§ LORD LYNDHURSTrose to ask what course the noble and learned Lord on the woolsack intended to take with respect to the proceedings connected with the revision of the Statutes? The subject had for the last 300 years engaged the attention of Parliament and the country, but no satisfactory result had been obtained, and the labours that had been bestowed on it had as yet produced no satisfactory conclusion. The history of the question was curious, and not more curious than discreditable to the Legislature. The question dated so far back as the reign of Edward VI It was then publicly stated, by Royal authority, that the Statute-books were encumbered with numerous useless 346 Acts of great and tedious length; that it was necessary to expunge these Acts, to shorten the Statutes, and to bring them together in one consistent code, so as that they might be intelligible to the great mass of his subjects. How it happened that these declarations led to no result, he was unable to inform their Lordships, but perhaps it was owing to that monarch's brief and troubled reign. In the following reign, on six different occasions this subject was brought before the Legislature. There was no difference of opinion about the necessity of reform. In the subsequent reign of Elizabeth, the opinion of her Government was expressed in the strongest manner in consequence of the representations of Lord Keeper Bacon, who drew up a memorial on the subject. No result, however, followed from this step. Nothing more was done until the reign of James I. That monarch, in a characteristic speech referred to the "overflow" of statutes conflicting kith each other, or—to use his own words—"crossing and cuffing each other." The consequence of the King's interference was, that Lord Bacon and other eminent men were constituted a commission to inquire into and devise a remedy for the abuse complained of. Nothing resulted from the inquiry—a circumstance which might, perhaps, be accounted for by the subsequent disgrace of that great man Lord Bacon; Lord Bacon, however, drew up a paper in which he described with great perspicuity the course which he thought ought to be pursued for the purpose of effecting a great reform. So much as to what had taken place up to that period. During the time of the Republic—or, as some persons chose to call it, the Commonwealth—a strong desire was manifested to make every practical reform of the law, and, among other things, the consolidation of the Statutes was not forgotten. Two Committees on the subject were appointed, among the Members of which were Sir Bulstrode Whitelocke, Sir Matthew Hale, and Ashley Cooper, afterwards Lord Shaftesbury. Still nothing resulted. If the cause had been unfortunate under the monarchy, it was equally unfortunate under the republic. After the Restoration the subject was again inquired into by Lord Nottingham and others, but nothing was done in consequence. From this time the question slumbered until 1806, when it was again referred to a Commission, of which Mr. Hargreave was a member. This gen- 347 tleman, who was a man of great learning and a great lawyer, wrote a memorial on the subject. This memorial became the foundation of a string of resolutions which were passed by their Lordships' House, and sent down to the Commons, where the matter dropped. In 1831 another Commission was appointed, which contained among its members a man of great experience, prudence, and judgment, who was also at the head of the new Commission appointed by the present Lord Chancellor, Mr. Bellender Ker. The object of the Commission of 1831 was to consolidate the criminal law, to report upon the revision of the statute law: their report, drawn up by the gentleman referred to, comprehended everything connected with the subject. But, notwithstanding the labours of that Commission, no steps were taken to carry into effect the reforms suggested. Now, they had a new Commission appointed and governed by his noble and learned Friend on the woolsack. His noble Friend had not slumbered at his post, and he hoped the present would not furnish another instance of failure. To prevent this, his noble and learned Friend would excuse him if he reminded him he must exercise untiring vigilance over the Commission, and from time to time see what progress was made. Their Lordships would pardon him for referring to what had taken place in the United States. In some instances the acts of our Transatlantic brethren would seem to justify the belief that men, like plants, acquired fresh vigour from being transplanted. In the State of New York all our Statutes up to the time of the Declaration of Independence were in force. From that period there had been an immense accumulation of statutes arising out of their new position. The inhabitants of that State were in the same unfortunate position as ourselves in this respect; but they resolved to get rid of the evil, and in 1835 competent persons were appointed to revise and consolidate the statutes. In two years from that time the object was accomplished, and in a manner that was quite satisfactory, not only to the legal profession, but to the general public of the State. Twenty years had elapsed since then, and the new code had lost none of its popularity. In the State of Massachusetts the statutes had been consolidated as successfully and satisfactorily as in New York. Let us not be ashamed to copy from our brethren on the other side of the Atlantic. It should 348 be a great encouragement to us to find that, after all, the task we have in view is so easy. The tardiness of Governments in accomplishing any object was remarkable when compared with that which