MR. NAPIER rose to move the following Resolution:—
That, in the opinion of this House, as a measure of Administrative Reform, provision should be made for an efficient and responsible department of public justice, with a view to secure the skilful preparation and proper structure of Parliamentary Bills, and promote the progressive Amendment of the Laws of the United Kingdom;
and said, I shall endeavour, Sir, by placing before the Mouse this Resolution, to redeem the promise I made towards the close of the last Session of Parliament, to bring under the consideration of the House a subject which, though domestic in its nature, is not inferior, either in interest or importance, to some of those more exciting questions of our foreign policy, which have of late engaged so much of our attention. The subject is manifestly of great moment, since it relates to the amendment and consolidation of our laws, and the composition and character of our current legislation, and the improvement generally of the administration of justice. It has been truly and wisely remarked, as a most singular circumstance, that while in our arts and manufactures, and in all other matters appertaining to the development and advancement of the country, improvements have gradually taken place—that in this which is of the last importance to the interest of every individual in the empire—the framing of the laws under which we live—no material advancement has been made, and that the subject can scarcely be said to have attracted any great amount of public notice. The subject is not an isolated or departmental question:—it is, on the contrary, one in which the whole community has an interest: the House
cannot but acknowledge its magnitude, nor fail to be sensible that it is its duty to take the subject zealously in hand, and to do everything in its power to improve, as far as possible at least, the theory and practice of its current legislation. I will invite, therefore, the calm consideration of the House, first, to the actual existing state of things; next, to the remedies that have been proposed, but have failed to accomplish the object intended; and lastly, to the remedy which in person I venture humbly to submit for its adoption. And I will add, that, having given notice of this subject so far back as last Session, I hope the House will be prepared to come to some conclusion in regard to it, for the public mind has become thoroughly wearied with all the plans that have been hitherto tried.
Perhaps it is first of all important to observe the magnitude of the evil with which we have to grapple—for men can never sufficiently appreciate the nature of a remedy until they have thoroughly mastered the magnitude of the evil to which it is intended to be applied. Now, I do say advisedly of our laws, that they are in a condition disgraceful to civilisation. We have, first of all, our written and our unwritten law—our statutes, our customs and traditions, and our mercantile law, scattered through innumerable volumes. We have, then, three distinct systems of legislation in progress—for England, for Ireland, and for Scotland—to each of which Parliament is every day making additions; so far as Scotland is concerned, I will do her the justice to say, she gives very little trouble; Scotland is very much of a self-supporting country. The Scotch do not interfere with others, and though they take, and very commendably, good care of themselves, they do not trespass very much upon the attention of the House. On the other hand, no division of the United Kingdom suffers so much from the present condition of our laws and our current method of legislation as Ireland. In my opinion, we are far from allowing the full benefits of the Union to Ireland; for instead of endeavouring to make identity of legislation the rule, and dissimilarity the exception, we have on foot for Ireland a very ineffective system of law-making—a system which is of a special and distinctive character, and which, being set in motion for the most part about midnight, does not tend to promote the interests of that part of the kingdom, nor to draw closer the
bonds of amity between the two countries. Putting aside private and local Acts, there are between England and Ireland no fewer than 18,284 public statutes. This enormous addition has been made to the common law of both countries, and is wholly independent of the Scottish law, which rests on a different basis altogether from that of England and Ireland, and one which I do not seek to disturb. Of statutes for England and Ireland, there are nineteen volumes Irish and thirty-four English. But in the case of Ireland there are additional elements of complication. No fewer than 2,263 statutes passed before the Union are peculiar to Ireland, and 1,300 other statutes of the Imperial Parliament enacted since that period also apply to that country only. The confusion of Irish law is, however, still worse confounded by the fact that in addition to the foregoing mass of statutes Ireland is subject, under what was called Poynings' Law, to all the Acts passed in England down to the reign of Henry VII., so that for that country we have a double set of statutes—a system of legislation which has occasioned injustice and inconvenience. Well, to the contusion thus introduced into the Statute-book, it will be necessary, in the first instance, to apply the work of reform. Lord Bacon, writing at a period when our public statutes were only 2,171 in number, remarked that—
so great was the accumulation of statutes, so often did those statutes cross each other, and so intricate were they, that the certainty of the law was entirely lost in the heap.
Yet during the reign of Her present Majesty alone, the public Acts which have been passed, almost equal the number in the entire Statute-book as it stood at the death of Queen Elizabeth. Some of the Acts still suffered to encumber the Statute-book are so absurd and even ludicrous in their nature as only to require to be named in order to be universally scouted. For example, one of these laws imposed a penalty on Irish prelates for collating an Irishman to a benefice in England, or for bringing an Irishman to Parliament to discover the counsels of Englishmen to rebels; another defined what classes of Irishmen might come to dwell in England, declaring that none should be permitted to do so who had not procured a testimonial from the Lord-Lieutenant; another related to the carrying of coals to Newcastle, a heavy penalty attaching to its infringement; another prohibited a man, under a pecuniary penalty,
from keeping more than 2,000 sheep; and another was intended to regulate abstinence from flesh in Lent and other usual times. At the close of Queen Anne's reign the number of public statutes in existence was 3,277, of which no fewer than 2,074 had been either wholly or partially repealed, had become obsolete, or had expired; leaving 1,203 Acts in force. Nevertheless, the most recent expurgated list contains 10,047 expired or obsolete statutes for England alone. Last year a Resolution was moved in the House for the sweeping away of this huge heap of dead legislation; but that most desirable object had not yet been accomplished. Indeed, the noble Premier told us the other night that the task was one which far exceeded the powers of the present Government, or any other that was likely to succeed it. Certainly that reply does not hold out much hope that anything will be done in the direction suggested by the Resolution submitted to the House—at any rate no attempt has as yet been made to carry it out, and that result, supplies I think, an argument in favour of the remedy which I shall endeavour to propose.
During the last Session of Parliament there were some 134 public Acts passed, of which ninety-two were applicable to the United Kingdom, ten to Great Britain, twenty-two to England and Ireland, and 102 to England; but all that mass of legislation was huddled together into the Statute-book, brought into it without any due consideration of the existing law. And yet that mischievous accumulation is allowed, although from the time of Elizabeth every enlightened statesman has felt that the country was groaning under the increasing weight. I will ask, then, is it for us, with all our resources and learning, to remain quiet, and take no steps to remove this incubus and dead weight which bestrides and oppresses the legal system of the Empire like a nightmare? Now, it is very remarkable, when we come to consider our abortive efforts, to contemplate the efforts made in other times and in other countries. And, first of all, to take the Justinian Code. That mighty work was perfected in less than four years—fourteen months being spent upon the task of expurgation and selection—from an accumulation of laws ranging over a period of ten centuries; while the Pandects and Institutes, reducing 3,000,000 of sentences to 150,000, were completed within three years. But how was that accomplished? Why, Justinian selected a
distinguished man, with a staff of seventeen lawyers under him. who gave their undivided energies and exclusive attention to a work which they regarded as an honour and ambition to execute, and which they executed with such marvellous success, as has rendered their conjoint labours a monument of wisdom for the admiration and instruction of after times. And what was the case of the Code Napoleon? Why, it was upon the 12th of August, 1800, that the commission of jurists was first appointed; and in four months after they submitted their report. That report was submitted to the press and the courts for their criticism and opinions. In July, 1801, the discussions on the project commenced in the Council of State, which were continued until January, 1802, when they were interrupted until September of the same year. They were then resumed, and continued until the 17th of March, 1804, when, after 102 sittings, the work was concluded. But we have a more modern instance of how the work of consolidation may be carried on, in the case of the State of New York, which has completed a digest of the statute law, incorporating with it so much of the common law as cannot well be separated from it, the whole being reduced to three octavo volumes; and Mr. Justice Parker, a Judge of the Supreme Court of New York, in July, 1853, said:—
The 'revised statutes' only profess to be a codification of the statute law; such parts of the common law as they comprise are only what could not be separated from statutory enactments. Practically no inconvenience is felt from the circumstance that part of the law is in the form of a code, and the remainder not; nor is the want of precise definitions of the terms used in the code found to create difficulty. On the whole, the revision is considered entirely successful, and is popular with the profession
So far, therefore, as relates to the Justinian Code, the Code Napoleon, and the reform of the New York Laws. We know that Bacon made proposals to James I., in his time, relative to the consolidation and reform of the laws. And when James made that eminent man Attorney General and a Privy Councillor, out of gratitude for the favour thus shown to him, he drew up a paper, declaring that the best return he could make to His Majesty would be to give up his time and attention to what he called the reducing and re-compiling of the laws of England, proposing to expurgate all repealed, obsolete, and unsuitable statues, especially the Penal Acts, which he thought were unfit to be continued upon
the Statute-book, as they were at variance with the spirit and temper of the times. And he goes on to make this pertinent remark, and I will advert to it because there are those who are in the habit of saving, "Let these obsolete statutes alone, they injure no one, and so take no further notice of them." Well, Lord Bacon pithily says,—
The leaving on the Statute-book Acts which are at variance with the spirit and temper of the times in which we live, impairs the authority of the rest; and we ought not to have the living die in the arms of the dead.
Therefore he says that, when you proceed to the work of remodelling our laws you ought to proceed in accordance with the wisdom and enlightenment of the age; and—what is more important than the mere technical improvement of the language of Acts of Parliament—you ought to take care to mark out the boundaries of legislation, allowing their due weight to the reasonable agencies, the education, and the moral influences of the age, upon which your legislation ought not to encroach. Lord Bacon, on the occasion I have already referred to, when speaking of the Justinian Code, alludes also to the Sexviri of Athens, who were "standing commissioners to watch and discern what laws waxed improper for the time, and what new law did in any branch cross a former law, and so, ex officio, propounded their repeal." And he says he would recommend commissioners of this kind to be appointed by both Houses of Parliament—not, however, to interfere and control the Houses, because Parliament would never give up its paramount functions, but only to prepare and propound. James made a speech to Parliament on the subject, and, in rather quaint language, he tells them:—
There be in the common law divers contrary reports and precedents; and this corruption doth likewise concern the Satutes and Acts of Parliament, in respect that there are divers cross and cuffing statutes, and some so penned as they may be taken in divers—yea, contrary—senses; and therefore would I wish both those statutes and reports, as well in the Parliament as common law, to be once maturely reviewed and reconciled, and that not only all contrarieties should be scraped out of our books, but even that such penal statutes as were made but for the use of the time (from breach whereof no man can be free), which do not now agree with the condition of this our time, ought likewise to be left out of our books, which, under a tyrannous or avaricious king, could not be endured; and this reformation might, methinks be made a worthy work, and well deserves a Parliament to be sat of purpose for it.
And although at that time the statutes did not number many more Acts than were passed in the reign of Her present Majesty alone, the evil was felt to be so great that the proposition recommended by Bacon to remove the accumulation was laid before Parliament. Coming down to the later period, Mr. Hargrave, a most enlightened jurist, well known to the profession of the law, alluding to the yearly augmentation of the evil, holds, in 1787, this language:—
Would Bacon and Hale have remained unconcerned spectators of the most dangerous of all juridical diseases? Would they not have earnestly supplicated the Sovereign, or, perhaps, the Parliament, to save the country from that ruin which must ensue the moment the science of law and the administration of justice shall cease to be practicable?
