Commons Sitting of 22 July 1863

MINUTES.
PUBLIC BILLS—Second Reading—British Columbia Boundaries (Lords) [Bill 187]; Rum Duty [Bill 256].
Report of Select Committee—Church Building and Now Parishes Acts Amendment Bill,Special Report[No. 482].
Committee—Statute Law Revision (Lords) [Bill 233]; Colonial Acts Confirmation (Lords)[Bill 250]; Consolidated Fund Appropriation; Augmentation of Benefices (Lords)[Bill 134]—R.P.
Report—Church Building and New Parishes Acts Amendment (No. 483) [Bill 260]; Statute Law Revision; Colonial Acts Confirmation; Consolidated Fund Appropriation.
Third Reading—Land Tax Commissioners' Names [Bill 239], and passed.

PRIVATE BUSINESS—STANDING ORDERS 197 AND 227.
MR. MASSEY MR. MASSEY moved, that Standing Orders 197 and 227 be suspended for the remainder of the Session.
Ordered,
That Standing Orders 197 and 227 be suspended for the remainder of the Session.
Ordered,
That, as regards Private Bills already returned by the House of Lords with Amendments, such Amendments be considered To-morrow.
Ordered,
That when it is intended to propose any Amendments thereto, a Copy of such Amendments shall be deposited in the Private Bill Office, and Notice thereof given this day.
Ordered,
That, as regards Private Bills to be returned by the House of Lords with Amendments, such Amendments be considered on the next sitting of the House after the day on which the Bill shall have been returned from the Lords.
Ordered,
That when it is intended to propose any Amendments thereto, a Copy of such Amendments shall be deposited in the Private Bill Office, and Notice thereof given on the day on which the Bill shall have been returned from the Lords.—(Mr. Massey.)

CONVICT ESTABLISHMENTS.

  QUESTION.
  MR. WALTERsaid, he wished to ask the Secretary of State for the Home Department a Question relative to a matter which had been much discussed in the county which he had the honour to represent. It appeared that at the last Summer Assizes in Berkshire a batch of prisoners were sentenced to penal servitude, and for some reason or other they had been detained in Reading Gaol up to a very few weeks of the present time, instead of being draughted off to the convict establishments. He believed that the usual practice of the Government was, when those establishments were overcrowded, to make an allowance of 4s. a week for the maintenance and lodging of every convict under sentence of penal sentence detained in other prisons; and the Berkshire magistrates felt aggrieved at being charged with these convicts beyond such a reasonable period as was necessary to provide for their removal. A bill for £200, on account of their maintenance and lodging, was sent to the Treasury; but as the Treasury declined to pay the bill, a good deal of correspondence ensued, and he undertook last year to ask a Question on the subject and elicit an answer. The Question, therefore, which he now desired to put to the right hon. Baronet was, Whether prisoners under sentence of penal servitude are liable to be detained, at the pleasure of the Home Office, for an indefinite period in the county gaols, without adequate compensation being made to the ratepayers of such counties for their maintenance and lodging during such period?
  SIR GEORGE GREYsaid, in reply, that the practice was to remove all convicts sentenced to penal servitude at the Assizes or Quarter Sessions to the Convict Establishments especially prepared for that class of prisoners; but of course their removal must depend on the fact of there being room in the Convict Establishments. Unfortunately, an increase of crime took place throughout England in the course of last year, causing great difficulty in the speedy removal of these prisoners, and leading, no doubt, to serious inconvenience in many cases. Arrangements, however, were now made to provide more cells in several of the Convict Establishments, and he hoped that the inconvenience which had been experienced would be in future

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  prevented thereby. He thought it should be a subject of consideration, when convicts of the class referred to were detained in county and borough prisons for an unusually long time, whether there ought not to be some additional allowance made on their account; but he trusted the inconvenience would not occur again.

CATHOLIC REFORMATORY, LEICESTERSHIRE—QUESTION.
MR. CAVEasked the Home Secretary, Whether his attention has been called to the disorganized state of the Roman Catholic Reformatory of St. Bernard's, Leicestershire, as described in successive reports of Her Majesty's Inspector of Reformatories, and especially in that for 1862, just laid upon the table of the House, and whether any steps have been taken to place the institution upon a satisfactory footing?
SIR GEORGE GREYsaid, he was sorry to say that the Report of the Inspector with respect to that Reformatory was so unsatisfactory that that officer had been instructed to inform the persons interested in the institution that no public money would be appropriated to it unless a complete change in its management should be effected. The Inspector had since reported that the institution had been placed under a new manager, and that new rules, which would provide for its better management, had been established. He (Sir George Grey) had directed the Inspector again to visit the institution in a short time in order to see whether those rules were carried out, and report its progress to the Home Office.

STATUTE LAW REVISION BILL (Lords).