individuals could effect. He would undertake to say that, if any distinguished bookseller in London should determine on publishing a revised edition of the Statutes, such a work would be well executed by able men who had paid attention to the subject, in two or, at the furthest, in three years. When private enterprise could do so much, why should public exertion do so little? By the aid of private enterprise the Secretary for Foreign Affairs could carry on a conversation with the Earl of Westmoreland at Vienna with the same facility, and almost the same privacy, as if they sat side by side. This was the result of private enterprise, behind which public exertion lagged with sluggish pace. If their Lordships were to direct their attention to the Statute-book, they would be astonished at the mass of absurdity which it contained. When he held the Great Seal, he introduced an Act for the purpose of removing some of the absurdities to be found in the statutes directed against the Roman Catholics. The absurdities were so apparent that the Act was carried with the unanimous consent of both Houses. The absurdities thus removed were only a sample of those which remained behind. Their Lordships would hardly believe that there was in the Statute-book an Act which prohibited an Irish bishop from bringing an Irish servant into this country under a severe penalty. It would interest a noble Duke (the Duke of Buccleuch) who was not then in his place to know that by another Act of Parliament no person was allowed to have more than 3,000 sheep under very heavy penalties. These were samples of the rubbish and nonsense which disgraced our Statute-book. There were, on the whole, 16,000 public general statutes, but of these nearly 14,000 were obsolete, and might be swept away without the slightest inconvenience. Of the remaining 2,500, which were now proposed to be consolidated, a great number were encumbered with useless provisions and unnecessary language. With this mass of Statutes there were three modes of proceeding pointed out by the Report laid before Parliament; and the object of his (Lord Lyndhurst's) question was to know which of these modes the noble and learned Lord proposed to adopt? The first of 349 these modes was to expunge from the Statute-book all that mass of statutes which might be called rubbish, and to class the remainder under distinct heads. The second mode was to strike out of the Statute-book those statutes which were useless, and to consolidate the remainder under distinct heads, amending them where they required amendment, and where they happened to be connected with the common law, in such a way as that it was impossible to separate them, to incorporate the common law with the text of the statute. The third mode, which was more comprehensive than either, was to form into one and to pass as a single statute all the statute and common law relating to one particular subject. From these three modes his noble and learned Friend on the woolsack would have to select that which he intended to propose to the House. With respect to the first, however, he (Lord Lyndhurst) did not think it would be practical, because it would be wholly unsatisfactory, and, therefore, his noble and learned Friend would not, he presumed, adopt it. With respect to the third mode, it presented, in his opinion, the same difficulty; because, in the first place, it would consume an enormous extent of time to carry it out, and because, moreover, it would require a degree of accuracy in regard to knowledge of the subject, and an amount of precision in detail, which he believed few men to possess; moreover, he did not think it would be satisfactory to the great bulk of the legal profession. The second or middle mode was, therefore, that which he supposed his noble and learned Friend would adopt, namely, to sweep away all the useless and obsolete statutes, to consolidate and amend those that remained, and to reduce the common law to a part of the system where it was necessary. Sir Robert Peel had done so in two remarkable statutes, one relating to the law of larceny, the other to the law of offences against the person. He had consolidated and amended the statute law in these cases, and he had incorporated the common law into the text. These statutes had met with the approbation of the profession and the public. So, in like manner, had the law respecting registration of shipping, which had been also consolidated and amended, and which was admitted to be of great service to the country. The same course had been taken in regard to the Post-office law; and several other laws likewise had been consolida- 350 ted and amended in that manner with great advantage to the public. More than twenty years had elapsed since the first attempts at consolidation had taken place, and every day only afforded greater proofs of their benefit. On the ground of reason and justice, therefore, he called on his noble and learned Friend to adopt the course implied in the second mode of dealing with the subject. By means of the process of consolidation greater perfection would be arrived at every day during its progress. It would have also the advantage that when an amendment was proposed in any particular law, instead of hunting through the entire of the Statute-book, the whole subject in all its bearings would be before the Legislature, who would, therefore, be in a favourable position to judge of its propriety. The noble and learned Lord apologised for entering so much on detail, and concluded by expressing a hope that the measure to be brought in on the subject would be of a practical and a practicable as well as of a beneficial nature.