Now, since the time when this passage was penned, the statutes have doubled in number. At length, in the year 1816, the evil was felt to be so great, that a Resolution for classifying the statutes was proposed in the Lords, and was carried. A similar Resolution was then submitted to this House, and was assented to; upon which an Address was presented to the Crown, and some partial consolidation followed, and so the matter ended. Since that year no less than 4585 acts have been added to the public statutes. About the year 1816, however, the country possessed some great law reformers. There were Sir James Mackintosh, Sir Samuel Romilly, and Lord Brougham, who, from that day down to the present, has unceasingly given the country the benefit of his valuable and energetic labours. In the year 1826 we were presented with the great work of Sir Robert Peel, which I must declare to be one of the greatest monuments of his practical statesmanship and ability that he has left behind him. I refer to his consolidation of our criminal code. Monumentum ære perennius. Sir Robert Peel availed himself of the best assistance in perfecting this consolidation; and he freely acknowledged that when he applied to the lawyers and Judges for their assistance, it was conceded in the most hearty manner. Accordingly, that attempt was eminently successful. But this step in advance applied only to our criminal law. In 1833, when Lord Brougham was Chancellor, he appointed a Commission which gave in its Report in 1835, and they came to this conclusion:—
We also think that a complete and systematic consolidation, accompanied with an adjustment of
the enactments to precedent and judicial decision, is practicable and desirable; but so extensive a reform, however beneficial, could not, we are aware, be safely accomplished without great pains, nor ought it to be attempted without cautiously weighing the means of performing so arduous a task, and steadily contemplating the difficulties to be encountered in its execution.
Nevertheless, nothing was done. So it would seem there has been a great deal of advising, a great deal of pointing out what ought to be done. Well, we want the thing to be done. In 1843, Lord Brougham addressed a letter to the right hon. Baronet the Member for Carlisle (Sir J. Graham), who, I believe, took a deep interest in this subject when in office. At last, in February, 1853, the present Lord Chancellor laid before Parliament a plan for the consolidation of the statute law. He proposed that the work should be commenced forthwith, and his plan was, I think, an admirable one, and it only required to be carried out effectively. He proposed to begin with the work of expurgation—then to classify—then to consolidate—and, when the consolidation was effected, they were to take pains as to the new additions—and it is a very important point that, while we are consolidating the old law, we should not go on accumulating new statutes, which would require to be dealt with in a similar way hereafter; for, above all, the principle was to be kept in mind as of the last importance, that when you set about amending the old law you must take care to preserve the standard of reformation so as to bring it to bear upon your new legislation. I believe that if that plan were carried out properly, you might stand well, and might proceed wisely in the work of legislation; and, observe, instead of having a double set of English and Irish Acts, you might have one Imperial code for the two countries, as well before the Union as after it. What I think ought to be done is this—we ought to take the two sets of statutes, availing ourselves of the decisions pronounced, and reduce all to one code for England and Ireland, continuing the work after the Union, when the task would be the more easy. And here I must confess my disappointment when I lately heard the noble Lord at the head of the Government, speaking of the first feature of the plan proposed by the Lord Chancellor in 1853, which every one must consider necessary, say that it was impracticable. I cannot help hoping that, occupied as the noble Lord is with matters of such importance to
the country and to Europe, he unwittingly gave utterance to an opinion by which, on more mature reflection, he will not wish to abide.
I have thus pointed out to the House the state of the existing statute law, and I think I have shown that it is in a state in which it ought not to remain; and that though various efforts have been made from time to time by means of various Commissions to bring about a reform, the Commissions had not succeeded in effecting the work committed to them. I now come to the next branch of my subject, which will, I think, be found of still greater importance. I mean our current legislation. I fairly confess, however, I am all but appalled by the magnitude of the evil now before me. With regard to the laws which have already been made, though it is not creditable to any country that our statute law should remain in such an unsatisfactory state as ours in England, and though the laws ought to be reduced to a practical and intelligible form, yet, aided by the good sense of the people, we may struggle on, ill-digested as the law is. But when we come to our current legislation, we must acknowledge that the magnitude of the evil requires that it should be grappled with at once. It has frequently been my desire to do what I could to the best of my ability to assist in the work of legislation; but I am obliged to own, I have failed in that object. I find, night after night, the same faulty system pursued; the same style of Bills brought in over and over again; the same statements made, and the same announcements delivered by the organs of the Government—"Oh, we will let you introduce your Bill, but we will not promise to consent to its details." And so it goes on night after night, and Session after Session. The other night we had a Bill before us relative to the execution of judgments throughout the United Kingdom. Why, we have had the same measure before us for the last four or five Sessions, and it now stands for second reading. At first I was inclined to think the measure might be a useful one; however, after considering the subject before a Select Committee, I saw reason to change my opinion, and it was rejected by the House, now to be reproduced. The other night I heard that my hon. and learned Friend near me (Mr. M'Mahon) is going to let us have the old Fishery Bill once more to bewilder us. Now I wish that some of our financial gentlemen would take account of the cost of this abortive
system of legislation, for I think the amount of money thus wasted would be adequate to keep up a competent staff to assist us in legislating wisely. My idea with reference to the framing of Bills is this—that you cannot have a Bill properly framed or carried out until it becomes an Act of Parliament, unless some paramount authority, having charge of the Bill, understanding the whole subject, will consider every Amendment made in it with reference to the whole, at the same time being thoroughly versed in the state of the law connected with the subject referred to by the Bill. At present Bills are often introduced by non-professional gentlemen, who may have some particular interest to advance by the particular subject of them, but who know nothing of the existing state of the law in reference to the measure proposed. Well, when they are proposed, the Government look around, and ascertaining that it will be prejudicial to their interests to oppose their introduction, permit them to be introduced, intending however, to trip them up in the scramble upon some subsequent stage. Now that is not a proper state of things. In 1828, Lord Brougham brought forward his great plan of law reform, and I believe most of his recommendations, thought then by many to be visionary, have been ultimately carried out. Before that time Sir Samuel Romilly, that able man, supported by a small handful of coadjutors, suggested many reforms that have since been carried out. My impression is, that if you had a department—presided over by a wise and learned administrator, assisted by a competent stuff, to watch the state of our laws, and to supervise every measure, to observe the working of the law, and to propound seasonable and apt amendments—a remedy for the evil now complained of would be afforded. In my humble judgment, nothing is more calculated to prejudice the work of law amendment than by delaying needful reforms demanded by the exigencies of the times; for in course of time people get tired of waiting, and are finally glad to accept some rash and undigested effort in place of a matured and well-arranged scheme. Lord Brougham, in his speech, in 1848, on the subject of law making, enumerates a number of extraordinary mistakes made by the Legislature; and although the amount of these mistakes justify the language he had used in respect to them, the noble and learned Lord was by no means very complimentary as to the system
of legislation which occasioned them. The noble and learned Lord said—
Here the Legislature bears the aspect not of a doting person, who forgets in old age recent events, not recollecting one day or one hour what he had said the day or the hour before; but of one who, being in the very last stage of mental imbecility, forgets at the close of his sentence what he had said at its commencement."—[3 Hansard, xcviij. 886.]
He then proceeds to give instances the most singular as to the state of the law. Of one section being wholly forgotten in the enactment of another—and of the complete contradictions which were exhibited in the several provisions of the same Act. He then gives some striking instances in which such anomalies occur, with which the House is not unfamiliar. There are some, however, in regard to Ireland, which I shall slightly allude to, for the purpose of showing the great inconvenience and injustice of the system. There was a statute passed in 7 & 8 Vict. c. 76, to facilitate the transfer of land. In the next Session it was found necessary to amend that Act, and a statute was accordingly passed to amend it. In the third section it was necessary to except the operation of a clause, but, by an unfortunate mistake in using the word "release," instead of lease, the greatest confusion arose. Litigation and discussion arose, and the benefit of the statute was for some time lost to Ireland. One would suppose, after Lord Brougham's exposition of the evils of this system, in 1848, that the matter would be in some degree remedied. But no. In 1849 an important statute passed on the 26th of June in regard to certain leases made under powers affecting lands held in perpetuity. Well, another Act was passed in the same Session, being c. 110, to suspend the operation of the previous Act; and then came an Act, in the early part of the subsequent Session, to amend them both. As regards the regulations of process and practice in the superior common law courts in Ireland, the case is still more peculiar. For example, the 13 & 14 Vict. c. 18 was passed to enact a certain law, and then the very next statute, c. 19, was passed to amend c. 18. And then, during the very next Session, the 14 Vict. c. 17 was passed to amend both. Now, what occurred when the English Procedure Act was brought in? The 103rd section of the English Bill, when going through the House, was intended to extend to all the courts of civil judicature, both of England
and Ireland, a number of clauses, from the 18th to the 32nd, which should apply to all these courts. But when the Bill went up to the House of Lords, there was some section omitted, which altogether altered the original numbers of the sections. The extension of some of the clauses thus became confused and unintelligible. The 33rd section was not applicable in its nature to the inferior courts in England, and it was not required at all in Ireland; but although another part of the measure was much wanted in Ireland, it produced great delay in that country, which entirely lost the benefit of the 18th section, which was of the greatest importance, and the 33rd, which was not wanted, was substituted in its stead. Next year a Bill was brought in to amend this Act in regard to Ireland, and subsequently another Bill to amend it in regard to England. Such cases would be impossible if there existed a proper department to assist the business of legislation, presided over by a man of experience, whose learning and labour would be at the service of the House. When laws are to be made we should have the benefit of the combined knowledge and wisdom of the most experienced heads: the laws should be made upon some sound plan combining uniformity and system; when hon. Members apply for leave to introduce Bills, there would be a Minister of Justice in the House, who would be able to inform the House as to the state of the law upon the particular subject, and to say whether such a measure was needed. By such a system the country would be saved an enormous expense. I do not, however, put forward this question upon the ground of economy. I put it upon the ground of efficiency, for efficiency ought to be the first end aimed at—generally speaking, whatever is most efficient will be found the most economical. If you tot up the expense occasioned by litigation in consequence of the blunders of Acts of Parliament, by the printing of Bills brought in to increase, and others to remedy these blunders, by the delay and confusion created, by the printing and upsetting in duo time of so many abortive measures—if, I say, you tot up all this expense, you would find that there would be a great saving to the country in point of money, if a system such as I propose were adopted, and by which all legislation would be carried on in a direct, efficient, and straightforward way. Let us have a proper person appointed to preside over a separate
department, to superintend it, and to sit in this House, who could apply his whole mind and knowledge to this one great subject. The country is entitled to the best services that can be obtained wherever they can be had. A man's first duty is to his country. The country has the first claim upon the best ability that can be had: and if the expense of the system I suggest is greater than the expense of the present system, that will be no argument aginst it. I say that plain justice requires that our legislation should be based upon such a system as I propose. The Acts of our Legislature, which affect the well-being of the community, the peace of society, and possibly the union of the two countries, should be drawn up in a plain, intelligible, and comprehensive manner. It is an object most worthy the attention and the consideration of Parliament. Another source of inconvenience and anomaly arises from legislation on the same subject being founded on the Reports of Commissions, having no communication with each other. Now, what occurred in regard to the Justices of the Peace Acts? There was a law passed on this subject for England in the Session of 1849. In the next Session there was a law passed for Ireland. In the course of four years these Statutes were changed three times. The greatest confusion was occasioned by one of these Acts having inadvertently repealed the Small Tenements Act, and the Repealing Act had to be repealed. We see often, when Acts are prepared by different Boards and Commissions, that great mistakes also occur. There were two Commissions existing in 1833—one to inquire into the state of the common law, and the other into the law of real property. These separate Commissions brought in two ably-drawn Bills; but by one of these Bills the limitation for the recovery of rent was six years, while by the other the term was extended to twenty years. Both Bills passed the Legislature in the same Session, and became law; the natural consequence was, that a conflict of litigation subsequently took place in order to decide which period was the true limitation. Now, this was the result of appointing two sets of Commissioners without unity of plan. These two bodies did not communicate with each other, but introduced separate measures, which were passed without much criticism, because it was naturally presumed that, emanating from such authorities, they were properly
drawn up. What occurred in 1848, in regard to the Bankruptcy Act, passed for Ireland? I took a clause from Lord Brougham's Digest, and put it into the Irish Bankruptcy Bill, and that Bill received the assent of the House. The House of Lords then sent down a Bill for England, containing the same clause; and the House of Commons cut out that very same clause from the English Bill which they had before admitted into the Irish Bill; thus making an important difference between the laws of England and Ireland. In our duplicate legislation, a small verbal difference gives rise to inconvenience and litigation; and it also happened that occasionally, when it was discovered that in an Act amending a former Act, which did apply to England and Ireland, some words were employed which did not include Ireland, or the recital referred only to the former English Act, doubts were raised as to whether any portion of the amended Act applied to that part of the Empire. There was the Act for the Apportionment of Rent. It was an Imperial Act, but it only recited the English Statute, there being a parallel Statute in Ireland also. What was the consequence? Discussions arose as to whether the new Act applied to Ireland—because the English Act was alone referred to. In the last Session we had an Act to amend the Fines and Recoveries Act. There was an Act for England and an Act for Ireland, which were, however, very similar, but not identical, in their language. The new Act only recites the English Act, and again the question as to Ireland is reopened. Surely in such cases from the beginning, we ought to apply the one Act to the two countries. I will mention another instance of the irregular and unjust manner in which legislation is conducted. The Board of Works passed an Act of Indemnity, as I might call it, generally every year. What occurred last year? Towards the end of the Session it was brought in at a time when the Members were leaving, and when there was little chance of any successful opposition. An Act was passed in 1853 which was disapproved of generally in Ireland. Well, last year I found this other Act still more objectionable framed upon a similar model. I spoke to several Members whose constituencies would be affected by it to oppose its passing. I myself had to remain ten days in London, watching the Secretary of the Treasury, like a police officer day
and night—for the House was then sitting continuously—with a view of opposing the progress of the measure. I went to the Secretary for Ireland to ask some questions about it, and I was told that it was not in his department. The Solicitor General for Ireland, on being applied to, said the same thing. I then asked whose Act it was, and was informed that it belonged to the Treasury Department. I had to threaten that if it were not modified, and made more conformable to reason, I would take strong measures against it in both Houses. Ultimately, after waiting at the House for ten days together, and having come over from Ireland for this purpose alone, by dint of perseverance, but at the expense of great personal annoyance, I succeeded in getting the Bill much modified. Now, surely a Member of this House ought not to be subjected to such a state of things as that; whereas, if there had been a proper and responsible officer in the House, I could have gone direct to him, and stated my objections to him, and held him accountable for the result.
