HC Deb 30 June 1859 vol 154 cc483-507
MR. WHITESIDE

said, he rose to move for leave to introduce the first series of Bills to consolidate and amend the Criminal Statute Law of England and Ireland. For a considerable time a body of learned and eminent persons, called the Statute Law Commissioners, had carried on their labours with a view to discover the best means of securing the object which he then sought to accomplish. But shortly after they had commenced their inquiries they had found that they had two difficult questions to decide. The first was, whether their Bills should be a mere consolidation of the statutes or an amendment of the law. The next important question they had to consider was, whether or not they should include Ireland in their labours. It had been very well pointed out by Mr. Bellenden Ker that if they proceeded upon the principle of consolidating the English law only, they would create a greater difference than that which already existed between the law here and the law in Ireland, inasmuch as many of the statutes which had been passed since the Union applied to both countries. They also consulted Mr. Napier, the late Chancellor for Ireland, who had given it distinctly as his opinion, that there should be one set of statutes for both countries. In a communication addressed to the Secretary of the Statute Law Commission he said:— I think the Irish Statutes ought to be overhauled, with the view of consolidating them as much as possible with the corresponding English Acts. We have about 2,263 Irish Acts before the Union; then, under Poyning's Act (10th Henry VII., c. 22), we have to import English Acts: and by the 8th Edward IV., c. 1, and 21st and 22nd Geo. III., c. 48, English Acts are extended to Ireland. Since the Union there have been passed about 1,300 statutes exclusively relating to Ireland; so that, in addition to the early and the post-Union Laws, which extend to both countries there are upwards of 3,560 statutes peculiar to Ireland. I believe it to be practicable to have one set of statutes for both countries, which would regulate most matters proper for legislation, though there are important exceptional subjects which, on principles of sound policy, ought still to be dealt with by special and separate legislation; but I own that I have the strongest desire to bring Ireland, as much as possible, under the same laws—administered in the same spirit as in England; without this the Union is an Imperial evil, and Ireland but a province. The very able work of Mr. Gabbet shows how the work of consolidation might be accomplished by diligence and labour; and I think that in blending the parallel statutes advantage should be taken of the comparison of the enactments and the judicial comments in both countries, so as to produce an improved imperial edition for future use. I might easily refer to recent instances, in which the system of separate legislation has signally failed, and I cannot too strongly urge its condemnation. The occasional jobs and frequent blunders to be found in the Acts for Ireland are the spawn of this vicious system. I have found it impracticable, even with a diligent attendance in the House of Commons, to detect and defeat these flaws in measures for Ireland, which could not escape if proposed in an Imperial Bill. As to the past, therefore, I would earnestly recommend a revision, with a view to such consolidation as I have suggested; and as to the future, that some arrangement be proposed by which the legislation for Ireland may be subjected to the same careful supervision as that for England, with which it should be as much as possible identified. There are some subjects which might very usefully engage our early attention—for instance, the Stamp Laws, the Law of Judgments, &c. I think it is a very prudent course to take up such groups of statutes as overlay the law on these every-day matters, and construct a new and complete code, repealing at the same time all the old statutes. His right hon. Friend the Member for the University of Cambridge visited Ireland last October, in order to arrange what measures it might be necessary to introduce in regard to that country, and he called on the Irish Executive to state their views on the subject. The question was brought before the late Cabinet, and the consequence of their decision was the preparation of the present Bill. He would shortly state what had been done. The first question that presented itself was what was to be done in regard to the punishment of death. When Blackstone wrote there were on the Statute-book no less than 167 capital felonies, and although happily executions were not now frequent it was within the memory of living men how great was the number of executions which formerly took place after a sessions in London. In process of time, when the opinions of men on the necessity of capital punishment became more modified, juries averse to the punishment of death committed what might be termed judicial perjury, and acquitted the prisoners; so that they had the spectacle of one kind of law embodied in the Statute-book and another kind administered in the country. This led to the reduction of capital offences to the number of twelve, and the question now was in which of these cases Parliament could permit the abolition of the punishment of death. At the present time in Ireland, he found specified on the books—arson of the dwelling, arson of the shop with intent to murder, exhibiting false lights for the purpose of causing shipwreck, gaol-breaking, murder, stabbing, poisoning, robbing and wounding, &c. When the subject was considered by the late Cabinet it was thought that it would be a very proper thing to propose to Parliament to abolish the punishment of death in all cases except those of high treason and murder. Opportunities had arisen for the carrying out of effective secondary punishment which did not formerly exist. He had always thought that after the late Criminal Law Commissioners had recommended the abolition of capital punishment for rape, it would be extremely difficult to retain it for any offence against the person short of actual murder. The Bill also professed to deal with a crime of which they had heard a great deal lately—namely, conspiracy to murder. That offence was capital in Ireland and not capital in England. He had been asked whether he would not assimilate the laws of the two countries. Considering that Ireland had been handed over to the present Government in a condition that it had never been in before—in a state of great prosperity and profound tranquillity—he was of opinion that in this particular instance, as in several others, exceptional laws might be abolished. He thought that it was but just, as was observed by the noble Lord the Secretary for Foreign Affairs (Lord John Russell) during the course of a late debate, that the punishment of death should be inflicted for conspiracy to murder where death ensued; but, on the other hand, where the crime of murder was not actually consummated it should be withheld, and a secondary punishment substituted. It was generally felt that when death did not result the criminal might be allowed to get the benefit of not having carried his crime into execution. Wherever the conspiracy to murder was proved it would be in the power of the Judge to pass a severe penalty, but he might, if he thought fit, reduce the punishment to an imprisonment for four years. There was the case of a conspiracy to murder Her Majesty's Ministers at a dinner at Lord Harrowby's. No doubt, such a conspiracy might be a very gross offence, but the Crown was more likely to gain a conviction when the punishment was reasonable and moderate. The crime of forgery was consolidated by the English statute law in the time of William IV. In Ireland the laws relating to forgery had never been consolidated, and there were now forty-five Acts of Parliament relating to that crime. But, as the offence and the punishment ought to be the same in England, Ireland, and Scotland, there was no real difficulty in amending the Acts, in applying the same law to both countries, and in clearing the Statute-book of forty or fifty Acts of Parliament. It would not, then, be necessary to have so much