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The first table contains a list of all the statutes and ordinances in their chronological order, and shows with regard to each act or ordinance: First: The subject of the law generally, and whether it was originally temporary or permanent.-Secondly: If temporary, the period to which it was limited.—Thirdly : The acts or ordinances (if any) amending, continuing, suspending or repealing it.—Fourthly: Whether it is or is not now in force, and, if still temporary, to what period it is to remain in force.-Fifthly : If certain portions only be in force, the sections or parts which are so, with references to the acts or ordinances by which the other portions have been repealed or suspended, and to those by which the law is modified or affected, or which contain provisions on the same subject.
The second table contains a classification of all the acts and ordinances in the order of their subjects, and shows under each head :—First: The laws relating thereto which have expired or have been repealed, or have become effete by the accomplishment of the purpose for which they were passed.—Secondly: The laws relating to the same subject and wholly or partially in force.
The necessity of preparing such tables, before any progress could be made in the consolidation of the statutes and ordinances on any subject or class of subjects, is too obvious to require elucidation.
The commissioners flatter themselves that the publication will have the effect of reducing the statutes and ordinances of Lower Canada into order, and of enabling any person, possessing a copy of them, at once to find the statute law in force on any subject, and to trace its history; and that one of the principal objects of the commission will thus be attained.
The commissioners have spared no labour in endeavouring to ensure the correctness of the said tables; but if among the multitude of references to upwards of one thousand three hundred acts and ordinances, any errors should have crept in, the work being before the public will ensure their discovery and correction, before the legislature shall be called upon to amend or consolidate the law, in those cases where amendment may be deemed necessary or consolidation advisable.
The commissioners purpose to submit subsequently more ample statements and details on the matters entrusted to them, but they have been induced to make this report at the present time in order that the publication they have the honor to recommend may take place with the least possible
The whole nevertheless humbly submitted.
Montreal, 21st March, 1843.
To His Excellency the Right Honorable Sir CHARLES THEOPHILUS MET
CALFE, Baronet. G. C. B., &c. &c. &c.
MAY IT PLEASE YOUR ExcellENCY,
The Commissioners for revising the acts and ordinances of Lower Canada,
have the honor to make their second Report, as follows: By a commission issued by His Excellency Sir Charles Bagot, then Governor General, bearing date the 16th day of March, 1842, the undersigned were appointed, jointly with the honorable C. R. Ogden, then Her Majesty's attorney general for Lower Canada, and the honorable C. D. Day, then Her Majesty's solicitor general for the same, commissioners to revise the acts and ordinances of Lower Canada, and to consolidate such of them as relate to the same subject and could be advantageously consolidated ;-their appointment being consequent upon an address of the Honorable the Legislative Assembly, dated 28th August, 1841.
Mr. F. G. Johnson, of Montreal, advocate, was appointed by His Excellency to be the secretary of the commission. The subsequent elevation of Mr. Day to the bench, and Mr. Ogden's absence in England, have prevented their taking part in the execution of the work, though the undersigned had the benefit of their assistance in deciding upon the plan they have endeavoured to follow out.
The commissioners met at Montreal, at an early period after their appointment, and agreed upon the plan of their future operations.
It appeared clear to them, that the first duty they had to perform was to ascertain, what acts and ordinances and what portions of each of them were in force, what not in force, and what doubtful. Until they were prepared to shew what the statute law on each subject was, it was in vain for them to attempt to consolidate the law on any subject, or to suggest amendments.
The task they undertook was laborious and irksome; the question whether the whole of any act or ordinance had or had not expired or been repealed, was in many cases one of considerable difficulty, arising partly from the multitude of acts for reviving or continuing others or for making them permanent, but still more from the number of cases in which permanent laws had been repealed by temporary ones which had subsequently expired.
In England it appears to be settled, that in this case the repealed law would not revive, the effect of the repealing clause being held to be permanent, though that of the remainder of the act may be temporary : while in Canada, under the royal instructions, that no permanent clause should form part of a temporary act, the reverse has been generally held. But the mode of looking at this question has not been uniform ; thus for instance, the ordinance 28 G. 3. c. 8. (regulating the practice of physic) though repenled by the expired act 1 W. 4. c. 27, seems generally held to be in force, and the ordinance 20 G. 3. c. 4. (regulating maitres de postes) repealed by the expired act 47 G. 3. c. 5. to be as generally held not to be in
force ;-while with regard to the ordinances 27 G. 3. c. 2. and 29 G. 3. c. 4. (regulating the militia) opposite opinions have been held and acted upon by high authorities, and the legislature itself seems to have come at different times to opposite conclusions, with regard to their revival or non-revival on the expiration of the temporary acts by which they had been repealed,
With regard to the question, what parts of each act or ordinance not wholly repealed or expired were in force, the inquiry was frequently much complicated; the subsequent acts on any subject frequently repeating the provisions of prior laws, or containing provisions more or less at variance with them, without expressly repealing them.
In order to execute this portion of their task, the commissioners found it almost absolutely necessary to classify the laws wholly or partly in force, in the order of the subjects to which they relate. And having done this, they found it practically of great advantage to insert the laws themselves, in the order thus determined upon, in books prepared for the purpose, having ample margir for the notes and remarks they might have occasion to make. These books accompanying their present report.
Having executed, compared and revised this portion of their work, the commissioners made their first report to Your Excellency in April last.
In this report to which they respectfully refer, they had the honor to recommend the publication of two tables relative to the acts and ordinances of Lower Canada, the object of which they described and of which they submitted a portion for examination. Their recommendation was sanctioned by a report of the honorable the Executive Council, dated 26th April last, and approved by Your Excellency; and the printing of the tables was commenced immediately afterwards. The English version has been completed and before the public for nearly two months; the French version, which has been prepared by Mr. G. B. Faribault, advocate, under the superintendence of the commissioners, is now also completed and pubjished.