Such, then, is the way we are now proceeding with our current legislation. You will now see how many men of high position from time to time have attempted to remedy this evil. Lord Bacon advised the appointment of Commissioners in Parliament, like the Sexviri at Athens, to watch all the current measures, and to declare what the law was, and whether it required any improvement or alteration. Lord Brougham, in his speech of 1848, said this—
I have often urged the necessity of a Board being formed of skilful professional men, not to supersede, but to aid both Houses of Parliament in the preparation of public Bills. It is a task which no one man, how gifted soever, can hope satisfactorily to execute, because several men are required of different habits of thinking, of various turns of mind, to sift the subjects successively dealt with in our numerous Statutes. At the head of this Board should be the Minister of Justice or his deputy. The necessity of this office I have repeatedly urged, and I may before I sit down once more recur to the subject."—[3 Hansard, xcviii. 893.]
In 1849, also, the noble and learned Lord addressed a valuable letter to Sir James Graham upon the same subject. Let me now call attention to the evidence given by Lord Langdale, who was examined in 1848 before the Committee in respect of fees in courts of justice. Lord Langdale said—
My opinion is that you want an office of Government in which the affairs of justice should be the particular object of attention. I would not desire any greater proof of the necessity for such a Minister than may be seen by looking at the condition of the several courts of law and equity, and in examining the Statutes passed in any year for many years last past. Look at the way in which Acts of Parliament are expressed, and how they have to be interpreted by the Judges, who often toil in vain to find any meaning, and if, in the absence of any constituted authority, or of any person specially charged with the duty, some individual should attempt an Amendment of the Act, it is not improbable that the Amendment may prove as unfortunate as the Act itself.
Then he said—
How frequently important Acts of Parliament are passed in such a state that it is almost impossible for the Courts to act upon them; what blunders are continually made in legislation; how it becomes necessary to repeal in one year what has been done in the former year, because it is manifestly erroneous; when we see all this, we must, I think, be of opinion that it is absolutely necessary to endeavour to establish some better mode of proceeding, to provide an authority for the collection of the required information, and to bring to the rescue all the skill and experience which can be obtained, for the purpose of securing more prudent and careful legislation.
He went on to say—
You ought no sooner to discover a defect, or what appears to be a conflicting course of proceeding, than you ought to report that to the authority, whose duty it should be to consider of a remedy;
and he added—
I think that you would have a very laborious and busy office, and acquire something like a hope of improving the law and the administration of justice upon a steady and prudent plan.
Again, he said—
I believe you cannot work out a system of safe and national law reform without an authority of that kind.
There was an important discussion in the House of Lords on the 14th of March, 1853, in which Lord Lyndhurst drew attention to the state of our current legislation. The Lord Chancellor had then given notice of a measure for the consolidation of the statute law. Lord Lyndhurst took the opportunity of drawing their Lordships' attention to the current legislation, the cause of its imperfections, and the remedies he proposed. In the course of his speech, the noble and learned Lord instanced a case which had given rise to much litigation and discussion, in consequence of the occurrence of the word "may" in an Act of Parliament. The case was argued in one
Court for some days, and a decision at length arrived at. Subsequently the case was brought into another Court, when a contrary decision was come to. That inconvenience would have been remedied if the Legislature had used the words, "may at his discretion," or "shall at his discretion." Lord Lyndhurst then expressed himself in the following language—
It always appeared to him that it would not be difficult to provide a remedy; that they ought to have some person of competent information appointed by the Government, with such assistance as might be necessary, to make himself master of every Bill, to watch it in its progress, and to communicate from time to time to some authorities in either House any observations that might occur to him with reference to the Bill, either in its original or amended state. It was a subject for the consideration of the Government." [3 Hansard, cxxv. 136.]
The Lord Chancellor, on the same occasion, said—
He felt as strongly as his noble and learned Friend could feel the absolute necessity of coming to some arrangements whereby their legislation for the future might be made more perfect than it now was.
Lord St. Leonards observed—
Here lay the true remedy for the evil—that every important Bill should be framed by a competent person, and that no one should be allowed to introduce an alteration which was not afterwards submitted to the person who framed the Bill.
On the 28th July, 1853, after adverting to improvements in legislation, with regard to private Bills, Lord Brougham said—
But when we shall have put this branch of legislation upon a right footing, surely we cannot stop short of the other, and leave the preparation and passing of Public Acts in its present most unsatisfactory state. How often have men of all parties avowed their ardent desire to see this grievous defect remedied, whether by appointing a Minister of Justice, or a Board, or a Board acting with or under that functionary. All men are agreed on the evil. No one denies or doubts its magnitude, Yet I remember a lamented friend of mine in this House, one of the most sagacious of observers (Lord Ashburton), saying, 'This is, of all the improvements you have ever propounded, the most undoubtedly required; and, nevertheless, you will find it easier to carry all the rest than this.' I would fain hope that the time approaches when the difficulty may be overcome." [3 Hansard, cxxix. 848.]
I find the Statute Law Commission, at the end of the last Session, conclude their Report thus—
Perhaps nothing satisfactory towards the improvement of future legislation can be effected until either a Board or some other persons are
appointed whose duty it shall be either to prepare or revise and report upon all Bills before they are brought into Parliament, and to watch them during their progress through the two Houses, either as officers of the Lord Chancellor or some other minister, or as officers of the two Houses of Parliament.
Now, it is my opinion, that the main cause of the failure of these attempts at legislation is the manner in which the responsibility is scattered. It does not do for a man preoccupied with other engagements merely to sit down and spend half an hour or so with the disposition to forward law reform. The Members of the Government have a multitude of other occupations to attend to; there is no concentration of mental power upon this great subject. It is confessedly a great, nay, a gigantic work, requiring men of great power, ability, and energy to carry it out. But that is the very reason why that work should be attended to by a man, or a body of men, whose sole duty it should be to help forward efficient legislation. What has been said, that everybody's business is nobody's business, is perfectly true as regards legislation. We see every day individual Members ushering into the House Bills on various subjects, many of which require an amount of attention which no individual Member, private or otherwise, can be expected to give to them; and amid the pressure of business generally the most imperfect measures are sometimes permitted to go forth as law. If a man wants a deed connected with his own property drawn up, he will go to the man well, if not best qualified to prepare it. Such, however, is not the practice in this House. Lord Lyndhurst in compliment to Lord Brougham, said he was the chargé d'affaires as regarded legislation until a Minister should be appointed to preside over that important branch of the public interests. No doubt the noble and learned Lord has done great things, and the country ought to feel greatly indebted to him. At the same time, unless a man has the office and the authority properly committed to him he cannot adequately perform the duties he may be willing to undertake. What takes place? We send our statutes before the courts. They are sometimes carped at by the Judges, who, in trying to explain their meaning, are often heard to say, "it is not easy oven to guess what the intentions of the Legislature were when this Act was drawn up." And sometimes our statutes are held up to open ridicule. The Legislature, to be sure, have sometimes
retaliated upon the Judges by saying that their objections are merely technical and forensic. Now that, I say, is injurious to public justice and the authority of law; it is not the state of things which should exist, or which could exist, if we had the Legislature and the Judges co-operating together as they ought; the one giving us valuable suggestions founded upon their observations as to the working of the law, and the way in which it might be improved; while the other body could effectually carry out these suggestions and improvements by well-considered measures of legislation. If we had a proper person of high standing, and with the kind of staff required, he could communicate with the Judges upon all subjects connected with our legislation, and could obtain ample assistance from eminent jurists and other authorities. He would also have the opportunity of receiving most valuable suggestions from all parts of the country about amendments in the law. Many good suggestions are constantly coming up from the country; but in the present state of things one does not know what to do with them. In my humble judgment, if we had a proper department constituted for this purpose—one that would receive and record every practical suggestion made to its head—that would hold communications with magistrates and judges, and that would preserve a record of judicial decisions and constructions—that had in its employ a skilful body of draughtsmen to prepare Acts, &c., in a proper and efficient manner, and persons acquainted with Irish and Scotch law who would see that our laws were made as Imperial as possible, it would be one of the greatest advantages that could be conferred upon the country. And we should then have the Houses of Parliament engaged with broad principles and great truths rather than with petty details, with which we have too often to deal most injuriously under the present system; we should have our Acts of Parliament uniform and harmonious. We should have our laws properly classified in our Statute-books; and if we could get our laws properly expurgated, classified, and consolidated, we could at all times be enabled to amend our statutes without disturbing the whole framework of our legislation. Taking any one of our Statute-books we find the enactments flung together, as with a pitchfork, in a confused heap. Commissions and Committees and amateur legislation have been tried in vain. I would get rid of all that; but
the reports of these Commissions and Committees might be rendered available by a proper department, such as I have described. There is a great body of information now before the country supplied to us by practical men. We have a great body of wise hints which have been suggested by the working of the law. With a proper staff of good workmen all this would be available. We have a Board of Public Works, we have a Department of Public Health, we have a Board of Trade, we have a department for the affairs of War; and it is now proposed that there shall be a separate department for Education. I ask you, then, whether you do not think that Justice is entitled to a department as much as any one of these subjects I have mentioned? Is not this a subject that concerns every man?—which concerns the dignity of the Legislature, the authority of the law, the security and the peace of society—for are not all these involved in the establishment of such a department, filled by eminent and practical men, to carry out one great system? My opinion is, that the current law of the land ought to be the expression of the mind of the people of this intelligent community; and that the old laws should be amended and reduced to conformity with this standard of excellence. We might thus be able to realise the science of jurisprudence which ought to fix the true boundary of wise legislation. It is not for me to dictate, though I have considered the details of this department. I think the better course to take would be to appoint a proper person in the first instance, who would be competent to organise the department and to work out the details of it. Act as regards this department as you have acted in regard to the other departments of the Government. Do it at once, and do it with energy and determination. I only hope that the House, as they have got the subject before them, will now give me their opinion on my proposition. I brought it forward at the end of last Session; and all my conferences with enlightened and intelligent men since then have confirmed me in my resolution to persevere with this remedy, and to take the sense of the House upon it. I ask you to unite together, like men of sense and decision, to rescue our laws and the administration of justice from the state in which they now are. Many good things have been done; but even yet, in the administration of the law we have delays which inflict hardship
and injustice. But would you have had the working of many of our laws in their present inconvenient state if you had long ago established a department of this kind? Look to your Ecclesiastical Courts, and see the reforms which are so urgently required and are still doggedly withheld. Look to your Church system;—no Church discipline can be properly enforced—look to your County Courts—they are far from being thoroughly organised and established. Look to your highest Court of Appeal, and say whether you can justify the condition in which it struggles on. Even your ordinary procedure is in an unsettled state. Here, then, you have a great work to do. I do not see, for the life of me, why in the department of the law there should be any difference between England and Ireland in mere matters of procedure. A great object should be to relieve all courts as much as possible from technicality and form, leaving them to decide upon the substantial rights of parties. I propose that this new department of justice should occupy itself with the amendment of the old law, with the supervision of the current legislation, and with keeping a watchful eye upon all measures for the reform of the law. We are told in the eastern fable that it was by the cleansing of the old lamp that the secret of its power was discovered. If we are in good earnest we shall be able to summon the Genii of the Lamp to our assistance. We shall have voices from the dead to urge us forward. We have to support us the example of the enlightened Bacon, the noble simplicity of Hale, the manly and majestic wisdom of the lamented Romilly. We shall have the aid of one who still survives—one to whose exertions in the cause of law reform a deep obligation is due; to whom may be applied the language of my eloquent countryman—that he has "winged his eagle flight against the blaze of every science with an eye that never winks and a wing that never tires." I mean Henry, Lord Brougham, who, during a long life, has devoted himself to the cause of law reform, persevering to the end with a vigour and energy perfectly wonderful at his advanced age, "for his eye is not dim nor his natural force abated." It is earnestly to be hoped that effect will now be given to a proposition which that noble and learned Lord has so often and so ably submitted to Parliament. I do hope that the House will now join me in giving effect to the proposition which I now humbly make, if we
are in earnest we shall succeed, and we may make our laws consistent, rational, clear, and intelligible. Then let us write them upon new tables and deposit them in the sacred ark—the respect and the affections of the people.
