MODERN LEGISLATION IN THE UNITED KINGDOM.

HE mantle of the Roman Praetors seems of late years to have

lized under Lord Eldon,' Acts of Parliament are the only means of 'assisting, supplementing, or correcting the ordinary law' of the land.

The Legislature is, however, at a disadvantage in one respect. The Praetor not only promulgated new law in his Edict, but he presided in the law court and explained and administered the law he had thus introduced. In the United Kingdom Parliament makes the laws, but (except to a moderate extent when the House of Lords sits as a final court of appeal) the duty of interpretation is cast upon a body of men widely different. The laws are made by men, the majority of whom have no knowledge, either by education or experience, of the legal meaning and effect of the rules they lay down; and, in many cases, the statutes require a considerable amount of judicial exposition before the so-called 'intention' of the Legislature can be definitely ascertained. In interpreting the law of England, the Judges of the Supreme Court are progressing or retrogressing more and more to the position. taken up by the Common Law Judges whose duty it was, some 600 years ago, to construe the Statute of Westminster the Second and the writs issued under that statute in consimili casu; and, almost invariably, it is not the spirit, but the strict letter-the actual literal meaning of the words-that forms the basis of a modern decision upon an Act of Parliament. No doubt a judge's duty is to expound laws and not make them, but there are occasions on which the application of this principle has been pushed beyond its extreme limits. The celebrated jurist and former judge, Sir James Fitz-James Stephen, in an article on 'Gambling and the Law' in the Nineteenth Century for July 1891, called attention to a striking instance of this kind in the decision of the Court of Appeal in the case of Read v. Anderson (L. R. 13 Q. B. Div. 779), the result of which was that the Gaming Act 1845 became a dead letter whenever the bet was made by an agent in his own name on behalf of his principal. A judicial interpretation of this kind could never have been contemplated by the framers of that statute, and the Gaming Act of 1892, which virtually overrules Read v. Anderson, has probably diminished

considerably the number of agency transactions of this nature. The Conveyancing and Law of Property Act 1892 is another example of the remedial action of the Legislature in correcting narrow interpretations of a former statute. Misinterpretations by the judges, of language which appears to bear a clearly different meaning to other intelligent men, are, however, few and far between; and the growing necessity for the judicial construction of recent statutes may more properly be ascribed, not to a tendency on the part of the judges to draw fine distinctions, but to the ambiguous wording of the statutes themselves. The case-law of England is certainly increasing, in bulk at all events, at a much more rapid rate than the statute-law. Of the eight volumes of Law Reports issued annually by the Incorporated Council of Law Reporting for England and Wales, one alone is sufficient to contain all the Acts of Parliament of the year, public, local, and private; the remaining seven consist entirely of reported cases. A glance at the Current Index' will show how many of these cases are concerned with the interpretation of a statute or statutes, the proportion for the year 1892 (not including decisions on statutory rules) being nearly 40 per cent., most of them relating to statutes passed within the previous twelve years.

It would seem therefore of the utmost importance that all bills should be carefully drafted and settled by competent authorities before they become law; but this is precisely the fate which rarely, if ever, attends a great number of them.

The Government bills are the most fortunate, being, as a rule, drafted in the office of the Parliamentary Counsel, or of his assistant; and if the head of a public department, such as the Board of Trade or Local Government Board, is in charge of a bill, the clerks of the department also bestow some of their divided attention upon it. During the progress of important bills the services of the Parliamentary Counsel are in great and constant demand; but neither he nor his learned assistant is omniscient or infallible. The public bills introduced by private members fare very much worse. Apart from the scant attention which is their lot, owing to the demands made on the time of the House of Commons by the Government of the day, they are maimed at their birth, as it were, by being drafted by incompetent hands. Unfortunately, in spite of their many adversities, some of them happen to pass-usually with deplorable results. The Married Women's Property Act 1882 was a private member's bill. It may be cited as an awful example.' There is not a single section, hardly a single phrase of the Act, indeed, which has not required judicial interpretation.

Even the Government bills have a sufficiently tempestuous career. Leaving out of consideration bills purely political-i.e. introduced by the Government as a reward for the past, or a bribe for the future, votes of a section or sections of the electoratewhich are generally considered by a committee of the whole House, Government bills after they have passed their second reading, are, as a rule, referred either to a special committee of members more or less acquainted with the branch of law on which they touch, or to one of the Grand Committees. It is another anomaly that one of the Grand Committees should have for the subject from which it takes its name of the Grand Committee on Law,' the one which ought to concern them all.

From the Committee and Report stages, the most carefully drafted bills often emerge greatly impaired by the addition of amendments accepted in a hurry for the sake of appeasing some particularly hostile opposition.

The final result is that our modern legislation presents a number of defects which may be considered under the following heads as exemplified in the Acts themselves:

(a) Incompleteness;

(b) Obscurity;

(c) Want of Uniformity, and Interdependence.

These divisions, although they occasionally overlap, are sufficiently distinct to be worthy of separate consideration.

