§ LORD ST. LEONARDS
said, that he rose for the purpose of asking his noble and learned Friend on the woolsack what were the intentions of Her Majesty's Government in regard to the Criminal Law Amendment and Consolidation Bills? The question itself was contained in a few words, and the answer to it might be given in fewer still; but inasmuch as such answer might involve very important re- 332 sults with reference to the consolidation of the criminal law, he should endeavour, as briefly as possible, to put the House into possession of such facts as were necessary to elucidate the position in which the matter at present stood. Without going very deeply into precedents, he would commence by reminding the House that in the year 1816 both Houses of Parliament presented an address to the Prince Regent, praying that he would direct that some proper means should be taken to have the Statutes in connection with this subject arranged. That was all the address prayed. In answer to such address of both Houses of Parliament, the Prince Regent promised that proper steps should be taken to carry out the wishes of Parliament in this respect; but, notwithstanding such assurance, no steps were taken in the matter until the year 1831, when a Royal Commission was issued, by which the Commissioners to be appointed were directed to inquire whether the statute law in reference to criminal offences, and the common law also, could not be consolidated and combined. The Commissioners appointed made their Report in the year 1835, in which they stated that they highly approved the plan of consolidating the statute, or written law, and the common law, or unwritten law, into one Statute. In consequence of this Report, and the approval of the Commissioners so expressed, Lord Melbourne wrote and told them to proceed with the consolidation of such laws. In pursuance of such letter the Commissioners made seven more Reports, which, with the former one, made up eight Reports altogether, extending over a period of ten years, and these Reports, drawn up as they were by learned and efficient men, might be received as most valuable treatises on the subject with which they dealt. Agreeably to the instructions they had received, the Commissioners proceeded to digest the statute law, and the unwritten or the common law; and the effect of their doing so was, that they were enabled to frame two admirable digests, which might be turned into Acts of Parliament—the one digest embodying the statute and the common law respecting crimes and punishments, and the other consolidating the law of procedure so far as it related to indictable offences. Thus far matters proceeded down to the year 1845. In this year another Commission was issued, and the duties of the Commissioners appointed under the 333 same were, to revise, as it were, what the previous Commissioners had done; and it was but just to say that the second Commissioners performed their duties with the same diligence, activity, and zeal as did the first Commissioners. The second Commissioners made their Report in 1845, and stated in the same that they highly approved the amalgamation of the statute and the common law, and that it would be of the greatest advantage to the country, and they drew up a full Report relative to the same. They issued four more valuable Reports, and framed two Bills, one relating to criminal offences and their punishments, and the other relating to procedure. Their labours ended in 1849. There the matter stood for some time, until his noble and learned Friend (Lord Brougham) came forward and took it up. His noble and learned Friend then laid on the table of the House a Bill on the subject to much the same effect as what was recommended by the Commissioners, but subsequently withdrew such Bill, and laid another one on the table, which was called Bill No. 2. That Bill went before a Select Committee, who postponed the consideration of it till the next Session, for the purpose of having the opinion of the Judges taken relative to it. His noble and learned Friend, having considered that it was advisable to renew the Commission on the subject, applied to Government relative to the same, but in this view the then Government did not concur. His noble and learned Friend, if he remembered correctly, felt so strongly on the subject that he offered, sooner than not have the Commission, to defray the expenses of it himself, an offer which he (Lord St. Leonards) thought was very properly refused; since, if the Commission were desirable, the expense of it ought not to fall on an individual; and, if it were not desirable, it ought not to be granted at all. In 1852, when the noble Earl (Lord Derby) was in office, his noble and learned Friend (Lord Brougham) again applied to have the Commission renewed, but he (Lord St. Leonards), having very carefully and anxiously considered the matter, thought it would be better not to renew the Commission, but to introduce a Bill on the subject; in doing which he felt bound to say that he had received from his noble and learned Friend on the woolsack all the aid which his authority could procure for him. He himself had given to the measure all the attention which the 334 importance of the subject demanded, and the new Bill was framed with the aid of the former Bills by the persons deemed most competent to the task, from their intimate and accurate knowledge of the criminal law. The matter then had been thoroughly considered, and there had been five Reports of the second set of Commissioners on the subject; so that there were in all thirteen Reports, extending over a period of fifteen years, and all that labour and learning could accomplish was brought to bear on the subject. His Bill was read a second time, and sent upstairs to a Select Committee, on which Committee were the noble and learned Lord on the woolsack, his noble and learned Friends Lord Brougham, Lord Lyndhurst, Lord Truro, and other great authorities, among whom he might mention the lay Lords who had attended, and who displayed a judgment, a knowledge, and a discretion upon and an attention to the subject which did them the highest credit. This Committee had sat twelve days, and, curiously enough, the only two definitions that were left open for further consideration by them were those of murder and manslaughter. It was intended at first to divide the law into several heads, but ultimately to establish one law. The Bill, however, went over the close of the Session, upon the understanding that he (Lord St. Leonards) was to submit the Bill for correction to the Judges, and for this purpose he, as Chairman of the Committee, had written a circular to all the Judges relative to the wishes of the Committee, and asking them to favour the Committee with their opinions on the Bill. He received no answer to these letters, but on the 1st of October his noble and