§ MR. COLLIER
, in seconding the Motion, said, the able and comprehensive speech which had just been addressed to the House by his right hon. and learned Friend made his task a very easy one. He might observe, however, that it was almost impossible to overrate the importance of the question which his right hon. and learned Friend had brought before them. True, it was not attended with much popular excitement; the right hon. and learned Gentleman did not come with his hands full of petitions, or supported by declamations from the hustings and the platform; the subject might never make a very valuable electioneering cry; but it was one of far more importance than many which had agitated the country from one end to the other. It was one which affected the general health of the body politic. Nations, like individuals, were very apt to be careless of their general health, while sufficiently impatient of any acute disease; when political maladies, such as the rottenness of our representative system, the restrictions on our trade, became unbearable, then, indeed, the outcry was loud enough, and the remedy was somewhat roughly administered amidst a good deal of excitement and clamour. But this Motion addressed itself to an old constitutional malady, which pervaded to a certain degree every member of the body politic, but which, because it was not absolutely intolerable—and we had been used to it time out of mind—we were apt to regard as an unavoidable dispensation of Providence, rather than the result of our own supineness and neglect. He believed the evil to be, that our jurisprudence had not kept pace with the progress and development of the nation, and so necessarily tended to clog and retard them. Our national character, habits, manners, modes of thought, had changed since the middle ages more than our laws. In all other departments of the State, in manufactures, shipping, matériel of war, we were anxious to avail ourselves of every new invention, and all the resources of modern science; and yet in our courts of law we had a fancy for strange mediæval machinery, venerable with the accumulated dust of centuries. We had at present tribunals 636 and modes of procedure as much out of date and out of keeping with everything around them as a galley of the reign of Elizabeth would be among a fleet of steamers. We had courts of law with machinery so defective as not only to be unable to do complete justice to suitors, but to be occasionally compelled to do injustice; and, as a remedy for that evil, we had another set of tribunals acting on different principles and restraining the first in their involuntary career of iniquity. Not content with courts of law and equity, we had Ecclesiastical Courts, acting upon a third set of principles, and with a third mode of procedure, all this machinery being so admirably arranged that the three sets of Courts might be all brought into operation at the same time upon the same subject-matter with different results. Again, we had the highest tribunal in the country—the Supreme Court of Appeal—which ought to command the respect and veneration of the whole people, reduced to two law Lords, differing from each other and coming to no conclusion. He need not allude to the differences between the law of real and that of personal property, some no doubt inherent in the nature of things, others arbitrary and conventional; or to the numerous abortive attempts to facilitate the transfer of land, and thereby relieve it of some of its most grievous burdens; or to the unsatisfactory state of the law of husband and wife, which permitted men who could afford it to purchase from the Legislature, by way of indulgence, that divorce which was unknown to the law. Nor need he allude to the unsatisfactory state of the law relating to church discipline, sufficiently exemplified in the recent case of an unfortunate archbishop, who, intending only to institute a preliminary investigation, found himself set in perpetual motion by a mandamus from the Court of Queen's Bench, and ingulphed in a bottomless vortex of litigation.Fluctus ibidemTorquet agens circum, et rapidus vorat æquore vortex.He need not at that time refer to the defective state of legal education, and the imperfect arrangements of the Inns of Court, the result of which was that, although we had many able practitioners in every practical branch, yet we bad few men capable of comprehending the whole law of the country, and fewer still with 637 any comprehensive knowledge of jurisprudence as a science. Next there was the Statute-book, which was a collection of laws "without form and void," arranged upon no conceivable plan, of which no man could say how many were obsolete, how many repealed, how many were still in force, and which had hitherto defeated every attempt at consolidation or arrangement. The worst of all was, that these evils were not past but present, continuing, and increasing. Every year the stream of turbid and confused legislation flowed on, annually depositing a certain amount of noxious sediment, full of the seeds of litigation; and unless means were taken to stop or purify it, would continue to flow in omne volubilis œvum. Some, no doubt, would almost despair of remedying so gigantic an evil; yet should it be said that the Roman laws, having accumulated for ten centuries with scarcely an attempt at digesting them, were reduced to order in the space of three years—that Napoleon was able, amidst the distractions of a new empire and the unsettled state of public affairs, to codify the laws of France—that the Americans had codified the laws of New York—that almost every country in Europe, except ourselves, had a code of laws—but that, nevertheless, to put our Statute-book into anything like shape, and to adapt our laws to the exigencies of the times, was a task beyond the ingenuity, industry, and perseverance of the English nation? Were we prepared to give up the task as hopeless? If we had done our best and failed, there might be cause for despair, but our main hope for the future lay in this, that we had scarcely taken a step in the right direction. The true secret of failure was, that the reform of the law was nobody's business. It was manifest, without the slightest disparagement of the law officers of the Crown, that that was a task which they could not accomplish. The Lord Chancellor, for example, who was one of the most overworked officials in the kingdom, had his judicial duties to discharge—his duties as Speaker of the House of Lords, his duties as an adviser of the Crown, and his duties as the patron of a vast number of livings, and he consequently had no time to devote to the great work of law reform. It was but recently that law reform had been considered any portion of the functions of a Lord Chancellor. During the period that Lord Eldon held the office he (Mr. Collier) 638 was not aware that he ever proposed a single measure of reform, and he seemed to regard it his duty to oppose and thwart all such proceedings on the part of others. That venerable guardian of existing institutions apparently thought it his duty to watch with jealous eye the intrusion of profane reformers into the sacred and mysterious precincts of the law. The Attorney and Solicitor Generals had their private business and public duties to attend to, and they could not be expected to apply themselves to the task. Recourse had consequently been had to Commissions, but he was sorry to say they had not generally turned out to be satisfactory. The Common Law Commission was, no doubt, satisfactory within the comparatively limited scope of its powers, but unfortunately several Commissions seemed to have been selected on the principle of balancing conflicting opinions, so that the result was equilibrium or dead-lock. The Commission on the Law of Partnership, for example, reported that the state of the law was satisfactory, and should not be altered, a Report which had been reversed by the all but unanimous decision of the House. In the Commission on the Ecclesiastical Courts five differed from three on some points, two differed from seven on others, and one differed from all the rest in everything. Then recourse was had to a Board to revise and consolidate the statutes, which effected nothing, each Commissioner taking a ramble for himself among the mazes of the Statute-book, and in the end coming back to very much the place he started from; and that Board was again succeeded by a Commission which did no better, and the result was that the Statute-book remained impregnable, no improvement whatever having been effected. It was quite clear, therefore, that if we wished to succeed we must take some means of a totally different character from those we had hitherto adopted. He would not rely on the example of foreign countries, but would ask the House to look at the precedents furnished by our own. We had the precedent of a Minister at War who had reduced the chaos of military administration to something like order, and we now saw a portion of the Serpentine flowing through the Horse Guards. We had also a Minister of Poor Laws who exercised his functions with singular success; we had a Minister of Health and of Works, and why should we 639 not have a Minister of Justice? The task of simplifying and consolidating the Statute-book was a great work and one that ought to command the time and energies of the ablest men they could get. It was not a work to be trifled or coquetted with—it was not to be the amusement of the dilettante lawyer, or the casual occupation of the spare time of the busy practitioner—it was a work which ought to occupy the whole mind and attention of the most earnest, able, and vigorous man whose services the country could command. The Government would gain strength from the appointment of such an officer, and he believed it would hereafter be as necessary for the Government to have a budget of law reform as a budget of finance. This Minister of Justice (he did not care by what name he was called) should have a competent staff and offices, to which should be returned all the judicial statistics of the country. We were singularly deficient in judicial statistics, both civil and criminal, and in that respect we were behind all other countries in Europe. This Minister should have the means for collecting extensive information as to the working of the whole system of the administration of justice, and from that information it should be his duty, in conjunction with his colleagues, to prepare those measures which the Government were to submit to the House. In addition to that he might, with great advantage, superintend general legislation. He did not mean to say that he should dictate to, or interfere with, private Members, but he believed Members generally would be glad to have a competent authority to refer to, with the view of ascertaining the technical effect of Bills or Amendments which they wished to introduce, and if such an officer existed, they would avoid many gross errors of legislation. On this subject he would relate an anecdote which had been told by Lord Lyndhurst. Some time ago a Bill was passed, making it penal to forge a parish register, and the penalty it imposed was divided into two moieties, one-half of which was to go to the informer, and the other half to the parish. It was thought, however, that pecuniary penalties were not enough, and a proposal was made to substitute, by way of punishment, transportation for fourteen years. A clause to that effect was carried, but the proviso with regard to the division of the penalty remained, and the consequence was that the informer 640 and the parish had to divide the fourteen years' transportation between them—the parish had to be transported for seven years, and the informer for seven years. Now, mistakes of that sort could not possibly happen if the officer he described were appointed. The Motion of his right hon. and learned Friend, indicating, as it did, a pressing want, which was generally felt and acknowledged by Lords Lyndhurst, Langdale, and Brougham, and by the Attorney General, and indicating a remedy without presuming to dictate to the Government the precise form in which that remedy was to be administered, was an important step in the direction of law reform, and would, he trusted, command the approbation and support of the Government and the House.
Motion made, and Question proposed—
That, in the opinion of this House, as a measure of Administrative Reform, provision should be made for an efficient and responsible Department of Public Justice, with a view to secure the skilful preparation and proper structure of Parliamentary Bills, and promote the progressive amendment of the Laws of the United Kingdom.
