§ SIR FITZROY KELLY
, in moving for leave to bring in a Bill to Consolidate the Statute Law relating to Offences against the Person, said, that it was the first of a 719 series of measures for the consolidation of the entire statute law of England. He was not insensible to the magnitude or the difficulty of the task he had undertaken, but he looked with confidence not only to the indulgence of the House, but to the assistance of hon. Members individually and collectively, and more especially of the Members of Her Majesty's Government, to assist him in accomplishing it. He hoped and believed that, if he should receive that support, he should be instrumental in accomplishing an undertaking which had hitherto baffled the efforts of all who had tried it, including some of the most eminent lawyers and statesmen which this country had ever produced. He was also sustained by the hope that ho might be the means of remedying a great and acknowledged public evil, and of conferring a lasting benefit upon the country. He would now endeavour to state clearly and intelligibly what he proposed to do. And first, he would explain the meaning he attached to the words "consolidation of the statute law"—a term with respect to which great perplexity existed. The words "consolidation" and "codification" bad been used by persons from whom greater accuracy might have been expected, as if they meant the same thing. Now what he proposed to effect was, not the "codification," but the "consolidation," of the statute law. The statute laws were at present comprised in thirty-six large folio volumes. The number of those, exclusive of Private Acts, but inclusive of Local Acts, with provisions of a general character, was between 15,000 and 20,000, and his proposition was, to classify those statutes, and then subdivide each class into separate subjects; to repeal the whole statute law relating to each subject, and then to re-enact the statute law as it now existed in relation to that single subject in one single Act of Parliament. Should he succeed in that object, instead of there being thirty-six volumes containing some 20,000 Acts without order or classification, the statute law would consist of some 200 or 300 Acts of Parliament, each Act embracing the whole particular subject to which it related. It was not his object to attempt any codification of the law, because he did not think that at the present moment such an attempt was practicable; for a code must contain not only the whole statute law, but the whole common law.
In order to show the necessity of the 720 task he proposed to accomplish, he would briefly call the attention of the House to the state in which the statute law now was. There were at the present time thirty-six volumes of statutes, containing about 1,000 folio pages in each volume. The consequences of this great number of statutes were, that the Judges, by whom the law was to be administered, the counsel and attorneys who had to advise upon it, and the subjects who had to obey it, in order to ascertain what it was upon any given question, must either resort to a text-book, which might not perhaps contain information sufficiently ample and accurate for their purpose, or, if no text-book upon the question existed, must go through the whole of the statutes from Magna Charta to the present day, and with the help of an imperfect, often a delusive index, endeavour to discover the particular section of the statute of which they were in search. The law was thus left in a state of complete uncertainty; and even after making an effort of that kind an inquirer might discover that a section of an earlier statute was inconsistent with one of a later statute, or that a section of one statute was repealed by a section of another, or he might be misled by allowing some portion of a statute to escape his attention. Nor were these the only evils; for often, when a private Member of Parliament brought forward a Bill for the improvement of the law, although the measure which he proposed might be a very sound and desirable one, unless he had made himself master of all the statutes bearing upon the subject with which he proposed to deal, his measure might be either unnecessary or inconsistent with a previous Act, and so create confusion and increase litigation. There were many other evils arising from the present state of things which he would not detain the House by pointing out; but he would illustrate some of them by a well-known case. In the reign of George II. an Act was passed which made the malicious destruction of property, under certain conditions, a felony. Fifty years afterwards another Act was passed, the framer of which, being unacquainted with the previous enactment, made it a misdemeanor. A few years afterwards the offence was committed, the criminal was indicted under the earlier act for a felony, was convicted, and was sentenced to suffer the punishment awarded to felony. Fortunately this was not a capital offence, or the man would 721 perhaps have been hanged in consequence of having been convicted of a crime which had ceased to exist; but the result, although less fatal—for the man received a pardon, and so escaped punishment altogether—was no less discreditable to the law of England. This was one of the innumerable instances of mischief which had occurred from the present state of the statute law; and in addressing himself not only to lawyers, but to gentlemen who from their various avocations were familiar with different branches of the statute law, he would only remind them of the class of statutes under which the Commissioners of Building Churches were constituted. He was quite sure that no individual out of the law, who had occasion to act under those statutes, could do so otherwise than with great peril of serious mischief on account of the confusion and inconsistency prevailing throughout the whole body of them—confusion and inconsistency which were, indeed, so generally acknowledged, that he should assume that the House was alive to the magnitude of an evil which had so long engaged the attention of some of the greatest men that had ever lived in England.
He should next lay before the House the precise nature of the plan which, with very able assistance, he should submit to Parliament for the entire consolidation of the statute law. He regretted that he was unable to be present the other night when his right hon. Friend the Member for Dublin University (Mr. Napier), in a very able address, brought under consideration the amendment of the statute law; but, as his right hon. Friend then truly stated, the complexity, uncertainty, and confusion of the statute law had attracted the attention of Lord Bacon not less than 250 years ago. At that early period of our legal history Lord Bacon complained, in much the same terms as mark the complaints of the present day, of the great evils and mischiefs resulting from the confusion and uncertainty of the statute law. From that time until the present the mischievous state of the statute law had gone on increasing; and although from time to time attempts had been made by lawyers, judges, and statesmen, who felt an interest in the welfare of the country, to reform our Statute-book; yet, strange to say, from the days of Lord Bacon to the days of Lord Brougham—he named them together, as at once the most illustrious of lawyers and of law reformers—not a single Bill had ever been 722 laid before Parliament with the view of completely consolidating the statute law of England. He might therefore well appeal to the indulgence of the House when he had ventured to undertake that task. He should not have done so had he not felt that, in common with others, he owed a duty to his country. He had been in communication with a number of gentlemen, to whom he should afterwards refer, who were Members of the Statute Law Commission; he had taken part in their deliberations, and he felt satisfied that, with the assistance which might be afforded to him by the Government and by that Commission, the task which he had undertaken might be accomplished. From the time of Lord Bacon, notwithstanding the universal complaints which were heard on the subject, the consolidation of the statute law had in effect never been attempted. At length, after the lapse of two centuries—it was in some way taken into consideration by the Record Commissioners, in 1806, who in their Report recommended that Mr. F. Palgrave should be requested to consider the best mode of reducing the statute law into a moderate compass and more systematic form, repealing what was obsolete, consolidating repetitions, and specifying under general heads the statute law most necessary to be referred to. Such was the recommendation of the Record Commission; but nothing was done with the view of consolidating the statute law, though the subject was occasionally mentioned in Parliament, until ten years afterwards—in 1816—when a Resolution was agreed to in the House of Lords, and afterwards submitted to the House of Commons. The House of Commons resolved to agree to the Resolution of the Lords, that, on account of the state of the statute law, it was highly expedient that effectual measures should be taken to arrange the matters contained in the statutes of the United Kingdom of Great Britain and Ireland passed in the several Parliaments, classing them under distinct and proper heads. Still nothing was done, or attempted to be done; and thus the matter remained, until some years after Lord Brougham made his justly-celebrated oration in that House upon the general state of the law; but inasmuch as there was then sitting a Commission which had been appointed by the Crown for the purpose of considering the statute law, the consolidation of the statutes did not form one of the subjects alluded to 723 by the noble and learned Lord. But in the year 1833, when Lord Brougham was Lord Chancellor, he issued a Commission—the third he (Sir F. Kelly) believed which had been issued in his own time, with the view of amending the Statute-book. That Commission resulted in nothing. A report was made by it, but it was never acted upon, for it was found that as soon as anything like classification or consolidation was attempted, the persons engaged in the work found themselves gliding into codification; and thus the whole scheme was rendered nugatory. In the year 1845 something practical was done in the shape of an index to the statutes. In some respects it was found to be incorrect, and it was found to be totally insufficient, even as a guide to the first step towards consolidation. Thus things remained until 1852, when he (Sir F. Kelly) held office under the Crown, when a Bill—the first of a series—was laid upon the table of the House of Lords for the purpose, not of consolidating, but of codifying the criminal law of England. The fate of that Bill was somewhat remarkable. Instead of merely dealing with criminal offences (for it involved a very important branch of the criminal law) and repealing existing enactments, and re-enacting others in one continuous form, it attempted to lay down the definitions and terms used in the criminal law, and attempted various amendments of the criminal law. The result was that while on the one hand no differences of opinion existed, or could exist, in relation to any of the statutory enactments, or the repeal and re-enactment of anything that was part of the statute law, every single definition, every single proposition, which constituted a part of the common law, which then, for the first time, came to be reduced into legal language, became a subject of discussion, upon which eventually the differences of opinion were irreconcilable. The Bill was then referred to a select Committee of the House of Lords, by whom a Report was made which prevented its further progress, and it was said that the object aimed at by the framers of the Bill was beyond the reach of man. The Bill, therefore, after being the subject of much discussion in the profession of the law, and in