HL Deb 07 July 1863 vol 172 cc339-44

Order of the Day for the Second Reading read.


said, that in requesting their Lordships to give the Bill a second reading, he felt it incumbent on him to state that, from its very nature, it must of necessity be accepted by their Lordships on trust, relying on the fidelity, industry, and skill of the persons who had been employed in preparing it. The Bill had been the work of some years. The mere examination of the questionable points had occupied himself and his auxiliaries a considerable time. His only object now was, to give their Lordships a brief account of the system on which they had proceeded, in the hope of engaging their Lordships' confidence and trust in the fidelity and accuracy of the performance. It was his desire, in the first place, that against every enactment proposed to be repealed the reasons for its repeal should be given with some minuteness, in a column furnished for the purpose of affording that information. Such a column had been inserted. It had been proposed, indeed, before the Committee, to strike out that column; but after the great care and pains which had been taken to examine every part of each statute, which it was proposed to sweep out of the statute book, he trusted that proposal would not be carried into effect. The House would see, by looking over the number of pages in the schedule, and seeing the manner in which the column was worded, how great had been the pains taken to examine every particular of the enactments it was proposed to sweep away from the statute book. The statutes to be repealed consisted of such statutes as were obsolete, such as had expired, and such as had been generated by a state of things and a condition of society which had long passed away. They had accordingly divided in the schedule the enactments which were to be swept away into the general heads of those that had expired, those that were spent, those that had been repealed by the operation of general terms, those that were virtually repealed, those that had been superseded, and those that had become obsolete. The gentlemen who had been engaged in this arduous work, had by his direction, from time to time prepared cases containing statements of any questions or suggestions of doubt which arose in their examination of the statutes; and he held in his hand a fasciculus of these papers, which he exhibited, not for the purpose of magnifying the work and labour which had been gone through, but for the purpose of assuring their Lordships that every point, every minute doubt and difficulty had been examined with the greatest care, by himself and the Law Officers. He came to their Lordships with more confidence in the hope that they would accept this large instalment of the revision of the statute law, because in the year 1861 his predecessor in the Great Seal had presented a similar statute, prepared on the footing of an anterior measure, which their Lordships accepted as a small instalment of the work that had yet to be done. In the prosecution of the present work, he and his fellow labourers had founded their proceedings, in a great degree, upon a very remarkable document, which he (the Lord Chancellor) could not help thinking had been prepared under the immediate auspices of Lord Bacon, now in the British Museum—a volume which was referred to in the introduction to the edition of the statutes published by the Record Commissioners, and which particularized the statutes that had been repealed and had expired from the 3rd Edward I. to the 7th James I. So far as it went, this volume was of great assistance. The manuscripts which had been prepared, in consequence of the original proposal of Lord Chancellor Cranworth in August 1853, had also been followed; and there were some other documents which existed in their Lordships' library, and which had been prepared at their direction for the purpose of expurgating the statute law. He wished to assure their Lordships that no means had been neglected, or labour spared, in order that this extensive sweeping away of what remained on the statute book should be correct and perfect in its details. It was quite impossible that a work of this kind could be done in any other way than this. A further ground of confidence might be derived from the fact that since the passing of the former Act in 1861 no inaccuracy or error had been detected in it.

Moved, That the Bill be now read 2a.


said, their Lordships, he thought, could have no difficulty in assenting to the proposition of his noble and learned Friend. He fully concurred in the statement that this was a measure precisely of that nature which called upon their Lordships generally to show confidence in those to whom the execution of the Work had been confided. Their Lordships, however, were aware that this was a very small instalment of a work which had now been going on for some years for the purpose of preparing an edition of the statutes that were in effective operation. He believed that a codification of our laws was an impracticable object. The decisions of the Judges were what gave the interpretation to the statutes, and so eager were the profession to obtain the last decisions that they were willing to make use of reports by unauthorized reporters because they were published sooner than the regular reports. Any attempt to codify the decision given in the judgments of the Judges was utterly impracticable. The Judges took great pains to give at length the grounds and reasons for the judgments which they pronounced, so as to satisfy all men that their judgment was mature, that it was founded upon authorities, and that it was justified by principles. Any set of men who were competent to revise those judgments, to correct that which was mistaken, and to reconcile that which was conflicting, would be worthy of seats in their Lordships' House; but he was inclined to think that to embody their mere opinions in an Act of Parliament would not be a satisfactory way to deal with the carefully-prepared judgments of the Judges, and that it would be better to leave the task of revision to the Exchequer Chamber and the appellate jurisdiction of their Lordships' House. As he was one who objected to a code, it was satisfactory to know that there were so many difficulties in the way that they were not likely to have it; but, at the same time, he approved the preparation of a revised and expurgated edition of the statutes.