learned Friend on the woolsack addressed himself a letter to the Judges, and requested their opinion on that and some other Bill, and expressed a hope that such Bills would be proceeded with during the present Session. With that step he had no fault to find, although he was not aware that any such step had been taken; but on the 15th of December his noble and learned Friend addressed another letter to the Judges, in which he introduced a different question, for, after alluding to the difficulty of the subject, and making reference to what was called No. 1 Bill, he asked the Judges their opinion whether, considering that Bill, and taking it as a fair specimen of the degree of precision and accuracy that would be required in consolidating the Statutes, they 335 thought it desirable that that measure should be passed? His noble and learned Friend, whose attention had been directed to the subject of consolidation generally, had probably seen some reason to alter the opinions he had previously entertained, but he was not aware that in Committee his noble and learned Friend had ever expressed any opinion against the consolidation of the written and unwritten law, so far as regarded criminal offences. Shortly after the commencement of the Session he received, in common with their Lordships, a printed paper containing the opinions of the learned Judges on this question. The result of their answer was, that it was not desirable to make a formal codification of the written and unwritten law—that was to say, that it was not desirable to consolidate the statutory and common law as regarded criminal offences. This, and the opinion which had been expressed by his noble and learned Friend, led to the very important question—and the answer which he received from his noble and learned Friend would inform him what was the course likely to be taken by that House for some time to come—with respect to a codification of those laws. He was bound to say that he had always been opposed to codifications, but, after all that had taken place, and the House having taken up the question, he had thought it his duty to attempt the codification of the criminal law. The question now was, whether they were to have codification or not. Different Commissioners had, at different times, taken different views of the question; for, with reference to the unwritten law, it had been stated at one time that it could be digested much easier than the written law, whereas at another time directly the reverse was stated. The grounds on which, in a few words, he had been against codification were, that our language did not afford them the power of so accurately expressing themselves that they could be sure they would not exclude very important points and questions. They could never do so without taking great liberties with language, either as regarded the statutory or common law; and, as an illustration of what he meant, he might refer to one of those very Bills where—though no man living had the slightest difficulty as to what constituted murder and manslaughter—one of the greatest difficulties in the Committee was, what the definition of murder and manslaughter should be. The 336 History of the Justinian Pandects and the Code Napoléon afforded them useful lessons upon this question. If you were to begin to-morrow, as Rome did with her twelve tables, you might end as she did in Justinian's time, when it would have required many camels to carry the laws of the empire and its comments. Justinian framed a code, digest, and institute, and he would, if he could, have destroyed all the previous commentaries and digests: he prohibited any comment on his Pandects, but he was compelled quickly to add himself new laws, and to improve his work. Time accomplished what he could not, when a copy of the digest was discovered or brought forth in 1130, unaccompanied with much previous learning; but there soon followed what has been described as "a mighty inundation of voluminous comments, with which this system of law more than any other is now loaded." Let us now look at the Code Napoléon. It was supposed that every man would have the whole law in his pocket, if not in his head. The French lawyers sold their law-books as waste paper, and had rapidly to buy them back at a different price. The Code left a vast body of old laws and regulations in force, and a very few years after the Code, a French lawyer of eminence stated in print that the Code, like the Pandects, had already produced treatises, commentaries, &c., which would load many camels. The framers of the Code were aware of the difficulties with which they had to contend. They observe in the preliminary discourse that a code, however complete it may appear, is no sooner enunciated than a thousand unexpected questions arise before the Judge. For the laws once digested remain as they were written. Man, on the contrary, never rests; he is always in motion; and this movement, which never stops, and of which the effects are variously modified by circumstances, produces at every moment some new combination, some new fact, some new result. A multitude of things are therefore necessarily abandoned to the rule of custom, to the discussion of learned men, to the arbitrament of Judges. He might be allowed to make one quotation from the discourse:—L'office de la loi est de fixer, par de grandes vues, les maximes générates do droit, d'établir les principes fécondes en conséquences, et non de descendre dans le détail des questions qui peuvent naître sur chaque matière. C'est au magistrat et au jurisconsulte pénétrés de l'esprit des lois à en diriger l'application.337 They attempted only to establish general principles, although of course they entered into many details. The question before the House bore upon the undertaking of his noble and learned Friend on the woolsack to consolidate the general statute law. He found no fault with the step which his noble and learned Friend took when he appointed several barristers to assist him in the undertaking which he had commenced; nor did he now find fault with him in so far as he had taken measures to see what could be done in the way of legislation; but he was bound to say that he should wholly object to the continuation of the present Board, as he believed they called themselves, without some considerable modifications. There had been no instance in which either House of Parliament had approached the great question of the consolidation or codification of the Statutes in which a great deal of solemnity had not been observed. In 1816 there was an address to the Crown simply to arrange the Statutes—that was the phrase then used—and when Lord Bacon spoke of consolidation, he proposed that it should be considered by persons appointed by both Houses of Parliament. Now what had the Government done in the present instance? His noble Friend had appointed