The Statute Law Commission: its Progress and Prospects. 111

partners, when they contract together, render themselves liable towards the creditor with whom they contract together, each for his share only, as we have seen with regard to particular partnerships not being commercial partnerships. But in these universal partnerships, each of the partners being unable to contract for his own profit, is readily presumed, when he contracts, although alone, to contract in the name of the partnership; and he consequently binds each of his partners, according to their respective shares in the partnership.

With regard to the manner in which each of the partners is bound in that kind of universal partnerships which takes place between husband and wife, and in that which the survivor of two persons united by marriage contracts in default of an inventory, see what is said in my introduction to the "Title of Community," chap. 7., and in that to the "Title of Partnership," sect. 1. § 7. and sect. 2. § 6.

ART. VI.-THE STATUTE LAW COMMISSION: ITS

PROGRESS AND PROSPECTS.

WE have before us, in a somewhat imperfect form (for the regular parliamentary publication has not, for some unaccountable cause, yet appeared,) the first instalment of the labours of the Statute Law Commission. It is to be re

gretted that the authentic edition has been retarded, as it is of the greatest importance, for the reasons to which we shall have occasion to advert, that the subject should undergo mature and complete discussion.

We are indebted to the "Legal Examiner" for a portion, and to the favour of one of the Commissioners for another portion, of the papers of the Commission, excepting what were published in our last No., 18 L. R. p. 433.

Not undervaluing the Chancellor's spirit in undertaking this enterprise, nor the mass of valuable suggestion which the papers as a whole contain, we cannot forbear to remark that the total result tends to show that this Commission is in a peculiar degree liable to failure from three causes,—

I. WANT OF PURPOSE. II. WANT OF METHOD. III. WANT OF MEANS.

Causes of failure so potent, and so certain in their effects, if suffered to continue in operation, that the utmost energy must be exerted to avert the consequences, especially as it is to these causes that every previous effort of the like sort in this country has owed its miscarriage.

We shall address ourselves to the above points in order, and with some particularity, on account of the very great importance of the considerations involved, and of the necessity of urging the Chancellor to avail himself at once of the breathing-time which we have between the present moment and the meeting of Parliament.

That we are right in attributing to this effort

I. WANT OF PURPOSE.

is apparent from the most cursory perusal of the papers, particularly of that by Mr. Bellenden Ker, which, as it is the production of that Commissioner who is charged with the direction and superintendence of the work, may be considered to contain the scheme and scope of the policy and projects of the Commission.

It will be observed that the first announcement was "the Consolidation of the Statute Law," which was to be brought about by several processes: i. e. by making a list of all statutes, repealed or obsolete; by expurgating the Statute Book of such statutes; by digesting statutes, or bodies of statutes; and by so dividing in future the different branches of Statute Law-the permanent, transitory, and repeal portions—as to provide against the recurrence of similar confusion.

These things have been hastily taken up, and as hastily

put down. Instead of working out these practical problems in an explicit manner, or, indeed, of indicating an intention to do so, the Commissioners have raised for solution by the Chancellor the following questions (but by no means in the distinct form in which we present them):

1. Whether the effort should be extended to all kinds of Law.

2. Whether it should be confined to the Statute Law, excluding the Common Law.

3. Whether it should be confined to some branches of the Statute Law, excluding other branches of the Statute Law as well as the Common Law.

4. Whether the work should be done at once or piecemeal.

5. Whether the Statute Book should be expurgated of all statutes which are repealed or become obsolete, and be so declared by a single statute.

6. Whether the work should assume the form of a statutory enactment or of a digest, or both.

7. Whether the Statutes should be written in any and what form.

8. Whether the work should be done in this or that order. 9. Whether the Commissioners should begin at once and before they have come to settled conclusions, to revise Bills in Parliament as they proceed, thus learning and exemplifying as they go on, and gradually introducing fresh and fresh improvements.

These and a great variety of general questions are left to be determined by the Chancellor before the Commission can practically go to work.

The papers by Mr. Coode furnish a valuable exposition of the principles to be acted upon in the operations of such a Commission, and the means of coming to some agreement, and also of enabling the Chancellor hereafter to judge whether the Commissioners are proceeding in a right direction; but as yet there are no evidences of agreement, but the reverse, nor, indeed, evidences of an approach to it.

To assist in this matter, which is obviously an indispensable preliminary to successful action, we offer these remarks.

The purpose, as we conceive it to be, is

1st. To ascertain the state of the Law.

2ndly. To reduce it into a form which shall adapt it to its

uses:

1. To the public at large.

2. To the profession.

3. To the public functionaries.
4. To the judges.

5. To the legislature.

It is referred to the Commission to execute this work,-to show specifically not only what in generals it is desirable to do, but also, in particulars, the ways and means of doing it. It is fit and necessary to have the principles of action before us; it is as necessary to have in view the appropriate means of realising those principles in practice; and we think, also, that it would be useful to the Chancellor to have presented to him for his information and guidance examples of what has been done.

The Chancellor who has confided to these gentlemen the task of collecting materials for his judgment, will find that he has yet to seek those materials. A simple chronological statement, fairly and dispassionately done, of the works of former labourers, would have enabled the Chancellor to act for himself; but if the propositions suggested by former writers, and exemplified by illustrations, were propounded systematically according to the nature of the matter, his task would have been much more easy. He would have had simply to select the best method out of those produced, and he would have been enabled to see the various services that have to be performed, and how far such services would contribute to the result.

The questions put by the Commissioners are mostly put alternatively, as if the adoption of one or some would preclude the adoption of the rest; or, as if the adoption of one should postpone the adoption of others. We would suggest the consideration whether the doubts raised by the Commissioners do not show that all the operations should be performed simultaneously or nearly so, but by different hands.

The Chancellor should observe how far such varying sug

gestions arise from men with a field of work beyond their strength, and labouring under the impatience of labours that do not coincide with their tastes, a point to which we shall

have occasion to advert farther on.

It is obvious that a great work well understood in its processes as well as in its end, may be performed by few men, if distributed over a sufficient space of time, and if the parts were properly allotted among the workers.

Without a full recognition of the objects, and of the means, and of the processes by which those means are to be applied to the accomplishment of the objects, nothing can be done successfully, and the attempts will be characterised by a degree of vacillation which these papers betray.

The collection of the material, the statement of the matter, the criticism of the statement, and the correction and adoption of the final document, might each and all be performed by the same person taking different portions.

But then, Purpose must reign through every part of the work, in the whole design and in all its parts. The principles of each operation must be distinctly worked out in appropriate forms, and the application of those principles and those forms illustrated by suitable instructions.

This brings us to another point of our observations.

II. WANT OF METHOD.

There can be no method where there is no plan. When a man builds a house he usually considers, first, the End: that is, all that he would desire to have in the final result. Secondly, he wisely considers the Means,-what resources he can rely upon in executing the work, and also the cost of maintaining the structure when he has the fulfilment or result.

In codifying or consolidating we must always have regard to the end of the work, and to the whole of it,-a truth no less applicable in ordinary legislation, but which we are compelled to depart from somewhat, under the pressure of present exigencies.

The task now under consideration is of the former sort;