HC Deb 19 June 1855 vol 138 cc2253-60

said, he would now beg to bring forward the Resolution relative to the Statute Law Commission, of which he had given notice. He considered that it was time Parliament should show that it was really in earnest on this important subject. Great expense had already been incurred without any practical result, and it appeared to him that the Commission had only trifled with the question which had been committed to their charge. A modern French writer, M. Villemain, had described the English law as an endless study and a learned chaos; and it was evident that, by keeping up the mass of existing verbiage, in the shape of these obsolete Statutes, we were wasting a vast amount of legal learning, besides giving rise to that uncertainty which necessarily existed as to what the law really was. He thought that, when they looked to the progress of the nation in other ways, it would be admitted that we were considerably behind in regard to the state of our laws, both written and unwritten. So much were they in need of consolidation, so confused were they, and frequently so ill-expressed, that they were almost as unintelligible as in the olden time, when they were written in bad Latin, or afterwards in worse French. It was impossible, with the vast amount of obsolete Acts which still encumbered our Statute Book, for even a man bred to the law to know what the law really was, they were such an undigested mass of enactments—some repealed, some obsolete, and some irreconcilable with subsequent Acts. To show the growth of this confusion, Mr. Taylor, in a paper laid before the Statistical Society, had described the increase in the number of Acts of Parliament within the last few reigns; and from this it appeared that in the reign of William III. there were 317 public Statutes, which was at the rate of sixty per year; in the reign of Anne, 344, which was at the rate of seventy-nine per year; in the reign of George I., 377, showing an average of fifty-eight a year; in the reign of George II., 1,547, or eighty-four a year; and in the reign of George III., 6,953, or 246 a year; under George IV., 1066, or 322 a year; under William IV., 678, which was at the rate of 257 a year; while up to the end of 1853, during the reign of Victoria, there had been 1,864 public Acts. Efforts had been made at various times to do something in the way of consolidating our Statute Law, but without much success. At the end of the last century there was a Commission appointed, but no result attended it; in 1831, another Commission was appointed, which was to digest and report upon the Criminal Law, but, after the enormous expenditure of 50,000l., there was again no result; and then, in 1853, there was a third Commission. The opinions of great lawyers and statesmen in times past were favourable to the consolidation, arrangement, and digest of Statutes, and the removal of all that were sleeping or not in force; and Lord Lyndhurst had testified to the vast quantity of useless rubbish which encumbered the Statute Book, and which he thought should be swept away. The Code Napoleon had been found to work so satisfactorily that it had been adopted in several other States of Europe, and it was so concise that it might be bought in the form of a pocket volume, at the cost of one franc, or even less. The various attempts which had been made in the United States of America at consolidating the law had been also very successful. When so great progress had been made in this direction in foreign countries, he must assert that there was no reason why our Statute Book should be allowed to remain in its present confused state.

Motion made, and Question proposed— That, in the month of March 1853, a paid Commission of five Barristers was appointed by the Lord Chancellor, 'to proceed without delay in the work of the Consolidation of the Statute Law' (First Report, page 209), of which 'the first process would be to ascertain precisely the text of the Statute Law, as it then existed, by determining what Statutes had been repealed, expressly or virtually, what had expired, and what had become obsolete or unnecessary in the present state of society; whereof a special and detailed Report should be made, and should form the groundwork of a declaratory Bill to repeal such Statutes, to be introduced, if possible, at the end of the then Session' (Parliamentary Paper, No. 78, of Session 1865); and that, in pursuance of the said Commission, a special and detailed Report, embracing every entire Act of the descriptions above mentioned, and containing in all ten thousand and forty-seven Acts, was prepared by Messrs. Anstey and Rogers, two of the said Commissioners, and submitted to the Lord Chancellor in the course of the same Session, under the title of Expurgatory List, and by way of Appendix to their joint Minute of the 25th day of July 1853: That it appears from the Papers communicated to this House by Her Majesty, that no Bill of which the said Expurgatory List is the groundwork has as yet been prepared, although in an undated Report of 1854, made by Mr. Brickdale, the Commissioner to whom (First Report, page 109) 'the task of careful revision by a fresh hand was assigned' by Mr. Bellenden Ker, the Chief Commissioner, the List itself has been certified to evince 'the great familiarity of his two colleagues with the Statute Book,' and to cause him 'to feel hardly any doubt that they had not entered as obsolete any Act which had in fact been repealed,' and although Mr. Bellenden Ker has reported it to be 'a very laborious, useful, and valuable paper,' and to have shown their industry and familiarity with the Statute Book:' That it is the opinion of this House, that it would greatly conduce to the improvement of the Statute Law of this Country, if the preparation of 'a declaratory Bill, of which the said special and detailed Report shall form the groundwork,' were no longer to be delayed, and that such Bill ought to be forthwith prepared, for the purpose of being laid before Parliament.