separate legislation, while the crime itself would become rarer in Ireland from the knowledge that punishment would certainly follow conviction. He thought that it would be highly creditable to the Government if they could pass such a consolidation law that there should not be a clause upon the Statute-book of Ireland which did not extend to England in the matter of criminal law. There was one of the Bills to which he wished particularly to call the attention of the law officers of the Crown, and which, in his opinion, was an admirable Bill—namely, the Procedure Bill. By this Bill all the procedure laws commencing with those relating to the issuing of Commissions to Judges from the time of King Edward I. to Queen Victoria, had been overhauled and systematized, and the present would be a complete Procedure Bill for both countries. It would be found to be a very readable Bill, but there were only two clauses that now deserved the attention of the House. These were Clauses 6 and 7 declaring what was to be done in cases formerly punished by forfeiture of goods and chattels and confiscation of land. It was said that confiscation of land was the corner-stone of the classification of crimes by the law of England. When Sir Matthew Hale wrote, almost every crime was a felony. But Mr. Amos had published an interesting work entitled the Ruins of Time, to prove the ruins time had made in the compositions of Sir Matthew Hale. While he admitted that the late Cabinet did not decide in favour of the abolition of the forfeiture of lands, and that confiscation should be abolished, he in his individual character felt at liberty to urge the abolition of this penalty. Take the case of Sir W. Raleigh. The King first chopped off his head and then took his estate for his favourite. When Lady Raleigh asked for the restoration of Sherborne Castle, the erudite Scotchman then seated on the throne of England replied, "I mum has it for Carr," which being translated meant, "I must have it for Kerr." The law ought to be satisfied with the life of the victim, without punishing his innocent family. He was present at the trial of Mr. Smith O'Brien for treason. The Crown might have taken his life, but on what principle of justice could the law have taken his estate from his eldest son—a man of the highest talent and every virtue? He admitted it might be rejoined that confiscation was still the law of this country, but he had lately been reading the arguments urged by Sir Samuel Romilly on this point, and they reminded him of the conversation between the Emperor Joseph and the Chancellor of the Austrian empire. The Emperor was reported to have asked his Chancellor whether he had read the essay of Beccaria. "I have, Sire," was the reply. "Can you answer it?" "No, Sire." "Then act upon it," said the Emperor. He would refer the House to what has been written by Mr. Amos in reference to the argument of Romilly on confiscation: — On the general principle of confiscation, it may be observed that it is open to the gravest objections. Sir Matthew Hale, indeed, does not offer any opinion concerning its impolicy or inhumanity; and Blackstone labours to prove what he terms the 'natural justice' of confiscation for treason. The first pattern for confiscation is supposed to have been given to the world by Sylla, the Dictator. Among the principal objections to confiscation may be reckoned that the penalty is, in many cases, excessive, and disproportioned to the nature and extent of offences; that it is unequal in its application to different offenders, being graduated not according to the gravity of an offence, but the magnitude and description of the offender's estate; that it usually involves the misery and utter ruin of the innocent families of offenders. Livingstone, Dumont, and Bentham, have written cogently against forfeitures, but nowhere, perhaps, are they more eloquently reprobated than in the following extract from a speech of Sir S. Romilly. He says:—'All confiscations forming part of a sentence by which death is inflicted, are founded, in my opinion, upon the greatest injustice. To confiscate the property of the criminal whose life is left untouched, is to take from him the means by which the enjoyments and comforts of life are supplied; but if the law deprives him of life also, the forfeiture can only affect those whom he leaves behind. Upon them alone the punishment falls; and, if the offender be at all affected by it, it is only as he may feel, and be afflicted for them. Almost all punishments, indeed, extend beyond the criminal against whom they are directed. The greatest criminals have often deserving relations and connections, who sympathize in their sufferings, and who, though perfectly innocent, thus endure a part of the punishment. But this arises from the necessary imperfections in all human institutions. In the law, however, of forfeiture, this, which is an unavoidable evil, but which all wise legislatures would, if it were possible, avoid, is the very principle upon which the law proceeds. The direct punishment is inflicted on the innocent, and it is by sympathy alone that the guilty is affected, if he be at all affected by it. To the most obdurate and hardened it is no punishment at all; to the less criminal —to those only whose minds are not callous to all sense of virtue and of humanity, if to any, it can operate as a punishment. You choose for the instrument of your moral torture the best feelings of the human heart, and aggravate and enhance your punishment in proportion as the subject of it is less an object of detestation.' Those were arguments which it was impossible to answer, and, therefore in the present Bill he proposed to abolish the penalty of confiscation of land for crimes to which it now applied. What was the case in respect of felony? There was an instance of a man at Salisbury being convicted of felony for stealing one penny, and all his goods were forfeited. The bishop, under his grant of the goods and chattels of felons, however, claimed the chattels, and, being a just man, he divided the property among the most deserving relatives. Thus, too, the Sovereign never actually took the produce of a felon's property, but left it to the law officers to decide to whom it should be given. As long as almost all felonies were capital he could understand the value of a distinction between felonies and misdemeanors; but now, when many misdemeanors were more heinous than some felonies, the case was different. It might be urged, however, that these were suggestions for the improvement of the law, which ought to have emanated from the Statute Law Commission; but with all due respect to that Commission they had very little power, and felt themselves under a difficulty in making such suggestions and changes. It had been proposed to consolidate the whole Statute Law of England, but he contended that the late Government took the wiser course in confining the consolidation to the criminal law, in the first instance, because any system which consolidated the criminal law of the two kingdoms must necessarily ameliorate the criminal law of Ireland, while it could not but prove beneficial to the criminal law of England. That was the whole scope and character of the measure, and he had to return his thanks to the law officers of the Crown in this country, especially to the late Attorney General, for the support and assistance he had rendered, and also to the right hon. Gentleman the Member for Cambridge University (Mr. Walpole) for the manner in which he applied himself to this measure and the earnest desire he had evinced to secure what benefit he could for Ireland. He had not the slightest doubt that the present law officers of the Crown would consider the subject carefully, for although other countries were at war, and it might behave us to take precautionary measures, yet ample opportunity would be afforded by the continuance of the neutrality to look into questions of great domestic importance. Whatever concerned the liberties and lives of the people of the United Kingdom must always be of paramount importance in that House, and he therefore trusted that the Bills in question would meet with a careful investigation and considerate support.

