HC Deb 19 February 1856 vol 140 cc986-99
MR. LOCKE KING

said, that on previous occasions and in various forms, he had endeavoured to call the attention of the House to the important subject of which he had given notice, and he was happy to say that, dry as the question was, it was now becoming to a certain degree popular. It had awakened the interest of many thinking men, who perceived how desirable it was that the living law should be presented in an accessible form, and extricated from the vast mass of dead matter with which it was incumbered. When, on a former occasion, he submitted a proposal to that House having simply for its object the compilation of such an edition of the Statutes as would make the law more accessible and more intelligible to the country he was strenuously and at the same time he must say most unexpectedly opposed by the Government; and, in consequence of the great activity displayed by the hon. Gentleman the Secretary of the Treasury, in enticing into the House at a late hour of night a number of Members some of whom knew little or nothing of the Resolution under discussion, he was defeated by a majority of nine. Feeling, however, that the judgment which the House had pronounced was a vote against a great truth and a great fact, he subsequently introduced another Resolution, for which, remembering that it embodied the very words used on the subject by the Lord Chancellor in 1853, he anticipated a more favourable reception on the part of the Government. That Resolution was opposed by the Government who were defeated as they deserved. The question had attracted the attention of the Statute Law Commissioners before the close of the Session; and during the recess it was taken up in a very zealous spirit by the Society for the Amendment of the Law. That society appointed for the consideration of the subject a special Committee, of which he was proud to say that he was Chairman. It comprised the names of many able and energetic lawyers, and among others that of Mr. Pitt Taylor, an enthusiast in the cause of law reform. From the Report of that Committee he would read one or two passages, which seemed especially worthy of attentive consideration— In any systematic attempt to consolidate the statute law, the very first step which obviously ought to be taken is to ascertain, with as much precision as possible, how much of that law is still in force. In another place the Report went on to say that such an edition, as he advocated— Would vastly facilitate any measures which might afterwards be taken for the consolidation of the statute law. Nor would the advantages derivable from this work be confined to the legistor, for the judge who has to administer the law, the counsel or attorney who has to advise upon the law, and the subject who has to obey the law, would at least be equally benefited, and this in two ways—first, the labour of ascertaining what the written law enacts upon any particular subject would be lightened, not only in proportion to the diminished bulk of the Statute-book—which would probably be reduced by the process from forty quarto tomes to ten or twelve octavo volumes—but also in proportion to the number of marginal references. The learned men who composed the Committee saw no such great difficulty in the execution of this task. They even, contrived among themselves a plan for the expurgation of the Statute-book, which proceeded on the principle of taking one reign at a time and working backwards; they would have persevered in the work, were it not that they feared that if the Government should not sanction the project their labour would be in vain. Their scheme was, in effect, that proposed by Lord Bacon, who desired first to clear away from the Statute-book all repealed statutes, and then to remove all obsolete ones. The Law Amendment Society also agreed unanimously to a Resolution couched in these words— That the publication of a revised and authorised edition of the public general Acts now in force should be the first step taken towards the consolidation of the statute law. The progress of time did but aggravate the evils of the present system. During the twenty-two years of the reign of James I. there were passed only 134 public and 168 private Acts. Now, our legislation proceeded at the rate of some 400 or 500 statutes a year. Lord Bacon complained, 200 years ago, that "the living died in the arms of the dead;" and that the laws were so complicated and incumbered that "neither common people could practise them, nor lawyers sufficiently understand them." Sir E. Coke, who lived about the same time, expressed a similar opinion, declaring that it was most desirable— To omit all those (laws) that be repealed, that none by them be deceived …. To make one plain and perspicuous law, divided into articles, so that every subject may know what Acts be in force and what repealed, either by particular or general words, in part or in the whole; or what branches and parts abridged, what enlarged, what expounded, so as each man may clearly know what and how much of them is in force, and how to obey them. It were a necessary work, and worthy of singular recommendation. Lord Hardwicke, speaking more recently—100 years ago—uttered these remarkable sentiments— Our Statute-books have of late increased to such an enormous size that no lawyer, not even one of the largest and most extensive practice, can pretend to be master of all the statutes that relate to any one case that comes before him; and this evil goes on increasing so much every year that it is high time for this House to begin to put a stop to it. At that time there were only six quarto volumes of Statutes; now there were forty. Since Lord Hardwicke complained of the accumulation of our laws there had been added in the reign of George III. 6,953 statutes; in that of George IV. 1,066; in that of William IV. 678; and during the first sixteen years of that of Queen Victoria, 1,864; making in all 10,561 statutes since the time of Lord Hardwicke. Were lawyers and legislators in modern days so much superior to those of bygone ages that they could overcome this enormous additional mass of Statutes in addition to that which such men as Bacon, Coke, and Hardwicke could not? He differed from what was said, the other evening, by his right hon. Friend the Chancellor of the Duchy of Lancaster (Mr. Baines) as to the plan proposed by the Lord Chancellor being similar to that presented to the House by the hon. and learned Member for East Suffolk (Sir F. Kelly). The Lord Chancellor's plan was to expurgate first. The hon. Member for East Suffolk was to consolidate first. The following were the Lord Chancellor's words in February, 1855:— The first process will be to ascertain precisely the text of the statute law as it now exists by determining what statutes have been repealed (expressly or virtually), what have