HL Deb 18 July 1859 vol 154 cc1370-8

rose, according to notice, to call the attention of the House to the Fourth Report of the Commissioners for Consolidating the Statute Law, and to inquire of the Lord Chancellor what are the intentions of the Government as to that Commission. He also proposed to lay upon the table certain Bills emanating from the Commission, and to ask their Lordships to read them a first time. The noble and learned Lord proceeded to say that since the time of Lord Bacon the consolidation of the statute law had engaged the attention of many learned persons, and the subject had, particularly of late years, been repeatedly brought before the attention of the Legislature. In 1816 a Committee of their Lordships' House recommended that persons should be appointed to revise and consolidate the whole body of the statute law, and a Commission was named in the year 1833, to consider the subject of the criminal law; and also to report as to the expediency of consolidating the whole statute law; but nothing further was done. In 1854, when he had the honour of holding the Great Seal, his attention was directed to the subject, and a Commission was issued for the consolidation of the statute law. One of the first steps was to consider the mode in which that could best be effected. It appeared to him and to others that the best way would be to get a number of statutes consolidated and then see what the result was. That was done. They soon, however, found that it would be necessary to deal with a more reduced body than the whole bulk of the statutes. The statute law was contained in no less than 41½ quarto volumes, of which 18 contained the statutes which were passed previous to the Union with Ireland, and 23½ contained the statutes passed since that date. It was impossible for any persons, who were not professional lawyers, to attempt to deal with such a mass of statute law. The Commissioners had first to consider what portion of these statutes it would be useful to consolidate—because there were statutes, or parts of statutes, which it would have been waste of time to attempt to consolidate. They thought it best to commence with the statutes relating to what he might term the permanent rules of civil conduct, and to commence on a lower foundation than they at first contemplated. It was felt to be necessary to draw up a register of all the statutes up to the beginning of the last century—that every statute should be examined, and a reference made in the register to the previous Acts to which it related. The work proved to be a more laborious one than was anticipated; but a register had been formed on that principle of all the statutes since the Union with Ireland up to the present time. That work had been printed and laid on their Lordships' table, and he ventured to think that their Lordships, as well those connected as those not connected with the law, would find it of considerable use. It sometimes happened that curious mistakes arose from want of knowing what statutes had in process of time been repealed. In 1842 a case came before the Queen's Bench as to the jurisdiction of the Crown, in which the question argued was whether a statute of Edward VI. did or did not apply to the case. The Court of Queen's Bench decided that it did not—and fortunately, for the register would have shown that that statute of Edward VI. had been repealed in the reign of George IV. So that the whole argument had been thrown away. It was not only in courts of justice that the utility of a register would be found; for in the Act abolishing the property qualification of Members of Parliament, passed last year, three statutes were repealed which had already been repealed by prior enactment. Then, as to classification, the utility of it was seen by a register. The first class related to Acts concerning the armed force of the kingdom—the Militia Acts, Mutiny Acts, and others of that character. Next, there were two classes which related to the revenue and finances, and then six classes for the permanent rules of civil conduct. In the first class were statutes relating to the United Kingdom; in the next, statutes which related to Ireland also; and then statutes which referred to England, Scotland, and Ireland respectively. They had then to see how many statutes passed since the Union came under these classes—because for practical purposes of consolidation this would be pretty much all that was necessary. Since the Union to 1858 there had been passed 6,887 statutes, and of these 1,836 were included in the class of permanent rules of civil conduct. The whole of these statutes were contained in 24 quarto volumes, and those relating to the rules of civil conduct formed about a fourth part. A large portion of them had also been repealed in whole or in part, so that but a small proportion was left to be consolidated. Having obtained this registry, their Secretary had been directed to classify these 1,836 statutes under the heads under which they ought to be consolidated; and accordingly they had been classified under 173 heads having reference to enactments relating to the same subjects. Of course this did not mean that they were to be consolidated into 173 statutes, because these heads often included enactments relating to the same subjects, but to different parts of the United Kingdom. For instance, there were 30 or 40 statutes respecting highways, but those related to England, to Ireland, and Scotland, and, from beginning to end, were essentially different. On the other hand, it might be possible on further examination to reduce somewhat the number of heads; and, upon the whole, the Commissioners came to the conclusion that the statute law regulating the conduct of Her Majesty's subjects in the United Kingdom might be comprised in 300 or 400 statutes, occupying, probably, from three to four volumes. He proposed to ask their Lordships to give a first reading to five Bills which had been prepared as samples of the mode in which the work of consolidation should be carried on. The subjects of those Bills had been taken at hazard and included the laws relating to aliens, to bills of exchange, to executors, to marriage, and to the registration of births, deaths, and marriages. They had carefully abstained from attempting to alter the law, except in cases where there were obvious clerical errors, and had cautiously avoided adopting any changes that might give rise to serious discussions in Parliament. Thus, in dealing with the Acts relating to marriage, they had left untouched the statute of Henry VIII. referring to marriages within the prohibited degrees. From what had been done they could form some idea of what would be the extent and bulk of the work when completed. He found that, excluding the Bill relating to marriage, which included an extraordinary number of statutes, the computation would be that the whole 1,336 statutes could be included in 274. With respect to bulk, the five Bills which he asked their Lordships to read a first time only occupied one-half the space of the statutes which they displaced. The next question to consider was whether any efficient mode could be recommended by which the work might be completed. The Commissioners had come to the conclusion that now that they had provided a foundation, and shown exactly what remained to be done, and how it could be done, they might recommend that, instead of the Commission going on without any avowed head, the whole should be put under the superintendence of some barrister of eminence, who should not practice at the bar while the work was in hand, and who might employ draughtsmen under him, and by their aid complete the work the Commissioners had begun. The question then arose, how soon this work could be accomplished? He saw no reason why the whole work should not be done in two years, even supposing there remained in round numbers 300 Bills to be consolidated. Having brought the subject before their Lordships, and shown how, in his opinion, this important work could be completed without difficulty and without delay, he should ask them to read one of his Bills a first time, and would only add a hope that his noble and learned Friend upon the woolsack would give his sanction to the course recommended by the Commissioners. The noble and learned Lord concluded by severally presenting the following Bills. A Bill to Consolidate the Statute Law of England relating to Marriages (Marriages Bill). A Bill to Consolidate the Laws relating to the Registration of Births, Deaths, and Marriages in England (Registration Acts Consolidation Bill). A Bill to Consolidate the Statute Law of England relating to Bills of Exchange and Promissory Notes (Bills of Exchange and Promissory Notes Bill). A Bill to Consolidate the Statute Law of England relating to Executors and Administrators, and the Distribution of the Personal Property of deceased Persons (Executors and Administrators, &c., Bill). A Bill to Consolidate the Statute Law relating to Aliens (Aliens Bill).


