MR. LOCKE KING
said, he rose to call attention to the large sums of public money which have been expended by the Criminal and Statute Law Commissions without the consolidation of any branch of the Criminal or Statute law, and to move that an humble Address be presented to Her Majesty, praying Her Majesty to dispense with the present Statute Law Commission. In the last Parliament he had brought forward several Motions having reference to those Commissions, upon which he had met with considerable support on both sides of the House. He would frankly confess that those Motions implied a censure upon the Statute Law Commission, but he thought it more satisfactory and straightforward now to submit a Resolution which would settle the point as to whether this Commission should or should not cease to exist altogether. Every one desired that the consolidation of the statute law should be proceeded with, and it might be thought strange that he should now propose to destroy the only machinery by which this was intended to be effected. He felt confident, however, that not only did the Commission, as at present constituted, accomplish no good whatever, but that it was productive of evil by pretending to do something, while it really effected nothing—that it was, in fact, a mere sham and delusion. There had been several of these Commissions, so that the people had no ground for complaining that that House had refused the supplies necessary for effecting 775 an object so desirable. Far from that, the most lavish expenditure had been incurred, and, as he should show, no result whatever had been obtained. In 1806 a Commission had been appointed, and another in 1813, but he would confine himself to what had occurred in reference to this subject since 1833. In that year a Commission was appointed to digest the criminal law, and to inquire what could be done with the statute law generally, and they issued a series of blue-books down to 1845. No less than £37,000 had been expended by that Commission, and not a single Bill had been drawn by it. In 1845 another Commission was created to complete the work of its predecessor, and that Commission spent an additional £12,500, making a total of £49,500 expended by those two bodies. It was said that that last Commission had drawn one Bill which was once laid upon the table of the House of Lords, but it never passed into an Act. In addition to that sum of £49,500, he had found on moving for a Return of additional expenses that a further sum of £1,680 had been spent upon a variety of Bills which never passed, and he believed that they were the same Bills which the present Statute Law Commission had taken to itself the credit of having framed. In 1850 or 1851 the Commission of 1845 came to an end, for the simple reason, he believed, that all its Members had ceased to exist, or had been provided with other places, with the exception of Mr. Bellenden Ker, who had served as a Commissioner sixteen years, and who had received £10,400 of the public money without any result whatever. The next step in the order of events was the appointment of another Commission in 1853, the appointment of which was thus explained by the Lord Chancellor in proposing it:—But I look further. I conceive there is no reason why this proposed step should not at some future time, some years hence, constitute the formation of that which I have always looked forward to as the most desirable, though heretofore I have feared to be unattainable—a Code Victoria.At the head of that Commission was Mr. B. Ker and four members of the legal profession, were appointed as sub-commissioners to act with him. The Lord Chancellor's instructions to that body were very clear and satisfactory. They were—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 776 or unnecessary in the present state of society. … The text having been thus examined, a special and detailed Report should be made of all the repealed, expired, and obsolete Statutes. … This Report will form the groundwork of a declaratory Bill to repeal or confirm such Statutes, to be introduced, if possible, at the end of the present Session.That was the Session of 1853, but the Bill in question had never yet made its appearance. The new Commission set to work, and during the first year of its existence he must say it laboured hard. The expurgatory list was prepared, but it never had been revised; the sub commissioners were all discharged, for what reason no one had yet explained, and Mr. Ker was left alone with his pupil, Mr. Brickdale, to constitute the Commission. Nothing of importance, however, took place till 1856, when a great event occurred. The Commissioners then discovered that all their previous work had been useless; instead of the Lord Chancellor's plan of preparing an expurgatory list, a new scheme was propounded, and it was determined that certain "bundles of statutes," as they had been termed by the present Chief Justice of the Common Pleas, should be selected for consolidation. The great event of the year, however, was, that the hon. and learned Member for East Suffolk (Sir F. Kelly) joined the Commission. The hon. and learned Gentleman made a very able speech in that House in moving for leave to introduce two Consolidation Bills. The House gave him leave to bring them in, but those Bills had never made their appearance. The hon. and learned Gentleman upon that occasion made a very extraordinary statement. He said, "You must leave the whole matter to me. If you do, I will undertake myself in eighteen months to consolidate the whole law of England." He (Mr. L. King) remembered that upon that occasion the present Mr. Baron Watson, who was then Member for Hull, said that if the hon. and learned Gentleman would only do in eighteen years half as much as he had promised to do in eighteen mouths, he would undertake to raise to his memory a column twice as high as that to the memory of the Duke of York in St. James's Park. He (Mr. L. King) knew not what progress the hon. and learned Member had made with his Consolidation Bills, but the eighteen months had long since elapsed, and not one had yet been laid upon the table. At the end of the Session of 1856 several Bills were hastily laid on the table of the House of Lords. 