The Sun.
London, England, 1856-02-15 00:00:00

CONSOLIDA_TION OF THE STATUTES.

Sir F. KELLY said that he rose for the purpose of in-
troducing the first of a series of bills for the consolidation of
the entire statute law of England. He was not insensible to
the magnitude e and difficulty of the task he had undertaken;
but, looking with some degree of confidence not only to the
but
to
the effective support and assistance in-
divid"ll3' and collectively of the house, and especially of
the members
without hope of
her
Majesty's
Government, he was not
success. This subject had often before
baffled the efforts of lawyers and statesmen, and it was
only by the effective co-operation of others that he could
bemefieiailureissiltbfrom, his labours. In order to
stateellc morn anyore clearly, intelligibly, precisely the nature of
what he proposed to do, he would first explain what he
meant by a consolidation of the statute law, because a great
deal of perplexity and Coufasion had arisen from con-
founding the terms consolidationszT:fcrod from
ifica n These
terms were indi fforently used by whomtio
a. g
rea
ta
or
degree of accuracy ought to be expected. The
consolidation of the statute law, as that law now existed
in the statute-books, was that which he had undertaken
to effect. The statute law was at present contained in
some 35 or 40 fc.lio volumes, and the number of the sta-
tutes was somef hing like 15,000 or 20,000. What he pro-
posed to do was. to arrange and classify these statutes,
and to have one act of Parliament on each subject, so that
instead of the statute-book consisting of 40 volumes foil),
and 20,000 str‘tutes, without order, classification, arrange-
ment, or reference, it would consist of some 200 or 300
acts of Parliament, each act embracing the whole statute
law on that particular subject to which it related. He
did not seek to occupy the time of the house with the
question of codification, which included a consolidationwand
not only of the :statute law, but of the common
la
which he belies oil to be impracticable in the present state
of things. The condition of the statute-book was such
that the judge who bad to administer the law, the

counsel or the attorney who had to apply it, and the
subject who had to observe and obey it, were obliged, in
order to ascertain what the law was, to refer to text books
which might or might not exist, which, if they existed,
might not be ample or accurate enough to satisfy the re-
quit 'meats of the inquirer. Having found a text book he
had to go through all the statutes and sections of statutes
on the subject, from Magna Charts to the present time,
till be discovered, or hoped that he discovered, the parti-
c ilsr provision he wished for. And after all he could not
be certain that he was right, because he could not be sure
that he had not overlooked some statute or section of a
statute bearing on the subject of inquiry. This was one
of the many evils resulting from the present state of the
law. Another evil was this, that whenever a member of
that house was desirous of amending the law, and intro-
duced a bill for that purpose, he could never be sure, un-
less he was a perfect master of every provision relating
to the subject (and who could say that), that he had not
overlooked some clause in some act of Parliament, which
would be inconsistent with the proposed measure, and
thereby merely increase the confusion and the evil. He
might point out a variety of other evils resulting from this
state of things. He would only refer to one particular case
to illustrate this evil. An act of Parliament was passed in
the time of George 11., which made a malicious destruction
of property in certain conditions a felony. Fifty years after
that another act was passed on the same subject, the
framer of which, probably a very learned mac, but whose
attention had not been called to the previous act, made it a
misdemeanour. Some one committed the offence in ques-
tion, and the framer of the indictment, being acquainted
with the earlier and better known statute, and not with
the latter one, framed it for a felony. The person was
tried, convicted, and punished under that statute. It was
fortunate that it was not a capital felony, for then he
would have been hanged, and it would have been too late
to discover that a statute was passed half a century later
which reduced that particular offence to a misdemeanour.
(Hear, hear.) The consequence was less serious than it
might have been, but it was still a consequence highly
discreditable to the state of the law. (Hear, hear.)
There were another set of statutes familiar to some mem-
bers of that house, the acts under which the ecclesiastical
commissioners, or rather the commissioners for building
churches, were constituted. These acts were so confused
and inconsistent that no lawyer would advise a client to act
on any single section without great doubt and hesitation.
He need not dwell further on the state of confusion in
which the statute law now was, as the subject was familiar
to the house, but would proceed to call their attention to
the history of the attempts to remedy it, and then explain
the nature of the steps which, supported by the ablest as-
sistance, he proposed to take for the entire consolidation
of the statute law. (Hear, hear.) The subject hied been
under their consideration a few evenings ago, on the mo-
tioa of the right honourable member for the Univer-
sity of Dublin, but the complaints then made were
almost in the same terms as those made by Lord
Bacon 250 years ago. From time to time various attempts
had been made to remedy these evils, but from the
Imes) of Lord Bacon to that of Lord Brougham no attempt
to consolidate the statute law of England had succeeded.