a number of gentlemen who filled no proper office. The papers which were furnished to that House were headed, "The Statute Law Commission: Second Report of Mr. Bellenden Ker to the Lord Chancellor, on the proceedings of the Board for the Revision of the Statutes." Now, there was really no Board, and no Commission appointing them. The appointment of a number of individuals by the Lord Chancellor to undertake so great a work as this was not a proceeding to be encouraged. The Lord Chancellor was no doubt placed in a painful position as to the reform of the law. He had not a single person to assist him in the preparation of any measure he might desire to initiate, or in the consideration of any measure before the Legislature. The Chancellor had no power to appoint a Commission, and if the plan was to go on, the Crown or Parliament should make the necessary appointments. He would say no more on this subject, as he collected from the gestures of his noble and learned Friend on the woolsack that it was not his intention to continue the Board beyond the current year. The Lord Chancellor was compelled to go to the Treasury to ask them for money to employ persons to 338 do the necessary work, and to assist him with their counsel. He did not think a Board ought to be continued at a great expense; but he would press on the Government, just as he should have done on the Government of his noble Friend (the Earl of Derby), had he been in office, the absolute necessity of appointing a conveyancing counsel for the department of the Lord Chancellor. It was impossible he could do his duty effectually without such aid. When the court of appeal was established, the intention was thereby to give greater time and liberty to the Lord Chancellor, not only to attend in that House, but to consider legal measures—to consider calmly and gravely the questions involved in the Bills which were laid upon their Lordships' table. When the Minister of the day went to the noble and learned Lord who might be on the woolsack, and asked him what he thought of such and such a Bill, the Lord Chancellor was often obliged to say that he knew nothing about it. Now, if they wanted the opinion of the Lord Chancellor, they must not only give him time, but give him aid. It was an absurdity that the Home Office should have the benefit of counsel, and that the department of the Lord Chancellor should be without such assistance. It seemed, indeed, very strange that the Lord Chancellor, on whom the responsibility of all legal measures should rest, had no one to assist him in the discharge of so important a duty. Only the other night there was before their Lordships a Bill to consolidate the law of landlord and tenant in Ireland. That Bill was sent to a Committee, which the Lord Chancellor found himself unable to attend. Now, no such measure ought to pass without receiving the attention of the Lord Chancellor; but if he had the aid of counsel, who could draw his attention to that which was most material in a Bill, he would be able in a very short time to make himself master of all such measures. He was desirous to see such a consolidation of the statute law as would be carried forward in an enlightened spirit. Now, no one could be more desirous than himself to effect this object. But he very much dreaded a mere consolidation of the statute law by a number of persons sitting down in a room to do it. What he thought was a consolidation of the law worth having was, when there were parties who were looking to the improvement of a particular branch of law, and who perfectly understood the working of the law as it now stood; they could then 339 obtain from these parties suggestions for the amendment of the law, and they might, as in the case of the Lunacy Act which was passed last year, pass an Act at once consolidating and amending the law, which would be of the greatest advantage. He called that a consolidation of the law worth having, which was brought about in a particular branch of it by persons who perfectly understood the operation of the law as it stood. If it was once understood that the head of the law was associated in the consolidation of the law, and that it proceeded under his guidance and direction, they might depend upon it there was no important branch of the law in which they would not find persons competent to make the necessary improvements. In the second Report of the learned persons who had been appointed by the Lord Chancellor to consider this question of consolidation, there was something said of re-writing the law, and this expression was used more than once. This made him (Lord St. Leonards) tremble, for in consolidating the law they must follow the very words of the law they consolidated, or else they must have new decisions on every consolidation they made, and thus the greatest mischiefs might arise. Every man who desired, as the phrase went, to drive a coach and six through an Act of Parliament, looked to see how the phraseology of an Act was altered in order to carry his object. He should therefore look with alarm at any attempt at re-writing the law. There was also a suggestion that the draughtsmen of the new consolidated Statutes should make amendments. Now, certainly, that was a power that he would not concede to any draughtsmen, unless they were under the direct control of the head of the law. He should be glad to know who would look over these laws when they were consolidated? Why, no one. It would be the interest of no one to do so. If they were undertaken without the concurrence of the persons who were interested in the subjects to which they related, they would be considered as mere consolidations of the law; people in general would take it for granted that the law would not be altered; and they would not be undeceived until questions arose upon the alterations in the language of the Statutes which had been introduced in the progress of consolidation. He would now conclude by asking his noble Friend on the woolsack what Her Majesty's Government proposed to do in regard to the Criminal Law Amendment and Consolidation Bills?
THE LORD CHANCELLOR
said that, in answering his noble and learned Friend's questions as to what were the intentions of the Government with respect to the Bill for the consolidation of the criminal law, he regretted that he should be compelled, to some extent, to restate what he had already stated on more than one occasion during the present Session. His noble and learned Friend's observations, coming as they deservedly did with the weight of such an authority, related to two entirely different subjects: first, to the Bill that was introduced by himself in the last Session of Parliament for the consolidation or codification of the Criminal Law on a particular subject—that of offences against the person; and partly to the general consolidation of the Statute Law.
