Select Committee, and the
petitioner shall be allowed to appear and oppose it as in the
case of private Bills.
310 LEGISLATIVE METHODS AND FORMS
CH. XII. (4) A scheme, when confirmed by Parliament or by Order
in Council, shall have full operation, with, in the former case,
such modifications, if any, as are made therein by Parliament,
as if the scheme were part of this Act.
See Municipal Corporations Act, 1882 (45 & 46 Viet. c. 50, s. 213) ;
Endowed Schools Act, 1873 (36 & 37 Viet. c. 87, ss. 13-15) ; Fisheries
Act, 1877 (40 & 41 Viet. c. 42, s. 7) ; Divided Parishes, &c., Act, 1876
(39 & 40 Viet. c. 61, ss. i, 2) ; Labourers (Ireland) Act, 1883 (46 & 47
Viet. c. 60, s. 8) ; Shannon Act, 1885 (48 & 49 Viet. c. 41, s. 4) ; Educa-
tional Endowments (Ireland) Act, 1885 (48 & 49 Viet. c. 78, s. 4) ; Local
Government Act, 1888 (51 & 52 Viet. c. 41, s. 57) ; Housing of the Work-
ing Classes Act, 1890 (53 & 54 Viet. c. 70, ss. 7-9) ; London Government
Act, 1899 (62 & 63 Viet. c. 14, s. 1 6).
ORDERS IN COUNCIL, RULES, REGULATIONS, AND BY-LAWS.
Preliminary Note.
It is often necessary to supplement the general provisions of an Act of
Parliament by delegating to some executive authority, central or local,
the power of making rules or regulations on matters of detail. The
extent to which such a power should be delegated always requires careful
consideration'. The power should not extend to matters of principle on
which a decision of Parliament ought to be taken. In particular it
should not authorize the imposition of penalties except such penalties
as are usually attached to the breach of by-laws. In some cases the
control of Parliament should be reserved by requiring drafts of the pro-
posed rules or regulations to be laid before each House for a specified
time, or by providing that they are not to come into operation until they
have been so laid. In some cases also provision should be made for
submitting the drafts to criticism by local authorities and classes of
persons interested. Care should always be taken to see that provision
exists or is made for the due promulgation of such rules and regulations,
for enabling copies to be easily obtained, and for facilitating their proof
in legal proceedings. The sections of the Public Health Act, 1875, relating
to by-laws (38 & 39 Viet. c. 55, ss. 182-186), make provision for all these
points, and may be adopted by reference or otherwise where the power of
making by-laws is given to a local authority.
The statutory rules and orders of each year, except those which are
merely local and temporary, are now published in annual volumes by
the Stationery Office, and an index to the statutory rules and orders for
the time being in force is periodically brought out. The Stationery Office
has also brought out, under the title of the Statutory Rules and Orders
Revised, a complete edition of the statutory rules and orders made before
1890 and still in force.
S. i of the Rules Publication Act, 1893 (56 & 57 Viet. c. 66), printed in
Appendix III, requires previous publication for forty days of the draft
1 See Ch. III.
STATUTORY FORMS 311
of certain proposed statutory rules which have to be laid before Parlia- CH XII.
ment, but this requirement is subject to numerous exceptions (see sub-
section (4)).
S. 3 of the same Act provides for the printing, numbering, and sale of
statutory rules, and enacts that 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, is to be a sufficient
compliance with the requirement. It is therefore no longer proper to
require that statutory rules should be published in the Gazette. Notification
will be sufficient.
The intention of Parliament in requiring that rules, orders, or schemes,
or their drafts, should be laid on the table of the House or of both Houses,
for a certain time before taking effect, is to provide a reasonable time for
Parliamentary criticism. This intention was often defeated by the
practice of laying drafts on the table in dummy. Now, however, the
House of Lords has, by an Order of March 29, 1900, directed ' that where
by statute any scheme before it can be sanctioned by Order in Council is
ordered to lie on the table for a prescribed number of days, it shall be
laid on the table in a printed form and not otherwise ; and thereupon
shall forthwith be circulated to the members of this House.' And the
Speaker of the House of Commons has issued an Order, dated April 13.
1900, that ' when a statute provides that any document shall lie on the
table of the House for a certain number of days, it shall not be deemed
to have been laid on the table until a complete copy thereof has been
laid thereon."
Formt.
. — (i) His Majesty the King in Council may make Power for
Orders for the purposes of this Act, and revoke or vary any Majesty
Order so made : and every Order so made shall, while in *° make
J . Orders in
force, have the same effect as if enacted in this Act. Council.
(2) Every Order in Council made in pursuance of this Act [See 54 &
shall be laid before both Houses of Parliament as soon as may cfs/s. r 1
be after it is made, [and shall be printed by the King's
printer, and published under the" authority of His Majesty's
Stationery Office, and notified in the London Gazette].
See the Mail Ships Act, 1891 (54 & 55 Viet. c. 31, s. i).
Orders in Council made under the powers given by an Act would
usually be made at the instance of the central authority responsible for
the execution of the Act.
The implied power of revocation and amendment given by s. 32 3) of
the Interpretation Act, 1889, does not apply to Orders in Council, though
it would probably apply to rules and regulations made by order of the
King in Council. But it may be desirable to remove any doubt on this
point (see 55 & 56 Viet. c. 23, s. 21 (i)).
312
LEGISLATIVE METHODS AND FORMS
CH. XII. Documents purporting to be printed by the Government Printer (which.
as defined by 31 & 32 Viet. c. 37, s. 5, includes the King's Printer) or
under the superintendence or authority of His Majesty's Stationery
Office, are made receivable in evidence by the Documentary Evidence Act,
1868 (31 & 32 Viet. c. 37), as supplemented by s. 2 of the Documentary
Evidence Act, 1882 (45 & 46 Viet. c. 9).
The directions as to printing, publication, and notification are probably
unnecessary. If the Order is of the nature of a statutory rule it will fall
within the provisions of the Rules Publication Act, 1893.