  COMMITTEE.
  Order for Committee read.
  THE SOLICITOR GENERALsaid, that the Bill which he was about to ask the House to consider in Committee constituted a very important step in that course of improvement which had been contemplated for a length of time. The House must be aware that the revision of the statute law, with a view to the issue of an amended and expurgated edition, was a necessary preliminary to any general measure of consolidation. That had long been an object on which the House and the country had deemed it worth while to spend no inconsiderable amount of money. There had been two Commissions on the subject. The
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  first was issued a good many years back, and comprised several distinguished persons. It cost no less than about £37,000. Of course a mass of materials was collected by that Commission, but otherwise their Labours had no result, except the production of a Bill for the consolidation of the criminal law, which was not passed when first brought forward, but which partially supplied the foundation of the Act subsequently passed for that purpose. Another Commission was afterwards issued when Lord Cranworth was Lord Chancellor, which did not prove quite so expensive, although it cost £21,000. The fruits of the labours of the second Commission consisted of a digested register of statutes, from the eleventh year of George III. to the time at which the register was made. Upon that register a measure of undoubted utility was founded, and passed in 1861. The principle upon which the register was compiled was that of tracing backwards the statutes from the present time, and noting the direct and specific operation of subsequent on earlier enactments. Its advantage was limited therefore to pointing out the direct relation of one statute to another, but it did not indicate the indirect effect which statutes sometimes had on those of earlier date. The Act of 1861 was intended to accomplish the revision of the statute law from the eleventh year of George III., including all the statutes of the United Kingdom from the Union with Ireland downwards; but its usefulness was under the same limitation to which he had referred in regard to the register. The late Lord Campbell, when Lord Chancellor, and the noble Lord now on the Woolsack, when Attorney General, deemed it desirable that the system of revision should be extended, so as to take within its scope the indirect as well as the direct effect of statutes. The result was the Bill before the House, which gave effect to a revision of the legislation of Parliament from the reign of King Henry III. down to James II. All the Acts during that period which had expired, which had been exhausted in their operation, which had been repealed virtually, though not specifically, by succeeding enactments, or which had become obsolete, were now to be removed from the statute book. The House had been furnished with the notes of the two learned gentlemen who had conducted the revision, in order that it might know the grounds on which they included any Act, or any part of an Act,

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  in the schedule of the Bill. It must be manifest to the House, that if it desired to see so useful a work accomplished, it must give a certain amount of confidence to those who had been concerned in the preparation of the measure. Nothing could be more idle than a proposal to refer such a Bill to a Select Committee. The idea was, in fact, so absurd that no one had suggested it. [Mr. HENNESSY: I did.] He had not observed any such suggestion on the notice paper, and, with all deference to the hon. Member, he must repeat that it was a very idle one. The House might, of course, if it thought fit, refuse to advance at all in the direction of revising and expurgating the statute book; but it was impossible that the House could go through the work which the gentlemen who drew up the schedule had done. No Select Committee, unless composed of lawyers of great knowledge and ability, could undertake the task; and even if they sat continuously, it would take them years to go through the statute book. Lord St. Leonard's, who was well known to be at once as learned in the law as any man living, and as little likely to favour rash alterations, said in another place that the gentlemen employed in this matter had proved themselves to be trustworthy by their former services, and that Parliament ought to accept their work very much on trust. Lord Cranworth, Lord Brougham, Lord Chelmsford, and, in fact, all those in the other House best competent to judge had taken the same view. The gentlemen who had prepared the present schedule were also the authors of the register, and he had not heard, that during the time which had elapsed since their former labours were embodied in an Act, any error had been discovered in it. In fact, a more conscientious, scrupulous, and careful performance of the duty it was impossible to conceive. Whenever any doubt had been felt as to whether an enactment was or was not now operative in law, it had been retained; and the gentlemen engaged had from time to time referred such questions to the Lord Chancellor and the Law Officers of the Crown, who had given them attentive consideration, and shared the responsibility of the decision which was arrived at. The gentlemen to whose labours they owed the Bill now before the House—and it was as perfect a piece of work of its kind as could well be—were in good practice as barristers, and held a high reputation. They had been employed from October 1859 to
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  the present time, and during the whole of that period they had not received more than £3,125, which was a very small sum compared with the expenses of the previous Commission. The hon. Member for the King's County had placed on the notice paper Amendments to strike certain Acts out of the schedule, and he was very glad that an opportunity would thus be afforded of proving the merits of the measure by testing particular parts of it.
  Motion made, and Question proposed, "That Mr. Speaker do now leave the Chair."
  SIR FITZROY KELLYsaid, he concurred in much that had fallen from his hon. and learned Friend. Great credit was undoubtedly due to the Lord Chancellor and the other Members of the Government who were concerned for having taken so effectual a step in the performance of the great work of statute law revision. Without a measure, or rather a series of measures, dealing with the whole of the statute law from Magna Charta to the present time, it would be utterly impossible not only to effect a consolidation of the statutes, but even to take a single step towards a revised edition of them. By judicious consolidation the statute law, which now filled forty-three closely-printed folio volumes, might be reduced to four or five volumes, at the most, containing some 300 Acts, and that was obviously an object of great importance. His hon. and learned Friend had scarcely done justice to the second Statute Law Commission. Whatever had been done yet, or whatever might subsequently be done in the direction of the Bill, had emanated from the suggestions and plans of that Commission. He believed the House might safely place confidence in the labours of the gentlemen who had prepared the Bill, and pass it into law. He regretted, however, that in other respects the Government had neglected some of the most important of the recommendations of the Commissioners. The Act of 1861 extended from about the time of the eleventh year of George III. to 1868, and the present Bill from the death of Henry III. down to the beginning of the reign of James II. There was a gap of eighty or a hundred years between these periods, concerning the plans of the Government in regard to which he should have liked some information from his hon. and learned Friend. He would remind the House that any measure upon