He felt therefore that he was entitled to the indulgence of
the house, when he appeared before them to commence such
a task. He had lately become a member of the Statute Law
Commission, and he felt satisfied that with the assistance
to be derived from the labours of the commission the ob-
ject could be attained. Two centuries had elapsed from the
time of Lord Bacon, when in 1803 the subject of the con-
solidatior. of the statute law came under the consideration
of the Record Commission. They resolved, " That Francis
Hargrave, Esq., should be requested to consider and re-
port as to the beat mode of reducing the statute law into a
smaller compass and more systematic form." The recom-
mendations of the Record Commission were approved of
by both houses of Parliament, but nothing was done, nor
any attempt made, to carry them out from thence until
1816. In that year a report was made to the House of Lords,
' aed they resolved," That from the present state of the sta-
tute law, it is inexpedient that effectual means should be
taken to arrange the matters contained in the statute-book
of she United Kingdom, and the statutes passed by the
several Parliaments of England, Ireland, and Scotland,
under their distinct and proper heads." For some years
nothing was done, until Lord Brougham made his cele-
brated oration in that house, on the state of the law, but
the consolidation of the statute law did not form one of
th 3 subjects of his speech. In 1833, when he became Chan-
cellor, he issued a commission to inquire into the subject.
The commissioners made a report, but it was never acted
on. It was always found that, as soon as any classification
was attempted, the most active law reformers soon con-
founded consolidation and codification, and the scheme
always turned out a failure. In 1843 one step was taken
in preparing an index of the statutes. In 1852 an-
°Veer attempt was made, and a bill was actually laid on
the table of the House of Lords. It was intended to be
the first of a series, but it failed because it attempted
to codify : it dealt with the criminal law, repealing
existing enactments, and re-enacting such of their pro-
visions us were not obsolete. Unfortunately it did not
stop there, but attempted to give definitions of, and to re-
duce into a statutable form of expression a number of
offences which before were left to be determined by the
common law. The result was, that whilst there was no
ditlerence of opinion as to the sections of the bill which re-
newed the statutory enactments, every single definition
and every single provision affecting the common law be-
came a subject of discussion and difference. That was fatal
to the bill. It was referred to a select committee, but
came to nothing. In 1853, the present Lord Chancellor,
when laying on the table of the House of Lords a bill re-
latiug merely to registration, entered into a statement of
the arrangements ho proposed to make for attempting the
consolidation of the statute law. That system, how-
ever, coafoundod consolidation and codification, and must,
of necessity, have proved impracticable. Towards the
end of the session, the Lord Chancellor brought in a bill,
the first of the promised series, for the consolidation of the
criminal law, but it did net pass. In 1851 Lord Craw-
worth appointed the present statute-law commission. of
which he (Sir F. Kelly) bad, within the last few weeks,
become a member. He could not, therefore, claim any
credit for the many useful suggestions that had emanated
from that body; but having now become a member of it
he had undertaken to peruse and revise every bill prepared
for the classification and consolidation of the different
subdivisions of the statute law. He had further under-
taken to bring each of these bills before the house, and he
trusted he would succeed in accomplishing the task, if he
received from the different members of the house that as-
sistance they were so well qualified to give, and which he
stood so much in need of. (Hear, hear.) The commission,
when first
.appointed, held several meetings; some very
eminent members of it insisted on an attempt at some
general codification, but that, as before, proved inconsist-
ent with any effort at consolidation. Mr. Anstey, a
gentleman for whose zeal and abilities ho had the highest
respect, devoted himself to the preparation of an analysis
of the law as a preliminary to au attempt at codification,
but it was found to be productive of the greatest con-
fusion and difficulty; and, like every other attempt
at codification, ended in failure and disappointment. The
first head of Mr. Anetey's analysis was—" Of personal ca-
pacities—and of natural-born British subjects, all their
rights and liberties, however secured by statutes or other-
wise, shall be taken to be by common law. No act of the
Sovereign derogatory to those rights shall be valid." If
the ideas of the hon. gentleman had been carried out, he
would by such an enactment lepeal Magna Charta and
substitute some general cause of his. After this system
had been abandoned, the commission, at the suggestion pf
the Lord Chancellor, employed different members of the
profession to consolidate the statute law relating to the
subjects with which they were each most conversant.
