which considerably alter the statute law, by which means many doubts as to the inconsistency of enactments are settled by Parliament. In some cases a provision is inserted to the effect that "all provisions inconsistent with the Act are repealed," by which lawyers are simply put on inquiry as to inconsistency, or left to wait till, by a Statute Law Revision Act, the virtually repealed enactments are expurgated. An Act repealing all enactments inconsistent with itself really goes no further than the general law. (h) Usually the sole questions arising upon express repeal are the extent of the terms employed, and the qualifications, if any, stated or implied in the repealing enactment. The former question is dealt with in the chapter on "Mistake" (infra, Part II. ch. viii.). To constitute express repeal there must be not only reference to the prior Act, but also the use of words apt! to effect its repeal. Thus, in a recent Canadian case the reference contained in a subsequent Act to a prior Act as being effete was held insufficient as not amounting to legislation() Difficulties sometimes arise as to the extent of a repeai owing to the mode of reference to the earlier enactment.(k) But these are removed as to Acts passed after 1889 by s. 35 (3) of the Interpretation Act, 1889, which provides that "a description or citation of a portion (h) Garnett v. Bradley (1878), 3 App. Cas. 950, at p. 965 (Lord Blackburn). Mr. Greaves pointed out in 1861, as to the Statute-book, as he knew it, that "there are many instances in which even direct repeals which refer to the enactment intended to be repealed are so worded that it is impossible to ascertain how much of the old statutes are repealed. Here there must be actual legislation to fix what is and what is not repealed." A second class of repeals is one that has been adopted of late years. It is the repealing in express terms every enactment inconsistent with the Act in which the repeal is found, without referring to any Act at all; so that doubt is thrown on every previous enactment, and it must be compared with the whole and every part of the repealing Act to ascertain whether it is repealed or not. Such repealing clauses are nearly as bad as implied repeals, which abound in the Statute-book, and are the most difficult of all to ascertain: Greaves, Criminal Law Consolidation Acts (2nd ed.), Intr. p. xvii. (i) Scottish American Investment Co. v. Elora (1881), 6 Upp. Can. 637. App, vide ante, p. 244. Implied savings. of another Act shall, unless the contrary intention appears, be construed as including the word section or other part mentioned as forming the beginning and as forming the end of the portion comprised in the citation."() Certain savings are implied by law even in express repeals. In Acts passed after 1889 certain savings are implied by statute in all cases of express repeal, unless a contrary intention appears in the repealing Act. They are as follows (m): The mere repeal does not― Revive anything not in force or existing at the time when the repeal takes effect; nor Affect the operation (previous to the time when the repeal takes effect) of any enactment expressly repealed, or anything done or suffered under it; nor Affect any right, privilege, obligation, or liability acquired, accrued, or incurred under the repealed enactment; nor Affect any penalty, forfeiture, or punishment incurred in respect of any offence committed against the repealed enactment; nor Affect any investigation, legal proceeding, or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment incurred under the repealed enactment, nor the right to institute or continue the investigation or legal proceeding, or enforce the remedy, or to impose the penalty, forfeiture, or punishment as if the repeal had not been effected. It had been usual for some years to insert provisions to the effect above stated in all Acts by which express repeals were effected. The result of this new enactment is to make a general rule out of what had been a common statutory form, and to substitute a general statutory presumption as to the effect of an express repeal for the canons of construction hitherto adopted. (1) This was a common form inserted of late years in the schedule to Acts containing many repeals. (m) Int. Act, 1889, s. 38 (2). In some cases an amending Act has been held, by necessary implication, to continue certain essential provisions in a repealed Act. In Wigram v. Fryer (1887), 36 Ch. D. 87, a local Act incorporating the Lands Clauses Acts was subsequently amended by an Act repealing s. 33 of the prior Act, which contained provisions as to selling or letting. But North, J., held that the repealing Act by implication continued the powers given by s. 33 for the execution of the purposes of the amending Act. The saving clause is sometimes inserted, that a repeal Qualified repeals. is not to affect any jurisdiction established by an enactment repealed. With reference to the Rules of the Supreme Court relating to service of English process abroad, it was said in Re Busfield (1886), 32 Ch. D. 132, that, inasmuch as the Rules amounted to a code, with reference to the subject-matter in dispute it would be wrong to hold that, by virtue of a saving clause of this kind, a further jurisdiction existed under a repealed Act. not revive Where an Act passed after 1850 contains a clause Repeals do repealing a repealing enactment, this does not revive any dead law. enactment previously repealed, unless words are added reviving the last-mentioned enactment.