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  this subject, to be effective, must not be limited to expurgation. If they attempted merely an index of the statutes, they would reduce the volumes to not more than thirty-five, instead of to four or five, and there would be the same confusion, contradiction, and uncertainty which existed at the present time. The statute book was full of anomalies and contradictions. From the time of Henry III. in almost any Act of Parliament might be found clauses on which arguments might be founded that they impliedly repealed some earlier enactment, and he might say that of the entire litigation of the country about a fourth was occasioned by the difficulty, and in some cases the impossibility, of determining what was and what was not impliedly repealed, in the statute law. Hence it was of great importance that expurgation should be extended to enactments which were impliedly as well as those which were expressly repealed. The present measure would reduce the statutes from forty-three to perhaps thirty volumes. [The SOLICITOR GENERAL: To eight!] He was glad to hear the remark of his hon. and learned Friend; but if the present measure would bring down the statute law to eight volumes, the further expurgation he had suggested would reduce them to three or four. Moreover, if they stopped there, they would leave untouched another grievance. At present the forty-three volumes of the statute book consisted perhaps of a million and a half separate enactments, scattered through them without order, distinction, or classification, and extending over 500 or 600 years. For instance, the enactments constituting the law of real property extended from the statute of Quia Emptores to the present time, ranging over a period of 550 years, and numbering between 600 and 800. That objectionable state of things would remain unremedied unless consolidation proceeded along with expurgation. Much confusion and perplexity were caused by the way in which clauses were inserted in Acts with which they had no rational connection. In one of the statutes of George II. there was to be found a provision for imposing a tax upon windows, and almost in the very same sentence (there was no punctuation) a provision that in all the statutes which should be thereafter passed relating to England and Wales, Berwick-on-Tweed should be included unless expressly excluded. Who would expect to find in a window Act an important general provision
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  of that kind? Again, in a statute of George III. there was in one and the same clause a provision for repressing thieving and rapine on the borders of Scotland, and one prohibiting the sale of certain wines without a special licence, and another for regulating the prosecution of offenders. If the consolidation of the statutes proceeded simultaneously with their expurgation, all such anomalies would be removed, and by the time the work was completed the statutes would be only about three hundred in number, each comprising the whole of the statute law on the particular subject to which it related. He hoped, therefore, that the Government would see the propriety of proceeding with it, according to the plan of the Statute Law Commission.
  MR. HENNESSYsaid, he agreed with the hon. and learned Gentleman that the introduction of only a few Amendments would have the effect of preventing the passing of the Bill during the present Session. There were several Amendments which had only to be suggested to induce the House to postpone the consideration of the Bill till next year. It had been said that they must take the Bill upon trust, and the Solicitor General had alluded to the eminent men who had given it the sanction of their approval in another place. As a reply to that argument, if it could be called such, he might recall to the recollection of hon. Members that only a Session or two ago he persuaded the House to reject a Bill on pleas and indictments which had been passed by the other branch of the Legislature. The House had been told that the present Bill, if passed, would do away with almost all the statute laws from Magna Charta to the end of the reign of James II. He found, however, on examining the schedule, that the Bill, if converted into an Act on the following day, would leave about 1,000 statutes unrepealed. One of the Acts left unrepealed was the 3Edward I., c. 2, which provided that a clerk convicted of felony should be delivered to the ordinary, and should not depart without purgation. Another was the 3Edward I., c. 6, which enacted that a villein saving his wainage should have amercement.
  THE SOLICITOR GENERALsaid, that the statutes in question were expressly repealed by one of Sir Robert Peel's Acts.
  MR. HENNESSYasked by which of them.
  THE SOLICITOR GENERALsaid, he did not carry the statute book in his head, but the fact was as he had stated it.
  MR. HENNESSYsaid, he had objections to other parts of the Bill. It was proposed to sweep away old statutes, which had either been virtually repealed, or had become obsolete. One of the statutes said to be dealt with was the 28 Edward III., c. 11, with respect to which the framers of the Bill said, in a note, "It seems doubtful whether the repeal, which is of so much of a statute made in the 28th year of Edward III. as relates to making cry and fresh suit, and to hundreds and franchises being answerable as therein mentioned, covers so much as relates to inquests; but if not, it is considered this portion is either virtually repealed or is obsolete." The House were actually asked to pass a Bill which destroyed a statute that the framers themselves did not know for certain was either repealed or obsolete. Another Statute to be repealed was the 28 Edward III., c. 13, which might be called the Magna Charta of aliens and denizens in this country. The framers of the Bill said that statute was unnecessary; but it was cited almost every day in the courts of law—whenever, in fact, a question was raised as to a mixed jury. He thought that sample was of itself enough to condemn the whole Bill. There were a great many other statutes described in the Bill as obsolete or unnecessary, and consequently fit to be repealed, which were cited in the textbooks of Sugden, Archbold, and Broome as being in full force and vigour at the present moment. He observed that the framers of the Bill, misled by its title, proposed to repeal the 24 Henry VIII., c. 4. That Act was entitled "An Act concerning the sowing of flax and hemp;" but, as Lord St. Leonard's had pointed out, it was actually the statute on which the law of England depended as to the measurement of the statute acre. Of another Act which the Bill proposed to repeal, the same noble and learned Lord said, that though nearly obsolete, it was not quite so, and he mentioned a recent case within his own knowledge. Among the Acts to be repealed was the 12 Charles II., c. 24, which took away the court of wards and liveries, and tenures in capite and by knight's service and purveyance, and settled a revenue upon His Majesty in lieu thereof. Upon that provision of the Bill a very important question, involving the privileges of the House, arose. The framers of the Bill stated that the Act of Charles II. was referred to in the 1Will. IV., c. 51, as the Act on which the hereditary
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  duties on beer, ale, cider, and perry rested; that by section 2 of the Act of William the the collection of these hereditary duties was suspended during the life of that Sovereign, and by section 4 was to be revived on his demise; and, finally, that by the 1 & 2 Vict., c. 2, section 7, the collection of these duties was suspended during the continuance of that Act. It was thus proposed to entirely repeal a statute which was merely suspended until the demise of the Queen, and here was a Bill which affected the hereditary duties of the Crown, and yet which had not been introduced, as he maintained it ought to have been, in a Committee of the Whole House, but which had come down to them from the other House. A large portion of the Bill indeed, was devoted to the repeal of Acts relating to trade, and he would appeal to Mr. Speaker whether such a measure should not have been introduced in Committee. One Act granting important privileges to the traders of Kidderminster was to be swept from the Statute-book, and he contended that some notice ought to have been given to those so deeply concerned. Another Act to be repealed affected the corporate privileges of the City of London in connection with the Company of Fishmongers. The framers of the Bill said it was obsolete, but the Corporation of London, a sturdy stickler for its rights, would probably take a different view, and it was certainly a fact that in a recent case in which the Corporation was concerned one or more older statutes were quoted in a court of law. Again, it was proposed to repeal the 1Edward IV., c. 13, which the framers of the Bill described as an Act making "several grants to divers corporations, &c." That was a rather sweeping repeal; one did not know what it might imply. There were also several cases of doubt. In one instance the framers of the Bill, calling attention to an Act which gave authority to the Queen upon the avoidance of archbishoprics and bishoprics to take into her hands certain temporal possessions, said it was conceived that the power given was personal to Queen Elizabeth. The framers might happen to be wrong, and yet they proposed to repeal an Act relating to religion and the Royal prerogative, in which the Queen herself might take a lively interest. It was also proposed to repeal the 32 Henry VIII., c. 30, upon which the keeping of terms by law students in Ireland in great measure