expired, and what have become obsolete or unnecessary in the present state of society. The Lord Chancellor, complaining of the form of the statutes on the 14th of February, 1853, said:— They are all in the most repulsive form; there is no classification, but they are huddled together in the most complex fashion. The Judges are supposed to be acquainted with all law; but no human mind could master them. … Knowledge of them is impossible, and, therefore, ignorance has ceased to be a disgrace. Again, the Attorney General only the other night said that—and he now claimed his support. In his judgment the best plan would be to sweep away all the statutes or parts of statutes which had been repealed, and then proceed to consolidate what remained. And here he would, perhaps, be allowed to quote an extract from the leading journal, which met this case exactly. In a recent article The Times said— The indispensable requisite, then, to a consolidation of the statutes is that we should devise some exhaustive principle of division by which our labours may be economised and directed; but, in order to do this, we cannot but think it would be necessary clearly to ascertain and carefully to discriminate the subject-matter with which we have to deal. The Statute-book contains, as we showed on a former occasion, an enormous mass of private, local and personal, obsolete, expired, repealed, and partially repealed Acts, which obscure our view and impede the justice of our conclusions. The words that immediately followed ought to be particularly attended to:— We must clear away the rubbish before we can ascertain the ground plan and elevation of the edifice. In order that we may divide we must distinguish, and in order that we may distinguish we must fully and completely comprehend. For these reasons, without at all pretending to deny the force of anything that was said in the late debate, we take the liberty of adding to it our suggestion of the absolute necessity that, as before we begin to codify we should consolidate, before we begin to consolidate we should divide, so before we divide we should carefully clear away and expurgate. He regretted to have to weary the House with these extracts, but he would only read one more, which appeared in a pamphlet written two years ago by an eminent Queen's counsel, Mr. Graham Wilmore, and which gave an excellent insight into what the Statute-book really consisted of. The pamphlet, which bore the appropriate title of Confusion worse Confounded, in describing our statute law, said— It resembles some gigantic, deep, roomy, patched, wormeaten, old fashioned chest, perforated with drawers, pigeon-holes, corners, and other places of repository and concealment, stuffed full of a heterogeneous medley of every kind of matters concealed and confused with mould, cobwebs, dust, and rubbish, where whoever wishes to procure anything in haste has to go frantically about, opening, shutting, diving, groping, rummaging into every place, often failing in his search, and, even if he succeeds, always doubting whether he has found all that he wants. In sober fact, the printed statutes—public statutes alone—up to the end of the Session in 1851 inclusive consist of thirty-eight quarto volumes, amounting to 221½lbs. avoirdupois weight, and containing 32,903 pages. Since that was written two volumes of new statutes, extending over 2,000 pages, had been added. The example of what had been done with the written law in France had been frequently referred to. Suffice it, therefore, to say that the French code was compressed within the compass of a single pocket volume, was published at the price of 7d.; or if a much handsomer edition was preferred, it could be had for 11s. Now that contrasted very strongly with the published price of our Statutes, which amounted to more than £100. It would be said, however, that France, being a despotic country, offered no analogy to England on such a question. The case of the New York code might therefore be more in point. On that part of the subject Lord Lyndhurst had observed:— In some instances the acts of our Transatlantic brethren would seem to justify the belief that men, like plants, acquire fresh vigour from being transplanted. In the State of New York all our Statutes, up to the time of the declaration of independence, were in force. From that period there had been an immense accumulation of Statutes, arising out of their new position. The inhabitants of New York were in the same unfortunate position as ourselves in this respect, but they resolved to get rid of the evil, and in 1835 competent persons were appointed to revise and consolidate the Statutes. In two years from that time the object was accomplished, and in a manner quite satisfactory, not only to the legal profession, but to the general public of that State. What was there, he would ask, therefore, to hinder us from doing what had been accomplished under greater difficulties than we should have to encounter in the State of New York. The Government, however, despaired of being able to do the work, the Statute Law Commission also failed to do it, Mr. Bellenden Ker, the paid Commsioner, actually argued against and rejected the instructions of the Lord Chancellor, his chief. In this state of things, he (Mr. L. King) therefore proposed that an edition of the Statutes should be prepared, which, although it would not at first be authentic, would soon practically become so, after it had been subjected to correction by practice. He would recommend that the work should be done by the Clerk of the Parliaments, who was known to be a gentleman of indefatigable industry and who delighted in being usefully employed. The task assigned to that officer would not be a very difficult one, because in the library of the House of Lords there already existed an index to the Statutes from 1801 down to 1852, together with a list of repealed Statutes. Availing himself of those facilities, as well as of the labours of Messrs. Anstey and Rogers, the whole body of the living statute law might be speedily reduced by that officer within the compass of ten moderate-sized volumes. The execution of the great work of law reform would add to the popularity of any Government, and serve to render illustrious in after times the reign of Her present Majesty. The great Napoleon, after subjugating to his Imperial sway the larger portion of the civilised globe, looked upon his military conquests as insignificant in comparison with the fame to be won by the accomplishment of a peaceful improvement such as that to which the present Motion referred, and gave utterance to his noble sentiments on this subject in the memorable words—"I shall go down to posterity with this code in my hand." Whatever victories this country might be destined to achieve, no victory could be greater than that which should make justice triumphant over injustice.