He did not mean to follow his noble and learned Friend's very accurate statement as to what had been done with respect to the first of these subjects. His noble and learned Friend has stated that no fewer than thirteen or fourteen Reports of successive sets of Commissioners had been presented during the period from 1835 to 1850. In accordance with the recommendations of these Commissioners, two Bills had been framed; one relating to procedure, which he put out of the question for the present, and another Bill which it was intended should contain all that constituted crime in this country, and all the punishments that could be inflicted for the various offences recognised by the law. This was to be, in effect, the criminal code of England, so far as related to crimes and punishments. That Bill having been framed, an attempt was made in two successive Sessions by his noble and learned Friend behind him (Lord Brougham) to pass it by a simple enactment that from and after the passing of that Act it should be the criminal law of England; that whatever was there prohibited should be taken to be prohibited by that Act, and that whatever was not prohibited should be taken to be permitted. He did not mean that these were the words of his noble and learned Friend, but that was his meaning. When that Bill was introduced, he (the Lord Chancellor) had not the honour to hold the post he now occupied; he was one of the common law Judges, and he remembered that the proposal struck him as one fraught with very great danger. Let their Lordships just remember the difficulty there must be in any one's having made himself so thoroughly master, not only of what 341 was in the Bill, but of the whole possible range of offences, that he could be prepared to enact that nothing that was not there prohibited should be considered a crime. At the same time, he did not entertain the aversion to a code which seemed to be entertained by his noble and learned Friend (Lord St. Leonards). He should certainly have the same feelings which his noble and learned Friend had expressed, if by a code he could understand something that was never to be amended or elucidated. He understood by a code very much the same thing that was described in the prefatory discourse to the Code Napoléon, something that should enunciate general principles on which the courts might act, and which might be modified, when circumstances arose to require it. If they could but get competent persons to reduce the law, or any portion of it—such as the criminal law—into such a code, he could not but think it must be highly advantageous; and therefore, when his noble and learned Friend (Lord St. Leonards) announced his intention to introduce a fragment of the Bill prepared by the Commissioners—relating only to one class of offences, those against the person—he (the Lord Chancellor) told him that he would have his entire concurrence, and that he was glad to find he was making the attempt. When he (the Lord Chancellor) succeeded his noble and learned Friend on the woolsack, he immediately asked him if he intended to proceed with that Bill, for that, if he did not, he (the Lord Chancellor) would. His noble and learned Friend being, however, not only ready, but willing and desirous, to take the responsibility of carrying out what he had introduced, he (the Lord Chancellor) told him that he should have his cordial support, and any assistance which, from his position, he might be able to afford him. His noble and learned Friend worked hard at the Bill, which was accordingly introduced, and, after having been read a second time, was referred to a Select Committee, which was attended, not only by the law Lords, but by a number of other Peers who were perfectly competent to enter upon the general question. From them the Committee derived great assistance; and he desired to impress upon their Lordships that it was impossible for any measure to be more carefully considered than that Bill had been. The Committee did not quite finish its labours, in consequence of the absence of his noble 342 and learned Friend the Lord Chief Justice on circuit, and of the illness of Lord Truro, who had kindly undertaken to see if he could not form some more satisfactory definitions of the offences of murder and manslaughter than were contained in the Bill; the Bill, however, was reintroduced into the House at a late period of the Session, and printed as it had come from the Committee, though no doubt it required some not very extensive amendments to be made. His noble and learned Friend had stated that he (Lord St. Leonards) was authorised to write to the Judges on this subject; no doubt it was so, though he did not remember it: thus the matter stood at the close of the Session. In the course of the long vacation, he (the Lord Chancellor) looked over the Bill most assiduously, and he must confess that he was staggered at the difficulty of the task that they had undertaken. He could not but see that there were great doubts with respect to some of the definitions; that, however rude and unartistic might be some of our present definitions of offences, they practically did very well; and he could not help having some misgivings whether the more scientific definitions suggested by the Commissioners might not be the means of introducing uncertainty into the law, administered, as it must be, not only by the Judges, but also by inferior tribunals. Influenced by these considerations, and not knowing that his noble and learned Friend had already taken that step, he (the Lord Chancellor), about the middle of the long vacation, wrote to the Judges in general terms, requesting their opinion on the Bill, which he sent to them; not meaning to be bound by what they said, but feeling it was desirable to know what they thought on the subject. Not receiving any answer from them to his first letter, about the beginning of December he wrote to them again, more pointedly asking them for their opinion. That letter had already been printed, and was now before their Lordships. What he meant to convey, and what he believed he did convey in that letter, was that he had found the task one of great difficulty; that if it was intended to prosecute the plan of the Commissioners, it was necessary to have the Bill made as perfect as possible; and that he therefore wished to know whether, assuming that the whole criminal law, as far as related to offences and punishments, was to be formed into a code by one or more Sta- 343 tutes, and taking the Bill submitted to them as a fair specimen, or nearly a fair specimen, of the degree of precision it was possible to attain—whether it was their opinion that it would be a course likely to produce benefit in the administration of justice, or the reverse? Before the meeting of Parliament he received answers from all the Judges, and on a very early day in the Session he laid them on the table of the House—they had now been in the hands of their Lordships several weeks. His noble and learned Friend now asked him what course the Government intended to pursue with respect to this Bill. Well, perhaps in strictness he might reply to that question by saying, Litem lite resolvo! and by reminding his noble and learned Friend that it was in truth his Bill, and asking him what course he intended to pursue. Although, however, that was in truth the case, he did not intend to shrink from the responsibility either of the Bill or of the Committee of last year. He did not like, even in his own mind, to say too much with respect to the difficulty attendant upon the Bill of last year, lest he should come to the consideration of the subject with a mind too much prejudiced. He did think, however, that before the Bill was abandoned they should again have a Select Committee—not merely the same Committee, but with such other Lords as might feel desirous of assisting them—to reconsider it, with the Judges' opinions and their report upon it to the House. If it was the opinion of such a Committee that it was idle to proceed with the measure, he could only say that they had done the best they could, and that they abandoned it only because it was found that it would turn out impracticable. He could not but fear that that might be the result; but he did not like to abandon the attempt to legislate upon a subject which had occupied the attention of the public for more than twenty years, without making a final inquiry as to whether the circumstances would justify such a course. His intention, therefore, with respect to this Bill was to move that the Bill, together with the Judges' opinions, should be referred to a Select Committee, who should report upon the subject to the House.