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  depended. The only argument advanced in favour of the Bill was, that it would reduce the Statute-book from forty-three to eight or ten volumes; but he maintained, on the contrary, that the reduction would not exceed at most three volumes. A learned friend of his, on measuring the space covered by the backs of the forty-three volumes of statutes in his library, found thas it was exactly nine feet in length, and he calculated that if the Bill were passed, it would reduce those nine feet by six inches. Such a measure ought to be considered by a Select Committee, but it was too late for that at that period of the Session, and consequently he had no other course open to him than to move, as an Amendment, that the House should go into Committee on the Bill that day week. In the event of the Bill being brought forward next Session, which he supposed it would be, he should then feel it was his duty to move that it be sent to a Select Committee.
  Amendment proposed,
  To leave out from the word "That" to the end of the Question, in order to add the words "this House will, upon this day week, resolve itself into the said Committee,"—(MR. Hennessy,)
  —instead thereof.
  Question proposed, "That the words proposed to be left out stand part of the Question."
  SIR HUGH CAIRNSsaid, he quite agreed with the hon. and learned Member for the King's County that a Bill of that character and importance ought not to be accepted merely because it had been sanctioned by the authority of eminent names in another place, although that was a circumstance not to be overlooked; but, at the same time, he thought the House must see that such a measure must be taken to a great extent upon trust He did not propose to advert in detail to the examples which the hon. and learned Member had submitted as tests of the manner in which the framers of the Bill had done their work. Those tests would have to be considered when the House went into Committee on this Bill, and he thought it would be found that a satisfactory answer could be given to every one of the objections noted by the hon. Member. The hon. Member had fallen into an error as to the alleged effect of the Bill, if passed, in reducing the bulk of the statutes. This was only part of a far larger scheme. II was proposed to produce that, the want of
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  which had been a crying disgrace for many years—an expurgated edition of the statutes containing nothing but those Acts which were in force at the present time. No legislation was required with respect to Acts which had already been expressly repealed, but there was another class of enactments to be dealt with—those which had not been expressly repealed, but which had expired, become obsolete, or been repealed by implication. In 1861, without the aid of a Select Committee, an Act was passed, performing the office he had described upon all the statutes ranging from the 11 Geo. III., 1771, to 1860. The present Bill dealt with the period before the Revolution; and if it were carried, the only statutes remaining to be dealt with would be those enacted from 1688 to 1771. He believed the effect of the whole scheme would be to reduce the statute book from forty-three to somewhere about eight volumes, and, for his own part, he could not conceive a more desirable operation. The framers of the Bill deserved the confidence of the House. They were remarkable for accuracy and intelligence, and it was highly to their credit, that whereas about £50,000 had been expended on Statute Law Commissions, the work which led to the Act passed in 1861 and to the compilation of the present Bill had been done for £3,000 or £4,000. If in Committee it could be shown that there had been a want of accuracy in the performance of the work, that might be a good reason for reporting Progress, and not proceeding further with the measure that Session. But he believed that the work had been executed with great care, and that the criticisms of the hon. and learned Member for the King's County were not well founded. Indeed, the answer to some of that Gentleman's observations was apparent on the very face of the schedule. He hoped, then, that the House would go into Committee on the Bill, and allow some progress to be made in a work which had already been too long delayed.
  MR. HENLEYsaid, he agreed with the hon. and learned Member for Belfast as to the advantage of getting rid of all enactments properly coming under the definition contained in the preamble of the Bill. It was, however, most desirable that that operation should be carried out with accuracy and care; and he did not think it fair to call upon that branch of the legislature to deal with a measure of that magnitude

