§ LORD ST. LEONARDS
said, he had to preface the question of which he had given notice with a very few observations on the important measure announced by the noble and learned Lord on the woolsack. He begged to assure his noble and learned Friend that nothing could be further from his intention than to raise any impediment in his way; but he wished to know precisely what was the course which his noble and learned Friend proposed to pursue for the revision of the Statutes, and what the machinery by which he proposed to effect his object. The revision and digest of the Statutes was a subject with respect to which, for a long period, a very anxious wish had been expressed that measures should be taken; and different attempts had been made from the very earliest periods to effect the object—but with these it was not his intention to trouble their Lordships. He would refer, however, to the year 1816, when a Motion was made in their Lordships' House for a Committee simply to consider whether it was expedient to arrange the Statutes under appropriate heads. A Committee was appointed for that purpose; and that Committee came to the resolution that it would be expedient so to arrange the Statutes; and that it would be proper for persons learned in the law to execute that task, with clerks, not exceeding 20 in number, to assist in making that arrangement. The resolutions of the Committee being reported to their Lordships, were accepted by the House, and communicated to the House of Commons. These, though for so limited an object, gave rise to debate, and met with opposition; but, ultimately the resolutions were carried, and with some alterations were transmitted back to their Lordships' House. The resolutions ultimately being carried by both Houses, became the subject of an Address to the Crown, and a favourable answer was returned by the Prince Regent. There the matter seemed to have rested till 1834, when a Commission was issued to several learned persons—very competent persons—to form a digest of that portion of the Statute and Common law which related to criminal offences—not further to digest generally the Statutes at large, but to inquire whether it was expedient that there should be a con- 291 solidation of the Statutes, or of any of them. In 1835 those learned persons made a report, in which they stated what were their views with respect to the consolidation of the Statutes. They pointed out that there were three modes of proceeding, one simply by a process of expurgation, which might be attended with classification under general heads, such as Clergy, Poor, Highways; but it was to be simply an expurgation, with an arrangement under general heads. The Commissioners thought that plan would be a safe one and useful; and, if his noble and learned Friend (the Lord Chancellor) intended to confine himself to that plan, he (Lord St. Leonards) should not have had a word to say on the subject. The next plan pointed out was that of consolidating and classifying the Statutes—by which it was meant that every subject should be arranged under its proper head; and the Commissioners pointed out the great danger and inconvenience that might arise from this plan—for instance, titles might be affected, and they reported against the adoption of that plan. Their Lordships would see what would be the effect from a single example. Suppose they took a single clause out of an Act of Parliament, because it ought to be arranged under a new head: if they took it out of the Statute with which it had been enacted, and transferred it to what might be thought its proper head, they would find that it would not have the sense it had when read with the context of the Act in which it was originally contained. Those learned persons, therefore, came to the conclusion not to recommend the adoption of that plan. The third plan proposed was very large in its range: it amounted to what was called "codification." Its object was to remodel and reform the Statutes, so as to adapt them to the actual state of the law as declared by the Judges in their decisions based on the Statutes, so that the law should not say in words one thing, while decisions of the Judges might have given what seemed a different construction; but the proposal was, that this great work, which the Commissioners appeared to have much at heart, should be executed so that the law should be declared precisely as it stood, not simply on the Statutes, but as explained and decided upon by the Judges. A few words from the Report would show their Lordships how difficult the Commissioners apprehended the execution of that 292 task would be. The noble and learned Lord here quoted a passage from the Report, in which the Commissioners expressed the opinion that a complete and systematic consolidation of the Statutes, accompanied with the adjustment of the enactments to the judicial decisions, was practicable and desirable; but that they were aware that so extensive a reform, however beneficial, could not be safely accomplished without great labour, nor was it one that ought to be attempted without first cautiously weighing the means of performing so arduous a task, or without fully estimating the difficulties to be encountered in its execution. The Commissioners had certainly not overstated the difficulty. That plan would amount to an entire codification of all the Statutes—a work of such immense magnitude that no man could hope to live to see its completion. This had been a Commission to inquire, but it was afterwards converted into a Commission to execute so much of the report as recommended a digest of the Statute and Common law affecting criminal offences. In the course of a few years these Commissioners produced eight large blue books; other Commissioners had afterwards produced five more; and the whole of these thirteen blue books were now the subject of consideration before their Lordships' Select Committee, to whom had been referred the Bill for consolidating and amending the Criminal law introduced by the late Government. The cost incurred had been stated, and he believed understated, at a stun which he did not mean to say was too large a sum to pay, but was a large sum, and ought to make Parliament cautious as to how they entered on any plan relating to the Statutes. His object, as he had already stated, was not to embarrass his noble and learned Friend in any manner, but to make the inquiry of which he had given notice, that the House should know to what extent his noble and learned Friend intended to go, and the machinery by which he intended to work out his plan. He (Lord St. Leonards) should apprehend that even for a classification under the heads "Poor," "Clergy," "Highways," and the reduction of enactments to general heads, it would at least be necessary that Her Majesty should be advised to issue a Commission to learned persons. He begged to ask his noble and learned Friend whether his revision of the Statutes would be confined to a digest, or 293 extend also to the alteration and amendment of the Statute law; also, whether it was proposed that the Crown should issue a Commission, or that the two Houses should proceed by resolution, followed up by an address to the Crown, as in 1816; or by what authority the barristers employed would be appointed?