both Houses of Parliament, came to nothing. When Lord Cranworth (whom he could not name without offering to him a humble tribute of thankfulness for his most sincere and unwearied efforts to amend 724 the statute law) became Lord Chancellor, he laid a Bill upon the table of the House of Lords, which was to be the first of a series of Bills for consolidating the statute law; and the noble and learned Lord stated that it was the determination of the Government to attempt something to effect that great object. The course which the noble and learned Lord then pointed out, though varying in some details from that winch he (Sir F. Kelly) was about to submit to the House, was based upon the same principle of consolidation, and upon the Same belief in the utter impracticability, for the present, at least, of anything approaching to codification. Circumstances, to which it was unnecessary then to refer, prevented that Bill, from passing into a law. In the year 1854, Lord Cranworth, in consequence of the great diversity of opinion that existed on the subject, and that every attempt at consolidation had hitherto been combined with codification, appointed the Statute Law Commission. Of this Commission he (Sir F. Kelly) was a member; but, as it was only within the last few weeks that he had been appointed, he could not claim any credit for the many useful acts which that body had originated, nor, on the other hand, could he be held responsible for any errors which it had committed, though he was far from admitting that it had erred. Since he had become a member of that body, he had offered to undertake the duty of personally superintending and revising every Bill which they might think it necessary to prepare, for the purpose of subdividing and classifying the statute law, and he would further undertake the duty of laying every such Bill before the House in succession, until the statute law of the realm was completely classified and consolidated and made intelligible to the whole body of the community. He might state what he thought was the cause of the failure of every effort that had been made by the Statute Law Commission, composed as it was of the most famous lawyers of the day, and of other gentlemen familiar with the law of the country. They had been divided upon many questions that had arisen before them. While some of the members of the Commission were disposed to be content, for the present at least, with consolidation of the statute law, others insisted upon the codification of the entire law of the country; but this last project had been found to be attended with such difficulties that the attempt was given 725 up in despair. Again, a gentleman of whom he (Sir F. Kelly) would speak with great respect as a man of much experience and knowledge, and formerly a Member of that House—he alluded to Mr. Anstey—endeavoured under the direction of the Commissioners to frame an analysis of the whole law of England, with a view to a codification of that law, beginning with the statutes. That also had to be abandoned. Every attempt that had been made, acting upon that analysis, or upon any other plan that had come before the Commissioners for the codification of the law, had failed. The Statute Law Commissioners, however, acting upon the wise and well-considered suggestion of the Lord Chancellor, had employed members of the profession of the law, who had made themselves eminent upon any particular subject, not to codify, but to consolidate, the entire statute law upon that subject. That had been done—not, perhaps, considering the vastness of the field of labour, to any very great extent, but still to such an extent as to encourage him (Sir F. Kelly), as an individual member of the Commission, to make the attempt he was now making in that House. He had been perfectly convinced, by the result of those several consolidations of portions of the statute law effected by those gentlemen, that by carrying out the same plan an entire consolidation of the whole statute law was practicable, and he had therefore undertaken, if spared, and supported by the sanction of the Commission and the Government and of the House, to produce every Act of Parliament, and every section of an Act, in a state of complete classification and consolidation.
He would first state to the House the plan upon which he proposed to proceed, and he would then explain the precise distinction between consolidation and codification. First, then, as to the consolidation of the several statutes; what he proposed to do was to take one, or two, or three of the most important, and at the same time most familiar subjects within the whole compass of the Law, and which were also the subject of several Acts of Parliament; then to go through the whole forty volumes of the statutes, and extract therefrom every Act of Parliament, and every provision, every sentence and line in any Act of Parliament which had any bearing upon that subject:—to frame from these a new consolidated statute on each subject, and to repeal all the previous 726 enactments. This was, in truth, what had been done with relation to the statutes relating to offences against the person, and to bills of exchange and promissory notes, and by the two Bills for the consolidation of the law upon those subjects which he now wished to submit to the House. To explain what his intention was with regard to the statutes generally, he would point out what had been done in relation to the statutes referring to bills of exchange. Any lawyer wishing to ascertain the state of the existing law with respect to bills of exchange would, unless he consulted some text-writer or some treatise on the subject, have to go through thirteen Acts of Parliament, beginning with the 18th year of the reign of William III., and extending, he believed, to the reign of Her present Majesty. He would have to look through the whole of those statutes, section by section, to see whether there might not be a provision in some statute—passed, perhaps, in the reign of Queen Anne—which repealed or qualified a provision in some previous statute on the subject. What he (Sir F. Kelly) therefore proposed was, to take out of each statute every section and every line that related to the particular subject of bills of exchange, and promissory notes that was now in force, and then to repeal altogether the branch of the statute relating to the subject. Thus, in the case of bills of exchange, one single Act would be substituted for the thirteen statutes now existing on the subject. When that had been done some hundreds of pages would, as it were, have been taken out of the forty volumes of statutes. The proposed Bill to consolidate the law with regard to offences against the person would have the effect of curtailing the Statute-book by about 1,000 pages more; and the subject which would probably next be dealt with—the law of insurance—would take out about another 1,000 pages. The end would be, that, instead of some 20,000 Acts of Parliament, of which the statute law now consisted, and six and thirty volumes of statutes, the Statute-book would be reduced so as to be not more than one-seventh or one-eighth part its present size. Instead of consisting of a multitude of Acts, beginning with Magna Charta and ending with the last Act passed in our own day, following in accidental succession, without arrangement, connection, or consistency, it would be comprised in a series of comprehensive statutes, numbered in the order in which they were passed, 727 and each of which would contain the whole statute law of England upon a particular subject; and to one of which only it would be necessary to refer for any inquiry into any branch of the law.
He must state, however, that although this might seem from description to be a comparatively easy task, there were in truth many difficulties in the way, although he believed none of them would be found insuperable. One difficulty was, that the Legislature must, of course, rely upon the accuracy of the framers of the new statutes for the assurance that they had really extracted from the whole of this mass of statutes all the law bearing upon each particular subject. Upon that point he could only state that he had recommended that the Statute Law Commissioners, whom he was presuming to be the Board to carry into effect this great operation, should select, for the consolidation of the law upon each particular subject, that member of the profession who was the most undoubtedly and unquestionably competent for the task. Thus they would secure knowledge, and, he hoped, accuracy. But there were other difficulties. Let the House suppose that he had gone through the whole of those subjects which were of the greatest and most general importance—that the whole compass of the criminal and the whole body of the commercial law—all the laws that related to the public health and the well-being of the people in general; the municipal corporation law, the law of customs, and the law of excise—the whole public general statute law of the realm—had been gone through—there would even then remain some thousands of statutes, the consolidation of which, though full of difficulties, must be accomplished before the work could be said to be completed. He could best explain his meaning by referring to an abstract of the Acts passed during the last Session of Parliament. In the last Session the number of Acts of all descriptions passed was 134; of these 11 were general public statutes, relating to the United Kingdom, 2 applied to Great Britain, 6 to England and Ireland, 21 to England, 6 to Scotland, and 13 to Ireland—making altogether 59 Acts of a general public nature. Now, supposing they had brought in and carried through Parliament a succession of Bills on all these branches of the law, so as completely to have purged the Statute-book of probably nine-tenths of its entire contents, and to have consolidated into seve- 728 ral distinct and single Acts of Parliament all subjects of a general and public nature, then there remained behind twenty-six special and local Acts; six relating to the Colonies, two relating to the East Indies, eleven relating to the army, navy, and militia, and thirty-nine relating to the revenue and other financial subjects. The question was, how to deal with all these several subjects. Strictly speaking, these were not general and public Acts; yet still it would be in vain to say that they had consolidated our statutes if they were to leave ten or eleven volumes of statutes relating to various subjects, and all possessing features of national interest, still without order and consistency. He would state, therefore, very briefly, into what classes he proposed to divide these remaining Acts, and he hoped they would be able to deal with them in the work of consolidation; but before he did so, he must bespeak the forbearance of the hon. Gentlemen who represented Ireland, while he dealt, in the first instance, with the statute law of England. There were so many Acts of Parliament which related to England, and did not relate to Ireland, so many which related to some extent, and only to a partial extent, to Ireland and generally to England, that were he (Sir F. Kelly) to comprise Ireland within this scheme, he should only, perhaps, introduce or continue that confusion which he was seeking to put an end to. He fully admitted the right of Ireland to participate in the benefits of the scheme he was now propounding; and if he should be permitted to carry through some five or six of the principal consolidations as to the chief branches of the law, especially with regard to the law of England, he should then be very willing to render all the assistance in his power to hon. Members connected with Ireland, to commence and carry out the same consolidation of the laws specially affecting Ireland that he now proposed to apply to the laws of his own country. He might say the same with respect to Scotland, as her laws would be the last to be dealt with in the work of consolidation.
