§ SIR FITZROY KELLY
said, he rose to call the attention of the House to the question of the Consolidation of the Statutes; and to ask Mr. Attorney General, Whether it is the intention of the Government to proceed with the Consolidation Bills prepared under the direction of the late Statute Law Commission? The present state of the question, and the little that remained to be done, would be best understood by the House if he gave a 1527 short account of the consolidation of the statutes, and what had already been effected. For more than two centuries the subject had occupied the attention of legislators, lawyers, and statesmen; but nothing was effected in the way of legislation until the year 1826, when the late Sir Robert Peel, with the aid of Lord Tenterden, succeeded, although in a limited and imperfect manner, in consolidating the statutes relating to the criminal law. Political events for some time interrupted the course of legislation, but in the year 1833 the first Statute Law Commission—emanating from Lord Brougham, the great law reformer of the day, and who then held the seals—was appointed to consider the state of the statute law, and more especially the criminal law, and to submit to His Majesty a scheme by which that law could be consolidated. Between 1833 and 1852 inclusive no less than seven commissions were directed to some of the most experienced judges and lawyers of the day. Thirteen reports and numerous Bills, schemes and plans, were submitted to the Government from time to time; but inasmuch as all these schemes involved, not only the consolidation of the statutes and the amendment of the statute law, but also the impracticable task of the codification of the entire common law of England, the commissioners failed in their efforts. In 1852, under the auspices of Lord St. Leonards, Mr. Greaves and Mr. Lonsdale were instructed to submit a Bill to Parliament, not only for the consolidation and amendment, but also, to some extent, for the codification of the criminal law. A Bill was prepared; but when it came to be submitted to a Committee of the house of lords, so large and extensive were its objects, and so many and so great the difficulties that beset the first step in the undertaking, that after some seven or eight days had been spent by the Law Lords, no more than three clauses of that Bill, which contained 1,000 provisions, were agreed to; and even with regard to these three clauses, considerable difference of opinion existed. Every scheme having failed, in 1854 Lord Cranworth, who then held the seals—and whom he could not name in connection with the subject without paying him the tribute of saying, that if the statute law of this country should ever be consolidated, more praise must be ascribed to that noble and learned Lord than to any other individual in the community—brought 1528 into existence the Statute Law Commission. In 1856 the first real and effective steps were taken towards consolidation on a plan submitted to the Commission. It was found that the whole of the 40 volumes of statutes at large—each volume containing, on an average, not less than 1,000 closely-printed pages, and comprising altogether between 40,000 and 50,000 statutes—might, by a proper system of consolidation, be reduced to somewhere about four volumes, and that the 40,000 or 50,000 statutes might be reduced to some 200 or 300 in number, each statute being confined to a single subject, and embracing within itself all that pertained to that subject. In order to satisfy the Government of the day and the public that the task might be accomplished, the attempt was first made in relation to the criminal statute law. In 1856, with the assistance of Lord Chief Justice Jervis, Lord Wensleydale, and Mr. Greaves, the whole of the criminal law of England was consolidated and comprised within seven Bills which it was proposed to submit to Parliament. These Bills afforded a fair specimen of what could be effected in the way of consolidation. They were, however, too late to be laid before Parliament that Session. In 1857 they were brought into the House of Lords by Lord Cranworth. They underwent the consideration, and he thought he might say the severe criticism, of a Select Committee of the House of Lords. These Bills passed the House of Lords with some Amendments, and came down to the House of Commons in the course of that Session. Political questions, however, of greater moment, which had been so often fatal to the consolidation of the law, effectually prevented any further steps being taken at that time. Parliament was dissolved in the course of that Session, and when it re-assembled there were too many other matters demanding attention to permit of any further progress being made that year towards consolidation. In 1858 the Bills were again submitted to the House of Lords. In that year there was a change of Government, and it was found impossible to pass the Bills, even through their first effective stage in that House. A great deal however was done in 1858. The Statute Law Commission, satisfied with the success of the attempt to consolidate the criminal statute law, proceeded with the assistance of competent professors of 1529 the law, to frame several other Bills, which they were prepared to submit to Parliament. Another event occurred in 1858 of the greatest importance in connection with the subject. The attention of his right hon. and learned Friend (Mr. Whiteside) having been directed to the subject, he was induced to undertake the assimilation of the criminal statute law of England and Ireland. He took counsel with the then Lord Chancellor of