pared the bills submitted to Parliament, the meinbers of Parliament who have altered every clause in Committee, may at one time have formed a clear conception of the thoughts which they wished to express, but have very seldom chosen apt words to convey their meaning. As a necessary result of this we hear complaints from every quarter. Lord Campbell speaks of "an ill-penned enactment, like too many others, putting judges in the embarrassing situation of being bound to make sense out of nonsense, and to reconcile what is irreconcileable" (d). Mr. Justice Story, dealing with the suggestion that the Legislature had used superfluous language, words which were either unnecessary or tautological, observes, "I believe that there are very few acts of legislation in the Statute Book, either of the State, or of the National Government, or of the British Parliament, which do not fall within the same predicament, and are not open to the same objection; or, if you please, to the same reproach. The truth is, that it arises sometimes from loose and inaccurate habits of composition of the draftsman; sometimes from hasty and unrevised legislation; but more frequently from abundant and, perhaps, over-anxious caution" (e). And in the First Report of the Statute Law Commissioners, published in 1835, we find a concise summary of the defects of our legislation. "The imperfections in the Statute Law arising from mere generality, laxity, or ambiguity of expression, are too numerous and too well known to require (d) Fell v. Burchett, 7 E. & B. at p. 539. (e) United States v. Bassett, 2 Story, at p. 404. particular specification. They are the natural result of negligent, desultory, and inartificial legislation; the statutes have been framed extemporaneously, not as parts of a system, but to answer particular exigencies as they occurred" (f). due to the It would be easy to collect similar or even stronger How far expressions of blame, and it might be interesting framers of to inquire in what proportions that blame should statutes. be distributed between the draftsman and the Legislature. To the first we probably owe the faults which lie on the surface, the redundant phrases, the verbiage, the involved and cumbrous sentences which disfigure the style of our statutes. We find a most significant commentary upon these defects in the Report of a Committee of the House of Commons, presented in May, 1796. Under the heading of "Prolixity and Tautology," we read that these two characteristics of our statutes began in the reign of Henry the Eighth. The report selects some glaring instances of prolixity, and then adds, with significant brevity, "Instances of tautology, passim" (g). We must not, however, forget that the path of a parliamentary draftsman is beset with difficulties. His duty is to draw a bill which may pass; it is for others to consider whether or no the Act will work. A clear expression of the object and intention of the framer of a bill would often provoke an opposition which is lulled to sleep by studied ambiguity. Severely as the language of (f) Report, p. 16. (g) Report on Temporary Laws: Appendix to Mr. Bellenden Ker's First Report on Proceedings of Board for Revision of Statute Law, 1853, p. 202. How far to the Legislature. our Acts of Parliament has been criticised by the judges, more than one of them has gallantly taken up the defence of the draftsman. "I am sure," says Lord St. Leonards, "we ought to make great allowances for the framers of Acts of Parliament in these days nothing is so easy as to pull them to pieces, nothing is so difficult as to construct them properly as the law now stands" (h). The words of Bramwell, L.J., are still more forcible: "People who draw Acts of Parliament are very commonly found fault with by those who never drew an Act themselves. I suppose it is impossible to foresee all the difficulties that will arise, and to use exactly precise words to say nothing of the difficulties under which Acts are drawn up" (i). So, too, it is said by Cleasby, B.: "It seldom happens that the framer of an Act of Parliament or the Legislature has in contemplation all the cases which are likely to arise, and the language, therefore, seldom fits every possible case" (k). Although in the language just quoted the same excuse is made for the Legislature as for the draftsman, there is something savouring of disrespect in such a suggestion. The Legislature, which, in theory and within its own province, is omnipotent, ought not to find any difficulties insuperable. Yet to the Legislature itself are due those graver faults than mere faults of style, which often paralyze the working of our statutes. Hasty and ill-considered Acts aimed at a partial evil, and sweeping away or (h) O'Flaherty v. M'Dowell, 6 H. L. C. at p. 179. tampering with some vital principle of law, amending Acts which have proved unintelligible made worse by reamendment, familiar words rendered strange by interpretation clauses, local Acts extended in part to the whole country, and again restricted in part by subsequent efforts of piecemeal legislation (1), are evils of constant occurrence, some of them to be found in each yearly volume of the statutes. Such evils called forth Lord Tenterden's happy adaptation from Horace, the saying that the Legislature, if not like a man on his death-bed, whose last will is to be favourably construed because he is inops consilii, may be called magnas inter opes inops (m). Such evils, perhaps, led an earlier judge to remark of a particular piece of legislation, "I am inclined to think the Parliament purposely penned the Act in this obscure manner not to disoblige their constituents, many of whom are tradesmen" (n). interpre A third cause of uncertainty is to some extent 3. Judicial the consequence of the two with which we have tation. dealt, and this brings more clearly to our notice the incompleteness of the usual definition. That definition confounds two things which are in reality distinct from each other. It treats the statutes themselves and Statute Law as identical. The statutes themselves may be described as written (1) See the remarks of Blackburn, J., in R. v. Overseers of Walcot, 2 B. & S. at p. 568. (m) Surtees v. Ellison, 9 B. & C. at pp. 752-3. (n) Buxton v. Mingay, per Bathurst, J., 2 Wilson, at p. 73. "Every now and then Parliament arrives at a conclusion which is designedly left in obscurity." Sir J. Stephen, Evidence before Select Committee on Acts of Parliament, 1875. Statute definition. laws, but an essential part of Statute Law is that which is not written, which is elastic, which resides in the breasts of the judges, the method by which statutes are to be interpreted. The rules for the construction of statutes which have been laid down. at different times give scope for the widest variety. It is hardly necessary to refer to the liberal construction of some statutes and the strict construction of others; to the manner in which words of permission are rendered imperative, and words of command are treated as if they were directory; to the cases in which words have been transposed, inserted, or omitted, read in a technical sense, or in a sense new to the English language; to the assumed necessity for express words in some instances, and the large effect given by implication in others; to the many other modes by which the Courts have striven to do justice in particular cases while professing to ascertain the intention of the Legislature. If language were certain, if the intention of the Legislature were clearly expressed, there would be no necessity, as there would be no room, for these varieties of interpretation. But as things now stand the principles upon which statutes are to be construed form the most important part of our examination of Statute Law, and no definition would be complete which did not take this fact into consideration. Statute Law may, we think, be properly defined suggested as the will of the nation, expressed oy the Legislature, expounded by Courts of Justice. The Legislature, as the representative of the nation, expresses the national will by means of statutes. Those |