HC Deb 14 August 1871 vol 208 cc1576-9
MR. VERNON HARCOURT

I have also to ask the indulgence of the House upon a matter of a personal character. On last Friday my hon. and learned Friend the Solicitor General—who had not given me notice, or I would have been present—complained, as I learn from the ordinary sources of information, of the course that I had taken in the House on the previous evening. The House will remember the discussion on the subject of the Royal Warrant and the reference which was made by my hon. and learned Friend to a Statute of the reign of Charles II., on which he based his argument. About half-past 1 o'clock in the morning—a period certainly not very favourable to legal research—I undertook to challenge the accuracy of my hon. and learned Friend's reference to that Statute. My hon. and learned Friend came down to the House the next day, and as a matter personal to himself complained that I had contradicted him wrongly upon a matter in which he was in the right. Now, if that were the case, there would, I conceive, be only one course for a Member to pursue in this House—to retract the statement which he had made, and to apologize for it; or, on the other hand, show that the statement he had made was well founded. Now, having carefully considered the matter, I find that I was perfectly right in my original statement, and accordingly that the contradiction of the Solicitor General is not justified. As my hon. and learned Friend referred to the facts of the case and said that he had investigated and looked into the matter, I must ask the indulgence of the House while I make the point clear. My hon. and learned Friend when he came down to the House on Friday said that he had looked into a recent edition of Blackstone, which stated that the Act to which he referred was still in force, and upon the strength of that authority he relied to justify his statement to the House. Now, Blackstone is a book which lawyers generally refer to upon such subjects; I also have looked into the recent edition of Blackstone—that of 1868, which is in the Library — and I find, in the text a reference to the 13 Charles II., s. 1, c. 6—the Statute mentioned by the Solicitor General—the 13 & 14 Charles II., c. 3; and 15 Charles II., c. 4. Blackstone says—"It is true these have been repealed, but many of their provisions have been re-enacted." At the foot of the same page occurs this note— Blackstone says that the two last of the Statutes of Charles mentioned in the text 'are apparently repealed.' However, the first and the greater part of the two last are expressly repealed by the 26 & 27 Vict. c. 125. The House will bear in mind that it was the first of these Statutes upon which such stress was laid by the Solicitor General. But my hon. and learned Friend went further, for he said that, not content with the statement in Blackstone, he had examined the revised editions of the Statutes, and, though not contained in the first volume, the Act to which he referred was expressly reserved therein. This first volume of revised Statutes has been, I must say, exceedingly unfortunate. Both the Law Officers of the Crown have found fault with it at different times. The Attorney General told us, the other day, that the book contained a Statute which was not the law of the land; and now the Solicitor General tells us that it does not contain a Statute which is the law of the land. But though the authority of this book is thrown over and discredited by my hon. and learned Friend, I must really stand up for the authority of the Commissioners, and the work which they have produced. The Statute is not in the book, admittedly; but if you look at the chronological index you will find it there stated that this Act of Charles II., which is entitled "the King's sole right over the Militia," is repealed in part by the Statute of 1863, and that the residue—I ask the attention of the Committee to these words—"the residue is reserved for the supplemental volume." Perhaps the House will like to know what this supplemental volume is. In the introduction to the volume of the revised Statutes, page 8, it is thus described—"Some Acts, not being of practical legal value, are omitted, and reserved for a supplemental volume." So that these are mere archaic curiosities, which have ceased to be the law of the land, and to this class belongs the un-repealed portion of the Act of Charles II. If further proof of this were wanting I might find it, even before the Act of 1863, in the expurgatory list of Statutes laid on the Table in 1855 when this Statute of Charles II. is described as an "expired Statute." But dealing only with the latest revised edition of the Statutes, and the portion of the Statute which is said in that volume to be still unrepealed, my hon. and learned Friend did not tell the House the whole story. What will the House think when I tell them that this portion of the Statute which is unrepealed is merely a fragment of the Preamble? I need not tell any lawyer—I need hardly tell any hon. Gentleman of experience in this House—that a Preamble of any Act of Parliament by itself never had any legislative force whatever. What remains, therefore, of this Statute of Charles II. is not an enactment, and never was an enactment at all; it is a mere fragment of a Preamble, preserved by the Statute Law Commissioners as an archaic curiosity, to show us what laws once existed. That is the condition of the Statute in respect of which my hon. and learned Friend came down to complain of me for having asserted that it had ceased to exist, and that is portion of this obsolete enactment of which my hon. and learned Friend reiterated that it was a Statute in force, and that it was, or ought to be, on the Statute Book of the Realm. I venture to say that it is not and never ought to be on the Statute Book of the Realm, and the Commissioners have so decided. ["Order!"] I do not wish, Sir, to prolong this statement; but I feel it right to say that if the Solicitor General had thought proper on Friday to give me notice of his intention to make a statement, the House would have heard this statement then instead of now. I have shown that I did not contradict the Solicitor General without having good reason for doing so, and nobody who wished to stand well with the House would like it to be supposed that he was capable of making rash assertions upon a topic of so much importance.

COLONEL BARTTELOT

asked the right hon. Gentleman the Prime Minister if the adjourned debate on the Motion of the hon. and learned Member for Finsbury (Mr. W. M. Torrens) would be taken to-morrow at the 2 o'clock or 9 o'clock sitting of the House?

MR. GLADSTONE

said, he could not then state with certainty. It would depend on the progress made in Supply. The Government looked forward with confidence to finishing Supply that night. If so, they would take the Report tomorrow, and then go on with the debate on the Lords' Amendments of the Army Regulation Bill. It would be for the convenience of the House to meet at 3 o'clock instead of 2 o'clock on Tuesday.