. — (i) His Majesty the King in Council may make
Power for
King in
Council regulations with respect to all or any of the following
to make i
regula- matters; namely, —
lions. (a)
Draft of
Order to
be laid
before
Parlia-
ment.
(*)
(2) All regulations purporting to be made in pursuance of
this section may be made either generally or with reference to
any particular case or class of cases, and shall be printed by
the King's Printer, and published under the authority of
His Majesty's Stationery Office, and laid before both Houses
of Parliament, [and be deemed to be within the powers of
this Act,] and shall while in force have effect as if enacted
in this Act.
See the Foreign Marriage Act, 1892 (55 & 56 Viet. c. 23, s. 21).
The words 'and be deemed,' &c., should not, as a rule, be inserted.
It may be doubted whether the words ' shall have effect as if enacted
in this Act ' are more than declaratory. But importance seems to have
been attached to them by the House of Lords in the case of Institute of
Patent Agents v. Lockicood (1894), L. R. App. Cas., 347.
. Before any such order is made, the draft thereof shall
be laid before each House of Parliament for a period of not
less than thirty days during the session of Parliament, and if
either House before the expiration of that period presents an
address to His Majesty against the draft or any part thereof,
no further proceedings shall be taken thereon, but without
prejudice to the making of any new draft order.
See 52 & 53 Viet. c. 30, s. 4 ; 61 & 62 Viet. c. 44, s. 5 ; 62 & 63 Viet. c. 14,
s. 15. In the case of Orders in Council it is not usual to submit the order
after it is made to any veto by Parliament, but it may be provided that
the order shall be made on the recommendation of a Secretary of State,
STATUTORY FORMS 313
or shall confirm a scheme, and that the recommendation or scheme, or CH. XII.
a draft of the order, or the document which is to be carried into effect by
the Order in Council, shall be laid before Parliament for a certain period
before it is submitted to His Majesty in Council.
Under the Standing Orders a discussion on a draft order or rule may
be taken after 12 o'clock.
. A Secretary of State [the Lord Chancellor] may [with Power to
the concurrence of the Treasury as to fees] make rules for ^,1^
carrying into effect the objects of this Act [and in particular
for all or any of the following purposes ; (that is to say),
w
<*)
<<)
to]
All rules made under this section [Act] shall be laid before Rules to
both Houses of Parliament as soon as may be after they are before
made, and shall be printed by the King's Printer and Parha-
ment.
published under the authority of His Majesty's Stationery
Office, and shall be judicially noticed, and shall have effect as
if enacted by this Act.
Under s. 32 of the Interpretation Act, 1889, a power to make rules,
regulations or by-laws, implies a power to rescind, revoke, amend or
vary them.
. Every rule under this Act shall be laid before each Rules to
House of Parliament forthwith, and if an address is pre- to <jjls_jec
sented to His Maiesty by either House of Parliament within allowance
J J J by Parha-
the next subsequent forty days on which that House has sat ment.
next after any such rule is laid before it, praying that the
rule may be annulled, His Majesty in Council may annul
the rule, and it shall thenceforth be void, but without
prejudice to the validity of anything done thereunder.
This is substantially the form adopted in the Judicature Acts with
respect to rules of court (38 & 39 Viet. c. 77, s. 25), and in the Tithe Act,
1891 (54 & 55 Viet. c. 8, s. 3). It brings the rules into operation at once.
It will be observed that this form gives each House of Parliament a
power of disallowance. The limit of time adopted in this form excludes
any days on which the House has not actually sat, and this may be
inconvenient, especially in the case of the House of Lords.
314
LEGISLATIVE METHODS AND FORMS
CH. XII.
Draft of
before
Parlia-
ment.
Power of
authority
bVhvws
38 & 39
Viet c ^^
. Before any rules are made under this Act a draft
thereof shall be laid before each House of Parliament for
a period of not less than thirty days during- the session of
Parliament, and if either House before the expiration of that
period presents an address to His Majesty against the draft
or any part thereof, no further proceedings shall be taken
thereon, but without prejudice to the making of any new
draft rules.
See 52 £ 53 Viet. c. 30, s. 4 ; 61 & 62 Viet. c. 41, s. 2. The adoption of
this form may materially delay the coming into operation of the rules.
For a form involving a shorter period of delay, see 59 & 60 Viet. c. 16, s. 6 (3).
If previous publication of the draft rules is required it will be more
convenient to apply s. i of the Rules Publication Act, 1893 (56 & 57 Viet.
c. 66), unless that section already applies.
. The provisions with respect to by-laws contained in
sections one hundred and eighty-two to one hundred and
eighty-8^ °f the Public Health Act, 1875, and any enact-
ment amending or extending those sections, shall apply to
all by-laws made by a local authority under this Act.
See 53 & 54 Viet. c. 59, s. 9 ; 62 & 63 Viet. c. 30, s. 10. This form applies
by reference the provisions of the Public Health Act, 1875 (38 & 39 Viet.
c- 55)> with respect to by-laws, and may be adopted in most cases where
the power of making by-laws is given to local authorities. For another
form, see 61 & 62 Viet. c. 29, s. 6. As to the reasonableness of by-laws,
see Kruse v. Johnson [1898] a Q. B. 91 ; White v. Morley [1899] 2 Q. B. 34 ;
Thomas v. Sutters [1900] i Ch. 10.
The council of every municipal borough have power under s. 23 of the
Municipal Corporations Act, 1882 (45 & 46 Viet. c. 50), to make by-laws
' for the good rule and government 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 required 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 other
matters contained in s. 3 of the Municipal Corporations Act, 1882.
Under s. 16 of the Local Government Act, 1888 (51 & 52 Viet. c. 41),
a county council have the same power of making by-laws in relation to
their county or to any specified part or parts thereof as the council of
a borough have of making by-laws in relation to their borough under
s. 23 of the Municipal Corporations Act, 1882 ; and s. 187 of the Public
Health Act, 1875, is to apply to such by-laws. But county by-laws are
not to be in force within a borough. The councils of metropolitan boroughs
STATUTORY FORMS 315
have power to make by-laws under s. 5 (a) of the London Government CH. XII.