777 He was told that those Bills were sent over to Ireland, and that they came back with certain comments made upon them which showed that it was quite impossible that they could pass, and it was a fortunate thing that they had not passed upon the faith of that Commission. He was sure the House would agree with him that if the Statute Law Commission had been in earnest those Bills ought to have been revised during the autumn, and introduced again early in February, 1857. But that had not been done. The other day the same Bills were again laid upon the table of the House of Lords, but every one must see that it was impossible such Bills should pass when they were brought in at so late a period of the Session. There had been recently placed in the hands of hon. Members the third Report, as it was called, of the Statute Law Commission; but, in point of fact, it was the sixth Report, three Reports having been previously presented under the auspices of Mr. Bellenden Ker—three of these, however, were said to emanate from the Statute Law Board and three from the Statute Law Commission. If the Report lately issued had been the first instead of the sixth, he could readily believe all the promises that were made; but seeing that upon every occasion a fresh plan was propounded and fresh promises were made, he did not see how they could place any reliance upon it. Besides, the right hon. Gentleman opposite, the Member for the University of Dublin (Mr. Napier), last Session carried an Address to Her Majesty recommending the appointment of a Minister of Justice, and this appeared to him to be an additional reason for dispensing with the services of the Commission. He should not longer trespass upon the time of the House. He thought that he had made out his case, and he begged to move as an Amendment to the Motion, "that Mr. Speaker do now leave the Chair; that an humble Address be presented to Her Majesty, praying Her Majesty to dispense with the present Statute Law Commission."
§ MR. HADFIELD
seconded the Amendment.Amendment proposed, to leave out from the word "That" to the end of the Question, in order to add the words "an humble Address be presented to Her Majesty, praying Her Majesty to dispense with the present Statute Law Commission," instead thereof.
§ SIR FITZROY KELLY
said, he did not complain of the hon. Gentleman for 778 having brought this important subject under the consideration of the House. The hon. Gentleman might, perhaps, have chosen a more fitting and convenient occasion for the purpose; but he rejoiced at the opportunity which was at length afforded him of communicating to the House something at least of what had been attempted by others, as well as by the Statute Law Commission, and of what had been done by the Commission since it had been in existence under Her Majesty's authority. It was but justice to the Statute Law Commission that it should be made known to the House and to the country that this great work of the consolidation of the Statute Law, which for more than 250 years had baffled and defeated the efforts of the most eminent jurists and statesmen which this country had produced, was now, upon one simple uniform and comprehensive plan, actually begun, and in a course of practical and, he trusted, successful progress under that very Statute Law Commission which the hon. Gentleman had that night called on the House to censure, and upon the Crown to dissolve. He hoped to be pardoned for endeavouring briefly to explain the nature and extent of the undertaking, for not completely and successfully executing which, during the short time the Statute Law Commission had been, in existence, the hon. and learned Gentleman charged them with incompetency and incapacity. That work was the consolidation of the Statute Law, which meant neither more nor less than converting the present Statute-book, consisting of forty folio volumes, and containing upwards of 40,000 statutes, into a short, comprehensive, and intelligible work of four, or little more than four volumes, containing what then would be the whole of the effective and operative law of England; not as at present scattered indiscriminately and in confusion through a large number of volumes without any arrangement, beginning with Magna Charta and ending with the last Act of the last Session of Victoria, but collected in a short and comprehensive form, containing a series of statutes, arranged and classified, the classes being again subdivided into single Acts of Parliament, each Act being on a single subject but embracing that entire subject, and all in a well-arranged and chronological order on one uniform and connected scheme. It was needless at the present moment to dilate on the 779 multiplied evils to which this country, and especially the Legislature, was subjected by the present state of the statute law. He needed not to remind the House that in those forty volumes of statutes to which he had referred, the whole of the 40,000 statutes, besides nearly 50,000 local and personal Acts, were now to be found only according to the order in point of time in which they were passed, and named after the successive