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  and importance, when it had been in their hands only nine days. The Acts passed in recent times did not so much turn upon great principles as those passed in the reigns of Henry VIII., Mary, and Elizabeth. The legislation of Henry VIII. was repealed by the legislation of Mary, and the Acts of Mary were again repealed by the Acts of Elizabeth; and the cross work of that period might touch very important matters connected with our laws. Those subjects required very delicate handling in a Bill like that before them. He was not competent to say whether there were any real blots in the measure, but he would ask what inconvenience there could be in postponing it, as far as that House was concerned, till the beginning of next Session. That would give time to those hon. Members who were capable of looking into those questions to ascertain whether this work had been satisfactorily done. That important Bill had been before the other branch of the Legislature nearly the whole of the Session, and now, within a very few days of the prorogation, that House was expected to take it upon trust, and told that any discussion or alteration of its provisions would be fatal to the whole measure. If in describing one hundred statutes as repealed a mistake was made as to any one, surely that mistake could not involve the remaining ninety-nine. It might be that the two Gentlemen mentioned by the hon. and learned Member for Belfast were well qualified for the task that had been intrusted to them, but human beings must always be liable to err; and it was important to bear in mind that in a matter of that kind accuracy was of greater importance than speed. If they should chance to expurgate any enactments which ought properly to be retained, and had afterwards to revive them by fresh legislation, the progress made would be more apparent than real. It was not pretended that the expurgated edition of the statutes was to be published in the next autumn; and therefore no inconvenience would result from delaying the Bill until another Session.
  MR. CLAYsaid, he must admit that the Bill had been a very short time in the House, but still there was such a general assent in favour of the measure, that unless some very grave objection were established, he thought they ought to go into Committee upon it. From its nature a measure of that kind must always be taken in a great degree upon trust, inasmuch as it was
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  pretty certain that very few Members of that House would ever undertake to examine and compare all its details. The hon. and learned Member for the King's County had shown, that although the Bill had not been long before them, there had been time enough afforded to hostile and ingenious critics for discovering in it inaccuracies if such inaccuracies really existed. But the Committee would supply the best opportunity of considering those points. The learned Members of that House were generally reproached with raising obstacles to law reform; and now that the highest legal authorities on both sides were agreed upon this Bill, it would be a pity if some progress were not made this Session in that necessary and useful work.
  MR. AYRTONsaid, he should be sorry to be regarded as an obstructor of legal reform, but he looked on the Bill before the House as the greatest obstacle to such reform that had been seen for a long time past. The Statute Law Commission had been eulogized that day; but general dissatisfaction had often been expressed against its constitution and proceedings by the House. Several years ago, when the hon. Member for West Surrey proposed that a compendious edition of the statutes in vigour should forthwith be prepared and printed at the public expense, the Statute Law Commission was always able to defeat that proposal. In 1859 the controversy with that body was brought to a head; and the majority of the House having pronounced against the views of the Commission, in deference to that vote the Commission was dissolved. Great difficulties were involved in the course of proceeding recommended by the Statute Law Commission, which sought to effect its object by means of legislation. The project for preparing a compendious edition of the statutes in force had this superior merit—that it would place in the hands of the legal profession and of public bodies a convenient and useful compendium of existing Acts, which would depend for its authority upon the accuracy and the character of the editors who framed it. The editors could set to work with freedom; and if any part of their labours turned out to be faulty, reference could be made to the statutes to correct their errors, and no wrong or injustice would be done. If that course had been pursued, the task of preparing a valuable compendium of the living statute-law

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  might by that date have been accomplished. The Bill under consideration, however, was an indirect mode of reversing the decision come to by the House in 1859; for while the Statute Law Commission had been dissolved in form, it was attempted to be revived in practice; and they were drifting back to the system which had cost the country so much without yielding any practical benefit. The Act of 1861, which had been so much praised, was a mere piece of clerk's work and really of little or no use. It dealt only with statutes which undoubtedly had been repealed and about which there was no difficulty. The faults of the present Bill were of an opposite kind. It sought to repeal Acts which the lapse of time or the change of circumstances rendered unnecessary, and about the vitality of which doubts in some instances existed. Its framers, therefore, virtually trenched upon the functions of the Legislature. The House ought not to take upon trust anything beyond that which was merely clerical and technical; it should receive clear information as to how much of the measure was purely formal and how much was substantial. The Solicitor General had spoken contemptuously of the proposal to refer the Bill to a Committee upstairs, but a Select Committee could have made such inquiries on doubtful points as it was not only convenient, but necessary to have made. The Bill had two sorts of inaccuracies—one of these he had tested, the other he had not. The Bill would still leave in the statute book certain Acts which it would be wholly unnecessary to print in any new and compendious working edition of the statutes. Among these were the Act to regulate the rebuilding of London after the Great Fire. On the other hand, it would repeal Acts which ought to be retained—for example, the 15 Charles II., c. 11. That Act was to be totally repealed, because the Commissioners of Excise said they did not deem it of any use; but it contained a clause enacting that common brewers of beer and certain other persons should be disqualified from acting as justices of the peace in cases relating to the Excise laws. That was an important provision, which it would be a serious error to repeal. In conclusion, he must enter his emphatic protest against proceeding any further with the measure at a period of the Session when it was impossible for the House to do justice to it.
  THE SOLICITOR GENERALsaid, that hon. Gentlemen who raised all sorts of ghosts and spectres from their own imagination ended by suggesting that the Bill should be put off till another Session. He had no doubt, that if the Bill were put off, they would do the same thing again. He believed that the labours of a Select Committee of that House would not in any way facilitate the passing of a Bill of so special a character. All that a Select Committee could do would be to inquire into a few of its details, and that was a work which could be as efficiently performed in a Committee of the Whole House. Not a single criticism had been made that day which a careful examination of the measure itself might not have spared. The hon. and learned Member for the King's County had given notice of his intention to move the omission of certain Acts from the schedule; and having come down armed at all points to answer the hon. and learned Member, he had found him changing his ground and taking a new set of objections which might be shown, every one of them, to be equally mare's-nests with the others. The hon. and learned Gentleman seemed to suppose, because he found certain old Acts mentioned in the text-books giving a history of the law, that these Acts were necessarily in force; but he was prepared to show that they were virtually repealed. As to the Act having reference to the rights of aliens to have a jury upon the principle de medietate linguœ, if the hon. and learned Member had but followed the clue afforded by the marginal note appended to the Bill, he would have found that the 6Geo, IV., c. 50, clause 72, expressly repealed,inter alia, so much of the statute or ordinance made in the 28th of Edward III. as directed how all manner of inquests should be taken between aliens and denizens. The hon. and learned Gentleman had cited another statute with reference to the duties on beer and cider, which he said were part of the hereditary revenues of the Crown, but which were suspended under the Civil List Act, and might be revived. That Act, the hon. and learned Gentleman said, was repealed; but if he had taken the pains to read a little further on, he would have seen that the Bill did not repeal what related to "beer, ale, cider, or perry," but only what related to "metheglin or mead, vinegar," &c., the duties on which were previously repealed. The matter did not rest solely on the judgment