From the experience which he had derived from the la-
bours of these gentlemen, he was perfectly convinced that
the entire consolidation of the whole statute law was easy
and practicable. He now undertook, with the assist-
:ince of the commission, to go through the whole com-
pass of the statute law, and reduce every act and
every section of an act relating to the various subjects
into a complete classification. He would now shortly
explain the plan on which he intended to proceed, then en-
deavour to explain to the house what appeared to him tobe
the distinction between consolidation and codification, and
he thought ho could satisfy the house that if ever the latter
was to be successful, it could only be after censolidatiou.
The plan on which they intended to proceed was this—in
the first place, they would take one, two, or three, of the
most important, and at the same time most familiar sub-
jects within the compass of the law, then go over the en-
tire volume of the statutes, and extract from them not
only every act of Parliament, but every section, every pro-
vision, every line of an act that bore on either of the sub-
jects ; this had been done with the two bills which he uow
asked leave to lay on the table. He would take the second,
that relating to the laws on bills of exchange and promis-
sory notes, as an instance, to make his statement more
iclear. At present, if a merchant or lawyer wished to
know what was the statute law relating to bills of ex-
change or promissory notes, he would have to look into
no less than 15 acts, some of them containing a groat
many sections, passed from the Bth Wm. 111. down to the
present day. The course which had been taken on this
subject, and which would be followed in every other in-
science, was to take out of the statute-book every act, and
every section of an act, relating to bills of exchange or pro-
missory notes, and at once repeal them all, and then bring
in, not 13 acts, but substitute for those dispersed through
the entire statute-book one single act containing every ex-
isting provision bearing on bills of exchange ; by this
means a portion of the statute-hook would at once be swept
away, and some 400- pages struck out of the 40 volumes.
The next subject they proposed to deal with was insurance;
that would strike out 1,000 pages more. The whole statute
law of the realm, which now rills forty volumes, contain-
ing some eighteen or twenty thousand acts, would be re-
duced to a seventh or an eighth of its present bulk ; and,
instead of a collection of a multitude of enactments, from
Magna Charts to the latest act, following each other with-
outsequenceg
ionr
ningw connection,itwith
:
Ci tonsol
will
ideaotnedsi consist
.a Nsaori.eBl—oll
Offences against the Person; Consolidated Act, No. 2—Law
statutes , b
of Bills of Exchange and Promissory Notes ; Consolidated
Act, No. 3—Policies ofi Insurance against Fire, on Lives,
&c.; and so on till theyreached the end of the statute-book.
Etch act would contain all the statute law of England on
the subject to which it referred. Although this task might
seem easy, yet there were many difficulties in the way.
One was that the Legislature must rely entirely on the ac-
curacy of the framers of these acts—that he had extracted
from the statute-book every provision bearing on the sub-
ject. As fair as that was concerned he had recommended—
and if he obtained the sanction of the house would see the
recommendation serried oat—that for the consolidation of
the statute law in each ,particular subject that member of
the profession who was undoubetedly and unquestionably
the most competent for the task, from his acquaintance
with it, should be selected ; for example, with regard
to bills of Exchequer they had employed the ablest
men who could afford the time required for the
slight remuneration they wore enabled to offer. It
would be invidious to mention names, but he could
promise the house that the same rule would bo adopted in
every other case. After they had gone through the princi-
pal branches of the law, as the criminal law, the merchant
law, the law relating to public rights, the municipal law,
the law of customs and excise, there would still remain a
large number of statutes which would require to be grap-
pled with before they could effect a complete consolida-
tion of the law. It appeared from a return annexed to one
of the reports of the statute law commission that the num-
ber of acts passed in the last session was 131. Of these 11
were general public statutes relating to the United King-
dom ; two applied to Great Britain, six to England and
Ireland, 21 to England, six to Scotland, 13 to Ireland,
making altogether 59 acts of a general and public nature.
Now supposing that these had been carried through Par-
liament, a succession of bills upon all the branchesthesta-
tute-book of the
law, embraced in these acts, so as to have purged
of nine-tenths of its contents, and to have em-
solidated into several distinct and single acts of Paella.
inent, all subjects of a general and public nature, then
would come the question what was to be done w
lie with the re-
a
mainiug acts? Besides the 59 public acts, to ricts, six ch had
referred there remained 26 special and Inca
re-
lating to the colonies, two relating to the East Indies, 11
to the army, the navy, and the militia, and 39 to the le-
venue and other financial subjects. These last-mentioned
acts were not strictly of a general and public nature, but
it wuuld be in vain to say that they had eousolidatecl the
•