Sovereigns in whose reigns they were passed; and not only were all these statutes heaped together without any description, order, and arrangement, but there were a great number of single Acts and even single sections of Acts, embracing each in itself a variety of subjects entirely unconnected with each other. With all the aid to be obtained from indexes and text books no one could attempt to make himself master of any single subject without laborious investigation and making his way through the whole body of statute law. And even then he had to ascertain, as best he could, whether whole statutes or particular sections and clauses were repealed or still continued in force. Not merely the members of the legal profession, but magistrates and country gentlemen, who, for the better discharge of their duties, might desire to possess themselves of a copy of the Statute-book, must purchase the entire forty volumes, nine-tenths of the contents of which are repealed or otherwise superseded. But, independent of the evils felt by all classes from the present state of the statute law, its effect on the current legislation of the country was more mischievous than could well be imagined. One consequence was that no individual bringing in a Bill into that or the other House of Parliament could satisfactorily make himself master of the statute law as it existed in reference to the subject on which he proposed to legislate. It therefore often occurred that Bills, which had passed through Committee with every care, repealed over again statutes or statutory enactments which had been repealed before; but, what was infinitely worse, statutes which were not known to exist were passed by and disregarded, and new enactments which were made in Bills that received the sanction of Parliament were found afterwards to be utterly at variance with existing enactments. Hence arose a degree of confusion leading to an amount of litigation, which became a fearful ant wide-spread evil, as in the cases of the 780 Royal British Bank and the Tipperary Bank, in reference to which the courts were engaged in considering the effects of different Acts of Parliament, which were inconsistent with each other and contradictory. It had frequently been attempted by some of the most distinguished lawyers and statesmen to find an adequate remedy for these multiplied evils, and so long back as the reign of Queen Elizabeth the state of the Statute-book was considered by a Commission appointed by that Sovereign. Sir Nicholas Bacon, the Keeper of the Great Seal, was employed to make a Report on the subject to the Crown and to Parliament; but even in that early time, when the whole of the statute law was contained in some four or five small volumes, it was found, from the state of confusion, complication, and contradiction existing in the Statute-book, that the attempt to remedy the evil must be given up, and the most learned men and able lawyers of the day shrunk from the task in despair. The Statute Law Commission, appointed in 1835, and on which, as the hon. Gentleman stated, upwards of £30,000 had been expended, in their Report referred to some earlier Report of twenty or thirty years ago, and to a work on public records, in which the writer stated that the general revision of the statute law had often been recommended from the Throne, petitioned for by both Houses of Parliament, and engaged the attention of successive Committees; that it had been undertaken by individuals, sometimes with, and sometimes without the sanction of the Crown and Parliament, but never carried forward to any degree of maturity. It therefore appeared that Bacon, Hale, Somers, Hardwicke, Blackstone—all these great lawyers and statesmen—had in succession attempted this work of the consolidation of the statutes, and failed. Approaching our own times, Romilly, Tenterden, and Sir R. Peel, were found attempting much, and accomplishing something in the way of consolidation. The noble Lord the Member for the City of London (Lord J. Russell) and the right hon. Member for Carlisle (Sir J. Graham) with other hon. Members of that House; and in the other House of Parliament, the first and greatest of the law Reformers of the day—Lord Brougham, assisted and followed by Lord Lyndhurst, Lord St. Leonards, Lord Truro—and, though last not least, by the present Lord Chancellor Cranworth, had all directed their attention to this important subject. Numerous 781 Committees or Commissions had considered the question in 1806, in 1816, in 1829, in 1833, in 1839, and again in 1849; but, although these Commissions—which were attended with vast expense to the country, and which had all the aid that could be afforded to them by the great statesmen and lawyers of the day—had done something towards the consolidation of particular branches of the statute law, none of them had been able to devise a specific, intelligible, and uniform plan upon which this great work could ever be even commenced with the slightest prospect of success. He (Sir F. Kelly) now came to the proceedings of that Commission which the hon. Gentleman the Member for East Surrey (Mr. Locke King), had denounced, and would persuade the House to address the Crown to dissolve. Under the advice of the present Lord Chancellor, Her Majesty was pleased to appoint, in 1853, a Commission to inquire into this subject. He (Sir F. Kelly) would admit that that Commission had sat from 1853 to 1856, without being able to accomplish what the great and eminent personages he had mentioned had attempted, but attempted in vain; but he did not concur with the hon. Gentleman in the opinion that the Commission had done nothing, or that the country was not indebted to them for