(n) This provision supersedes the canon of construction previously adopted, and shifts the presumption as to the intention to revive a defunct law. Where an Act altering the common law is repealed by an Act passed after 1889, repeal of the statute seems not to revive the common law unless a contrary intention appears.(0) The general rule as to the way in which repealing sec- Construing repeal clauses. tions are to be regarded by the Courts is well expressed in Hough v. Windus (1884), 12 Q. B. D. 224. In that case a question arose as to the effect of the Bankruptcy Act, 1883 (45 & 46 Vict. c. 52), upon the Statute of Westminster the Second (13 Edw. 1, c. 18) and writs of elegit. Bowen, L.J., said, at p. 227: "It appears to me that the answer to this somewhat formidable argument [upon ss. 146 and 169 of (n) Int. Act, 1889, s. 11 (1). Statute Law the Act of 1883] is to be found in a study of the framework of the Bankruptcy Act, 1883, so far as it works a repeal of previous legislation. It does not seem to me to be possible, without misunderstanding the scheme of drafting which the Legislature has adopted, to treat the repealing section (169) as an independent section, or one intended to do more than, for sake of symmetry, to repeal expressly, in a group, those portions of previous statutes which had already been repealed by implication in the body of the Act. I have examined schedule 5 in detail, which contains the list of previous Acts of Parliament all or part of which is to be repealed by s. 169, and I have come to the conclusion that the idea upon which the Bankruptcy Act, 1883, has been framed was to enact, in the first place specifically, a complete code of provisions which, so far as they are inconsistent with any previous legislation, would repeal it by implication, and then over again, at the very last, to clear the Statute-book, so to speak, by s. 169, and to sweep into one compendious repeal section all the statutes and sections of statutes which in the earlier part of the Act had been impliedly done away with already, the Bankruptcy Act, 1869, being itself among the number." 3. The first proposals for the revision of the statute Revision Acts. law were made by Lord Bacon,(p) but the process of statute law revision began in 1856 with the repeal in that year of a series of obsolete Acts.(g) Since the establishment of the Statute Law Committee, Statute Law Revision Acts are of almost yearly recurrence. They have been applied to the Acts of the Irish, but not to those of the Scottish Parliament.(r) It has already been pointed out (s) that, theoretically, no English Act grows obsolete. The result of this doctrine was that, in the absence of an authoritative expurgation of the Statutebook, there was always some danger of being brought (p) Vide Ruffhead, Statutes, vol. i. Pref. p. xx. (a) Vide Law Journal Legal News, vol. xxiii. (1888), p. 413. within the four corners of some forgotten Act or the alternative of a lengthy and puzzling inquiry into the exact amount of inconsistency between older and newer Acts. Mr. R. S. Wright pointed out in 1878 (t) that many Acts are retained in the Statutes Revised (and this is so even in the second edition) which, although unrepealed as regards England, are yet for all practical purposes obsolete. And his view was in 1890 indorsed by a select committee of the House of Commons (u) on the first Statute Law Revision Bill of that year: "Your committee have been struck, in the course of their examination of the Statute-book, by the large number of statutes of little or no practical utility which still remain unrepealed. This remark applies with special force to imperial Acts now operative in Scotland or Ireland only, as well as to many Acts of the Parliament of Ireland before the Union. Modern repealing Acts have frequently been expressed to apply to England only where we find no reason to think that, in point of fact, the Act or part of an Act repealed for England has any practical application at the present day to the circumstances of Scotland or Ireland, as the case may be." This expression of opinion has resulted in increased and emboldened activity in the expurgation of dead law, and the Method. principles upon which the selection of enactments for inclusion is made are thus stated in the memoranda to these Bills when introduced :-" The first schedule is intended to comprise (as the preamble to the Bill states), besides superfluous words of enactment, enactments which have. ceased to be in force otherwise than by express specific repeal, or have by lapse of time or otherwise become unnecessary. "I. For the purposes of the first schedule, six different classes of enactments are considered as having ceased to be in force, although not expressly and specifically repealed; namely, such enactments as are— (t) Report relating to Criminal Law and Procedure, 1878 (H. L.), No. 178. (u) Parl. Rep. 1890-C-110, p. iii. Y |