HC Deb 31 March 1819 vol 39 cc1266-9
Mr. Boswell

rose to call the attention of the House to a subject which he felt to be of great importance to that part of the country with which he was connected. He wished it to be understood, that he meant to throw no imputation on the laws of his country. He was confirmed in his veneration for those laws —no man could feel more. Indeed, he had never met with a Scotsman in his life, who would change the laws under which he lived, for those of any other country. But that very veneration led him to look with greater anxiety and more fear, to any thing objectionable connected with those laws. They had heard that a revision of the laws was idle and visionary and impracticable. That it was idle and visionary he would deny: for it was not idle to remove from the Statute Book, statutes which the courts of law had pronounced to be in desuetude. As the doctrine of the power of the courts to determine what statutes were, and what were not in force, had long been held to be the law of Scotland, and had even been sanctioned by the other House of Parliament, it was not his intention to interfere with it. But he wished the statute laws of that country to be in a more determinate shape—that those statutes which were declared to be in desuetude should be repealed, and that those which were partly in force and partly not, should be put in a more determinate shape. He wished for no innovation in the law; for the removing from the Statute Book statutes which were not held to be law, was not an innovation. It had been said, that the people of Scotland were going on very well under their present laws, and would go on very well without the interference of the House—that the court of session could pronounce hereafter, as they had hitherto pronounced, what laws were and what were not in force. But, how was this done? By a pertinacious and expensive litigation between individuals; for an act could not be pronounced in desuetude till it had been decided to be so by a court. It had been said that it was impossible to determine what part of a law ought to be struck out of the Statute Book and what not, without a most laborious inquiry. He had never thought it an easy task; but he was clearly of opinion that if it was competent to the legislature, to enact new laws, it was competent to them also to correct the old. Though it had been stated that, by the law of Scotland for more than 300 years, laws by contrary custom were abrogated, he was prepared to show that this had not always been the case within the period in question. In the Harleian miscellany there was a case which was decided in 1634. This was the case of lord Balmerino, in which the lord advocate Hope, of Craigie-hall, the author of a work on Scots law, called Minor Practicks, was the prosecutor, and Nisbet, of Duleton, the author of another book on Scots law, with a quaint title, was advocate for lord Balmerino. It was then objected to by lord Balmerino, that the act on which he was tried was in desuetude, but it was argued by the lord advocate, that there was no prescription against statute law. The court repelled the objection to the statute on which lord Balmerino was tried, "in respect the act of parliament stands unrepealed." The statutes of Scotland might be divided into four classes: I Such as were totally inapplicable to the present state of society. 2. Statutes of which parts were in desuetude, and parts in force. 3. Statutes held to be in force, and which were of an unexceptionable nature. 4. Statutes held to be in force of an exceptionable nature. He wished to confine himself at present to moving the repeal of one statute of an exceptionable nature—a statute with respect to Duels, on which an individual had lately been tried. By this statute, a person sending or bearing a challenge to fight 3 duel, forfeited all his moveable property, and suffered banishment, whether the duel took place or hot. He had it in view to move the repeal of two other statutes. One on the old system of monopoly, by which a butcher could not have more than one acre for grazing; the other declaring, that if two individuals who had a law-suit should happen to quarrel to the effusion of blood, the party who provoked the quarrel, de facto, should be considered to have lost his cause.—The hon. gentleman concluded with moving, "That leave be given to bring in a bill to repeal certain acts of the parliament of Scotland regarding Duelling."

Mr. Mackenzie

thought some of the hon. gentleman's observations calculated to produce a wrong impression with regard to the present state of Scottish jurisprudence. The practice of regarding some statutes as fallen into desuetude, was dictated by the first principles of the law of Scotland. He was not desirous of opposing the motion, but must protest against the doctrine, that established contrary use could not outweigh an unrepealed enactment. These partial repeals operated as ex post facto laws, and might serve to revive other statutes which were at this moment sunk in oblivion. Whether the principle of desuetude was originally good or bad, it was now too late to inquire; it was a principle interwoven with the whole theory and practice of the law, and could not be abrogated without producing the most injurious effects.

Lord A. Hamilton

considered the course now pursued as extremely inconvenient, with reference to the general object in contemplation. The hon. gentleman proposed to repeal one or two particular statutes and leave to any other hon. member the task of proposing the repeal of others equally obnoxious. The effect must, in the mean time, be, to give new validity to all those which, though fallen into desuetude, had not hitherto been repealed.

Lord Binning

said, that had the motion been of a general nature, he should have wished it to be postponed, but he felt no objection to the particular question before the House. He did not mean, however, to pledge himself to the support of the measure.

Mr. Brougham

said, if he rightly understood the hon. gentleman, the subject of desuetude was not in question. He wished to repeal an act of parliament which was not in desuetude, but in force two years ago; he merely proposed an act to repeal another act, and the whole discussion would turn on the merits of the act proposed to be repealed. His opinion on the subject of desuetude was, that it was as much the law of Scotland that statutes fell into desuetude as it was that a man's eldest son succeeded to his landed estate.

Leave was given to bring in the bill.