His noble and learned Friend had then gone on to make some observations with respect to the consolidation of the statute law. He had more than once stated his opinions as to this subject, and he would endeavour with as little repetition as pos- 344 sible to do so again. He was bound to say that this question seemed to him to stand upon quite a different footing to that occupied by the one they had been just discussing. If he felt distrustful as to the possibility of codifying the whole criminal law, that did not lead him to the conclusion that a great deal might not be done to consolidate great portions of the statutes, both relating to the criminal law and otherwise. He believed also that, without carrying into effect the complete codification to which he had referred, a good deal of amendment might be introduced into the criminal law without the least difficulty in the course of consolidating the Statutes. Many of those amendments were pointed out in the papers now before their Lordships, and he would ask, even if it was found impossible to convert the criminal law into a code, what there was to prevent them from following the recommendation of the Commissioners as to consolidating the law, and putting it into the form of amended Statutes? In taking that course they would only be doing what was done by Sir Robert Peel thirty years ago. With regard to what his noble and learned Friend called "the Board for consolidating the Statute Law," which had been appointed by him (the Lord Chancellor) last year, he had only to remark that, if they had called themselves a Board, he supposed it was only for want of having any other name by which they could designate themselves. What he stated at the beginning of last Session, soon after he succeeded to the Great Seal, was, that he thought it would be extremely useful and not very difficult to consolidate large portions of our statute law. A reference had been made to a Commission on the criminal law, which made a very learned and elaborate Report in 1835, as to how far it might be desirable to consolidate the statute law. There was also an Address from both Houses in 1816 upon the same subject; and Lord Lyndhurst had the other evening stated a variety of other periods at which a consolidation of the law had been contemplated. What he (the Lord Chancellor) stated at the beginning of the last Session was, that he thought it would be better, instead of issuing a new Commission, to get a number of working and practical men to give them specimens of what could be done in the way of consolidating the statute law, by so dealing with two or three subjects, and thus enable the House to judge from the specimens 345 they produced how far the course was one which it was advisable to pursue further. He never, however, had the least idea of continuing the employment of these persons. In a letter which he wrote to them at the commencement of their labours he told them that their engagement was to be for only one year; and that under the direction of Mr. Ker, who was in some degree at their head, they were to attempt to consolidate some few branches of the law. The term of their services expired at the end of the present month, and he (the Lord Chancellor) should then receive from them whatever specimens of consolidation of branches of the statute law—with here and there a little common law, as convenience dictated—they might have completed; and should see whether he could honestly recommend them to the adoption of their Lordships. If that was not the case—although it would be a mortification to him, as he intended this should be a proof to their Lordships that he was doing something useful—he should not feel warranted in pressing the matter forward; but if, as he expected, he found from these specimens that they had been able to consolidate some of the branches of the statute law in a useful form, and one which he could recommend to the adoption of the Legislature, he should not proceed with this experimental body of gentlemen acting under himself—a method of proceeding which he should not have adopted but from considerations of expense—he should propose that certain Members of that and of the other House, with some of the Judges, should form a standing Board, under whose superintendence the consolidation of the statute law should be proceeded with. He did not mean to say that he had yet matured in detail his scheme for the direction of the future proceedings; because the first thing was to see what could be done; and that was a question that could only be answered when they saw what had been done during the last year. He had now answered the questions of his noble and learned Friend. As to his suggestion, that he (the Lord Chancellor) should have a standing counsel, he must say that it had never occurred to him; it was, however, well worthy of attention, and should have his best consideration. His noble and learned Friend seemed to think that he (the Lord Chancellor) had not done too little, but too much; by which he supposed it was meant that he had attempted to do too many things, and did not properly economise his 346 time so as to apply it to the proper objects. His noble and learned Friend had said that when the Lords Justices were empowered to hear appeals in Chancery, it was intended that they should lighten the duties of the Chancellor by despatching a good deal of the appeal business of the Court of Chancery. But although it might be said that one object of the appointment of the Lords Justices was this—to give the Lord Chancellor time to devote to other duties—he thought there could be no doubt that one great object of that measure was that appeal cases in Chancery should be heard by the Lord Chancellor, together with the Lords Justices, whenever that could be done. During the two terms when their Lordships' House was not sitting, he had adopted the rule of sitting with the Lords Justices four days a week, sitting alone the other two days. When the Session approached he certainly did take two or three holidays, if he might so call it, from Court, in order to devote himself more attentively to one or two of the Bills that were then under discussion, or were about to be introduced into that House—such as the Testamentary Jurisdiction Bill, the Common Law Amendment Bill, and one or two Bills of minor importance. During the Session of Parliament, he did not sit with the Lords Justices except on rare occasions—either when the parties had desired that their cases might be so heard, or when the Lords Justices thought that his presence with themselves might be desirable. If he had misinterpreted his duty as Lord Chancellor, he was sorry for it; but he had acted according to what he considered the proper interpretation of the Act which constituted the Lords Justices. His intention then was to move, on an early day, the appointment of a Select Committee to consider the Bill of last Session, with reference to the opinions of the Judges, and to report their opinion as to what ought to be done.