Ireland (Mr. Napier); and although it was found impossible to make any progress in 1858, yet at an early period of 1859 his right hon. and learned Friend, and those who assisted him, were prepared with a series of Amendments to the Bills, which had been almost perfected in England, by which the ciriminal statute law of the two countries was united and assimilated, and in effect, therefore, made to form a complete consolidation. In 1859 a dissolution of Parliament took place, and when Parliament reassembled it was impossible to do more than lay the measure on the table of the House. During 1860 these Bills were considered and revised, and in some respects amended by the present Government; and here, again, he could not but offer his humble tribute of praise to the noble Lord who now held the Great Seal, who, from the moment the question of consolidation was submitted to him, had done all that one man could do to aid in that great work. Those Bills, having passed through the house of lords, afterwards passed through the Lower House, and the statute law of England and Ireland thus united and assimilated became a portion of the consolidated statute law of the realm. What had been been done with the criminal statute law of England and Ireland might likewise be done with the other statutes of both countries. While all our criminal law had been thus consolidated in seven statutes, each upon one single branch of that law, but each embracing all the statutory provisions in respect of that one branch, we had nevertheless the law thus consolidated still dispersed through the statute-book in no less than 106 different Acts of Parliament. But how slight was the effect produced, and how almost useless were the efforts bestowed upon the matter, would be understood when he informed the House, that if any gentleman were to-morrow, upon becoming a Member of Parliament, a Barrister, or a Magistrate, to purchase the Statutes at large, he would probably have to pay a sum of 40 guineas 1530 for about 42 volumes, containing, among the rest, the 106 statutes which had been repealed. It was obvious, before any consolidation of the law could be really effected, that some analysis of the whole of the statute law should take place—that some complete and accurate index should be framed, pointing out what statutes, and parts of statutes, were still in force and what had been repealed. Accordingly, two gentlemen, Mr. Wood and Mr. Riley, with some assistance, were instructed to prepare an expurgatorial index of the statutes, beginning with the year 1858 and going backward, taking the Acts of Parliament as they had been passed Session by Session, and arranging their provisions so as to show at one view what statutes were in force, what were repealed, what had expired, or become obsolete. It might interest the House to know that that work had been carried back to the year 1800, the time of the Union between England and Ireland, and that the statutes passed between 1800 and 1858 occupied 23 out of 12 volumes, and that (with the exception of local Acts) they were to be found in extenso in 6,887 Acts of Parliament. Therefore any one washing to possess a moderate law library would have to pay a large price and to encumber himself with a load of nearly 7,000 statutes. He would now state what number of them were in force. Out of 6,887 statutes 3,371 were still wholly or in part, but many of them only in part, operative, and 3,516, or more than half to be found in extenso in every edition of the statutes at large, were absolutely waste paper. If those statutes were still further expurgated, and if the work recommended by the Statute Law Commission were proceeded with in a proper manner, it was manifest that those twenty-three volumes might be reduced to three; and those three, smaller in bulk than any of the twenty-three which now existed, would comprise the whole of the operative statute law of the kingdom, from the year 1800 to the present time. Although the Government had not proceeded with the Bills prepared by the Statute Law Commission, they had availed themselves largely of the expurgatorial index upon which Mr. Wood was engaged. In the last Session they had not only passed the Criminal Consolidation Acts, but they had passed one single Act, which by a clause of four or five lines repealed no less than 1,000 old Acts 1531 of Parliament passed at various times, and many of which, though not before repealed, had become entirely obsolete. But the statute-book still remained the same, still consisted of forty-two volumes, still contained those Acts in extenso; and it became necessary for persons who wished to know the state of the law to find their way through forty-two volumes, and by the aid of the Repealing Act to see what laws were repealed and what were still in force. Now, if he were to stop there and put it to his hon. and learned Friend the Attorney General whether it was fit that the Government, having done so much, should hold their hands and do no more, the House would expect some insuperable difficulties to be suggested to justify the delay which had occurred in proceeding with this work. But he must remind his hon. and learned Friend that under the same auspices and sanctioned by the same authority which had justified the submission to Parliament of the seven consolidated statutes, no less than ninety Bills were now in existence requiring only the revision of some competent person to bring them into such a condition that they might be fearlessly laid by any lawyer upon the table of that House. During the time that the Statute Law Commission was in existence, from