HL Deb 22 June 1857 vol 146 cc115-22

said, he had to call the attention of their Lordships to a subject very different from that with which they had just been occupied, but one of very great importance—namely, the Third Report of the Statute Law Commission; and he should conclude the observations he had to make by asking their Lordships to give a first reading to eight Bills, the object of each of which was the consolidation into a single statute of the whole of the law relating to an important portion of the Criminal law, and which were now dispersed over a great number of statutes. These Bills had been prepared by the Members of the Commission appointed in 1854 for the purpose of considering the expediency and possibility of consolidating the statute law of this country. This was a subject that had at all times occupied the attention of lawyers, and one which had been considered of the utmost importance from the earliest times of our legal history. It had been pointed out by Bacon, Coke, and Hale as one that the Legislature ought in some way or other to undertake. But all their recommendations ended in nothing. Finally, about forty years ago—in 1816—a Resolution was passed by their Lordships' House in favour of this work being undertaken, and carried into execution by our most distinguished lawyers. That Resolution was communicated to the other House in it; that House expressed its entire concurrence. There however, he regretted—or rather he was ashamed—to say, the matter ended, for no steps were taken to remedy the evil. If, however, that was an evil forty years ago, he need not say that in our day the evil had become infinitely more pressing; for there were every year added to the statute book from 100 to 150 Acts, so that no lawyer, even the most profound, ever pretended that he was able to make himself master of all the statutes of the realm. In order to remedy this state of things, in the year 1854 the Crown issued a Commission directed to a number of distinguished lawyers for the purpose of investigating the whole question. The first point which the Commission took into consideration was the different modes by which the object they had in view might be attained; and finally they came to the conclusion that it was better far to attempt to do something than to speculate on what might be the best man- ner of curing the evil. The difficulties which they had to encounter were undoubtedly enormous. It was suggested that they should at once proceed to systematize and consolidate some portion of the law. That appeared plausible, and no doubt was the correct mode of framing a code of laws; but then the duty laid on the Commission was not to frame a code of laws, but to consolidate the law as it now existed. After various dicussions, and having attempted in the first instance to take up what were called groups of statutes, and made some progress in that work, they found that it would not do, and that the only way to make any impression on the statute book was to take different subjects and consolidate all the laws relating to each of those subjects. This was not only attended with great difficulty, but with great danger. If they knew that any specified statutes contained all the provisions relating to a given subject, the task would have been easy; but there was not a single subject to which their attention was likely to be directed which was not probably treated of in many enactments; and it was impossible to be sure that every statute, or part of a statute, relating to a subject could be found and consolidated, and that some would not remain undiscovered, and, therefore, unconsolidated. In. order, therefore, to proceed with certainty the Commission employed some gentlemen of great information and research to commence a register of the statutes, beginning with the statutes of the previous year, taking statute by statute and clause by clause of every statute, from chapter 1 of last Session to the end. These Gentlemen went to work, marking every enactment and every section, and every previous enactment to which any section referred, either in the way of repeal or modification. This implied great labour; but he was satisfied, in common with most eminent lawyers, that if the Statute Law Commission had done nothing else but complete this work they would have done something that was extremely valuable, for without such a process it would be impossible to make any progress in the consolidation of the law. It would now, however, be possible to publish an edition of the statutes containing all the enactments actually in force. But beyond that it would scarcely be believed how much that process had reduced the statute book in bulk. With the assistance of a very learned Member of the Bar the Com- missioners then proceeded to divide the statutes into classes. He might remind their Lordships that there was a class of statutes which the public in general had very little to do with except in the year in which they were passed—those relating to the army and navy, passed every year, and some relating to the revenue and financial subjects. They next proceeded to divide statutes into classes ranged according to the extent of their operation, those relating to the United Kingdom being placed in one class, those applying to England alone in another, and so on, making in all thirteen classes. In that operation they had not proceeded beyond Her Majesty's reign; but of the Acts passed during the last twenty years it was found that one-third did not form what might properly be called the law of the country, such as the Appropriation Act, and all acts the force of which expired after a limited period. Taking out those statutes, the Commissioners proceeded to ascertain how many of the remainder applied to the United Kingdom. They found that only one-third so applied; and therefore three-fourths of the statutes which had been passed during the twenty years of Her Majesty's reign could form no portion of the statute law book if