Act, 1899 (62 & 63 Viet. c. 14), and Part II of the Second Schedule to that
Act. They also have power as sanitary authorities to make by-laws
under s. 114 of the Public Health (London) Act, 1891 (54 & 55 Viet,
c. 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 statutory provisions under 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-laws 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 Act,] and those sections shall apply in like manner as
if the [county council] were a local authority within the
meaning of that Act.
See the Public Health (London) Act, 1891 (54 & 55 Viet. 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,
W
<*)
316 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 offence, 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 con-
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 sufficient.
(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, ss. 34-38% the
Municipal Corporations Act, 1882 (45 & 46 Viet. c. 50, ss. 23, 24), and
the Public Health Acts Amendment Act, 1890 (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.
ACQUISITION OF LAXD.
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 lands 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 L.
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 Viet. c. 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 was applied by
s. 9 (10) of the Local Government Act, 1894 (56 & 57 Viet. c. 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 Viet. c. 70). And under s. 20 of the Military Lands
Act, 1892 (55 & 56 Viet. 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
Viet. c. 48*1.
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 compulsory 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., a. 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
1 See Clifford's History of Private Bill Legislation, 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 a 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 Viet. c. 55, ss. 175, 176).
In some cases public departments have been given power to acquire
land compulsorily, 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 Viet. c. ao\ the
Metropolitan Police Act, 1886 (49 Viet. c. 22), and the Military Lands
Act, 1892 (55 & 56 Viet. c. 43, s. 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 : —
(1) 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 Viet. 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 Viet. 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, 1882 (45 & 46 Viet,
c. 50), as amended by s. 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 be 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 Viet. c. 126, s. 44) ; the power to take land for
enlarging a workhouse under the Metropolitan Poor Act, 1867 (30 & 31
Viet. c. 6, ss. 52-54), and the powers exerciseable by London vestries
and district boards (now metropolitan borough councils) under Michael-
angelo Taylor's Act of 1817 (57 Geo. III. c. xxix, s. 80), as extended by
the Metropolis Management Act, 1862 (25 & 26 Viet. c. 102, ss. 72, 73).
Exceptional powers of taking land compulsorily are given by the
Admiralty (Signal Stations) Act, 1815 (55 Geo. III. c. 128.1, by the Defence
Act, 1842 (5 & 6 Viet. c. 94, ss. 10, 18, 19), and by the Coast Guard Service
Act, 1856 (19 & 20 Viet. c. 83).
Under the Labourers (Ireland) Act, 1885 (48 & 49 Viet. c. 77), as
amended by s. 12 of the Act of 1886 (49 & 50 Viet. 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 as needlessly cumbrous, dilatory, and expensive, and
by s. 9 of the Local Government Act, 1894 (56 & 57 Viet. 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 Viet. 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, n, 12).
Powers analogous to those of taking land are those of using roads for
tramway purposes. See the Tramways Act of 1870 (33 & 34 Viet. c. 78),
and the Military Tramways Act, 1887 (50 & 51 Viet. c. 65).
Forms.
Power to . — (a) A [local authority] may [with the consent of the
land iaS< Local Government Board] purchase such land as they may
require for the execution of their duties.
STATUTORY FORMS 321
(t>) 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 & 52 Viet. c. 41, s. 65.
(1) For the purpose of the purchase, taking on lease, or Machiu-
crv for
exchange of lands under this Act, sections one hundred and purchase
seventy-six, one hundred and seventy-eight, two hundred and ° £n „
ninety-seven, and two hundred and ninety-eight of the Public Vict- c- 55-
Health Act, 1875, shall apply as if they were herein re-enacted
and in terms made applicable to the purposes of this Act.
(2) Sub-sections one and five of section eighty-seven of the 5* & 52
J 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 Viet. c. 41, s. 65 ; 62 & 63 Viet. 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 confirmed 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 Viet. c. 43, as amended by 63 & 64
Viet. c. 56, s. 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
by 48 & 49 Viet. c. 77. s. 19 amending 46 & 47 Viet. c. 60, s. 7, and by 56
& 57 Viet. c. 41, s. i amending 55 & 56 Viet. c. 42.
The Light Railways Act, 1896 (59 & 60 Viet 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 seventy-
eight of the Public Health Act, 1875, shall apply as if the
] authority were referred to therein.
See Small Holdings Act, 1892, 55 & 56 Viet. c. 31, s. 3. — This clause
gives power to acquire land by agreement only, and incorporates the
provisions of the Lands Clauses Acts with respect to persons under
disability, &c.
LEGAL PROCEEDINGS.
Preliminary Note.
The courts to which it is ordinarily necessary to refer in Acts of
Parliament are —
For civil proceedings, the High Court and county courts ;
For criminal proceedings, courts of assize (which are denned by s. 13 (4)
of the Interpretation Act, 1889, to include the Central Criminal Court,
and courts of oyer and terminer, and gaol delivery), courts of quarter
sessions (see s. 13 (14) of the Interpretation Act), and courts of
summary jurisdiction, in other words petty sessions and stipendiary
magistrates' courts, as to which see s. 13 (n) of the Interpretation Act.
It is also sometimes necessary to utilize the civil jurisdiction which
before the establishment of county courts was extensively exercised by
justices of the peace, and which is now regulated by ss. 6 and 35 of the
Summary Jurisdiction Act, 1879 (42 & 43 Viet. c. 49).
Where the penalty imposed is a small fine, or a short term of imprison-
ment, the jurisdiction is usually given to courts of summary jurisdiction.
For this purpose it is sufficient to use the expression ' shall be liable on
summary conviction.' See 42 & 43 Viet. c. 49, s. 51. If it is necessary
to refer to a court of summary jurisdiction it must be remembered that
this expression, though defined for England and Ireland by s. 13 of the
Interpretation Act, 1889, is not so defined for Scotland, and will therefore
require a special definition if the Act extends to Scotland. See note on
s. 14 (n) of Interpretation Act below.