He now came to a class of statutes full of difficulty. There were probably some 6,000 or 8,000 public Acts of Parliament of which the Judges were bound to take notice, and which were printed in extenso in all the collections of the Statutes. They were, nevertheless, local in their character. He would just give one as an 729 example—the Act of Parliament relating to Dover Harbour, by which certain Commissioners were empowered to act in the management and otherwise of that harbour. No doubt the public were brought within their operation; but still they were local Acts. There were many thousands of Acts of this description, applying to almost all the great towns, and especially the sea-ports, in the kingdom. In these Acts, which were particular and exceptional in their very nature, were to be found a great many provisions of a public and general nature. For example—in an Act relating to a harbour on the east coast of England, there were a series of provisions whereby the Commissioners were empowered to take cognisance of certain offences, and which also contained clauses with respect to notices of action, and making a statute of limitations—assaults on or obstructing any of the officers in the execution of their duty was made a misdemeanor. Here they had a clause which ranged itself within the statute law as against the person. Upon this point, however, they would be very much assisted by the Act brought in by his able and distinguished Friend the Chief Baron of the Exchequer, whose attention had been called at an early period to the number and inconsistencies of those provisions with regard to notices of action and statutes of limitation, and double and treble costs, which were to be found dispersed through these numerous local Acts of Parliament. His right hon. and learned Friend had consolidated all the provisions of all local measures known to be in existence at that time into one single Act; but, since then many hundred more local Acts had been passed, and these provisions had grown up again. When the House had disposed of the general and public statute law of England, the course he proposed to take would be to follow, to some extent, the plan of his right hon. Friend the Chief Baron. He would venture to say that it would be quite practicable, when they came to the class of statutes of a local description, to repeal all the provisions that might be found in all now existing Statutes, and all that might be introduced in similar Acts, and to substitute for them one single general Act of Parliament resembling somewhat the Act of the Lord Chief Baron, but more closely the Railway Clauses Consolidation Act, with the provisions of which hon. Gentlemen were familiar. There would still remain two classes of Statutes 730 to be found in great numbers in the Statute-book, many of which Acts had been necessarily passed, and which occupied thousands of pages of the Statute-book—the statutes relating to the army, navy, and militia—or the Militia Act for example—and also Acts relating to the revenue; and those of a financial character, such as Loan Acts. He had no doubt he spoke within compass when he said that in going through the thirty-six volumes of the statutes, they would find at least 4,000 or 5,000 folio pages of the statute laws relating to the revenue, all of which had now expired. One of the effects of the work of consolidation would be to remove those defunct Acts altogether, and thus leave the Statute-book to consist of nothing but the consolidation of the existing statutes. If the same principle were successively applied to the Acts relating to the army, the navy, and other branches of the public service—if as successive Acts of Parliament fell into desuetude, or the purposes for which they had been framed were answered, they were to be removed from the Statute-book, three-fourths of the matter which now encumbered the Statute-book would be got rid of; and instead of our having a long series of statutes heaped together without method, order, or consistency, we should have a collection of consolidated Acts, each of which would comprise the whole statute law relating to the subject which it embraced.
Now, supposing the sanction of the House should be given to the plan which he had now stated, they might assume that in the course of time, the whole of the statutes would have ceased to exist in their present form, and would only exist in the shape of consolidated statutes. But then came the important and difficult question, how we were to deal with our future legislation. Great differences of opinion prevailed upon the subject, and no satisfactory plan, perhaps, had yet been sufficiently matured to be laid before Parliament; but he believed the Statute Law Commission had prepared a Report which would shortly be presented to Her Majesty, and laid before both Houses of Parliament, which embodied a plan for the amendment of their system of legislation in future. The first point to be attended to in any such plan would relate to the framing of Bills by individual Members who might not be very conversant with the language and structure of Acts of Parliament. If the Report of the Com- 731 missioners should meet with the approbation of Parliament, it would be desirable to distribute among private Members, and especially to those who contemplated the preparation of Bills, certain suggestions for their guidance as to the phraseology and composition of Acts of Parliament, so as to enable them to mate their projected legislation harmonise with the consolidated laws already passed. This brought him to the subject of the appointment of a Board, or individual Minister, who should watch over the future legislation of both Houses, and who should report from time to time on the changes which were necessary to bring it into accordance with the existing statutes. It would not become him to trespass upon the field already occupied by many hon. Members of that House, as to the description of person to whom that important task should be entrusted. He should not say whether or not it ought to be an individual Minister or a Department of Justice; but he said there ought to be, and must be, some officer or officers, invested with the authority of both Houses of Parliament, to watch the formation of Acts, and to report and suggest to the House how far they differed or were consistent with the Acts already in force, and to take upon themselves the supervision of all Bills in Parliament; and that to that authority should be submitted all Bills that were to be brought forward in either House. Then came the question, by what means new enactments could be made to form part of the already consolidated statute laws. Let him suppose a Bill to be brought in—say, a Bill to amend the laws relating to bills of exchange and promissory notes. The Consolidation Bill, when passed, would contain the whole existing statute law on that subject. Then, supposing that at a later period of this Session, or some time next Session, a Bill should be brought in relating to and altering the common law as affecting bills of exchange—such a measure would become part of the statute law on the same subject. Take for example, the three days' grace allowed for bills of exchange; supposing it were thought expedient to make the law of England assimilate with the law of other countries, and do away with those three days' grace; and an Act was then brought in for that purpose—then came the question, how would they deal with that Bill in connection with their previous legislation? There could be no difficulty, he thought, 732 in devising a scheme and modus operandi for annexing the new Acts of Parliament relating to bills of exchange to the already existing consolidated law on that subject. For instance, every consolidated statute might bear a number as part of its title in addition to its general designation. Thus, his present Bill, proposing to consolidate the law on bills of exchange, might be called "Consolidation Act, Bills of Exchange, No. 1," and the Hypothetical Bill, subsequently passed, abolishing the three days of grace, might be called "Consolidation Act, Bills of Exchange, No. 2; and the difficulties arising from annexing subsequent Acts to the Consolidation Act might be readily overcome by enacting that in any future reprint of any Consolidated Act the subsequent Acts should be printed with, and become part of, the Consolidated Act. The case, no doubt, became more complicated when numerous Acts relating to one subject, and consisting of 200 or 300 clauses, contained two or three provisions which had relation to part of another subject already consolidated. But he proposed that the Minister or Board, or superintending power, whatever it was, to whom the task should be committed, should detach the two or three clauses, treat them as a separate Act, and annex them to the consolidated statute in the way he had already pointed out. It appeared to him that if they looked practically to the subject, it would be very easy indeed to frame a system, and some such system was already under the consideration of the Statute Law Commission, and he had no doubt it would be the subject of a Report. In this manner he believed all consolidations of the statute law would be perfectly practicable; and as our legislation advanced the statute laws would be found a series of enactments harmonising together. It was of the last importance that the measures for consolidating the statute law, after the principle should have received the sanction of both Houses of Parliament, should be passed into law in quick succession at the earliest possible period. After very great attention to the subject—after conferring with not only the most able and active Members of the Statute. Law Commission, but also the most distinguished and practically experienced living lawyers, Judges, and statesmen, he had their full concurrence; and he had satisfied himself that the scheme was perfectly practicable, and that it would be successful if it should receive the support 733 of that and the other House of Parliament. He solicited hon. Members to point out every difficulty to the scheme that might present itself. He would pledge himself that, in the preparation of the Bills which he hoped he should be allowed to introduce, he would personally, at whatever sacrifice of time, or aught else that might be demanded, most carefully superintend and revise the provisions of every Act and of every single clause of every Act that he should offer to lay upon the table of the House for the consolidation of the statute law, and that none but the most competent men should be employed to prepare them.