their services. He (Sir F. Kelly) could speak freely of the proceedings of the Commission from 1853 to 1856, because he had not the honour of being a member of that body until February, 1856, and he ventured to say that, during that short period of three years, the Commission had done more than had been accomplished by all other Commissions which had sat during the present century. The Commission of 1853, acting upon the plan suggested to them by the Lord Chancellor, and with the aid of the Lord Chancellor himself, devised, in the first instance, the preparation of an index to the statutes, distinguishing in that index the various Acts and portions of Acts of Parliament which had been repealed, either expressly or by implication, which had become obsolete from lapse of time and change of circumstance, which had expired, or which had, from any other cause, or in any other way, become inoperative. Gentlemen, members of the bar, were employed in what had been called the work of expurgation, and Mr. Anstey, formerly a Member of that House, with the assistance of Mr. Rogers, prepared a very elaborate index to a great portion of the 782 statute law, which was laid before the Commissioners, and was now in use as a guide to those members of the bar who were engaged in the work of consolidation. Besides this, also, most of the active members of the Commission employed themselves in framing Consolidation Bills relating to particular branches of the law; some ten or a dozen Bills were produced, and were now in existence, and although they required certain alterations to adapt them to the plan which had been devised, and was in course of execution, they were monuments of the industry, learning, and great ability of all who were engaged in their preparation, first among whom we must name Mr. Bellenden Ker, a gentleman with whom, except professionally, he had not the honour of being acquainted until he met him upon the Statute Law Commission, and to whom he should be doing an injustice if he did not say that the distinguished diligence, learning, skill, and untiring energy and perseverance with which he had dedicated himself to the work entitled him to the thanks of the country. There were others, also, who had rendered great and valuable services in this work; but, although indexes were framed, Bills prepared, Reports made, and suggestions thrown out, it was not until last year that the Commission could agree upon one fixed specific and uniform plan for the consolidation of the whole statute law. He (Sir F. Kelly) thought, considering what the Commission had actually accomplished within the short space of four years, which exceeded in practical utility all that had been done by former Commissions, he might safely and confidently appeal to the House whether the censure which had been passed upon it by the hon. Gentleman (Mr. Locke King) was deserved or not. In 1856, however, it occurred to several members of the Commission that, although the Bills that had been prepared were of great use and importance, and afforded some guidance and assistance towards the consolidation of the Statute-book, it was evident, upon a consideration of the entire subject, that a consolidation of the statutes could never be efficiently effected until some plan was devised by which the forty volumes of statutes could be dealt with completely, in such a manner as to lay aside all repealed, obsolete, and inoperative statutes, selecting from the mass the statute law of the land which was in actual force and operation. It was suggested 783 that the law should be divided into classes, and that those classes should be subdivided into single Bills or Acts of Parliament, each class comprising some definite branch of law, and each Bill or Act of Parliament comprising one entire subject. It was further suggested that, whereas the same words were used in ten, twenty, or thirty different senses in different Acts of Parliament, and sometimes even in the same Act, an endeavour should be made to adopt one uniform system of arrangement and phraseology, and that by the new statute-book, which would reduce the statute law from forty volumes to four, the rudis indigestaque moles now existing should be converted into a well-arranged system of statutes, expressed in clear, intelligible, and uniform phraseology. After much anxious and laborious investigation by the several members of the Statute Law Commission, after several reports from various members, and after full consideration of those reports, a scheme for the entire and complete consolidation of the whole statute law of the United Kingdom was determined upon, and as soon as this was determined upon, measures were taken for carrying it into effect. He (Sir F. Kelly) had now to inform the House what had been done since this plan was devised. At an early period of the last Session he (Sir F. Kelly) moved for leave to bring in one or two Consolidation Bills, and he then stated to the House—as well as he was able to do so before the scheme suggested had received the entire and final sanction of the Statute Law Commission—the plan upon which it was proposed to consolidate the Statutes. The hon. Gentleman (Mr. Locke King) was, however, mistaken in supposing that he had stated that the whole scheme would be carried into effect within eighteen months. What he said was, that, if the Government and the Crown would support the Statute Law Commission with the necessary funds and resources, and give their countenance and assistance to the plan which he then suggested, Bills for the consolidation of the whole statute law of the realm might be passed through both Houses of Parliament, within three years. It was now fifteen months