§ MR. BAINES
said, that in his opinion that House and the public were greatly indebted to his right hon. and learned Friend (Mr. Napier) for having brought the subject of his Motion before them, and for having done so in so able and interesting a manner. It was a subject the importance of which it was hardly possible to exaggerate. He (Mr. Baines) himself had long had occasion to observe and lament that state of things with regard to the statute law of the country, which his right hon. and learned Friend had so clearly pointed out. He believed he might, without fear of contradiction, say that not only in that House, but amongst the public at large, there was a general concurrence of opinion as to the existence of great evils in the condition of our statute law, and also as to the necessity of some speedy remedy for those evils. The only question that could be raised on the subject was, what that remedy should be? His right hon. and learned Friend had not himself proposed any distinct remedy; though he had, he (Mr. Baines) thought, established to the perfect satisfaction of every one who had heard him, that there did exist a state of things which called for some remedy or other. Indeed, the right hon. and learned Gentleman had set out by stating that he did not propose to suggest very minutely any particular remedy. He had spoken merely of the establishment 641 of a department of public justice. He (Mr. Baines) observed that on that subject the views of the right hon. and learned Gentleman differed greatly from those of the hon. and learned Member for Plymouth (Mr. Collier), who seconded the Motion, but who suggested the appointment of a Minister, whose functions would be much more extensive than those of such a public officer as that alluded to by his right hon. and learned Friend (Mr. Napier). To speak of a Minister of public justice for the country, and of a department of public justice being added to the Government, was simple enough in itself; but the House should remember what, to the public mind, was involved in that proposition. Some persons would be disposed to think that a Minister of public justice would have high political as well as legal functions; and he rather thought that that was the view taken by the hon. and learned Member for Plymouth; but the right hon. and learned Gentleman who had brought forward the Motion had, on the contrary, most carefully abstained from any suggestion of that kind. He had confined himself to the question whether it was or was not desirable, on public grounds, that there should be a department of public justice, "to secure the skilful preparation and proper structure of Parliamentary Bills, and to promote the progressive amendment of the Laws of the United Kingdom." The affirmative of that was the principle, as he understood him, that his right hon. and learned Friend contended for. He (Mr. Baines) had already stated, not only as his own humble opinion, but as what he believed to be the opinion of the great majority of those in that House, and of those out of it, that there did exist a state of things which called for some remedy. Nothing could be stronger on that point than the passage from a Report which had been adverted to by his right hon. and learned Friend—a passage which was to be found at the conclusion of the Report of the Statute Law Commission—made at the end of last year. He would beg to direct the attention of the House again to that passage, because it said that there was nowhere an existing remedy, and in it was shadowed out by the Commission what the remedy should be. What the Report stated was—Perhaps nothing satisfactory towards the improvement of future legislation can be effected until either a Board or some other persons are appointed, whose duty it shall be either to prepare or revise and report upon all Bills before they are brought into Parliament, and to watch them 642 during their progress through the two Houses, either as officers of the Lord Chancellor or some other Minister, or as officers of the two Houses of Parliament.Now, the Report containing that suggestion was worthy of every respect and consideration, seeing that there were attached to it the names of the Lord Chancellor, Lord Lyudhurst, Lord Brougham, Lord Campbell, the Lord Chief Justice of the Common Pleas, the Lord Chief Baron, Lord Wensleydale, Vice Chancellor Page Wood, and many other gentlemen of the highest authority on subjects of that nature. That being their view of the subject—that being the conclusion come to by the Commission at the end of last Session—perhaps the House would allow him to call their attention to what had been done by the Statute Law Commission since they had resumed their sittings at the beginning of the present Session of Parliament. He had had the honour of being added to that Commission, and he could, therefore, speak of what they had done since the commencement of the Session. The first thing that they had done was, to take into consideration the recommendation in the Report to which he had just referred, and the question of how that could best be carried out. They had since been constantly applying themselves to that subject with steady perseverance. He was happy to be in a position to inform the House that very great assistance had been afforded to the Commission by some valuable suggestions laid before them by the right hon. Member for the University of Cambridge (Mr. Walpole) and by another member of the Commission, the hon. and learned Member for East Suffolk (Sir F. Kelly), and a plan had been devised by them, which, he believed, was likely to receive the sanction of the Commission, and which would carry out the objects shadowed forth in the passage which he had quoted to the House. Those objects he took to be identical with the objects which his right hon. and learned Friend (Mr. Napier) had in view when he brought forward the Motion now before the House. He was not now at liberty to state what the particular plan was; but when perfected it would be laid before the House. That being so, the question arose whether it might not be desirable for the House to see what was the precise plan which had received the sanction of those eminent personages before hon. Members adopted any other. The House would probably think it better to adopt that plan 643 than to assent to a principle which, however valuable it might be, was of an indefinite character, and which clearly could not pledge them to anything at all. He believed he was authorised to say that that was the view taken by the right hon. Member for the University of Cambridge, and by the hon. and learned Member for East Suffolk, whose unavoidable absence on this occasion he greatly regretted. He would repeat, that, individually, he was very sensible of the great importance of the object proposed by the right hon. and learned Gentleman, and that he conceived that the House and the public were greatly indebted to him for bringing it forward. He trusted that there would be no real division of opinion on a question where unanimity was so important.
MR. LOCKE KING
said, he was glad to find, from the observations of the right hon. Gentleman who had just spoken, that the Motion brought forward in a speech of so much ability and moderation would not be opposed by the Government. Complaints of the injustice perpetrated by the law, and of the horrible expense of law, had been made for many years, and it was high time that some measures should be taken for remedying those evils. Many of the laws which were the subjects of complaint could be traced to that military system of organisation which was at one time found to be the most convenient mode of governing the people of this country—and the result of changes which had been made had been merely to substitute subtle and secret oppression for the savage barbarities and the open cruelties perpetrated in past ages. The laws of this country were now in such a state of complication that they could hardly be understood by lawyers themselves. The chaos in which the Statute law was involved had already been shown, and the hon. and learned Gentleman who seconded the Motion had explained to them how new Acts of Parliament which were passed only added to the existing confusion. The unwritten law—which he hoped would be brought under the consideration of the new department—was, if possible, in a still more unsatisfactory state; for, if he understood rightly, the last decision of a Judge was the rule of law, and remained so until it was reversed by the superior wisdom, or the want of wisdom, of some succeeding Judge. They had heard of a Roman Emperor who had his laws written in very small characters, and placed upon pillars at such a height 644 that they could not be read by the people; but the people of this country were even in a worse position with regard to the written law, which was buried in obsolete and defunct statutes. The law of England had consequently been shunned, ridiculed, and dreaded, instead of being appealed to, respected, and loved. No prudent man would venture to appeal to the law in any case where a comparatively small amount was involved, however strongly he might be convinced that he had justice on his side; and one of our most popular writers, in referring to the state of the law, had said that there was scarcely an honest practitioner who would not give, who does not give, the advice, suffer any wrong that can be done you, rather than come here. It might seem strange that such a state of things should so long have been tolerated; but the fact was, that some people had been cajoled into the belief that one day or other some change would be made; others believed that the injustice was a necessary part of our institutions; and others again were satisfied that the system was maintained solely for the benefit of a class. It had been proved that precedents were not wanting for the course recommended by the right hon. and learned Member for the University of Dublin in bringing forward the Motion, now under consideration. They had already a Minister of Public Works, a Minister for the administration of the Poor Laws, a Minister of Health, and a Minister of Education; and only the other day the disasters which arose in the East from the mismanagement of our military system had led to the appointment of a special Minister for the War Department. Surely, then, there was strong reason for appointing a Minister to see that justice was administered to the people. The right hon. Member for Leeds (Mr. Baines) seemed to think that the proceedings of the Statute Law Commission were likely to lead to beneficial results; but he (Mr. King) must confess, that he had no faith in Commissions. A Commission had been appointed on the subject in 1830; but all the Members had died off, or had been used up elsewhere, and the only surviving Member of the Commission—which during twenty years did nothing whatever—being a personal friend of the Lord Chancellor, was appointed the sole paid Member of another Commission which had as yet done nothing. He considered that the Lord Chancellor ought not to have allowed a private friend 645 to convert into a sinecure, an office which ought to be of the greatest importance, ought to be one of great labour. From the law officers of the Crown much assistance was not to be expected in effecting these reforms, for they were constantly attending to other matters; and he wished such a change could be made as would oblige them to attend exclusively to the business of the Crown and of that House. The subject was taken up by Lord Lyndhurst, who, in a speech delivered at the end of last Session, complained—That there was a want of cordial co-operation between the Lord Chancellor and the law officers of the Crown in the other House. His noble and learned Friend had issued a Commission for the consolidation of the Statute law. His noble and learned Friend was the President of that Commission, he sanctioned all its proceedings, and the law officers of the Crown also attended its meetings. The Report of that Commission was laid on the table. On looking at that Report, he found it signed by all the Commissioners except the law officers of the Crown. He therefore took it for granted that they differed from the Lord Chancellor upon that Report. He relied upon this for substantiating what he stated—that there was a want of co-operation and good understanding with respect to law reform between the Lord Chancellor and the law officers of the Crown. This had led to the greatest possible inconvenience, and it showed that without a good understanding between the legal authorities of the Government it was in vain to expect an amendment of the law. The result was, that up to the present time, when they were going to adjourn for the holydays, not one single Government Bill for reforming the laws of England had been passed. This was a most unsatisfactory state of things and required explanation." [3 Hansard, cxxxix. 1191.]Without a Minister of Justice it was useless to expect measures for the amendment of the law. From the Commission it was hopeless to expect anything. From in- Chancellors, nothing; from ex-Chancellors, nothing. He had been much struck with a passage in Lord Campbell's Lives of the Lord Chancellors. With reference to the character of an ex-Chancellor, Lord Campbell inadvertently let out the secret, when he said—Deduction should be made in respect to his having done so little to improve the law and the institutions of the country, when he had abundant leisure to prepare measures, and might be supposed to have sufficient influence to carry them through. From long experience at the bar, and as Judge in the courts of law and equity, many points must have presented themselves wanting an amending hand. His own emoluments could no longer have depended in any degree upon the continuation of abuses, and surely, having discovered some, he might have corrected them without materially affecting the offices arid reversions held by himself and his family.646 Only the other day, when he put a question to the noble Lord at the head of the Government, he rather raised a laugh at his (Mr. L. King's) expense. He had asked if the Government intended to bring in a Bill to declare what statutes were repealed; but he thought the laugh was rather at the Lord Chancellor than at him, as the Lord Chancellor had announced he had himself intended doing so in 1853. He believed the only practical mode of amending the law was by adopting the Resolution now before the House, and he should, therefore, cordially support the right hon. and learned Gentleman's Motion.
§ MR. WIGRAM
said, he was of opinion that very great advantages would arise from the course suggested by the right hon. and learned Gentleman the Mover of the Resolution. He need not trouble the House at any length with his reasons for supporting that Resolution; for he believed that every Member in the House agreed with the right hon. and learned Gentleman that there was a great deal of important work to be done, and nobody whose business it was to do it. That being the case, let them appoint some one to do it. His right hon. and learned Friend had clearly pointed out the object to be attained; but with, as he (Mr. Wigram) thought, great discretion, he had not attempted to chalk out—for it was not the business of any Member not sitting on the Government benches to do so—the particular remedial plan which ought to be adopted. However, there was a distinct proposition in the Resolution, one to which he attached importance; namely, that provision should be made for an efficient and responsible department of public justice. He thought the word "responsible" was that on which his right hon. and learned Friend laid particular emphasis. The right hon. and learned Gentleman had not said whether one of the existing Crown officers should take charge of this department. He (Mr. Wigram) was sure that if one of the law officers of the Crown sacrificed his private business in order to devote his time to the business of the public, the country would be happy to afford that officer ample remuneration. He thought it essential to the efficiency of the proposed department that the person who would have the superintendence of it should have a seat in that House. The right hon. Gentleman the Chancellor of the Duchy of Lancaster had alluded to the heads of such a department as if they were to be underlings, 647 not having a seat in Parliament; but a plan to manage things in that way would, in his opinion, be perfectly useless. Of course, a Minister of Justice would require, and should have, a great deal of professional assistance; but he should occupy a "responsible" position, and be present in that House. At present amendments in the law did not emanate from the Government. He did not mean the present Government in particular, for he believed that since Sir Robert Peel, about thirty years since, brought in Bills for the improvement of the criminal law, which led afterwards to the Bills for improving the law of real property, no Minister of the Crown had brought in an original measure for law reform. He did not attach much importance to plans for codifying the entire law. A useful Bill was passed last Session for consolidating the laws relating to merchant shipping; and so they might codify all the laws relating to any one particular subject; but he despaired of seeing any successful scheme for codifying in one general Act of Parliament the laws of England. So great was the public desire for amendments in the law, that private Members were induced to come forward with a sort of amateur legislation. Very important measures had been introduced in that way. But private Members could only get one day in a week, Wednesday, then the Treasury benches were generally empty, or only occupied by some Member who was not in a position to speak on legal subjects; and the consequence was, that many of such measures had to be dropped, or were passed in such an unsatisfactory form that they were thrown out by the Upper House. Under such circumstances he should support the Resolution of his right hon. and learned Friend if a division were come to on the subject. However, he trusted the Government would accede to the Resolution. Such an expression of the opinion of the House as would be involved in its adoption would be the first practical step towards attaining an end that all considered to be desirable.