THE LORD CHANCELLORsaid, he was sure that their Lordships and the country in general would feel very deeply indebted to his noble and learned Friend for having brought this subject under the notice of the House; and if any individual more than another could feel pleased at such a question being put, he could assure his noble and learned Friend that he (the Lord Chancellor) was himself that individual. When first he was entrusted with the Great Seal it was suggested to him that there was no subject of law reform which was more likely to be practically useful than that to which his noble and learned Friend had so ably called their Lordships' attention. In this suggestion he entirely concurred. After the statement of his noble and learned Friend, it would be quite idle and improper for him again to enumerate the various attempts which had been made from the earliest times on this subject. When he came to consider this subject, he felt it his duty to regard it in very much the same light as that in which his noble and learned Friend appeared to view it, the great object being to arrive at some practical beneficial result. There had been references made from the days of Lord Bacon down to the present age to learned persons to inquire how this great object might be accomplished; and it had struck him (the Lord Chancellor) that the only practical course that could be re- 351 sorted to with any chance of success was to engage, for a limited time, three or four gentlemen to devote their attention to the subject, and to produce something as a specimen of that which ought to be done more perfectly, without speculating to any great extent on the subject. His noble and learned Friend had alluded to the Commission issued in 1831 to certain gentlemen of high legal attainments, on the subject of the consolidation of the whole of the criminal law, and who were afterwards directed to report on the expediency of consolidating the whole of the statute law. The Commissioners proceeded accordingly to consolidate the whole of the criminal law. In 1835 they made a report on the subject of the general consolidation of the statute law. Mr. Bellenden Ker, who was at the head of the Commission, pointed out three modes of proceeding to which his noble and learned Friend had adverted. The Commissioners had consolidated the whole of the criminal law, but nothing was done to consolidate the statute law in general. This was the state of things when he (the Lord Chancellor) was entrusted with the Great Seal. It struck him that the best course to adopt was to apply, as he did in March last, to Mr. Bellenden Ker, who was familiar to a certain extent with this subject, having been already engaged in it, and to get him, in conjunction with three or four other gentlemen, to proceed for one year to the actual consolidation of certain portions of the statute law, in the manner which should seem to them most likely to be of practical utility. He had engaged these gentlemen for the year expressly for this object; and what he wished them to do was, not to enter into any inquiry as to the expediency of this measure, but at once to proceed, as far as practicable, with the revision of the statute law, as to make an enumeration of what statutes were actually in force and remaining to be consolidated, what statutes had been repealed or abolished, or had become obsolete, and then to proceed to consolidate such of these laws as it would be most easy and convenient to begin with. Two of these gentlemen accordingly went through the whole of the statutes, statute by statute, to see which of them were actually the, law, the result of their inquiry being that they found the number of general public Acts from the time of Magna Charta to be between 16,000 and 17,000, and that the proportion of them which remained as really living statutes was 352 only about 2,500. With these 2,500 statutes, therefore, they had then to occupy themselves. One of the other gentlemen proceeded, more immediately in connexion with Mr. Ker, to consolidate the law on a particular subject upon the three different plans suggested by the former Commission. One plan was merely to consolidate existing statutes, keeping as nearly as possible to the form and language in which they now stand; another course was to amend in some minor particulars, and partially to introduce the common law where it was necessary; and another consolidated the whole of the law, common as well as statute, relating to his subject. The learned gentlemen employed devoted great attention to the subject. They commenced their labours in the first week in April, and at the end of July they made a report, which had been laid on their Lordships table, in which Mr. Bellenden Ker stated that he had called on each of his colleagues to state to him his views as to what had, occurred to him, or as likely to be advantageously adopted. Two of these gentlemen, as he had already stated, went through the whole, or nearly the whole, of the existing statutes, arriving at the result that there were only 2,500 out of more than 16,000 general and public statutes now actually in force. One of them (Mr. Brickdale) made a digest of the law relating to distress for rent. There was no particular reason for his taking that last-named subject, excepting that it might be completed before the close of the last Session, and a report was accordingly made on that branch of the subject. He (the Lord Chancellor) had read all these reports, and it had appeared to him that the direction he ought to give to these gentlemen on reassembling after the long vacation was, that they should immediately proceed under the superintendence of Mr. Ker, who took an active part in the work, to the actual consolidation of certain statutes. That they had done, and Mr. Ker had laid on the table a very able second report, in which he exhausted the subject—stated what could be done—what was practicable, and giving the reasons for what he recommended. Of this recommendation he (the Lord Chancellor) approved, and intended to prosecute it, subject to certain observations which he was about to make. In his report Mr. Ker, after stating his objections to other measures, proceeded to assign his reasons for the course which he did recommend. He would not say that what Mr. Ker recom- 353 mended was what he (the Lord Chancellor) had suggested, because he wished to give Mr. Ker all the credit to which he was fairly entitled; but Mr. Ker stated that the course which he thought the most feasible and the most practically conducive to the desired result of an improved state of statute law, was the gradual consolidation, or the rewriting of the statute law, combining with that rewriting all such amendments of the law as could be suggested—in short, the continuation of that process which had been already for a long period applied to isolated subjects and in a desultory way, though always with marked advantage. He (the Lord Chancellor) presumed that Mr. Ker here referred to those very statutes to which his noble and learned