that book were to consist merely of laws which regulated the conduct of Her Majesty's lieges. The Commission had not gone further back than Her Majesty's reign; but when the operation was extended it would be found that the numbers of statutes to be excluded would be continually increasing, and the labour of consolidation be as continually diminishing; but still they could not be sure of embodying all the statutes upon each subject until they had gone through all the statutes from Victoria to Magna Charta. It might, then, be said that the examination not having been concluded no consolidation could be made. The commissioners had considered that point, and had come to the conclusion that upon some subjects of a popular nature, of which consolidation would be eminently useful, it would be undesirable to postpone action, merely because some prior enactments might possibly be overlooked. They had therefore selected a number of subjects, as to which it appeared probable that the consolidation would be perfect. Amongst these, acting upon the recommendation of a Committee of their Lordships' House in 1854, that the formation of a criminal code should be post- poned, but that a consolidation should be effected, they had taken the criminal law. Besides the criminal law, they selected several other subjects in which they considered consolidation could be made tolerably perfect, depending as they did upon recent statutes, such as the laws relating to bills of exchange, to patents, to ecclesiastical leases, savings banks, &c. In all they had consolidated sixty-five statutes, besides nine others, which were now in the hands of the gentlemen who assisted the Commission. It must be understood that although the Commission employed the most skilled draughtsmen they could find, yet they had not asked Parliament to sanction any Bills which had not been gone through with the utmost care by those members of the Commission best qualified to judge of their merits. The Bills relating to the criminal law had been gone through by the noble and learned Lord Chief Justice, by the late Chief Justice of the Common Pleas, by a gentleman who was of the utmost assistance to the Commission, Mr. Greaves, and by Sir FitzRoy Kelly. These Bills he laid upon the table at the close of the last Session; but in the interval before reintroducing them this Session, it occurred to him that improvements might be made in them. They had been framed to include all indictable offences, but some offences became indictable after one or two previous summary convictions, and he thought it would be better to alter the shape of the Bills, and make them relate to offences whether indictable or punishable by some other mode. He (the Lord Chancellor) had gone through the Bills with Mr. Greaves, and he now asked their Lordships to read them a first time. They did not include all the subjects embraced in the Bills of last year, some of which he thought could be deferred without much inconvenience, especially criminal procedure, which ought not to be dealt with pending the inquiries now being made by the Government in consequence of an Address presented last Session to Her Majesty by the House of Commons upon the subject of the department of criminal justice. They had also postponed dealing with the subject of treason and offences; against the State, which were not of a pressing nature. The eight Bills which he now asked the House to read a first time related to—1. Offences against the Person; 2. Larceny; 3. Malicious Injuries to Pro- perty; 4. Libel; 5. Forgery; 6. Coinage Offences; 7. Accessories and Abettors; 8. The Game Laws; which, although relating to a species of larceny, it had been thought best to deal with in a separate Bill. If he were asked whether those Bills were mere consolidations, he must reply that they were not; for the Commissioners had not felt themselves justified in overlooking the decision of the House in 1854, that in any Bills which might be prepared it was desirable that the Amendments that had been suggested by the Criminal Law Commissioners, and which had met with universal approval, should be embodied. Those alterations, he thought, would lead to no difference of opinion. Such, then, were the Bills which he proposed to lay on the table. There were several others quite ready to be laid before Parliament, but he thought it would be more convenient that they should be introduced in the other House. He thought he ought to tell their Lordships further that in proceeding with their work the Commissioners had come to several conclusions different from those to which they had arrived when they first considered the subject. It was felt that there were many ancient statutes, for example, which could not and ought not to be consolidated. It would be ridiculous pedantry to consolidate Magna Charta, the Act Quia Emptores, and other old statutes of the same class, which formed the basis rather than the superstructure of the statute law. The Commissioners had therefore come to the conclusion that with regard to all statutes of that sort they could do nothing in the way of consolidation. There were also a number of statutes expressed in such curious language and framed in so different a style from that of modern times, that if the Commissioners were simply to consolidate them, retaining as much as possible the old language, they would produce a piece of patchwork which it would not be creditable to lay before Parliament. One of the subjects to which that observation applied was the law relating to landlord and tenant, upon which a Bill had been prepared with singular care and skill by Mr. Bissett, a gentleman of some standing at the bar. There had been enactments upon the relations between landlord and tenant from the time of the Plantagenets down to the reign of Queen Victoria, and the Commissioners found that to consolidate all these into one statute would involve their being entirely re- written, if it were desired to have the language harmonious