said, that any Bill of this nature, embracing a vast number of technical points, and extending over 200 pages, could neither be dealt with in detail by a Select Committee nor by the House itself, but must be taken to a great extent upon trust. All that could be done by their Lordships was to give it a general supervision, and then send it to the other House of Parliament, where he trusted it would be received with equal confidence. To insist on going into every separate provision would only be a roundabout way of refusing to have any revision of the statute book at all. The question was, did they wish for a consolidation of the statute law and a digest or not? He entirely concurred in what had been said with reference to the care taken in the preparation and the ability displayed in the judgment of the Common Law Judges. They had often heard, from no less a man than Jeremy Bentham, that the judgments of our Common Law Courts formed an invaluable repository of the laws of the land, and he could not help thinking that a digest of those judgments showing their application to the different points of law decided, and to the varying circumstances of the cases which had come before the Judges, would be of the greatest possible advantage, not only to the profession, but to the public at large. It was quite a mistake to suppose that the noble and learned Lord had proposed to review the judgments of the Courts; for, of course, that could only be done by the appellate jurisdiction, or by the Legislature. The Commission proposed by his noble and learned Friend would confine its labours to a digest of the matter and substance contained in various bodies of Reports. He hoped that ere long we should have a Department of Justice—a measure which had been supported by his noble and learned Friend on the Woolsack, and in favour of which a unanimous Vote of the House of Commons had been recorded.


wished to express not only his concurrence with the Bill, but also a somewhat more confident hope than had been indulged in by his noble and learned Friend (Lord St. Leonard's), as to the completion of this work. There had already, under a Bill introduced by the late Lord Campbell, been a revision of the statutes repealed since 1770. Now it was proposed to deal with all the statutes from Magna Charta down to the reign of James II. There would then remain an interval of only some eighty years to complete the revision of the statutes. It was true that the statutes of those years would not be dealt with quite so easily as those which formed the subject of the present Bill; but he recommended that with regard to these statutes a digest should be commenced such as that which had been set on foot when he was Lord Chancellor. In his opinion, such a digest was an absolutely necessary preliminary to a consolidation of the statute law.


agreed in thinking it impossible that a laborious work of this kind could be performed in any other way than that adopted. A former Bill on this subject was referred by the House of Commons to a Select Committee. Of course, at this period of the Session, that would be impossible with regard to this Bill. He suggested that the portions of the Bill in which reasons were given for the proposed repeal of the several statutes should be printed in red ink with a view to facilitate the labours of the House of Commons in dealing with the measure.


proposed that these Reasons, which it was intended should be ultimately struck out of the Bill, should go down to the House of Commons as part of the measure. With regard to the other part of his plan, he only desired to do that which almost every State in America had already done—namely, to make a digest of the whole of their law, imcluding the law contained in the reports of cases. That work had been the standard law of the land from that time until now, with the approbation of all classes of the community. He was sorry that his noble and learned Friend (Lord St. Leonard's) who had spoken on this part of his scheme had left the House, because he was going to appeal to an authority whom his noble and learned Friend could hardly dispute—he would appeal from Lord St. Leonard's to Sir Edward Sugden. Sir Edward Sugden had been the great codifier, condenser, and digester of reports on given subjects. In his admirable treatises he had canvassed the decisions and marked the cases that were objectionable and unfit to be cited as law, and the result was that the Judges both in law and equity were in the habit of saying upon the class of cases treated by his noble and learned Friend, "You will find the whole law in Sir Edward Sugden's Treatise." If that had been done with regard to certain subjects, undoubtedly it could be accomplished in an equally satisfactory manner with regard to other subjects by a learned body of men appointed for the purpose.


, on the part of his noble and learned Friend who had left the House (Lord St. Leonard's), wished to say he was convinced that if his noble and learned Friend were present, he would admit that what he had done was all very well for a text writer. But what his noble and learned Friend on the Woolsack proposed to have produced was an authoritative work, binding on the courts with the force of an Act of Parliament.

Motion agreed to: Bill read 2a accordingly, and committed to a Committee of the Whole House on Thursday next.