Mr. W. EWART

, in seconding the Motion, said, he doubted whether the Clerk of Parliament could undertake the duties proposed; but, with that exception, he fully concurred in the Motion of his hon. Friend, and the House was indebted to him for his perseverance, and, as a Member of the legal profession, he thanked him for it. If we were to have codification, it would be necessary to begin with the codification of the statute law. The first thing to be done was such a codification that the people might know what the law was. Even the most barbarous nations promulgated the law so that it should be understood. What his hon. Friend proposed was, as far as possible, to simplify the expression of the statute law, and to get rid of many vain and useless repetitions. He agreed with the Law Amendment Society, that they should begin with an expurgation of the Statute-book. He would now call attention to the Commissions which had been appointed for the purpose of consolidating the statute law. Mr. Bellenden Ker's Commission had been guilty of great inconsistency. It adopted a course of proceeding quite opposed to the instructions which the Lord Chancellor had laid down. What was the present Commission, of whom was it composed? It consisted of many distinguished names. There were the names of the Lord Chancellor, of the Secretary of State for the Home Department, of the Attorney and Solicitor Generals, and of other learned personages, but it was obvious that they could not devote their time to the consideration of this subject. He (Mr. Ewart) said that they ought to get rid of ex-officio Commissions altogether. They ought to appoint paid Commissioners. He would propose that they should appoint three chief Commissioners, who, with a staff of subordinate officers, should devote their whole time to the duty of consolidating the statute law. So simple was the codification of the French law that a knowledge of it did not require the viginta annorum lucubrationes mentioned by Lord Coke, but could be mastered by a person of reasonable ability within the space of three years. He believed that nothing satisfactory would be done until a Minister of Justice were appointed to guide and direct the proceedings of the Commissioners. Such an officer would supply the real motive power which would give an impulse to the subordinate machinery. For those reasons he should give his most cordial support to the Resolution of his hon. Friend.