In reference to the incompleteness of modern Acts of Parliament, it must be admitted at the outset, that it is absolutely impossible to provide for all future conditions of society or to guard against every expedient by which an ingenious lawyer may drive a metaphorical coach-and-four' through an Act of Parliament. Nevertheless by a consideration of the statutes passed in very recent years, it is evident that the haste with which they have been hurried through Parliament, or the lack of sufficient knowledge on the part of their sponsors or draftsmen, has caused an incompleteness which might have been avoided and which has required to be speedily remedied.

Thus, a statute dealing with mortmain and charitable uses has been passed in each of the years 1888, 1891, and 1892; that of 1888 having for its object the codification of the then existing law on the subject. The Foreign Marriage Act 1892 has repealed and substantially re-enacted with amendments the Marriage Act 1890, and the Foreign Marriage Act 1891. The Friendly Societies Act 1888 (which amended section 30 of the Friendly Societies Act 1875) was repealed and re-enacted with a small but material alteration by the Friendly Societies Act 1889. The Lunacy Act

1891 amended the Lunacy Act 1890; the Bills of Sale Act 1891 amended the Bills of Sale Act 1890; and the Forged Transfers Act 1892 amended the Forged Transfers Act of 1891. Even in the past phenomenal year of grace, 1893, time was found for 'An Act to amend the Public Libraries Act 1892'-56 Vict. c. IIpassed June 9, 1893. Nor is this state of things by any means a recent evil. It was commented upon upwards of twenty years ago by the editors of the English edition of M. Ortolan's Histoire de la Legislation Romaine, who, at page xviii of their Translator's Introduction, remarked as follows:

'At the present moment our legislature is in the habit, as circumstances may require, of issuing Acts of Parliament. These are, in fact, means of amending, abrogating or supplementing existing law. The great defect of the present system is that, instead of withdrawing, upon each occasion when alteration is found necessary, the existing law upon any given subject, that which exists is allowed to remain; generally, however, it is mutilated, and a new Act is promulgated introducing certain changes. The result is that, in order to ascertain the actual law upon the point under consideration, it is necessary to refer to a variety of Acts, and much unnecessary labour and expense and the risk of uncertainty and inaccuracy is the consequence. All these difficulties might be obviated and the obscurity removed if whenever any alteration was required in a portion of a statute, the whole statute was repealed and a new Act introduced, reproducing those portions which required no amendment and containing the modified or the new clauses in their proper place.'

The remedy thus suggested would obviously be often too drastic. Four-fifths of the Conveyancing and Law of Property Act 1892, for example, consist of amendments of subsection 6 of section 14 of the Conveyancing and Law of Property Act of 1881; and it would, it is submitted, be a waste of energy to repeal the whole 73 sections of the Act of 1881, for the purpose of amending one subsection of a section. The Legislature might, however, have adopted the plan of repealing subsection 6 instead of patching it up in this cumbrous fashion by means of sections and subsections. Moreover, in each of the cases of the Bills of Sale Act 1891 and the Forged Transfers Act 1892, it would, since the Acts requiring amendment were so short, have been a distinct advantage to follow the principle of repeal and re-enactment carried out in some of the instances previously mentioned.

Secondly as to the charge of obscurity.

The best proof, perhaps, of the existence of this defect may be obtained by referring to the second section of the Forged Transfers Act 1892, which runs as follows:

:

Whereas, by subsection I of section 1 of the Forged Transfers Act 1891, it is provided that such company or local authority as therein mentioned "shall have power to make compensation by a cash payment out of their funds for any loss arising from the transfer of any such shares, stock, or securities, in pursuance of a forged transfer, or of a transfer under a forged power of attorney," and it is expedient to remove doubts as to the application of the Act to losses and forgeries before the passing of the Act.'

Other examples may be found in the Married Women's Property Act 1882, already referred to, and in the Bills of Sale 1878 Amendment Act 1882. Of the latter Act, for example, in the Wimbledon Local Board case (57 L. T. (N. S.) 55, 1892) Mr. Justice Day, speaking of section 14, said:

'The section is no doubt very inconveniently and awkwardly framed, and obviously does not express what the Legislature intended to say.'

Thirdly as to the want of uniformity.

:

A modern improvement in Acts of Parliament is the introduction of a section or sections giving a short title by which the Act may be cited, and explaining to some extent the construction of the Act by stating that it is to be read and construed as one with some Act or Acts previously passed, affecting the same branch of law. Sometimes these explanatory sections appear at the commencement of the Act, sometimes toward the end: occasionally one set of words, at other times a different set of words, is used to express the same mode of citation or construction. Thus in 1890, three statutes were passed relating to public companies. These Acts, which form consecutive chapters on the roll of statutes and received the Royal Assent on the same date-August 18, 1890show a want of uniformity in this respect.

In the Companies (Memorandum of Association) Act 1890, 53 & 54 Vict. c. 62, the sections which are at the end of the Act read as follow:

:

(2) This Act and the Companies Acts 1862 to 1886 shall be construed as one Act, and may be cited collectively as the Companies Acts 1862 to 1890.'

In the Companies (Winding Up) Act 1890, 53 & 54 Vict. c. 63, the sections also appear at the end of the Act and are as follow:35. (1) This Act may be cited. . . &c.

(2) This Act and the Companies Acts 1862 to 1886 may be cited together as the Companies Acts 1862 to 1890.'