said, that he had heard with a degree of pain, which he much feared, if not confined to himself, was shared by but few of their Lordships, the speeches of his two noble and learned Friends; because he could not help feeling that, after their statement of the conclusions at which they had arrived, this great object of giving to the people of England the inestimable benefits of a code of criminal law in its two branches—a code of criminal law touching crimes and their punishments, and a code almost more ne- 347 cessary than that, a code of criminal procedure—that this favourite object of all friends of the amendment of the law, of the good government of the country, and of the happiness of the people—that this favourite object, if not now taken from their grasp at the moment when they believed it to have been almost attained, was, at least, exposed to new and imminent hazard. He agreed with his noble and learned Friends in the tribute which they had paid to the learning, ability, and astuteness of the learned Judges, and with them he felt grateful for the reports which those learned persons had made in answer to the letter of his noble and learned Friend (the Lord Chancellor); by those answers he thought that they might materially benefit in their proceedings in this great matter. He had, however, one objection to make to what he believed to have arisen from inadvertence on the part of his noble and learned Friend—namely, that, after the Bill had received the assent of the House by its second reading having been agreed to time after time, and its principle solemnly sanctioned, he should have referred it to the Judges to give their opinion on the general question, whether or not there ought to be a code or digest of the law. He said that the Bill had, again and again, been read a second time, because, as his noble and learned Friend (Lord St. Leonards) had stated, the present measure was but a fragment—into which considerable and very valuable improvements had been introduced—of the Bills formerly brought in by himself (Lord Brougham), and laid upon the table of their Lordships' House, and which had received the sanction of the House, by being read a second time, and referred to Committees for the purpose of being further proceeded with after the details had been arranged. His noble and learned Friend (Lord St. Leonards) had been very accurate in his statement, and he had only omitted to state a fact of which, from not having been then in the House, he was probably ignorant—namely, that the reason why the Bill introduced in 1845 was not proceeded with in that year was, that his noble and learned Friend then on the woolsack (Lord Lyndhurst) recommended that it should be referred back to the Commissioners, to whom should be added one or two new members, in order that fresh minds might be brought to the consideration of the details of the measure, and the risk of error or oversight be avoided. The Bill 348 underwent this revision, and, after various amendments had been made, it was reported to the House considerably improved. He (Lord Brougham) then had charge of the Bill; it was cordially supported by his noble and learned Friend then Lord Chancellor, and was referred to a Committee. As Chairman of that Committee, he (Lord Brougham) corresponded with the Judges, sending to them copies of the Bill, and of the Reports of the Commissioners in which it had originated. Whether it was that the learned Judges were alarmed at the mass of papers, or that, from their other occupations, they had not time to consider the details of the Bill, certain it was that from only one or two of the English Judges did he receive any answers. Answers containing very valuable suggestions as to the details of the measure were, however, received from the Scotch and from some of the Irish Judges; but it was then too late to proceed with the Bill that Session. During the next Session the code of procedure was presented by the learned Commissioners, but that code never underwent the process of revision. Then came the period when, unfortunately, the Commission was allowed to expire, and he (Lord Brougham) failed in his attempt to have it revived. He, however, received from the then Government an answer assuring him that the past labour would not be found to have been thrown away, for proceedings might be taken upon what had already been done. After that his noble and learned Friend (Lord St. Leopards) had come into office, and that had taken place which he had described. They had derived great benefit from the noble and learned Lord's labours, for which they had the more reason to be grateful since it was known that his noble and learned Friend was not very favourable to codification. It was thought expedient by Lord Lyndhurst and himself (Lord Brougham), in accordance with a suggestion of the Commissioners, that, instead of attempting to carry the whole measure as before, it should now be divided into six or seven portions, and the first of these was the chapter respecting offences against the person, which had been brought in by his noble and learned Friend (Lord St. Leonards), and which underwent most careful revision and scrutiny in Committee during eleven or twelve long sittings, and was then reported to the House. He remembered that, when it was then said that the learned Judges would give their 349 opinions, he stated that he had tried them some years before, and they had failed him. His noble and learned Friend the Lord Chancellor said that he did not think they would fail this time; he interposed his authority, and the application had met with the success which was anticipated by an answer from all the Judges. His complaint was not of the learned Judges, but of his noble and learned Friend, who ought not to have referred it to the Judges to give their opinion upon the question whether or not we should have a code or digest of the law, but should simply have asked them for their opinion upon the details of the measure, and for remarks upon the structure of the code that had been prepared. The consequence of the course adopted had been that we had now for the first time in the history of our legislation a decision of the House of Lords—come to not once, but repeatedly—acted upon not once, but repeatedly—approving by the vote for the second reading of the principle of the measure—as completely giving the opinion of their Lordships' House in favour of codification as the Judges had unfortunately given their opinion against it—that opinion of the House, sanctioned by three several decisions, and acted upon to the extent of sending a Bill for codifying the law to a Committee, and receiving with favour the Report of the Committee for a codification:—we had that opinion referred to the learned Judges, who had given their opinion that the House of Lords was entirely wrong, that its votes in favour of a code were entirely contrary to their views, that—an opinion expressed by one and all with more or less of courtesy—their Lordships were entirely mistaken, and that a code was out of the question. No doubt the Judges, in answering his noble and learned Friend's letter, had a perfect right to form and to give their opinion, and to say that the House of Lords was wrong, and that another course ought to have been pursued; but he must have leave, on the other hand, to say that he was not at all satisfied with their reasons, and that he considered some of those reasons