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  of the gentlemen who drew the Bill. They took care to inform themselves by reference to the Excise as to the exact state of the law. If the work of expurgation and consolidation was to be done at all, it must be done in the manner proposed; and objections such as those which had now been urged would prevent them from accomplishing the object which the Legislature had in view altogether.
  MR. SPEAKER: A point of order has been referred to me as to the mode in which certain statutes which have reference to religion and trade have been dealt with in this Bill, and complaint is made that this Bill, so far as the statutes are concerned, has not originated in a Committee of the Whole House. It is perfectly true that that rule applies to Bills introduced into this House; the order of the House is that they should go through the preliminary stage of a Committee, but that does not relate to Bills of that character that come down from the House of Lords. Bills relating to religion come continually down from the House of Lords, and also Bills relating to trade; only the other day the Alkali Bill, regulating that entire trade, was brought down, on which no objection was made that it did not originate in a Committee of the Whole House. The object of the rule, that Bills relating to religion and trade shall be founded on a Resolution of a preliminary Committee, is in order to give opportunity for a fuller discussion and a wider notice to the persons interested. These objects have been already secured by the proceedings in the other House, and therefore the rule does not apply to Bills originated in the other House, and the objection, in point of form, does not apply in this case.
  MR. HENNESSY, in withdrawing the Amendment, said, he still adhered to the objections he had urged with reference to the repeal of the hereditary duties, and thought that a mistake had been committed.
  SIR HUGH CAIRNSobserved, that there was a great difference between repealing a duty and making it to cease. The Act of Charles II. made the duty in question to cease, but this Bill proposed to repeal it.
  Amendment, by leave,withdrawn.
  Main Question put, and agreed to.
  Bill considered in Committee.
  MR. HENESSYsaid, he should move
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  that the Chairman report progress, and was prepared to give the Committee one or two palpable reasons for assenting to his Motion. He would draw attention specially to the Act 15 Charles II., c. 11. It was to be repealed. Why? Because, as stated in the Bill, "it is regarded as not being in force by the Inland Revenue Department."
  THE CHAIRMANsaid, the hon. Member was anticipating the discussion of the schedule, which could not be discussed on the question to report progress.
  Motion negatived.
  On the Motion to postpone the Preamble.
  MR. HENNESSYrenewed his objection. The 15 Charles II., which was regarded by the Commissioners of Inland Revenue as not being in force, imposed certain penalties upon the Commissioners of the Inland Revenue Department for misconduct, and directed that they should, if found guilty, pay a double penalty. It might be necessary to repeal that part of the Act, but he should like to know from the hon. and learned Gentleman why he asked them to repeal the whole of the Act because it was regarded by the Inland Revenue Commissioners as not being in force.
  THE SOLICITOR GENERAL: Because at various times laws have been passed to consolidate those excise matters. The 7 & 8George IV. consolidated the whole law relating to the collection and management of the revenue from excise.
  MR. AYRTONsaid, that what was really wanted was a compendious edition of the statutes, leaving out all that were spent, repealed, or obsolete; and that would have been long since acquired if it were not for the obstructive proceedings of the Statute Law Commissioners.
  MR HENNESSYsaid, that the notes to the Bill, which they were told gave hon. Members so much information with respect to the Acts proposed to be dealt with that they might take the Bill on authority, were so imperfect that the hon. and learned Gentleman had now to supplement that information. That was an additional reason why they should not proceed with the Bill.
  SIR HUGH CAIRNSsaid, he was of opinion that there was no force in his hon. Friend's objection.
  Preamble postponed.
  Clause 1 (Enactments of Schedule repealed).
  MR. GOSCHENsaid, he wished to move an Amendment to insert the words "custom,