He would now beg to draw the attention of hon. Members to the great distinction between codification and consolidation. To consolidate a multiplicity of Acts of Parliament was one thing; it was only necessary to take the repealed Acts, strike them out altogether, and arrange those still in force upon any particular subject into one consolidated statute, being careful to keep the same words verbatim which had already received the sanction of the Legislature, and had been the statute law of the land. Such a course could lead to no discussion, and present but little difficulty. It was neither making nor amending the law, but merely putting it in a different form. But it was another thing to superadd to that task the codification of the common law, or the addition of that portion of the common law which bore upon any particular subject to the statute law; and, in such an undertaking, the greatest difculties would present themselves, and a work of enormous magnitude would be opened up. The assent of Parliament would be requisite to every single proposition, within the compass of the common law. If they repealed a single clause, or tried to add a single now one, differences of opinion, doubts of construction, and new expositions of the law would arise which would render the passing any single Act on any important branch of the law in one Session utterly and totally impracticable. He would remind those who thought that codification was feasible, of the first attempt at codification in this country. He alluded to the Bill brought in by Lord Derby's Government in 1852 for the codification of the criminal law. The consolidation of the statute law had been often recommended, and directions were given by Lord St. Leonards to men of great learning to apply themselves, in the first place, to the work of codification, and not 734 merely of consolidation of the criminal law. A Bill was accordingly prepared by two or three most able men, having a profound knowledge of the criminal law, and was laid on the table of the House of Lords. As a first step towards codification, the definition of certain terms used in criminal Acts was indispensable—such words as "malice aforethought," "maliciously," "wilfully," and the like; and it was necessary to introduce these in the shape of statutory enactments to complete the codification. The Bill was laid on the table of the House of Lords, and was referred to a, Select Committee; but when the law Lords came to deal with the new enactments referring to the definitions of words to be used in the Acts of Parliament on criminal law great difficulties were experienced. The Select Committee met eleven times, and each meeting lasted from four to five and six hours. It had among its Members some of the most distinguished lawyers and statesmen of the present day. Five of its Members either had filled, or did then fill, the office of Lord Chancellor—namely, Lord Truro, Lord Brougham, Lord St. Leonards, Lord Cranworth, and Lord Lyndhurst. The Lord Chief Justice of the Queen's Bench was also a Member of the Committee. Those six most able and learned men assembled in Select Committee to deal with the first attempt at codification, and the result of their labours, after holding these eleven meetings was, that they were obliged to give up the attempt in despair, having got no further than the eighth or ninth proposition. After the failure of that attempt, would any one endeavour to carry reform any further in the direction of codification? It was much easier, and more practical, to attempt the consolidation of the statute law. He was far from saying that codification was impossible; but if it were ever within the compass of human ability, the difficulty and labour of the task would be enormously diminished by the existence of a complete and perfect consolidation of the statute law. Let us then have such a consolidation, and thus prepare the way for those who were sanguine promoters of codification, and who might then attempt to erect their monumentum œre perennius upon that foundation. He (Sir F. Kelly) had no objection to undertake the responsibility of the supervision of the Bills necessary: but it was obvious that the labour of preparing them, involving the examination of the whole of the statutes 735 to be consolidated must be the work of others, and that it could not be expected to be done without remuneration. The House would, of course, like to know the probable expense of the entire undertaking, In the first place, however, he might mention that he would not venture to approach such a task without the constant co-operation and assistance of the members of the Statute Law Commission. It was well known that that was an unpaid Commission. It consisted of the Lord Chancellor, the Lord Chief Justices, the Attorney and Solicitor General, and other eminent legal functionaries, as well as noble Lords and other persons who did not belong to the profession of the law, and who were willing, without remuneration, to bestow their labour for the good of their country. There was Mr. Bellenden Kerr, whom he could not mention without saying the country was greatly indebted to him for his long, consistent, able, and persevering efforts, from an early period of his professional life, to reform the law, but he was scarcely an exception to the remark as to the Commission being composed of unpaid functionaries; for this gentleman received a salary of very moderate amount as secretary for certain purposes, and he was willing to give his time without further remuneration in attending the Statute Law Commission. Mr. Coulson was also an able and effective member of the Commission; he received a competent salary for preparing Bills for Government; but he also was ready, without further remuneration, to give his best time and labour in assisting the Statute Law Commission in the consolidation of the criminal law. The only paid officer was the secretary (Mr. Brickdale), a very able man indeed, who received £600 a year. Now, it was necessary to employ persons whose learning, accuracy, industry, and experience qualified them for the task which would be involved in the preparation of each of these consolidation Acts; and he presumed that a moderate remuneration—as moderate as was consistent with justice to those learned individuals—would not be complained of by the House. Remembering that, upon each consolidation, it would be necessary to go through, and to weed as it were, and collate the entire statute upon a particular subject—to carefully revise, collect, and consider the effect of some 20, 30, 40, and often 50 Acts of Parliament—he did not think that something from £50 to £100 for each consoli- 736 dation Act would be considered an excessive remuneration; and really, if he multiplied what would be the whole outside cost of the entire undertaking, the sum was so small, in comparison with the vast and incalculable benefit which the work would confer upon the country, that he could not think: it would be objected to by the most severe economist in the House. As some encouragement to law reformers in the House, to individual Members, and to the Government, and also to those economists who objected to any undue and unwise expenditure for this purpose, he was prepared to lay returns on the table which would enable them to arrive at a positively accurate result with regard to the question of expense. He was quite prepared to show that, by two Acts of Parliament alone, the fruits of recent law reforms—the County Courts Act, and the Common Law Procedure Act—£1,000,000 sterling a year was saved to the public and portions of the public. If, then, such a saving had been effected by two measures only, applying only to two particular branches of the law, how unwise, how unworthy of the Legislature, would it be to act on the principles of too severe and too strict economy with reference to a measure which had for its object the consolidation of the entire statute laws. He could not allude, indeed, to the Common Law Procedure Act without paying a just and well-deserved tribute to his learned and distinguished friends Baron Martin, Baron. Bramwell, and Mr. Justice Willes, who had taken an active part in promoting that great reform of the law, which, he believed, had effected more public good than had been effected by half the legislation of a general character of any one Session of Parliament. It was high praise to the Lord Chancellor that he had appointed those gentlemen in the prime of life, and when they had attained to eminence at the bar, to a position where they were called upon to perform high judicial functions.
He (Sir F. Kelly) earnestly invited discussion with reference to the principles or details of the measures he was anxious to submit to the consideration of the House; and if the House, after full consideration, agreed with every eminent and distinguished individual by whom the question had been considered, and if he were fortunate enough to receive its sanction to the first and second reading of some one, two, or three of these measures (for that 737 would be sufficient for the purpose at (present), he would be enabled afterwards, and in succession, as fast as the other consolidation bills were prepared, to lay them on the table, and to carry them through at least that, the Lower House, without opposition. He believed that by the zeal, vigour, and industry of those whose assistance he hoped to receive, he would be enabled to present measures to the House by which, by the end of the next Session of Parliament, or within two years from the present time, the whole statute law of England might be perfectly consolidated. The reason why he felt more justified in appealing to their indulgence and forbearance, in regard to the future progress of those Bills in that House, was, that the most earnest and sanguine of law reformers would find more than sufficient occupation for all their abilities and energies upon the many measures of law reform which had and must be brought forward during the present Session. He need not allude to those introduced by the right hon. Gentleman the Member for Kidderminster (Mr. Lowe), which partook in a great measure of law reforms, and which well deserved consideration. An hon. and learned Gentleman opposite (Mr. Craufurd) had also brought in a Bill to enable execution to issue in any part of the United Kingdom under judgments obtained in certain courts of record in England, Scotland, and Ireland; the hon. Member for Wallingford proposed a Bill for identifying specialty and simple contract debts; and he (Sir F. Kelly) hoped also himself to lay on the table, before long, a measure of some considerable importance for the amending, or he might more correctly say, for the entire abolition of the whole system of special pleading. But even these measures sunk into comparative insignificance when they looked to one or more which had already been announced on the part of the Government. He understood the Solicitor General to say that it was the intention of the Government to again propose this Session a measure for the reform of the Ecclesiastical Courts, or for the establishment of a Queen's Court in their place. That was a subject upon which, during the late recess, he (Sir F. Kelly) had bestowed a great deal of time and attention, and he hoped that his views, which he would take an early opportunity of imparting to those Members of the Government who had charge of the Bill, would be found in all substantial respects to coincide with theirs. 738 If that were so—if the measure embraced the entire extinction of all that was objectionable in the existing ecclesiastical courts, and also the establishment of a competent court of appeal—if the jurisdiction of the common law courts and the Court of Chancery, were brought to bear on the administration of the law in what were now mis-named the ecclesiastical courts, in all matters testamentary and matrimonial—and if the vested interests of those whose means of subsistence might be affected by the change were properly regarded—if those were the great and substantial principles of the Government measure, it would have his support, and he would venture to say the support of both sides of the House. He also understood that it was the intention of the Government to bring forward a Bill for the registration of titles, and for facilitating the conveyance of land, and, although the subject was one surrounded by considerable difficulties, he did not think those difficulties could be deemed insurmountable. Should then the Bills he was now about to propose for the consolidation of the statute law receive the sanction of the House, he would undertake henceforth to relieve the Government of all anxiety and of all labour in regard to the rest, as to which he should not shrink from the responsibility: the other Consolidating Bill would be brought forward in due time; and, he hoped, would entitle the Parliament which should pass them into a law to the approbation of the country. He would declare, deliberately and unreservedly, that such was the present state of our law and legislation, so much had been done, and so many were to be found competent and ready to do all which yet remained to be effected, that he knew not why a single grievance in the administration of the law of England should be any longer permitted to remain unredressed.