utterly inapplicable to the subject. Upon most subjects touching the administration of the law, or the application of the law to any given state of facts, he should bow to the decision of the Judges with implicit deference—he could not say in all cases, because not many months back he differed from a large majority of the Judges on a question of pure law, upon which he 350 had the good fortune to be supported by all the law Lords in that House, except his noble and learned Friend on the woolsack:—in one of the most important cases that had ever come before their Lordships on appeal they had been under the necessity of deciding that a great majority of those learned persons were wrong in the legal opinions they had expressed:—however, generally speaking, and with very few exceptions, he regarded their opinions on questions which came within their own province with profound respect; but it was a very different thing when they went out of their province—for which he did not blame them, as they had been dragged out of it by his noble and learned Friend—and when, not merely administering the law, stating what the law was, and applying it to the facts before them, they entered upon the province of legislation, and gave their opinions as to what the law ought to be and what it ought to be made; what changes ought or ought not to take place in it; what changes would make it better, and what changes would make it worse; what their feelings were in favour of or averse to, what their opinions sanctioned or condemned:—when they did this, he had not the same respect for those learned persons; he paid not the same deference to their authority; he did not feel called upon to submit to that authority, to abandon his opinion, and call upon their Lordships to abandon theirs, and to retrace their steps, because the opinions of those learned persons differed from his own opinion and from the opinion of their Lordships. When he looked back to not a very short life of legislation, and when he reflected on the various measures that he had at different times promoted in both Houses of Parliament, and many of which were now, as he thought happily, the learned Judges might think unhappily, passed into law, he hardly recollected one—with the single exception of the Act to the passing of which he should ever look back as one of the happiest circumstances of his life—namely, the Act of 1811, for suppressing the slave trade, by treating those engaged in it as felons, and not as traders—with this exception, he did not recollect any of the Bills for the amendment of the law which he had at various times introduced into Parliament, and most of which had passed, that had received the countenance of the heads of the profession of the law, and that had not rather met with their very decided, though not 351 always very loud, disapproval. For instance, that most important measure which he failed in carrying through the other House in 1816, and afterwards in 1829 and 1830, for enabling the truth to be given in evidence in all criminal prosecutions for libel, and to which the present Lord Chief Justice, by his Committee, afterwards obtained the assent of the Legislature, was loudly disapproved of by the learned Judges. Their opinions were not asked upon it, for we had not then come to the plan of submitting questions of legislation for the consideration of the Judges; but, from constant intercourse with them, he knew that in those early days they loudly and entirely disapproved of that salutary amendment of the law. So with various other measures. He believed that every one of them disapproved of the changes which he effected in the bankrupt law in 1831, and also of various other measures of a similar kind. He believed that only two of the Judges could bear to hear mentioned his Evidence Bill for allowing parties to suits to be examined. All the Judges, with the exception of one, were against that measure, and only two treated it with any degree of toleration. He did not mention these circumstances for the purpose of diminishing the authority of the Judges; but for the purpose of bearing testimony to the exemplary candour of those learned persons, who, after having had so strong an opinion against that important amendment of the law, had now, he believed he might say without any exception, come round to the opinion that they had been wrong, that it was a great improvement, and that nothing had tended more to facilitate the process of arriving at the truth, to simplify the procedure, and to render more certain the administration of justice. It was his firm belief that, when we should be in possession of a criminal code, and still more when the digest of the law should be extended to its various other branches, and we should have the inestimable benefit of a general code of our law, civil as well as criminal, of procedure as well as of law, the Judges would come to be of opinion that in this they had received an inestimable advantage, and a great help in the administration of justice. He should not attempt to answer any of the general objections which had been taken to a code by these learned persons. It might be that some of them preferred that state of the law which left the Judge at liberty to extend or contract it, 352 and to interpret it more or less laxly, according to circumstances. One of these learned persons, who was somewhat hypercritical in his remarks upon the language of the codes, said, giving his opinion in favour of codifying the statute, but against codifying the common law, that "it would be reducing the unwritten law to a statute," and "it would be to discard one of the greatest blessings we have for ages enjoyed." What was that? "Rules capable of flexible application." Flexible application! A rule capable of flexible application being what he should suppose any common understanding would be disposed to say was no rule at all; and was nothing like a rule. In short, an opinion seemed to prevail among these learned Judges that the more vague and uncertain was anything in the law, the better it was, and the more easy to administer (though in this they were quite mistaken), because they could adapt it to different circumstances, and change it ad libitum from time to time. They seemed to complain of the sort of servitude in which they would be if the law was reduced to a written text, and, in opposition to the maxim, misera servitus ubi jus vagum et incognitum, they seemed to think misera servitus judicium ubi jus certum et cognitum. He would not enter into an argument on such subjects as these, and would only briefly advert to what was a very favourite topic with those who were against codifying or digesting the law—the example of the French Code. They were deceived by the form of expression in the introduction to the French Code—that there was no detail in codes, that they only laid down principles, and that the law really was to be found in the decisions of the courts. If their Lordships would refer to that Code, they would find that every particular was laid down there in every part, both as to criminal law, civil law, commercial law, and the law of procedure. Cases might be, and very often were, answered by lawyers, simply by looking at a particular chapter and section of the Code. What was the opinion on this point of a very practical lawyer, not a speculative reasoner or a pedantic dealer in novelties and fancies—he meant a gentleman lately at the