  1223
  privilege, restriction, and prevention," after the word "usage," the object being to preserve the privileges of the City of London.
  THE SOLICITOR GENERALsaid, he did not think the words at all necessary; but as they would do no harm, he had no objection to their insertion.
  MR. CLAYremarked, that it was rather extraordinary, when their object was to get rid of so much rubbish, that the Solicitor General should consent to the introduction of words which he did not think necessary, on the mere ground that they would do no harm.
  MR. HENNESSYsaid, he wished to ask what was the value of the suggestion that the Bill should be taken on trust. An Amendment of the same nature had been once before suggested to the Government, and refused.
  THE SOLICITOR GENERALsaid, that the words proposed to be inserted would allay some alarm in the City of London, the authorities thinking that their privileges would be interfered with if the words were not added to the Clause.
  Clause, as amended,agreed to.
  Clause 2 (Extent of Act).
  MR. HENNESSYsaid, he wished to point out that the first item of the schedule referred to the Act of the 20 Henry III., called the Statute of Ireland in respect to Coparceners, whereas the Act was to extend to England only.
  THE SOLICITOR GENERALexplained, that the statute in question, although called the Statute of Ireland, had in reality no reference to Ireland, and it was proposed to deal with the statutes relating to Ireland separately. It was quite true that by Poyning's Act, in the reign of Henry VII., the whole of the English law was extended to Ireland; but the Bill dealt with dead statutes, and it was thought better to deal with the English statutes separately.
  MR. HENLEYremarked, that if the statutes which were to be dealt with by the Bill had no application to Ireland, he did not see why the operation of the Bill should be limited expressly to England? They were asked to take the Bill on trust, but on so large a question he thought they ought to exercise some voice. It was scarcely necessary to deal with the whole matter over again when they came to consider the consolidation of the law for Ireland; nor could he see what the object of omitting Ireland was.
  THE SOLICITOR GENERALsaid, the Bill dealt altogether with what might be called dead law in England. The legislation at present proposed was confined to England; and if any part of the law that was dead in England was living in Ireland, it would remain unaltered in that country after the Bill had passed.
  MR. WARNERasked, whether it would not be necessary, after the passing of the Bill, to print as Irish statutes the statutes dealt with by it?
  THE SOLICITOR GENERALreplied, that these English Acts had never been printed as part of the Irish law.
  MR. HENLEYobserved, that the consequence of the present arrangement would be, that whenever it should please Parliament to repeal the Irish statute law, they would have again to go over their work, extending back to the time of Henry VIII. The hon. and learned Gentleman talked of dead law. Was it dead in both countries? If so, why keep it apparently alive in Ireland?
  MR. AYRTONsaid, he did not see any necessity for the Bill. Never before had there been any such attempt to circumvent the House by giving up forms and names and keeping the substance.
  MR. HENNESSYsaid, they were told that the Bill dealt only with dead law. They were also told that the Bill was to apply to Acts of such a nature as were not legally capable of being put in force, regard being had to alterations in political and social circumstances. Who was to judge whether the circumstances were such as to make a particular statute a dead law? Dead law was further described in the Bill as all enactments where the provisions were of such a nature as not to require in the present day any statutable authority. Blackstone referred to the statute protecting merchants coming to this country as a very important statute, but that enactment was to be abolished because the framers of the Bill considered it to be unnecessary.
  Clause 2 and 3agreed to.
  Schedule.
  MR. HENNESSYobserved, that the 28 Henry III., c. 3, was to be repealed. Why were not cc. 1 and 2 of the same year also to be repealed?
  THE SOLICITOR GENERALsaid, he believed that the enactments referred to were either living law, or they had been expressly repealed by subsequent statutes.
  MR. HENNESSYthought it was clear they did not know what they were doing. The 13 Edward I. was to be repealed as obsolete, but yet the statute was twice referred to in Sugden on Powers as an important statute. Blackstone also referred to it.
  SIR HUGH CAIRNSobserved, that only a portion of the statute had been repealed.
  THE SOLICITOR GENERALsaid, the whole subject of statute merchant would be found in the notes. It was not convenient for the hon. and learned Gentleman to start objections without notice.
  MR. HENNESSYsaid, the framers of the Bill in their notes stated that "the nature of such debts is now well established and known, and it is apprehended that there is never any occasion for the statutes creating the securities called statutes merchant." But both Blackstone and Lord St. Leonards referred to the statute as important.
  THE SOLICITOR GENERALremarked, that the statute would be as accessible after the Bill passed as it was before. Many Acts were referred to that had been repealed. The later Acts governing the subject were all specified; and as existing rights were preserved, there could be no danger from the Bill.
  MR. HENNESSYsaid, he found an old statute for the assize of ale, against selling unwholesome flesh, and against the adulteration of oatmeal. There were complaints of adulteration in the present days, and he could not understand why these Acts should be repealed. He doubted whether they were obsolete.
  SIR FRANCIS GOLDSMIDsaid, he would remind the hon. and learned Member that the subject of adulteration had been very recently dealt with by Parliament.
  MR. HENNESSYasked what was meant by "virtually repealed "?
  THE SOLICITOR GENERALsaid, "virtually repealed" meant that an Act had been repealed in general terms in general Acts without any special statute of repeal. When by modern legislation the whole ground embraced in a particular statute had been covered, that statute might be said to be superseded. The term "obsolete" applied to cases where the existing law was of more recent date, and where no one for centuries had thought of digging out the ancient statutes. They all knew that the subject of the sale of unwholesome flesh was dealt with by the
  1226
  present law, while the statute referred to had been in use for centuries, and might therefore well be called obsolete.
  THE CHAIRMANsaid, he must remind hon. Members that the question before the Committee was whether there was any amendment to be proposed on the schedule. The time for a general conversation upon all the points embraced in the schedule would be when he put the Question that the Schedule stand part of the Bill.
  MR. HENNESSYsaid, he would propose as an Amendment to the Schedule, page 19, to leave out "Magna Charts, the great charter of the liberties of England, and of the liberties of the forest." Surely, that was an Act which should be left upon record in the statute book. He would ask how much was actually covered by the repeal of the 37th clause of the Act 25 Edward I.?
  THE SOLICITOR GENERALsaid, that no doubt Magna Charta was a great historical document, and those who wished to see it as it was signed by King John—in which shape it did not appear upon the statute book—could refer to the document itself. Those who wished to see the statute of Edward I. would be able hereafter to refer to it in an old edition of the statutes, but that portion of it which it was proposed to deal with came within the category of "virtually repealed." The parts relating to military tenures had been abolished by the 12 Charles II., c. 24. It was only now proposed to repeal a part of the 37th clause of the Act of. Edward I.
  MR. HENNESSYsaid, that the clause would reserve to all Archbishops, Bishops, Abbots, Priors, Templars, Hospitallers and all others, ecclesiastical and secular, all their then existing customs and rights. He would call the attention of his hon. Friend near him (Mr. Spooner) to the recital of the names of the Abbots of St. Alban's, of Battle, of Westminster, and other places. The rights of all these persons were to be expressly reserved upon the statute book. After the argument that all that which was unnecessary was to be struck out, he could not understand why all those names were to be retained.
  THE SOLICITOR GENERALexplained that the formidable names referred to were those of the signers of Magna Charta.
  SIR HUGH CAIRNSsaid, in old Acts the form used was that of an indenture between the Crown and the Barons, and from that cause the names of the Abbots