THE ATTORNEY GENERAL

said, it was undoubtedly not his intention to offer anything like opposition to the Motion of the right hon. and learned Gentleman, but rather to tender to him individually his thanks for the labour which he had bestowed on this subject; and for his own part, he should welcome and receive with the attention due to the quarter from whence the Bills came the measures which were proposed to be laid on the table of the House. It was requisite, however, that the attention of the House should be called to another matter connected with this subject on which it was high time that some determination should be conic to. The House was asked on the present occasion to receive and consider statutes newly constructed for the purpose of consolidating the whole of the criminal law of England and Ireland. That was a simple proposition that they should at one blow abrogate the whole of the existing laws, and receive a new enactment in place of that which they now bad. Now, he wanted to know, and he wanted the House to consider, what means there were of assuring themselves that no alteration would take place, and that the new enactment and the new combination would amount, with the exception of the particulars specified, to nothing more than a re-enactment of the antecedent law? He was perfectly confident that the House never would be led to take such a leap in the dark. How, he would ask, could they arrive at the conclusion that these very universal and comprehensive measures might not in reality effect a radical alteration of the existing law? In one particular, that in which express alteration was intended to be made, he entirely concurred in the sentiments of the right hon. and learned Gentleman. He had long felt, as a law officer of the Crown, that great mischief and inconvenience resulted from the forfeiture of goods and chattels, and also from the forfeiture of lands; he entirely concurred in the suggestion of humanity, and, he would add, of justice, that had been brought forward for the purpose of inducing the House to consent to a change of the criminal law in that respect; but he felt that it was a very serious thing to propose that the House should accept a consolidation of the statutes, the House being utterly unable to undertake the office of examining whether or not the statute simply embodied the existing law, and therefore being exposed to the peril of altering the law by accepting an enactment which it took on trust and credit from some other quarter. These were the reasons which long ago had led him—he was now speaking as an individual—to suggest to the House the absolute necessity for the establishment of a department of justice, composed of individuals whose bounden duty it would be to examine this subject, who would be responsible for it, who would undertake it, not in the manner in which it was now undertaken by the Statute Law Commission, but as their exclusive business and duty, and upon the credit and faith of whose well-known ability and responsibility it would be that measures of consolidation would be brought before the House. The House was perfectly well aware that statutes, even if they were gathered together in the very words, so far as they could be preserved, of the existing enactments, yet when strung together in a different form, under a different arrangement, and with a different preamble, might receive a construction altogether different from that which was now put on the existing law. The Statute Law Commission had been in existence for several years, and with the exception of some Bills which had been brought in by the late Attorney General, on the day before the late dissolution it had never placed on the table of the House a single Bill for the purpose of consolidating the law. He apprehended, therefore, that it would be one of the most important duties of the present Government to consider what should be done with the Statute Law Commission. Now, supposing that something could be done on that subject, it would be desirable that this great and important measure of consolidating, or, as he should prefer to say, of digesting, the statutes should be committed to persons who would be responsible to that House. No doubt they were greatly indebted to those hon. and learned Gentlemen who laid on the table of the House the result of their individual labours. But observe how the matter stood. The late Attorney General, as he stated, laid on the table, the day before the late dissolution, seven Bills which, as he understood, with the exception of a particular matter to which the right hon. Gentleman had referred, were for the very purpose for which the present Bills were brought. Well, those now brought in by the right hon. and learned Gentleman differed, he believed, from those. [Mr. WHITESIDE made some remark.] The present were alterations of those Bills. Very well; but the Bills which were brought in by the late Attorney General had been brought in on the faith and credit of the Statute Law Commission, and they were now superseded by an amended edition. This only showed the great uncertainty and the very unsatisfactory manner in which this task had been performed, or rather in which this great duty of improving the body of the Statute Law, and bringing it into a simple and easily consulted form, bad not been performed. It was, therefore, undoubtedly necessary that something should be done on this subject; but he must undoubtedly enter his protest against simple consolidation Bills being brought into the House on the mere authority—however great that might be—of individual Members of the House, in the expectation that the House would enter on the onerous and laborious duty of examining those Bills with the whole body of the Statute law; or, still less, that the House would be prepared to accept a consolidation Bill and, without examination, to abrogate the existing statutes, and accept any combination in their stead. No duty could be greater—no duty was more imperatively called for—and no work could be more important, than that of adjusting, arranging, and simplifying the statutes; but it must be performed by a body devoted to that purpose, and to that end exclusively. And attempts to perform that duty in this piecemeal fashion in a manner which it was impossible to suppose could ever ripen into any effectual improvement, however meritorious these attempts undoubtedly were, they were in point of fact mere delusions and a mere putting off of the consideration of a duty that must be performed in a different manner. Although, therefore, he gave to his right hon. Friend the greatest possible credit and praise for his labours in this matter, he hoped he would agree with him that the work must be performed in a different, more comprehensive, and more satisfactory way, and that he would not be surprised if Her Majesty's Government did not immediately press the consideration of these particular measures until the whole subject could be more thoroughly examined and investigated, and put, he trusted, on a more satisfactory footing than it at present occupied. The House was aware that he had never been a party to the mode in which the proceedings had up to the present been conducted, the suggestion made by the present Lord Chief Justice of the Queen's Bench himself not having been accepted by the Statute Law Commission. But he should press on the attention of the Government the necessity of now proceeding in a manner likely to lead to greater results than had been attained; and whatever might be the body by whom those measures would be brought forward, he could assure the right hon. Gentleman that those which he had now laid on the table would receive the most attentive consideration. He entirely agreed with the right hon. Gentleman in the desirableness of making one law both for England and for Ireland, a branch of the subject to which, from the limited character of their duty, the present Statute Law Commission had been unable to attend.