Friend (Lord Lyndhurst) had alluded as instances of what had already been achieved in this direction. He (the Lord Chancellor) would just say that, preparatory to doing this, one of the other gentlemen he had engaged (Mr. Rogers), had, under Mr. Ker's superintendence, made what they called groups of the statutes—that was to say, had grouped such statutes together as might be conveniently taken together, and put into one or more. Having done that, the Commissioners arranged amongst themselves certain subjects, upon each of which they proposed before the year was out (and he had no doubt they would accomplish it) to have the statutes on one or two subjects ready to be put into his hand, in the shape of a consolidated statute, formed in the way to which his noble and learned Friend had alluded. His noble and learned Friend asked him what course he intended to pursue. He would tell him. He had stated from the first that this was a matter, to a certain extent, experimental—not that he doubted the possibility, and to a certain extent the feasibility, of doing that which he proposed to do—for he did not doubt it; but as soon as the year for which the services of those gentlemen to whom he referred had come to an end, he proposed to take the actual statutes as consolidated, and submit them to their Lordships to be passed into law. His noble and learned Friend had alluded to what had been done in the United States of America in this respect; there the statute law had been consolidated by a commission, which the Legislature had afterwards adopted and enacted as a law. Now he (the Lord Chancellor) must say, that he was quite convinced that the Legislature of this country would refuse to entrust—and he doubt- 354 ed if it ought to entrust—any man or body of men outside the walls of Parliament with the task of declaring what should and what should not become law. All they could do would be to employ properly qualified persons to put groups of statutes into an amended and consolidated form, and then for the Lord Chancellor, or some other authority, to propose that in that form Parliament should pass it into law. That that was the only course they could pursue, he would make manifest to his noble and learned Friend, by what both of them had been witness to in the last Session of Parliament. In the Commission of 1831, certain gentlemen were engaged in the double duty of consolidating the criminal law, and of framing a plan of digesting the statute law. That was done, and done by gentlemen of the highest eminence, who devoted great care, and time, and attention to the work. Various attempts were made to introduce new matter by way of amendments, and to get the whole, so condensed and amended, adopted by the Legislature as a law, as was done in the United States, but to that that House would never listen; and it was a wholly impracticable measure, because their Lordships would have to treat, and were bound to treat, every proposed consolidated statute in precisely the same manner as if it were a new law introduced into Parliament for the first time. His noble and learned predecessor (Lord St. Leonards) last Session brought in a Bill taken from a meal sure that had been framed by the Criminal Law Commissioners, with some slight alterations and improvements, and which related only to one head of the criminal law, namely, to murders and other offences against the person. What was the history of that Bill? It was, as must naturally be the case with every such Bill, referred to a Select Committee. His noble and learned Friend (Lord Lyndhurst) was a member of that Committee, and diligently attended it; the noble and learned Lord Chief Justice and other law Lords also were on the Committee, and devoted great attention to the subject, and yet, at the end of the Session, it was still an imperfect Bill. Why did he refer to all this? Because he thought that if they were to attempt too much, and sought to consolidate, not the statutes only, but the common law with them, so as to say that, "from and after the passing of a particular Bill relating to a particular subject, no 355 law, statute or common, relating to it should have any force, or except such as was within the four corners of this parchment," they would be attempting something which, although it looked theoretically right, would be perfectly impracticable, and would only be postponing what might be accomplished in a more modified form, ad Grœcos Kalendas, and nothing at all would be done. Looking therefore at the matter in this practical point of view, what he proposed to do was this:—When he received the Bills as they were framed by these four gentlemen whose services he had engaged for a twelvemonth, if he found them such as he could, consistently with his duty, he would submit them to Parliament as Bills for the consolidation of the statutes, with the view that they might become the law of the land. He fully anticipated that this would be the result; he should not take that which had been done this first year as a criterion of what might be done in subsequent years. No doubt the work of consolidation would go on with greater and still greater facility as the operation became more fully understood. If his anticipations were realised, and if Bills should be framed that consolidated a great number of statutes—to the vast advantage of the community—he should then consider it his duty to retain the services, and he felt there would be no difficulty in doing so, of, a certain number of members both of the bench and the bar, who should constitute an unpaid Commission for superintending the consolidation of all the statutes grouped as they already were in the Report of which a copy was then on their Lordships' table. It appeared to him that that was the only practicable mode of proceeding. So far from regretting that his attention had been called to the subject by his noble and learned Friend, he thought it was the duty of every noble Lord to see that he (the Lord Chancellor) did not sleep upon the subject. He could assure his noble and learned Friend that he had no inclination to do so. Scarcely a week ever passed during, which he had not an interview with Mr. Bellenden Ker, and if their Lordships would read the report drawn up by that gentleman, they would find that the whole subject had been thoroughly sifted, and been put by him in the only practicable mode in which the object desired could be arrived at—namely, the enacting of some one or two Acts of Parliament which should have the effect of embodying the law, which was now scattered about in some twenty or 356 more statutes. It was certainly a subject of great difficulty, and to understand the law upon any particular branch of it was also attended with much labour; but nobody could doubt that much of this labour and difficulty might be lessened by the statutes of the land being consolidated, and the law on any given subject being made more generally accessible. That work of consolidation was not only expedient, but was, in his opinion, eminently practicable.