I rise to second the Motion of my hon. and learned Friend; but, after his comprehensive speech, and not anticipating opposition at this stage, I shall trouble the House with but few remarks. I see with pleasure, as does every man who has reflected on the wants of this community, that, in the rather unusual cessation of political antagonism which characterises the present time, the question of law reform is rising daily into greater prominence. During half a century that question has occupied the atten- 739 tion of Parliament, and to some extent of the public; but what has been wanting is not so much the guidance of a directing mind, or the agency of honest and competent persons skilled in the law, as that popular interest and support out of doors, without which, in a popularly-constituted Government, any reform, especially if it involves much labour of detail, is sure, to be thrust aside to make way for other measures, less important, but at the moment more interesting. The difficulty with which law reformers have to contend has arisen not so much from the actual magnitude and weight of obstacles in the way, as from the want of sufficient impelling force to encounter and bear them down. The work has been there to be done, the machine was ready to do it, but the propelling, driving power was not adequately supplied. If Parliament be in earnest in dealing with this subject, what course ought we to adopt? I do not dogmatise on such a question; but I accept my hon. and learned Friend's conclusion, that any attempt to recast the whole law of England into the form of a code would, for the present at least, be useless. You would have to amalgamate with the statutes the whole of the common unwritten law, now scattered over more than 500 volumes, to try, on an immense scale, under every disadvantage, that experiment which was tried three or four years ago, on a small scale, under the most favourable circumstances, the result of which my learned Friend has described. The alternative, then, is to deal with one part of the law—the statute law—only; to simplify it, to amend it, to bring it within the smallest possible compass; and, after that task has been accomplished, then, but not till then, to consider what further steps ought to be taken. I use the word "alternative," but, in truth, the acceptance of one plan does not imply the rejection, hardly even the postponement, of the other. For it must be borne in mind by the advocates of codification, that the first step towards codification is the consolidation of the statute law; and even if nothing should be done beyond consolidation, a great economy of time and labour would be effected, and much confusion would be removed. Every step taken in that direction is a guarantee for further improvement, because when confusion has been removed from the law upon any single subject the force of contrast will operate, and men will ask why 740 one part of the law should be simple and another obscure? If consolidation be determined upon, my hon. and learned Friend will take upon himself a large proportion of the Parliamentary labour which it involves, but the great mass of the work to be done will have to be done out of this House. Two methods present themselves of getting through that work. One is, to have a fixed body of men, either a Minister of Justice with subordinate agents, or a certain number of Commissioners, to deal successively with all the subjects concerning which enactments are contained in the statutes. The other is, to divide the statute law into groups, and to confide each separate group to some person or persons who have made that particular branch of law their special study. Each method has its advantages. By the first you will obtain that uniformity of system which follows upon the action of a single directing mind. By the second you will utilise the services of men who have acquired a special familiarity with a particular subject, without perhaps being under the necessity of taking them altogether away from their profession. It is a question whether the two methods might not be advantageously united; whether the necessary unity of plan may not be gained by the superintendence of a Minister or Commissioner, while the work of consolidation upon each particular subject is assigned to the person best able to undertake it. The next question that arises refers to the arrangement of the statutes. Some jurists have proposed an entire redistribution of the statutes, which would require many of them to be taken to pieces and arranged under separate heads. It is clear that this process (whether desirable or not I do not pronounce) is one of codification, and not merely of consolidation. The plan, which is the most simple, and which involves the least departure from the existing arrangement, would, no doubt, be the most convenient. There are many statutes which cannot be arranged or classified without difficulty; but those of the greatest importance relate to subjects upon which Parliament has frequently legislated, and they might be classified into large and comprehensive groups. I have made out a list of nine such groups, which I will read to the House. With regard to the qualification and election of the Members of Parliament, 185 separate Acts have been passed; with regard to Excise, 120; stamps, 130; poor law, 120; assessed 741 taxes, 40; Crown lands, 40; municipal corporations, 60; rent, 40; and sheriffs and their officers, 55. This list by no means exhausts the instances in which a large number of statutes has been passed upon a single subject; but it shows that 790 separate Acts may easily be reduced to nine. This kind of legislation is different from every other kind. In other cases, if the work to be done is not completed, the labour bestowed upon it is entirely lost; but in this case, every step gained is gained once for all, and will be equally useful and valuable whether the work be completed or not. A question has been raised with regard to the degree of verbal alteration which ought to be made in the different statutes when they were thrown together. The Commissioners of 1854 have fully argued that question, and answered the objection that verbal alterations would destroy the authority of the judicial decisions now in existence. They contend that the result of former judicial interpretations would be embodied in such alterations, and litigation, instead of being created, would be decreased by the consequent removal of doubts. A doubt has been raised as to whether anything ought to be attempted in the way of substantive as well as verbal alteration, and it has been said that nothing ought to be done beyond consolidating the law as it stands, lest the Government or the Commissioner should assume an undue responsibility in making alterations. No doubt there is just ground for such a fear; but, on the other hand, much of our statute law has become wholly or partially obsolete, much has been virtually repealed, and thus substantive as well as verbal alterations may, to a certain degree, be necessary; while no persons can be so competent to suggest such alterations as those whose attention has, by the very labour of consolidating, been closely fixed upon the law as it stands. The Government and the framers of any Act embodying such alterations will be responsible for them. Care must always be taken to explain their nature and extent; and I take it for granted that nothing will be attempted in that way except what the state of the law and the necessities of the time render obviously expedient. I now come to what has been looked upon as the greatest difficulty in the way of consolidation—namely, the continual introduction and passing of new Acts. It is urged that no reform in the nature of consolidation 742 can be more than temporary, because fresh changes are every day being made. My answer is, that this objection, even admitting its validity to the fullest extent, does not touch the question of the beneficial effects of consolidation. It will be a great step towards the simplification of the law, and a great saving of labour and time, if all we obtain be that those who have to ascertain the statute law upon a particular subject shall be able to begin their inquiries with the year 1856 or 1857, instead of having to look back 300 or 400 years. My hon. and learned Friend, however, holds that the difficulty, such as it is, is not insuperable. The Consolidation Act upon a particular subject will embody the law up to the time of its passing, and whether any amendment act subsequently passed be classified separately as a consolidation amendment act, or whether it be joined on by way of supplement to the Consolidation Act, the objection will in either way be overcome, and the whole statute law upon that subject may still be found in the same part of the same book. I think it clear that some competent authority is required—whether a Board or a Minister, Parliament must decide—by whom every Act of Parliament shall be examined to see that it is not inconsistent with former Acts, and that it rightly and fully expresses the intentions of its propounders. That proposition is not novel. It was put forward about two years ago in an able pamphlet by Mr. Wilmore, it has been again and again discussed among members of the profession; I believe there is a general concordance of legal opinion in its favour, and I at least have never heard any valid argument against it. The expense will be but trifling, even if in such a matter expense can be regarded. My hon. and learned Friend has raised one point of far greater difficulty—namely, what ought to be done with local or personal acts which are in some sense acts of a general character—as, for instance, where special and exceptional protection is given, in certain cases, to persons or property. It is rash to generalise, but, I confess, to me all such acts (I do not deny their necessity in some supposable cases) appear faulty in principle, and, as in the case of the Railway Clauses Act, they ought, for the warning and guidance of the public, to be embodied in one general statute, controlling and limiting their provisions. With regard to the specimeasures which my hon. and learned Friend has introduced I shall not trouble 743 the House. They are large in themselves, but they are far less important than the general plan which he has sketched out, and the pledge which he has given. That pledge is before the country. I will only observe that we are too apt, in the conflict of parties, to forget the right, the duty, and the responsibility which belongs to individual Members of aiding in the work of legislation. We remember and talk loudly of the responsibility of action, but we lose sight of the equally real responsibility of doing nothing where abuses exist. It is not reasonable or just that the exclusive burden of legislation should devolve on those who have already on their hands the administrative business of the nation. My hon. and learned Friend, in associating himself with the Executive in undertaking this task, is not only promoting a legal reform, but setting a good Parliamentary example; and with the energy and industry he has displayed, it is not likely that he will fail, from any want of support either in or out of the House.