the beginning of 1856 to the end of 1859, in addition to the Criminal Acts of Parliament, those ninety Bills were framed upon almost all the most important subjects affecting the community. Were there any such formidable obstacles now existing as would prevent those Bills from being proceeded with, and thus having a great and important progress made in the consolidation of the statute law? If those ninety Bills were passed, that circumstance, taken in conjunction with what had been already done in the way of consolidation and repeal, would enable the statute book to be reduced from forty-two volumes to at most seven or eight. He was aware of the difficulty arising out of the question as to what tribunal or authority should be selected for the execution of the task; but if the creation of a Minister of Justice should be thought doubtful or impracticable, a Board, consisting of three or four lawyers of eminence, might be appointed to undertake the revision of those ninety Bills, and then to proceed to the consolidation of the remaining part of the statute law. 1532 If expense were suggested as an objection to the adoption of such a system, he might mention that a calculation had been made showing that, were the suggestion of the Commissioners adopted with regard to the framing of Bills, no less than £ 60,000 a year might, in all probability, be saved in printing in relation to Bills and Acts of Parliament. He would, therefore, solicit the attention of Her Majesty's Attorney General to the expediency of giving effect to what had already been done in respect to the expurgatorial index of Mr. Wood and his colleague, and of proceeding with it and carrying it back at least to the time of Elizabeth or Henry VIII. He also wished to entreat the attention of his hon. and learned Friend the Attorney General to the ninety Bills already in existence. In conclusion, he would call the attention of the House and the Government to the last Report made to Her Majesty by the Statute Law Commission, in which it was stated—The time in which the whole work may be completed must depend on the number of hands employed; but assuming, as our experience enables us to do, that ten or twelve gentlemen may be constantly employed, we think it fair to anticipate that the whole work may be completed in about three years; and if at the end of that time we are able to present to your Majesty the whole of the Statutes coming under the class of General Laws, filling only about three volumes, but comprising all, or nearly all, the Statutes of a general nature now scattered in about forty volumes, we venture to think that our labours will not have been in vain.That Report was signed by Lords Stanley, Lyndhurst, Cranworth, and Wensleydale, Mr. Fitzgerald, now a Judge in Ireland, and various other eminent persons. He would rejoice to hear that Her Majesty's Government were disposed to persevere in the good work in which they had already made such progress.
§ MR. LOCKE
said, it was extremely gratifying to hear from his hon. and learned Friend that the work of consolidation was, in point of fact, all but completed. The largest result, in the opinion of his hon. and learned Friend, the Member for Suffolk, that could possibly be expected was the reduction of the volumes of the statute law to four; and it appeared that owing to the labours already bestowed upon the work the number might be reduced to seven, as no less than ninety Bills were in existence, consolidating all the existing Acts upon as many different subject. It cer- 1533 tainly seemed very extraordinary that those ninety Bills, prepared at such a great expense, should have been for so long a time allowed to remain in abeyance. In point of fact, if Her Majesty's Government were only to avail themselves of what was already made to hand, the laws of the land were consolidated. He begged to ask his learned Friend the Attorney General whether he intended so vast a mine of wealth to remain useless to the country? With respect to what had been accomplished during the last Session, he found from his own experience that the work was not quite so beneficial as his hon. and learned Friend opposite seemed to imagine. He referred to the cousolidation of the criminal law which then took place; or, in other words, to the consolidation of what was known as Peel's Acts, and certain Irish Acts, with portions of other Acts. The consolidation of parts of Acts was a most objectionable mode of procedure, because, as was natural to suppose, every one having anything to do with criminal statutes would infinitely prefer having to consult only one Act of Parliament instead of two. He would take, for instance, the 14 & 15 Vict., c. 100—one of Lord Campbell's Acts. Suppose it became necessary to refer to that Act, it would also be necessary to refer to the Criminal Statutes Repeal Act of last Session to ascertain whether any particular section in Lord Campbell's Act had been repealed in whole or in part, or not repealed at all. Lord Campbell's Act contained thirty-two sections, of which nine were wholly repealed, two partly repealed, and the rest left altogether un-repealed. As had already been admitted by the hon. and learned Attorney General, it would be requisite to introduce another Bill upon the subject of criminal law consolidation—namely, a Procedure Bill. His main object, however, was to impress upon his hon. and learned Friend the necessity of utilizing the ninety Bills already in existence. If the whole of them could not at once be passed into law, at least a selection could be made, and even then most valuable results would be attained.