MR. MALINS

said, he was glad to have heard the hon. and learned Gentleman the Attorney General distinctly point out that the consolidation of the statutes could not be carried into effect unless the House was prepared to abrogate its functions, and take the proposed enactment on trust, and he agreed with him that it was improper this should be done, and very unlikely that it would ever be done. But he had been surprised at finding that this was only preparatory to his hon. Friend's mounting a favourite hobby of his own, and declare that although the House was not to take these measures upon trust, yet that a body was to be constituted which would dictate to the House what measures they ought to pass. His argument was in effect that though the right hon. and learned Gentleman the Member for the University of Dublin was not to be trusted, and he presumed though the hon. and learned Gentleman himself was not to be trusted, and though the House itself was not to be trusted, yet that when three or four Members of the House were got together and called a Department of Justice they were to put tables of Bills before the House, on what his right hon. Friend called "their responsibility," which were forthwith to be passed into law.

THE ATTORNEY GENERAL

begged to explain. His hon. and learned Friend seemed to have forgotten that the House had passed a Resolution declaring that it would be expedient to have a Department of Justice for this express purpose.

MR. MALINS

said, he was fully aware that such a Resolution had been passed, but it was in a very thin House, and at the time he had felt it his duty to protest against what he deemed a mere theory, and to declare that such a proposition could never be carried into effect. The Resolution was now three years old, and the experience of that interval had shown his observations to be well founded. Nothing had been done since that time; it was a barren resolution. He would almost venture to turn prophet and predict that nothing would ever come of it. Because was it to be supposed that if the Lord High Chancellor of England, the Attorney General and Solicitor General, the responsible officers of the Crown, whose duty it was to prepare and submit measures to the House, were not to be trusted with the discharge of this duty, they would be any the more fit to do so if they were called by another name; and even, as hon. Member below him had suggested, were paid additionally for doing so? He would venture to repeat what he had before said on this subject, that the Lord Chancellor of England, with the assistance of the law officers, formed the proper tribunal to which they should look for the administration of justice and for producing such measures of law reform as were to be submitted by the Government of the day. In consequence of the establishment of the Lords Justices, the duties of the Lord Chancellor had been materially lightened. It was only necessary that he should sit with them for appeal business when any special question arose, and he was sure his hon. and learned Friend agreed with him that it had a mischievous tendency to have two courts of appeal sitting in the Court of Chancery. The present arrangement would enable the Lord Chancellor, when Parliament was not sitting, to devote considerable attention to measures of legal reform and improvement which were to be introduced into the House. He concurred with his hon. Friend the Member for Surrey in most of the objections which he had from time to time taken to the Statute Law Commission, which he had always declared would never be attended with any practical result. He remembered that on one occasion, about four years ago, the late Attorney General had told him that it was his intention to submit eighteen Bills, which he said would be put on the table, and would speedily pass; so that in about eighteen months they would be enabled to consolidate the Statutes of England. He ventured to tell him that the law would not be consolidated in eighteen years, nor during the life of any of the present generation. The whole proceeded on an erroneous and impracticable principle. The hon. and learned Member for Suffolk (Sir F. Kelly) had proposed to bring in ninety-three Bills, and he (Mr. Malins) had then ventured to ask him a practical question with regard to them—namely, did he expect them to be passed into law without being referred to a Committee; and in that event, how many months, how many years, must it take before those could be passed into law? All these were mere empty theories of consolidation, which looked very well to lay on the table, but which the youngest Member of that House would find no further than the table at the end of his life. To the general objects which his hon. and learned Friend had in view he gave his cordial support. It was discreditable that they should have one set of statutes in England and another in Ireland; but he thought it right to point out some of the difficulties in the proposed course, and to warn the House that these were mere theories and nothing more than theories.