Motion made and Question proposed— That there be prepared, under the direction of the Clerk of the Parliaments, an edition of the Statutes at large, for the use of this House, including all Public General Statutes and parts of Statutes in force, and omitting all such Statutes and parts of Statutes as are expired or have been expressly repealed; and that, in the place of the Statutes or parts of Statutes repealed, there be inserted the titles of the Statutes repealed, the respective numbers and abstracts of the clauses repealed, with a reference in the margin to the Statutes by which they are repealed.

THE ATTORNEY GENERAL

said, he did not propose to follow the hon. Member for Dumfries (Mr. W. Ewart) in his observations with reference to the appointment of a Minister of Justice and the general question of the consolidation of the Statutes, for those subjects were entirely foreign to the Resolution under consideration. He must say that he hoped the hon. Member for East Surrey (Mr. L. King), in many of whose opinions he fully concurred, would not think it necessary to press his Motion to a division. The hon. Gentleman must be aware that the work contemplated by his Resolution was one of a very important and gigantic character. It was not only a work of very great time and labour, but it was one that could not be performed mechanically. It did not involve the mere excision from the Statute-book of those statutes which had been partially or entirely repealed, but it was a work that could only be performed by a person who possessed great legal knowledge, and who was thoroughly acquainted with the subject. Could it be assumed that a gentleman whose time was already so fully occupied as that of the Clerk of the Parliaments would be competent to undertake a duty of this important and extensive nature? There was, however, another ground of objection to the Motion, which called upon the House to resolve that an edition of the Statutes should be prepared by the Clerk of the Parliaments for the use of that House. Now, the Clerk of the Parliaments was not an officer of that House, but the only person properly designated by such a title was an officer of the House of Lords, and he did not think the House of Commons could direct an officer of the other House to prepare an edition of the Statutes for the use of hon. Members. Now, that alone appeared to him an insuperable objection to the Motion; but, however they might agree in the expediency and in the necessity of an expurgation of the Statutes, he thought such expurgation—which must precede the consolidation of the Statutes—and the consolidation of the law itself should be placed in the same hands. The two things were parts of one great and entire work, and the sooner it was achieved the better. If the present machinery was inadequate for the purpose, let other machinery be devised; but he thought it quite clear that the expurgation of the Statutes and their consolidation should be placed under the superintendence of the same persons. He thought, therefore, the hon. Member for East Surrey would see that the means by which he proposed to accomplish that important object were not adequate for its attainment. He did not wish to disparage in the slightest degree the labours and exertions of that hon. Gentleman with reference to the consolidation of the Statutes and the improvement of the law; but when the hon. Gentleman complained that his proposition did not receive the concurrence of the Government, but on some occasions met with their opposition, he should remember that he did not always bring forward those propositions in such a form that the Government could assent to them. In the present case, certainly, the hon. Gentleman must feel that it would be useless for that House to adopt a Resolution, calling upon an officer of the House of Lords, without the consent of that House, to perform certain duties for the House of Commons.