The object of these tables, of which a copy in each language accompanies this report, was explained in the first report of the commissioners, and is, moreover, so obvious from the work itself and the introductory notes to it, that the commissioners hold it unnecessary to state it here. They contain the substance of the notes of the commissioners on the points to which they relate. No pains have been spared to make them correct, and to print them correctly. The errata which have been discovered have been noted in every case where they could have misled the reader; and if any have escaped unobserved, it is believed they must be very few in number, and may be excused in a work containing several thousand references to and citations of laws and sections of laws, and being the result of the revision of about fifteen hundred acts and ordinances, which had undergone no prior revision from the time of the commencement of the series in 1777.
The work of revision being completed, it remained for the conmissioners to consider the course they ought to adopt, under the clause in their commission authorising them to consolidate such of the said acts and ordinances as related to the same subject or could be advantageously consolidated.
With this object in view, they went carefully through such of the laws in question as are still in force; and the result of their earnest consideration was—that there were sew if any cases in which the power given them could be advantageously exercised. On many of the most important subjects, indeed, the laws were numerous and complicated, but it was yet evident that they could not be advantageously consolidated by the commissioners, partly because there were acts of the parliament of Canada, to which the powers of the commissioners did not extend, forming part of the statute law on the same subjects, and without embodying which the consolidation would have been imperfect and almost useless, or because from the nature of the subject, it was desirable that the law relating to it should be common to both sections of the Province,—and partly, because there were also laws on the same subjects or intimately connected with them, which were of very recent date, and could scarcely be considered as more than experimental, and it was generally understood to be probable that changes so extensive would be made in the law, as to render any attempt at consolidation by the commissioners, who could have no knowledge what the nature and extent of these changes might be, utterly vain and fruitless.
As examples in point, the commissioners refer to the Laws relating to the administration of justice,—to the road laws, as connected with the ordinances establishing municipal districts and those incorporating the cities of Quebec and Montreal,—the laws relative to the provincial customs and duties,--and those concerning elections and the trial of contested elections. Assuredly these laws require consolidation and amendment, but it would have been impossible for the commissioners to attempt the work with any useful result.
In the appendix * attached to this report, the commissioners submit their remarks with reference to the subject of consolidation, on all the laws in force, and in the order in which they stand in the table No.2. They have rarely suggested amendments, conceiving that their commission gave them no authority to do so, except in matters of pure form, or with reference to the removal of doubts. And both in the tables and the appendix, they have confined themselves to pointing out such difficulties as arise from the effect of one law or part of a law upon another, leaving it to other and higher authorities to solve or to remove the doubt, when occasioy should require.
They submit, however, with this report two bills, one for removing doubts as to the repeal of certain laws and for repealing others which it seems ebviously desirable to repeal,—and the other for declaring the act 9 G. 4. C. 77, concerning the conveyance or devise of lands held in free and common soccage, to be and to have been in force. The reasons which induced the commissioners to prepare these bills will appear from the tables; and they respectfully request Your Excellency's attention to the subject. Another bill was prepared by the commissioners with reference to the civil erection of parishes, and the building of churches, &c., in such parishes ;—but it has been submitted to the ecclesiastical authorities for their remarks, and has not yet been returned by them.
* NOTE:-It has not been thought necessary to insert this appendix which is of considerable length, the recommendations it was intended to support having now been approved and acted upon. it will be found printed with the reports, among the sessional papers of 1843.
After giving the subject their most serious consideration, the commissioners have determined upon recommending the republication of such of the said acts and ordinances as shall remain in force at the end of the present session, with a proper index, in preference to any attempt at further consolidation, for which the present time does not appear to the commissioners to be favorable. Many and great changes may be expected to be made by the legislation of the present session ; others may be expected to be consequent upon them; and from the unavoidable imperfections of every new law, it is possible they may require amendments which cannot now be forseen. In a few years, when the changes consequent upon the altered circumstances of the Province and the establishment of new institutions shall have taken a fixed shape, and the statute law in force in Lower Canada shall contain a much greater body of enactments than it now does, its consolidation may be expedient and necessary, or, as the provisions on any subject become numerous, they may be consolidated in a single act ; at present the commissioners are convinced that any attempt at a general consolidation could only occasion needless expense and delay. The commissioners suggest that the work they recommend should be printed in the same form and type as the tables, so as to bind up with them ;-they would print none but laws of a public nature, and (with the exception hereafter mentioned) none but those in force, omitting such sections of the latter as may have been repealed or have expired, and all merely formal parts,-and they would print them in the order in which they stand in the second table, that is, in the order of their subjects ;-they would add an index, and a table of the acts printed, arranged in their chronological order and shewing the place in which each may be found ;—and they would make a supplement to the first table shewing the effect of the acts of the present session on those men'tioned in it. The tables would then account for every law or portion of a law not printed in the new work, and would save all necessity for repeating the information in the latter; and as this must have been done if they had not been published, their previous publication, while it is hoped it will have been of advantage to the legislature and to the public, will have involved no additional
expense. There are laws of which the effect will long remain, as to rights acquired under their provisions, after they have expired or been repealed. But the acts and ordinances of Lower Canada are not in general of this description ; and, though there may be others among those expired or repealed by which the rights of parties may possibly be affected in future, those relating to the registry of titles to and incumbrances upon lands in certain counties, are the only ones which the commissioners would think it necessary on this ground to reprint; but these they think ought to be inserted.
Until the end of the session it will be impossible to estimate exactly the extent of the work the commissioners recommend, because they cannot say what acts and ordinances may be repealed by the acts of this session ;-but