said, he agreed in a great deal of what the hon. Member had stated, though he did not think it necessary to enter into a discussion on the condition of our written and unwritten law. It was admitted on all hands that the Statute Book required considerable revision, and that there were many obsolete Acts which ought to be expunged from it. The expurgatory list made out by the Commissioners contained between 10,000 and 11,000 Statutes, and the hon. Member proposed to deal at once with all these. But the fact was this expurgatory list was in so imperfect a state, that it would be impossible to make it the basis of a declaratory Act. The Commissioners had made out this list as a rough sketch of what might be done; they made it out, having been at work three months; and was the House to deal, without further inquiry and consideration, with these 11,000 Statutes, in the manner the hon. Member proposed? So far, then, as the practical part of the Motion was concerned, he (the Attorney General) could not agree with it, because he did not think the expurgatory list was in a condition to make it the basis of legislation. With regard to the Commissioners, no doubt there had been differences of opinion, but they should be allowed a reasonable time to perfect their work, and he anticipated some useful results from their labours. Should Parliament not be satisfied with the results, then it would be for Parliament to act, but no good could be accomplished by interfering with and interrupting the operations of the Commissioners in the way that was proposed by the hon. Member. It would only disgust them if they were to be perpetually harassed, and would delay rather than expedite the work that all desired to see properly performed.


said, he did not think it was unnatural for hon. Members, seeing the large sum of money which had been voted for this Commission, to expect some useful result from it. He himself thought that the opportunity might have been taken for the consolidation of Acts English and Irish, and the formation of Imperial Statutes, so as to bring the laws of the United Kingdom into as much harmony as possible. But until we had a separate department of Public Justice, he did not anticipate that our laws would be reduced to that uniformity, simplicity, and clearness which were so desirable. If the salaries of the Chancellor of the Duchy of Lancaster, of these Statute Law Commissioners, and of the Administrative Reform Commissioners, who were to be appointed, were put together, it would furnish more than enough for the establishment of a department of Public Justice. To revise the laws on some intelligible principle, to place them on some uniform basis, and to have them philosophically arranged, was worthy the serious attention of that House. Although the Motion of the hon. Member for East Surrey (Mr. L. King), was not likely to lead to any direct result, he thought that it would be useful as indirectly stimulating the Commissioners and the Government in the execution of the task they had undertaken to perform.


said, he concurred in principle with the hon. Member for East Surrey, that it was desirable those numerous Statutes which were obsolete, or no longer law, should not be printed in the Statute Book as parts of the law. But if this were to be done, it was most necessary that it should be well and correctly done. He had reason to fear that the Report made by the Commissioners after only three months' examination, was inaccurate, and he considered it highly necessary that the list should be revised again and again, by men of knowledge and experience, before Parliament was asked to make it the basis of legislation. There was no blame attachable to the Commissioners for this; the time and the number of Statutes they had to wade through rendered it impossible that the list so prepared could be other than imperfect. For these reasons he could not concur with the Motion—reasons which did not touch the principle involved in it, but only referred to its details. He was as sincerely desirous as any one to improve the law, but he thought the hon. Member for East Surrey was bound to take a more comprehensive view of the question than he had done. He complained that the Statute Law was not more perfect, but he should recollect how Acts of Parliament were passed. At the present time gentlemen engaged all day had to come to the House in the evening, and then when exhausted in minds and bodies between twelve o'clock at night and two o'clock in the morning, they were called upon to run through dozens of Bills. In a few minutes Acts of Parliament, containing twenty, thirty, and fifty clauses, were frequently passed, and no hon. Member in the House knew what was occurring. On Wednesday last there was a remarkable instance of this hurrying through important Bills at more than railway pace. On that day a Bill containing twenty-nine clauses, was passed through Committee by the Chairman almost without drawing breath, and amidst the cheers and laughter of the House at his marvellous rapidity of utterance. And now the hon. Member for East Surrey came forward and complained that the Statute Law was not perfect. His hon. and learned Friend the Member for the University of Dublin (Mr. Napier), had said that nothing would be right until we had a Department of Justice. But would he desire that every Bill in that House should be submitted to a Minister of Justice before it could pass? What happened at the present moment? Why, that scarcely a Bill of the simplest description passed that House, though backed with the sanction of the Law Officers, and the universal approbation of the House, that did not undergo such alterations and amendments at the hands of the Law Lords in another place, as to render it almost worthless when it came back to the House of Commons. Well, if that were the case as between the two Houses of Legislature now, what might they not expect if they constituted a Minister of Justice? Why, they might as well abolish the functions of the Legislature altogether. The fact was, however, that such a department would be opposed to the constitution of the country. The free institution of Parliament was the real origin of our unequal legislation. The laws were made by the expert and the inexpert, and therefore they were not made with uniformity. But he believed that their defects had been greatly exaggerated. The Statute Law was not the great difficulty. Although he concurred in the general objects which the hon. Member for East Surrey had in view, he could not assent to his Motion. The subject of Statute Law consolidation was beset with so many difficulties that he for one was not sanguine as to the result of the working of any of these Commissions. On the contrary, he believed it would, after all, be necessary to depend upon the labour of private members of the profession. At the same time, he admitted that a great deal might be done, and he should be ready cheerfully to give his assistance to do that which might be safely done; but he cautioned the House against listening to crude and immature schemes, or thinking that the laws of England, so complicated as they were, could within a few months be reduced into a digest, whether it was the Statute Law or any other law whatever.


