Lords Sitting of 17 February 1857

THE STATUTE LAW COMMISSION.

  QUESTION.
  LORD BROUGHAMsaid, he should be glad to hear from the noble Lord on the woolsack the progress made by the Statute Law Commissioners up to the present time.
  THE LORD CHANCELLORsaid, the Commissioners had been engaged during the recess in preparing a number of Bills, and it was his intention on an early day—in this or next week—to lay upon the table seven Bills for the entire consolidation of the law relating to criminal offences. The Bills had been prepared before the end of last Session, but they referred partly to England and partly to Ireland also, and it had been thought necessary to send them over to Ireland for the consideration of the proper authorities there. When they came back, they presented such an incongruous mass, that it had been found necessary to frame a number of separate Bills and these to the number of seven would now shortly be laid before their Lordships, and he would then state in detail what had been done and what was being done by the Commission. With regard to complaints made in another place, that the Commissioners did nothing, he only wished those who made the complaint had an opportunity of seeing one tenth part of the difficulties which beset the work on which they were engaged. Many efforts had been made to produce a greater amount of show for the labour bestowed, by means of short cuts, but it was found impracticable, and it had been unanimously resolved to begin from the statutes of last year, (19 & 20 Vict.), and go backward through the whole statute-books, section by section, in order to see what sections were repealed and what wore not, respecting every head of consolidation. He hoped in the course of the Session to lay on the table two or three other Bills, in addition to those relating
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  to the criminal law. He would not say more with regard to those Bills at that time, except that it was his wish to proceed with them at an early period of the Session: but he would not go further until he could see his way clearly.
  LORD BROUGHAMsaid, he wished to ask his noble and learned Friend on the woolsack what means he had taken, or thought he could take, to obtain, he would not say the prospect, but the possibility of anything like a digest of the statute, and much more of the common law passing through the two Houses of Parliament? It was easy to complain of digests having been prepared and never passed. It was no fault of the Commissioners that those digests had not passed; it was the fault of our Parliamentary constitution, he feared its enemies might say; for on three several occasions had digests of the criminal law been skilfully and carefully prepared by the Commissioners—those industrious, learned, and under-paid men, who were now the objects of such unmeasured attacks, he would not say in the other House of Parliament, but out of doors—on three occasions, he said, had digests of the criminal law been brought in and very nearly passed through their Lordships' House. His noble and learned Friend on the woolsack, and his noble and learned Friend not now in his place (Lord Lyndhurst), and he might say Lord St. Leonards also, with himself (Lord Brougham), came to the lamentable conclusion some time ago that it was in vain to pass a digest of 1,500 articles in their Lordships' House, and then send it down to be discussed in another place by 120 barristers, attorneys, and 300 or 400 magistrates, each having an attorney at his elbow to suggest doubts and difficulties at every step, in the hope of being able to pass it into a law. There was but one course to take, which was that adopted with respect to Sir Robert Peel's Bill for the Consolidation of the Law of Larceny and Lord Henley's on Bankruptcy—namely, that confidence, or almost entire confidence, should be given to the skilful, learned, and experienced men who were employed to draw up that digest, and after that was done that Parliament—he would not say in every particular, but generally—should accept and adopt it. Did they wish to have a digest or not? That was the real and only question. If they did, it was on those terms alone that they could have it.