THE ATTORNEY GENERAL
said, he should not make any lengthened observations in reference to the Motion, because he thought they were all agreed that it was desirable to consolidate our Statute-book. Every one was agreed that the state of our law, with regard to its embodiment and promulgation, was highly discreditable to the Legislature. That the laws of England should be scattered upon the face of innumerable text-books, hundreds upon hundreds of volumes of reports, and thousands upon thousands of statutes—that, as the noble Lord the Member for King's Lynn had, in his very able observations, pointed out, there should be upwards of 100 statutes upon many single subjects, was a scandal and a reproach to the legislation of this country. The question, however, to be determined was, the best remedy to be applied to that sad state of things. He quite concurred with his hon. and learned Friend the Member for Suffolk, and the noble Lord the Member for King's Lynn, that it was not desirable to combine consolidation with codification. Let them first consolidate their statutes:—for he was inclined to believe that, however defective, in many instances, our statutes might be, whether as regarded their language or their substance, yet, if the House once attempted to alter them in either of these respects, they would become entangled in protracted and interminable discussions, and that which was 744 already a work of immense labour and time would necessarily become a work of unlimited duration. He was, therefore, inclined to believe that the best thing which could be done would be, to sweep away, in the first place, from the Statute-book all those statutes and parts of statutes which had been entirely or partially repealed, and then to consolidate those which remained. But then came the question how that consolidation was to be effected. The hon. and learned Member for Suffolk had, in his very elaborate and detailed statement, explained to the House the scheme which he proposed. He (the Attorney General) thought that his hon. and learned Friend had taken too much credit to himself for the originality of his scheme; for, as far as he (the Attorney General) was aware, it was neither more nor less than what the Statute Law Commissioners were now and had for some time been acting upon, in the framing of Bills to be submitted to Parliament for the consolidation of the statute law. He did not quite understand the position taken by his hon. and learned Friend on the present occasion, but he was quite sure of this, that he (Sir F. Kelly) intended to bring his great knowledge and ability to bear upon this most useful purpose of consolidating our statute law; but he did not quite understand whether his hon. and learned Friend was to be considered as the organ of the Statute Law Commission, or whether he intended to undertake individual action in that House with respect to the subject. He did not wish to give his hon. and learned Friend, considering how many years he had been a member of their common profession, too much credit for modesty; but he had no doubt that his hon. and learned Friend had no intention of arrogating to himself that to which he had no right. His hon. and learned Friend would forgive him for saying that he apprehended that there was nothing in the plan which had been propounded that evening at all different from the plan proposed by the Statute Law Commission. He (the Attorney General) had the honour of being a member of that Commission, as had also several of his hon. and learned Friends who sat around him; and certainly he was not aware that the hon. and learned Member for Suffolk was entitled to speak in the came of the Statute Law Commission. That, however, might be so, but he (the Attorney General) did not know that such was the fact. He did not 745 clearly understand whether the hon. and learned Member was to be regarded as the head of the Statute Law Commission, and in that capacity was to introduce consolidating Bills as their organ, or whether on the present occasion he was simply exercising his own discretion. He (the Attorney General) was not desirous of vindicating the plan propounded by the Statute Law Commission, because he did not think that it was a good one. He had the misfortune of differing from them on the course that ought to be pursued in the work of consolidation. He thought that the consolidation of our statutes ought to be conducted upon a far more comprehensive system than that which had been brought forward by the hon. and learned Member, or that which had been prepared by the Statute Law Commission. To his mind it was clear that if Parliament acted upon the principle proposed by his hon. and learned Friend, and by the Statute Law Commission, so far from accomplishing the work of consolidation in two years, as his hon. and learned Friend wished the House to believe, he believed that it would not be accomplished in two centuries. If they took a bit of the statute upon bills of exchange, another bit of the law relating to offences against the person, another bit of the law relating to masters and servants, and another bit of the law relating to landlords and tenants—if they proposed to accomplish the great work of consolidation in this piecemeal, bit by bit, and fragmentary manner, he believed that the Irish Members whom his hon. and learned Friend had requested to wait until he had completed the work of consolidating the laws of England, before they asked him to undertake a similar work with respect to the laws of Ireland, might wait till doomsday before the laws of their country could be amended. He (the Attorney General) believed that the proper course to be pursued with reference to consolidation would be, to make a complete analytical outline of the statute law of England, just as any one who had to sit down and write a text-book upon the statute law would have to bring together under one head all the various laws relating to one particular subject. Before you commenced the work of consolidation, or the writing of a text-book upon the statute law, you should have before you a great chart, plan, or skeleton of the law of England. If, for instance, you wished to expound the law in reference to an owner's rights, or 746 offences against a man's person or property, or the law relating to parent and child, husband and wife, guardian and ward, every statute bearing upon the particular law which you attempted to expound, should be brought within one great, comprehensive, and simultaneous view. And similar should be the plan adopted when the consolidation of our statute law was attempted. All the laws, for instance, with regard to a man's personal or political rights should be brought together under their proper heads, and so with regard to all the other laws. By such means you would have the law upon each of the important subjects comprehended in our Statute-book simultaneously dealt with; but if the work were attempted to be done in the fragmentary manner proposed by his hon. and learned Friend, he believed it could not be successfully accomplished. He did not stand alone in the Statute Law Commission on this subject. He believed he had the great advantage of having in that respect the concurrence of his hon. and learned Friend the Solicitor General, than whom no man was entitled to speak with greater authority on this subject. But the Solicitor General and himself were in a minority in the Statute Law Commission with reference to the plan for consolidating the statute law. That, however, was no reason why he should not give his support to the plan proposed by the hon. and learned Member for Suffolk. He was very glad that a man of such transcendent ability had come forward on so important a subject, and, so far from opposing the introduction of the Bill, he hailed it with satisfaction, and would willingly render any assistance in his power, either as a Member of the House, of the Government, or of the Statute Law Commission, in furtherance of the great object in view.
§ MR. STUART WORTLEY
expressed his gratification at the measures proposed for the improvement of the statute law by his hon. and learned Friend the Member for Suffolk. He entirely concurred in what had been stated by his hon. and learned Friend the Attorney General as to the sentiment, now so general that it might he called universal, in favour of the consolidation of the statute law. He rather coincided in the opinions of the hon. and learned Member for Suffolk and of the noble Lord the Member for King's Lynn than in the views of the Attorney General, as to the plan that should now be proceeded on to effect the object in 747 view. He was quite as much in the dark as the hon. and learned Attorney General as to whether the hon. and learned Member for East Suffolk appeared as the organ of the Statute Law Commission or not; but he could very sincerely congratulate the country that a Gentleman of his hon. and learned Friend's ability, perseverance, and energy should be pledged to commence and carry out, with the assistance of Parliament, the great task he had undertaken. He could not help hoping that the hon. and learned Member would find that task not to be so overwhelming as it had been represented by the Attorney General. He fully admitted the superiority of the principle laid down by that hon. and learned Gentleman. He believed that to take a wide and comprehensive view of the whole statute law, to subdivide it, analyse it, classify the several parts under proper heads, and arrange it into a perfect system, would be infinitely preferable to the scheme of his hon. and learned Friend the Member for Suffolk. But by what machinery would they deal with the statute law in that way? The very nature of our constitutional Government would make such a task one of extreme difficult. If our Government was like that of Napoleon—if the Attorney General were the first law officer of an absolute Government, it would be his duty to attempt the consolidation of our statutes in the way the hon. and learned Gentleman had suggested, and he (Mr. S. Wortley) believed that, under such, circumstances, his plan would be practicable. But the question that House had to consider was, what was the best thing practicable under the constitutional Government they had in this country? On the whole, he believed that the better plan was, to introduce Bills for specific subjects, rather than to bring in any large measure that would embrace every subject of which the statute law was cognisant. He therefore thought that the proposal of the hon. and learned Member for Suffolk was the more likely to succeed under our constitution. He certainly rejoiced that the hon. and learned Member proposed to confine himself to consolidation, and it was with regret that he heard the noble Lord the Member for King's Lynn intimate an opinion that it would be desirable to go somewhat beyond consolidation to alter the language of the statute law, and in some manner to give it an interpretation. He (Mr. S. Wortley) so far concurred in 748 the wisdom of keeping consolidation separate from codification, that he sincerely hoped the hon. and learned Member for Suffolk would abstain from anything that touched on the latter. Consolidation was, in his opinion, perfectly practicable, for it introduced nothing new, and therefore raised no question; but the moment codification was attempted there would have to be encountered not only the difficulty of defining terms and principles, but every enactment would raise a host of new questions. He congratulated his hon. and learned Friend on his having undertaken the task of simplifying the statute law, and approved of his selection for his first attempt of the law relating to offences against the person. If it was scandalous that the law on any ordinary subject should be found scattered through many statutes, it was particularly scandalous with respect to a subject affecting the life and security of the person; and he, therefore, rejoiced that this attempt at practical legislation for the removal of such a scandal should be made. It was possible, therefore, in a deliberative assembly like the House of Commons, to pass a Bill with a preamble somewhat to this effect:—" Whereas, there are scattered among various statutes various provisions on the same subject, and whereas it is desirable—if these are to be law at all—that all should be included in one statute, be it therefore enacted that these provisions be all included in this Bill." This would not pledge parliament to details, but the moment they attempted to codify, every question raised a host of new principles. He again congratulated the hon. and learned Member on the measures he had brought forward, which measures had his (Mr. S. Wortley's) concurrence and support.
§ SIR F. KELLY
rose to say one word in explanation of a remark that had fallen from his learned Friend the Attorney General. He would take another opportunity of noticing the general remarks of his hon. and learned Friend; but as to the question before the House, and what the Attorney General had said in reference to his introduction of the measures, he (Sir F. Kelly) begged to state distinctly that he was not the organ of the Statute Law Commission. He appeared there to propose these measures merely as an individual—as an independent Member of Parliament. It was quite true that for the last few weeks he had been a Member of the Statute 749 Law Commission—he had attended many of its meetings—and his propositions had the entire sanction and approval of every Member who attended those meetings, amongst whom he could not recollect having numbered cither of his learned Friends the Attorney or Solicitor General on any single occasion. He certainly felt it due to every Member of the Commission with whom he had communicated to say that he had their cordial sanction and approval of the measures he was now bringing forward. He also begged to state that any attempt to carry those Bills through Parliament without the aid which the Commission could afford, and which it could only afford him under the authority and sanction of Her Majesty's Government, would not, in his opinion, be attended with a satisfactory result.
§ MR. J. G. PHILLIMORE
said, he had heard with regret the hon. and learned Gentleman the Member for Buteshire (Mr. S. Wortley) repeat those arguments against codification which he had imagined to be exploded. That hon. and learned Member, as well as the hon. and learned Member for Suffolk, seemed to forget that this country, in being without a code, formed the single exception among nations which had attained a high degree of civilisation. He ventured to say that in drawing up a code for France more difficulties and anomalies by a hundredfold had to be encountered than would be met with in executing a similar task for England; and, so far from cvils arising from that codification, there was not a country in Europe where the Code Napoleon was adopted that did not regard it as the greatest blessing. In the Rhenish provinces Prussia, all powerful as it was, could never induce the people to give it up. It would be easier to draw up a code for England, because in this country there was less contrariety of customs to reconcile; and when it was said that codification could only be done by an absolute Government, he referred, in refutation of that statement, to America, and to the code of Louisiana. That was sufficient to show that the codification of our law was not so difficult and extensive a task as it had been represented to be. To condense and methodise our laws required industry, and nothing more, and it was with regret that he saw any measure tending to postpone that great object, or to make people think it was a hopeless task. The same arguments which were now used against codification in this country had at 750 one time been used also in France. The objections raised to the code drawn up by his learned Friend Mr. Greaves certainly reflected no credit on their authors. There always must be a vast mass of unwritten jurisprudence, and the great object was, to reduce all uncertainty within as narrow a limit as possible. It was an observation of Lord Bacon, that if the laws were to accumulate, and grow into such a vast mass, and to labour under such great confusion as to be unintelligible, the great object should be to adjust and methodise them. "Opus ejusmodi," said that great, man, "opus heroicum est." He hoped that this opus heroicum might be accomplished by his hon. and learned Friends below him, and the sooner it was set about the better.