said he would bear willing testimony to the zeal and ability with which his noble and learned Friend had devoted himself to the business of the Statute Law Commission. There could, be no doubt that the consolidation of the statutes—an object they all had earnestly at heart—would he very much advanced by what the Commission had done. But, at the same time, he must say he did not think that that object would be facilitated by continuing the labours of the Commission. He believed his noble and learned Friend would make much more progress without a Commission than with the nominal assistance of all the noble and learned associates joined with him in the first instance. At first there were about thirty members named on the Commission, and they were all very eminent men, but their attendance was nominal, and they had no responsibility. This plan of consolidation could only be successfully carried out by Parliament placing implicit confidence in those who prepared the Bills. A better plan might certainly be adopted than by continuing the Commission. The register to which his noble and learned Friend alluded was most valuable, but it did not go beyond the union of England and Scotland, and he thought it was impossible to say that all the Acts were embraced, unless the register went back to Magna Charta. He believed that it would be far better to have a staff of lawyers, who should devote their attention to this business of consolidation, and who should be responsible for their labours, under the supervision of the Government for the time being. Moreover, by the establishment of a staff of professional men, an object which he had desired to see for many years would be accomplished, namely, a body of experienced men to whom Bills could be referred before they were introduced into the Houses of Parliament respectively. The legislation of this country would thus shortly be relieved from the disgraceful stigma to which it was too often subjected by the passing of hasty and ill-considered measures, which were introduced by Members without adequate reflection or consultation, and which in many cases it had been found necessary altogether to repeal. The matter was not mended by going into Committee, for really valuable clauses were often struck out and alterations made which were by no means improvements. The House would doubtless be glad to hear the other measures which the Government had it in contemplation to introduce. The first of these was a Bill with regard to proceedings in bankruptcy, which was a subject to which much attention had lately been directed; the Government would feel it their duty to propose a measure on this subject at the commencement of the next Session. Another object which they proposed to effect was an improvement in the law with regard to the transfer of real property. He was not one of those who believed that landed estates could ever be transferred as easily as Three per Cent Consols, but he felt convinced that the transfer of landed property was capable of great amendment, and might be rendered much more economical, much more simple, and much more satisfactory. A Bill on this subject was now in course of preparation by his learned Friend Sir Richard Bethell, who would introduce it in the other House at the beginning of another Session. Another improvement which the Government hoped to accomplish was in the mode of taking evidence in courts of equity, which at present was admitted to be most defective, and to inquire into which his noble and learned Friend (Lord Lyndhurst) had moved for a Commission. That Commission would be immediately issued, and he trusted his noble and learned Friend would be able to serve upon it, in which case there could be no question that great and important improvements would be effected in that branch of our jurisprudence. His hon. and learned Friend who had immediately preceded him in the office of Lord Chancellor was deserving of the utmost credit for the attention which he had bestowed on another subject, and whoever might be entrusted with the carrying out of this great object, it should be remembered with gratitude by whom it had been originated. He referred to the attempt which had been made to consolidate and to simplify the orders of the Lord Chancellor, which were now in such a state of confusion, that in comparison even the Statute Book was simplicity itself. The subject was now engaging the attention and undergoing the research of able and learned Gentlemen, and he hoped that by Michaelmas term their labours would be sufficiently advanced to admit of a Bill on the subject being proposed. The last and certainly one of the most important measures to which he had to refer was one which would be introduced with the object of assimilating the practice in courts of law and equity; so that suitors might no longer be subjected to the great expense and uncertainty of commencing suits in both Courts with the same purpose, and be subjected to the anomaly of succeeding in one and being defeated in the other. One trial, it was expected, would by this means set the question at rest, and thus a fertile source of expense and dissatisfaction would be done away with.