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  He trusted that on this subject he might be found for once in error as a prophet of evil, as he was sometimes too sanguine a prophet of good, and that he was not taking a too desponding view of it; but he was confident that the sooner men laid to their hearts the necessity of that abstinence which he had suggested in the consideration of a digest, the better. He hoped these matters would be seriously considered by those who were desirous, year after year, to obtain this great good, a good which all seemed so desirous of possessing, and so few seemed disposed to make attainable. This observation certainly applied somewhat less to a digest of the statutes merely, than to what was the only real digest, one which embraced also the common law. Yet even to the statute law digest the remark was applicable. It would be found impossible to pass it through both Houses if every clause, every word, was to be the subject of discussion and contention among all the lawyers and all the magistrates in Parliament. He held it to be inexpressibly absurd for men, even eminent in the profession, to declare that they would withhold their confidence from the skilful and learned individuals who had prepared such digests, whether of common or of statute law, with infinite labour and pains. These men are lawyers, no doubt. Was Lord Elden no lawyer? Perhaps, take him altogether, he was the most profound and accomplished that ever lived in this country, and equally versed in every branch of our jurisprudence. Was Lord Redesdale no lawyer? One of the most learned and accurate of men, and whose knowledge was not confined to law; yet these two, the first lawyers of the day, did not think it beneath them to accept the Consolidation Bills of Sir Robert Peel and Lord Henley (then Mr. Henley Eden), trusting to the accuracy of the draughtsmen who had prepared them, and the learned barristers who had revised and corrected them, and except here and there offering a suggestion, they never dreamt of examining the details of the clauses, or weighing the expressions, or even objecting to the manner in which they were framed. Was this abstinence the result of inability to find out flaws and slips, or to suggest improvements? Was Lord Eldon a person unused to object and to criticise, or slow to doubt, or unable to find the excuse for hesitation—the arguments for delay? The most ingenious, the most
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  refining, the most subtle of men he was, just as certainly as he was the most learned of lawyers, nay, the most habitual doubter whenever he had to deal with a matter from which all doubt was not excluded by the necessity of going straight forward to the necessary object in view. It was not because these truly great lawyers were incapable of finding flaws, or raising doubts, that they accepted the digests submitted to them, or because their habits in general did not lead them to discuss, and object, and even to refine. No such thing. It was because they were men of sense, of practical sense, as well as of learning and of subtlety, that they abstained from the needless parade of their learning and the hurtful display of their subtlety; well knowing that there was no other chance of the object in view being attained than by lending their confidence to the workmen who had been employed. Surely it is not beneath those of the present day to show the like abstinence. Again he (Lord Brougham) took leave to affirm, that the only question is, will you have a digest of the law, or contrive to go without one? If you desire it, there is but this one chance of its being enacted. Thrice the criminal law digest was elaborately prepared by the Commissioners during not merely months but years of hard labour by themselves and their learned and able secretaries, Messrs. Greaves and Lonsdale, of whose skill and knowledge their Lordships had ample knowledge from their attendance upon the Select Committee, as well as from their answers to the objections of the Judges. He (Lord Brougham) understood that the Commissioners had been complained of elsewhere as overpaid, and as having done nothing. Let any one look at their most able and useful reports, and the many digests of crimes and punishments, next of criminal, procedure, as well as their Reports on Codification, with examples of a code, and he would be slow to say nothing had been done. He (Lord Brougham) had shown that the digests not passing was the fault of any one rather than the Commissioners. The attempts made year after year had been at length given up in despair for the reasons he had assigned, and in which no one more entirely concurred than his noble and learned predecessor, as well as successor (Lord Lyndhurst). As to the alleged over-payment of the learned Commissioners, he counted them as having

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  been ill-paid, from what other Commissioners received, and an attack had especially been made upon one of their number, who, from accidental circumstances, had been longer on the Commission than the rest, Mr. B. Ker. The fact was that when those Commissioners were first appointed, their salary was the same with the salary of the Real Property Commissioners, £2,000 a year; and he (Lord Brougham) afterwards, and he believed at the time when Mr. B. Ker was appointed by him, suggested that instead of a fixed salary they should be paid on their Reports—that was, on the work done. That reduced the payments to one-half. He had stated that Mr. B. Ker was only one of several. There were Mr. Starkie, Mr. Justice Wightman, Professor Amos, Mr. Jardine, and Mr. Austen. But Mr. B. Ker continued all through the Commission, and why? Because all the others had been promoted in the profession. Mr. Wightman had been made a Judge of the King's Bench, Mr. Starkie a County Court Judge, Mr. Jardine a police magistrate, Professor Amos had been appointed to India, Mr. Austen to Malta; and because Mr. B. Ker alone had not the good fortune to receive professional preferment, he was to have the other ill luck of being singled out as the scapegoat from among his brother Commissioners, and sent out, loaded with the sins of their imputed, but falsely imputed, shortcomings on his back, into the wilderness which resounded with the howlings of discontent at the perfectly imaginary crime of their not having been able to do what Parliament would not or could not effect. It was but ordinary justice to that gentleman who was first appointed by him (Lord Brougham), but afterwards by Lord Cottenham and Lord Lyndhurst, who had the highest opinion of the value of his services, to state that a more disinterested person was not to be found in any department of the public service. He was an active and most laborious member of four several Commissions for years, on not one of which did he receive any pay or any emolument whatever. On the Boundary Commission and Reform Bill of 1831 and 1832 for nearly two years; on the Commission of Arts and Manufactures; on the Record Commission for three years; on the Registration Commission for the same period. Not only he received no remuneration on any of these Commissions, but his devotion to the business of the one first named
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  (connected with the Reform Bills) had cost him the loss of a large portion of his business as an eminent conveyancer; and when others had in consequence of their services of a similar kind received great advancement, he received none, returned to the labours of his profession, without even mentioning what his services had cost him, and happily regained the practice which he had lost. He (Lord Brougham) only discharged a debt of strict justice to a person so deserving and so assailed by stating these facts, which were known to others as well as himself, to his noble and learned Friend on the woolsack, to his noble Friend not present (Lord Lyndhurst), to Lord John Russell, whose thanks had been again and again given for Mr. B. Ker's important services both on the Boundary Commission and in the preparation of those Bills carried through by the Government for the amendment of the Criminal Law and Abolition of the Punishment of Death.
  THE LORD CHANCELLORsaid, all that his noble and learned Friend had stated with regard to Mr. Bellenden Ker was founded entirely in truth; and he (the Lord Chancellor) would add that he never in his life saw a more laborious or a less selfish man. The Bills, for example, which he had stated his intention shortly to introduce, though they had been revised by different Members of their Lordships' House, were almost entirely to be referred to the labours of Mr. Ker in the discharge of his duty as one of the present Commissioners.