§ SIR G. GREY
said, he thought the discussion that night and the debate of the other night, on the Motion of the right hon. and learned Gentleman the Member for Dublin, confirmed the observation of his hon. and learned Friend the Attorney General, that there was no difference of opinion as to the difficulties and evils arising from the present state of our statute law and our common law. It was beyond all doubt that there was a great variety and multiplicity of statutes, many of them on the same subject, scattered over an immense number of volumes; and that hitherto no attempt had been made at a consolidation or codification of those statutes. He was only afraid lest, while they were all agreed in this, they would be deterred from making any step in advance by a difference of opinion, as to which was the best step to be taken. From the speech of his hon. and learned Friend who had just addressed the House, it might be inferred that some Members had expressed an opinion that codification was not in itself desirable. Now he (Sir G. Grey) had not understood any one to say that it was not; but he thought that the general tone of the observations thrown out by Members showed that difficulties would arise if they should attempt to pass through the House any measures for remedying the present evils and inconveniences, if they attempted to combine codification with consolidation. He certainly thought they had enough to show them that any such course would postpone the termination of the evil. As regarded consolidation, distinct from codification, his hon. and learned Friend the Attorney General had stated his concurrence in the proposition that classification or 751 consolidation should precede, but not supersede, codification; but the difference between hon. Members was as to the best mode of effecting consolidation. A few nights before, when the Resolution moved by the hon. and learned Gentleman the Member for the University of Dublin was before the House, the hon. and learned Member for the University of Cambridge (Mr. Walpole) made some observations, in which he recommended, as the course to be pursued, the very course now proposed by the hon. and learned Member for Suffolk. It was on that occasion complained, that the Statute Law Commission had done nothing in the way of carrying out that for which it had been appointed; and he (Sir G. Grey) had ventured to reply, agreeing with the hon. and learned Member for the University of Cambridge in the course which ought to be taken. That very course was the one which the Statute Law Commission had recommended, and which was being taken by the hon. and learned Member for Suffolk that night. The latter hon. and learned Gentleman, without representing himself to be the organ of that Commission, very fairly acknowledged that he had received the greatest assistance from its Members, and stated that he had their approval of the principles of the Bills which he proposed; that he brought in those Bills with the approbation of the Members of the Commission, and in the hope of getting their assistance in passing them. The Attorney General had stated his objections to the course proposed to be taken by the hon. and learned Member. This was a question upon which one man might very probably entertain one opinion and another another opinion; and no man was more competent to form an opinion on the subject than his hon. and learned Friend the Attorney General. He (the Attorney General) had stated his individual opinion. Well, that might be so; but he (Sir G. Grey) thought it right to say, that the Lord Chancellor entirely concurred in the course proposed to be taken by the Statute Law Commission, and entirely concurred in the course taken by the hon. and learned Member for Suffolk, from whom his Lordship and the Commission, to which the Lord Chancellor had felt pleasure in adding his (Sir F. Kelly's) name, had received great assistance. The Bills now before the House were Bills which bad been submitted to the Statute Law Commission by the hon. and learned Member, and which had been prepared by him in 752 conjunction with that Commission. The Attorney General had stated his own individual opinion, but he had at the same time recommended, that whether hon. Gentlemen believed that consolidation should go before codification, or that both should be proceeded with together, hon. Members and the Government should give the hon. and learned Member who had introduced the Bills for consolidation their cordial support. His (Sir G. Grey's) opinion was, that if they desired to make any effectual progress, they should proceed by degrees. With all deference to the Attorney General and other hon. and learned Members, who were more competent to form an opinion on the subject than he was, he was of opinion that they would the more speedily and effectually arrive at a codification of the statute laws by consolidating them, subject by subject, than by attempting by one measure a complete codification of the statute law. He thought that the hon. and learned Gentleman (Sir F. Kelly) bad somewhat underrated some of the difficulties that would be experienced after consolidation in keeping subsequent legislation in harmony with it; as in the instance of bills of exchange, and our custom of the three days' grace on bills of exchange; but he did not think that these difficulties afforded any reason why they should abstain altogether from attempting consolidation. Where difficulties arose, he thought they might be much simplified by always consolidating up to the present time, and having a periodical republication of the Statutes; so that each consolidator could take up the labour where his predecessor had left off, inserting in every new edition all Acts which had been passed since the last in relation to the several subjects consolidated. He thought that in this manner the consolidation might be kept up continuously, so as to effect all the objects they had in view.
MR. LOCKE KING
said, he bad listened with great attention to the speech of the hon. and learned Member for Suffolk, and would congratulate all law reformers on the accession of so valuable an adherent. He could not agree with the hon. and learned Member that the Statute Law Commission had been of any very great service. What had it done? In 1853 a good plan was framed for it to work by, by the Lord Chancellor; in 1854 all the men employed in working out that plan were detached from the Commission; and in 1855 the Commission was left destitute 753 and without a plan. The plan laid down by the Lord Chancellor was, the preparation of a list of statutes that had become obsolete, or been repealed, and the introduction of a declaratory Bill; but that list was never prepared, and the declaratory Bill which the Lord Chancellor promised in 1853 had not been brought in to this day. He (Mr. Locke King) felt confident that this plan would have been a far better one than that proposed by the hon. and learned Gentleman; for he believed that by the system of consolidation now proposed, the confusion already existing in the Statute-book would be increased rather than diminished. If they adopted the plan which had been laid down by Lord Bacon, Lord Hardwicke, and even by the Lord Chancellor himself, to expurgate and cleanse the Statute-book of those ten thousand and odd statutes, they would at once clear away a great deal of lumber and open the road to a salutary measure of law reform. The mode of amending Acts of Parliament had been alluded to. On that subject he had himself proposed a plan which he hoped would be considered by the hon. and learned Gentleman. It was that Acts of Parliament should be amended very much in the same way as Bills were amended in Committee—by altering such parts of the Act as were intended to be changed, and by omitting such words as would be no longer necessary, and then having the Bill printed in that form and no other. This would prevent much unnecessary debate by confining the discussion to those parts only of the Act which it was proposed to amend. He would only add, that he felt extremely grateful to the hon. and learned Gentleman (Sir F. Kelly) for having brought this important question before the House.
§ MR. BAINES
said, that in consequence of the observations made by his hon. and learned Friend who had just spoken, upon the line of policy which the Lord Chancellor had adopted with regard to the Statue Law Commission, it was a simple act of justice to his noble and learned Friend that he should state what that line of policy had been from the beginning. He believed that his noble and learned Friend had been most consistent throughout. The Lord Chancellor laid down the principle that it was best to take all the statutes relating to one particular subject, and, without altering the law, to consolidate and bring all the provisions of the several Acts on that subject into one Bill. 754 Well, his noble and learned Friend had gone to work on the Commission upon this principle, and had continued to act upon it from the beginning; and he (Mr. Baines) believed that a great many measures to become hereafter, he hoped, important and valuable statutes, would be the result of the observance of that principle. Among the labours of the Commission were drafts of Bills on very important subjects. There were, for instance, the two which his hon. and learned Friend had brought forward to-night with so much ability; one on the law of landlord and tenant; one on the subject of the law of master and servant; one on the subject of ecclesiastical leases, and some upon other subjects, in reference to which the law was very widely scattered, and it was desirable to bring its provisions into one focus. There were a great many Bills of that description which would be laid before Parliament; two of them had been introduced to-night. His noble and learned Friend the Lord Chancellor contemplated the introduction of others upon the law of copyhold, and other subjects, at no distant time; and he trusted the House and the country would soon reap the benefit of the labours of the Commission. It would then be seen that the Commission was not deserving of the disparaging terms in which it had been referred to by his hon. and learned Friend (Mr. L. King). He (Mr. Baines) entirely concurred in the views expressed upon the subject by his hon. and learned Friend (Sir F. Kelly), and thought he was right, at all events, in the first part of his speech, which bore upon the Bills he had asked leave to introduce. Whether, after consolidation had taken place, they should go forward to codification was a question upon which it was obvious considerable differences prevailed in the House, and that amongst gentlemen who were best calculated to judge upon the subject. But whether they were or were not to take that further step, they were all agreed in this, that the step which his hon. and learned Friend (Sir F. Kelly) wished them to take was a wise and good one, whatever course they might ultimately adopt. It would be good even if they stopped at consolidation; it would also be good if they went forward to codification, because by this consolidation they would have laid up a store of useful materials for the ulterior work. In consolidating our statutes two different plans had been acted upon at different times. There had been consolidation and amendment of 755 the law combined. That plan had been carried out with considerable success. The most remarkable instance was that afforded by the measures of Sir R. Peel in 1826. He brought forward and succeeded in carrying into law three most important statutes bearing on the subject of criminal law. In the year 1831 Lord Melbourne, then Secretary of State for the Home Department, brought in a Bill consolidating the whole law on the subject of offences against the person; and his labours were attended with great benefit. Since then there bad been many other instances of legislative success in the same direction; among them was the measure introduced by his right hon. Friend the Member for the city of Oxford (Mr. Cardwell) for consolidating the law relating to shipping—a measure of great advantage not only to the shipping interest, but to the country generally. Those and other measures were Acts in which consolidation and amendment were connected, and with great success. But he must confess, notwithstanding, he was clearly of opinion that the hon. and learned Member for Suffolk was right in confining his task simply to a consolidation of the law. Were he to embark on the task of emendation as well, it would be impossible to say when his labours could be completed. Believing, then, that his hon. and learned Friend was right as far as he went, he (Mr. Baines) trusted the House would give him its assistance; and, speaking for himself, he might add that so far as any humble aid which he could give would be of use to his hon. and learned Friend, he might rely upon receiving it.