The procedure in cases before courts of summary jurisdiction is regu-
lated by the Summary Jurisdiction Acts, of which the most important
are, as to England, the Summary Jurisdiction Act, 1848 (n & 12 Viet,
c. 43), and the Summary Jurisdiction Act, 1879 (42 & 43 Viet. c. 49), see
*• T3 (?) of the Interpretation Act, 1889.
The scale of imprisonment for non-payment of a fine is regulated by
s. 5 of the Summary Jurisdiction Act, 1879.
Subject to any special directions in the Act under which a fine is
imposed, a fine recovered before a court of summary jurisdiction is,
if recovered before county justices, paid to the county treasurer, and if
recovered before borough justices, paid to the borough treasurer, and
applied in aid of the borough or county fund, as the case may be (see, as
to counties, n & 12 Viet. c. 43, s. 31 ; and as to boroughs, 45 & 46 Viet,
c. 50, s. 221). Justices' clerks have to account for fines recovered (see
11 & 12 Viet. c. 43, s. 31, and 40 & 41 Viet. c. 43, s. 6).
STATUTORY FORMS 323
Many statutes contain special provisions as to the application of fines. c^
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 Viet. c. 55 (Public Health Act, 1875). s. 254). Sometimes also
some part of the fine is allowed to be paid as compensation to the person
aggrieved, as in the case of fines under the Merchant Shipping Acts. 1894
(57 & 58 Vict c- 6°i s- 699 )•
Fines in respect of matters administered by a central department ar«
usually required to be paid into the Exchequer (see, e. g.. s. 699 of the
Merchant Shipping Act, 1894 (57 & 58 Viet. c. 6o\ 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., s. 254
of the Public Health Act, 1875. 38 & 39 Viet. c. 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 Viet. c. 20, and
ss. 58, 59 of the Cemeteries Clauses Act, 1847, I0 *• IT Viet. c. 65).
Under s. 17 of the Summary Jurisdiction Act, 1879. a person charged
before a court of summary jurisdiction with 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
Summary Jurisdiction Act, 1879. Under 20 & 21 Viet. 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 Viet. 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, s. 23, 14 & 15 Viet. c. 55,
the Consolidation Acts of 1861, &c.). It is applied by s. 28 of the Summary
Jurisdiction Act, 1879 (42 & 43 Viet. 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 Viet. c. 23, s. 3).
Where a bill of indictment is preferred under the Vexatious Indict-
ments Act, 1859 (22 & 23 Viet. 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. 18 of the Criminal Law Amendment Act, 1885 (48 & 49 Viet. c. 69) ;
s. so of the Prevention of Cruelty to Children Act, 1894 (57 & 58 Viet.
c. 41) ; and s. i of the Inebriates Act, 1899 (62 & 63 Viet. c. 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 —
(«) 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
{6) 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 s. 12 of the Post Office (Protection) Act, 1884 (47 & 48 Viet. c. 76).
But this clause will be unnecessary unless the Act extends beyond the
United Kingdom.
. — (i) 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 like
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 & 42 Viet,
c. 16) ; also s. 39 of the Elementary Education Act, 1876 (39 & 40 Viet,
c. 79), s. 6 of the Irish Education Act, 1892 (55 & 56 Viet. c. 42), s. 87 of
the Explosives Act, 1875 (38 & 39 Viet. c. 17), s. 5 of the Margarine Act,
1887 (50 & 51 Viet. c. 29), s. 12 of the Truck Amendment Act, 1887 (50 & 51
Viet. c. 46, s. 12), and s. 13 of the Locomotives Act, 1898 (61 & 62 Viet.
e. 29). For clause exempting from penalty, on proof that due care has
been taken, see also s. 6 of the Sale of Food and Drugs Act, 1875 (38 & 39
Viet. c. 63), and s. 6 of the Merchandise Marks Act, 1887 (50 & 51 Viet.
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 ^^
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 Viet. c. 22).
. Where any person is guilty of any offence which under Lmprison-
this Act is punishable by a fine, and which, in the opinion wiifui act
of the court that tries the case, was reasonably calculated to or ne?lect
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
ing life or ], 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 imprisonment, with or with-
out hard labour, for a period not exceeding six months.
See s. 79 of Explosives. Act, 1875 (38 & 39 Viet. c. 17) ; and s. 17 of the
Sale of Food and Drugs Act, 1899 (62 & 63 Viet. c. 51).
FORM, SERVICE, INSPECTION, AND EVIDENCE OP
DOCUMENTS.
Forms.
Form of • All notices and orders under this Act must be in
notices, writing; and, where any notice, order, or document under
OvOi
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 Viet. c. 76, s. 127. The provision as to authentication is
often unnecessary.
Service of (i) Any notice, order, or other document required or
notues, 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
(V) 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 ownei; 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.
(2) Any notice, order, 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
urban 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 s. 128 of the Public Health (London) Act, 1891 (54 & 55 Viet. c. 76;.
As to service of documents by post, see s. 26 of Interpretation Act,
1889. The provisions of the Summary Jurisdiction Acts as to service
of summons should be borne in mind. See R. 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 ment9-
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].
(2) 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
(6) 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 a>.so 33 & 34 Viet. c. 75, s. 87, and s. 58 (4), (5), of Local Government
Act, 1894.
328 LEGISLATIVE METHODS AND FORMS
CH. XII. . — (i) Any instrument which is required to be executed
Execu- ky the [Postmaster- General], or to which he is a party, may
tion of be executed by any of the [secretaries of the Post Office] in
mentaby the name of the [Postmaster-General], and, if so executed,
depart- shall be deemed to have been executed by the [Postmaster-
ment. General], and shall have effect accordingly.
(2) 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 Viet. c. 76, s. 15) ; Board
of Agriculture Act, 1889 (52 & 53 Viet. c. 30, s. 7) ; Board of Education
Act, 1899 (62 & 63 Viet. c. 33, s. 7).
Evidence . A register purporting to be kept in pursuance of this
register. 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 Viet. c. 99, s. 14, it is provided 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.