§ SIR GEORGE GREY
said, his right hon. Friend (Mr. Baines) not only expressed the concurrence of the Government in what had been said by the right hon. and learned Gentleman opposite as to the importance of the object, but also stated that the Government entered fully into the spirit of the Motion. They agreed with him that there were defects in the form 648 of the statute, and that there was a serious inconvenience in the present state of the Statute-books; and that it was important that a remedy should be applied to those defects. So far all parties seemed to have the same general objects in view; but what the right hon. and learned Gentleman's Resolution proposed was that, "as a measure of Administrative Reform, provision should be made for an efficient and responsible Department of Public Justice, with a view to secure the skilful preparation and proper structure of Parliamentary Bills, and promote the progressive amendment of the laws of the United Kingdom. Now, he hoped that the right hon. and learned Gentleman might meet the Government in the spirit they were disposed to meet him, and that after the statement of his right hon. Friend the Chancellor of the Duchy of Lancaster, he (Mr. Napier) would not ask the House to pledge itself to that Resolution, while the matter was under the consideration of the eminent and learned men who composed the present Statute Law Commission, in order that hon. Members might have the benefit of their opinion on some of the points to which the right hon. and learned Gentleman had called the attention of the House that evening. A draft Report had already been submitted to the Lord Chancellor, and would be laid before the Statute Law Commission at their next sitting at an early period, which embraced all the subjects adverted to by the right hon. and learned Member for the University of Dublin. When it had received the sanction of the Commission, and undergone the considertion of the Government, that Report would be submitted to the Crown and to Parliament. The House would then have the benefit of determining on the best mode of effecting the object which all agreed ought to be effected. The Government having met the Motion in that spirit, he hoped the House would not be asked to pledge itself to the appointment of a new Secretary of State, as he had been termed, or an officer of high rank in the Government, charged with the duties which the right hon. and learned Gentleman would place upon him, and which he (Sir G. Grey) believed would be far beyond the powers of any individual to perform, unless he was assisted by a very numerous, able, learned, and highly-paid staff. He fully agreed with the right hon. and learned Gentleman in the remarks he had made upon the hasty mode in which Bills were 649 passed, the careless manner in which Acts of Parliament were worded, and the great inconvenience which resulted from the present mode of legislation. He agreed with him also that it was desirable an efficient remedy should be applied to that state of things; but he feared that no Minister of Justice, though appointed according to the views of the right hon. and learned Gentleman, however responsible to Parliament, and though assisted by an able, learned, and numerous staff, would prevent many of the evils he had pointed out, unless individual Members of Parliament consented to abandon some portion of that free right of dealing with the details of every Bill that came before them, which was now the cause of many of those inconveniences of which the right hon. and learned Gentleman so justly complains. It might be better and more conducive to the public interest, as well as to the correct language of Acts of Parliament, if the House attended, as suggested by the right hon. Gentleman, to the great principles of legislation, and left the details of Bills to be settled out of the House by persons competent to the task; but experience has told us that that was impossible. Whatever Bill was brought in, however carefully it was prepared, and though its object might be generally approved of, there was hardly an instance upon record in which it was not amended before passing through its various stages, and the Amendments were frequently made upon the Motion of Members with short notice, or without any notice at all, and sometimes at a late stage of the Bill, and without the House having the opportunity of considering fully the bearings of the Amendments, The manner in which business was transacted there was, in fact, the chief cause of many of the evils to which the right hon. and learned Gentleman had adverted in his speech. He admitted that that might be corrected to a certain extent by every Bill being originally submitted in draft, after leave given to bring it in, to a public department, such as that which the right hon. and learned Gentleman wished to create, or to some other department to which Parliament might ultimately decide upon confiding the duty of revision; but it was difficult to keep the language and the details altogether distinct from the principle of a Bill; and he thought hon. Members would he extremely jealous of confiding to any department of the Government the power of revising Bills and altering the language in which they were framed, 650 without exercising control over that revision, and reserving to themselves the right they now exercised of moving or adopting Amendments upon any measure, however carefully, it might be prepared. The right hon. and learned Gentleman alluded to the facility with which Bills were introduced on various subjects that had undergone discussion and been already negatived; but he (Sir G. Grey) did not think any remedy could be applied to that, unless the House was prepared to say, that after a Bill had been rejected in one Session it should not be again introduced in the next, and he did not imagine they were prepared to go that length. It was desirable, however, that the House should support the Government in resisting the introduction of Bills to which they entertained a decided objection, provided there was no prospect of their ultimately receiving the sanction of the House. He thought, also, the House would be of opinion, and rightly, that the public time would be saved by taking the discussion and asking the decision of the House on earlier stages of Bills—or on asking leave to bring them in—where their details were known and had been fully discussed already. Upon the general question he agreed entirely with his right hon. Friend (Mr. Baines) that the subject was one of great importance, and that it was desirable the most efficient means should be adopted for effecting the object they all had in view; but that they would be taking a hasty step if, before they received the recommendations of the Statute Law Commission, they pledged themselves to effect the object in the particular way now proposed. The hon. and learned Gentleman (Mr. Wigram) had alluded to the absence of all attempt on the part of Government to codify, classify, or improve the system of legislation. The hon. and learned Gentleman had alluded in terms of just praise to the important reforms in some of the statutes which were effected by the late Sir Robert Peel, when Secretary of State for the Home Department; but in saying that nothing had been done since, he was not doing justice to some of the successors of that distinguished statesman. He (Sir G. Grey) took no credit to himself for what was done when he filled the office of Secretary of State in the former Government; but he could not forget that that valuable consolidation of the Criminal Law, known as Jervis's Acts, one of the greatest improvements in the Statute Law 651 of the country, was effected by the present Chief Justice of the Court of Common Pleas whilst Attorney General. With regard to the question of classification and consolidation he had received information from Gentlemen on both sides of the House who were members of the Commission on the Statute Law, which led him to believe that the best course was, to take subject by subject in rotation, and classify the statutes on each, as suggested by the hon. and learned Gentleman, and that was the course which had been adopted by the Commission, and considerable progress had been made in this work, and he hoped that at no distant period Parliament would have the benefit of the labours of the Commission. The right hon. and learned Gentleman had referred to what had been done in France in the way of codification at the beginning of the century; but it must be borne in mind that the object could be more rapidly effected under an absolute Government, and that here the result of the labours of men, however eminent, must be submitted to both Houses of Parliament, in the shape of a Bill, to undergo a first and second reading, and the examination of all its details in Committee; and that operation he (Sir G. Grey) feared would render the work of codification or classification here much greater than in countries which did not possess what in other respects is the inestimable advantage of free institutions. He hoped then, that the right hon. and learned Gentleman would be disposed to take the assurance of the Government that the subject had already engaged their attention, and that they hoped soon to be able to take a decisive step respecting it, and that he would not ask the House to pledge itself to the creation of a new department, which he termed the Ministry of Justice, without specifying the plan by which he proposed to effect his object, the nature of the staff to be formed, the expense it would involve, and the precise nature of the duties the new officer would have to perform. The subject was one which could not be disposed of by a men Resolution of that House. It was one involving important details requiring very careful consideration, and he therefore trusted that the right hon. and learned Gentleman would not press his Resolution.
§ LORD JOHN RUSSELL
said, he thought the House was greatly indebted to the right hon. and learned Gentleman (Mr. Napier) who had brought forward the 652 Motion. The right hon. and learned Gentleman laid before them an evil of great extent and importance. He had also with great moderation proposed a remedy for that evil, and he (Lord J. Russell) did not think that the remedy proposed was open to the objections made by the Chancellor of the Duchy of Lancaster (Mr. Baines)—namely, that it was vague and indefinite; because it was the duty of the right hon. and learned Member for the University of Dublin not to enter into details, or dictate to the Government in what particular manner a new office should be constituted, but simply to point out the principle upon which he desired it to be established. But while he thought the right hon. and learned Gentleman quite justified in making his Motion, he did not himself see, however, after what had been stated by Members of the Government, that the House could well proceed to adopt the Resolution, inasmuch as they were told that the Statute Law Commission had nearly agreed upon recommendations, which, no doubt, would deserve the serious consideration of the Government and of Parliament. But whilst, therefore, he considered they were bound to wait in order to see those recommendations in their matured state, and in all their details, there was an obvious difference between the proposition of the right hon. and learned Gentleman, and that which he understood to be the proposition that was to be propounded by the Commissioners. The right hon. and learned Gentleman proposed that there should be a responsible Minister appointed. What his name should be was immaterial, but he should be a responsible Minister, sitting in Parliament, proposing and conducting through the House of Parliament in which he sat—and he presumed he would sit in that House—such measures of legal reform as the Government should have approved of. Now that he (Lord J. Russell) thought would be a very great advantage and convenience. Having a seat in that House he would be there to defend his own propositions, and to show in what respect they were better than the Amendments proposed; or if he chose to give way on any particular points of detail he might do so, and the House would be disposed to listen with great deference to the arguments of a Minister who was perfectly competent, as, of course, he would be, to deal with the question both of existing laws and the principles of proposed laws. That was a totally different thing to having what seemed to 653 be intended, whether under the Lord Chancellor or some other Minister, certain officers whose business it would be to frame the details and correct the language of Acts of Parliament. Those persons would be valuable, no doubt, in avoiding such gross blunders as those of which illustrations had been given the House that night; but with respect to the general principles of our legislation, not having seats in that House, not being able to explain themselves, and not knowing what the wishes of Parliament might be, he apprehended they would have little weight and very little authority with the House. They might, possibly, to a certain degree, correct the language of Acts of Parliament, and prevent inconsistent clauses being introduced into those measures, when in their ultimate shape they were about to pass. Thus far a certain degree of utility would belong to them, but for the accomplishment of the great object which the right hon. and learned Gentleman (Mr. Napier) had in view, he conceived their utility would be very little. Now, what he should be glad to see, and what he thought we had been in want of a good many years, was a department with an officer at its head which should make the particular question of law reform its business, which should obtain from the Government certain days and sufficient time to bring forward its measures without having to wait until the end of the Session for that purpose, and who should call the attention of Parliament seriously to such measures as it might so think fit to propose. Let the House observe the manner in which an officer of that sort would be useful. It was a great many years since that he heard in the other House of Parliament the late Bishop of Lincoln—an eminently learned and able prelate—call the attention of Lord Stowell—that most eminent and learned Judge—to the defects in the law with respect to the discipline of the clergy. He said, that in a case of very gross and notorious immorality on the part of a clergyman, giving scandal to all his neighbourhood, he (the bishop) was obliged to institute proceedings that had gone on three or four years, had cost him £4000 or £5000, and had not even then arrived at a satisfactory conclusion. Here, then, was a great defect in the law, and one which did not apparently require any considerable depth of legislation to reach it; but up to the present day that defect had, he believed, never been corrected. To the 654 present day those cases of immorality still occur, the bishops are obliged to proceed at great expense to themselves, and he did not know that it would have added anything to the facility of legislating upon it if the late convocation had taken that subject under its special care and attention. Rather, he was afraid, they would only have embarrassed the Legislature in dealing with it. Well, upon a subject of that kind, it appeared to him that if they did not listen to the notions which were put forth as to ecclesiastics alone being fitted to judge on the subject, a prosecutor or Attorney General for the Church should be able to bring such cases before a tribunal where he would obtain a speedy judgment, the Church would thus get rid of the scandal of having such notoriously unfit Ministers, and the Prelates be spared that which was now good ground of complaint with them. Several years ago, under the Government of the late Sir Robert Peel, he (Lord J. Russell) took charge, at the end of the Session, of a Bill for the reform of the Ecclesiastical Courts. But the time having arrived when the usual massacre of Bills took place, he was obliged to give up that measure, and the question of reform of the Ecclesiastical Courts was still waiting the attention of Parliament. Let him not be told that the law officers of the Crown could amend these things—they have already a great deal too much on their hands; their official duties, combined with their private practice, forbade that. His right hon. Friend (Sir G. Grey) seemed to think that the Minister of Justice himself would hardly have sufficient time for the performance of the important duties that would devolve upon him; but if that were so, if the Minister whose attention was specially devoted to that office, and to no other business, would find the task too much for him, what must be the case of the Lord Chancellor and the law officers of the Crown, who had other and multifarious duties to discharge besides? Many cases were known to hon. Members in which measures in themselves of no party consequence or significance had taken years and years in making their way through that House. Among others he might mention the Charitable Trusts Bill, which he introduced two years ago; that question had for thirty years been under the consideration of Parliament. Then, again, there was the question of the County Courts; that had been twenty-five years under consideration. 655 Year by year had the House of Commons, and in all probability the House of Lords, been employed on those subjects, and yet at the end of each Session their task was left unfinished. The fact was, they seemed in that House to be taking the very reverse of the course which had been pursued in the case of the steamengine. A good many years ago, it was asserted that the waste of power was so great, that the steam-engine would never prove of much use; but subsequently Watt and other eminent inventors had introduced such improvements, that we were able to apply steam to all the purposes for which it was required, and there was now little or no waste. Parliament, fifty years ago, got through whatever business it had to do, whereas now, although Mr. Speaker very often sits in that chair from twelve to four o'clock in the day, and then from six in the evening till two in the morning, many Bills have to be given up at the end of every Session, and all the power created by such protracted sittings does not contribute to the effect of useful and wholesome legislation; in short, it was wasted. He concluded, then, that among other things we wanted some department of Government which should be specially devoted to the object of improving the laws. At the request of the Government, however, he was perfectly ready to wait until the new propositions which were recommended by great and learned authorities were laid before the House; but he must say that he had made up his mind upon the subject; that as between the two propositions—that of having a responsible Minister—and the other having a certain number of lawyers or clerks, whose duty it would be to alter and amend the details of Bills before they came into Parliament—the former was the most philosophical, the most practical, and the most conducive to that amendment of the law, which, he believed, was one of the greatest and most important objects to which Parliament could direct its attention.