SIR FITZROY KELLY

said, he entirely concurred in many of the observations that had fallen from the hon. and learned Attorney General; but his objection to the Motion was, that the two objects which it proposed were impracticable. In the first place, it provided that the Clerk of the Parliaments should ascertain what Statutes or parts of Statutes had expired or were repealed, and, next, that a revised edition of the Statutes—with the repealed enactments struck out—should be published for the use of that House. Now, the Clerk of the Parliaments, independently of his not being an officer of that House, was no more qualified for that task, and had no greater means at his disposal for its accomplishment, than any individual who might by chance have been named. Then, with regard to the publication of a revised edition of the Statutes, the Motion referred only to statutes and parts of statutes which had expired or had been expressly repealed; but there were many statutes which had become obsolete and nugatory, and, some months after the publication of the edition of the Statutes contemplated by the Resolution, it might be found that a new and revised edition was required omitting the obsolete statutes. He was surprised to hear the hon. Member for East Surrey (Mr. L. King) refer to what had been done in the State of New York, as if it bore any similarity to what was called for in this country. In New York they had to deal only with the general public Acts that related to their own State; but here we had to deal with all the public Acts relating not only to England but to Ireland, Scotland, the East Indies, and the Colonies, besides the innumerable local Acts and the financial and revenue measures that from time to time had been passed by Parliament. To undertake the consolidation of our Statutes would therefore be a work of much greater magnitude in this country than in New York. In the minds of some Gentlemen codification and consolidation appeared to be regarded as much the same thing; but no impression could be more mistaken. The truth was that codification would be found utterly impracticable till it was based on the foundation of a good and effective consolidation of our statute law. He believed that if the hon. Gentleman and his friends would only act with forbearance towards the Commission which had been appointed to consider the subject, and leave them to do their best without fettering them with unnecessary instructions, they would be able, before any great length of time elapsed, to achieve more for the consolidation of the statute law than had been accomplished since the days of Lord Bacon.

MR. STUART WORTLEY

said, he was at a loss to discover in the present Motion anything like a step towards law reform, or a simplification of the laws. The proposition of the hon. Member for East Surrey appeared to have for its object the getting a convenient pocket edition of the Statutes at the public expense, Now, he must deprecate the idea of that House deputing to the Clerk of the Parliaments, an officer of the House of Lords—even if they could do so, or any other officer, such a work as that contemplated by this Motion; for there was nothing more difficult than for the Judges to decide whether one statute, or part of a statute, repealed another, and it had occurred that a wrong decision had been given in consequence of a misconception of the powers of an enactment. If they were to consent to such a revision of the Statute-book as that proposed, it would have no more authority in the courts of law than any of the editions of the Statutes now published by members of the legal profession, and besides which, it would be a useless expenditure of the public money. With regard to the codification of the laws, he had not yet heard in that House a practical suggestion for its accomplishment. It was all very well to talk of the codifications of Justinian and Napoleon, but they had neither of them a House of Commons to deal with, and it would be impossible for England to obtain a codification of her laws without its being discussed phrase by phrase in that House, and he need hardly ask hon. Members how long it would take to discuss, and what sort of a thing they would make of such questions as related to religion, education, the game laws, &c. If the House consented to name a Commission for that purpose, with absolute power to form a code, they would soon have it; or if they empowered Her Majesty in Council to draw up a code, they might have it in a few months, or a year; but so long as there was a House of Commons to be consulted on every phrase and on every branch, it appeared to him codification was impossible. Consolidation would eventually lead to a simplification of the laws of the country.

MR. WATSON

said, he considered the Motion now under consideration as one great step towards law reform. It was, however, perfectly idle to talk of the consolidation of the Statutes before their expurgation; and he thought that if the hon. and learned Member for East Suffolk (Sir F. Kelly) effected it within eighteen years, instead of within eighteen months, as he had stated he could do, a statue should be raised to his honour on the highest spot in London, The present condition of the statute law was an utter disgrace to the country. It was contained in the forty-five volumes before them, through which the law student and the practitioner had to wander in search of information, and when they had so wandered, it was questionable if they had not passed over the very statute that they had been in search of. Indeed, it was known that oftentimes, notwithstanding all the care both of the bar and of the Court, the particular statute applicable to a case on trial was overlooked, and when the mistake was discovered, the suit had to commence anew. The portions of the Statutes which were repealed should he expurged from the Statute-book, and when that was done they should have a statute on every subject, so that when they wished for a change in the law they would have but that one statute to alter. As an instance of the present state of the law let them look to the law of landlord and tenant upon the subject of distress, or the right of the landlord to distrain the goods of the tenant. On that one subject they had seventeen or eighteen separate enactments, so that if a country gentleman wished to ascertain his rights in the matter he would have to wade through that quantity of legislation. He would certainly suggest that that portion of the Motion which said that the consolidation should be performed by the Clerk of the Parliaments should be struck out. For himself, provided it was done, he did not care by whom it was done; but if a tree was to be judged by its fruit, he was bound to say that, seeing that the Commission of which the hon. and learned Member for East Suffolk was a Member had effected nothing during three years, he did not think that the hon. and learned Gentleman himself would be able to carry out his promise and complete the consolidation within the space of eighteen months. If they would look to the earliest statutes on the books, they would find that they were in themselves codes, short, precise and accurate. Such was the character of Magna Charta itself. The laws of the reign of Edward I. were just the same, being short, simple, and to the point. It was not until the time of Henry II. that they began to envelop their laws in a quantity of words. The evil then commenced had gone on from time to time until it was now longer to be endured—whether it was that such a course had been deemed necessary, or that, like law proceedings, it became profitable to write out a quantity of what was called rigmarole. He should like to see all that changed, and a Commission appointed to carry out the codification of our laws, so that each man might know what the law was on any particular point, how he should act in relation to it, and where to go for his remedy, if required. Now, he must say that he considered it right that that House should take the first step towards so desirable a result, and he thought that the consolidation proposed by the hon. Member for East Surrey (Mr. L. King) would be of benefit not to the House only, as had been stated by an hon. Member opposite, but to the country at large, and it behoved them to put their shoulders to the wheel and carry it out.