Gazette . The notification in the London Gazette of any order
evidence, 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 Viet. c. 37),
amended by the Board of Agriculture Act, 1889 (52 & 53 Viet. c. 30),
and the Documentary Evidence Act, 1895 (58 & 59 Viet. c. 9) provides for
evidence of the contents of orders made by certain Government depart-
ments, but where subsequent conditions are required before the order
comes into operation, e. g., the laying before Parliament or otherwise,
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,
certified to be a true copy by a person purporting to be the
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 : —
(1) 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 [authority
under Acf\ ;
(2) Any copy of an order certified to be a true copy by the
[clerk] of the [authority], or by any other person
appointed by the [authority] either in addition to or
in exclusion of the [clerk] to certify such orders.
See Medical Act, 1886 (49 & 50 Viet. c. 48, s. 23). It is, strictly
speaking, unnecessary to enact that copies purporting to be printed by
the King's Printer shall be admissible in evidence. See 31 & 32 Viet.
c- 37 5 45 Viet. c. 9.
«
COMPUTATION OF TIME.
Form*.
. In computing time for the purposes of this Act, unless Computa-
the contrary intention appears, — time°
(1) 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 ;
(2) 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 Viet. c. 74, s. 5, and 45 & 46 Viet. c. 50, s. 230 ; 56 & 57 Viet.
c- 73> s- 73 > 61 & 62 Viet. c. 41, s. 12. It must be borne in mind that
the days observed in Scotland and Ireland as holidays differ from those
observed 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 Viet. 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
SAVING CLAUSES.
Preliminary Note.
Saving clauses are usually of a special character. Ss. 122-5 of the
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 continue in force except so far as they are
inconsistent with the express provisions of this Act.
See s. 46 of the Partnership Act, 1890 (53 & 54 Viet. c. 39). This form
of saving is specially appropriate to a codifying Act. For a similar form,
see Bills of Exchange Act (45 & 46 Viet. c. 61, s. 97).
Powers of A. — All 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 Viet. c. 55, s. 341. For a general provision as to offences
under two or more laws, see a. 33 of the Interpretation Act, 1889, in
Appendix II below.
B. — Where this Act is put in force in any district in
and
common
law.
STATUTORY FORMS 331
which there is a local Act for the like purpose as this Act, CH. XII.
the enactments of the local Act so far as they relate to that Re al of
purpose shall cease to be in operation. local Acts.
See s. 14 of the Infectious Disease (Notification) Act, 1889 (52 & 53 Viet,
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 repeal local Acts by Provisional Order
(see s. 103 of the Explosives Act, 1875 (38 & 39 Viet. c. 17)).
. Nothing in this Act shall be in derogation of any Saving for
power otherwise vested in [the Commissioners, &c.], and [the [charity
Commissioners. &c.l may exercise for the purpose of this Act Commis-
J J sioners,
all powers otherwise vested in them in relation to [charities, &c.]
&c.] respectively.
See 53 & 54 Vict- c- 7°> *• 9X> &n<i 54 & 55 Viet. c. 76, s. 138.
. If the court before whom a person is charged with Saving for
an offence punishable by virtue of this Act thinks that proceed
proceedings ought to be taken against him for the offence "the/law
under any other Act, or otherwise, the court may adjourn the
case 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 Viet. c. 87, s. 102 ; 52 & 53 Viet. c. ai, 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°n
interrogatory in any civil proceeding, but no such discovery discover 7
or answer shall be admissible in evidence against that person
in any criminal proceeding under this Act.
See 38 & 39 Viet. 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 & 52 Viet. c. 25), or
a temporary commission with judicial powers, such as the Belfast
Commission (50 Viet. c. 4), the Commission to inquire into the Metro-
politan Board of Works (51 Viet. c. 6) or the Parnell Commission (51 & 52
Viet. c. 35), or a body having power to frame schemes or make statutes,
such as the Commissioners for the Universities of Oxford, Cambridge,
and London (40 & 41 Viet. c. 48 ; 61 & 62 Viet. c. 62), the Public School
Commissioners (31 & 32 Viet. c. 118), or the various Boundary Commis-
sioners (see, e.g., 50 & 51 Viet. c. 61), or a consultative committee, such
as that appointed under the Merchant Shipping (Life Saving Appliances)
Act, 1888 (51 & 52 Viet. c. 24), or an administrative body, such as the
Inspection Committee appointed under the Savings Banks Act, 1891
(54 & 55 Viet. 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.
Forms.
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 effectual conducting of this
inquiry cannot be conferred without the authority of Parlia-
ment :
Be it therefore enacted, &c. :
Powers of i. — (i) The Commissioners shall have all such powers,
sioners rights, and privileges as are vested in the High Court, or
(judicial). |n anv -judge thereof, on the occasion of any action, in respect
of the following matters : —
STATUTORY FORMS 333
(1) the enforcing the attendance of witnesses and examining CH. XII.
them on oath, affirmation, or otherwise ;
(ii) the compelling the production of documents ; and
(iii) the punishing persons guilty of contempt ;
and a summons signed by one or more of the Commissioners
may be substituted for, and shall be equivalent to, any formal
process capable of being issued in any action for enforcing
the attendance of witnesses or compelling the production of
documents.
(2) 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.
2. Every person who on examination on oath or affirmation Penalty
before the Commissioners wilfully gives false evidence shall be ^e^ring.
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-
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
disclosure as aforesaid.
(3) 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 Viet. 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 Royal Commission has no power to require the
attendance of witnesses or the production of documents.
APPENDIX I
REPEAL TABLES AND SCHEDULES
PART I.
COMPARISON OF ENACTMENTS REPEALED WITH BILL1.
Enactments repealed.
Subject-matter.
Remarks.
20 & 21 Viet. C. 2OI, S. I
„ „ S. 2
» ?> s- 3
Short title .
Definitions .
[ ]
Omitted as unnecessary.
Reproduced by cl. 28,
Virtually repealed by 56
& 57 Viet. 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.
Enactments.
Reasons for Omission from Consolidation BUI.
PART IL
ENACTMENTS REPEALED2.
Session and Chapter.
Title or Short Title.