MR. LOCKE KING

said, he would beg to remind the right hon. and learned Attorney General that he was in error with regard to the Statute Law Commission, for he was glad to say that since the hon. and learned Gentleman had last held office that Commission had been entirely annihilated, and there was now an opening for the appointment of a practical body of men to set to work to reform the law. He wished to ask the right hon. and learned Gentleman (Mr. Whiteside) whether the Bills now under consideration were not the same Bills which had over and over again been under the consideration of the House, and in point of fact the Bills introduced by the late Attorney General at the end of the last Session. Was it creditable the way in which things had been going on. The late Law Commission was an offset of the Statute law Commission, and expended £23,000 or £24,000 without any result whatever except the production of these Bills. The previous Commission expended something like £50,000. When the late Commission commenced its operations it was not powerless. Lord Clan-worth had a plan proposing to expurgate the Statute-book as the first step towards consolidation. To that proposition Mr. Bellenden Ker objected. The work of expurgation was stopped, and the result was that Parliament had been troubled with this series of Consolidation Bills. Now, in his opinion, the first step to be taken was to expurgate the Statute-book, and then there might be some hope of its consolidation. That also was the plan proposed in this House by the present Lord Chief Justice, when Attorney General.

MR. BOWYER

said, it appeared to him that the argument of the hon. and learned Attorney General proved rather too much. If it proved anything, it proved the utter impossibility of the consolidation of the statute law being effected by Parliament. The hon. and learned Gentleman said Parliament could not take anything upon trust, and that it must assure itself by its own examination that what was proposed to be effected was not a change of the law but merely a consolidation. Now, how was it possible for a numerous assembly like this to enter into such an investigation? Parliament must trust somebody, and if it did not trust a Commission, or a number of learned persons who had undertaken the task of consolidation, it must refer these matters to a Committee of its own, and it would be necessary after all to take upon trust the report of the Committee. He said, therefore, that the argument of the Attorney General showed a defect in their constitution, and that Parliament was not efficient for this most important duty of legislation. The Attorney General proposed the constitution of what he called a Department of Justice, but, as had been observed, the putting a number of persons together and calling them a Department of Justice did not give them an extra power or capacity for doing this business. But what was a Department of Justice? That which the Attorney General described was not a Department of Justice, but of Legislation, whose duty it would be to draw up Bills for the consolidation of the law, and afterwards to submit those Bills to Parliament. But was not that the very thing that was being done by the Statute Law Commission? He could not understand why the Statute Law Commission had failed to perform the duties for which it was constituted. There had been two remarkable instances in history of the consolidation of Laws, and in both the work had been done by a Commission. The first of these was the consolidation of the Roman law under Justinian, and the second was the consolidation of the French law under the first Napoleon. Now the consolidation of the Roman law was conducted by Commissioners constituted precisely as the Statute Law Commissioners were, though they might have been more eminent persons, and better remunerated. Then again, when the French law was consolidated Commissioners were appointed who drew up the Code Napoleon, which was afterwards discussed in Council, in the presence of the Emperor, precisely in the same manner as such a scheme might be discussed in that House. With these two instances before them, he would ask why should not a Commission be constituted with sufficient powers to investigate the whole subject of the statute law, to consolidate the law into what might be called a code, arranged under different heads, and then it would be the duty of the Government to submit that code to the sanction of Parliament? When it came before Parliament, then the real difficulty commenced; but he contended that consolidation was utterly impossible, unless the House to a great extent took the law thus consolidated upon trust: otherwise the code would run great risk in passing through Committee. There would be a constant danger that some Member —perhaps a thin House when Members were gone to dinner—might introduce an ignorant or injudicious Amendment which would spoil or materially injure the Code. The House was much indebted to the late Attorney General for Ireland for having grappled with this subject and for having introduced the Bills under consideration. He would repeat, however, that the House must make up its mind to take this work upon trust, for if they did not, they would only squander large sums of money in printing and in salaries, without obtaining any satisfactory result. He would remind them, however, that the French Commission had greater difficulties to contend with, and yet they accomplished their task in three years.

MR. COLLIER

said, he could not but remark the little fruit which the Statute Law Commission had borne. It promised a great deal, but had not effected consolidation in a single instance. They had been long trying "how not to do it." Let them now take a turn and try how to do it. The reason why the Statute Law Commission had failed was, that though it was composed of eminent men, these men, however qualified, had not been able to devote the whole of their time to the consolidation of the law. The consolidation of the law was a great work, and required the undivided time and energies of the ablest men selected for the task. They had not yet tried the plan of a Department of Public Justice, such as had been proposed by the right hon. and learned Gentleman the late Member for the University of Dublin. He was satisfied that if the work were entrusted to a body of men, selected for their ability and who should be able to devote their whole time to it, it would then be done, and that in a few years they would see the chaotic mass of statutes reduced to something like order. When it had been found practicable to consolidate the Roman and the French laws, how could it be said that our laws defied every attempt at consolidation? He trusted therefore that the Attorney General would remember the pledge he had given on the subject, and that the matter would not be allowed to drop.