PETITIONS FOR PRIVATE BILLS—

  RESOLUTION.
  On the Motion of Lord REDESDALE it was ordered:—
  "That this House will not receive any Petition for a Private Bill after Monday, the 23rd day of March next, unless such Private Bill shall have been approved by the Court of Chancery; nor any Petition for a Private Bill approved by the Court of Chancery after Tuesday, the 19th day of May next.
  Ordered, That this House will not receive any Report from the Judges upon Petitions presented to this House for Private Bills after Tuesday, the 19th day of May next."

  THE COUNTY POLICE—DISQUALIFICA- TIONS—QUESTION.
  VISCOUNT DUNGANNONasked the President of the Council if it were intended by the Home Department permanently to rescind the rules relative to the qualifications

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  of persons to be chosen as chief constables in the several counties of England and Wales, as respected their age not exceeding forty-five years, and their not having been declared bankrupts, or never having passed through the Insolvent Court? He had heard that the rules had recently been rescinded, and he wished to know what were to stand in their place.
  LORD HATHERTONexplained that some appointments having been made in Ireland, which were found to be obnoxious to the regulations, the law officers of the Crown were consulted, and pronounced them invalid. To legalise these appointments, a short Bill would be brought in, and the disqualification on the ground of insolvency withdrawn.

  RAILWAYS (IRELAND)—THE COUNTY RATES—PETITION.
  THE MARQUESS OF CLANRICARDE presented a Petition from Cesspayers in the barony of Clonmacnoon against any measure empowering railway companies to have interest upon their capital secured upon the rates of counties. It was certainly a principle most unsatisfactory that such a state of things should exist. He could conceive that in some small barony, where nearly every individual could give his assent, and where a railway might be of great advantage, such an arrangement might well be made; but in the case of a county it was impossible that anything like a personal assent could be given; and the petitioners broadly stated that they entirely dissented from the payment of the rate in this instance.
  THE EARL OF LUCANsaid, the plea put forward for these guarantees was that it promoted the making of railways; but he believed the contrary was the fact, and that they were discouraged because those who would come forward to construct railways were kept back by the restraint this system of guarantees placed upon their movements. The contractors ruled that the county believed the railway would pay or the county would not give the guarantee; and in exchange for that gratuitous undertaking the county magistrates peremptorily took upon themselves a very large share of the management, and which very much interfered with the movements of the promoters of the line. Now he believed that I generally the railways in Ireland had been more successful than those in England, and therefore any well-devised line would be certain to meet with support on its own
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  merits. He should therefore support the prayer of the petition.
  LORD MONTEAGLEobserved, that the system of guarantee ought, he thought, to be used with the greatest caution, and the Committee to whom the Railway Bill was referred ought to inquire before permitting it.
  LORD STANLEY OF ALDERLEYsaid, that in most instances it was inexpedient to permit a guarantee on the original shares, but not always. Whenever it was done due notice should be given to all those who were likely to be affected by it, whether by means of the grand jury or otherwise. He thought that in small counties, with this restriction, the guarantee might sometimes be allowed.
  EARL GRANVILLEsaid, that they must lay down a principle, and not suffer it to be tampered with by Committees. It might, in most cases, be injudicious to permit a guarantee; but if any portion of the county wished to secure that a railway should pass through it, and were willing to give a guarantee to effect that object, he did not see that Parliament ought to lay down any strict and inflexible rule that no such guarantee should be given.
  House adjourned to Thursday next.