Extent of Repeal.
1 This table is useful in the case 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 IL
APPENDIX II
INTERPRETATION ACT, 1889
(52 & 53 Vict- c- 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 1889.
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.
Re-enactment of existing Rules.
Rules as 1. — (i) In this Act and in every Act passed after the year
anfen * one thousand eight hundred and fifty, whether before or after
number. fae commencement of this Act, unless the contrary intention
appears, —
(a) words importing the masculine gender shall include
females ; and
(lj) words in the singular shall include the plural, and words
in the plural shall include the singular.
INTERPRETATION ACT, 1 889 337
(2) The same rules shall be observed in the construction of APP. II.
every enactment relating1 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-section (i) merely re-enacts a portion of s. 3 of Brougham's Act
(13 & 14 Viet. c. 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) (a) on the electoral rights of women, see Charlton v. Ling (1868),
L. R 4 C. P. 374, and Beresford-Hope v. Lady Sandhurst (1889% 23 Q. B. D. 79.
Sub-section (a) re-enacts provisions contained in an English Act of 1827
(7 & 8 Geo. IV. c. 28, s. 14) and an Irish Act of 1828 (9 Geo. IV. c. 54,
a- 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
the commencement of this Act, the expression ' person ' shall, corporate.
unless the contrary intention appears, include a body corporate.
(2) 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 wont^n0
of this Act, the following expressions shall, unless the contrary A5ts since
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 ' affidavit ' shall, in the case of
persons for the time being allowed by law to affirm or
338
INTERPRETATION ACT, 1889
AFP. II.
Meaning
of
' county '
in past
Acts.
Meaning
of
' parish.'
Meaning
of
' county
court.'
51 &5a
Viet. o. 43.
declare instead of swearing, include affirmation and
declaration, and the expression ' swear ' shall, in the
like case, include affirm and declare.
This section re-enacts the general definitions in Brougham's Act, with
the exception of the definition of 'county,' which is dealt with by s. 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 J 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 Viet. 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 & 52 Viet, c 43, s. 187), which was itself re-enacted from the County
Courts Act of 1846.
INTERPRETATION ACT, IbttQ 339
7. In every Act relating to Scotland, whether passed before APP. II.
or after the commencement of this Act, unless the contrary Meaning
intention appears — °f
' sheriff
The expression ' sheriff clerk ' shall include steward clerk ; clerk.' &e.
The expressions ' shire/ ' sheriffdom/ and ' county ' shall ^cts J
include any stewartry in Scotland.
This section re-enacts a precision of a Scotch Act of 1837 (7 Will IY
and i Viet. 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. •
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 -
» -r» T ment or
same session of Parliament. repeal of
This section is re-enacted from Brougham's Act.
same
11. — (i) Where an Act passed after the year one thousand session-
' J Effect of
eight hundred and fifty, whether before or after the com- repeal
mencement of this Act, repeals a repealing enactment, it
shall not be construed as reviving any enactment previously smce
repealed, unless words are added reviving that enactment.
(2) 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.
12. In this Act, and in every other Act whether passed Official
before or after the commencement of this Act, the following
z 2
340 INTERPRETATION ACT, l!
APP. II. expressions shall, unless the contrary intention appears, have
, the meanings hereby respectively assigned to them, namely : —
future (j) The expression fthe 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.
(2) The expression ' the Treasury' shall mean the Lord High
Treasurer for the" time beino; or the Commissioners for the
O
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 Viet. 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 Viet. c. 33, B. 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, 1809 341
Lords of the Committee for the time being of the Privy APP. IL
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 Viet. c. 49, s. 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.
(n) The expression ' Postmaster-General ' shall mean Her
Majesty's Postmaster- General for the time being.
(12) The expression ' Commissioners of Woods' or 'Com-
missioners of Woods and Forests J 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 2 & 3
Will. IV. c. i, they were reconstituted as the Commissioners of His
Majesty's Woods, Forests, Land Eevenues, 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 Viet. c. 42 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, 1
APP. II. (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.
(20) 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 Fees Act, 1891 (54 & 55 Viet. c. 36).
It will be observed that the definitions in this section are retrospective
as well as prospective.
Judicial
defini-
tions in
past and
future
Acts.
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 : —
(1) 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 case 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 case may be.
(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 A.FP. 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
/T i n Vict. c. 57.
(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 & ia
1848, and the Summary Jurisdiction Act, 1879, and any Act, ^V^43
past or future, amending those Acts or either of them. Vict- c 49-
(8) The expression 'the Summary Jurisdiction (Scotland)
Acts ' shall mean the Summary Jurisdiction (Scotland) Acts, 27 & 28
1864 and 1 88 1, and any Act, past or future, amending those ^V^53
Acts or either of them. Vict- c- 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
1851, and any Act, past or fuhire, 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, I
APP. II. when used in relation to Ireland the Summary Jurisdiction
(Ireland) Acts.
(u) 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.
(12) 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. IL
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 commencement of this Meaning
Act, unless the contrary intention appears, the expression Of C0urt.'
'rules 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 denned 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 Borough
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, 1882, 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.
(2) The expression ' municipal borough' shall mean, as
respects Ireland, any place for the time 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 c 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' when 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, 7882.
Meaning 16. Jn 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 : —
(1) 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, 1854, 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.
(2) The expression fpoor law union' shall, as respects
INTERPRETATION ACT, 1889 347
England and Wales, mean any parish or union of parishes APP. IT.
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 e poor law union ' shall, as 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
assigned to them, namely : —
(1) 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.
(2) 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,
348
INTERPRETATION ACT, I
defini-
tions in
future
Acts.
APP. IL unless the contrary intention appears, have the meanings
colonial nere^y respectively assigned to them, namely : —
(1) The expression ' British Islands ' shall mean the United
Kingdom, the Channel Islands, and the Isle of Man.
(2) The 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 l 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, 1889 349
Parliament or Her Majesty the Queen in Council, competent AFP. IL
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 Viet. c. 6, s. 4.)