said, he wished to know whether they were to leave these laws in their present unsatisfactory state, or to resort to the common sense mode of dealing with them, that of delegating the revision to certain stated gentlemen. That was the object of the Royal Commission last year. If those gentlemen were really prosecuting their duties with attention, then the censure of the hon. Member for East Surrey (Mr. L. King) was misplaced. But would the hon. Member by his Motion interrupt the labours of that Commission? Was it not a fact that the Commissioners had quarrelled among themselves? And had not their internal dissensions interrupted the progress of their work? The House now was told that the labours of these Commissioners were extremely valuable, but for some reason or other they were turned out, and only the Chief Commissioner and his secretary left. The hon. and learned Attorney-General said the subject was one which ought to be considered by several experienced hands, and in that he fully agreed with him; but did the hon. and learned gentleman hold out any hope that he was going to select gentlemen to revise the labours of the Commission? Nothing of the sort. The hon. and learned gentleman held out no prospect that any advance would be made in the work, and, therefore, if the House went to a division he should certainly support the Motion.


said, the fact was not as stated by the hon. and learned Gentleman (Mr. Massey), that the Commission now consisted only of Mr. Bellenden Ker and his secretary. The whole subject was under the consideration of highly qualified persons, and each of them took a particular branch of the Statute Law under his care. It was not correct, therefore, to say that the whole work was in the hands only of the chief Commissioner and his secretary.


said, the Statute Law never would be consolidated until the Commissioners took in hand the Statutes of each particular reign one by one, so that all obsolete or unnecessary laws might be struck out of the Statute-book, and none left but what were now actually in force. He agreed with the right hon. and learned Gentleman the Member for the University of Dublin (Mr. Napier), that there ought to be a Minister of Justice appointed, and he would give as an instance an error which had crept into the Merchant Shipping Act last Session, which could not have occurred had the Act been revised by such an officer. With regard to the consolidation of the Common Law, that he thought was quite impossible, and therefore he hoped the hon. Gentleman would confine his attention to the consolidation of the Statute Law.


said, he thought the difficulties in the way of consolidation were very greatly exaggerated. Year after year, however, money was voted for the purpose, and nothing was done, apologies never being wanting for the delay. If the Statute-book was reduced to proper dimensions, it would be most useful to those who were engaged in the practice of the law. If rightly undertaken, it was a work which could easily be performed; but it never would be effected by men whose minds were engaged in other pursuits and other objects. His decided conviction was, that if a moderate staff of zealous men were employed, the consolidation might be completed in three years. He thought the Motion a most excellent one, and he should give it his best support.


said, that the Expurgatory List, drawn up by Messrs. Anstey and Rogers, had been prepared with great intelligence and ability, and the chief Commissioner had himself stated that it was of great value, although in a work of such extent it was, perhaps, impossible to avoid some inaccuracies. The present Motion merely proposed the preparation of a declaratory Bill of which the Report should form the groundwork. It simply took up the proposal of the Lord Chancellor, and suggested that a Bill should be founded upon the Report, which the chief Commissioner had declared must be the basis of any such measure.


said, that he had not proposed that the Expurgatory List should be adopted without any revision, but he wished that it should be revised, and that it should then form the groundwork of a declaratory Bill.

Question put.

The House divided:—Ayes 43; Noes 26: Majority 17.