SIR FITZROY KELLY

said, he felt that he owed it both to that House and to some few individuals without its walls to explain what was really the present state of this great question of the consolidation of the statutes, and to endeavour to remove some misapprehensions which existed both with regard to the nature of the consolidation required and what had been done on the subject by the Statute Law Commission. It would probably cause some surprise that of the forty volumes containing the Statutes of Great Britain, not more than four, or one-tenth, consisted of statutes in force and operation; the remaining thirty-six were filled with Acts of Parliament which had expired, or become obsolete, or were for some reason or other not in force. In addition to this it must be remembered that the statutes upon any given subject were entirely unconnected, and, therefore, to ascertain the law upon it you must either study a text book or hunt through all the statutes from Magna Charta to the present time. The law there lay scattered piecemeal in different language and phraseology, and in such form as defied investigation, except with the utmost labour and a great length of time being devoted to the subject. Under these circumstances it was not remarkable that from the time of Lord Bacon numerous attempts should have been made to reduce our statutes into such a form that what was the law upon any subject might easily be found upon the Statute-book. Hitherto all such attempts had failed. The Statute Law Commission, to which referrence had been made, was originally appointed in the year 1853. That Commission expired, and in 1854 a new one was appointed, which, chiefly under the direction of Lord Cranworth, had continued its labours with more or less activity to the present time. The hon. and learned Gentleman opposite (Mr. Collier) had referred to a statement which he had made on this point. He had to correct the hon. and learned Gentleman, not only as to the time at which he had made that statement, but also as to what he had actually said. He (Sir Fitzroy Kelly) had made that statement not four years ago but three years ago, and as to the time within which the task of consolidation might be completed be had said that if the plan adopted by the Commission could be acted on and carried into effect, there was no reason to doubt that all the Statute Law might be consolidated within the space of three years. At the same time, however, he stated that to the accomplishment of that task there would be necessary the cordial co-operation not only of the law officers of the Crown, but also of the Government and the Legislature. A plan was proposed to the Commission which had been to a considerable extent acted upon, and in accordance with which ninety-three Bills were now ready, or nearly ready, which would consolidate the whole of the Criminal Statute Law, the whole of the mercantile Statute Law, and the whole of the real property Statute Law. The first question which arose in the work of consolidation was whether the Houses of Parliament were to accept any portion of the work upon trust. Difficulties had prevented the carrying out of the plan, and had left the question in the state in which it now was. It was clear that in reducing some 40,000 statutes to 300, each comprising the whole of the law upon one subject, a task was implied which would require to be committed to the hands of lawyers not only of eminence, but able to devote their whole time to its accomplishment. It had been truly observed by the hon. and learned Attorney General that a question arose in consolidating the Statute Law, as to how far the House would agree to consolidate it on trust. Either they must consolidate on trust, or every clause of a Consolidating Bill must be discussed in the ordinary way in Committee. As not more than three or four Bills on law Reform could be expected to be passed in one Session, and as it would require 300 or 400 Bills to consolidate the law, it was clear that if that number were to be passed in the ordinary way, the life of the youngest Member would not be long enough to permit him to see the completion of the work. There was another difficulty. Supposing that any of the Bills proposed by his right hon. and learned Friend had undergone the revision of members of the bar, not merely of England and Ireland, but of some of the members of the Statute Law Commission; and supposing the House were disposed to take on trust any such Bills as far as related to the consolidation of the law, another important question arose, and that was—were they, in consolidating the Statute Law, to attempt to amend it. But if all the projects for the amendment of the Statute Law which might be suggested were to undergo consideration, it must be obvious that the task could not be half performed during the whole life-time of the youngest man living. It was evident either that some scheme must be devised for submitting to the House Bills comprising the consolidation of the Statute Law, with such amendments as were likely to be acceded to without any considerable discussion, or the whole undertaking must be at once and for ever abandoned. An hon. and learned Friend of his on the opposite side had suggested that the task should be committed to a Board, or to a Department of Justice, who, devoting their entire time and attention to the subject, would be able to arrive at a complete consolidation of the law, and to this he entirely agreed, and had been about to submit to the House a measure of that character, when the late Government was dissolved. He might observe that no blame could be cast either upon the Statute Law Commissioners, or upon the late Government, or upon the Government which had preceded them, on the ground that no further progress had been made in this matter. The Statute Law Commission had produced reports and drafts of Bills, which it would be found, whenever the proper time for their consideration might arrive, had not only laid the foundation of any scheme of consolidation that was practicable, but had totally and for ever removed all the substantial difficulties in the way of the complete execution of this great undertaking. He hoped the time was not far distant when, under the auspices of his hon. and learned Friend the Attorney General and the present Government, the task would be undertaken, and it would then be found that the Reports of the Statute Law Commissioners, together with the expurgation of the statutes—pointing out all the parts of every statute which were repealed or expiring—a work now nearly completed, had rendered the duty of consolidation comparatively easy. Neither the Statute Law Commissioners, nor the late Government, nor the preceding Government, were open to censure on the ground that more had not already been accomplished, for Bills, eight in number, comprising a consolidation of the whole Criminal Statute Law of England, had been prepared under the administration of the noble Lord opposite (Viscount Palmerston) and notice after notice was placed upon the Votes by the Solicitor General of his intention to submit those measures to the House. When the late Government acceded to office he (Sir Fitzroy Kelly) undertook to bring forward the same Bills with some alterations and amendments, but the pressure of other business—particularly the India Bill—rendered it impossible for him to call the attention of the House to the subject last year. He had endeavoured to bring forward this question this year, but it was intimated in a short debate on the subject, that it would be desirable to assimilate the law of England and Ireland, and that important task was undertaken by his right hon. and learned Friend the late Attorney General for Ireland, with the assistance of the late Lord Chancellor of Ireland, and other learned persons in that country. After much difficulty and labour they had succeeded in combining in one set of Bills, eight or nine in number, in which they had coupled with a complete consolidation of the criminal statute law of the two countries, all the Amendments which were likely to receive the approbation of the House. These measures had now been submitted to the House by his right hon. and learned Friend, not with any idea that he, no longer a Member of the Government, could carry them through the House, but in order that the House might see that the subject had not been overlooked, and that they might be able to understand the scheme of consolidation emanating originally with the Statute Law Commission, and which was now adopted by many of the most eminent and learned lawyers and statesmen in this country and in Ireland. When these Bills had been duly considered by the House and by the Government, he hoped they would hear from some Member of the Administration whether this important undertaking—the consolidation of the Statute Law—was to be entirely and for ever abandoned, or was to be at last attempted upon principles which he hoped would receive the sanction of the House and the approbation of the public. He would only say in conclusion that his humble services were entirely at the command of the Government in any endeavours that might be made for the attainment of an object so much to be desired, and he would further express his entire conviction that if his hon. and learned Friends opposite, supported by the Government, would apply their minds to this great task, they would succeed in accomplishing it to the satisfaction of Parliament and of the country.