§ MR. DRUMMOND
said, it was agreed on all hands that a great deal ought to be done; that the present law officers of the Crown could not do it, and that the Commissioners did not do it; he could not, therefore, see what possible objection there was to the adoption of the propositions, which the noble Lord who had last addressed them had admitted to be most admirable in every way. The Government would not bind themselves in any way 656 by agreeing to the Resolution before the House, and he therefore hoped they would not oppose it.
§ MR. MALINS
said, he fully concurred in the general objects which his right hon. and learned Friend (Mr. Napier) had in view, but he thought there would be great practical difficulty in dealing with the subject in the manner proposed. He could not agree with the observations of the hon. and learned Member for Plymouth (Mr. Collier) that the laws of England were in such an imperfect state as he had described them. Instead of regretting that so little had been done in the way of law reform, they ought to pride themselves, he thought, that so much had been done for the improvement of the law since 1826. No doubt there were great imperfections in our statute laws, but if the House abdicated its legislative functions in favour of a public officer, withdrawn from the active duties of the legal profession, would they attain the end they had in view? Alterations in the law were now proposed by men conversant with the evils to which a remedy was to be applied—men who knew where the shoe pinched; but if their duties were to be performed by a public officer, with whom would the idea of such alterations originate? The best legislation that could be had was that of practical men, who, seeing an evil, came forward to remedy it. The great evil to which his right hon. and learned Friend proposed to address himself was that in connection with legislative laws or Acts of Parliament; but when it was considered how many Bills were brought in every year, relating to revenue and the mercantile law, such as the great measure on partnerships and joint-stock companies, it was surely the duty of the law officers of the Crown to attend to those matters; and if they constituted one of them Minister of Justice, would not that officer then have a greater capacity, after being withdrawn from his private practice, for understanding the state of the law and the alterations requisite to be made than at present? He thought the proposition of his right hon. and learned Friend, though one deserving respectful consideration, beset with many difficulties, and he was not prepared at present to concur in the Resolution. The noble Lord (Lord J. Russell) opposite had pointed out some imperfections in the present system, and had mentioned that twenty-five years ago he had charge of a measure proposed to 657 remedy defects in ecclesiastical discipline, but those remedies had not been carried into effect up to the present time. But did the noble Lord suppose that the appointment of a Minister of Justice or some such officer would have effected the object he had in view? It was not so much the difficulty of preparing an Act of Parliament in a good form—for the Government had the means of obtaining the best assistance for that purpose—as the inherent difficulties of the subject, and the opposition encountered in various quarters, that had retarded that measure. Though no man was more anxious than himself to make the laws of England as perfect as possible, yet, as his right hon. Friend the Chancellor of the Duchy of Lancaster had stated that the Statute Law Commission, a body of men whose opinions were entitled to the highest weight, had a scheme before them on the subject, he thought the House was bound to withhold any assent to the present Resolution until it knew what their recommendation might be; with the understanding that that recommendation should be made known to the House as early as possible. The hon. Member for East Surrey (Mr. L. King) seemed to entertain a strong impression against the constitution of that body, but he (Mr. Malins), having been in communication with some of the learned members of it, thought they were proceeding on the sound principle not of attempting what would always be found utterly impractiticable—anything like the codification of the laws of England generally—but of making a codification of the laws on particular subjects. He had been told by one of that learned body that they were now prepared shortly to submit to Parliament one Bill repealing all the Stamp Acts, and re-enacting them in the simplest possible form. The same thing had been done with respect to the shipping laws in the last Session, or the Session before, by the right hon. Gentleman opposite, and the Statute Law Commissioners were proceeding on the same wise principle of taking up one subject and consolidating scores of Acts of Parliament into one. If it were proposed that some person should be in that House to advise it in the passing of Bills, so that they might pass in the best possible form, to that he would give his cordial support; but, considering how hastily, to a certain extent, legislation must be done, and how Bills were read, clause by clause in Committee, and alteration 658 made at the moment, he was unable to see, unless the House was prepared to surrender up its judgment to some public officer, how the proposed system of a Minister of Justice could produce any material change. If a Bill passed that House, was it afterwards to be referred to a Minister of Justice? and, if so, would the Mouse defer to the judgment of any individual in such a matter? He thought it would not, and therefore he concluded that such a proposition, however well it might sound in theory, would in practice fail altogether. A suggestion had been made that greater consideration should be given to amendments of the law, but the right hon. Gentleman, the Chancellor of the Duchy of Lancaster, so well qualified to form an opinion, well know the difficulties which private Members experienced in their attempts to pass Bills for the amendment of the law. He (Mr. Malins) himself had given, that very night, notice of a Bill that would greatly improve the law of England, because it would abolish the distinction between specialty and simple contract debts. And why had he given notice of such a Bill? Because in the course of his professional practice, he had found that great injustice was inflicted upon creditors by a law which enabled a man, simply because his debt was acknowledged by a sealed instrument, to have priority over every other creditor whose debt was not so acknowledged; and, under such instruments, one creditor alone often swept away the whole of the property of a debtor, leaving nothing whatever to the rest of the creditors. He hoped, then, that he should have the general assistance of the House during the progress of the measure, and that he should be permitted to press the Bill through all its stages. But what difficulties would he not have to contend against ! If he should obtain leave to introduce his Bill, he should have to sit in that House night after night, and probably till two o'clock in the morning, although he had professional duties to attend to, until his turn came to proceed with the different stages of the Bill. The Government, no doubt, professed great anxiety for the amendment of the law, but he wished that they would give greater facilities to private Members to carry their measures through the House. By so doing they would be doing as much towards the improvement of the laws as, in his opinion, by appointing a Minister of Justice, who, unless he were a practising member of the 659 legal profession, would gradually lose that knowledge which would enable him properly to perform the functions of a Minister of Justice. Although he (Mr. Malins) concurred generally in the principles laid down by the right hon. and learned Gentleman the Member for the University of Dublin, he was not able to concur in the precise terms of his Motion, and he would therefore urge him not to press his Motion until the Commission now sitting should have presented its Report.
said, that there would be no security for the lasting improvement of the laws of this country, without the establishment of a Minister of Justice. There should be one officer, whose time should be devoted to the amendment of the law, and the simplification and uniformity of legal phraseology. Under him should be a department working for those ends. The presence of such an officer would be at once felt as an advantage. We were about to recognise the same principle in the appointment of a Minister of Education. We had felt its advantages in the appointment of a Minister of the Poor-law. The presence of such a Minister in Parliament had effectually put a stop to the complaints which were previously made. In the same manner a Minister of Justice would meet the requirements of law reform. He might introduce new laws. He might consolidate existing laws. He might prepare the way to a codification of the law. He might render as clear and as concise as possible the wording of our Acts of Parliament. Some time ago, his (Mr. Ewart's) lamented friend Mr. Aglionby had moved for a Committee to inquire into the best mode of improving the phraseology of Acts of Parliament. The Government then undertook a similar inquiry. Mr. Edmonds reported on, and drew what were called model acts; Sir John Romilly had done great service by abolishing the vain repetitions which formerly encumbered every clause of an. Act of Parliament. But, under a Minister and a department of justice the wording of our laws might attain the perfection of clearness and uniformity. Not only in these respects, but generally, the appointment of a Minister of Justice would give a motive power to the whole system of law reform. It would far surpass any temporary amendments of their old legislative machinery. He was persuaded that, in two or three years, the beneficial effects of such a step would be felt by the country; 660 and he should certainly, because he could conscientiously, support the Motion of his right hon. Friend.
§ MR. WILKINSON
said, he had every disposition to take the word of the Government, and he would, therefore, not advise the right hon. and learned Gentleman to persevere in his Motion; but if the Motion were persevered in, he should feel bound to vote for it. If the scheme hinted at was to involve the creation of a Department or Ministry of Justice, there could be no harm in such a Resolution as this having been passed; and, if not, he thought it would fall short of what was really wanted. Not only in framing new laws, but in the repeal of obsolete statutes, the House required such an official adviser. He would mention, as an instance, that there was a statute of George II., 120 years old, which imposed a penalty of £500 upon every man who should sell stock which he had not got in his own name. Now, if that obsolete statute were acted upon, it would interfere most seriously with all the operations of the money market; and, he would venture to say, if it was put in operation the Chancellor of the Exchequer would not be able to raise a loan. That was an example of the anomalies and inconsistencies which were allowed to remain on the Statute-book, and which required for their removal the assistance of such a department as was proposed.