throughout. Moreover, the language of the greater part of them had received a judicial construction, and there was great danger that in modernizing it the Commissioners might not be able to adhere to that construction. There were a great number of other statutes which, though comparatively modern, had yet been amended by one or two subsequent Acts, but in which the alterations were so few or unimportant that it would be a waste of time to consolidate them, either alone or in connection with the amending statutes. For example, in 1838 was passed an Act regulating the mode of framing, and in some respects of construing wills; but in consequence of some difficulties which arose in carrying it into operation a few years afterwards an amending Bill was introduced and carried through Parliament. He was not sure whether, in consolidating the law relating to real property, the Commissioners had consolidated these two statutes, or not; but they certainly came to the conclusion that it would be absurd pedantry to consolidate such modern statutes of that sort as had but few additions made to them, thinking it better that the original statute and the subsequent Act amending it should be taken together. So with respect to the statute abolishing fines and recoveries. Again, there were a number of statutes which could not be repealed, and yet which it would be equally absurd to consolidate. The Wills Act, which he had already mentioned, afforded a good illustration of his meaning. Before the passing of that Act in 1838 there was a law of Charles II. which regulated, up to that time, the formalities necessary with respect to wills. That law must still remain in force with regard to all wills made before 1838, but it would be hardly worth while to consolidate it. So with respect to the Tithe Commutation Act, which was fast working itself out, and which it would, therefore, be a waste of time to consolidate. There were other statutes in the same position; but after all deductions there still remained a very great number of subjects which the Commissioners had no difficulty in dealing with, and with which they were determined to proceed until their labours were concluded. He did not think that he could usefully occupy the time of their Lordships by stating more in detail the course which the Commissioners had been pursuing. It had been said that the Statute Law Commission had done nothing at all. If it was meant that they had introduced no Bills which had become law the statement was perfectly true. They could not possibly have done so. The difficulties had been great, but he trusted that they had now found their way to do good service; and if their Lordships would render their assistance in laying before the public that which would at all events be a useful specimen of the labours of the Commissioners, he was in hopes that in the course of a few years they might be able to reduce the forty or fifty volumes of statutes now in existence to ten, two, or three. The noble and learned Lord concluded by presenting the following eight Bills:— A Bill to consolidate the Statute Law of England relating to Offences against the Person [Offences against the Person Bill]. A Bill to consolidate the Statute Law of England relating to Larceny and other similar Offences [Larceny, &c. Bill]. A Bill to consolidate the Statute Law of England relating to malicious Injuries to Property [Malicious Injuries to Property Bill]. A Bill to consolidate the Statute Law of England and Ireland relating to Libel [Libel Bill]. A Bill to consolidate the Statute Law of England relating to indictable Offences by Forgery [Forgery Bill]. A Bill to consolidate and amend the Laws against Offences relating to the Coin [Coinage Offences Bill]. A Bill to consolidate the Statute Law of England and Ireland relating to Accessories to and Abettors of Indictable Offences [Accessories and Abettors Bill]. A Bill to consolidate the Statute Law of England relating to Deer, Game, and Rabbits [Deer, Game, and Rabbits Bill].


said, he entirely approved the course which had been taken by his noble and learned Friend. Great misrepresentations had been made with respect to the Statute Law Commission, and he was glad that his noble and learned Friend had described exactly what the Commissioners had done and how far their labours of consolidation had proceeded. He was not prepared at that moment to go into the several subjects which had been broached by his noble and learned Friend, but he could not help remarking that the consolidation of the statute law apart from the consolidation of the common law was open to serious objection. There were many important parts of the law under its different heads which were not contained in the statutes, and to tell the people that they had to obey the latter only was merely to mislead and deceive them. The statement of the noble and learned Lord as to the value of the services of the Commissioners was by no means exaggerated, and if he were asked to mention one or two of the Commissioners who were more especially entitled to the thanks of the country, he would mention the names of Mr. Bellenden Ker, Mr. Coulson, and Sir FitzRoy Kelly.


said, he had no hesitation in concurring with his noble and learned Friend in approbation of the course adopted by the noble Lord on the woolsack, and he was sure their Lordships would willingly give these Bills a first reading. But he hoped the noble and learned Lord would be contented with that during the present Session, because it was desirable to see the work of consolidation as a whole, and to detect inaccuracies which, even with the utmost care, might still be discovered. He had never doubted that the whole statute law might be consolidated, but such statutes as that of the reign of Edward III. with regard to treason ought to be given in ipsissimis verbis in which they were originally enacted—it would evidently be most unwise to attempt to consolidate them.

The said Bills were then severally read 1a.