since he had made that statement, and he was prepared to repeat it with the greater confidence. A great number of Consolidation Bills were already drawn, and some of them had been laid upon the table of the House of Lords; and he was enabled to say very confidently that if the 784 Statute Law Commission obtained the support of the Crown, of Ministers, and of both Houses, there was no reason to doubt that in some eighteen months or two years from this time the whole statute law of England—and he hoped he might add of Ireland and Scotland—would be completely consolidated, and those forty cumbrous volumes of undigested matter be reduced to four, upon the system he had described to the House. He wished to make a few observations with regard to the criminal Bills. It occurred to the members of the Statute Law Commission that, inasmuch as the criminal law, beginning as early as the reign of King John, and going down to our own times, was in a state of great confusion and encumbered with all the difficulties that beset the task of consolidation, it would be but fair to the House, the Crown and the country, if they were to begin with the criminal law; and if they found any difficulties attending the work which appeared insurmountable, that it would be becoming in them to state to the House that they had met with those impediments, and that the whole undertaking must be abandoned. But, on the other hand, if they found on going through the whole of the criminal statutes from Magna Charta downwards, that by patience, perseverance, and determined application these difficulties were not insuperable, they should be justified in stating that circumstance to the House; and if they were afterwards able to consolidate the whole criminal statute law of the realm, the same means by which that result had been attained might be applied to the consolidation of other branches of the statute law. Accordingly, during the last year, they proceeded to consolidate the whole of the criminal statute law. It was true, as the hon. Gentleman had said, the Bills they had prepared as the result of their labours were transmitted to Ireland, but when he said those Bills had been returned by the authorities there with observations showing the impracticability of the undertaking, the hon. Gentleman was labouring under a misapprehension. It was found, however, that the criminal statute law of Ireland differed so much from that of England that the two could not conveniently and at once be consolidated on the same plan, and the result had been that the task with reference to Ireland was now committed to persons perfectly competent to undertake it. There was no reason to doubt that as soon as it 785 was determined by the proper authority, whether or not it was advisable, to propose to Parliament the repeal of such statutes as constituted a substantial difference between the law of England and that of Ireland, the consolidation of the criminal statute law of Ireland would be completed, as it was complete with respect to England. The dissolution of the late Parliament prevented the Bills being brought forward with the hope of being carried in the short Session which began within the present year, but they had now been laid on the table of the House of Lords by the Lord Chancellor with some improvements, so that they were now in a fair way of being brought under the consideration of both Houses of Parliament. The hon. Gentleman had said that he could point out many errors in this consolidation of the criminal law. He wished that the hon. Gentleman had stated the nature of those errors, so that those who had the charge of the Bills might know what they were. Those Bills had been prepared during an interval of three or four years by some of the most eminent criminal lawyers at the English bar; they had been then submitted to Mr. Greaves and himself, then to Lord Wensleydale, and the late Lord Chief Justice Jervis, and had undergone a complete revision at the hands of the Lord Chancellor. Consequently the Commissioners believed that they were, at least, as free from error as a work of that kind could be expected to be, considering the nature of the undertaking and the difficulties with which it was necessarily surrounded. He believed those criminal Bills were now in a state to be passed through the House of Lords, and that when they came before the House of Commons they would receive its sanction and pass into a law. But, besides those eight Criminal Law Bills, there were ten other Bills ready to be submitted to the House, on some of the most important subjects within the compass of the law, such as the Law of Patents, the Law of Aliens, and other subjects, which he would not stop to enumerate. These also had been prepared by barristers of eminence and ability and had undergone a similar scrutiny. There was also another class of Bills now under the consideration of Vice Chancellor Page Wood. They had, in fact, independent of the Criminal Law Bills, forty-six Bills, either completed or in such a state of preparation that they hoped to submit a great part of them to Parliament during the present Session. 786 Such, then, were the labours of the Statute Law Commission, which the hon. Gentleman was so anxious to destroy. As to the question of expense, he thought he might say the whole of this great work might be completed at less than one-half the cost which had been expended on a single ineffectual Commission in other days. He submitted that, upon a consideration of the circumstances he had stated, the Statute Law Commissioners, so far from deserving the censure which had been cast upon them, might confidently appeal to Parliament and the country for their approval.