19. In this Act and in every Act passed after the com- Meaning
of ^ "Dcr-
mencement of this Act, the expression ' person ' shall, unless f^n fj,,
the contrary intention appears, include any body of persons ^*Jir<
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
referring to writing shall, unless the contrary intention 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 Statutory
' statutory declaration ' shall, unless the contrary intention d.ecla)ra-
appears, mean a declaration made by virtue of the Statutory past and
future
Declarations Act, 1835. Acts.
This section is retrospective. Will IV
c 62
22. In this Act and in every Act passed after the com- "
• . Meaning
mencement of this Act, the expression ' financial year * shall, of ' finan-
unless the contrary intention appears, mean as respects any in future
matters relating to the Consolidated Fund or moneys pro- Acts"
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
35°
INTERPRETATION ACT, 1889
APP. II. Act, 1888 (51 & 52 Viet. c. 41), the year ending the thirty-first day of
March is made the 'local financial year' for the accounts of local
authorities.
Definition
of Lands
Clauses
Acts.
8 & 9 Viet.
c. 18.
23 & 24
Vict.c.io6.
32 & 33
Viet, c. 1 8.
46 & 47
Viet. c. 15.
8 & 9 Viet.
c. 19.
23 & 24
Viet, c.i 06.
8 & 9 Viet.
c. 18.
23 & 24
Viet. c. 97.
14 & 15
Viet. c. 70.
27 & 28
Viet. c. 71.
31 & 32
Viet. c. 70.
Meaning
Valuation
Acts.
Meaning
of ' Ord-
nance
map.'
23. In any Act passed after the commencement of this
Act, unless the contrary intention appears, —
The expression ' Lands Clauses Acts ' shall mean —
(a) as respects England and Wales, the Lands Clauses
Consolidation Act, 1845, the Lands Clauses Consolida-
tion Acts Amendment Act, 1860, 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
(£) as respects Scotland, the Lands Clauses Consolidation
(Scotland) Act, 1845, and the Lands Clauses Con-
solidation Acts Amendment Act, 1860, and any Acts
for the time being in force amending the same ; and
(c) as respects Ireland, the Lands Clauses Consolidation
Act, 1845, the Lands Clauses Consolidation Acts
Amendment Act, 1860, the Railways Act (Ireland),
1851, the Railways Act (Ireland), 1860, 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.
24. In any Act passed before or after the commencement
of this Act, the expression ' Irish Valuation Acts ' shall mean
the Acts relating to the valuation of rateable property in
Ireland.
This section is retrospective.
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, 1825 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, by post,
whether the expression ' serve,' or the expression ' give ' or
fsend/ 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 by 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 Viet. 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, trial*
as respects England and Wales, committed to prison with the
view of being tried before a judge and jury, whether the
person is committed 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
mencement of this Act, unless the contrary intention 'felony.' '
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 ;
352 INTERPRETATION ACT, IJ
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
court ' in Act, unless the contrary intention appears, the expression
MshActs 'county court' shall, as respects Ireland, mean a civil bill
40 & 41 court within the meaning1 of the County Officers and Courts
Viet. c. 56.
(Ireland) Act, 1877.
This section is not retrospective.
Refer- 30. In this Act, and in every other Act, whether passed
the before or after the commencement of this Act, references to
Crown. ^.ne 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
statutory commencement of this Act, confers power to make, grant, or
rules, &c. issue anv 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 sets of statutory rules. It does not apply to rules 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 is
considered desirable to state expressly that the Interpretation Act does
apply.
Construe- 32. — (i) Where an Act passed after the commencement of
provisions this Act confers a power or imposes a duty, then, unless the
as to exer- cont,rary intention appears, the power may be exercised and
INTERPRETATION ACT, Ibbg 353
the duty shall be performed from time to time as occasion APP. II.
requires.
CISC Of
The effect of this sub-section is to make the insertion of the words :^ j 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.
(2) 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- under 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 Acis of Parliament.
ILBEKT A a
354 INTERPRETATION ACT, I
APP. II. 34. In the measurement of any distance for the purposes
Measure- °^ an^ ^c* Passe(l after the commencement of this Act, that
ment of distance shall, unless the contrary intention appears, be
distances. . J
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, e. g., 33 & 34 Viet. c. 75, s. 74).
Citation of 35. — (j) Jn 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 reproduced 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, 1889 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/
mencement/ 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.
(2) 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,
under 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 affirm 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
Act is not to come into operation immediately on the passing tory
thereof, and confers power to make any appointment, to {^twee^
make, grant, or issue any instrument, that is to sav, any passing
. . and corn-
Order in Council, order, warrant, scheme, letters patent, mence-
rules, regulations, or by-laws, to give notices, to prescribe ^ct
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 INTERPRETATION 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.
Effect of 38. — (i) Where this Act or any Act passed after the com-
future in mencement °f 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-section does not apply to references in documents other than
Acts.
(2) 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; 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
(d) 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. IF.
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 retrospectively, but an
alteration of procedure did not fall within this rule. See Republic of Costa
Rica v. Erlanger (1873), L. E., 3 Ch. D. 69 ; Heston and Isleworth Urban Council
v. Grant (1897), L. R, a Ch. D. 306 ; Young v. Adams A. C. [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.
[2ist December, 1893.]
The object of the Rules Publication Act, 1893, is twofold — (i) to supply
facilities for criticizing the drafts of rules proposed to be made under
statutory authority, and (2) to improve the provisions 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., ss. 182
to 186 of the Public Health Act, 1875, 38 & 39 Viet. 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 Revised
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 statutory 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. III.
to which this section applies, notice of the proposal to make ^ . . f
the rules, and of the place where copies of the draft rules may and repre-
sentation
be obtained, shall be published in the London Gazette. respecting
(a) During those forty days any public body may obtain
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 k 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
j. ,, Viet. c. 74.
amending the same. 55 & 56
(5) This section shaU not apply to Scotland. Vict- a «•
(6) In the case of any rules which it is proposed shall
extend to Ireland, publication in the Dublin 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-
certain
caaes.
Printing,
number-
ing, and
sale of
statutory
rules.