§ MR. M'MAHON
said, that there was a model in the state of New York which the House ought to imitate in this matter. The law of that state had been consolidated through the labour of five Commissioners extending over less than two years; and in his opinion it would be a most economical expenditure if a Vote of £10,000, £15,000, or even £20,000 were appropriated to a similar purpose in this country. He thought that the course suggested by the Attorney General, and which appeared to be approved of by the Solicitor General, was the proper course to pursue. With regard to what had been said as to codifying the common law of England, he would say that any one who had looked into the common law with the object of codifying it, must know that it was purely impossible to do so. The Irish Members 756 were most anxious that, with respect to the statute law, no difference should be made between England and Ireland, but that the statutes which were passed affecting the former country should also extend to the latter.
said, that, if by the time the House reassembled after the Easter recess the Government had proposed no plan in conformity with the Resolution which he brought forward on Tuesday evening, he should again call the attention of the House to that subject.
THE SOLICITOR GENERAL
said, that he should have been glad if the right hon. and learned Member for Dublin University (Mr. Napier), before he brought forward his Motion the other evening, had read an admirable document lately laid before the Statute Law Commissioners, which would, he (the Solicitor General) thought, have fully satisfied the right hon. Gentleman, because he thought he would have found embodied therein the outline of a scheme, which embraced all and more than all which his hon. and learned Friend sought to attain. With regard to the subject before the House, he (the Solicitor General) rose in justice to himself, and to his hon. and learned Friend the Attorney General, to explain, in some degree, how they had differed from the Statute Law Commission, and what were the real objects they hoped to secure. The difference, as appeared on the papers before the House, was simply as to the mode of selecting the subjects or heads to which the statutes to be consolidated should he referred. He admitted that he did himself desire that the selection should be made according to some system of analysis, and he did so desire it, because he saw that if made, it might lay the foundation for a future great work—the great work of the codification of the law. What was the difference between them? It could be made intelligible to the House in a very few words. The Statute Law Commissioners said, let us take a subject, suppose the subject of administrators and executors, and having got together the numerous statutes relating to these subjects, let us embody them into one law. But the objection to that was, that of the statutes relating to the subject of administrators and executors, some bore upon the law of real property, some upon freeholds, some upon households, and some upon copyholds; some, again, bore upon personal property, and some upon the law of partnership. So 757 that, when they should have embodied these statutes together, they would have got together into their consolidated statute a cumulus of fragmentary parts, all certainly having a bearing on the subject of administrators, but having no further connection with each other. The proposition, then, which was advocated by himself, and by his hon. and learned Friend the Attorney General, was this, that instead of selecting their heads and titles for consolidation in such a manner that the selection would have to be repeatedly arranged under different portions of the law, let them select their heads and titles under analytical divisions of the law, so that all the heads and titles under each division would come to arrange themselves in proper order, and that matters relating to real property should not be found under heads relating to personal property, and that matters relating to property should not be found under heads relating to personal duties. That was not acceded to by the body of the Commissioners; and therefore, as he and his learned Friend were in a minority, he admitted, as he was bound to admit, that he must have been in error, although at the time they were unable to find out in what that error consisted. Had that proposition been adopted, the Statute-book would have been arranged in well-digested order, and then would have been the time to turn to what was called the unwritten law. It was so called, but improperly so, for it was to be found in the decisions of the Judges written in the Reports. The great body of the law of England, although spoken of as a thing incapable of being reduced to writing was, in fact, now in writing, only it consisted of a miscellaneous, confused, ill-digested accumulation of writings, pile upon pile, in which there was no system, no analysis, and no method. And now, the first time that an attempt was made to introduce into the arrangement of our law anything like a philosophical analysis, it was opposed and overpowered, and we were to have an arrangement and consolidation of the statutes, without any order, or anything like a proper division or an appropriate distribution of the subjects. As to codification, he would admit that there would be great difficulty in reducing to writing the great, expansive, and general principles of the common law, and no man would attempt to lay down rules which should define their application. But after making that exception, it appeared to him 758 that there was no more difficulty in reducing the law of England, whether the written statute law, or what was called the common law collected from cases and decisions, to a system, than there was in writing a treatise or text-book on any particular branch of the law. When writing a treatise on a portion of the law, what was done? Why, the person defined in his book what the law was; he collected what appeared upon it in the Statute-book; and he gathered from the reports the rules and principles which were to be found existing there; and the result, when reduced into one writing, was pro tanto a species of digest of the law—and what was done in a book, it might be imperfectly, might be done, with more experience, more extensively and more perfectly in a digest of the law. What was the condition of the law of Rome when the Code and Digest were formed? Did not the same obstacles exist? There were the senatus consulta, the plebiscita, the rescripts of the Emperor, corresponding with the Statute-book of the English law, and the sententiœ prudentum, which might be compared to the unwritten common law—these were the complex elements of the legal system of Rome; yet all these were, by the celebrated Digest, brought into order, but arranged and classified under titles, and formed into a body of law which was to the present time the great authority of jurisconsults, and the most remarkable depository of the power, the wisdom, and civilisation of that great people. Let no man, therefore, despair of the possibility of approaching a state of things in which the law of England should present something like order, arrangement, and analysis. He was quite of opinion that the consolidation of the statute law was the commencement of that work, and he therefore welcomed in the most cordial manner the assistance of his hon. and learned Friend the Member for Suffolk (Sir F. Kelly). At the same time, he must be permitted to express the great pleasure with which he had listened to the very statesmanlike and philosophical speech of the noble Lord the Member for King's Lynn (Lord Stanley). These were powerful auxiliaries; and although that House was hardly the proper arena for discussion such as had taken place that evening, he trusted that, before the close of the Session, hon. Members would see cause to admit that, by the Bills which had been in- 759 troduced, much had been done towards the object which they contemplated.
§ SIR FITZROY KELLY
, in reply, said, that if it were practicable to sweep away that vast portion of the statute law which had become obsolete, as recommended by the Attorney General, he should be obliged to his hon. and learned Friend if he would perform the task for him, and so enable him with the greater facility to proceed with the Bills he asked leave to submit to the House. But his hon. and learned Friend had entirely forgotten that, in order to cleanse the Statute-book of these enactments, it would be necessary to go from beginning to end of the Statute-book, through every one of the subjects which he sought to classify and consolidate. His hon. and learned Friend said he objected to any other than an analytical arrangement. He (Sir F. Kelly) understood his objection to be this: "You propose to consolidate the statute law in a certain order. I object to that order, on the ground that it will throw the Statute-book into a state of confusion, equal to that which now exists. I would rather, therefore, that you should pursue a strictly analytical plan." His (Sir F. Kelly's) answer to that objection was simply this—If the Attorney General, who in this had been followed by the Solicitor General, would be good enough to furnish him with what he thought a catalogue of subjects in the order in which he thought the consolidation ought to be carried out, he would confer a great obligation upon him; and if he found that it was in any degree more easy, practicable, or expedient, than the order which he himself had selected—not from choice but necessity—he would be thankful for the suggestion, and adopt it. But it was said that they ought to have made an attempt at codification; and his hon. and learned Friend the Member for Leominster (Mr. J. G. Phillimore) had addressed the House as if he (Sir F. Kelly) were the enemy and opponent of the improvements in the law which he sought to carry into effect. They would permit him to say that he was as much in favour of codification, if it could be made out to be practicable, as his hon. and learned Friend or any other Member of the House; but let him remind his hon. and learned Friend, that when he talked of the Pandects of Justinian and the Code Napoleon, that Justinian and Napoleon were both absolute monarchs, and that their will, when 760 expressed, became the law of the empire they ruled; and if his hon. and learned Friend could find a power in this country by which he could at once prepare and establish a code of laws equal to the Pandects of Justinian or the Code Napoleon, he would not only have the applause of this House, but of the whole country; but he believed the hon. and learned Gentleman would find that the very first proposition in any Bill of the kind would be met by such opposition and by such difference of opinion as would be fatal to its progress through Parliament. In the meantime he had only earnestly to thank the House for the attention they had been pleased to bestow upon his plan, which he would do his best to carry forward, and to assure them that he would receive with thankfulness any suggestions that could be made with regard to the Bills he proposed to introduce.
§ Leave given.
§ Bill ordered to be brought in by Sir FITZROY KELLY and Lord STANLEY.