§ MR. WHITESIDE
said, this discussion had come upon the House somewhat unexpectedly. The subject was one of great importance, and he was aware of the value due to any Commission which had the assistance of the industry, capacity, and knowledge of his hon. and learned Friend (Sir F. Kelly); but he was afraid that the discussion, so far as it had gone, only went to prove the necessity of their acting as soon as possible on the Resolution of the House by the creation of something like a Department of Justice, whose labours would meet with the confidence and approbation of the House. When the matter was last under discussion, the late Attorney General objected to the plan of the Statute Law Commissioners, because he wanted to have a codification with consolidation. The Lord Chancellor proposed consolidation without codification, and the present Attorney General argued in favour of a plan, which he illustrated by reference to the civil law. It was true that those who laboured under Justinian accomplished in three years what they had to perform in ten; but that was a charge which would never have to be imputed to any modern reformer. He (Mr. Whiteside) had been endeavouring to understand the proposition of his hon. and learned Friend with reference to imperial legislation; for if it were intended to have one set of statutes for England, another set for Ireland, and another set for Scotland, the original evil would, in his opinion, be magnified threefold. He should certainly oppose any proposition to have a separate set of Statutes on the same subject for England and for Ireland. Having received a copy of the Statutes on the criminal law, he carried the treasure to Ireland, and on the 30th of January put it into the hands of a gentleman perfectly familiar with the statute and criminal law, with a request to be told within what time 787 it was possible to put the Bills, which contained literal copies of old Acts, into a shape whereby the law would be really consolidated, amended, and improved. The gentleman to whom he referred, thought it could be done by the 1st of April; but, as to the Bills themselves, pronounced an unfavourable criticism. The plan seemed to him to perpetuate the evils which it was intended to cure, and only to lay the foundation for future work by collecting Acts, which were scattered up and down the Statute-book. Under these circumstances, he (Mr. Whiteside) did not see there was much to be grateful to the Statute Law Commission for in the matter of expedition. The Lord Chancellor had said, that the Bills came back from Ireland an incongruous mass. He (Mr. Whiteside) did not know in what state they had been sent there; but he did know that there was no insuperable difficulty in consolidating the Irish Criminal Statute Law; and he, therefore, could never sanction a law which went to make separate sets of laws for the different parts of the same kingdom. It was a mistake to suppose that there was any insuperable difficulty in having the same law for England and for Ireland. He entirely denied that there was any great or broad difference between the criminal law of the two countries, and whatever difference there was, it might be easily adjusted. To make the same law apply to both countries was a comprehensive and imperial, while the opposite was a provincial and mistaken mode of proceeding. It was true that "conspiracy to murder" was a capital offence in Ireland and was not a capital offence in England. But why should that be so? The principle should be decided upon and the law made identical. It was understood that the Commissioners would take the criminal law first, then the law of real property, and then the mercantile law; but surely it was not intended to have a separate set of statutes as to real property and mercantile law for England and for Ireland. The Merchant Shipping Act, as a work of consolidation, was well done, and applied to the whole empire; and why should not the mercantile statute law be done in the same spirit and made to apply to the whole empire? He believed that when it came to be discussed, the House would be of opinion that it was better to have one code than three, and he should certainly oppose any other proposition.
§ SIR FITZROY KELLY
explained that 788 it was part of the plan, that the consolidation of the statute law should apply equally to England and Ireland, and that the reason why these Bills in the House of Lords only applied to England was, that it was left for future consideration, whether the points of difference in the law of the two countries should be permitted to remain or be extinguished; and he, therefore, hoped the hon. and learned Gentleman would give them his assistance when the Bills came before them in making them applicable to Ireland.
§ MR. BAINES
said, he could confirm in the most distinct manner the statement of his hon. and learned Friend that the Commissioners were most anxious to have no distinctions in the statute law of England and Ireland; though there were at present important differences in the law which existed in the two kingdoms, such as the Whiteboy Acts and other special statutes, which had no reference whatever to England. Indeed, one great object of the work in hand was to get rid of the differences that existed in the legislation for the several countries. The Motion before the House was for the discontinuance of the Statute Law Commission, and, in his opinion, that discontinuance at the present moment would be a great public misfortune. His hon. Friend the Member for East Surrey (Mr. Locke King) had referred to the unproductive labours of the Criminal Law Commission. He thought it only common justice to say that the Criminal Law Commission did a great deal of good. It consisted of the most eminent criminal lawyers, and they applied themselves diligently to the whole subject of the criminal law. They produced a series of the most valuable Reports, and although they did not propose any Bills which afterwards received the sanction of Parliament, every Bill on criminal subjects which had since passed had the suggestions of the Commissioners more or less incorporated in it. They took opinions upon various questions of criminal law upon which lawyers differed, they referred to the state of the law in other countries, they prepared a digest of the whole criminal law, and he thought it impossible to say that their labours had not produced great benefit. With regard to the Statute Law Commission, he believed there was