hoped from the agreement that had been come to on both sides of the House on this subject that something practical would at last be attained. The state of things was this—that they must either forego consolidation altogether, or leave it implicitly in the hands of a few learned and able men in whom they had confidence. He did not mean to say their labours should not undergo discussion in Parliament, but to such men must be committed the great work of consolidation if they meant to achieve success. His noble and learned friend (Lord Lyndhurst) was very unwillingly absent from that discussion on account of indisposition. He was anxious to be present in order to do an act of justice to some of those learned gentlemen who had been employed either as Commissioners or in the service of the Commission. It was especially his duty, as Lord Lyndhurst also felt it, and authorized him to express, to bear testimony to the great ability and disinterestedness by which the labours of Mr. Bellenden Ker as a member of the Statute-Law Commission had been characterized. There were other able and learned men to be commended. Among these the three gentlemen mentioned in the Report, and Mr. Coulson, whose learning and abilities are well known to their Lordships. But Mr. Bellenden Ker had been attacked by ignorant or unreflecting persons, and it was therefore, both Lord Lyndhurst and himself felt it incumbent on them to bear testimony in his behalf. He (Lord Brougham) could in proof of his disinterestedness refer to matters within his knowledge while a Minister of the Crown. Mr. Ker was employed daily above a year as Commissioner and otherwise in the Reform Bill of 1831–2, to the serious injury of his profession as an eminent conveyancer. While others in the like circumstances claimed compensation and obtained professional preferment in consequence, Mr. Ker, whoso business very greatly exceeded theirs, and who had suffered in proportion far more than they had, never urged any claim whatever, but gallantly returned to his profession, and from his great skill and learning his practice became greater than ever. He (Lord Brougham) considered that Mr. Ker had been illused by promotion having been withheld from him. But he never heard oven a murmur of complaint from himself, and he now made this statement wholly without having even told Mr. Ker of his intention to render him justice, or having ever had any communication with him on the subject.


was understood to say, that consolidation and not codification was what was required, and the most useful description of consolidation was that which dealt with one particular class of offence or branch of law, for it would be both unwise and useless to attempt at once a consolidation of the laws of England; that one of the great difficulties by which the consolidation of the statute law was beset was that of finding a person on whose ability and general competency to examine the several statutes with a view to their classification reliance could be placed. The labour was one which the multifarious duties of his noble and learned Friend on the woolsack, as well as of the Attorney and Solicitor General, rendered it impossible that they could satisfactorily discharge. The necessity for consolidation and subsequent alteration would be much obviated if the Bills were originally more carefully drawn.


agreed that the Commission, though it had done a great deal, was not the proper mode of accomplishing the work which remained to be performed. That task should not be delegated to a number of individuals whose other duties prevented them from paying it their undivided attention, but should be entrusted to one salaried officer whose whole time should be devoted to the work, and who should direct the labours of a competent staff of skilful draughtsmen.


wished to know whether his noble and learned Friend intended the Bills he had mentioned as simple specimens of the mode in which the Commissioners proposed to carry out the work of consolidation, or whether he intended to pass them through Parliament with the shape of Acts.


said, he intended the Bills as specimens, and did not expect at present to pass them through Parliament. He was satisfied with the statement of his noble and learned Friend upon the woolsack. The Commissioners had recommended an undivided responsibility, and that he thought was best, but if his noble and learned Friend preferred a staff of two or three persons there could be no objection.

The said Bills severally road la.

House adjourned at half-past Seven o'clock, till To-morrow, half-past Ten o'clock.