2. Where a rule-making authority certifies that on account
°^ 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. — (i) 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.
(2) 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 expense. 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 cases 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, AFP. 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 — Defini-
' Statutory rules ' means rules, regulations, or by-laws tlon9-
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 ma)- be cited as the Rules Publication Act, short
1893.
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.
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 Viet. c. 66.
the concurrence of the Lord Chancellor and the Speaker of the House of
Commons, for such purposes in relation to Statutory Eules 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
AFP. III. hereby, 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 by a rule-making authority,
which is of a legislative and not an executive character, shall be held to
be a Statutory Rule 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 p isoral.
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 Parliament 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 afterwai-ds, 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 Rules, 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
A.
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, Jews of, under Hebrew law
of succession, 153.
Administrative law, 36, 209, 210,
219, 239.
African Colonies, law in, 172. See
also Crown Colonies.
Allgemeines Landrecht fur die
Preussischen Staaten, 17.
America, codification in, 155-157.
Anne, Queen, 21, 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, r86, 187 ; number-
ing, publication, and editions of
statutes, 187, 188, 191-193, 195-
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 referred to, 5,
25. 81, 122-127, 161, 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-
3*7-
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, 1 86 ; 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 Roman-
Dutch law, 169, 170.
Cattle Pleuro-Pneumonia account,
295-
Ceylon, Indian Codes in, 155, 200,
201 ; survival of Roman-Dutch
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, Lord 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.
Clarence, 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, 56, 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 ; prp-
gress made, 114 ; work to be
done, 115 ; arguments for and
against. 116-118; 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-
INDEX
lation, 189, 190 ; publication of
enactments, 192, 193 ; revision
and consolidation of local law,
197, 200 ; suggestions for index
to enactments, 198 ; codes, 200,
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, 208-222.
— Statute Book. See Statute Book.
Etablissements de Saint Louis, 14.
Europe, continental, codification in,
157-159, 1 60 ; 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. R., 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, u, 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 Coui't, 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, 82, 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, 272 ; 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 Revised, 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,
120-155.
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, 1 80 ; publication and stages
of progress of Bills, 185 ; sessions
of legislature, 186 ; explanatory
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, 143-145.
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,'
338> 352 5 ' sheriff clerk,' ' shire,'
' sheriffdom,' 339 ; ' rules of court,'
345 ; ' 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
INDEX
James I, 45.
James, Sir Henry, 70.
James, Mr. Justice J. C. H., 196, 199.
Jenks' Law and. Politics quoted, 4.
Jenkins, Sir Leoline, 80.
Jenkyns, Sir Henry, compiler of
index 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, 362.
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 Barbarorum, 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., territories, 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.
Index to, 35.
— authorities, 300, 301.
— finance, 302, 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, 1 68.
Louis XVI, 12.
Louisiana Civil and Criminal Codes,
155, 156.
Lowell's Governments and Parties
in Continental Europe quoted,
37> 38> 39> Io8> IIO> 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,
*35, HS, 144, M6, 147, J49-
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
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.
O.
Orders in Council, under Royal
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, 9-12.
— Indian, 175.
— in Crown colonies, 172, 178, 179.
P.
Parliament as a legislative machine.
208-236. See also House of Com-
mons ; House of Lords ; Houses
of Parliament.
Parliamentary 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 > re-
sults of establishment, 95, 96 ;
suggestions for extension. 96. 97 ;
relations to. Government and
legislature, 218, 219.
Parliaments, French, registration
of Ordinances by, n.
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 a/so
Acts of Parliament.
— Bills, 28-33, 49? 92? 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 a/so Acts of
Parliament,
— Bills in England, distinguishing
characteristics, 28-33, 49 > Pre-
paration at different periods, 77-
80 ; by Mr. Harrison, 80-83 ; by
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-
335-
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.
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, ai, 23, 50.
Register of public general Acts, 59.
Bb
37°
INDEX
Regulations. See Orders in Council.
— Indian, 174, 175.
— under Rules Publication Act,
1893, 361-363.
Reichskammergericht, 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,
ai ; 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.
Ruffhead's edition of statutes, 24,
34-
Rules. See Statutory 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.
Sachsenspiegel. 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, 126, 127.
Schedules, use of, 266-268.
Schemes, confirmation of, 308.
Schuster, Dr., quoted or referred
to, 1 8, 1 60.
Scottish Bills, go.
— 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, 189.
Spanish Codes, 159.
Special commissions, clauses for
creation of, 331-334.
Standing Committees, 103-105.
— Orders of Houses of Parliament
referred to, 100, 102, 103, 105,
121, 214, 242, 243, 270, 279, 313,
3i7-
States-General, 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, 172,
176-178, 193-198.
— Law Board, 53-55.
Commissions, instructions to,
and reports of Commission of
I833, 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 ;
Revised Statutes,
— form and arrangement of, 237-
270.
— interpretation of. 250, 251.
— at Large, 21.
— of the Realm, 21, 23, 34, 50.
Statutory 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 staff, 283; style of Board,
283 ; transfer of officers, 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, 41 ; 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 ;
rules to which Rules Publication
Act applies, 358.
annual or revised volumes
referred to, 42, 170, 178, 310,
358.
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, 135-137,
143, 144, 148, 149, 151, 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, 235.
Sweden, codification in, 159.
Switzerland, codification in, 158.
T.
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 Rules
Publication Act, 361-363.
— bills, 288.
Trinidad, common law in. 169 ;
preparation of draft Bills, 184.
U.
United States, codification, 155-
157 ; legislation, 222.
V.
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.
372
INDEX
W.
Weistiimer, 16.
West African colonies. See Crown
Colonies.
— Indies. See Crown Colonies.
Westbury, Lord Chancellor (Sir R.
Bethell), 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, i, 361.
Wills, Mr. Justice, on defects in
English criminal law, 163.
Wilson, A., 69.
Wood, A. J., work on statutes, 60,
63.
Wright, Mr. Justice, proposals for
consolidation of criminal law and
procedure, 69 ; preparation of
Penal Code, 155.
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