now a prospect of their doing a great deal of good if their labours were not interrupted. What did Lord Brougham, a first-rate authority on this subject, say of the labours of this 789 Commission, of which the hon. Member for Surrey spoke so disparagingly? In the debate which took place about ten days ago in another place this distinguished law reformer declared that—He entirely approved the course which had been taken by his noble and learned Friend (the Lord Chancellor). Great misrepresentations had been made with respect to the Statute Law Commission, and he was glad that his noble and learned Friend had described exactly what the Commissioners had done, and how far their labours of consolidation had proceeded. … The statement of the Lord Chancellor as to the value of the services of the Commissioners was by no means exaggerated, and if he were asked to mention one or two of the Commissioners who were more especially entitled to the thanks of the country, he would mention the names of Mr. Bellenden Ker, Mr. Coulson, and Sir Fitzroy Kelly.Again, it was well known that other men, whose names carried the greatest weight, were rendering important services to the Commission. Lord Wensleydale regularly attended its proceedings, and Vice Chancellor Page Wood had also assisted in superintending many of the Bills drawn up under its direction, and so far from thinking the Commission of no use they were doing everything in their power to render its labours effectual. Seeing then the great advantage of their assistance, and the progress that had already been made in this work, no fewer than between forty and fifty Bills consolidating the law of this country on several most important subjects having either been introduced or brought to an advanced state of preparation, nothing could be more rash or injudicious than the course now recommended by the hon. Member for East Surrey. It was no doubt extremely desirable that the Resolution of the House of Commons should be carried out, and a Minister of Justice should be appointed, but until an ample opportunity had been afforded the Government for examining that question in all its bearings, and of considering the best mode of establishing another authority, to whom it might, perhaps, be found advisable to transfer the functions of the Statute Law Commissioners, he trusted the House would refuse to countenance any such Motion as that of the hon. Gentleman.
said, that he did not intend to prolong the discussion, but he wished to say a few words on the subject before the House. At the request of the Commissioners he had endeavoured to cooperate with them in regard to the improvement 790 provement of the law of Ireland, and with that view he had, after consulting with other gentlemen in Ireland, given in a plan which was published in the Appendix to the Report. On finding, however, that his views were not adopted or his plan acted upon, he felt that he could do no good by further attendance on the Commission, and he therefore withdrew from it. While giving his hon. and learned Friend (Sir F. Kelly) every credit for his labours as a Commissioner, he nevertheless could not conscientiously say that he thought the Bills sent over to Ireland well adapted to the requirements of the case. In his opinion the plan that had been pursued could only end in public disappointment. It was impossible for a person so much engaged as his hon. and learned Friend in professional and Parliamentary duties to devote sufficient time to the due supervision of a work of this kind. No doubt they had many able persons anxious to carry out law reform, and who were collecting very valuable materials; but there was no one controlling mind to direct the whole. It was with this feeling that he had advocated the establishment of a Department of Justice, and he was happy to acknowledge the support he had received for this proposition from the noble Lord the Member for London. The object was not only to digest, amend, and consolidate the existing laws, but to keep our current legislation in harmony with the spirit of the times; and for this purpose they must have a responsible Minister with a separate department. The work of the Statute Law Commissioners would come properly under the surveillance of such a department. The Attorney General, he was bound to say, had directed his attention to the subject with great energy, and he (Mr. Napier) had given him every suggestion in his power. He (Mr. Napier) sincerely believed the plan would be fully considered; and he had reason to suppose that before long, a system would be constructed, under the auspices of the Attorney General, which would meet the Resolution of the House of Commons on the matter. If this were done, the working of the Statute Law Commission would come under the surveillance of that department, and the House might then reasonably calculate upon the result. In the hope that this would be speedily done, and that the labours of the Commission would be made useful, he (Mr. Napier) would recommend his hon. Friend the 791 Member for East Surrey to rest content with the valuable discussion he had elicited, and not to press his present Motion to a division.
THE ATTORNEY GENERAL
said, it was not his intention to prolong that discussion, but he thought the House would feel that a more unreasonable proposition than that they should cut down the tree at the very moment when it was about to bear fruit, could hardly be submitted to any assembly. Nothing could be more absurd than to expect, on a subject like this, that a plan should not only be matured, but practically executed in a short period. by a Commission which could not sit de die in diem, but was composed principally of legal functionaries, whose Other important functions so fully occupied them that they had but little time left to dedicate to this part of their duties. There was no subject on which he felt more anxious, or on which he held himself more pledged, than with regard to the undertaking entered into by the Government to carry out the formation of a Department of Public Justice. He had prepared plans with considerable care for that object, great part of which were now undergoing examination by Her Majesty's Government. He hoped that the scheme would be sufficiently matured to be made public before the end of the Session, and this was an additional reason why the hon. Member for East Surrey ought to be content to withdraw, for the present, the application which he had made to the House.