  1227
  of Battle and others were found in Magna Charta.
  MR. HENNESSYsaid, he thought there had been an oversight on the part of the framers of the Bill, but he should certainly not object to the retention of that portion of the clause. He would only repeat that Magna Charta was an historical document which had not been repealed in the time of Charles II. Mr. Burke, speaking of the French revolutionists, had said those people would mutilate the Habeas Corpus Act and alter Magna Charta, but that great man could never have anticipated that a British Government could have undertaken such a task.
  SIR HUGH CAIRNSremarked, that the clause reserved the rights of all the subjects of the realm, and it was very hard that this reservation should not be retained, because, in the enumeration of the Queen's subjects, Templars, Hospitallers, and other persons of obsolete rank, were included.
  Amendment negatived.
  MR. HENNESSYasked what were the "several grants to divers corporations" which it was proposed to abolish by the repeal of 1Edward IV.?
  THE SOLICITOR GENERALsaid, that no such grants would be abolished. The Act in question was what was called a spent Act. Centuries ago it had done the work for which it was intended, and there would be no use in retaining it on the statute book.
  MR. HENNESSYasked why the 31 Edward III., c. 10, empowering the mayor and aldermen of London to reform the defaults of victuallers there, should be included in the schedule?
  THE SOLICITOR GENERALsaid, he believed that the corporation were satisfied upon this point, and, that being so, he thought the House might be satisfied.
  MR. ALDERMAN SALOMONSsaid, as an alderman of the corporation, he felt no anxiety as to the loss of any of the privileges of the City.
  MR. HENNESSYsaid, if the corporation were satisfied, he should, of course, offer no opposition.
  MR. ALDERMAN SALOMONS: We stand on our prescriptive rights, which are older than Parliament itself.
  MR. HUNNESSYsaid, it was proposed to repeal the 13 Charles II., c. 6, "An Act declaring the sole right of the Militia to be in the king, and for the present ordering
  1228
  and disposing the same;" but the preamble was to be retained "as a Parliamentary recognition of the right of the Crown to the supreme command of the Militia and of all forces by sea and land." Now, to repeal the enactments of a statute, and to preserve the preamble, which no one could call a statute, was incomprehensible. By retaining these words the privileges of subject seemed to be put aside, but an attempt was made to preserve the rights of the Crown.
  THE SOLICITOR GENERALsaid, that the Act in question had been entirely superseded by the Militia Act. The preamble was declaratory, but in the enactment there was nothing declaratory; and as a Parliamentary declaration, that the Crown had the right, and that the two Houses had not, it was thought well to retain the preamble.
  MR. HENLEYsaid, he did not doubt that the preamble ought to remain, but it was awkward that all the enacting parts should be cut out, if they were going to lay a fouudation for a revised edition of the statutes.
  MR. AYRTONsaid, that the preamble only declared the sole right of the Militia to be in the King sub modo—that was, subject to the important qualifications in the Act, so that to retain the preamble alone would be to assert a constitutional principle hardly borne out by the facts, and to state that as an absolute and unqualified right in the Crown which was really a very limited right.
  MR. HENNESSYsaid, he moved the omission of the preamble of the Act from the Schedule.
  Amendment negatived.
  MR. HENNESSYsaid, he thought it was much to be regretted that subjects of such importance should be treated at that period of the Session; for when the division bell rang, down poured all the friends of the Government from the Committee-rooms, and of course the Government were able to carry everything. In the Schedule there was a famous Act, the 28 Edward III., c. 13, giving to aliens the privilege of a mixed jury upon their trial, and that Act was described in Archbold's Criminal Practice, by Welsby, as being only in part repealed by the 6Geo. IV. That, therefore, was not a dead Act.
  THE SOLICITOR GENERALsaid, that the 6Geo. IV. expressly repealed that portion of the Act of Edward III. which

  1229
  had reference to the trial of aliens, and Mr. Archbold had doubtless set forth the old Act, not as governing the law, but as forming part of the history of the law.
  Schedule, as amended agreed to.
  House resumed.
  Bill reported with Amendments; as amended, to be considered To-morrow at twelve of the clock.

AUGMENTATION OF BENEFICES BILL (Lords).

  [BILL 134.] COMMITTEE.
  Bill considered in Committee.
  Remaining Clauses agreed to.
  Schedule agreed to
  LORD JOHN MANNERSsaid, he would move the addition of a clause after Clause 6, providing, that in case the Ecclesiastical Commissioners shall have any tithe-rent charges in possession arising within a parish, they might grant the same to the value and in lieu of the annuity referred to in the Bill.
  MR. HENLEYobserved, that a rent charge on land was not subject to poor rates, but a tithe-rent charge was subject to poor rates. The rent charge upon land was payable by one person, while the tithe-rent charge might be payable by many persons, involving expense of collection. The two things were dissimilar, and words should be added to guard against the consequences of that dissimilarity.
  THE SOLICITOR GENERALsaid, he could not agree that the clause was necessary, as the object of it was sufficiently provided for by other clauses of the Bill.
  Motion withdrawn.
  MR. LYALLsaid, he would move the insertion of a clause to prevent speculation and jobbing in the livings included in the Bill by interdicting purchasers from selling until after the expiration of five years.
  MR. MORRISONsaid, he had given notice of an Amendment in the clause, with a view of expending the prohibition to thirty years, and attaching a penalty to any infringement of it. If the Committee should prefer the clause to his Amendment, he would suggest that the term should be enlarged from five years to ten.
  SIR GEORGE GREYsaid, he agreed in the principle of the clause; but as it was rejected by the House of Lords, the Government though it better not to insist upon it. He hoped the hon. Member would withdraw his Motion.
  MR. AYRTONsaid, he should support the Amendment, as calculated to mitigate the evil which the Bill would create. The traffic in advowsons was a scandal to the Church.
  House resumed.
  Committee report progress; to sit again To-morrow, at Twelve of the clock.
  House adjourned at ten minutes before six o'clock.