THE ATTORNEY GENERAL
said, that he need not follow his hon. and learned Friend through the history he had given of statute law consolidation for the last thirty years; but if he were to do so, he should not be at variance with him. 1534 He entirely agreed in what had been said as to the importance of the expurgation and abridgment of the statute-book. He was happy to add, that for the purpose of carrying forward and finally accomplishing that most desirable work, persons of skill, and whose ability had been tested—he meant Mr. "Wood and his colleague, Mr. Reilly—had been for some time past busily and zealously, and he had no doubt efficiently, continuing their labours. The Statute Law Commission, as the House were aware, was appointed in 1854. It proceeded with its work during the following years down to 1859. It engaged the assistance of gentlemen of experience in drawing bills, and these gentlemen, of course, required payment for their services. Session after session, a Vote was taken for the Statute Law Commission; but in 1859, the present Government being then in power, Lord Campbell announced in the House of Lords that it was not intended further to continue the commission: and the usual Vote, subsequently brought forward by accident, was opposed and negatived. Of course, the funds failing, the Commission fell to the ground. Mr. Wood and Mr. Reilly, who had been engaged in the preparation of that most admirable register to which allusion had been made by his hon. and learned Friend, were, however, instructed by the Government to proceed, and to take the proper steps for bringing out an expurgated edition of the statutes, containing only the acts in force, and omitting such as were only of a local and personal nature. The register of obsolete Acts had no doubt been found of great value in the preparation of the Repeal Act of last Session (the first of an intended series), which, on that account, had gone upwards from its date, instead of commencing with the earliest portion of the statute-book. But the register went no further back than to the commencement of the present century, and only included Acts of whose repeal there could be no doubt. The Repeal Act referred to occupied the same period as the register, but it proceeded thirty years higher up; and by that single enactment nearly a thousand Acts or parts of Acts had been rescinded, which, though manifestly obsolete, had not till then been formally repealed. There was a class of Acts which could not find its way into the Register, but which must be taken cognizance of for the purposes of the expur- 1535 gated edition, inasmuch as they could not be said to be without legal force, although they might have grown somewhat inapplicable and obsolete. These Acts, which required to be repealed by Act of Parliament to make it perfectly clear that they no longer formed part of the statute-book, were—Acts repealed in general terms; Acts virtually repealed, as where an earlier enactment was inconsistent with or rendered nugatory by a later one; superseded Acts, as where a later enactment was to the same effect as an earlier one; and Acts which had become obsolete, either because the state of things contemplated by the enactment had ceased to exist, or because the enactment was of such a nature as to be no longer capable of being enforced. These were the classes of Acts with which the gentlemen whom he had mentioned had to deal, and, as he had said, an Act had been already passed whereby about 1,000 of these spent, repealed, and obsolete statutes were removed from the statute-book. The learned gentlemen who were engaged in that important work were continuing their labours. Another Bill had been laid on the table of the other House of Parliament towards the close of the last Session, carrying the work of expurgation from the earliest period to the end of the reign of Edward III. The Bill was not on that occasion further proceeded with; but it had been again taken up, and would be immediately continued to the end of the reign of Henry VII. A Bill so extended would, he hoped, become law during the present Session The two volumes which contained the statutes of that period consisted of 1,092 pages; of these the forthcoming Bill would repeal 476, leaving 616, of which there would be excluded from the expurgated edition about 347, leaving to be printed only 269. He had received a communication from these two gentlemen stating their belief that an equal or greater reduction might be made in the reign of Henry VIII and subsequent reigns. In that manner an effectual expurgation of the statutes would be accomplished. Thus far he believed he was in perfect accord with his hon. and learned Friend. But his hon. and learned Friend had further asked, whether it was the intention of the Government to proceed with the statutes prepared under the direction of the late Statute Law Commission. He presumed that his hon. and learned Friend was referring to the ninety 1536 Bills which were prepared under the direction of the Commission. Now, he found, on reference to the last report of the Commission, dated in February 1859, a statement that the Bills had been prepared before the Commissioners had the advantage of the register which had been prepared. In consequence of that, they reported that some further change might be necessary; but they considered that some of the Bills were in a state in which they might properly be submitted to Parliament. Four of them, if he remembered rightly, had been laid on the table of the House of Lords; but in introducing them Lord Cranworth said, that they were produced merely as specimens, and not for the purpose of being passed through the House. Now he had seen the Bills, and whilst he would be the last man to disparage the labours of the Commission or of the learned gentlemen employed by it, he trusted he should not be misunderstood when he said, that the bulk of the Bills, he might say the Bills generally, were not in a condition to be laid before Parliament. He had no doubt that these bills contained a great mass of matter which would prove very valuable; and besides the construction of the Register, which was a very useful work, he believed none of the labours of the Commission would be unattended with advantage; but it was not the present intention of the Government to proceed with the Bills as they stood. He trusted, however, that they might see the work of expurgating the statute-book speedily accomplished.