§ LORD JOHN RUSSELL
I was surprized to hear the hon. and learned Attorney General designate the proposal of the hon. Member for East Surrey as eminently absurd. When my hon. Friend brought forward this subject last year, I thought that, upon the ground just stated by the Attorney General, it was quite fair to give the Government time to proceed with this Statute Law Commission; but when I went into the lobby to support them, I saw the Attorney General of that day, now the Chief Justice of the Common Pleas, go away from the division. He would not vote for the Government. Surely, then, there must be some ground for saying that the Commission is not very useful. I am still prepared to do what I did last year—namely, to give further time to the Government; but I think that the question is not in a very satisfactory position. I think that 792 what the hon. and learned Gentleman the Member for the University of Dublin (Mr. Napier) has said is quite just. It is very well to have a Commission which shall prepare a consolidation of the law, but unless you have some eminent person sitting in this House who can move the Consolidation Bills, show the reasons for the different clauses, and support them, there is very little use in having such Bills laid before Parliament. We are told now, that a set of Consolidation Bills has been laid before the other House of Parliament. That may be so, but the hon. and learned Member for East Suffolk must admit that, even if they pass through the other House, they cannot, at this period of the Session, come down to us in sufficient time to enable us to give them that consideration which would be necessary before we could venture to pass them. It appears to me that the use of these Commissioners is to enable persons holding the proper offices to take advantage of their learning and experience, with a view to the preparation and bringing before Parliament Bills for the amendment of the law. That was the course which I took in 1837 with regard to the amendment of the Criminal Law. When I had to propose Bills on that subject in that year, I collected the Criminal Law Commissioners at the Home Office, and sat with them several days, going through the different alterations which it was proposed to make. Part of those Bills, which made considerable alterations in the Criminal Law, are now, I believe, the law of the land. I must confess it strikes me that the Lord Chancellor has been rather premature in speaking of the speedy consolidation of the law, because, if you attempt to consolidate the law in its present state, you merely put together alt that is to be found in the different statutes, and form a mere incongruous mass, as has been remarked with regard to the attempt to consolidate some part of the statute law of Ireland. You will find, with regard to breaches of trust and fraud, that there are various Acts of Parliament, and that those who drew them had different views of the guilt of different kinds of fraud, and, having different views with respect to the same frauds, they affixed different penalties to them, and different modes of conviction. If, therefore, you bring these Acts together, you will form not only an incongruous, but a very contradictory mass. I believe that the present is the time rather for amending than consolidating the 793 law. The House of Lords has sent to us in the present Session two Bills, which I venture to say are founded upon very sound principles, and which, I trust, with some alterations, will pass into law. They, are Bills upon two important subjects—one; being on the subject of testamentary jurisdiction, and the other on that of divorce. Two more important subjects could hardly be touched by legislation. Those Bills, I believe, were framed, not by the Statute Law Commissioners, but by the Government, and by the House of Lords, under the guidance and advice of very able and learned men—Lord Lyndhurst, Lord Brougham, Lord St. Leonards, and others who have seats in that House. There are several other subjects, the laws on which will require very large amendments before you can proceed with their consolidation. If you attempt to consolidate the laws prematurely, you will re-enact a great many things that never ought to have been enacted at all. What you have to consider is, not how to consolidate, but how to amend. I agree with my right hon. Friend the Chancellor of the Duchy of Lancaster, that the question as to the appointment of a Minister of Justice should be maturely considered before you adopt any particular plan. But I am convinced that some such plan should be adopted, and that, unless you have persons besides the Lord Chancellor and those gentlemen whom the Attorney General described to be occupied in other matters, and who, therefore, cannot give the time necessary for sitting de die in diem to this matter, you can never properly proceed with the work of consolidation. But, if you have a person who is to give his best faculties and his time to the consideration of law reform, I believe you will see some good fruit, whether the Statute Law Commission continues its work or not. I do not know whether the hon. and learned Member for the University of Dublin will agree in what I am going to say. I very much fear that he will not. No doubt this Minister of Justice would be a considerable expense to the country: but I think we might save that expense by abolishing that useless office, the Lord Lieutenancy of Ireland. That is a matter on which the Government should have full time to deliberate, but I think the time has come when such reform might be made, and I hope that a Minister of Justice will be appointed. I cannot vote for the abolition of the Statute Law Commission, but I 794 must say that I think my hon. Friend the Member for East Surrey had very good grounds for asking what was the use of that Commission?
§ Motion negatived.