§ VISCOUNT PALMERSTON
Sir, there can be no doubt that the subject which the right hon. and learned Gentleman has brought under discussion is one of the deepest importance, and one fully deserving the attentive consideration of this House. At the same time, however plausible his proposition to appoint a Minister of Justice may be, I think that many of those who adopted his view of the subject have perhaps not a sufficiently clear idea of the functions which such a Minister would have to perform, and, upon considering the question more fully, might find greater difficulties than at the first sight present themselves to their view, I do not, however, mean to say that such an appointment might not possibly be advisable, but I think it is one that ought to be well considered before the House agrees to a formal Resolution affirming, positively and at once, that such an office ought to be created. The hon. and learned Gentleman the Member for Wallingford (Mr. Malins) has, I think, adverted to the difficulties which would arise in the working 661 of some of the functions proposed to be assigned to that officer. Now, I apprehend the objects in view in making such an appointment are three—one would be to direct the legislation of this House, another would be to originate measures, and the third would be an endeavour to reform and improve the existing legislation. With regard to the two first of those functions, it is very easy to say that a Minister of Justice would prevent Parliament from falling into errors as to measures passing through the two Houses of Parliament. We have heard the story, not a new one, about half of a penalty of transportation going one way, and the other half another way. No doubt there are many cases in which Bills pass into law containing errors, conflicting with existing statutes, or failing to accomplish the purposes in view. But I think much doubt may be entertained whether the appointment of a Member of the Government, whose duty it would be to attend to those matters, would be sufficient to prevent altogether the recurrence of such mistakes; because it is impossible that either this or the other House of Parliament could be called upon to abdicate their functions, and I am inclined to think individual Members would not yield their opinions implicitly at the dictum of the officer in question. That Member of the Government might say, "I think such a proposition a bad one; I think it is liable to this or that objection, and that the words proposed are not such as to meet the end in view;" but the individual Members of the House would persevere possibly in retaining their opinions, and would most likely find them backed up by the House, and the Minister of Justice might find himself—as Members of the Government sometimes do—left in a minority when a division took place on the particular question under discussion. Therefore you cannot possibly combine the absolute power of a Member of the Government to direct legislation in the way he may think proper, with that course of action which is inherent in the constitution of a deliberative assembly like this. Weight might certainly be attached to the recommendations of such a public officer proportionably with the legal attainments and professional knowledge of the individual who might fill that office. My noble Friend behind me (Lord J. Russell) has quoted the difficulties attendant upon, and length of time that has elapsed in, the passing of a great variety of important public measures; but if he will allow me to say so, I believe 662 that those difficulties and delays were owing, not to the absence of such an officer as has been proposed, but rather to the great variety of opinions always offered to the passing of every great measure for improving the laws of this country. Such measures can only be carried by the conviction of the majority of the two Houses of Parliament, and that conviction certainly may be accelerated by good arguments urged by a particular Member of the Government; but those delays did not arise from the difficulty of framing proper Bills, but from the difficulty and impossibility of inducing Parliament to adopt those Bills when properly framed. And, therefore, so far as the functions of a Minister of Justice would consist in assisting and directing this and the other House of Parliament, I think a somewhat exaggerated view has been taken of the advantage which would arise from the creation of such an office. I do not, however, mean to say that much convenience might not sometimes result from it. With regard to the other point—namely, the reform of our existing legislation, I think hon. Gentlemen have rather lost sight of what has been done when they represent that no considerable progress has been made in the way of legal reform. It is perhaps rather a good tendency of the human mind to undervalue what has been done, and to fix attention mainly upon that which remains to be done. That tendency is not at all to be despised in the abstract, because it is a tendency that leads to human progress. Nevertheless, when we are endeavouring to fix our own minds to the real state of things, we must not forget that great progress has been made of late years in improving the law in its various branches. That is rather a reason for going on, and by no means a reason for opposing obstacles to any further measures of improvement; for it cannot be denied that there is ample room for further improvement. My right hon. Friend the Chancellor of the Duchy of Lancaster stated that the Statute Law Commission is at the present moment engaged in considering propositions that are to be submitted to Parliament for adoption, and my hon. Friend who spoke last, said it is a question whether the proposal which is to be made will be a proposal for continuous, or merely temporary, improvement. I believe that that very question is now under the consideration of the Commission, and I think that, considering that those eminent 663 men who have been appointed to the task have at the present under their deliberation proposals which may eventually go far to meet the views of the right hon. and learned Gentleman opposite (Mr. Napier), he would do well to adopt the suggestion of my right hon. Friend—that is to say, to waive for the present asking the House to agree to the Resolution which he has proposed, reserving to himself—if he should find that the labours of the Commission have not been such as the House is entitled to expect, and such as are not calculated to lead to any sufficient and satisfactory result—the right of renewing his proposal at a later period of the Session in such a shape as he may deem most likely to lead to practical and efficient results. I can assure the right hon. and learned Gentleman and the House that Her Majesty's Government are sensible of the extreme importance of this matter, and that, so far from wishing to throw any obstacle in the way of improving the laws, I feel it to be one of those matters which it is the duty of the Government to pay the greatest and most earnest attention to. I hope, therefore, that the right hon. and learned Gentleman will not press his Resolution on the House at the present moment, but that he will, at least, wait to see what may be the result of those deliberations of the Statute Law Commission in which they are at present engaged.
§ MR. M'MAHON
said, he regretted that the Government should resist the unanimous wish of the House for the appointment of an officer such as had been proposed, which would almost raise the House of Commons, if he sat in that House, to a level with the House of Lords in the mode of preparing Bills. In the House of Lords all the Government Bills were introduced by the Lord Chancellor, and if any amendments were made, revised by the Judges: whilst in the House of Commons there was no one really responsible for the details, so that its Bills were a disgrace to a legislative assembly. An officer was required who should discharge the same duty for Public Bills which was so well performed by the Chairman of Committees for private Bills. He would take that opportunity of mentioning the case of an objectionable clause in the Merchant Shipping Act of last Session, which it would have been the duty of a Minister of Justice to have observed and struck out. Another object to be attended to was the assimilation 664 of the laws of England and Ireland, which, if it were effected, would save Parliament the separate discussion of so many Irish Bills. The Report of the Statute Law Commission had been expected Session after Session, and since, as he believed, upwards of £100,000 had already been spent on Statute Law Commissions, there ought to be no longer delay.
§ MR. CRAUFURD
said, he understood that the right hon. and learned Member for the University of Dublin had spoken of an attempt of his (Mr. Craufurd's) to improve the law, he meant the Judgment and Executions Bill of 1854, and had stated that the Select Committee found it utterly impossible to frame that measure in a working form, and that at their recommendation it was rejected. This was not the fact; but the Bill, which had the co-operation of the right hon. and learned Gentleman himself when it was brought in, passed through the Select Committee, and through the House of Commons, and it only failed to become law because of the late period of the Session, owing to the opposition of some Irish Members during its progress. He hoped the right hon. and learned Gentleman would be satisfied with the general approval his object had attained, and would wait to see the details of the proposal of the Statute Law Commissioners.
§ MR. ROUNDELL PALMER
said, that although there could be no question as to the utility of the discussion which had taken place, it did not appear clear to him that it would be equally useful for the House to adopt the Resolution in the particular form in which it was submitted. By far the most important part of the Resolution was, that which recommended "that there should be provision made for an efficient and responsible department to promote the progressive amendment of the laws of the United Kingdom;" for although such a department might be useful in correcting errors in the framing of Acts of Parliament, he thought that the advantages to be derived from it in that particular might very easily be exaggerated. With regard to the more important object, on the other hand, no one could doubt that there was room for more concentrated and systematic action of the Government on the subject of law reform. By "law reform" he meant not merely measures for the collection of the laws upon a particular subject into a small code, 665 or for the improvement of the administration of justice; but a general review of the defects of the law in all its branches, and progressive and systematic attempts to remove or remedy those defects. The present organisation of the law was not, he admitted, favourable to systematic and concentrated action of that kind, and no object could be more worthy of the attention of the Government than the introduction of such improvements in their legal departments as would tend to accomplish that end. Thus much he was willing to concede; but when it was proposed—and of this interpretation the present Resolution was assuredly susceptible—that there should be a new department of the State, and a new Cabinet Minister in the House of Commons to represent the Government for the purpose of promoting an amendment of the law, the question assumed a different aspect; and he could not but think that, connected with this view of the matter, there were considerations which had not as yet been fully brought out. In the first place, they would do well to inquire whether, as things at present stood, they were entirely without a Minister of Public Justice in the Government? He was inclined to believe that such an officer was known both in theory and practice to the constitution; and, if so, it became them to consider whether it might not be better to improve what they already possessed than to create, especially in that House, a totally new department. If he were asked whether there was a Minister of Justice in this country, he would reply that he recognised such an officer in the person of that great functionary who, holding the seals of Chancery, was likewise a member of the Cabinet Councils of the Sovereign. The combination of both offices was to be justified by the fact that it was as Minister of Justice to the Crown that the Lord Chancellor had a seat in the Cabinet. It might be said that there were other functions devolving on him which so usurped his time as to disqualify him for the efficient discharge of the duties incidental to the latter character. If so, might it not be practicable to relieve him of those other functions, more particularly as, to say nothing of subsidiary tribunals, there was now a Court of Appeal which had so lightened the business of the Court of Chancery as to render it possible to dispense with the attendance of the Chancellor in that Court during a great portion of the year? Nay, 666 more, if it should appear that the attendance of the Chancellor upon the judicial business of the House of Lords interfered materially with the general supervision of the legal department of Government, he was not sure that the daily presence of that high officer in the Upper Chamber would be insisted upon as indispensably necessary. This, at all events, was certain, that the proposed appointment of a new Minister of Public Justice, such as the right hon. and learned Member for the University of Dublin seemed to indicate, could not be carried into effect without disturbing the present position of the Lord Chancellor, considered as a great Minister of State, of the Attorney General, and, to a certain extent, of the Home Secretary. That some reorganisation and redistribution of the powers of those various departments was very much needed he was not prepared to deny; but, while making that admission, he must decline to commit himself to a Resolution which prejudged the question whether it might not be better to attain those ends by improving and remodelling what we already possessed than by venturing on so great an innovation as the creation of another Cabinet Minister for that House. There were considerations, too, of an economical character which the Commons, administrators as they were of the national finances, could not afford to disregard. If a great officer of that kind were to be appointed he should be a man deeply conversant with the law; and as he would have to abandon a lucrative profession, and would go in and out with the Ministry, it would obviously be necessary to provide for him a large salary and a handsome retiring allowance. All those facts and arguments conducted him irresistibly to the conclusion that the House would act most prudently by resting content with the great advantage that could not fail to follow from the present discussion, and declining to commit itself to the Resolution of the right hon. and learned Gentleman.
, in reply, said that a great deal of the argument against his Resolution turned, he was happy to find, on the details, and not on its principles. The right hon. Chancellor of the Duchy of Lancaster argued that the appointment of a Minister of Justice would be the abdication of the functions of the House; but if the House was to wait for the Statute Law Commission, of which he (Mr. Napier) was one, before it expressed an opinion, would 667 it not equally delegate its functions? He had the highest respect for the Commission and the Members of the Commission; but he did not believe that such a body of persons so constituted was fit to exercise the functions of that House. What he wanted was, not to transfer the legislative functions of the House to any department, but to create a department which should aid the House in the exercise of those functions. The noble Lord at the head of the Government and the right hon. Baronet the Home Secretary had thrown cold water on the proposition on matters of detail; but he placed the Resolution in its largest form of principle before the House, and was ready to modify it in any point which touched on details. He disclaimed the idea of being influenced by party motives. He had not solicited the attendance of any one of the Members with whom he was in the habit of acting; and he could in all sincerity declare that he had brought forward this Motion in an independent spirit, and uninfluenced by any other feeling than a sense of the great importance of the question to which it related. He did not pretend to dictate to the Government the precise manner in which the object which the Resolution contemplated should be carried into effect. That he would leave to their own discretion, and if their objection was merely one of detail he would willingly make such an alteration in the wording of the Motion as might render it more acceptable to them in that respect. With that view he was willing to omit the words, "secure the skilful preparation and proper structure of Parliamentary Bills," thus leaving it to the option of the Government to receive or reject the suggestions of the Statute Law Commissioners. He hoped that the Government would accede to his proposal, and not compel him to divide.
§ SIR GEORGE GREY
said, he was sorry that the right hon. and learned Gentleman considered it necessary to divide the House after the discussion which had taken place. He certainly thought that they should not be called upon in a hasty manner to create a new Cabinet Minister with such large and extensive powers as the Resolution of the right hon. and learned Member contemplated, and, if carried out, would necessitate. To the words suggested to be left out he had no objection; but if the right hon. and learned Gentleman would consent to omit the words, "for an efficient and responsible Department of Public Justice," the Government 668 would not oppose the Resolution so modified.
I accept your terms.Resolved—"That, in the opinion of this House, as a measure of Administrative Reform, provision should be made, with a view to secure the skilful preparation and proper structure of Parliamentary Bills, and promote the progressive amendment of the Laws of the United Kingdom.