THE SOLICITOR GENERAL

said, he had heard with surprise the statement which had fallen from his hon. and learned Friend the Member for Wallingford, that it was impossible to consolidate the statute law. He should indeed deeply regret if the House were led to acquiesce in that opinion. He for one could not bring himself to believe that it was impossible to do that in this country which had been done in other countries. He would now put the Code Napoleon and the Roman Law out of the question, as the parallel was not complete those works of codification having been effected under the direction of absolute Governments; but he would remind the hon. and learned Gentleman that the task which he pronounced to be impossible had been actually and most successfully accomplished by the Legislature of New York. The question really was as to the best mode of proceeding under the circumstances. This discussion arose upon the introduction by his right hon. Friend opposite of Bills which, as he understood, were intended to assimilate the statute laws of England and of Ireland. He was of opinion that the time had come when the statute law, and especially the criminal law, of the two countries should be as much as possible assimi- lated. The Statute Law Commission had, he thought, been rather hardly dealt with by his hon. Friend the Member for East Surrey. The Statute Law Commission had gone on this principle,—that the consolidation of the criminal law should in the first instance be proceeded with in Parliament, and that if the effort was successful, then they should proceed with the consolidation of the whole law. In pursuance of this view, Bills were introduced, and passed the House of Lords, and he believed those Bills would have passed through that House also had not a change of Government taken place, which for the time put an end to legislation on the subject. Those Bills, however, only consolidated the Criminal Law of England with a partial consolidation of the Irish and Scotch law. And on the change of Government the matter fell into the hands of hon. Gentlemen opposite, who had expanded it into an attempt to assimilate the whole law of England and Ireland. He believed, however, that great difficulties would he in the way of an assimilation of the statute law of both countries without previous separate consolidation being carried out. He concurred with his hon. and learned Friend the Attorney General, however, in giving his best wishes to the object which the right hon. Gentleman had in view. He also agreed with him in thinking that consolidation of the whole statute law would never be properly effected till there was a department—either a Minister of Justice, or some other functionary or functionaries —which could devote themselves exclusively to accomplishing the task. The proposal for such a department came from the late Lord Chancellor of Ireland (Mr. Napier), and it was received with favour on both sides of the House. It was therefore hardly fair on the part of his hon. and learned Friend opposite to tell the Attorney General that in recommending such a department he was riding a hobby of his own. If there was a hobby, it was that of the late Chancellor of Ireland, taken up, however, and approved by the whole House, which had at the instance of that learned person voted an address to the Crown for the creation of such a department. He had only to say that, in so far as he was concerned, it would be his care to promote as much as lay in his power the object which his right hon. Friend (Mr. Whiteside) had in view.

MR. M'MAHON

said, he must protest against the system of increasing the pa- tronage of the Crown in respect of the administration of justice; and he regretted to say that it had increased, was increasing, and ought to he diminished. They had been paying the Statute Law Commissioners very large sums, and all that they had in return were certain Bills which were so badly drawn, that he doubted whether any law officer of the Crown who had read them would venture to stand up in their defence. He had read them carefully and was prepared to say they were indefensible. The Bill on libels, for instance, must have been prepared by some young gentleman whose notions of the criminal law were so confused that nobody on either side of the Channel could make head or tail of his work. The money spent on that Commission had been thrown away. He (Mr. M'Mahon) believed that if the law officers had entrusted the task to persons chosen by themselves, and on their own responsibility, the results would be infinitely more satisfactory. He hoped, too, the Reform Bill of the Government would begin by abolishing all previous acts relating to the representation, and would embody in itself the whole law on the subject; that would be setting a good example in the way of law reform. In this way they would soon have a consolidation of the Statute Law. Reference had been made to the Roman law; but though it was quite clear that the Institutes themselves were the reverse of bulky, the Commentaries on those Institutes would fill twenty waggons. The same might be said of the French Code and its Commentaries. The English digests were not one whit larger than those of any other country; and in proof of that he need only refer to the works of Viner or Bacon. As for the Code of New York, the House must remember that that code was not carried without a dissolution of society. ("Oh, oh!") Yes; both houses of the Legislature were virtually abolished, and the State had to resort to a convention—a step which it was not likely this country would ever be persuaded to take. Nor, indeed, was it necessary; for it was quite as easy in England to ascertain what was the law upon any point as it was in any other part of the world. As for the proposal to create a Department of Justice, there was surely machinery sufficient in the law officers of the Crown and the five ex-Chancellors. It might be said that the latter would not do the work, but if so, they ought to be made to do it. He trusted the House would at all events scout the proposition of a Minister of Justice; for such an official was only known in France and in some other countries where not law, but caprice, prevailed.