The LORD CHANCELLOR
said, that in answer to the question of his noble and learned Friend he had to state—and in fact he thought he had stated before—that he was perfectly aware that there had been Committees and reports of Committees of that and the other House of Parliament upon the very subject to which he alluded, namely, the consolidation of the Statute Law; that great discussions had taken place in both Houses, the result of which was an address to the then Prince Regent, praying that a Commission might issue, and that a very courteous answer had been returned, but that nothing had been done. A Commission was issued some fifteen or sixteen years afterwards, in 1833 or 1834; and a very elaborate report was presented by the Commissioners recommending that something should be done, showing what was easy and what was difficult, and chalking out what might be done. But he had really thought that we had arrived at such a point that farther speculation as to what might be and what was convenient to be done was absurd; that these inquiries had ended, and always would end, in nothing. What he had proposed, therefore, was—not anything so absurd as that he should himself undertake to attempt the consolidation of the Statute Law—but he did think himself competent to superintend some three or four gentlemen, who in the course of the year, under his direction, might endeavour to do the best that could be done; first, making what his noble and learned Friend called such an expurgation of the statutes as would show what was and what was not now in force, and forming a sort of index and classification, and then to attempt to reduce into much better form than that in which they now existed some of the statutes under the simplest heads; endeavouring as far as possible to shorten that inconvenient language in which they were now couched, the object was to improve and classify it. He only looked upon what could be done in this way in the first in stance as specimens of what might be done; and when that should have been accomplished, he would then have to con- 294 sider whether what had been done afforded such an augury of how the whole might be completed as would justify him in recommending, with the concurrence of his Colleagues, the issue of a Commission of learned persons to accomplish the remainder of the work. His object, therefore, was not to inquire merely what could be done, but to set practically to work to get something really done, in order to furnish a criterion of what actually could be effected. And he thought he would be deserting his duty if he were to rest satisfied with merely stringing together the existing statutes as they now stood, in the language in which they were now found, for he believed that a great deal more than that might be done without any risk; but as to what extent they might go with safety he did not like to speculate. It might be that he was too sanguine on that point; although, on the other hand, he must say he thought his noble and learned Friend was too timid on the subject. He (the Lord Chancellor) thought a great deal in the way of consolidation and purification might be accomplished—getting rid of much verbosity, putting the statutes into a much better shape, and making them more intelligible than was the case at present. It would be his main endeavour to accomplish that object during the current year. It would also be one of his main objects to follow the suggestions of his noble and learned Friend behind him (Lord Lyndhurst), namely, that while they sought to classify the existing statutes, and to turn them into better language, they should constantly keep in view the necessity for Adopting a better mode of conducting legislation for the future. He did not know that they would be able to suggest anything, but he believed that the course he proposed afforded the best chance of accomplishing that desirable object. His noble and learned Friend asked under what authority the work was to be done? He answered under his authority, with the concurrence of his Colleagues. The expense would be extremely small; and he believed he had secured the services of four of the best gentlemen that he could hear of; and he had the more satisfaction in this respect, that he had never seen one of them before in his life, but he had selected them solely because after looking minutely into the recommendations made to him, and the qualifications, he believed them to be as competent for the task as he could find; and he had secured their 295 services at the expense of a very few hundred pounds for each of them for a year, He should expect that they would devote their whole time to the work; and if a great deal was not accomplished, he believed the matter would be put into such a train that some good must eventually result from their efforts. It must be a great advantage to possess an authentic record of the statutes now in force, and a mode of classification chalked out, with specimens of some of the easiest statutes recast into better language and form; and this, he confidently anticipated, would lead to the ultimate adoption of a better mode of framing future statutes. There was one thing which had been most gratifying to him, since the announcement he had made about a month or five weeks ago—to find how very much alive the profession and other persons were to the importance of this subject, and—what was a great surprise to him—to see how much had been already done. Only that day he had a communication from a very distinguished person, Sir Edward Ryan, who put into his hands a work (which, according to his description, was most elaborate) written by the late Sir Henry Seton, who had investigated this subject, and classified and made a kind of arrangement of the statutes in a really remarkable manner. He had not yet seen the work himself, and spoke from Sir Edward Ryan's account of it. Other works of a similar nature had also been brought under his (the Lord Chancellor's) notice, the authors of which it would be invidious to particularise; but it was from among these gentlemen that he selected those persons, thinking he had found among them the men most competent to assist in the task which he had in view. He did not say that what might be done in the course of this year would be anything very elaborate, or very perfect; but he believed it would be essentially useful, and that it would afford the best prospect of the complete consolidation of the statute law hereafter. At all events, it must do some good, and by no possibility could it do any evil.
§ LORD ST. LEONARDS
wished the noble and learned Lord might realise his expectations; but must repeat his caution that the alteration of a single word in an Act of Parliament might alter the force and effect of the Act, and you could not predicate what ultimately it could be held to mean until there had been an actual decision upon it.
§ LORD BEAUMONT
understood the case to be that the language of the statutes was sometimes at variance with the decisions of the Judges, and that as it must be desirable that the language of the statutes should be placed in accordance with those decisions, that—merely that—was what the Lord Chancellor had in view.
§ LORD ST. LEONARDS
said that that was not at all what His noble and learned Friend meant. What the noble Lord seemed to think so easy was one of the most difficult tasks that could be assigned to any man; the statement of the Commissioners, which he had read to the House, was directed to teat object, and showed that it would be a great object to accomplish if it could be done; but you must look well to your means of doing it.
§ LORD BEAUMONT
explained. He did not think it would be advisable to alter the language of the statutes where that language was not evidently in opposition to the decisions of the Judges; but he thought it was advisable to put it into accordance with those decisions.