LORD CAMPBELLsaid, that since his noble and learned Friend (Lord Lyndhurst) had combined with his noble and learned Friend on the woolsack in the promotion of this measure, he was now convinced that all that was practicable would be accomplished. He was much pleased to hear from his noble and learned Friend (the Lord Chancellor) that he did not contemplate the codification of the whole of the statute and common law of the realm. It was absolutely impossible to do so. In no country that had ever existed had there been a codification of the whole of the law. They were told to admire, and they all did exceedingly admire, the Code Napoleon; but did that contain the whole of the law of France? No; nor one-twentieth part of the law of that country. There were whole libraries of law to which French lawyers were obliged to refer, which were quite as voluminous as ours, and they had reports which bad to be read; and there existed quite as much reason for calling for a codification of the law of France as there was for calling for a codification of the law of England. We had most excellent treatises upon all the great heads of the law—upon real property and upon personal property—and these treatises answered all the purposes of a code. There were, for instance, the works of Lord St. Leonards. He mentioned the name of that noble and learned Lord with the greatest possible respect and gratitude. Lord St. Leonards had published a book on real property which answered all the purposes of a code. He might also refer to that noble and learned Lord's work on Landlord and Tenant, and on Powers, both of which embraced all the law relating to those subjects, and were, in fact, a codification of the law under those heads. There were similar treatises of equal merit on other heads of the law of England. If at any time there should be discovered any inaccuracy in those treatises, it could be corrected by the judicial decisions of the 357 Courts; and if the Courts should differ in their opinion, the question could then be finally rectified by an Act of Parliament. The question of consolidating the law was one of great importance, and he believed it might be applied to almost all subjects. The exceptions, he considered, were but few, in which the process could not be applied. There were, however, some exceptions. They could not throw all their statutes into a crucible, and then recast the whole. They could not take Magna Charta and consolidate it with some Act of last Session. They could not take a statute respecting the election and consecration of bishops, and consolidate it with a law relating to the poor or to the highways. Still, a system of consolidation, within a proper limit, might be most useful, and might work to the greatest advantage.
§ LORD LYNDHURSTexplained. He was understood to express his concurrence in the terms of approbation in which the noble and learned Lord on the woolsack had spoken of Mr. Bellenden Ker's report. He also said that he had not stated that the codification of the common law had been attempted in the United States. He had merely spoken of the codification of the statute law.
THE LORD CHANCELLORsaid, that there might be occasions in which it would be useful to introduce a small portion of the common law into a consolidation of the statute law. The rule should be to consolidate the statute law only; but it would be mere pendantry to say that the Commissioners must not in any case touch in the least degree the common law, though, in doing so, they would of course be acting a exceptionally and rarely. With regard to the Commissioners striking out all that might be termed the rubbish statutes, the first direction he had given to the Commissioners was, that they should do just as they had done—namely, reject all the expired and obsolete Acts of Parliament. But, as to their finding what statutes were actually in force, that was quite impossible, unless they went through every clause of every Act. But, so far as ascertaining what laws had expired and what had become obsolete, this they had done, and the result of their inquiry afforded an extremely useful guide as to what were and what were and what were not the statutes to be consolidated.
LORD CAMPBELLobserved, that the statutes at large extended to about fifty 358 folio volumes; but all the statutes which were usually required by lawyers for reference might be found in three octavo volumes, compiled by his learned Friend Mr. Welsby, and which he always had by his side on the bench. This circumstance, however, ought by no means to operate so as in any way to relax the endeavours now being made, under the direction of the noble and learned Lord, for the consolidation of certain portions of the statute law.
§ House adjourned till To-morrow.