MR. WHITE SIDE

said, that in reply to the observations which had fallen from the Attorney General and other hon. and learned Gentlemen, wished to state that the number of statutes which these twelve Bills would get rid of was 264. The Bills had been drawn up by four experienced barristers; submitted to Mr. Justice Hayes, whose book on criminal law showed that his knowledge of the subject was second to that of no other learned Judge on the bench; afterwards examined by the Lord Chancellor of Ireland, and finally sanctioned by the Cabinet, by whom the principles they asserted had been most carefully considered. He believed that several of the alterations proposed by those Bills raised questions which it was essential for the Cabinet to consider—as, for instance, whether the punishment of death should be abolished in all cases but treason and the premeditated taking of life, casting aside the distinction between actual and constructive malice, and whether the criminal code of the two countries ought to be assimilated. If Bills such as those came down to Parliament with the approval of the Cabinet, he could not see what there was to prevent the two Houses from dealing with them. The Attorney General said, "Wait till we have a Department of Justice;" but he (Mr. Whiteside) ventured to predict that the Government would find much difficulty in carrying through the House the fiscal details which the establishment of such a department would necessitate. There were able lawyers in both Houses to consider Bills such as these; and in his own opinion the work would never be done except on the authority of a Cabinet. The law officers of the Crown possessed ample ability to direct them in the improvement of this measure, and it would redound to the credit of their administration if they could carry into effect a measure for the amelioration and consolidation of the laws of the two countries. [The ATTORNEY GENERAL: It was his desire to do so.] But the speech which they had heard rather went to show how difficult it was to do it, and how desirable it was to wait for the formation of some new department. He hoped that the country would soon have the advantage of a large, wise, and comprehensive measure.

MR. SLANEY

observed that great delays had taken place in the improvements proposed to be made in the criminal laws of the two countries, owing to the late frequent changes of Government. They had received, however, a practical illustration of a great improvement in the laws relating to the landed interest in Ireland, by the establishment of the Court for the Sale of Incumbered Estates. He did not see why, pending the passing of some more extensive measure, a similar institution should not be established in England, not, of course, compulsory, but depending upon the wishes of the applicants. He had no doubt but that the interests of individuals would induce them to adopt the plan of obtaining indefeasible titles to their estates.

MR. WALPOLE

said, he did not wish to prolong the discussion, but he must say he thought if hon. Members were really desirous of arriving at a just and sound conclusion, with regard to either the codification or the consolidation of the law, they would not facilitate the attaining that object by bringing into one matter which had been clearly submitted to them dozens of others which were not immediately connected with it. The right hon. and learned Member for Dublin University (Mr. Whiteside) had taken great pains with this subject, and as he (Mr. Walpole) was perfectly acquainted with all that the right hon. and learned Member had done upon it, assisted by his hon. and learned Friend the Attorney General for England, he (Mr. Walpole) would venture to press upon the attention of Her Majesty's Government the consideration of what he believed to be a sound, safe, and practical scheme for the solution of the difficulty as far as the consolidation of the criminal law of England and Ireland was concerned. The first question which had occupied the attention of the late Government with reference to this subject was whether the law between the two countries should be assimilated or not, and it was agreed on all hands that it should be. The second question was whether the law could be amended and ameliorated, especially with reference to capital punishment. Upon that subject also there was an unanimous opinion in the affirmative. The third was the knotty question with reference to the law for conspiracy to murder, whether the laws on this subject of the two countries could be put on the same footing. It was also acknowledged that this ought to be done. Having come to these conclusions, the Government next considered whether the law of England and Ireland could be placed together in one set of Statutes, so that Parliament might adopt them without any reference to Commissions on a department of justice. They thought that possibly that could be done. His right hon. and learned Friend had therefore prepared five or six Bills for the assimilation, amelioration, and consolidation of the criminal law of the two countries, England and Ireland, and when they had the responsibility of one Government having recommended a measure of that description which was a part only of the great Question of the consolidation of the law, he (Mr. Walpole) would ask whether they wanted anything more than the responsibility of another Government in confirming and adopting it. It was incumbent upon the hon. and learned Attorney General, than whom no one was more competent, to examine the criminal law in England and Ireland, as proposed to be consolidated, and see whether the laws of the two countries could not be assimilated in this respect. If he thought they could, he (Mr. Walpole) would advise his hon. and learned Friend, if he would allow him to tender the advice, to take up the subject at once, to consult criminal lawyers, in whom he had confidence, to see whether the Bills would really ameliorate and consolidate the laws of the two countries, and then to state how far or with what amendments he would be prepared to accept them. If he proceeded with the measures he would meet with all possible support on that the Opposition side of the House. They would then have stated in one set of statutes the settled law of the country. The present, at any rate, was a good beginning, and he (Mr. Walpole) conceived that by this means they would be better able to arrive at a satisfactory conclusion than by talking about Departments and Ministers of Justice, or handing the matter over to Committees and Commissions.

MR. W. WILLIAMS

observed, that there were now five retired Lord Chancellors who, he felt persuaded, would be ready to lend their aid to the solution of this question, instead of throwing all the work into the hands of the present Lord Chancellor. Then there was the late Lord Chancellor of Ireland, than whom it would be impossible to find a better man for the purpose, whether his industry or his learning were considered. He begged to offer these sug- gestions for the consideration of these learned persons.

Leave given.

Bills to consolidate, assimilate, and amend the Statute Law of England and Ireland, with respect to the Administration of Justice in Criminal Cases, ordered to be brought in by Mr. WHITESIDE, Sir FITZROY KELLY, and Mr. WALPOLE.

Bills presented and read 1°; to be read 2° on Thursday, 14th July.