head of the French bar and also of the French Assembly, M. Dupin? That gentleman, when asked his opinion of the benefit derived from the Code Napoléon, said:—It is not true that the proportion of decided cases has prevailed against the text of our code, 353 the charge generally made; nor are we in any way threatened, even at a distance, with the danger of seeing the letter of our law disappear under the load of commentary and interpretation. In every discussion the text of the law is first looked into, and if the law has clearly spoken, it is decided non exemplis sed legibus. If the law has not clearly spoken, its silence is endeavoured to be supplied. But what country is there where decisions have not been used to supply the defects of legislation?He continued:—As to the Code, it is clear and methodical, neither too long nor too short; the language of the Legislature is noble and pure; the rules are well laid down, and, with the exception of the difficult subject of mortgages, it has met with nothing but approbation.He added:—All these codes, such as they are, have been productive of the greatest benefits; they have delivered us from the chaos of our ancient unwritten law.That was the opinion of this head of the lawyers of France upon this subject, and not only on the benefit of reducing the various laws prevailing in different provinces into one, but of directing the normal and commercial law which had always been the same throughout all France. The learned Judges had, however, in his opinion, conferred upon the House great benefit by their minute observations upon the details of the measure, and by their remarks it was the duty of their Lordships to profit; but he did not think that the bulk of their objections, even to the details, were well founded. Some slips they had undoubtedly pointed out; but they were not of great consequence, and, in other instances, the Judges had themselves fallen into manifest error. For instance, two or more of them took the objection to the 133rd section, that there was nothing in it to prevent a man's knocking another down, provided he did him no bodily harm. In that clause this was not said to be an offence, "and," said one of the Judges, "if I am not greatly mistaken, if a man knock another down, and do him no bodily harm, he will not, after the passing of this Act, be liable to prosecution or punishment." He (Lord Brougham) said it with great respect, but the learned Judge had anticipated what was the case—he was "greatly mistaken," for had he looked at the 127th section, he would have found that it was punishable if a person, without doing any grievous bodily harm, or any bodily harm at all, should do any violence to another. Many 354 persons would probably think it difficult to knock a man down without doing him some bodily harm, but it certainly would be impossible to do so without inflicting violence upon him. This instance showed that several of these learned persons had fallen into the errors which they thought so likely to beset those who dealt with this subject. Some of them objected to the definitions of offences, and one said that he preferred the common-law definition of larceny to the statutory definition. He (Lord Brougham) should like to know what the fifteen common-law Judges would give as the common-law definition of that offence. He was quite sure that, if they had no communication together before the answer was given, we should have from them fifteen definitions, each one materially differing from the others, of what the law meant by larceny. So he thought of one or two matters, which were said by others of the learned Judges to be defined at common law. But this was exactly the state of things—which one of the number said was the greatest blessing we had for ages enjoyed—"a rule flexible in its application," so that you might have fifteen different modes of treating larceny, fifteen ways of treating assault, and so on; each Judge having his own definition, and each treating it in a different way. Observe the evil of this common-law mode of dealing with things. The Judges made up their minds upon the subject after the case had arisen; and every objection that existed to an ex post facto law existed to "Judge-made law," as Mr. Bentham used to call it—that was, to law defined by the Judges and not by Statute. The crime was only defined when the case went into court, and it was wholly unknown to the party, both in civil and criminal cases, when he contracted, or when he committed the offence. The definition was made—that was to say, the law was established—after the act done, and when the party, or his rights, were on trial. Was that a fitting way of dealing with your subjects? Was that a fitting way of telling the community the law they lived under? Was that the return they made for the allegiance of the people? Was that the kind of protection they gave them, that they would not tell them until after the event, until after the offence committed, until after the act done, what was the law? He thought that common sense and common reason, which was said to be 355 the very essence of common law, ought to tell the advocates of common law, and the enemies of reducing it into a written form, that that was not the mode to deal with the subject. To give their Lordships an idea of the vast amount of matter through which a man must wade in order to get at a knowledge of what was the common law of this country, he would give them one illustration. The reports of adjudged cases in the courts of Westminster during the last ten years only filled 127 volumes of 111,490 pages; and it was in this forest of decisions, this entangled wood of cases, parts of which were inaccessible even to the learned, all of which was more or less inaccessible to the unlearned, filled with adumbrated places and dark recesses, but all tangled with briars—it was in this forest that you had to search, through these 127 volumes and 111,000 pages, for what the opinions of the Judges were upon points of law; and that enormous mass only contained the opinions delivered during the last ten years. The Statutes passed during the same period occupied ten volumes of 6,000 pages; if from all these they took away the revenue Acts, the continuing Acts, and those which, though nominally public, were really of a private nature, he did not believe more than a few hundred pages would remain, and that very small number would represent the whole amount of legislation during the same years. In his decided opinion some endeavour should strenuously be made to consolidate and digest the criminal law. He held that they were bound to pay the greatest deference to the opinion of the learned Judges on the particulars respecting which they were kind enough to inform the House. He would mention particularly Mr. Justice Coleridge, Mr. Justice Cresswell, and Mr. Justice Wightman, who had made most excellent observations, some of which were right, but others, he had no doubt, further inquiry would induce them to modify; but, in any case, they must derive great benefit from perusing these opinions. If they adopted the suggestion of his noble and learned Friend, they would find occasion to profit by them. He had no objection whatever that their reasons against the proposed attempt being made should be taken into the fullest consideration, as embodied in their answers to the letter of his noble and learned Friend.
§ House adjourned till to-morrow.