MR. G. BUTT

said, he thought that though the hon. and learned Member for Hull (Mr. Watson) had discussed matters in which the Members of that House generally agreed, he had not addressed himself to the Motion then before them. There was no doubt that it was desirable to have a consolidation of the Statutes; and it was no doubt desirable that when they had such a consolidation, they should have such an edition of the consolidated Statutes as would give lawyers and every other portion of the community the easiest and best mode of acquiring a knowledge of the law. However, the Motion of the hon. Member for East Surrey would not accomplish that object, nor enable a person to see at once what statutes existed, and what had been repealed. Should they, therefore, take up the time of the House discussing the general proposition, on which there was no difference of opinion, when it was clear that the Motion could not effect what all agreed was wanted. Under these circumstances he put it to the good sense of the hon. Member to withdraw the Motion.

MR. ROBERT PHILLIMORE

said, he would move an Amendment on the original Motion, to leave out the words "under the direction of the Clerk of Parliaments," and, also, "for the use of this House."

Amendment proposed, to leave out from the word "prepared," to the end of the Question, in order to add the words— An edition of the Statutes at large, including all Public General Statutes and parts of Statutes in force, and omitting all such Statutes and parts of Statutes as are expired or have been expressly repealed; and that, in the place of the Statutes or parts of Statutes repealed, there be inserted the titles of the Statutes repealed, the respective numbers and abstracts of the clauses repealed, with a reference in the margin to the Statutes by which they are repealed," instead thereof.

MR. MONTAGU CHAMBERS

said, he must deny that the term "obsolete" could be applied to any statute as long as it continued on the Statute-book. The first thing to be done was to strike out repealed and expired statutes and repealed clauses of statutes; when that was accomplished the Statute-book would be reduced to a small number of volumes.

MR. LOCKE KING

said, he was willing to agree to the Amendment of the hon. and learned Member for Tavistock (Mr. R. Phillimore), but could not adopt the suggestion of the hon. and learned Attorney General and withdraw the Motion, because he was in earnest on the subject, and would persevere until he had accomplished his purpose.

THE ATTORNEY GENERAL

said, that even in its amended form the Motion was very objectionable, for it set forth that there should be a revision of the Statutes, without stating in what manner, or by whom, such revision was to be effected.

Question, "That the words proposed to be left out stand part of the Question, put, and negatived."

Words added.

Main Question, as amended, put— That there be prepared an edition of the Statutes at large, including all Public General Statutes and parts of Statutes in force, and omitting all such Statutes and parts of Statutes as are expired or have been expressly repealed; and that, in the place of the Statutes or parts of Statutes repealed, there be inserted the titles of the Statutes repealed, the respective numbers and abstracts of the clauses repealed, with a reference in the margin to the Statutes by which they are repealed.

The House divided:—Ayes 63; Noes 164; Majority, 101.